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08/20/2010

Alliance Defense Fund: Loves domestic partnerships in Pacific time, not so much in Central

by Jeremy Hooper

As everyone is focused on the Alliance Defense Fund and the case they've been making against marriage equality in the California courts, we want to take a pause and look at another fight that this very same outfit has put on its legal slate. Namely: The ADF's fight to overturn the state domestic partnership registry in Wisconsin:

MADISON, Wis. — Alliance Defense Fund attorneys together with allied attorneys representing Wisconsin Family Action officers and board members filed suit inADFstate court Wednesday to stop the governor and state legislature from skirting a voter-approved constitutional amendment protecting marriage. The lawsuit asks the court to halt the state’s “domestic partnership” scheme because it creates a legal status substantially similar to that of marriage, which directly violates Article 13, Section 13, of the Wisconsin Constitution.

“Politicians shouldn’t defy the will of voters who legitimately amended the Wisconsin Constitution in a fair election,” said ADF Senior Counsel Brian Raum. “This domestic partnership scheme is precisely the type of marriage imitation that the constitutional amendment approved by Wisconsin voters was intended to prevent. Those who are determined to tamper with marriage in Wisconsin are attempting an end-run attack hoping they can evade the clear language of the state constitution.”

ADF files suit to stop violation of Wis. marriage amendment [ADF]

Alright, so let's consider this. The ADF is taking on this case because they claim that domestic partnerships place an unfair burden on the institution of marriage. They claim that in "protecting marriage," the state's voters also intended to stop DPs. Despite the easily discernible differences and limitations that disconnect DPs from marriage, the ADF is building its whole case around the idea that a limited domestic partnership registry is meant to directly emulate its bigger cousin, and thus harms the "traditional marriage" side.

But now let's move west to California. That state has one of the most expansive domestic partnership programs in all of the country. Far more expansive than the one in place in Wisconsin. But even so, it is still not marriage. Those pro-equality peeps engaged in the current fight for marriage in California have ably demonstrated that even their strong DPs are a few steps away from full matrimony. Because they are.

Yet it's not only the pro-equality side that's demonstrated this difference: The ADF and fellow Prop 8 proponents have made a point to say that they are not opposed to domestic partnerships. That's a major part of the pro-Prop 8 strategy: To say that gay couples don't need marriage because they already have "most of the rights and benefits," and that the state's voters don't hold animus towards gay people because they have allowed domestic partnerships to stand. And in fact, the proponents' star witness, David Blankenhorn, very fully expanded on this idea:

BY MR. COOPER: Q. Thank you.

Mr. Blankenhorn, I would now like to turn to the last subject, and that is the issue of domestic partnerships.
And I would like to ask you what your position is on domestic partnerships?

A. I support them. I think that they could be part of a kind of a humane compromise in which, on the one hand, we protect marriage and allow it to continue to carry out its distinctive contribution to society, while at the same time extending protections and recognition to gay and lesbian couples.

I don't think it's a perfect solution, but I do think it's a possibly humane compromise on this issue. And I so stated in an article that I wrote in the
New York Times, I co-authored Jonathan Rauch last year.

Q.
Who is Jonathan Rauch?

A. He is a visiting scholar at the Brookings Institution. He is a prominent proponent of same-sex marriage and his most recent book is called Gay Marriage: Why It's Good For Gays,Good For Straights and Good For America.

Q. And when did you publish this article you just referenced in the New York Times?

A. I think it was February of 2009.

Q. Have you always held the view that you have just articulated?

A.
No. I have actually come pretty much full circle on the issue. I really -- I really hadn't thought about it very much. I was really focused on the topic of marriage and I had not given the certainly two years topic of domestic partnerships much thought. I hadn't given it any careful consideration until about ago. There was an event in Washington D.C., a debate -- we conversations now, but we called it then a debate -- call them with Jonathan Rauch and he kind of publicly challenged me and called me out on this topic and said, Your thinking about domestic partnerships is immature and wrong and you have to rethink it and, you know, it's -- I have also, speaking -- Jonathan said he also was evolving his position on the topic and he really challenged me in that forum to consider more carefully this idea, and I told him that I would, and I did.
And that began a kind of a journey with him personally and, also, with other leaders in the push, who were pro-same-sex marriage, where I tried to devote some real -- some real time to the topic and that led then to Rauch and Iwriting the article endorsing civil unions or domestic partnerships in the
New York Times.

Q. Why hadn't you thought carefully about the issue of domestic partnerships prior to that time?

A. I didn't really think I had -- I didn't feel that I had to think about them carefully at that time.
I -- I went into my first conversations about this with a kind of -- an instinctive or just a general feeling that if you set up a comparable institution to marriage, that that could have a weakening effect on marriage because -- particularly if that comparable institution was open to opposite-sex couples as well, I was worried that you would have kind of a, you know, smorgasbord effect of choosing -- and I thought that that diversification would possibly weaken the marital institution.

So I was -- I was very concerned that that not happen, so I was personally suspicious of endorsing domestic partnerships for that reason.

And the other reason was that Rauch and the others, you know, the people that I was talking to were just very vociferous in their denunciation of civil unions and domestic partnerships. They just said it was a horrible idea; that it was discriminatory; that it was -- that this was invidious; this was demeaning, two gay and lesbian people; and this was a form of unequal treatment.

And I -- I accepted that view. I was strongly influenced by that view. In fact, I repeated that view. Back of the bus, you know, discriminatory and wrong and unfair.

