Monday, October 30, 2006

Exhibit B in the case for Yes

Today's Milwaukee Journal Sentinel has an article addressing the "uncertain" effects of the marriage amendment and it is a case study in the "he said, she said" method of reportage. Nothing wrong with that and the reporter does a good job of reciting the opposing arguments, but isn't there an obvious point that needs to be made in response to the point, made in the article by Sen. Jon Richards, that the "second clause that goes way beyond marriage, goes beyond to civil unions, health benefits, even (the right of) a person to visit their partner in the hospital."

It does go to civil unions (a status that doesn't really exist today), but here's the biggest point on the claim that the amendment will preclude the conferral of benefits, keep people from visiting their partners in the hospital, etc.

Twenty states have marriage amendments. In all of this states there is not one instance - not one - of an amendment being interpreted to preclude these things.

Utah has a marriage amendment. Salt Lake City has a benefits plan in which employees who are unmarried may designate an adult dependent residing in his or her household to be covered by the employee's health insurance and other benefits. When Salt Lake adopted this program (expanding it from one that required the employee and co-beneficiary to be in a sexual relationship), the Alliance Defense Fund withdrew its objection. Someone else continued the case, but they lost.

As the article points out, after the amendment passed in Michigan, someone challenged a domestic partner benefits plan offered by the Ann Arbor schools. While the matter is being appealed, the plaintiffs lost. The trial judge upheld the benefits notwithstanding the amendment.

The worst case that Fair Wisconsin can trot out is the refusal of two Ohio appellate courts (out of ten that have addressed the issue) to apply that state's domestic violence law to unmarried couples. (Of course, the perp can still be charged with assault and battery.) My guess is that the Ohio Supreme Court will side with the 80% of lower courts that have held the amendment doesn't affect the domestic violence statute, but the larger point is that, in Ohio, the pertinent part of the domestic violence statute applies only to people who are or have lived together "as spouses." Wisconsin law does not require that. It applies to any adults living in the same household.

Amendment opponents argue that we should ignore actual results in other states imposing same sex marriage and yet be scared to death of possible arguments that have been rejected everywhere they have been tried.


Anonymous said...

Of course, it wasn't a mere lone shark ("someone") suing in Michigan, it's an activist organization backed by that state's attorney general. And of course, in Ohio, folks backing the abusive boyfriends include Alliance Defense Fund attorneys and Citizens for Community Values, the organization that sponsored their amendment in the first place.

Let's review what this very blog has had to say about the second sentence: "I have to admit that I don't much like it." ... "[D]o we really need to say that civil unions cannot be recognized? The amendment goes beyond saying that the constitution does not mandate civil unions to say that they may not be established. I would rather not do this."

Anonymous said...

I thought the whole point was to keep activist judges out of it. Now you say we should blindly trust because judges will eventually decide the right way.

Which is it?

Anonymous said...

What a load of $^%$. As a lawyer, you know it takes years for these cases to work their way through the system. You also know that in MI and OH and UT, these amendments have been used to limit protections for families.

Are you okay with an amendment that says bald guys can't get married because they might pass along the baldness gene? Just because it's in the constituion doesn't mean it would harm you in any way. You can still parent. You just can't get married. If you tried hard enough, your hair would grow.

Anonymous said...


Perhaps if you tried hard enough you wouldn't be such a jerk. That is what is wrong with some on the left -you can't come up with a coherent arguement so you personally attack. The purpose of this amendment is not to beat up on gay people so get over it.

Rick Esenberg said...

They have not "been used" to limit protections. They have been used, by some, to try and limit protections and have been almost completely unsuccessful. No court has denied benefits to anyone. Two (out of ten) courts in Ohio have said that Ohio's amendment affect's Ohio's domestic violence law but, based on differences between the dv law in Ohio and Wisconsin, there is simply no chance that will happen here. The argument that was made in Ohio is not available here.

Todd is correct in noting that I struggled with the second sentence, but I have come to believe that the social meaning of marriage can be undermined just as readily - perhaps even more so - by civil unions.

As far as the "balding" argument - aside from being a cheap shot - that would be about eugenics and not the meaning of marriage. It would, moreover, be poor eugenics in that 1) the gene for male pattern baldness is typically handed down from the mother (i.e., check out her father) and 2) bald is sexy.

Anonymous said...

"The purpose of this amendment is not to beat up on gay people so get over it."

True. The purpose of the amendment is to manipulate the people to try to encourage right wingers to come out in droves and vote for republicans. If you don't believe that, ask John Gard, Mark Gundrum, and Scott Fitgerald why they delayed the vote. The bonus is that it beats up on gay people-- the only minority that people like Rick think don't deserve equal legal protections in our constitution. Only SURPRISE, turns out the electorate is not as dumb as the Republicans thought, and the polls showed the proposal was having the opposite of the intended effect. So, what should a party do... Hmmm. I know, let's add a death penalty referendum!

If you believe this is remotely about the "sanctity of marriage" or "protection of marriage," you are sorely mistaken. No one has ever been divorced because gay people want to protect their families.

As for the effects of this legislation, you like to talk about the effect in other states that have passed similar amendments. Let's chat for a bit about the other side: states that have provided protections. Lo and behold, the divorce rate is the same as before or decreased. The states did not fall into the ocean. Child abuse and illegitimate births did not rise. The fact of the matter is that you are being used. Rick, in 10 years or less you will be ashamed of your role in this process. I guarantee it.

How's that for a coherent "arguement" [sic]?