Prop. 2 is NOT marriage!

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Published on Thursday, 30 October 2008

Written by ACLU Florida

From The Desk of Howard Simon: "Gay marriage" is NOT on the ballot in Florida.

What is on the ballot is prohibiting the legal recognition of anything "that is treated as marriage or the substantial equivalent thereof."

This is a vote to ban civil unions, domestic partnerships and anything else activists decide is "marriage like." It will take years of lawsuits before the consequences -- intended and unintended -- of this dangerously vague proposal are known.

We know some of what the forces behind Amendment 2 have in mind. When the City of Gainesville adopted a domestic partner health insurance program to provide coverage for the unmarried partners of city workers, the same folks who drafted Amendment 2 filed suit against the health insurance program. They claimed the program illegally treated city workers and their domestic partners "as if" they were married. The courts rejected the challenge.

While proponents claim that taking away health benefits from unmarried partners, including seniors, is not their aim, Attorneys General in Michigan, Kentucky, Idaho and Nebraska have ruled that the same type of language in Florida's Amendment 2 requires states to deny health insurance to the domestic partners and children of public employees. Earlier this year, the Michigan Supreme Court upheld the State Attorney General's ruling. And if health insurance can be denied, so could hospital visitation to people who are not recognized as family members. The ability to make medical decisions for a loved one in case of a catastrophic accident or incapacitating illness could be denied to a person who is not a family member. Even the right to make funeral arrangements for a partner of several decades could be denied. The language of proposed Amendment 2 could be (and has been) read to require the state to treat an unmarried couple as legal strangers, regardless of how many years they have been together.

Amendment 2 goes far beyond marriage to threaten numerous employer-provided and other benefits that are relied upon by both straight and gay families as well as senior couples.

A legitimate movement to "protect the institution of marriage" would focus on the high divorce rate. But Amendment 2 is less about "protecting marriage" than animus towards our gay friends and neighbors, even when couched in "hate the sin, not the sinner" language. (It is noteworthy that the authors of this ban often appear before legislative bodies to oppose laws that protect gays from discrimination or hate crime laws that include sexual orientation.)

Trying to sell Amendment 2 by stating that it enshrines a "Biblically-based" public policy about marriage just doesn't wash in America. In the most religiously diverse nation on earth, our laws must reflect the fact that we live in different religious traditions, with different interpretations of the Bible, and indeed different bibles.

Decisions about marriage, divorce and other intensely personal matters should be left to individuals, families and their own religious traditions and beliefs. The last thing we need is to allow some group to capture the constitution and use it as a weapon to dictate the practices of other religious groups.

Amendment 2 is fueled by a desperate desire to roll back social change that has brought about greater acceptance and significant steps towards realizing the Constitution's promise of equality for all.

The world is changing. Thanks to even a very conservative U.S. Supreme Court, it is no longer a crime to be gay in America. The forces behind Amendment 2 can no more rollback this change than they can stop the wind. They can delay the inevitable, but they cannot stop it.

Bigotry and prejudice frequently ride in on a horse of high sounding moral principles. Sometimes even the best of our leaders convince themselves that their support for a mean-spirited proposal is based on something other than bigotry and prejudice. And, as patriotism often serves as the last refuge of scoundrels, sometimes prejudice is cloaked in rhetoric about protecting children.

Religious leaders will look back with embarrassment about any support for Amendment 2, much as they should be embarrassed by the old tortured uses of religious and moral principles to justify racial separation and gender discrimination.

One day, we all will look back on the idea that government could have the power to dictate who adults can marry with as much bewilderment as we now, shamefully, wonder how we allowed government the power to ban interracial marriage -- until the U.S. Supreme Court ended the legal basis for that prejudice in the appropriately named landmark 1967 ACLU case of Loving v. Virginia.

Howard L. Simon, Ph.D., is the Executive Director of the American Civil Liberties Union of Florida

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