hunter of justice

Election Day 2009 preview: Maine and Washington

An analysis by Lisa Keen, from Bay Windows:

In what is being described as perhaps the "narrowest margin ever for qualifying for the ballot," the Washington State Secretary of State’s office announced Monday evening that opponents of gay relationships in that state collected enough valid signatures to secure a ballot measure this November. The measure, which will be known as Referendum 71 or R-71, seeks to overturn Washington’s domestic partnership law, which provides same-sex couples with "everything but marriage."... And meanwhile, the Maine Secretary of State [has announce] that a ballot measure seeking to overturn that state’s newly minted equal marriage law has been certified for the ballot there this November.

Washington: Referendum 71

...Washington Families Standing Together, a group seeking to preserve the domestic partnership law, filed a lawsuit August 27 challenging the Secretary of State’s signature validation process. The lawsuit asked a state court to stop the Secretary from certifying the petitions, contending that the Secretary accepted some petitions that do not meet state requirements. A King County judge refused Wednesday, September 2 to interfere with certification of the ballot measure, and the Secretary of State then certified Referendum 71.

The group seeking to overturn the domestic partnership law, Protect Marriage Washington, also filed a lawsuit -- in federal court -- seeking to seal the petitions from public scrutiny. The group claims that pro-gay activists will harass voters who signed the petitions. The state Public Disclosure Commission has already rejected the group’s request to conceal the signatures and a federal judge issued a temporary order stopping release of the signatures, pending a final decision.

The Washington Secretary of State’s website has been making daily reports about the count process and the lawsuits during the past month as election officials examined each of 137,689 signatures turned in by Protect Marriage Washington. The group needed 120,577 to qualify for the ballot. Early indications suggested the rejection rate of signatures might be high enough to prevent the group from reaching the requisite number. According to the website, the rejection rate on petitions has been about 18.5 percent historically, but Protect Marriage handed in a much smaller number of signatures, meaning it had to reach a rejection rate that was under 12.4 percent to qualify. In the end, its signature rejection rate was 11.8 percent.

And then there’s Maine

Having enough signatures has not been in question in Maine. There, a coalition of groups called "Stand for Marriage Maine" turned in more than twice the 55,000 signatures they needed.... [A] measure to repeal the state’s newly passed marriage equality law has been certified for November’s ballot. That puts the law, which was set to go into effect this month, on hold.

The battle against same-sex marriage licensing in Maine is being led by anti-gay newcomer Bob Emrich, pastor of an independent Baptist Church in Plymouth, Maine -- population 1,257, according to the 2000 census. Emrich is also director of a group he calls the Maine Jeremiah Project, a 501(c)(3) named after a passage from the Book of Jeremiah that urges exiles to pray for "peace and prosperity" in their own city because if the city prospers, "you too will prosper." According to his website, these words call on him to focus on "public policy and contemporary culture."

He’s part of a coalition called Stand for Marriage that includes his group and 10 others. Marc Mutty, director of public affairs for the Roman Catholic Diocese of Portland, Maine, is chairman of the coalition group, that includes the diocese, several Catholic fellowship groups, and several national conservative organizations. Among the latter is the National Organization for Marriage, the Eagle Forum, Concerned Women of America, and Family Watch International.

Since forming its campaign committee in June, the Stand for Marriage Maine coalition has taken in $343,690 in contributions -- 99.7 percent of which has come from only three entities: the National Organization for Marriage ($160,000), the Portland diocese and affiliated groups ($152,000), and the state chapter of Focus on the Family ($31,000).

This unusual concentration of funding -- only a few hundred dollars coming from individual donors -- set off the bells and whistles for one pro-gay California activist. Fred Karger, founder of Californians Against Hate, contacted the Maine Commission on Governmental Ethics and Elections Practices. He suggested it could be a sign that the organizations are "trying to hide the true identities of those contributing to the campaign," which could run afoul of state election funding laws.

Jonathan Wayne, head of the commission, said a ballot question committee, like a political action committee, must accurately report the source of its contributions. He said his commission has asked Karger to "reformulate his request" to provide more specific information before it proceeds. The commission has also given Stand for Marriage an opportunity to respond to Karger’s concerns.

