John Gatiss: Why I Oppose the Proposed Amendment to Overturn the Same-Sex Marriage Ban

Why I Oppose the Current Proposed Amendment to Overturn the Same-Sex Marriage Ban in the Ohio Constitution

 The Facebook post is here

FULL TEXT OF PROPOSED AMENDMENT

Be it Resolved by the People of the State of Ohio that Article XV, Section 11 of the Ohio Constitution be adopted and read as follows: Section 11. In the State of Ohio and its political subdivisions, marriage shall be a union of two consenting adults not nearer of kin than second cousins, and not having a husband or wife living, and no religious institution shall be required to perform or recognize a marriage.

Earlier this week, the Ohio Attorney General approved the ballot summary language for an amendment to repeal the same-sex marriage ban in the Ohio Constitution. While others celebrated it as a victory and an important step forward, I felt a sinking feeling in the pit of my stomach, because I knew I would have to publicly step forward with my concerns about the proposed amendment that were not being addressed privately. Because I am deeply concerned that the proposed amendment is flawed legally and politically, I had hoped that a rejection of the summary would have provided another opportunity for a more profound revision of the full text of the amendment. There are three key issues that could cause problems in the near and longer terms:

• Although the proposed amendment defines marriage as a union between two consenting adults, it does not specifically preclude the legislature from enacting further restrictions to define marriage as a subset of consenting adults (e.g., one man, one woman). Because Ohio already has a law on the books restricting marriage to one man, one woman, a victory at the ballot box to change the Ohio Constitution would need to be followed by either a victory in the courts ruling that law unconstitutional or a victory in the legislature repealing it. Although neither the legislature nor the court system in Ohio are likely to look favorably on the issue, the courts would be the more likely avenue to remove the existing law from the books if the proposed amendment were to be adopted. However, given the current composition of the Ohio Supreme Court, I am uncertain that they would strike down the existing marriage discrimination law without a clearer restriction on the legislature's powers to define marriage; in such a case, the effort to change the Ohio Constitution could be for naught as the law would be stuck on the books until the makeup of the legislature or court were changed by electing a pro-equality majority (neither of which would be trivial tasks). Changing the language of the proposed amendment to be more definitive -- perhaps as simple as changing "two consenting adults" to "any two consenting adults" could help to add certitude that the courts will have to make the decision to overturn the existing marriage discrimination law. The language of the proposed amendment needs to be restrictive enough to make the current law unambiguously unconstitutional; otherwise, the partisan Ohio Supreme Court will find a way to uphold it.

• The polygamy and cousin clauses also are problematic. From a legal standpoint, a court could potentially read the language of the amendment to be outlawing all marriage. If the union of marriage is considered not a discrete act but rather an ongoing condition, then the moment after an individual enters into a union, that individual has a husband or wife living and thus is barred from being in a marriage.  Although this may seem far-fetched or circular logic, a Texas state court made a similar determination in 2009 about that state's anti-same-sex marriage amendment (http://www.politicsdaily.com/2009/11/21/did-texas-accidently-outlaw-marriage-in-05/). However, this clause likely poses more political problems than legal ones. Imagine a possible ad from the opposition: "Homosexual activists want to destroy your marriage" (and for once it might not be hyperbole). Another possible ad from the opposition: "Homosexual activists want to legalize incest by allowing you to marry your cousin." Most people probably do not know that you can marry a cousin under existing state law, so the attack would resonate, especially because the full text is so brief that people are going to read it in the voting booth, which will reinforce the line of attack. Opponents will use these lines of attack to plant doubts about the language in voters' minds (i.e., the amendment doesn't do what you think it does). This tactic was used successfully by pro-equality advocates in Arizona to plant doubt in the minds of voters about the effects of an anti-same-sex marriage amendment, so if it worked in our favor there. it can work against us here. There may not be a tidy solution, but simply copying parts of the existing law into the proposed amendment seems to be a poor one. A clause that limits the power of the legislature to regulate marriage to restrictions based upon age, familial relationships, and polygamy may be a neater way to dodge these issues without so precisely defining them that they confuse or scare voters. It also could help to more precisely define the legislature's power to regulate marriage and push the courts to strike down any laws that attempt to place further restrictions on marriage.

• The religious institutions clause is overly broad and could prevent people within the GLBT community from supporting this effort. In a possible future where an employment nondiscrimination or safe schools law were enacted in Ohio, the proposed amendment could be used by a religiously affiliated school as a shield against legal consequences if a teacher were fired not for being gay but for being married (a recent occurrence in Missouri; http://www.semissourian.com/story/1820846.html) or if a child were being bullied for having gay or lesbian parents (effectively writing a license to bully into the Ohio Constitution). In another possible scenario, a hospital with a religious affiliation could deny a same-sex spouse visitation or other rights and use the Ohio Constitution as a shield (counting on the Medicare/Medicaid directives from the federal government to address this issue is not a certainty, because they could be rescinded by a future President). In some cases, people have little choice but to interact with these institutions; it may be the nearest emergency room or the closest quality school to send their children, so it will not be as simple as just avoiding such institutions. Narrower language that replaced "religious institutions" with "churches or houses of worship" could prevent some of these problems. Politically speaking, such a change would draw more people in the GLBT community into supporting the proposed amendment, and from a political standpoint there would be little cost. Churches and other religious organizations (e.g., the Roman Catholic church, conservative evangelical churches, Salvation Army, etc.) that would prefer the broader language will never support this amendment no matter the precise wording used on this point; and the churches and religious organizations most likely to be supportive will likely remain supportive regardless of the precise language used. If the spirit and intent of this language is to convey that no church or house of worship will be forced to perform or recognize a same-sex marriage, then the proposed amendment goes much farther.

Although I signed the petition for the submission of the proposed amendment language in the hope of keeping the marriage equality discussion going, I will decline to sign the full petition. I would like the effort to repeal the same-sex marriage ban in the Ohio Constitution to be successful, but I am concerned that without the right amendment language that the effort will be fatally flawed. Amending the Ohio Constitution to allow marriage equality was always going to be a difficult task -- although not an impossible one -- but it will require threading the needle with precisely the right ballot summary language and proposed amendment text in addition to precisely the right coalition building, fundraising, messaging, voter outreach, and other efforts. The language of the proposed amendment starts out the wrong foot, and I would hate to see a huge outpouring of passion and money just for the amendment to fail to force the courts to overturn the existing marriage discrimination law, or for the amendment to fail to be adopted by the voters because it lends itself to unnecessary demonization, or for the GLBT community fail to coalesce behind the proposed amendment because the language goes too far to protect religious-based discrimination.

I encourage everyone in the Ohio GLBT and ally communities to decline to sign the petition with the current proposed amendment language and join me to ask that the current proposed amendment be revised to address these concerns and the concerns of others. The GLBT and ally communities can put forth a better effort. Ohio deserves a better effort.