Tuesday, September 27th, 2016

Revisiting the gay marriage question from 2006

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With everyone’s attention on the US Supreme Court and oral arguments debating legalizing gay marriage, I thought it was worth some time to look back to 2006 when Wisconsin was debating an amendment to the state constitution to ban gay marriage. This is my Waukesha Freeman column from October 5, 2006, about a month before the amendment’s passage with nearly 60% of the vote. I still remember how Republican politicians ran for cover despite the amendment’s popularity. And I remember the dishonesty of Mike Tate during that campaign.

Keeping their options open
Legal push for gay marriage is the real motivation
for those who oppose amendment

By JAMES WIGDERSON

October 5, 2006

This week the state’s political attention was on Waukesha, and Waukesha’s attention is on November. At issue is the proposed amendment to the state constitution to ban gay marriage, and it was discussed at length Monday night at a forum at the University of Wisconsin-Waukesha.The crowd was mostly made up of partisans, students and media. If there was a member of the audience still undecided, I think he or she wrote for a newspaper.The proposed amendment states: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

Speaking in opposition to the proposed amendment, Mike Tate of Fair Wisconsin demonstrated the difficulty in arguing his side. Tate never addressed the question being asked by the voters: if the amendment fails, will Fair Wisconsin and others pursue gay marriage through the courts? He cannot answer that question because the answer is a sure political loser.

Instead Tate and his allies argue that state law already prohibits gay marriage. This is currently true, as state law only recognizes marriage between a “husband” and a “wife.”But as we’ve seen recently, state law is fragile, subject to reinterpretations more dependent upon a correlation of forces than the will of the Legislature. Whether it’s the state Elections Board or the governor’s office deciding which laws it will enforce, or the Wisconsin Supreme Court overturning precedents, what is commonly understood today is a press release away from oblivion.

In Massachusetts and Vermont, neither state had constitutional protections for the definition of marriage. As a result, what was commonly accepted since their inception as states suddenly was swept away by a whim of the courts. Massachusetts now has legalized gay marriage while Vermont has court-ordered civil unions.

Now Massachusetts is exporting their judicial authoritarianism. A recent court decision allows Massachusetts to offer same-sex marriage to residents of Rhode Island despite a Massachusetts law that prohibits marrying couples from other states if their home state will not recognize the marriage. Rhode Island requires marriage to be between a “bride” and a “groom,” but Massachusetts has determined these descriptors to be gender neutral.

If “bride” and “groom” are gender neutral, what will Massachusetts’s courts say about “husband” and “wife,” the terms used in Wisconsin law?

For that matter, what will our own courts say? Next spring conservative State Supreme Court Justice Jon Wilcox will be retiring. His successor may indeed be the deciding vote on whether gay marriage will be legalized in Wisconsin.

It’s instructive to watch Tate in action, and again I point out it’s the result of the tough position he is in. When he’s not misstating the solidity of Wisconsin’s marriage law, he argues anecdotally how unfair the current law is. He brings up cases, sad to be sure, of longtime same-sex couples who have struggled at some crisis point in their lives to overcome the limits of current law. But those are cases for overturning existing law, not of defending it, and so we see the real agenda of those organized in opposition to the proposed amendment to define marriage.

And in those anecdotal cases, Tate would do more long-term good in pursuing changes in the laws to make hospital visitation rights and the assigning of medical decision making more accessible to same-sex couples. He would find more allies from both sides of the aisle who would be willing to make those changes than he ever will for making same-sex marriage legal.

But those hardship cases are not his motivation, and the democratic route is not one he is interested in pursuing. As he demonstrated repeatedly Monday night, Tate’s goal in defeating the marriage amendment is to preserve the option of imposing gay marriage through the courts.

Which is why I was struck with some amusement as he repeatedly charged Julaine Appling of the Family Research Institute of Wisconsin, his debate opponent for the evening, of attempting some sort of intellectual fraud in pushing for the amendment. He repeatedly accused her of plotting court cases that would abolish the right to private contracts, whether the contract is between an employee and employer or between two individuals.

But the intellectual deception Tate engaged in is easily transparent upon examination, and if I was pessimistic prior to Monday night I am definitely more optimistic now about the amendment’s passage.

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