Meanwhile, the key group working against the referendum, "No on 1: Protect Maine Equality," has raised $143,290 -- only $35,000 of which has come from national groups ($25,000 from the Human Rights Campaign and $10,000 from the ACLU). Equality Maine, another group working to defend the equal marriage law, has raised $63,561 -- of which $20,000 came from a national group, the National Gay and Lesbian Task Force....

The Blankenhorn-Rauch peace proposal on marriage

In today's N Y Times, there is a jointly-authored proposal for a compromise on marriage by David Blankenhorn (self-described liberal anti-gay marriage advocate) and Jonathan Rauch (self-described gay conservative). There's probably a good chance that you've already read it, given the placement and the strange bedfellow authors; if not, you should. The op-ed is likely to be the beginning of an effort to build support for this approach. Look for a panel on it later in the spring at Brookings, where Rauch is a fellow.

Blankenhorn and Rauch call for a federal law that would make these changes:

• Recognize as civil unions all same-sex couples who have married or registered in their states for civil unions, and extend federal marriage benefits and duties to this group;
• Condition this recognition on the states according "robust religious conscience exceptions" for religious organizations that object to same-sex marriage; and
• Enact new federal provisions that shield religious organizations from federal law penalties if they refuse to recognize same-sex marriages.

First, credit where credit is due: this proposal will break the ice and hopefully start a useful conversation that focuses on a federal law geared to benefits. And, it cannot have been easy for these two voices to have reached agreement. I credit them both with good faith and good intentions.

That said, I've got problems.

As I’ve said before, I support federal recognition of civil unions as the best next step to take on relationship recognition. And I also support some degree of opt-out, in some situations, for churches/synagogues/mosques and the next concentric circle out of sectarian organizations. But there  are two big pieces of this proposal that I can’t go along with. 

First, if federal law is going to continue to follow state law for the purpose of defining who is eligible when a federal program requires marriage, then it should recognize as marriages  – not as civil unions – the Mass and CT and other same-sex marriages that are legal under state law.  Following the status recognized by the state has always been the federal approach.

If that is going to change, as Blankenhorn and Rauch propose, then federal law should create a federal civil union status - independent of state law - as the eligibility requirement for federal programs. It would, as a federal status, be open to couples who qualify regardless of whether their state of residence recognizes civil unions. And note that I didn't say "gay couples" - a federal civil union status should be open to both straight and gay couples.

Second, satan is truly in the details of their proposal for a “robust” exception for religious belief. It was  striking to me that the op-ed completely omitted any discussion of the impact when non-church (etc) entities – like charities or hospitals with a religious affiliation –  accept public funds. When all of our tax dollars are supporting these organizations, then all of us have a legitimate concern about the services they provide.

Consructing a fair op-out system should reflect the spectrum of American social institutions from the wholly religious faith group or congregation, on one end, to public agencies and the marketplace on the other. We need ways to allow for religious zones in a secular culture, without imposing religious litmus tests on public functions.

The most important aspect of the Blankenhorn-Rauch proposal is that it implicitly establishes what I agree is the right threshold for moving out of gridlock: support for civil unions that are materially equal to marriage, paired with some degree of opt-outs for entities that are thoroughly religious.

I also agree with creating a national legal landscape in which gay couples living in states that recognize marriage equivalents like civil unions can get federal as well as state equality as to the material aspects of marriage.  LGBT rights advocates can still pursue access to marriage itself on equal terms, which I also support, since the difference in designation is obviously intended to function as a signaling device for communicating second-class status. But those battles would be fought against a background and baseline of having had the material benefits already equalized. The outcomes will continue to be different in different states until the Supreme Court weighs in.  Don't hold your breath.

Of course, neither my nor their proposal does anything to deal with legal recognition for non-marriage-like relationships, like those found in extended families or when non-sexual partners make serious commitments to each other (often among elders).  But I have come to  believe that unknotting the marriage issue is a necessary first step.  For better or worse (sorry), I don’t think that we will ever get to the other issues until after the frenetic sugar-high anxiety and  emotion of  the marriage issue seems more resolved than it is now. Once  that  happens, there will be more political and cultural space to think beyond marriage.