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Marriage Protection From What?--A Commentary by William Eskridge, Jr. and Darren Spedale

The following commentary appears in the June11 issue of The Hartford Courant.

Marriage Protection From What?
Arguments for supporting failed amendment banning gay unions just don't hold up to scrutiny

By William N. Eskridge Jr.
and Darren R. Spedale

Last week, the Senate killed the Marriage Protection Amendment for this year. If eventually ratified, the amendment would add language to the U.S. Constitution defining marriage as "the union of a man and a woman" and providing that neither federal nor state constitutions can "be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

The president and Republican senators support the Marriage Protection Amendment. Although this "coalition of the willing" fell short in the Senate by a significant margin, the amendment is likely to be dragged up again - particularly when Republicans need to shore up their conservative base. So let's examine the arguments for it.

Have "activist judges" taken the marriage issue away from the people? The president says the amendment is needed to prevent "activist judges" from imposing gay marriage upon unwilling populations. Where? The Massachusetts Supreme Judicial Court required same-sex marriage recognition, but the people can amend the state constitution through a referendum process. Such an attempt is already underway. Massachusetts will probably not amend its constitution, because its citizens haven't seen any negative effects from gay marriage; in fact, 55 percent of the voters say gay marriage is OK.

Nineteen states have amended their constitutions through such a popular process. Although the president says that federal trial judges have struck down constitutional amendments in Nebraska and Georgia, those amendments barred not only same-sex marriage but also judicial enforcement of domestic partnership and, possibly, ordinary contract rights previously available to lesbian and gay couples.

If you are worried about activist judges, worry about the Marriage Protection Amendment. Unelected, life-tenured federal judges would have unfettered discretion to interpret the new constitutional language broadly, conceivably to take away civil unions and domestic partnerships granted by state legislatures. State judges, most of whom are elected, will better reflect local sentiments than life-tenured federal judges.

Is traditional marriage in peril? Yes. Not long ago, almost everyone married, and the marriages were usually for life. No more. The law has contributed to the decline of marriage through such recent modifications as no-fault divorce (which makes marriage easy to exit) and the common recognition of prenuptial agreements, and by recognizing legal rights and benefits for cohabitating (straight) couples. Rather than scapegoating gays and lesbians as the threat to traditional marriage, society might rethink these modifications.

If Republicans really want to protect "traditional" marriage, they should roll back no-fault divorce or cohabitation, which can be done by ordinary legislation. The Marriage Protection Amendment is carefully worded to protect and therefore entrench the constitutional rights of unmarried heterosexual couples. Indeed, in the hands of federal judges, the amendment might be interpreted to provide new federal constitutional rights for cohabiting unmarried couples, so long as they're straight.

Will gay marriage undermine marriage? No. As proof, we look at the long history of same-sex marriage (as registered partnerships) in Scandinavia. Denmark has been registering same-sex partners since 1989, Norway since 1993 and Sweden since 1995. Marriage Protection Amendment supporters claim that marriage has eroded in these countries as a result of their experiment with same-sex marriage. Our book reports the actual evidence from these countries.

Before Denmark recognized same-sex couples in 1989, the Danish marriage rate was falling, and the divorce and non-marital childbirth rates soared. If the president was right that gay marriage harms the institution, one would expect these trends to accelerate after that country recognized lesbian and gay partnerships.

Yet the opposite occurred: After 1989, the marriage rate increased, the divorce rate fell and the rate of childbirths outside of marriage declined for the first time in decades. Similar but less dramatic trends occurred in the other Scandinavian countries.

State recognition of lesbian and gay unions does not harm the institution of marriage.

Moreover, allowing same-sex couples to marry has a number of positive benefits. We interviewed a wide variety of Danish couples who had registered as partners. They told us how their legal unions deepened their commitment to each other, helped legally protect the children they were raising, enriched their relationships with family members and co-workers, and helped educate the community. One couple even reported that their enthusiasm for marriage inspired their heterosexual friends to formalize their own union in marriage.

Our book documents the numerous social and community benefits from Scandinavian recognition of lesbian and gay partnerships. Because marriage and partnership serve private social welfare functions, legal recognition stands to save the state money. Recognition helps integrate lesbian and gay families into the larger society and helps attract productive workers to the country.

We also found that partnership recognition contributed to the success of Scandinavian programs to prevent AIDS and sexually transmitted diseases.

The Nordic nations have had marriage-like partnerships for 17 years now, and the sky did not fall on marriage. This suggests that the defense-of-marriage argument for the Marriage Protection Amendment is a lavender herring.

William N. Eskridge Jr. and Darren R. Spedale are authors of Gay Marriage: For Better or For Worse? What We've Learned from the Evidence ( Eskridge is a professor at Yale Law School specializing in statutory interpretation. Spedale, an attorney in New York, spent two years in Denmark researching same-sex marriage rights.