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Marriage, by any other name


Peter at Special Agency pointed the other day to the Boston Phoenix (Boston alternative paper) Constitutional Convention blog. I hadn't even realized that the convention had started.

Yesterday, the Phoenix published an article entitled Gays win huge victory! I found the whole thing kind of confusing, but I think I eventually got the idea:

As of Thursday morning, there were three possible amendments to the Massachusetts Constitution under consideration. All three of them banned same-sex marriage. One (I gather) didn't provide for civil unions at all; one allowed the legislature to create civil unions but also allowed the legislature to define what a civil union was; and the the third, known as the Leadership amendment or the Travaglini-Finneran amendment, defined civil unions as providing "entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law." Furthermore, "All laws applicable to marriage shall also apply to civil unions."

The legislature voted three times on Thursday. The first two times, they voted for the Leadership amendment in place of the other two proposed amendments. Apparently this was in accordance with the strategy of those in favor of same-sex marriage; the plan was to get the best of the three amendments chosen as the only one under consideration, and then in the final vote to vote it down.

So the Travaglini-Finneran amendment won the first two votes, making it the only amendment under consideration. But then in the third and final vote, it won again, making it the official amendment agreed upon by the legislature.

On the one hand, good news for gay rights: at worst, after the issue goes to the voters in a couple years, Massachusetts will have civil unions that are exactly like marriage in everything but name built into the constitution. That's a step beyond Vermont, where (as I understand it) civil unions are defined by law rather than the constitution.

On the other hand, not so good news for same-sex marriage per se. Especially if the courts agree to hold off on granting marriage licenses until the constitutional amendment is decided by the voters.

I dunno. I feel strongly that separate-but-equal isn't equal; no matter how equal marriages and civil unions are in the eyes of the law, I suspect that just about everyone, on all sides of the issue, will consider civil unions to be a second-class form of marriage. The MA Supreme Court agrees; that's what they said when the legislature asked them if civil unions (without a constitutional amendment) would satisfy them.

But this may be the best we can hope for at the moment. And there's always a chance—maybe even a good chance—that in 2006 the voters will reject the amendment.

One interesting thing about civil unions in both VT and MA: they're available only to same-sex couples. On the one hand, this means that there's no chance of them becoming the civil version of marriage (thereby leaving the word "marriage" to apply to the religious version)—not that there really would've been much chance of that anyway, but it was fun to contemplate. On the other hand, it means that if only people can be convinced that civil unions are better than marriages, then opposite-sex couples will start suing to be granted the right to a civil union, and eventually the amendment will be overturned.

(Yes, that was a joke.)


Margaret Cho has a fun piece in her blog this week about civil unions as separate-but-more-than-equal:


What will be really interesting is to see whether there's a big push by the gay rights community in Mass. to vote for the amendment or against, when it is on the ballot.

(well, another thing that will be interesting...)

I'm confused—why would there be a push in the gay rights community to vote for the amendment, if the alternative is to allow full same-sex marriage? (Or are you riffing on the civil-unions-are-better thing?)

Well, I think for the reasons you said that it was being portrayed as a "victory" in that story. Although I think most people who support gay rights would agree it should be marriage and not civil unions (though I do actually think civil unions for everyone, gay, straight and otherwise, would be the best personally), there may be a "let's take what we can get" push. A let's get this in the constitution so on a practical level we will have _some_ rights and protections even if it's not called marriage. I'm not that up on the way things worked in Vermont, i.e. whether the voters decided their solution and whether gay rights groups in the state supported that decision, but civil unions were accepted there as the way to go.

Does that make any sense? I think it will be interesting to see if there is a faction of the gay rights movement in Mass. that endorses this amendment when it's on the ballot or whether they take a strong stand and say, no, this isn't good enough.

But in Massachusetts, the amendment is in response to the state Supreme Court requiring that full same-sex marriages be performed. So if the amendment doesn't pass, then same-sex marriage is legal in MA; if it does, then MA gets only civil unions.

(The article was saying what happened was a victory compared to the other possible amendments; the other amendments would've been worse. But if the third vote had failed and the "Leadership amendment" hadn't been chosen, then there would be no amendment at all; that would've been a much bigger victory.)

I see -- although I suppose a defensive argument could be made that there's always the potential for future amendments that would be less amenable and so having something that protects rights in the constitional would preemptively keep it from being altered in a "worse" fashion.

But I definitely see (and agree with) your point. I suppose there's also the fear that eventually the Supreme Court could get a case and decide differently than the Mass. court. A constitutional amendment would make the journey to a high court highly unlikely. Although, of course, the Supreme Court has historically stayed out of marriage issues and left them to states. (At least, that's my understanding, I'm not a S.C. scholar so could be wrong.)

Excuse spelling -- cold and cough medicine. Feh.

Jed, another complicating factor (as I understand it) is that the MA SJC ruling is based on the idea that denying same-sex couples the right to marry is unconstitutional. If the voters amend the state constitution, then the court ruling no longer applies.

And while I hate to keep harping on this point, the reason the "civil unions" provision doesn't apply to mixed-sex couples is that mixed-sex couples already have civil unions, in the form of civil marriage. If one wants to draw a distinction between same-sex civil unions and mixed-sex civil marriages, the distinction could be the entry requirement--if you're the same sex, you have a union instead of a marriage. It's not a big difference, and those of us on the Side of Good feel that it isn't (or shouldn't be) an important difference, but it's at least a difference. No such difference would exist between mixed-sex civil unions and mixed-sex civil marriages.

Hey Susan -- I knew I'd be driving you crazy with that statement! But I didn't mean it that way -- I meant we should refer to everything as civil unions and take the word marriage out of the equation altogether. As, in truth, it already legally is.

This cold medicine/stupid cold makes me unable to think properly. Don't like it.