Emory Report
November 1, 2004
Volume 57, Number 10


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November 1, 2004
The agenda of 1

Saralyn Chesnut is director of the offices of lgbt life

The issue of same-sex marriage is on many Americans’ minds this election year. We have heard arguments for and against a proposed Federal Marriage Amendment (FMA) that would define marriage as between a man and a woman only. Voters in Missouri and Louisiana already have ratified state constitutional amendments that prohibit same-sex marriage, and on Nov. 2 voters in 11 additional states will decide whether to do the same. Georgia is one of these 11.

Yet Georgia’s Amendment 1 is not really about same-sex marriage, which is already prohibited under Georgia’s 1996 Defense of Marriage Act (DOMA). Support-ers of Amendment 1 purport to be worried about “activist judges” who might overturn the law, but in reality, same-sex marriage is not on the horizon in the state of Georgia. No, even Georgia voters who do not approve of same-sex marriage can—and should—vote against Amendment 1. Here are five reasons why:

1) The Amendment 1 question on the ballot deceives voters.

Georgians will be asked to vote yes or no to the following question on their ballots on Nov. 2: “Shall the Constitution be amended so as to provide that this state shall recognize as marriage only the union of man and woman?”

However, this is the full language of the amendment, as passed by the Georgia General Assembly (SR 595):

“Paragraph I. Recognition of marriage. (a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state. (b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.”

Section (b) above is the problem. A close reading of its second sentence makes clear that its real intent is to prohibit not just marriage, but any arrangement that grants recognition or benefits to same-sex couples and families, from Vermont-style civil unions to employer-provided domestic-partner benefits. It is unconscionable that the full language of Amendment 1 does not appear on the ballot, and that voters will not therefore know exactly what they are voting for.

2) Amendment 1 will deny Georgia citizens in same-sex relationships any of the benefits of marriage, including domestic partner benefits. Many Georgians will lose benefits they already have.

Surveys indicate that while a majority of Georgians oppose same-sex marriage, most also believe that in certain instances same-sex couples’ relationships should be recognized. For example, most believe that if one partner in a long-term relationship is hospitalized, the other should be considered a family member for purposes of visitation and medical decision-making. The language in Amendment 1 admits of no such exceptions. A couple who had been together for more than 20 years would remain strangers in the eyes of the law.

Further, if Amendment 1 passes, employers who currently offer benefits to the same-sex domestic partners of their employees may be obliged to stop. In some cases, domestic partners and their children would lose health insurance coverage or other significant benefits. How would this be good for Georgia or its citizens?

3) Amendment 1 will take away the right of local communities to make their own decisions. It will prevent cities and counties from setting their own benefits policies, as they have traditionally done. It also will take away the rights of workers, unions and employers to freely negotiate contracts.

Under Amendment 1, muni-cipalities and private employers will lose the right to make decisions for themselves about employee benefits, or to negotiate terms of employment. It is hard to see how this squares with the conservative goal of a less-intrusive government. Moreover, business leaders already have warned that businesses in the state will find it harder to compete for the best employees if their hands are tied on the benefits they can offer.

4) Amendment 1 singles out a group of tax-paying Georgia citizens and subjects this group to discriminatory, unequal treatment.

Some argue that the only democratic way to handle controversial issues like those addressed in Amendment 1 is to put them to a vote and let the majority decide. They tend to forget that in a democracy, the rights of minorities must be protected against what James Madison called “the omnipotence of the majority.” Madison put it this way in Federalist No. 10: “[M]easures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

If the Brown v. Board of Education Supreme Court decision had never been issued, for example, and Georgia voters had been asked in 1954 to decide whether our schools would remain racially segregated, the majority almost certainly would have voted in favor of segregation. Because of their larger numbers, the white majority’s prejudice would have trumped “the rules of justice and the rights of the minor party.” Before we decide to subject the rights of any minority to a vote, we should ask ourselves whether we really want to live in a state where members of a minority group have no rights except those the majority group is willing to grant them.

5) Amendment 1 will hurt real people and families.

The rights and benefits that come with marriage are not abstractions; they affect real people and their families. The Government Account-
ability Office (GAO) was recently asked to identify these legal rights and benefits. They identified more than 1,100, ranging from inheritance and taxation to immigration. If people in same-sex relationships are categorically denied these rights and benefits, they and their families will be harmed in some very concrete ways.

I think, for example, of a friend here at Emory—I’ll call her Anna—whose long-term partner died of breast cancer after a lengthy course of treatment and several hospitalizations. Anna’s partner had no employer-provided health insurance. Fortunately, because Emory offers domestic-partner benefits, Anna covered her partner under her policy.

Later, because Emory recognizes domestic partners as family members, Anna was able to take medical leave under the Family and Medical Leave Act to be with her partner in the hospital for the last week of her life. Anna also was eligible for bereavement leave upon her partner’s death.

I try to imagine how Anna’s life might have been different if Emory was prohibited from recognizing domestic partnerships. How would they have paid for her partner’s care? Would she still be paying off the medical bills? Would she still have a job, or would she have lost it when her attendance pattern changed? Or maybe she would have decided she had to keep coming to work to keep her job, even while her partner lay alone in a hospital bed.

I hope I never have to find out.