October 28, 2006

What the Conservative Base Knows

by PG

As predicted by a Republican who saw the New Jersey ruling that the state must permit either civil unions or same-sex marriage, and said, "Karl Rove looks like Cheshire Cat," the GOP is pushing the Either Vote For Us Or Buy a Toaster for Adam and Steve line in the last couple weeks before the election. This is unsurprising, given how much anti-same sex marriage ballot initiatives* were thought to have helped the Republicans get out the vote in 2004. However, the conservatives who really care about this issue already are grumpy that the GOP didn't put enough effort into a federal constitutional amendment to ban gay marriage, and presumably realize that one more blue state's giving rights to gay people -- and not necessarily rights to the word "marriage," just to the accoutrements thereof -- isn't necessarily good reason to vote for the party that didn't prevent it in the first place.

Speaking of '04 flasbacks...

* Am I the only person who was unconvinced by E. Volokh's arguments against the applicability of Romer v. Evans to these marriage bans? I'm with him on the implausibility of such bans' violating the First Amendment or a right to intimate association, but he dodges the issue often raised when a reddish state with a blue spot passes such a ban -- that is, the inability of government employers to give benefits normally associated with marriage to same-sex couples. If the University of Wisconsin-Madison is prohibited from treating domestically partnered potential employees as "married" for the purpose of giving them benefits, then it stands to lose some talented candidates. A state constitutional amendment that prevents same-sex couples not merely from getting married, but from being treated like a couple in any way except for cocktail party invitations, strikes me as approaching the unacceptable broadness evincing animus that Romer held unconstitutional. Volokh's remark,

Here, the law leaves state and local government free to enact bans on sexual orientation discrimination in lots of contexts. The government only mandates that marriage and similar institutions be reserved for opposite-sex couples; and this mandate is closely tied to the government's desire to reserve the special benefits of marriage for that sort of relationship -- a union of one man and one woman -- that Nebraskans think is particularly valuable to society, and thus particularly worth fostering
misses the point. The law doesn't leave government free to enact bans on discrimination in the grant of benefits to same-sex workers; indeed, it insists that government perform such discrimination itself. Just as Aspen wouldn't be allowed to have an ordinance banning anti-gay discrimination under Colorado's Amendment 2, UW-Madison wouldn't be allowed to grant health insurance coverage to an employee's same-sex partner under an amendment like Nebraska's, which said, not that government never would be required to recognize same-sex unions, but that it never would be allowed to recognize them. To me, precluding others from non-discrimination looks exactly like Romer. I honestly would appreciate someone's poking a hole in my line of thought and showing why it doesn't work, because Romer is such an obvious problem with the anti-same-sex marriage amendments that someone must have come up with a good explanation of why it isn't really a problem.

October 28, 2006 01:54 AM | TrackBack
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