WHAT WILL STATE AMENDMENTS ACTUALLY DO?: Joshua Baker

Watching the debate over the state marriage amendments makes for a fascinating study of public messaging strategies. It seems proponents of the amendments talk about marriage (and little else), while opponents are inclined to talk about anything but marriage, whether that be hospital visitation, employee benefits, inheritance rights, or parental support obligations. See, e.g., here, here, here, and here. Obviously, such disciplined messaging reflects the fact that the American public opposes same-sex marriage by large margins, but is more evenly divided over questions of rights and benefits.

The legal implications of these amendments are certainly worthy of careful consideration by voters, but it seems some standard of likelihood (or at least plausibility) should govern the public rhetoric. Repeatedly raising the specter of gay partners being thrown out of hospital rooms, or children being deprived of parental support, or businesses being told they can no longer offer partnership benefits to their employees serves simply to obscure, rather than illuminate, the real issues at stake.

Take the private employee benefits issue. No state, not even Nebraska (with a marriage amendment that explicitly bans recognition of domestic partnerships) has ever limited the right of a private employer to extend health insurance to the domestic partners of its employees. It is true that these domestic partners will not be deemed "spouses" under state law, but nothing prohibits employers from giving benefits to non-spouses. It's not clear to me how any private action can make a domestic partner into the legal equivalent of a spouse, much less simply naming that person as a health insurance beneficiary.

Or take the hospital visitation issue. If a state legislature proposes to limit hospital visitation to legal spouses, let's join together to oppose the bill, but that's not the issue today. And parental obligations? Surely there are enough unmarried parents paying child support to evidence the fact that child support hinges on parental, not marital, status.

It's easy to make claims. But claims need support from argument and/or (at least) anecdote. To date, I haven't seen a serious analysis supporting these claims. From those who take them seriously, I'd welcome such an explanation.

posted by Eve at 5:30 PM | link

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