Fla. Prop. 2 Is Temporary

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Published on Thursday, 20 November 2008

Written by Howard Simon, ACLU Florida

A Futile Effort to Delay the Inevitable

The vote approving Amendment 2 -- and the votes in Arizona and California -- was a devastating but temporary setback for the cause of equal treatment for all.

On Election Day, voters rejected abortion restrictions in South Dakota and, in Colorado, a bizarre measure to declare a fertilized egg a "person." Michigan voters approved medical marijuana and stem cell research; in Washington voters approved "Death with Dignity" legislation.

But in Florida, by a 1.9% margin, voters prohibited allowing same-sex couples the opportunity to have their relationship legally protected, denying the religious institution of their choice the authority of law "invested in the institution" to bless the relationship.

Despite the propaganda, "gay marriage" was not on the ballot. What Floridians approved was a prohibition on the legal recognition of anything "that is treated as marriage or the substantial equivalent thereof." It will take years of lawsuits and countless lawyers to sort out the intended and unintended consequences of this measure.

The forces behind Amendment 2 have said that their mission is accomplished; marriage has been protected. But none of the economic and social pressures on marriage that have resulted in the terribly high divorce rate have been addressed. That would have been an honest program to "protect marriage."

It remains a mystery how the institution of marriage is "protected" by denying the right of some people the ability to enjoy its benefits.

Despite its passage, Amendment 2 does not bar health or other benefits that same-sex couples currently receive from public or private employers. Nor does the Amendment prohibit hospital visitation, medical decision making, or the right to make funeral arrangements for a deceased loved one.

But should other zealots target these benefits, or should any government agency decide -- wrongly -- that Amendment 2 prohibits these benefits, we will move this battle from the voting booth to the courtroom.

In America, change that matters always faces resistance; its path is never smooth or easy.

America is in a civil rights revolution. The current revolution is different, but it shares similarities with struggles to make the Constitution's promise of equality a reality for women, for racial minorities, for people with disabilities -- for everyone.

In 1977, Miami-Dade County became the first jurisdiction to enact an ordinance prohibiting discrimination based on sexual orientation. It was repealed in the infamous referendum led by Orange Juice Beauty Queen Anita Bryant. But in 1999, the County Commission re-enacted the ordinance, and it survived a referendum in 2002 aimed at repealing it.

In 1982, San Francisco became the first jurisdiction to grant domestic partner benefits. The ordinance was vetoed by then-Mayor Diane Feinstein. This fall, twenty-six years later, she campaigned to defeat California's same-sex marriage ban.

Thanks to even a very conservative U.S. Supreme Court, it is no longer a crime to be gay in America. Within 17 years (from Bowers v. Hardwick in 1986 to Texas v. Lawrence in 2003) the Supreme Court reversed itself and declared that states could not criminalize sexual intimacy by same-sex couples. ("…liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.")

The world is changing. The forces behind Amendment 2 can delay the inevitable, but they cannot stop it.

Soon, same-sex marriage will be legal and ordinary. It is already happening -- Ontario, several northern Europe countries, Spain, South Africa and, as of this writing, Massachusetts and Connecticut allow same-sex marriage. New York and Rhode Island recognize such marriages that are conferred elsewhere.

Bigotry and prejudice frequently ride in on a horse of high-sounding moral principles. Sometimes even the best leaders can convince themselves that their support for a mean-spirited proposal is based on something other than bigotry and prejudice or animus.

Religious leaders who sold Amendment 2 as "Biblically-based" public policy need to rethink whether that washes in America. In this nation -- the most religiously diverse on earth -- the laws must reflect the fact that we live in different religious traditions, with different interpretations of the Bible, and indeed different bibles.

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

Howard Simon is the Executive Director of the ACLU of Florida

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