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No Truce in Sight: Issue One

Thursday, December 2, 2004 at 1:05 PM

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Issue One, which passed by a large margin a month ago and goes into effect today, enshrined marriage in Ohio's state Constitution as the exclusive right of male-female couples. Its passage - and the passage of 10 similar amendments across the U.S. - is the latest maneuver in a war over marriage being fought across the country. And with several protests of Issue One planned for today, no truce is anywhere in sight. ideastream's Cindi Deutschman-Ruiz reports.

Thom Rankin shares a home in Westlake with his longtime partner, Ray Zander, who he plans to marry when - or if - it becomes legal to do so. Rankin sees marriage as a civil right.

Thom Rankin: It’s about equality; it’s about us being treated as equals.

Matthew Spalding disagrees. Spalding is director of the Center for American Studies at the Heritage Foundation.

Matthew Spalding: There is something unequal about the status of marriage in our society, but that’s for a very good reason. It’s a rational, defendable, and Constitutional preference for marriage.

On Election Day, voters in 11 states endorsed his view by passing amendments to prevent same-sex marriage. Ohio’s goes further than most. It doesn’t just restrict marriage to male-female couples, it also forbids the state from creating or recognizing “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” Some have interpreted this as an effort to prevent unmarried couples - gay or straight - from enjoying a variety of benefits. Jeff Gamso, legal director of the American Civil Liberties Union of Ohio, says the ACLU will fight any effort to use the amendment to attack existing law.

Jeff Gamso: Domestic partner benefits, domestic violence law, parentage rights. We will very vigorously defend against those efforts.

But Spalding says the struggle to, in his words, protect marriage, must include revisiting a wide range of laws.

Matthew Spalding: It has to do with children, has to do with adoption. It has to do with taxes and property. It has to do with all the things we’ve called the benefits of marriage.

Meanwhile, the ACLU is considering a direct challenge to Issue One, according to Gamso. It’s a move that would have some precedent. In 1996, the U.S. Supreme Court threw out a Colorado Amendment that sought to repeal existing gay rights ordinances and prohibit such protections in the future. Justice Anthony Kennedy wrote for the majority that Colorado’s Amendment imposed a “special disability” on gays and lesbians alone. “Homosexuals,” he wrote, “are forbidden the safeguards that others enjoy or may seek without constraint.” Gamso says that ruling could be used to challenge the legality of anti-gay-marriage amendments like Ohio’s Issue One. But:

Jeff Gamso: Any time you go to court, there’s always a prospect that you’ll get a horrible result. The law of unintended consequences always has the potential of applying to litigation.

The Heritage Foundation’s Matthew Spalding also is wary of unintended consequences. For him, a horrible result would be something like last year’s ruling in Massachusetts that legalized same-sex marriage in that state. Spalding says the U.S. Supreme Court’s ruling against Colorado’s anti-gay-rights amendment formed a critical basis for the Massachusetts decision.

Given the wide gap between opponents and supporters of gay marriage, can the issue be resolved to the satisfaction of both? Spalding thinks civil unions could be a point of compromise, as long as they’re not constructed to be marriage by a different name, he says.

Matthew Spalding: The common ground evaporates if you assume that the only way we can tolerate individuals is to redefine the institution of marriage.

Thom Rankin also says he favors civil unions, at least as a stepping stone. But Jeff Gamso expects not only that gay and lesbian couples will gain the right to marry, but that same-sex marriage will at some point stop being considered controversial.

Jeff Gamso: For those of us who live long enough, I think same-sex marriage will some day be perfectly well accepted in society. If I think, over time - two steps forward, one step back - we do away with all forms of discrimination.

Rankin says he expects a long, expensive fight.

Thom Rankin: For every amendment that gets passed that promotes inequality, there’s going to be suits and controversy.

And, if history is any judge, the struggle will continue not only in the streets and in the courts, but also in state legislatures and Congress.

Cindi Deutschman-Ruiz, 90.3.

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