On the Power of Constitutions

Many solid arguments have been made by fellow ban opponents about how the proposed civil unions and marriage ban violates the nature of constitutions. These opponents usually offer a version of Assemblyman Gregg Underheim's argument:
Constitutions protect individuals from undue intrusion into their lives by government. The right to free speech is a constitutional prohibition on governmental restriction. Freedom of religion is a restriction that says government can't prevent you from worshipping as you want. Passing this today will change the nature of the Constitution. This is anti-constiutional.
There’s another argument to be made about the nature of constitutions. And this argument speaks directly to those, such as Owen at Boots and Sabers or Dad29, who claim that our fears about the far reach of the second sentence are unfounded.

Amending the state constitution is the strongest medicine (or, depending on your perspective, poison) available to us. The constitution is the law that shapes all laws. It is that which determines and delimits what the state can do and how it can treat its citizens. Our Wisconsin Constitution is the most powerful document we have, and if the history of politics tells us anything, it is that we should be anything but reckless with power.

The civil unions and marriage ban fails this test. Its second sentence combines the incredible power of a state constitution with the recklessness of a deliberately obscure sentence, a combination with radical ramifications no one can fully predict: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

It’s clear that the phrase bans civil unions. But what else does it do? And to what does the phrase “legal status” refer? To the quantity of rights or responsibilities conferred upon a couple? Maybe. But if that's what the authors meant, isn't that what they would have written? More likely, "legal status" refers to the characteristics that qualify a couple for state recognition: to the state's ability to even recognize a marriage-like relationship between two unmarried people.

If we pass this ban, we will insert family policy into our Constitution for the first time. This ban will become the language that has final say in any court decision about families or couples. Legislatures, executives, and even everyday citizens for generations to come will be forced to debate, to fight over, and to take to court any public recognition of any relationship that dares to approximate the love and committment of marriage.

This ban won't merely define what counts as marriage in Wisconsin. It will define with dangerous obscurity what counts as domestic and as family. It will define—in our Constitution of all places—what couples will be left unrecognized and invalid.

We don't claim to know in advance all the potential effects of this ban. We do claim, however, that the second sentence seriously jeopardizes domestic partner benefits given by public employers. We know with near certainty that lawsuits will be filed within days or weeks of the ban's inclusion into our Wisconsin Constitution. And we can even say with near certainty exactly what organization will file the suits, a well-funded organization with top-notch lawyers who've had great success in the past. (Think of it. If you're the legal director for an anti-gay organization, what would give more satisfaction than suing the city of Madison!)

We also know real families who depend on their public employer's recognition of them as families. We know real children in Wisconsin who greatly benefit from having a stay-at-home parent, one who would be forced to work if she and they lost the health insurance this ban jeopardizes. And we know domestic violence counselors who are very scared by all the many unknowns this ban poses for their work.

The risk is too high. The price is too steep. Mere doubts about the second sentence should be enough for us to vote down this far-reaching, unpredictable constitutional amendment.


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A Fair Wisconsin Votes No
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