On my last post, I was asked for some clarification as to what lies & irresponsible conduct Fair Wisconsin (the sleazy anti-marriage-amendment group) was guilty of during the last election.  Here ya go:

Wisconsin Marriage Amendment Myths & Truths

The Marriage Protection Amendment

“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.”

The Myth: Wisconsin law already bans same-sex marriage, so the amendment is pointless.

Currently, Wisconsin state law (Ch. 765.01) says:

[M]arriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.

First, this is only a state statute. Since it was simply written up and voted upon by our legislators, and could be changed by a simple vote in the legislature (or in a state court), it does not carry the same weight as a constitutional amendment.

Second, “creat[ing] the legal status of husband and wife” is not secure enough to protect marriage. For instance, a man could take the title of “wife” or a woman the title of “husband.” It sounds absurd, but a judge could easily rule that such titles would qualify the same-sex partners as married under Wisconsin law. After all, judges are notorious for stretching, bending, and ignoring the law in their decisions. And since gay activists want to change the definition of “marriage,” why wouldn’t they change the definitions of “husband” and “wife?”

Third, current law implies, but does not explicitly say, that marriage is only between two people. The amendment would clarify that marriage is between one man and one woman. Without the amendment, we are just one ruling away from not only gay marriage but also polygamy.

The Myth: Under the amendment, gays wouldn’t be able to get domestic partner benefits.

This is simply not true. Any employer—public or private—would still be free to offer domestic partner benefits to homosexual couples, as long as they predicate them on cohabitation. Unmarried cohabitants need not be in a romantic relationship; they just have to live together (ex: siblings, roommates). Such a basis would not create anything “substantially similar” to marriage. Therefore, unmarried cohabitation is compatible with the amendment.

The only thing that would change is that employers could not be forced to partake in employment practices that go against their values. And shouldn’t gays want companies to embrace them because they genuinely want to?

The Myth: Under the amendment, gays would lose domestic violence protections.

For evidence of this claim, anti-amendment activists turn to an Ohio case, City of Cleveland v. Knipp, in which the defendant (a man who beat his girlfriend) argued that under Ohio’s marriage amendment (which is essentially the same as Wisconsin’s), he was no longer a “person living as a spouse,” and domestic violence laws no longer applied to him. The Court agreed, and ruled that the “‘persons living as a spouse’ provision of the Domestic Violence Statute…does violate the Defense of Marriage amendment.”

Ohio’s Domestic Violence Statute says: “Whoever causes, attempts to cause, or threatens to cause physical harm to a family or household member…is guilty of domestic violence.” “Family or household member” is defined as:

[A] person living as a spouse (means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabitated with the offender within five years prior to the date of the alleged commission of the act in question [the law later refers to parents, children, and blood relations as well].

Yes, “person living as a spouse” is “substantially similar to marriage.” But take a closer look, and the picture changes. Notice that “common law marital relationship” and “otherwise cohabiting” relationships are two very different things. Marital is self-explanatory. But cohabitation requires only that two people live together. Roommates, siblings, and cousins (among other conceivable combinations, no doubt) can all cohabitate in a non-marital, non-romantic, non-sexual relationship. Obviously none of these people would be “living as a spouse,” yet the bizarre wording of the Domestic Violence Statute crams two different situations under one category.

Ohio’s real problem is not that their marriage amendment is written poorly; rather, their domestic violence law is! A simple, rewrite of their law could easily remedy their problem, and there’s no reason such a measure shouldn’t receive bipartisan support.

So how does Wisconsin fit into all this? Here, domestic violence is defined as follows:

[Acts engaged in] by an adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver’s care, by an adult against his or her adult former spouse, by an adult with whom the individual has or had a dating relationship, or by an adult with whom the person has a child in common.

The difference is that Wisconsin simply lists the types of relationships which qualify. So the only question is: Does Wisconsin define “household member” in the same way Ohio does?  The lack of odd “person living as a spouse” language would allow judges to simply apply the common understanding of “household member”: whoever merely lives in the same dwelling as another. Fortunately, we have case precedent to remove ambiguity. In Petrowsky v. Krause, household members were defined as parties “in a continuous living arrangement.”

The two states’ domestic violence laws are clearly different, and there is no conceivable way that a reasoned interpretation of the Marriage Protection Amendment could deny domestic violence protections to unmarried victims in Wisconsin.  That means this Fair Wisconsin talking point was nothing more than a deliberate lie.

The Myth: Under the amendment, dying gays wouldn’t be able to leave property to their partners.

This is completely ridiculous. If you write up a will, you can leave anything of yours to anyone. A will is simply a legal document whose terms are defined by the author. After all, eccentric old ladies can leave property to their cats! True, if one does not have a will and is unmarried, his or her property will go next of kin, but simple preparation can easily remedy this.

The Myth: Under the amendment, gays wouldn’t be able to visit their partners in a hospital or make medical decisions for them.

This is more nonsense. In most cases, the patient decides what visitors to allow, not the hospital. And homosexuals who are concerned that they or their partners will be incapacitated and unable to express their wishes can remove any doubt by granting a health care proxy (legal authority over another’s medical affairs) and power of attorney (legal authority over another’s legal affairs). These legal arrangements can be made with anyone and do not require marriage or a status “substantially similar” to it.

The concerns of both myths can be easily remedied if homosexuals simply act responsibly and prepare for these potential situations in advance. Liberals spread this message loud and clear when Terri Schiavo was killed—so why don’t they remember it now?

More on Cohabitation

Do same-sex lovers living together qualify as cohabitants? Are they not living together and acting like a married couple? Yes, they are. So why don’t they constitute a status “substantially similar to marriage?” Because that’s not the law’s criteria. Living together is, and nothing more. If two people live together, the law classifies them as cohabitants, and in effect says “the nature of your relationship within the walls of your home—be it platonic, romantic, parental, or otherwise—is none of our business.” And isn’t that what same-sex activists—normally champions of “getting the government out of our bedrooms”—want?

More on Litigation & Judicial Interpretation

The amendment’s foes warn of a mountain of litigation the amendment’s “ambiguity” will spawn. Maybe they didn’t notice, but everything in America is litigated these days. And, whatever amendment advocates may do, it’s laughable to imply that gay activists won’t continue to push their agenda in court, whatever the outcome. The current marriage law easily invites as much litigation as the other side claims the amendment will.

As for the potential for broad, disastrous interpretations: now would be a good time for liberals to learn to appreciate the conservative judicial philosophy of originalism, which binds judges to the letter of the law and the original intent of the law. The clear, stated intent of the second sentence is to prevent the creation of same-sex marriage by another name, such as civil unions. The scare-tactic scenarios proposed by amendment foes seem dubious, but conceding (just for the sake of argument) their plausibility, consider the following: As demonstrated above, there are entirely reasonable, analytical interpretations of the amendment that are fully compatible with equal rights for gay individuals (aside from marriage itself, if you consider same-sex marriage an individual right). If any given law has multiple plausible interpretations, why not simply fight for the most reasoned one (and judges who will follow it) rather than scrapping the entire law? 

(The answer?  Because most of Fair Wisconsin really did oppose the first sentence; the second sentence antics were just propaganda tactics.)