Should constitution
define marriage?
By
April Rockstead Barker
Special to Wisconsin Law Journal
Nov.
1, 2006
The
proposed amendment to the state constitution that will be on the
Nov. 7 ballot has attorneys from many areas of practice considering
its purposes and potential effects.
The
amendment would create a section of article XIII of the state
constitution that would provide that “only a marriage between
one man and one woman shall be valid or recognized as a marriage”
in Wisconsin.
It
also would provide that “a legal status identical or substantially
similar to that of marriage for unmarried individuals shall not
be valid or recognized” in the state.
Constitutional
Concerns Cited
Leslie
D. Shear, a clinical assistant professor at the University of
Wisconsin Law School and the director of the Frank J. Remington
Center’s Family Law Project, said that she opposes the proposed
amendment for a wide range of reasons.
As
a lesbian in a long-term relationship of more than 15 years with
two children, she has a personal stake in the matter.
“But
also, I am pretty darn confident that even if I weren’t a
lesbian, I would be opposing this amendment,” Shear said,
“because I do see it as a civil rights issue, and a government
interference issue, and an issue that raises concerns about the
erosion of boundaries between church and state, where one particular
religious perspective is being pushed and I guess they hope, adopted,
into our state’s most important governmental document, the
constitution.”
Dan
Freund of the Freund Law Office in Eau Claire said his opposition
to the amendment is rooted in his religious faith, which instructs
him “to work for justice and equality in the world.”
Brenda
Lewison, an employment discrimination attorney with the Law Office
of Arthur Heitzer in Milwaukee who participated in a recent debate
at Marquette University Law School about the proposed amendment,
said that some attorneys may oppose the amendment because they
believe that it subverts the purpose of a constitution to use
it to remove issues from the arena of public debate.
“It
really strikes at the very foundations of a democracy and our
sense of liberty,” she said.
Erik
R. Guenther, who practices with Hurley, Burish & Stanton SC
in Madison and who also serves as the vice president of the ACLU
of Wisconsin board of directors as well as the chair of the Individual
Rights and Responsibilities Section of the State Bar of Wisconsin,
said that the proposed amendment would run afoul of the constitution’s
purpose.
“In
Wisconsin, there’s never been language in our constitution
or any of its amendments that’s there to discriminate,”
he said, adding that the proposed amendment “would paint
a large black mark on a document that’s there to advance
liberty” and to uphold equality.
Effects
on Families Debated
Rick
Esenberg, general counsel of a Milwaukee-based company and an
adjunct professor at Marquette University Law School, favors the
proposed amendment and has participated in several public discussions
to advocate its passage. Esenberg said that his support for it
is not based on disapproval of same-sex relationships, but rather,
arises out of concern for marriage as an “extremely important
social institution, and one that’s been under a great deal
of pressure” in recent decades.
Civil
marriage traditionally has been a mechanism which is designed
to channel those relationships which can uniquely produce children
into a context which makes it most likely that the mother and
father who create a child will stick around and raise it, he said.
“If
marriage is redefined as something which is simply about affirming
or facilitating close relationships between people,” Esenberg
said, “then it becomes very, very difficult, number one,
to insist upon those rules surrounding marriage which have grown
up from the procreative potential of marriage — that is,
things like sexual exclusivity and the presumption of financial
interdependence.”
Including
same-sex relationships within the scope of the legally recognized
institution of marriage might lead to its extension to many other
types of relationships, such as not only multiple-partner relationships,
but also relationships that are not conjugal, Esenberg said.
It
is difficult for society to avoid making some judgments in defining
marriage, said Scott A. Moss, an assistant professor at Marquette
University Law School who personally opposes the proposed amendment.
For example, in the past, marriage was permitted only to members
of the same religion and race, he said.
“The
problem with the anti-gay marriage argument that there’s
a slippery slope expanding marriage is that of course we’ve
expanded the concept of marriage greatly over decades and centuries,”
Moss said.
Banning
gay marriage or civil unions makes life more complicated for gay
people, who are going to have same-sex relationships anyway, Moss
said. For those couples who already have children, there are essentially
no rules governing what happens when an adoptive parent passes
away in a same-sex relationship, he said.
“You
would like to think that most courts would recognize that when
one member of a couple dies, that’s traumatic for a child,
[and] it’s best not to move the child away from the surviving
parent,” Moss said. “But absent a marriage, the court
is relatively free to decide what’s in the best interests
of the child.”
Existing
Rights Threatened?
Some
attorneys also say that the language that would preclude recognition
of a legal status “identical or substantially similar”
to marriage may be interpreted as restricting rights that unmarried
people otherwise would enjoy.
Lewison
said that it would call into question domestic partnership benefits
that many public employees have in Wisconsin. In addition, she
said, the proposed amendment could make it difficult for employees
to bargain for those rights in the future.
If
it passes, the proposed amendment may prompt insurers to use it
in seeking to avoid coverage under those benefit plans that currently
provide rights to unmarried employees’ partners, said Freund.
“If
I’m the insurance company lawyer, I’m going to make
an argument that says, ‘Judge, this is a relationship that
is substantially similar to a marriage, and they’re asking
to have their legal status recognized in this court, and you can’t
do that,’” he said. “Am I going to win that argument
or lose it? I don’t know, but I think I’m going to make
it.”
Esenberg
said that he does not think that the amendment would be interpreted
to deny unmarried individuals benefits and rights that others
enjoy outside of marriage solely because of their status as unmarried
couples.
“The
only thing that that second sentence will prohibit is the creation
of a status which in and of itself is identical to or substantially
similar to marriage,” Esenberg said, adding that under his
interpretation of the proposed amendment, an employer could permit
an employee to share benefits with an unmarried adult dependent
in his or her household.
But
Shear said that entities that offer benefits to employees of unmarried
partners require attestations as to the nature of the couple’s
relationship as a basis for determining whether they are entitled
to benefits.
“In order to qualify for any domestic partnership benefits
that may be offered, it must be established that the employee
is in a relationship with his or her partner that is ‘substantially
similar to marriage’,” she said.“So I am confident
that such benefits are in jeopardy.”
