Wednesday, November 7, 2012

Post-election thoughts on the marriage ballot measures

I can't disagree that the ballot box victories for same-sex marriage, including Minnesota's defeat of a constitutional amendment to ban it, are a turning point.  I am, however, troubled by one aspect of the press coverage of these victories.  The anchors and newspapers have repeatedly said that, before last night, every ballot measure against same-sex marriage had been successful.  This is a little misleading.  Voters in Arizona in 2006 defeated Prop 107.

Prop 107 was a constitutional amendment banning both same-sex marriage and recognition of rights for unmarried couples.  The latter consequence was phrased this way:  "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."  The majority of states that ban same-sex marriage also have language like this (generically called "super-DOMAs"), that can mean the end of domestic partner benefits for straight and gay public employees (this happened in Wisconsin) and bans on recognizing any rights for unmarried couples.  (In Ohio, some courts invalidated laws against domestic violence aimed at an unmarried partner because of that state's super-DOMA;  that interpretation was ultimately invalidated by the Ohio Supreme Court).

Prop 107 lost at the polls.  Widely credited for the loss was a campaign highlighting that straight couples would lose domestic partner benefits they had as employees of the cities of Tucson and Phoenix and other public employers.  The benefits were also available to same-sex couples.

Two years later, Arizona voters did approve a constitutional amendment limited to banning same-sex marriage, in other words not a super-DOMA.

So it is true that Arizona voters ultimately rejected same-sex marriage.  But omitting mention of Prop 107 omits an important part of the history of these ballot measures.  The Prop 107 vote stands for the proposition that voters don't believe all couples who can marry should have to marry.  Since super-DOMAs have passed in so many other states, the Arizona defeat is the evidence that there is some resistance to stigmatizing unmarried couples -- gay and straight.

I think news coverage of yesterday's ballot measures should have included this fact.  Instead of saying that no ballot initiative against same-sex marriage had ever been defeated, reporters could have said that before last night only one state had defeated such a measure, and that was when it also banned any recognition of unmarried couples.

As I often write here, I worry that the fight for marriage equality has pushed off the agenda of the gay rights movement any support for same-sex couples who don't marry when it is available.  I actually discuss that extensively in the context of the decision of Lambda Legal to abandon the interests of unmarried straight couples in Arizona who lost their domestic partner benefits.  (See my post here.)

I don't think most people know about super-DOMAs, and I consider the coverage of yesterday's ballot measures that omitted the Arizona experience as a missed opportunity to provide important information.