September 5, 2006

Attorneys Against the Ban....

... is a new group opposing the proposed amendment to the Wisconsin constitution that would ban marriage and "substantially similar" legal status for same-sex couples. They have a pithy FAQ. Here they address the question I think is most important:
What is “a legal status identical or substantially similar to that of marriage”?

The sponsors of the amendment have been evasive about what legal protections and rights they expect the amendment to take away.

The second sentence almost certainly bans unmarried partners (same-sex or opposite-sex) from entering into civil unions or comprehensive domestic partnerships, such as those enacted by the legislatures of Connecticut, Vermont and California. Such unions define the partners’ enforceable rights and obligations with respect to one another and give some legal recognition to their relationships, but do not constitute marriages. President Bush has endorsed such civil unions in the past. See Elisabeth Bumiller, “Bush Says His Party is Wrong to Oppose Gay Civil Unions,” New York Times (Oct. 26, 2004).

Beyond civil unions, the second sentence puts at risk a wide variety of legal rights, employment benefits, and contractual commitments that unmarried domestic partners take for granted. See questions and answers below. At a minimum, as Wisconsin State Senator Scott Fitzgerald acknowledged during the public hearing on the amendment on November 29, 2005, the courts will inevitably become involved in deciding whether a particular protection – or combination of protections – will be considered “substantially similar” to marriage. Thus, rather than taking this contentious social issue out of the courts, the amendment actually invites litigation.

If you support the amendment, please try to deal with this problem in the comments. The main justification for a constitutional amendment is that the courts forced it, but the Wisconsin courts have not found a gay marriage right. The amendment is trying to get out in front of the courts -- and I can understand this -- but it's written in a way that will have to involve the courts. I think our state courts have left matters to the political process. Why not trust them to continue to do that, especially since the alternative will provoke litigation?

And, conservatives, note the favorable reference to President Bush -- including the fact that they called him "President Bush."


Freeman Hunt said...

including the fact that they called him "President Bush."

That's an awfully low bar.

I agree with the group that this particular amendment is too vague. I would not vote for it.

sean said...

I guess at a law school, hearing someone refer to "President Bush" seems out of the ordinary?

Seriously, though, I don't see how the argument that a constitutional provision has vague language that may well be the subject of litigation is a good argument. Did the University of Wisconsin law faculty oppose the Equal Rights Amendment on that account? I think the point of the amendment is not to take matters out of the courts--every citizen has a right to petition the courts--but to establish the ground rules under which the courts must operate.

hdhouse said...

someone please tell me again why same sex marriage is such a threat to hetrosexual marriage and then explain why your legislature has to dance this through with vague language. i just don't get it.

Doug Sundseth said...

I think our state courts have left matters to the political process. Why not trust them to continue to do that, especially since the alternative will provoke litigation?

First, I don't support any legislation or amendment such as that which Wisconsin is considering now. That said, in what way is the proposed amendment not being "left to the political process"? Now, it's not being left to the legislature, the executive, or the judiciary, but there's rather more to politics than government.

dcwilly said...

Prof. Althouse: If you haven't already seen it, I think you'd enjoy the op-ed in today's Washington Post from Judge Harvie Wilkinson III on the same-sex marriage issue.

sean said...

hdhouse, you seem to be conflating two issues. Obviously, there's an argument that gay marriage isn't a threat to anyone, in which case, we presumably should let the courts decide what the rules should be, because it's not important enough for the people or their legislators to think about (although the important business of the Wisconsin legislature escapes me at the moment). But that's a totally different argument from saying that the proposed language is vague and ambigous: so are many constitutional provisions, because no one can specify in advance what is "due process" or "equal protection" or whatever.

Joseph said...

Professor Althouse, This post is not following the directions you gave commenters in the post, so feel free to ignore it.

