Should constitution define marriage?

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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&#
146;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.”