Why Democrats need to talk about gay marriage

This is a big day in the Badger State. The domestic partnership registry is now open and now same-sex couples are eligible to get legal recognition from the state for their relationships. Why is this an important concept in western society? Should it be? Why is there such an emphasis on getting the state to acknowledge your love for another person? Although most advocates of gay marriage or domestic partnerships will herald this day as a victory for human rights and equality, it’s nevertheless important to recognize today as a step forward in pragmatic social policy, in which the value of the family in our society has been affirmed and strengthened.

If there is one issue upon which the liberals have the moral high ground, it’s family values. Simply put, liberals support policies that foster family growth in this country. They support the right of homosexuals, who, depending on data, comprise three to ten percent of our population, to form families. The right does not. Although many on the right have retreated from the junk science claim that homosexuality is simply a lifestyle choice, they continue to paradoxically insist that gays are better off living on the outskirts of society, in certain neighborhoods of big cities, than in the American mainstream, where they can form relationships and start families.

The right now finds itself in a no-man’s land on the issue of gay rights. On one hand, it has a decreasing but still-significant constituency that believes that homosexuality is a choice and a sin that can be fought and killed. On the other hand it is under pressure to appeal to more moderate elements of the right and center, who have, for lack of better words, come to grips with the facts. While they can no longer condemn homosexuality as immoral, they must tacitly support policies that brand it as such by making vague illusions to the sanctity of marriage . The good news is that eventually the latter constituency will win out, and the Republican Party will one day have to apologize for the demagoguery of the Bush years, much like southern politicians had to make up excuses for supporting segregation after it went out of fashion.

In moderate states like Wisconsin, Republicans are quickly realizing that gay rights is not an issue they can win on anymore. Democrats should not breathe a sigh of relief. They should take the issue and hit the GOP over the head with it. Democratic leaders should emphasize the importance of encouraging marriage in our society. They should discuss the importance of encouraging monogamy and how the GOP has tacitly told gays that their relationships are not wanted – that they’d prefer to keep gays in gay bars than in families. Talk about adoption! About the thousands of orphans, who the Republicans believe are evidence of a successfully avoided abortion, but who they’d prefer to keep in orphanages than in loving families.

An appeal has already come from Wisconsin Family Acation, a right wing organization bent on making Wisconsin an artificial addition to the Bible Belt. They are claiming the domestic partnerships violates the 2006 constitutional amendment, because it mimics marriage. Based on the judge’s interpretation, the law could be ruled unconstitutional, but it shouldn’t be. Frankly, the domestic partnerships did not go that far – there are still significant legal distinctions between it and marriage. Therefore, no reasonable judge, with a technical interpretation of the law, would rule that it is a violation.

Marriage ban under attack

The storm’s a comin. In a few weeks Wisconsin’s marriage protection amendment will undergo its first legal test as the Supreme Court hears William C. McConkey v. Van Hollen in just a few weeks. The suit brought by McConkey alleges the amendment violated the constitution because it was construed in such a way as to prevent voters from voting on one distinct question at a time, as some argue Article XII of the state constitution requires.

“and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution; provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.”

The case will most likely be dismissed. Although most journalists who reference the case claim that the constitution forbids mixing “subjects” in amendments, the text clearly says “amendment,” not “issue” or “question.” Moreover, precedent set a 1982 case supports the right of the legislature to decide to “submit several distinct propositions to the electorate as one constitutional amendment if they relate to the same subject matter and are designed to accomplish one general purpose.” And frankly, I’m confident the Wisconsin Family Research Council supports me when I say that the general purpose of the amendment – to deny gays rights – was relatively clear.

McConkey’s argument centers on the mixing of marriage and domestic partnerships in the text of the amendment. However, he’s also challenged the ban as violating the U.S. Constitution’s “equal protection” clause in the 14th amendment. He’s got a much better chance there, and such an argument would allow non-WMC appointees to some flexibility in ruling. The 14th amendment is the best argument for gay marriage. If marriage is a legal contract recognized by the government, then it only makes sense for that legal protection be granted to every citizen.