As seen in issue 54 of Closer Magazine, published on 2008-10-19 in the "Featured" section.

Wedding Banned
Amendment Two: Stealth Attack on Domestic Partnership?
By: Harris Meyer

In this year’s presidential race, liberals are accusing conservatives of lying to win the election. But here in Florida, it’s conservatives who are accusing liberals of telling fibs to beat back an important ballot initiative.

On November 4, Floridians will vote on a proposed constitutional amendment, Amendment 2, spearheaded by the state Republican Party and Christian conservative groups, which would outlaw gay marriage.

Attorney Matthew Staver, the author of the Florida “Marriage Protection Amendment,” promises that his initiative does nothing more than affirm state law that outlaws same-sex marriage. Amendment 2 absolutely would not affect benefits offered by public agencies and private employers to unmarried partners--same sex or opposite sex--he swears.

But opponents of Amendment 2, including the ACLU of Florida, claim the measure could wipe out a range of rights and benefits for tens of thousands of unmarried domestic partners, both gay and straight. Rights like domestic registries, health insurance, hospital visitation, and health care decision making.

“It’s really wide ranging and scary how broadly this type of amendment has been applied in other states,” says Robert Rosenwald, director of the LGBT [lesbian, gay, bisexual, transgender]
Advocacy Project of the ACLU of Florida, which is campaigning against
the measure.

This line of attack infuriates Staver, who drafted the Florida Marriage Amendment and convinced the Florida Supreme Court to qualify it for the ballot. “This affects no domestic partnership laws in Florida and does not undermine any rights or benefits affecting hospital visitation or property rights,” says Staver, the founder and chairman of Liberty Counsel, an Orlando-based Christian conservative legal advocacy center.

“This is not about taking away your benefits,” he adds. “The opponents of traditional marriage know the only way they win is by lying. That’s the frustrating thing about this.”

Really? In Kentucky, anti-gay marriage activists are using that state’s amendment to challenge domestic partnership benefits at the University of Kentucky. The Michigan Supreme Court recently halted health benefits for same-sex partners of public employees on the basis of that state’s amendment. In Ohio, a court ruled that a man couldn’t be charged with domestic violence for beating up his live-in girlfriend because the marriage amendment meant the law only applied to husbands and wives. A higher court later reversed that ruling.

Miami-Dade, Broward, and Palm Beach counties, among others, offer domestic partnership registries enabling unmarried couples, many of them elderly and straight, to document certain rights and privileges. Broward and Monroe counties, West Palm Beach, Tampa, Miami Beach, Wilton Manors and Key West offer domestic partnership benefits to their employees.

The opponents’ argument that such arrangements would be jeopardized is at least partly credited with holding support for the proposed constitutional amendment in a recent Quinnipiac University poll to 55 percent, below the 60 percent needed to pass it. The amendment goes before Florida voters on the Nov. 4 general
election ballot.

Can you believe Staver? Are liberals and the American Civil Liberties Union, for God’s sake, lying to defeat a right-wing political cause? We report, you decide.

Mixed Signals

Two years ago, Erik Stanley, who identified himself as chief lawyer at Liberty Counsel, told me that amendment supporters would sue to challenge any same-sex partnership arrangements that “look like substantial equivalents” to marriage. In 2000, his group sued unsuccessfully to end the University of Florida’s domestic partnership policy for employees.

Stanley told me that Liberty Counsel objected to anything that gives “the state’s stamp of approval to a relationship that historically, for good reason, has been exclusive to the relationship between a man and a woman for life.”

But Staver says Stanley no longer works for Liberty Counsel and was not the
organization’s chief lawyer. Contrary to what Stanley said, Staver insists that if Amendment 2 passes, his group would not challenge any current domestic
partnership benefits or arrangements in Florida.

Staver, though, needs to better coordinate his message with other Amendment 2 backers.

In April, David Caton, the head of Florida Family Association, a Christian right group in Tampa, said he was considering challenging that city’s policy of offering benefits to
domestic partners of city employees. According to news reports, Caton said he and other, unnamed organizations were looking for a domestic partnership policy “to challenge the one that costs taxpayers the most.”

In Caton’s view, Tampa’s policy violated the existing Florida Defense of Marriage Act, drafted by Staver and passed by the Legislature in 1997. That statute states that “relationships between persons of the same sex which are treated as marriages… are not recognized for any purpose in this state.”

Staver acknowledges the close connection between Amendment 2 and the Defense of Marriage Act. Indeed, he says the purpose of Amendment 2 is to give the Defense of Marriage Act constitutional status so “judges won’t rewrite marriage by the stroke of
a pen.”

The Governor’s Tap Dance

Staver’s promise not to attack domestic partnership arrangements after Nov. 4 is just one of many delicious ironies in this year’s campaign.

