If you want a taste of the dazzling innovation emerging from state-level politics this electoral season, take a look at the eight anti-gay marriage amendments heading for a vote in November. In each of these states—Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin—gay marriage is already illegal. The idea du jour from the party of ideas? Make it more illegal, enshrining in the constitution restrictions spelled out in statute. If that sounds insufficiently redundant, consider that it's not as if Adam and Steve were placing tiered-cake orders in any of those states before the original bans were passed.
Amendments, say marriage-banners, are the last defense of a helpless electorate against the dread "activist judge," a loony leftist bogeyman unlikely to be manning the bench in, say, Tennessee. Because the amendments have been written with latte-sipping, hair-splitting judges in mind, they tend to be more expansive than the 19 constitutional amendments that have passed in other states. All but Tennessee's would affect any and all domestic partnerships, a hit at legal unions as well as full-on marriage, straight couples as well as gay. Virginia's amendment, which will most likely pass come November, states:
This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Anti-amendment activists in Arizona and Virginia have seized on the implications for straights, stressing that a broad sweep of the anti-gay brush will wipe away their rights as well. Campaign materials for the Commonwealth Coalition, a group formed to oppose the Virginia amendment, focus on the measure's "unprecedented sweep and its potential to endanger ALL unmarried couples." And in a widely cited analysis(Pdf), the law firm of Arnold & Porter has said the amendment could be used to invalidate protections for straight couples under domestic violence laws, prevent private employers from offering benefits to domestic partners, and prevent the courts from enforcing private agreements between unmarried couples.
But those most likely to be affected by the overreach—those of us living in sin—are unlikely to feel properly threatened. One problem is that such threats are largely restricted to the realm of the hypothetical. (Domestic violence laws have been challenged in Ohio due to a reading of a similarly expansive ban, but mostly without success.) The lack of camera-ready victims is compounded by a more serious weakness: the lack of a constituency. Cohabitation may have gone mainstream, but cohabiters are not even wedded to their lack of commitment. According to statistics compiled by the Alternatives to Marriage Project, 75 percent of cohabiters eventually plan to marry their partners. Unmarried women are less likely to vote than their married counterparts, and most that do see their situation as transitional.
That's a shame, because the very contractual arrangements that such laws may prohibit suggest a far preferable marriage regime than exists in Massachusetts. Even a society fully comfortable with gay marriage won't address the fact that the institution has failed to keep pace with the plethora of domestic arrangements now in place. Without room for private contractual arrangements, universal marriage rights still leave couples with two choices—I do or I don't. It's a situation that subjects those who opt in to one-size-fits all divorce laws, those who opt out to all manner of legal disadvantage, and everyone to the whims of an invasive legislature.
Consider California's 37,000 domestic partners, whom the legislature recently saddled with a bundle of legal obligations they never signed up for. Until recently, such partnerships could be dissolved with a notarized form. But as of 2005, partners who want out must endure all the drama of a straight divorce. Richer partners have been hit up for alimony, and Californians looking for less regulated relationships are out of luck.
A menu of options, based on how couples actually live, is long overdue, and it's a much more serious threat to traditional marriage than gay marriage. Unmarried partnerships really should strike fear in the hearts of the Ozzie-and-Harriet set, portending as they do a world in which the concept of marriage—to use a word in disfavor among the anti-gay marriage contingent—evolves.
For those obsessed with a rigid status quo, coming out against cafeteria marriages actually makes a modicum of sense. And in a controversy so muddled that being "for marriage," has come to mean restricting access to the institution, it's no surprise that anti-gay marriage activists have stumbled backwards into it.