Vote No on the Amendment

Tomorrow, voters in Wisconsin will vote on a constitutional amendment that would, allegedly, ban gay marriage in the state. I will be voting no. Do I support gay marriage? No. If a bill came up to legalize gay marriage, I would probably vote against it. (Since I oppose it, do I get all bent out of shape over gay marriage? No. I would vote no, but it's hardly the end of civilization if homosexuals are allowed to marry.)

But the constitution, state or federal, is not the place for this kind of decision. It should be left to the will of the people. If the people want to allow gay marriage, so be it. That's democracy. I don't like courts that circumvent the people by legislating from the bench in the form of newly found rights. Nor do I support attempts to circumvent the courts by forcing social views into the constitution such that they are difficult or impossible to challenge. Both represent abuses of the constitution, elevating some issues to a level where the people no longer have a say. That's wrong.

Some might say that amendments reflect the will of the people. After all, the people are voting on this one so the outcome will reflect what the people of the state want. But what if the amendment passes but in 10 years views change and people aren't so scared of gay marriage? Too bad. The amendment takes the question out of the people's hands.

Apart from this more philosophical point, the language of the amendment seems pretty vague, resulting in an unclear scope. Hence my use of the word allegedly above. I'm no lawyer, but the gist of the amendment appears to be that only the only type of relationship that can be given the status of marriage is a marriage between a man and a woman. What does that mean? What is the impact to unmarried heterosexual couples? It would appear to impact health insurance coverage for co-habitating unmarried straight couples, for example. In Ohio, where an amendment with similar language passed, there is now an effort to prevent domestic violence laws from being applied to unmarried couples.

Such vague language invites judicial intervention in deciding just what it means , something conservatives allegedly dislike. Supporters could have pushed for more straightforward language that would explicitly limit the scope to banning gay marriage. That they didn't is curious and should be noted by anyone considering a yes vote.

The point is not that such lawsuits and unintended consequences, like the domestic violence example, would happen here should the amendment pass. (Rick Esenberg argues that the Ohio case arises from the specific language of that state's law and the comparable Wisconsin law about domestic violence does not have the same flaw.) It is that with such vague language, we have no idea what the scope of this amendment would be. Again, the amendment's authors could have chosen language that more explicitly stated their intentions, and chose not to.

I have to commend the no campaign. Rather than trying to argue in favor of gay marriage, most of the ads start from a presumption that the listener opposes gay marriage and then argues why, despite that opposition, they should vote no. I don't know how the vote will go, but that was a smart strategy.