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Letting
Go of Marriage
The
fight to save same-sex partner civil rights in Wisconsin
by John-David Morgan
January 30, 2005 |
Defining a marriage can be the stuff of an epic novel, but state republican lawmakers are pushing to simplify matters in Wisconsin by validating only spousal arrangements made “between one man and one woman.” While this sounds harmless on the surface, there’s more to the proposed Defense of Marriage Act than meets the ear with a sound bite.
The act would amend the state Constitution to deny same-sex couples the rights to have their partnerships legally recognized as “marriages,” but it goes one step further, invalidating in Wisconsin any “legal status identical or substantially similar to that of marriage for unmarried individuals.”
Equality advocates say the denial of “substantially similar” unions is “open hostility” toward same-sex couples and their civil rights, and denies equal treatment in any number of circumstances. They say the law attacks locally recognized civil union programs, such as the domestic partner benefits contract between the city of Milwaukee and the city workers’ union. Legislators rejected many attempts to amend the referendum so that it would not prevent partners from visiting each other during extended hospital stays.
If passed, Wisconsin’s Defense of Marriage Act will be “one of the harshest discriminatory laws in the entire country,” according to Madison-based Action Wisconsin, an equality advocacy group.
The Wisconsin legislation mirrors the gay marriage bans that were on Nov. 2 ballots in Michigan, Ohio and many southern states. Those referendums passed in every state. Election analysts, including the New York Times, pinpointed the referendum in Ohio as the galvanizing factor that brought rural Christian conservatives to the polls and lifted President Bush to victory.
DIVIDE AND CONQUER POLITICS
Many state Republicans hope that bringing gay marriage into the Wisconsin political debate will tighten the party’s hold on churchgoing “family values” voters, but some GOP lawmakers, including the referendum’s Assembly cosponsor, Mark Gundrum of New Berlin, form a GOP minority that supports the law regardless of political gain. Backing the ban is the Madison-based Family Research Institute, a Christian organization that promotes the idea that man, woman and child is the “scientifically” proven family unit. The group has lobbied the legislature to ban divorce in the state and to outlaw civil unions for same-sex couples.
Gundrum wants the Defense of Marriage Act on the books as soon as possible, before the courts step in to rule it unconstitutional. Other Republicans look to the election results in Ohio and are thinking strategically. They have their sights set on the 2006 governor’s race and the campaign to unseat Gov. Jim Doyle, a Democrat. Milwaukee County Executive Scott Walker, declared his GOP candidacy for governor Jan. 24, and is backing the gay marriage ban.
Governor Doyle calls the ban “divisive,” an issue that “tends to divide everybody up and put everybody in their corners.” Doyle vetoed the “Defense of Marriage” bill in 2003 when it was passed as legislation, and GOP lawmakers failed to get the two-thirds majority needed to override the veto.
Republicans in 2004 reintroduced the ban as an amendment to the state Constitution, a process that does not require the governor’s approval if the Legislature can pass the exact language of an act in two consecutive sessions. In March 2004, the gay marriage ban was passed in round one, 20-13 in the state Senate and 68-27 in the Assembly.
Equality advocates suggest that those large majorities do not necessarily reflect how voters feel about the amendment. The most-cited state poll on gay marriage, taken last year, shows that the public shows that voters are relatively split on the issue.
“This isn’t a clear-cut party issue,” asserts Patrick Flaherty, director of Center Advocates, the LBGT organization leading the Milwaukee fight to stop the amendment. “There are Republican voters who think this amendment is foolish and wrong. We know this because we’ve had conversations with a lot of them.”
There are also Democrats in the state Assembly, such as Milwaukee Rep. Polly Williams, who voted for the ban in round one. Round two will take place in the 2005 legislative session, which began in January. If it passes again, the act goes to voters as a ballot referendum, which could happen as early as this April in the judicial and superintendent of schools election.
With a sense of urgency, equality advocates have intensified their statewide voter education campaigns and legislative lobbying. Center Advocates’ campaign is Equality Knocks, a volunteer-driven effort that targets districts represented by legislators who supported the ban in round one. After Williams sided with the Republican majority, Equality Knocks canvassed door-to-door in Riverwest and other areas of her near north side district.
Flaherty says the reception Equality Knocks has received both at the doors and on telephone canvasses has been decidedly positive. Most voters are not aware of the gay marriage ban’s impact, beyond defining marriage as a union “between one man and one woman.” The more people learn about the punitive aspects of the act, the less they like it.