Another rich one is Gov. Charlie Crist’s recent announcement that he will vote for, but not campaign for, the Florida Marriage Amendment. A Crist adviser, Brian Ballard, attributed the governor’s decision to his “live-and-let live” brand of politics. After he was elected governor in 2006 on a platform that including support for the marriage amendment, Crist ordered the state GOP to stop funding the initiative drive.
But Crist has been hounded by reports in New Times Broward Palm Beach that he has had homosexual relationships in the past. Besides that, he has sought to steer a tortured course between maintaining support from the GOP’s social conservative base and reaching out to moderates. So how much of his ambivalence is political expediency and how much is fear of being definitively outed?

“Crist is a very savvy pol who reads the polls,” says Daniel Smith, a University of Florida political science professor who has studied anti-gay marriage initiatives around the country. “I don’t know if it’s the personal controversies that have dogged him. But I suspect that if this thing had 70 percent approval, he’d be jumping on board.”

Crist’s office did not respond to phone and e-mail requests for comment.

Like Crist, Republican presidential nominee McCain is doing a delicate tap dance on the issue. He is supporting similar anti-gay marriage amendment proposals in California and in his home state of Arizona. But he isn’t flogging the issue the way President Bush did in his 2004 re-election campaign.

Sen. Barack Obama, the Democratic presidential nominee, opposes constitutional amendments to ban gay marriage and supports civil unions for same-sex couples, but he’s not in favor of legalizing gay marriage.

Double-Crossed in Michigan

While Amendment 2 backers promise that the measure will have no impact on domestic partnerships in Florida, a recent Michigan Supreme Court ruling severely undermines that claim.

In May, that high court ruled 5-2 that the Michigan amendment “prohibits public employers from providing health insurance benefits to their employees’ qualified same-sex domestic partners.”

The Michigan amendment language is quite similar to both the Florida Marriage Amendment and the Florida Defense of Marriage Act.

The Michigan amendment states that: “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 a marriage or similar union for any purpose.”

Florida’s proposed Amendment 2 states that: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as
marriage or the substantial equivalent thereof shall be valid or recognized.”

The Florida Defense of Marriage Act states in part that “relationships between persons of the same sex which are treated as marriages… are not recognized for any purpose in this state.”

Staver argues that the Michigan amendment is significantly different from, and more far-reaching than, Amendment 2, though it is similar to the Florida Defense of
Marriage Act.

Under Amendment 2, to be the “substantial equivalent” of marriage and therefore outlawed, any other form of legal union would have to have “all the same rights and benefits and privileges and opportunities as marriage but under a different name,” Staver says. Domestic partnerships, he explains, only include some of the rights and obligations of marriage and therefore are not legally threatened.

Since he wrote the amendment and told the Florida Supreme Court that it wouldn’t affect existing domestic partnership laws, and the high court unanimously rejected the opponent’s argument that it would, Staver says “I don’t see how a judge would construe that this applies to domestic partnerships.”

But in the Michigan case, the Michigan Supreme Court majority wrote that in interpreting the marriage amendment, repeated statements by supporters prior to passage that it would not affect domestic partnership benefits were irrelevant. “The role of this Court is not to determine who said what about the amendment before it was ratified,” the majority said.

“Time Bomb”

Two Florida constitutional attorneys scoff at Staver’s claims that the amendment would not upset existing partnership laws and benefits.

Bruce Rogow, a prominent Fort Lauderdale appellate lawyer, called “substantial equivalent” a “time bomb.” The phrase “is so vague that it poses a danger to every possible arrangement that might permit same sex couples to have a legally cognizable relationship of any sort.”

Bob Jarvis, a constitutional law professor at Nova Southeastern University, says he sees no substantive difference between the Florida amendment language and the Michigan amendment. “This is an amendment that could be interpreted lots of different ways, and we really don’t know what the courts will do,” he warns. “Voters don’t know what they’re voting for when they vote for this.”

Beyond that, if and when the marriage amendment returns to the high court, the court probably will be very right-leaning. Gov. Crist, who recently appointed Charles Canady, a Christian conservative, to the Supreme Court, now has another vacancy to fill, and he’s likely to appoint two more new justices before his term ends.

“If Crist continues to appoint people like Canady,” Jarvis says, “then they will clearly vote like Michigan. ”Staver counters that “those are scare tactics and absolute lies. We put very specifically in our brief what this amendment addresses, and the Supreme Court agreed unanimously.”

Amendment 2 opponents return the charge of lying. “The other side asks you to ignore what has happened in other states and to take their word for it that they won’t try to do that here,” says the ACLU’s Rosenwald. “But based on their record, they can’t be believed.”

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