All of them are bad; some are downright ugly—and might be overreaching
Voters in eight states will decide on November 7 whether to amend their state constitutions to ban same-sex marriages.
Significantly, in most of those states, the proposed amendments go further, restricting the ability of the state to extend any legal recognition to unmarried couples regardless of gender, suggesting that their proponents have a broader agenda than simple disapproval of marriage by same-sex couples. They are apparently taking aim at any sort of rights for gay couples—and for straight couples who want protections but don’t want to marry.
Past experience with similar measures suggests that all eight could pass handily, but polling indicates that a few might go down to defeat if voters in the privacy of the voting booth act in accordance with what they are currently telling those asking the question. With just a few weeks to go until Election Day, opponents of the measures are seeing hopeful signs in Colorado, Arizona, Wisconsin, and South Dakota. As with African-American candidates, however, pro-gay sides of ballot questions often register better in public opinion polls than they do on Election Day, suggesting that prospective voters think the “right” answer is one choice, but in the end go for the other one.
Colorado features the least sweeping amendment, a simple definition of marriage, stating: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” At the same time, in a separate ballot proposal, voters will be asked whether to add a provision to the state Constitution that would authorize domestic partnerships, giving same-sex couples “the benefits, protections, and responsibilities that are granted by Colorado law to spouses,” including the ability to dissolve such a union, and “providing that a Domestic Partnership is not a Marriage, which consists of the union of one man and one woman.”
If the domestic partnership proposal passes, Colorado would be the first state to enshrine recognition for unmarried couples in its Constitution, an ironic development when you consider that little more than a decade ago, Colorado voters approved the most anti-gay constitutional amendment ever put to a vote—up to that time, at least—Amendment 2, which forbade the enactment at the state or local level of any civil rights protections for gays and lesbians. It was later declared unconstitutional by the Colorado and United States Supreme Courts.
A sharp debate has broken out in the press in Colorado over whether it would be inconsistent for voters to support both measures, with many gay marriage opponents arguing that the domestic partnership status created by the second proposal would virtually be marriage by another name because it would include all the legal rights that “spouses” have under Colorado law. This argument minimizes the impact of being excluded from more than a thousand federal legal rights that go along with a state-recognized opposite-sex marriage, however. Such rights, of course, are not currently available even through marriage for same-sex couples in Massachusetts, but at least such couples have the option of going to court to challenge the denial of the federal recognition of their marriages that is accorded every other marriage in the U.S.
The measure pending in Tennessee is essentially the same as that in Colorado, despite its wordy, windy rhetoric. The key language states that “the historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state.” Despite all the bluster contained in the ballot question, this amendment would not necessarily restrict the state or any localities from enacting domestic partnership or including unmarried couples in other measures, such as domestic violence laws or victim compensation schemes, unless Tennessee courts read into it a much broader intent than the language clearly indicates.
All of the other proposed measures—in Arizona, Idaho, South Carolina, South Dakota, Virginia, and Wisconsin—go beyond establishing an opposite-sex definition of marriage, placing restrictions on the ability of the state to recognize other non-marital relationships.
In Arizona, for example, after establishing the marriage definition, the proposed amendment states: “No legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage.” The Idaho measure provides that “a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized,” and South Carolina uses nearly identical language.
The South Dakota measure goes beyond defining marriage to provide: “The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized.” Similarly, the Wisconsin proposal states “that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”
All of these broader measures risk creating ambiguities in state law about the ability of government at all levels to provide accommodations and protections for unmarried couples, who make up a substantial minority of the households in many states.
The most draconian measure is the one pending in Virginia, where the Legislature has already passed the most comprehensive anti-same-sex marriage legislation. The proposed constitutional amendment, in addition to a restrictive definition of marriage, provides: “This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
This proposal raises the same concerns that the legislation created. Of particular worry is whether its language precludes state courts from enforcing living-together agreements or other documents common in “gay family planning” and increasingly used as well by opposite-sex couples who live together without marrying. The problem with embodying these restrictions in a constitutional amendment, of course, is the difficulty involved in repealing it if in fact it proves as deleterious for as broad a range of Virginia’s population as its opponents have been predicting.
A key political question will be the extent to which Virginians outside the gay community recognize a threat to their rights as well.
Nobody can say for certain what the ultimate effect of the more extensive amendments would be if enacted. In some states where similar amendments have passed in recent years, such as Michigan and Ohio, the fall-out has included rescission of domestic partnership benefits or exclusion from protection for unmarried couples under domestic violence laws. In Ohio, the intermediate appellate courts are sharply divided about whether a woman can obtain an “order of protection” from a court to protect her from continuing violence from a live-in boyfriend, an issue that the Ohio Supreme Court will be taking up soon. In Michigan, some professors at public colleges and universities have voted with their feet by accepting positions in other states rather than lose the domestic partner benefits they previously enjoyed.
According to the most recent tally by the Human Rights Campaign, the Washington-based national LGBT lobbying group, 19 states have passed constitutional amendments restricting marriage to unions of one man and one woman (with a number of those limiting as well the ability to create other types of partnership recognition), and 26 other states have enacted statutes to the same effect.
Only Massachusetts allows gay and lesbian couples to marry, but only those residing in that state or, according to a recent court ruling, in Rhode Island. Vermont and Connecticut allow for civil unions, granting same-sex couples all the same rights and responsibilities as married spouses available under state law. The domestic partnership law in California is nearly as comprehensive as the civil union statutes in Vermont and Connecticut. Hawaii, New Jersey, Maine, and the District of Columbia have enacted more limited domestic partner laws.