“Once people get beyond the rhetoric and learn what this bill really does, they are very receptive,” he says. “And most are supportive.”
LOOKING FOR A COURT FIGHT
Equality advocates note that, historically, the Wisconsin Constitution has changed to expand the rights of citizens. If the gay marriage ban does pass a referendum vote, it will be the first time the Constitution has been amended to take away recognized legal rights of people in the state.
The city of Milwaukee, the Sun Prairie school district and over 75 companies in the state recognize domestic partnerships for benefit purposes, according to Action Wisconsin. The Milwaukee and Sun Prairie arrangements are binding, union-negotiated contracts that would likely be battled over in court.
Flaherty expects that the ban, if passed, would cancel all current local agreements, forcing court challenges.
“What we know from watching this stuff pass around the country is that local domestic partner programs are challenged,” he says. “For example, in Ann Arbor, their local domestic partner programs were challenged after the referendum passed. In Michigan, within a couple of weeks of passage, the state took out the benefits that had been negotiated.”
“It’s in limbo,” Flaherty adds. “No one knows what ‘substantially similar’ to marriage means. A court would have to decide.”
Court rulings on civil unions and domestic partnerships are precisely what the Family Research Institute and some GOP lawmakers hope the Defense of Marriage Act leads to. In the crafting of the referendum language and by rejecting attempts to amend it, they are looking for a court fight.
State Sen. Scott Fitzgerald (R—Town of Clyman) was asked last year on the WIBA radio program “Madison Tonight” if the amendment was designed to prevent employers from offering domestic partner benefits to same-sex couples. Fitzgerald replied: “By putting ‘substantially similar’ in [the amendment], we’re asking the court to step in.”
More recently, he softened his stance and said Defense of Marriage would not eliminate civil unions and other rights, but the Family Research Institute confirmed that they would be challenged as substantially similar.
If this were really about defining “marriage” and helping to strengthen it as an institution, there would be little opposition to the amendment from equality advocates. Flaherty says same-sex partners are not all that interested in appropriating marriage as a word or institution.
“I really think they don’t want it,” Flaherty says. “What people want are domestic partner benefits or some other legal structure for same sex couples, similar to the state of Vermont law.”
Eventually, if the ban does invalidate recognized domestic partner rights, the fight would likely carry to the state Supreme Court for a ruling. Wisconsin’s Civil Rights Act forbids discrimination based on “sexual orientation.”
ROUND TWO
Flaherty says the main challenge has been to communicate to legislators that defending marriage at the expense of civil rights isn’t something their constituents support. For example, Equality Knocks met with a very positive reception on Milwaukee’s North Shore and in other parts of Republican Alberta Darling’s state Senate district, yet Darling supports the referendum. Equality Knocks volunteers bused to Madison Jan. 27 for a lobby day, to meet and talk with legislators.
There have been successes. State Sen. Jeff Plale of South Milwaukee is one Republican who supported the Defense of Marriage legislation in 2003 when he was in the Assembly, but changed his vote in the Senate after receiving a flood of mail from constituents asking him to reconsider his position. When it came time to protect the civil rights of same sex couples in round one last fall, Plale “did the right thing,” Flaherty says.
“The Republicans in the Legislature are the ones who have power on this. We’re trying to show them that their constituents don’t necessarily agree with how they’ve voted.”
GET ACTIVE
Equality Knocks takes to the primary elections Tuesday Feb. 15, and is looking for volunteers to help educate voters on the real civil rights impacts of the Defense of Marriage Act. On Monday, Feb. 14, equality advocates will kick-off the campaign with a Valentines Day rally at Milwaukee’s city hall.
For more info, go to http://centeradvocates.org
To volunteer, email to Pabitra Benjamin by clicking here:
e-mail Pabitra
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GET
ACTIVE
Equality Knocks takes to the primary elections Tuesday Feb. 15, and is looking for volunteers to help educate voters on the real civil rights impacts of the Defense of Marriage Act. On Monday, Feb. 14, equality advocates will kick-off the campaign with a Valentines Day rally at Milwaukee’s city hall.
For more info, go to http://centeradvocates.org
To volunteer, email to Pabitra Benjamin, pbenjamin@mkelgbt.org
LINKS
Action Wisconsin
Equality Knocks
Family Research Institute
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