I respect and appreciate very much that you create this forum for open debate about all kinds of things, including same sex marriage and critiques of the political rhetoric and specific proposals on put forward by all sides on this issue and lots of other issues. To grossly simplify what I perceive to be your positions on this particular issue based on my following of your blog for the past six or eight months, you prefer political candidates with views on same sex marriage that are "in the middle" (you said something like that in defense of Guiliani), you dislike supporters of same sex marriage dismissing the arguments put forth by its opponents as bigotry, you have at least some sympathy with the argument that the courts should not be deciding this issue because its a political issue, and you dislike the vagueness of various proposals to ban same sex marriage.

Here's my problem. I agree that constitutional directives should be clear and not invite judges to interpret them more or less broadly than they were intended to be and that the hostile language of bigotry used by supporters of same sex marriage is generally unproductive and in many cases unfair.

But at the end of the day, this issue comes down to whether you think gay people should have access to the legal benefits afforded hetero couples. And, whether bans on gay marriage pass constitutional muster or not or are skillfully drafted or not, we have to decide more generally whether extending the benefits of marriage to gay couples is a good idea. As you have said, that is where the battle will be won or lost, if we can convince people that same sex marriage is a good idea and the arguments against it are not really as worrisome as its opponents suggest.

So, I can't help but think that the proposal up for a vote right now is not about whether this or that benefit will be included or excluded or whether passing it will have a negative effect on Wisconsin tourism or whether this amendment is necessary to prevent the Wisconsin courts from taking on the issue. Its a referendum on whether same sex marriage is a good policy or not.

If you think its a good idea, I wish you would say as much and why. If you think we need a policy that is "in the middle" I wish you would say why too. That's my humble request.

Thanks again for maintaining this forum. I do appreciate it.

Too Many Jims said...

Come on, isn't it absurd to argue (as Attorney's Against the Ban do) that "the validity of . . . testamentary devices such as wills and trusts . . .will also be subject to litigation and possible invalidation under the amendment."

hdhouse said...

can it be that as long as there are 2 or more lawyers on this planet there will be pending litigation?

if you and your hetrosexual spouse lived on one edge of a forest and a same sex couple lived together on the other side of the forest...your paths never actually cross, but you share the same water source, pretty much breath the same air, plant the same soil, albeit a few miles apart. both couples live their entire lives without interaction.

each couple looses 1 due to death at a coincident time.

2 questions.

1. if you stumbled upon the surviving mates how would you know which is which.

2. what law could you write, with specificity, that would make the distinction between the two couples.

joseph hovsep raises an interesting consideration. he reduces the question to "whether or not someone approves in some sort of moral/ethical sense". the flip side of that is what does the law strictly permit regardless of of personal morality.

so which applies to the spouse(s) left behind? moral judgment or legal black and white?

Unknown said...

Nobody is voting for this amendment, because they want to stop lawsuits. They are voting for this amendment for one of the following reasons:

1) They hate gay people
2) They think gay people are icky.
3) They want to put those uppity gay people in their place.

"Protecting" marriage is not one of the reasons.

Bob said...

The catch-all phrase at the end of most amendments: "The legislature shall have power to implement this amendment by appropriate legislation...."

BJK said...

I think that people have an inherent distrust for the Judiciary right now. (If not distrust, then at least uncertainty.)

While it is fair to suggest that there may be litigation after the passing of the amendment, it is disingenuous to suggest that there would be no litigation absent the amendment. The difference is the substance of the litigation: whether you have the greater distrust for the court's ability to rule on gay marriage or on the second sentence of the amendment is a pretty fair barometer of an individual's vote.

That said, I don't see how the second sentence allows or invites litigation. Most of the benefits that the attorneys are referring to are already being supplied voluntarily, without being mandated by law (and being supplied by the private sector). I don't see those going away regardless of whether or not the amendment passes.

yetanotherjohn said...

Given the name of this group, isn't there an implied threat to wage a legal Jihad against the amendment if it passes?

