The Federal Marriage Amendment and its Path of Destruction

During the 2004 Presidential election, there was the unspoken, but likely oft thought, question of Mary - Mary Cheney that is. How does she do it? How can she do it? How does an out lesbian work for the reelection of a party and candidate committed to carving second class citizenship for gays and lesbians into the Constitution? And what about Dick (Cheney)? How can he look his daughter in the eye knowing that he’s running on a platform that says that she’s a danger to the very foundation of American society? I imagine that at some point along the way, Dick had to say to Mary something like: Don’t worry, honey, it’ll never get that far.

I raise this now, because the answer informs our understanding of the politics swirling around the same-sex marriage debate. There are these twin phenomenons. Firstly, supporters of same-sex marriage (or even civil unions) are substantially more likely to push the issue down the list of their priorities than opponents. So Dick and Mary could tell themselves that, while they’d personally rather not be pursuing the passage of the Federal Marriage Amendment (FMA), there are other, more important issues; and they can continue to support a pro-FMA party since the ‘good’ outweighs the ‘bad’. Doubtlessly, there are plenty of other GOPhers who accept the alliance with the social conservatives as a necessary evil to pass the agenda that they feel is really important.

Secondly, there is this notion, even among many liberals, that the FMA is all a ‘distraction’. They view it as a cynical ploy to string the social conservatives along, fully expecting it would never pass. This is a mistake.

Since the FMA (which is once again advancing through the Senate) reared its ugly head, let us take stock of what has happened across the nation. Yesterday, Texas approved, by a wide margin, an amendment to their constitution banning same-sex marriage, civil unions and, most likely, nullifying different-sex common law marriages. The damage done to the lives of gays and lesbians in Texas is recognized by the weasel language in the resolution that put the amendment on the ballot.

This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.

This perpetuates the radical legal inequality in which a different-sex couple can, on a whim, marry and have a host of federal and state legal protections and privileges; while a same-sex couple can only approximate a handful of those protections, at considerable cost and effort. As importantly, the weasel language in the resolution is not contained in the amendment itself which prohibits the state or any part of the state from “creat(ing) or recogniz(ing) any legal status identical or similar to marriage.”

That is eerily similar to the text of the Michigan amendment which states, “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as marriage or similar union for any purpose.”At the time supporters were lobbying for passage, they made a similar effort to deny that it would create any actual discrimination or unfairness. However, after the amendment passed, Governor Jennifer Granholm announced that domestic partner benefits for state employees and families would be withheld. It was, likely to the consternation of social conservatives, recently ruled “that the constitutional amendment does not impact domestic partner benefits. ‘Health care benefits are not among the statutory rights or benefits of marriage. An individual does not receive health care benefits for his or her spouse as a matter of legal right upon getting married,’ wrote Judge Draganchuk. ‘Health care benefits for a spouse are benefits of employment, not benefits of marriage.’”

Texas joins a growing list of states in which anti-gay discrimination has been written into their constitutions. The others include: Hawaii, Alaska, Oregon, Ohio, Nebraska (overturned by courts), Nevada, Montana, Utah, Missouri, Michigan, North Dakota, Louisiana, Arkansas, Georgia, Kentucky, Mississippi and Oklahoma. The mischief, and real intent, of these amendments is starting to come to light.

In Ohio the constitutional amendment which bars same-sex marriage is being used to prevent a lesbian mom from seeing her eight-year old son. A lesbian couple split up and the birth mother decided to deny visitation rights to her former partner. This sort of thing is not uncommon in divorces. Had they been married, both parents would have clearly defined rights. In this instance the couple had drafted an agreement for visitation rights (you know, the kind of legal document that opponents of marriage rights claim offer all the protections that same-sex couples need). But the birth mother reneged, and claimed that the agreement was nullified by the just passed amendment.

Hate crimes statistics just released indicate that hate crimes against gays and lesbians continue to be significant. (Bear in mind that hate crime data collection and reporting to the FBI a) is voluntary for state and local law enforcement agencies, b) is unfunded by the federal government and c) relies upon the decision of each agency what category of data to collect.)

The connection of hate crimes to the assault on legal equality is made by the Right themselves.

The Concerned Women for America argue that expressing hatred - even through violence - against gays and lesbians is their right.

"Hate crime" laws pose a danger to civil liberties in three ways:
* They pave the way for suppression of the freedoms of speech, association and religion.
* They violate the concept of equal protection under the law.
* They introduce the un-American concept of "thought crime," in which someone's actions are "more" illegal based on their thoughts or beliefs.
Meanwhile, "hate crime" laws are being used to silence people who publicly oppose homosexuality.

To be clear, here is a sample of what they claim to have a “right” to:

In Philadelphia, 11 Christians were arrested and jailed overnight in 2004 for singing and preaching in a public park at a homosexual street festival. Five of them were bound over and charged with five felonies and three misdemeanors, totaling a possible 47 years in jail. These charges, based on Pennsylvania's "hate crimes" law, hung over them for months until a judge finally dismissed them.

The so-called ‘Philadelphia 11' had become a cause celebre for the far right and help to illustrate the current political dynamic. Eleven people showed up at a Gay Pride event to shout anti-gay slogans and harass the attendees. People attempted to remove them, and they resisted arrest. (Imagine the reaction from the CWA if 11 people showed up at a public gathering of right-wing Christians shouting at them that they need to repent their sins, etc.) The point here is that the CWA, and social conservatives generally, have developed an expectation that they are entitled, as part of the exercise of their faith, to express their homophobia in any and all forms that may take.

This apparently includes writing that homophobia into law. The Right has defined respecting legal equality as taking something away from them - their right to register their disapproval for gays and lesbians in the law. This gives us the key insight into the perniciousness of the FMA. It creates and reinforces a sense of entitlement to discriminate fueled by the sense of empowerment by electoral victories. The Right is feeling their oats and stretching their muscles and forgetting that the rights of the minority should not be subject to referendum - no matter how popular legal inequality might be. So skewed has the debate become, that the defeat of an anti-gay ballot measure in Maine is seen as a victory for gay rights, rather than just what one should be able to expect from a democracy.

The fallout from the ‘distraction’ of the FMA has been real damage in the lives of real people. The Right does not confine it’s anti-gay energies to the FMA. The FMA is merely the national rallying point for a bandwagon of bigotry and intolerance that wreaks havoc throughout the nation as it makes it way across the land.