ACLU analyzes proposed anti-marriage amendment
July 11, 2001
Re: Oppose the Marriage Constitutional Amendment
The American Civil Liberties Union strongly urges you to oppose a proposed constitutional amendment that would deprive the families of gay men and lesbians--and all other unmarried couples--of all legal protections for their relationships. Although the supporters of the amendment have not introduced it yet, the ACLU believes that the unprecedented severity of the amendment's attack on the legal rights of millions of families warrants this early letter.
Based on recent press reports, we understand that supporters of the amendment will announce tomorrow morning a campaign to pass a constitutional amendment to bar same-sex marriages and prohibit the federal government and all states from conferring "the legal incidents" of marriage on unmarried couples. It would explicitly override any contrary provisions in the U.S. Constitution, any of the fifty state constitutions, or any of the laws of the federal or state governments. This extraordinarily harmful amendment could:
Reverse the Constitutional Tradition of Protecting, Not Harming, Individual Liberty Rights: None of the current constitutional amendments restricts individual freedoms. In fact, the amendments to the Constitution are the source of most of the Constitution's protections for individual liberty rights. The proposed amendment, by contrast, would deny all protection for the most personal decisions made by millions of families.
Sharply Break from the Historical Civil Rights Practice of Allowing Stronger State Laws: The federal civil rights laws have always provided a floor, not a ceiling, for civil rights protections. However, the proposed amendment would prohibit states from expanding their civil rights laws to protect gay and lesbian couples, or unmarried heterosexual couples, and their families. It would forbid states from serving their traditional role as testing grounds for stronger civil rights laws.
End the Role of State Governments in Protecting Unmarried Couples and Their Families in Their States: In exercising their jurisdiction over family law issues, many states have extended important protections to the families of gay men and lesbians and other unmarried couples. This state authority is broadly accepted. In fact, during the vice presidential debates last year, Vice President Dick Cheney explained that:
"The fact of the matter is we live in a free society, and freedom means freedom for everybody. . . . And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area."
Aim at a Non-Existent Target: The first sentence of the proposed constitutional amendment would bar all same-sex marriages. However, gay and lesbian couples cannot now marry anywhere in the United States. Moreover, Congress already enacted the Defense of Marriage Act in 1996, which was an earlier response to the fear of same-sex marriages that have never been recognized.
Invalidate All State Domestic Partnership Laws: By prohibiting states from providing any of the "legal incidents" of marriage to unmarried couples, the amendment could void the domestic partnership laws in at least eight states and in more than 100 counties, cities, and towns across the country. These usually modest laws typically include such fundamental rights as allowing a person to visit his or her partner in a hospital, participate in a partner's medical decisions at his or her request, or obtain health insurance. Some state and local governments also provide health insurance to the partners of state or local government employees. The amendment could prohibit state and local governments from making their own decisions on providing benefits to their own employees' families.
Undermine State Adoption, Foster Care, and Kinship Care Laws: In many states, unmarried persons--including unmarried relatives, heterosexual couples, gay and lesbian couples, and even unrelated clergy members--have the same rights as married persons to jointly adopt or jointly provide foster care or kinship care. These unmarried persons are providing loving and secure homes to countless children. By barring states from extending any "legal incidents" of marriage to unmarried persons, the amendment could take away every legal protection that states now provide to these families.
Destroy a Wide Range of Other Rights Provided to Unmarried Persons: By denying unmarried persons all legal protections for any of the "legal incidents" of marriage, the amendment would destroy a wide range of other rights that are important to the lives of unmarried persons. Those legal protections include state and local civil rights laws prohibiting discrimination based on "marital status," state laws protecting unmarried elderly couples who refrain from marrying in order to hold on to their pensions, and even state laws allowing a person, in the absence of a spouse, to oppose the autopsy of a close friend because of the deceased person's religious beliefs.
For these reasons, the ACLU strongly urges you to oppose amending the Constitution to deprive millions of families of their most fundamental rights. Please do not hesitate to call us if you have any questions regarding this issue.
Laura W. Murphy
Christopher E. Anders
Copyright 2001, The American Civil Liberties Union