If amendments whose language might invite lawsuits are a bad thing, then one of the worst amendments out there is the US constitution first amendment. Would you have wanted the lawyers outside the US constitutional convention to have argued that the first amendment should not have been included because of potential lawsuits? Surely if you buy this argument that an amendment that could provoke legal challenges should not be adopted on those grounds, then the legal Jihad should be extended to repeal the first amendment.

And let's assume for a second that the amendment passes, someone brings suit that this amendment means you can't allow hospital visits by anyone other than a spouse or whatever legal nonsense you want to conjecture. Surely the judges you trust not to pull new rights out of an old constitution would quickly dispose of such law suits. And if they didn't, the amendment process can be used to correct those excesses.

Judges in one state pulled a legal rabbit out of their constitution. Voters in other states have noticed how hard it is to put the rabbit back into the hat and have been passing amendments to block this particular rabbit hole by large majorities (57% low, 89% high, average well above 67%). Those who oppose such amendments need to do the political spade work to come up with arguments on why gay marriages would be a good thing, seriously consider unintended consequences, propose amendment language (perhaps with the bar that the amendment can in no way invite a lawsuit, now that is a high hurdle to clear), convince voters that they are right and get contrary amendments passed. Just saying anyone who opposes gay marriages must be a homophobe is not doing the due diligence. If the attorneys and judges had done this hard political work in the first place, we wouldn't be having this discussion.

Joe Giles said...
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Joe Giles said...

On the matter of domestic partner benefits, etc., my understanding was that employers could grant benefits toward anyone they wish so long as they did not do so via a status similar to that of marriage.

An employer could set up a scheme whereby employee could grant benefits to one adult. The amendment does prevent the employer from creating a relationship similar to that of marriage, however.

Contrary to downtown lad's comment, in this way the amendment is not purely anti-gay, but is protective of marriage, to the extent of preventing even opposite sex partnerships, etc.

And like jim c, I think the concerns about testamentary devices are overblown. This is an area that is frequently commented on, yet the easiest to solidify.

tjl said...
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tjl said...

"the amendment is not purely anti-gay, but is protective of marriage, to the extent of preventing even opposite sex partnerships, etc."

There may be some slight rationality to the argument that the amendment is protective of marriage as applied to hetero couples. There is a tiny chance that the only thing holding Brad & Janet back from the altar is that they can still get domestic-partner insurance coverage. Take away their benefits and you might conceivably get more single hetero couples to marry.

The argument fails when applied to same-sex couples -- the intended target of the amendment. Since Betty & Jane can't marry, denying them domestic-partner benefits won't encourage them to do so. The amendment imposes a significant burden with no rational relation to a legitimate state objective. It's punitive in intent as well as in effect.

Tim said...

It's not just that the language of your amendment is vague -- it's incredibly vague, so vague that it does not establish any ground rules under which a court or a judge might operate. It simply states that where unmarried people are concerned, anything goes. And so where amendments like yours have been passed, civil law has become a no-holds-barred game of "smear the queer."

Wisconsinites might do well to learn from the mistakes of other states instead of imitating them. In Virginia, a law very similar to your amendment has been used to nullify a child-custody decision from Vermont -- one wonders whether the federal Parental Kidnapping Prevention Act also applies in the Old Dominion. (Virginia's Marshall-Newman amendment, up for approval this November, is even more broadly worded than your own, and may well affect private legal arrangements such as wills, powers of attorney, and even private DP insurance benefits.) In Ohio, an amendment of this sort effectively denied unmarried people access to legal protections against domestic violence, and the legislature scrambled to rewrite those statutes.

Bottom line: The supporters of this amendment go to do they know not what.

Communitygal said...

Ann, a majority of the living Wisconsin State Bar Presidents has also come out with a statement against the ban. Here's a link to the press release:

These are the leaders of the Wisconsin legal community. I would think their voices will have some impact.

chimoke said...

as to the question, "why would our legislature waste time on such a bad idea?"...answer: the monkeys are running the zoo. this is my stock answer to many questions of late.