Wednesday, April 06, 2005

The Rollercoaster of Activism

Yesterday was one of those high and low days that seems to be the hallmark of being an involved and politically-aware gay man. On the upside, the lobbying effort (mine and others) to make the Texas Legislature realize that we're actually reading these bills and that Warren Chisum's idiocy in writing them will be called out seems to be working. That would have almost been worth a plane ticket to Austin to see Chisum have to backpedal and say he would try to "amend the bill later" -- which is the political kiss of death in the Legislature. I'm becoming more and more optimistic that the imperative of fixing school finance during the last eight weeks means that this bill may very quietly die in committee -- or, even better, make it out to the House floor and be torn apart for "imprecise wording", which is quickly becoming my favorite means of pinning down and blocking antigay legislation. Yes, several of the Republicans on the committee DID review a copy of the Cleveland Plain Dealer article concerning the inadvertent effect of Ohio's amendment on certain state laws -- why do you ask? (wink)

On the other hand, though, Kansas provided the low, with the passage of the state constitutional amendment banning gay marriage, PLUS civil unions and domestic partnerships, by a rather large margin. While I think the passage of this was to some degree a foregone conclusion, I was hoping that the margin would be lower because of the language involved and because of the opposition of some prominent Republicans. However, I think, based on what I've heard from my network of spies in the Sunflower State ("Friends of Dorothy"? Natch, LOL.), what turned people off the most was the gay activists screaming, "If you pass this, we're taking it to court, because it's unconstitutional!" Furthermore, certain glbts performed actions that bordered on the idiotic, such as this gem of attempting to argue that (major Kansas employer) SBC would stop offering domestic partner benefits, but then melting down under cross-examination and admitting that a) they were speaking for themselves, not SBC, and b) referring to the fact that the state of Kansas wouldn't recognize their registered partnership in California, so they couldn't get partner benefits -- totally ignoring the fact that the state of Kansas, because of its DOMA, already did not recognize said registered partnership, and they were STILL getting partner benefits. Unfortunately, that registration requirement is SBC's, not the state, which means that SBC can accept any fool thing they want as proof of a domestic partnership -- and indeed many employers, mine included, don't even require public registration (ours is that you have been in a committed relationship for six months, that you live at the same address, and that you're not already married to someone else or trying to claim a blood relative as your domestic partner).

What we have to be careful about in activism is realizing that, when it comes to laws and amendments, it's all about words -- and certain words are better than others.

For instance, here's Ohio's antigay state constitutional amendment (emphases mine):

Article XV Section 11. Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

In short, the language in this thing is absolutely hideous, which is why many prominent Republicans in Ohio opposed it. The judge in the domestic-violence case ruled absolutely correctly -- Ohio's domestic violence law creates a legal status for unmarried abuse victims that is identical to that of married abuse victims for the purpose of extending the "effect" of marriage to unmarried couples.

Is this fixable? Yes, but it will be annoying -- they will have to go through and amend the domestic violence law to either exclude unmarried people, which may violate equal protection (remember, it's criminal law, where that is much more heavily-applied), or blow up the statute completely and revert to just plain "assault", which I doubt would fly with voters. They've created a mess, and it needs to be called out as such.

In contrast, Kansas's, while hardly desirable, has much softer and more-defensible language from a constitutional standpoint (again, emphasis mine).

(a) The marriage contract is to be considered in law a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are to be declared to be contrary to the public policy of this state and are void. (b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage."

The key difference is that word "entitling". Used in this context, you can add "automatically" to the front of it, and you can read it as simply amending equal protection to prohibit the argument that, because I have a domestic relationship, be it same-gender or otherwise, the law requires that I have the same rights as a married couple. However, the fact that it's not required does not necessarily preclude it from being given -- which, according to my reading, means that the amendment at the least does not affect legal arrangements between glbts or private companies, at the medium does not preclude the state or governmental units from offering partner benefits, and at the most would allow limited civil unions or partner registry. It also would allow the state, in my interpretation, to separately extend spouse-like protections to victims of domestic violence in a proactive fashion, avoiding the domestic violence snafu or similar situations in Ohio.

Lest I be misinterpreted, let me make it clear that I oppose state constitutional amendments and legislation that discriminate against gays, even if they provide for civil unions, because it writes discrimination on the basis of sexual orientation into fundamental law. However, my point in this is that gay activists who wish to deal with constitutional amendments must stick to facts, not overdramatize the issues, not make threats, and understand the motivations people have for advancing every specific word in the amendment. Namecalling and threatening lawsuits don't work -- we've proven that already. Careful, constructive debate and airing of your concerns, backed up with facts, does work.

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