One of These Things is Not Like the Other

We almost always hear the same claim from those who wrote and most aggressively push the civil unions and marriage ban—they had this issue forced upon them and how dare anyone suggest they're singling out or attacking gay families.

So for instance, the Assembly’s lead sponsor of the ban, Mark Gundrum, R-New Berlin, recently told the AP, "If you have a majority of four liberal lawyers in black robes that want a policy changed, they will just do it. The only way to stop them from doing it is to amend the constitution."

And on the Senate side, lead sponsor Scott Fitzgerald, R-Juneau, wrote in a December op-ed:
This is not a debate we went looking for or wanted. It's one we're having because we have no choice. Marriage is under attack by activist judges from out of state who want to impose their extreme liberal views on the people of Wisconsin, and we must defend our laws and our traditions. … An amendment to the Wisconsin constitution is the only sure-fire way to preserve marriage here and protect our traditions from attacks by activist judges and local officials in other states.
Both legislators ask us to believe that the proposed civil unions and marriage ban was the only possible amendment they might have drafted. They seek to justify the mere existence of the ban, rather than defending its substance. Did Gundrum and Fitzgerald make no choices along the way?

A look at the relatively short history of these constitutional amendments helps us get closer to exactly what kinds of choices they made. This means taking a little trip to Hawaii.

Back in the late 90s, a Hawaii constitutional convention proposed and passed an amendment to its state constitution. Hawaiians voted after the landmark court case, Baehr v. Miike, the kind of marriage equality lawsuit Gundrum and Fitzgerald cite as justification for the ban they're pushing.

This was the beginning, the first of the so-called “marriage amendments,” and it stands out from all the rest. Here’s the language of the Hawaii amendment:
The legislature shall have the power to reserve marriage to opposite-sex couples.
That’s it.

And here, again, is the language of Wisconsin’s proposed amendment:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
Thirteen words to 43. One sentence to two. Theirs explicitly leaves open the possibility for the legislature to someday grant equal rights and responsibilities to all loving couples. Ours would shut that possibility down for good.

The Hawaiian example poses some key questions to Fitzgerald and Gundrum: If it’s the just the courts you’re worried about, why not propose a Hawaii-style amendment? If you want the people to decide, why tie the hands of the people’s representatives? And if it’s “marriage” you’re so concerned about, why attach such an extreme, far-reaching, and deliberately ambiguous second sentence? Why go so far?

The proposed Wisconsin ban on civil unions and marriage was written with meticulous care; each sentence was calculated and vetted by attorneys. Everything about it is deliberate, and it’s clearly aimed at far, far more than “four liberal lawyers in black robes.” Not only will history someday conclude that this ban’s authors did in fact seek to single out and attack gay families: history makes that conclusion already.


At 3:09 PM, Anonymous Eleanor T. said...

Thanks for refreshing my memory with the Hawaii case! These questions you raise are excellent-- I would love to hear Fitzgerald or Gundrum's reply.

I feel like I'm re-reading Animal Farm.


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