Zach Ford at ThinkProgress reported today that Kentucky state representative Joe Fischer (R-of course) is taking a novel (and certain to lose) approach to evading the consequences of Obergefell v Hodges, the Supreme Court decision mandating nation-wide marriage equality. Fischer’s approach, designated as HB 572 and rather ironically titled the “Matrimonial Freedom Act” is contained in a monumental 454-page piece of legislation, which creates a regime of “matrimony.” Same-sex couples would be given access to marriage but only different-sex couples would have access to state-defined “matrimony.”
Before I go further, let’s think back just a little bit, all the way to the year 2000 when Vermont, thanks to a ruling by the state’s Supreme Court, decided to begin granting gay and lesbian couples access to civil unions. Vermont became the first state to create a legal regime intended to give gay and lesbian couples access to the rights and responsibilities associated with marriage while reserving the term “marriage” for heterosexual couples. There were, I believe, some state-level distinctions to civil unions as compared to marriages but the main difference rested in the fact that civil unions were accorded no federal recognition whatsoever. At the time, the state’s decision to create a separate-but-more-or-less equal regime for gay/lesbian couples was hailed as remarkable progress.
California’s domestic partner law, enacted a year earlier without being prompted by a court decision, initially provided a more limited set of rights and responsibilities to same-sex couples (and to opposite-sex couples at least one of whom was 62 years old or older who, mainly for prudential reasons such as loss of survivor benefits coming from a prior marriage, were unable or unwilling to marry each other but who needed state-level legal recognition of their relationship for purposes of care and mutual commitment). That law was later expanded so as to be recognized, at state level, as the legal equivalent of marriage and in fact when 2008’s Prop 8 was challenged in court, the state supreme court upheld Prop 8 using the explanation that the existing domestic partnership law granted same-sex couples the right to everything except use of the word “marriage.” This was of course a decision at odds with reality but the court was able to use the appearance of equivalence to essentially boot the challenge to Prop 8 to the federal courts.
As I noted in the title, one of the common themes of the anti-equality crowd has been and in some circles still is that by attempting to give gay and lesbian couples access to civil marriage on equal terms to heterosexual couples, the pro-equality movement was attempting to “redefine marriage.” Like the California Supreme Court’s decision on Prop 8, this was likewise an argument at odds with reality and federal courts up to and including the Supreme Court soon wisely and (we hope) permanently rejected both arguments first in 2013’s Windsor case which struck-down Section 3 of the US Defense of Marriage Act and again in 2015 with Obergefell which as I’m sure most here know mandated that all states same-sex couples access to civil marriage on precisely the same terms as it is available to opposite-sex couples.
Here’s what’s interesting about Fischer’s proposed bill:
The bill is over 450 pages long because, once it defines “matrimony,” it proceeds to add the term throughout all of Kentucky law. For the statutes that define the basic parameters of marriage, duplicate language is added defining “matrimony” by the exact same parameters. But anywhere that the law outlines a privilege, benefit, or responsibility previously made available to marriage, the word “marriage” is replaced by the word “matrimony.”
As Ford notes:
A cursory glance at the long bill suggests that it effectively removes all marital rights from every possible state statute, from parenting rights to insurance rights and so on — reserving these privileges only for couples that have “entered into a matrimony.”
The result is that “marriage” is redefined in such a way as to grant those who obtain a Kentucky marriage license nothing more than a meaningless piece of paper. So who’s redefining marriage now? Is it gays and lesbians or is it a teabagging right-winger who knows or should know that the US Supreme Court has ruled on multiple occasions that a separate-but-equal regime is not equal at all and never will be (and more to the point will not pass the scrutiny of the federal courts) and that creating differential legal statuses that exclusively and adversely affect an identifiable class is Constitutionally impermissible?
Over at The New Civil Rights Movement, (which links to Ford’s TP post and which is where I stumbled upon it originally) writer David Badash calls out the depressing fact that the Commonwealth of Kentucky currently has the highest rate of student homelessness in the nation. He also notes that Kentucky has the fourth highest poverty rate in the country and that the state also ranks number 28 in terms of child food insecurity (which Badash succinctly translates as “not knowing where one’s next meal is coming from). Badash doesn’t mention this but the report to which his article links notes that the situation is even worse when it comes to overall food security. By that measure Kentucky is number 17. Finally, Badash observes that Kentucky ranks 43rd in the nation in terms of adult literacy. With such pressing problems it’s fair to ask why ANY legislator would waste his or her time introducing legislation the express intent of which is to disadvantage a certain group of people rather than working towards improving the lives of constituents whose lives could certainly go for some substantial and tangible improvement.
On Tuesday, South Dakota Governor Dennis Daugaard (R), vetoed legislation which would have prohibited transgender students from using rest rooms or locker rooms that aligned with their gender identity. This was rather remarkable coming from a hard-right Republican. In his veto statement, Daugaard broadly hinted that he knew the state would lose any resulting lawsuits and would consequently be on the hook for substantial legal costs. If Mr. Fischer isn’t sufficiently intelligent to understand what his proposal might cost Kentucky, let’s hope his colleagues have a bit more sense.