Tuesday, August 22, 2006

Marriage Amendment Debate: Owen Rebuts Ingrid’s Answer to Question #3

Here is my rebuttal to Ingrid’s answer to question #3.

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Are the objectives of the first sentence really so urgent that we should approve a 50 percent flawed amendment into the governing document of our great state?

This makes the assumption that the second sentence is flawed.  I’m not so sure that it is.  Consider that the objective of the second sentence is to prevent a court or the legislature from creating an institution identical to marriage for gay folks and calling it something different – whether that name is “civil unions” or something else.  Further, the portion about “substantially similar” is meant to keep some smart judge or legislator from creating an institution exactly like marriage save one minor provision. 

If one supports the first sentence that marriage should be between one man and one woman, then the second sentence is necessary to prevent some obvious subversions of that principle.  

So if the second sentence is necessary to maintain the integrity of the first, how else would you word it?  I grant you that it leaves some ambiguity and some latitude for the legislature and the courts to work within, but that’s what constitutions do.  I can think of no other wording for the second sentence that would make it more specific without resorting to a 1,500 word constitutional amendment that would leave just as many – if not more- legal ambiguities. 

But as we know, most opponents of the ban oppose both sentences anyway.  Their focus on the second sentence is a political and rhetorical calculation, not a principled one.

How many times, when debating marriage for gay couples, do we hear people say they’re fine with rights for gay families so long as it’s not called “marriage”?

Almost never.  It is not the word “marriage” that needs protecting – it’s the institution. 

The ban’s second sentence has made for an incredibly broad vote-no coalition, one that includes conservatives. Many, like Assemblyman Gregg Underheim…

Underheim has never been a conservative and will gleefully tell you so.

(8) Comments
Posted by Owen at 1825 hrs
Politics + Politics - Wisconsin

  1. can think of no other wording for the second sentence that would make it more specific without resorting to a 1,500 word constitutional amendment that would leave just as many – if not more- legal ambiguities.

    Really? How about this: “The legislature can restrict marriage, along with all the legal incidents of marriage, to one man and one woman.” Not very legalistic sounding—like the amendment you support—but surely it’s a clear, unambiguous statement of legislative power.

    the portion about “substantially similar” is meant to keep some smart . . . legislator from creating an institution exactly like marriage save one minor provision.

    In order to become law, a bill must pass both houses and be signed by the governor. If some smart legislator writes a bill, and that bill becomes law, then such must be the will of our elected representatives. That’s democratic process.

    But here, as elsewhere, you’re advocating that gay families be denied the same access to the democratic process that others have.

    Posted by .(JavaScript must be enabled to view this email address) on August 22, 2006 at 2051 hrs


  2. It’s not the legislative process I’m concerned with… it’s the judicial one.

    Posted by Owen on August 22, 2006 at 2058 hrs


  3. And yet you twice in this rebuttal justify the second sentence for the restrictions it places upon the legislature. And you’re supporting an amendment designed to secure exactly those restrictions.

    Posted by .(JavaScript must be enabled to view this email address) on August 22, 2006 at 2109 hrs


  4. That’s the thing about the constitution… it impacts all three branches of government. 

    But the legislature can amend the constitution again if there comes a time when the people demand gay marriage.  Until such time, the marriage amendment protects the institution of marriage from the other branches of government.

    Posted by Owen on August 22, 2006 at 2111 hrs


  5. I’m with Owen on this. The focus on the second part of the amendment is just politics. The Gay Marraige proponents know they cannot win on the merits of gay marraige so they are trying to distract people by exaggerating the meaning and impact of the second part of the amendment. I’ve heard gay marriage supporters claim that marriage gives couples over 2000 legal rights and responisbilities yet now that the amendment is on the ballot, they want to claim that the contract right to share medical benefits with an unmarried partner will be imperiled. If marriage really does grant 2000+ benefits, 1 or 2 of them cannot constitute ‘substantial” similarity to marriage

    Posted by nee Julius on August 22, 2006 at 2142 hrs


  6. Owen: That’s the thing about the constitution… it impacts all three branches of government.

    That’s true about the constitution as a whole. But it’s blatantly untrue about each individual clause. You’re right that the amendment you support affects all three branches. But you’re absolutely wrong to claim that this is necessarily so. Many clauses in the Wisconsin and the federal constitutions are meant only to limit or secure power for a single branch of government.

    To say that Gundrum and Fitzgerald could not have written an amendment that solely applies to the judiciary is demostrably false. Merely look at the Hawaii amendment Ingrid mentions in her first rebuttal.

    Julius: The focus on the second part of the amendment is just politics.

    I assure you that for my son, employed by a public agency that recognizes his relationship, the second sentence is anything but politics. It’s a very real threat to the security and well-being of his family.

    The second sentence is the one that will lead to substantial, tax-payer funded litigation. It is also the one that will have the most immediate and lasting negative effect on the state’s families. And it is finally the one that most ties the hands of the legislative branch.

    Posted by .(JavaScript must be enabled to view this email address) on August 23, 2006 at 0819 hrs


  7. “Their focus on the second sentence is a political and rhetorical calculation, not a principled one.”

    What continues to astound me is the utter failure to recognize how this impacts real people. Why on earth do you want to put a constitutional amendment that discriminates against actual Wisconsin families? My partner and I have been together 12 years and have a child we are raising just like anyone else, yet you want to embed discrimination against our family in our constitution.

    Claiming that the amendment can be reversed in the future is a cop out. First, in the many years it would take to do that, my daughter continues to be harmed for no valid reason. Second, voters in Alabama recently refused to remove a constitutional provision in their constitution that supported racial discrimination—it ain’t that easy too reverse an amendment. Third, “majority rule” is not the rule of law. We are to protect minorities from the majority. If you disagree with that, then I suggest you run out and sign up for a spanish class, because in our lifetimes you will become the minority.

    Posted by .(JavaScript must be enabled to view this email address) on August 23, 2006 at 0829 hrs


  8. What about the institution is it that needs to be protected, exactly?  You’ve conceded that some of the rights typically associated with civil marriage are reasonable for gay couples to have.  Which are the ones that are objectionable?

    (“Well, go ahead and get health insurance and hospitial visitation rights, but joint mortgages are just crossing the line!!!!”)

    Posted by .(JavaScript must be enabled to view this email address) on August 23, 2006 at 1530 hrs


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