And so for those reasons, my concerns about diluting marriage by setting up this dual institutional structure and, also, the concerns about just the -- I guess you might say the un- -- the unfairness, the idea that this would be discriminatory, I embraced that -- I embraced both points of view, just as an initial way of thinking topic without having written or thought much about and it was really then in the meeting with Rauch in 2007 and then the next two years I tried to rethink it afresh. I tried to think about it deeply and carefully with Rauch and others and that led to the written article about the subject that I published with him last year.

Q. I take it you no longer agree with the views that you had on the subject before?

A. I still worry that domestic partnerships could -- could possibly have a weakening effect on the marital institution, but I think that it's something we should do anyway because of other issues involved, and I have satisfied myself on this question of fairness. That's been the big issue for me, you know, personally. The issue of, is it unjust to have a domestic partnership program? That's been really the core journey and exploration that I have undergone on that issue.
of those about the it, but --

So I -- my thinking on it now is that the core principle that we can hold out for our understanding is that marriage as a social institution is larger than the sum of its legal incidents.

When we say the word "marriage," it's a big institution that performs a very large contribution to society and it's much bigger, much more powerful and potent as a role in society than merely or only the enumeration of its legal incidents. Marriage predates law. Marriage is not a creature of law in the same way that other things are.

The law did not create marriage. We look to law to recognize and support marriage and to give it support, but we do not simply understand the institution only with reference to its legal incidents.

So if you look at the legal -- the legal incidents of domestic partnerships and then look at the legal incidents of marriage, the fact that those legal incidents are comparable does not mean that we are looking at the same institution, the content of it.

The marital institution is differently purposed, is specifically purposed. As I have tried to say today, probably more times than you want to hear, the purpose of it is to bring together the biological male and the biological female, to bring together the two genitors of the child, to make it as likely as possible that they are also the social and legal parents of the child. That's the loadstar. That's the distinctive contribution. There are others, but that's the distinctive and core contribution of the institution of marriage.

The domestic partnership institution is a differently purposed institution with respect to this bringing together -- with respect to parenthood, particularly with respect to parenthood.

The parenting process in the -- this loadstar notion that animates the marital institution is not the same that is operative in the domestic partnership institution.

It is discriminatory and un- -- and morally wrong in my view, morally wrong to refuse to call two things that are the same by the same name. That was my -- that was my -- that was my -- that was what the big thing I had to grapple with in my own mind to be able to look myself in the mirror.

And what I worked out with Rauch and others -- I'm not saying he is responsible for my views. I'm saying that the process I'm describing of developing this proposal with Rauch, I had to be sure issue of is this in this way as a the thing that I my satisfaction.

And it myself, personally, ethnically, that this discrimination to have an institution purposed domestic partnership institution. That was had to work out, and I have worked that out to -- it means a lot to me personally, but I feel that I have been able to understand this in a way that then allows me as an advocate for customary marriage to say we can have a compromise here. We don't all get everything we want, but we all have a humane compromise on this issue.

MR. COOPER:
Thank you, Mr. Blankenhorn.
BLANKENHORN -- DIRECT EXAMINATION/ COOPER [Equal Rights Foundation]

This exchange was clearly built around strategy. Chuck Cooper obviously wanted to David Blankenhorn to "explain" why domestic partnerships are a fundamentally different notion. The overall idea: That those who support Prop 8 are not mean to gays or causing undue harm since they support the right of domestic partnerships. And they want to demonstrate that they also understand the difference between domestic partnerships and marriage, but that the difference is not the bad thing that LGBT activists claim it is.

So now let's use some frequent truth-flag-flyer miles and go back to Wisconsin, where the ADF is making this case:

The scheme, proposed and signed into law by Gov. Jim Doyle after passage by the Legislature as part of the 2010-11 state budget, is available only to couples involved in a same-sex relationship. “Domestic partners” receive “declarations” ADFinstead of “marriage licenses,” but otherwise, the procedures for becoming domestic partners and becoming husband and wife are virtually the same.

In November 2006, 59 percent of Wisconsin voters approved an amendment to the state constitution that reads, “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.” In June, the Wisconsin Supreme Court unanimously upheld the validity of the entire amendment’s enactment.

“Our system of government serves no purpose if our elected officials can completely and capriciously ignore the will of the people with impunity,” said Wisconsin Family Action President Julaine Appling, lead plaintiff in the lawsuit, Appling v. Doyle, filed in the Dane County Circuit Court. “A reasonable person observing this registry would easily conclude that it is intended to mirror marriage. It borrows the requirements and eligibility standards for marriage, even to the point of requiring that the price of the registry certificate be the same as for a marriage license.”

ADF files suit to stop violation of Wis. marriage amendment [ADF]

So wait -- why are Wisconsin DPs, which are so much more quasi- than California's variety, all of a sudden presented as something that's "intended to mirror marriage"? Both were approved by state legislatures and signed into law by state governors. So why are the ADF and fellow Prop 8 proponents all about putting David Blankenhorn on the stand to call California's sweeping domestic partnerships "a differently purposed institution" that doesn't undermine the voters, yet just as eager to put Julaine Appling in the spotlight to claim that elected officials are "capriciously ignor[ing] the will of the people with impunity"? If domestic partnerships are different (which they are, but not in the way or for the reasons that David Blankenhorn states), then why are they all of a sudden "just marriage by another name" when the ADF leaves San Francisco and heads to Milwaukee?

We obviously know the answers to those questions (Opportunism, politics, public polling, etc.). Now it's up to all of us to start connecting the dots of this politically-motivated, shifty, hypocrisy-laden, disingenuous legal game that the ADF calls strategy.

***

*UPDATE: Alliance Defense Fund: Loves A.G. refusals in Central time, not so much in Pacific [G-A-Y]

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