Vote won't end gay marriage debate

Amendment may face legal challenges

Monday, September 13, 2004

By Ed Anderson

Capital bureau

BATON ROUGE -- Voters across the state will decide Saturday whether to add a ban on same-

sex marriage to the Louisiana Constitution, but almost no one believes that the emotional debate will end there.

If the amendment passes, as most observers expect, opponents say it will certainly face legal challenges on several fronts, including its impact on contracts, private-sector employee benefit programs, inheritance, taxes, real estate issues, bankruptcies and other parts of state law, including issues involving unmarried opposite-sex couples.

Opponents also point out that the state already has a law banning same-sex marriage that has not been challenged, making the amendment unnecessary or at least premature.

Supporters say the amendment is essential to provide constitutional protection to the institution of marriage, which they say has been threatened in other states by judicial interpretation. They say it is needed so state officials and judges are not forced to recognize same-sex marriages, civil unions and domestic partnerships sanctioned in other states.

They dispute suggestions it will disrupt contracts or interfere with private companies that choose to extend benefits to same-sex or unmarried couples, and they say they are confident it will withstand legal scrutiny.

Polling indicates the proposed state amendment is overwhelmingly popular with Louisiana voters.

"It looks like it is going to win," Loyola University Institute of Politics Director Ed Renwick said. "I think it would be difficult for it to lose."

Buster McKenzie, a pollster with Baton Rouge-based Southern Media and Opinion Research, said his polls show the proposal being approved by up to 70 percent of those voting.

Fallout unclear

While the issues dividing those who oppose the amendment on civil rights and equality grounds and those who support it for religious, moral and traditional reasons are laser-light clear, the debate over how the amendment could affect the many legal and social arrangements related to marriage is decidedly murky.

A report by the nonpartisan Public Affairs Research Council could only conclude that "legal analysts are split on the potential impact of the amendment on private contracts" and what benefits may be lost in same-sex and unmarried opposite-sex unions.

"We would like to have had more specificity in what this amendment does," PAR President Jim Brandt said. "It would be nice to know how the court will interpret this before people vote on it.

"Unfortunately, the amendment as written will be subject to legal interpretation. This one is subject to legal interpretation more than others (have been). This kind of leaves voters in the dark."

Rep. Steve Scalise, R-Jefferson, the lead sponsor of the measure, said the language is clear and that opponents are trying to cloud the issue. "Most people understand what we are trying to do, and that is preserve traditional marriage," Scalise said.

Chris Daigle, director of government and community affairs with Equality Louisiana, a gay-rights group opposing the amendment, agrees with Brandt: "If the Legislature wasn't clear about what the amendment does, how can you expect voters to understand what they are voting on?"

Part of the controversy involves a section of the amendment that would prohibit state officials from granting legal rights and benefits of marriage, such as inheritance rights and tax breaks, to unmarried couples. It says that any other relationship that is "identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."

Randy Evans, a New Orleans lawyer and political director of the Forum for Equality Political Action Committee, one of the gay-rights groups that lost pre-election lawsuits to keep the measure off the ballot, said the amendment's passage would nullify New Orleans' domestic partner registry through which city employees can obtain health insurance and retirement benefits for same-sex or opposite-sex partners.

"It could call into question private contract rights between couples, gay and straight, who are not married," Evans said. He said passage also could undo private agreements of unmarried couples such as documents outlining who could and could not see a sick partner during a hospital stay.

Evans said a will made between a couple could be turned on its head if the amendment passes. For example, if a partner dies and leaves the survivor property or money, and a blood relative files suit to claim part or all of the inheritance, the lawyer for the relative could point to the constitutional provision to nullify the couple's agreement, he said.

"This is not any way to run a railroad," Evans said. "You are yanking any level of security from these people, and what is more basic than health care coverage and retirement benefits? Judges will land all over the map on these issues."

The proposal, he said, could affect more than 500,000 residents of the state who are involved in unmarried relationships, same sex and opposite sex.

Randall Trahan, an LSU law professor who worked with Scalise and Sen. John Hainkel, R-New Orleans, on the language of the measure that they shepherded through the Legislature last summer, calls Evans' assessments "poppycock."

"This has no effect whatsoever on private contract rights between private individuals," he said. "There is no way in the world a judge could justify ruling that it does. There is a reasonable question about whether contracts between partners (of an unmarried union) are legal now."

Trahan said opponents of the measure are being misleading when they say the measure will strip rights from unmarried opposite-sex couples in civil unions, common-law marriages or domestic partnerships. He said they do not have those rights now, except under a state law dictating how a child of that union must be cared for if the couple splits.

How a private insurance company insures a same-sex or opposite-sex couple would not be affected by the amendment, since that is a private contract between the company and the couple, Trahan said.

Trahan conceded that the pension rights and health coverage given to same-sex and unmarried couples by the city of New Orleans -- a public entity -- may be affected.

Even the legislation's co-sponsors, Hainkel and Scalise, disagree on the impact the proposal could have on the New Orleans domestic partner registry and the retirement and insurance benefits it provides unmarried couples.

Hainkel said it was not his intention when he handled the bill in the Legislature to "impact in any way the right to contract. It does not impact the domestic partner registry of New Orleans at all."

Registry safe, official says

Tanzie Jones, a spokeswoman for New Orleans Mayor Ray Nagin, said the city attorney's office does not believe that the amendment "will affect the city's domestic partner registry or the benefits" it provides. Jones said the mayor and his legal experts believe that the measure and the fate of the benefits provided by the registry ultimately "will be resolved in the courts."

But Scalise said during House floor debate that the proposal could overturn the New Orleans registry and stop the payment of retirement benefits and health insurance coverage to a city employee's same-sex partner.

Scalise said opponents are falsely saying that common-law marriages from other states will no longer be honored in Louisiana. Although not favored by the state, Louisiana now recognizes common-law relationships from other states and affords the couple the same legal rights they had in the state in which they entered their relationship. Scalise said that will not be changed if the amendment passes.

LSU Law School professor Michael McAuley said the measure "turns the clock back (on marriage relationships) and instructs a judge not to interpret the law based on a contemporary version of marriage. It implies there is something bad about nonmarriage. . . . It says it is a sin to live with someone (and not be married), that it is morally reprehensible."

James Viator, a professor of state and federal constitutional law at Loyola University School of Law, said the proposal is "cagily written" so if lawmakers "in the year 2525 pass legislation" authorizing civil unions or domestic partnerships, they will be unenforceable and void -- unless the Constitution is changed.

Viator said he doesn't think private contract rights would be affected by the amendment. "A contract is between two or more people, and it is nobody else's business," he said.

But McAuley said the proposal could affect private contracts between an individual and a business if the state has some regulatory control over the businesses or the businesses gets a tax break from the state. He said state benefits to an unmarried couple would be forbidden by the proposal.

If the amendment passes, Louisiana will be the fifth state to constitutionally define marriage as solely limited to "a union of one man and one woman," and the second state to adopt a ban on same-sex unions since the Massachusetts Supreme Court ruled last year that its state constitution mandates marriage equality for same-sex couples. Missouri voters in August approved an amendment banning same-sex marriages by a margin of 70 percent to 30 percent.

Charlotte Bergeron, a Public Affairs Research Council analyst-attorney who researched the council's report on the proposal, said 11 other states will vote on similar amendments on the Nov. 2 presidential ballot.

"We are in line with what the majority of the other states have drafted for their amendments," Bergeron said.

. . . . . . .

Ed Anderson can be reached at eanderson@timespicayune.com or (225) 342-5810.

 

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