Thursday, September 28, 2006

Proposition 107: Protect Marriage Arizona Act

Proposition 107, the "Protect Marriage Arizona Act," is billed by supporters as an act designed to protect the institution of marriage in Arizona. The supporters' website says:
This proposed amendment to the Arizona Constitution preserves “marriage” as only consisting of the union of one man and one woman, and prohibits creating or recognizing any legal status for unmarried persons that is similar to that of marriage.
Arizona statutes already prohibit gay marriage, several times over. ARS 25-101 (C) says "Marriage between persons of the same sex is void and prohibited." ARS 25-112 says that marriages in other states are valid in Arizona, except for those that violate ARS 25-101--so Arizona refuses to recognize gay marriages from Massachusetts, for example. ARS 25-125 (A) says "A valid marriage is contracted by a male person and a female person with a proper marriage license who participate in a ceremony conducted by and in the presence of a person who is authorized to solemnize marriages and at which at least two witnesses who are at least eighteen years of age participate."

Now, I think it's absurd to argue that gay marriage harms marriage, but let's leave that claim aside. Look at the latter part of this proposed constitutional amendment--it says that "NO LEGAL STATUS FOR UNMARRIED PERSONS SHALL BE CREATED OR RECOGNIZED BY THIS STATE OR ITS POLITICAL SUBDIVISIONS THAT IS SIMILAR TO THAT OF MARRIAGE." This is a very vague and potentially very broad statement--"similar to" is a comparative, it comes in degrees. But no degree of similarity (even supposing that it came in easily measurable units) is defined here. The advocates of this kind of legislation have already demonstrated elsewhere that they mean to include civil unions and domestic partnerships in this, whether they involve same-sex couples or heterosexual couples. They could also use this wording to fight against benefits for domestic partnerships, custody contracts, wills, guardianship agreements, and so forth, where unmarried couples are involved. And no doubt they will--this amendment is backed by people like nutty theocrat Len Munsil (his organization drafted it), who opposed the 2001 repeal of Arizona's law that prohibited unmarried couples of the opposite sex from living in the same house or apartment, even if only as roommates.

The exact same battle is occurring in Virginia.

3 comments: said...


Nice blog. It's good to see someone actually digging into the Arizona statutes for a reference. It's true that Arizona law currently prohibits marriage between two people of the same sex, but that was once true of Massachusetts, Canada, and South Africa until the high courts of those governments decided that the law needed to be changed.

Regarding the latter part of the amendment, I'm trying to find an example in Arizona of a status that is both a legal status and, at the same time, similar to marriage.. No one I've talked to has been able to identify one. Do you know of any?

Keep up the good work.

Lippard said...

What about state or local governments that are providing domestic partnership benefits to employees and their unmarried partners, such as health insurance? What about such partners who have adopted children, have formalized domestic partnership agreements, and given each other durable general powers of attorney and health care powers of attorney?

Do you think it implausible that in the event one person involved in such a relationship was incapacitated that family members such as parents who disapproved of that relationship might not appeal to this amendment, if passed, to try to nullify those agreements and obtain guardianship?

Lippard said...

BTW, it wasn't that the courts you mention "decided that the law needed to be changed"--it's that they found the law to be in conflict with constitutional precedent. In the case of Massachusetts, the ruling in Goodridge v. Dept. of Public Health found that the prohibition in the Massachusetts Constitution violated the equal protection clause of the U.S. Constitution's 14th Amendment.

You no doubt disagree with the court's reasoning in that case, but I believe the reasoning is exactly parallel to that in the U.S. Supreme Court case of Loving v. Virginia, which overturned a law prohibiting marriage between people of different races. The burden is on those opposing same-sex marriage to identify an objective and rational difference between those cases--a subjective distaste or appeal to religious dogma is not sufficient.