Blog Debate: Question 2 Answered

Again, thanks Owen & Jenna for participating in this debate. Here's question two:

I want to now focus more on the legal ramifications of the amendment. Many people in favor of this amendment say the reason is to prevent activist judges from taking action on same-sex marriages on their own. Based on what we’ve seen in states that have passed a ban, or simply your own extrapolation, what are the possible court cases Wisconsinites could expect if it passes and if it fails? For example, if it passes, would we see challenges to all non-marital shared benefit packages? Or, if it doesn’t pass, will we see court challenges to allow same-sex marriages?

And my response:


Let’s not forget that this debate is about people. It’s about couples who have been together for 10, 20, 30 years or more. Couples doing all the hard work of caring for each other and raising families without the legal protections a marriage or a civil union could provide. It's about thousands of Wisconsin families who have strung together bits and pieces of legal protections for their partners and their children, and who are extremely concerned—rightfully so—about what will happen if the ban passes.

I can’t tell you the number of couples who email or call me worried about what is in store for their family if the ban passes. Could they lose their health insurance? Will it threaten their ability to make medical decisions for their partner? What about the thousands of dollars they spent to show they are their child's intended parents? Are those arrangements "substantially similar" to marriage?

I only know one thing for certain: if the ban passes, judges will spend years responding to these questions.

Twenty states have bans in their constitutions. But lawsuits resulted only in those states with murky language--like ours--that forbids far more than gay marriage.

If we pass the ban, the first round of lawsuits will likely be aimed at public employers that currently offer domestic partner health packages. Probably the Alliance Defense Fund will spearhead this effort. They’re a group with close ties to ban supporters, a $22 million annual budget, and a firm belief that any public recognition of gay families undermines marriage.

Glen Lavy, Vice President of their Marriage Litigation Project, has already asserted he has “no doubt” our proposed ban prohibits public employee partner benefits.

And as I mentioned previously, other states are starting to tell the story of what we can expect with a “Yes” vote:
  • University of Toledo (Ohio) announced it can no longer consider partner benefits for its employees.
  • Ohio Representative Brinkman filed a lawsuit against Miami University, claiming the ban invalidates current policy.
  • Michigan’s governor ordered partner benefits removed from state employee contracts.
  • The Michigan Court of Appeals will rule on whether providing partner benefits to Ann Arbor school employees violates that state’s constitution.
  • Michigan's Attorney General ruled that no public employer can provide domestic partner benefits. The decision affects twenty local jurisdictions. A suit is pending.
  • A Utah State University attorney concluded that the state’s amendment likely prohibits the school from providing partner benefits.
And then there are the domestic violence cases. In Utah there’s a case pending. In Ohio, results are split. Some mid-level courts have ruled the ban doesn’t invalidate domestic violence laws as they pertain to unmarried survivors, and some ruled that it does. The state Supreme Court agreed to hear one abuser's appeal.

I honestly think we can all agree that our proposed ban is too far-reaching. That second sentence unequivocally bans the compromise position of civil unions and will lead to extensive litigation that seriously jeopardizes essential family protections.

While we don’t all agree on whether or not gay marriage should be legalized, polls continue to show a majority of Wisconsinites want to provide at least some legal recognition to gay families. They want their gay co-worker to have access to bereavement leave, their lesbian niece to have automatic hospital visitation rights for her partner, or their gay neighbors to share health and retirement benefits.

We should all ask ourselves, how does passing a ban on civil unions and gay marriage make Wisconsin a better place to live?

Finally, it’s simply untrue that if we defeat the ban judges will automatically rule in favor of marriage equality. Courts in both New York and Washington just shot down marriage cases. Wisconsin courts have already ruled against gay families in two high profile cases, In the Interest of Angel Lace M. (outlawing second-parent adoption) and Phillips v. Wisconsin Personnel Commission (allowing the state to deny domestic partner health coverage). And again, it's worth noting that Wisconsin’s judges are elected.

Our goal in Wisconsin is to inform our neighbors that gay and lesbian families are not hurting anyone or anything. We contribute to our communities, we pay our taxes, we care for Wisconsin, and we worry about our loved ones and our future.

If the ban fails, we can continue the conversation and work towards a solution that a majority of Wisconsinites approve.

If it passes, that conversation is cut short.


At 6:04 PM, Blogger Communitygal said...

Wow, Ingrid, for someone who (I think) does not have a law degree, you have an incredibly good grasp on the legal angle of this debate.

One reason this ban so seriously jeopardizes even the smallest legal arrangement between any two unmarried people in a "family-in-fact" is that there are two ways to look at what a "marriage" is: Is marriage (A) as our opposition Julaine Appling says, "about the benefits," i.e., the hundreds of state-granted rights and responsibilities and more than a thousand federal ones, or is "marriage" (B) "not about the benefits," as Ms. Appling also says, but instead about the relationship between the two people: one female adult and one male adult, both competent to contract, not closely related by blood or marriage, not married to anyone else, and emotionally and financially interdependent?

If it is the former, not even the acknowledged target of the second sentence of this ban, a Vermont-style civil union, could be considered "substantially similar to marriage," because a civil union grants only rights under state, not federal, law.

But if it is the latter, even an authorization allowing the non-biological parent to pick the child up from school is in jeopardy, as are wills leaving everything to a non-marital partner, health care and financial powers of attorney granting decisionmaking rights to a partner, co-parenting agreements between a loving unmarried couple, co-habitation agreements between unmarried couples, and emloyment-tied benefits such as domestic partner health insurance which attempt to provide gay and lesbian workers with equal pay for providing work equal to their hetrosexual counterparts.

While I would hope that challenges to such arrangements and benefits would ultimately be rejected by the Wisconsin courts, each case would take years to work its way through the system, and eventually a total of (at least) 11 judges would opine on the question (one trial judge, three appellate court judges, and seven supreme court judges under the Wisconsin court system). Of course, only those cases brought against wealthy families or rich governmental entities would go so far, as most would be unable to afford defending themselves against the Alliance Defense Fund and their ilk.

For those who can afford to defend against such litigation, or are able to role the dice and find pro bono representation, while that case winds its way through the courts, the family lives in limbo (at least) and at worst someone is hurt or dies from lack of health care, or gets kicked out of their home. And don't forget that much of the defense against such litigation would be done on the taxpayers' dime, as Ingrid's post so aptly illustrates.

At 8:20 AM, Blogger Hunter said...

You've hit a key point in the whole debate that I don't think has been, or can be, stressed enough: attempts to rush through constitutional amendments on this issue are nothing more than attempts to circumvent the debate, which includes the legal challenges to current laws.

The legal history of issues such as this one is a necessary part of the public debate. Attempts to circumvent that debate by premature and unnecessary constitutional amendments have the same effect as Colorado's notorious Amendment 2: they remove part of the community from the political process. Granted, Wisconsin's proposed amendment is not as vicious as Virginia's, but not only court decisions but further legislation with that amendment in place may very well lead to the same effect, and gay families will have no recourse but to push for another constitutional amendment.

At 4:51 PM, Anonymous Keith said...

I have often asked myself the question: "Why weren't our elected representatives having this debate last year? And the session before? At those times, the Dems just talked about "rights" and the GOP just talked about "the b-i-b-l-e."

As far as I can recall, there was only token discussion about the real impact of the ban, and no talk about actually working to solve the problems faced by non-married families.


Would you post some more information about "In the Interest of Angel Lace M. (outlawing second-parent adoption) and Phillips v. Wisconsin Personnel Commission (allowing the state to deny domestic partner health coverage)" please?

Thinking about these precedents will help us think about the "what happens next" whether or not the ban passes.


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