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Living With Amendment 2

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By HOWARD L. SIMON

Special to the Tribune

Published: November 30, 2008

The vote approving Amendment 2 was a devastating but temporary setback for the cause of equal treatment for all.

By a margin of 1.9 percentage points, voters prohibited the opportunity for same-sex couples to have their relationship legally protected, denying religious institutions the authority of law "invested in the institution" to bless the relationship.

Despite the propaganda, "gay marriage" was not on the ballot. What Floridians approved was a prohibition on the legal recognition of anything "that is treated as marriage or the substantial equivalent thereof." It will take years of lawsuits and countless lawyers to sort out the intended and unintended consequences of this measure.

The forces behind Amendment 2 have said their mission is accomplished; marriage has been protected. It remains a mystery, however, how the institution of marriage is "protected" by denying the right of some people the ability to enjoy its benefits.

Will Battle Move To Court?

Amendment 2 does not bar health or other benefits that same-sex couples currently receive from public or private employers. Nor does the amendment prohibit hospital visitation, medical decision-making or the right to make funeral arrangements for a deceased loved one.

But should other zealots target these benefits, or should any government agency decide - wrongly - that Amendment 2 prohibits these benefits, we will move this battle from the voting booth to the courtroom.

In America, change that matters always faces resistance; its path is never smooth or easy.

America is in the middle of a civil rights revolution. The current revolution is different, but it shares similarities with struggles to make the Constitution's promise of equality a reality for women, for racial minorities, for people with disabilities - for everyone.

We've Come A Long Way

It is important to appreciate how far we have come, and how quickly.

Thanks to even a very conservative U.S. Supreme Court, it is no longer a crime to be gay in America. Within 17 years (from Bowers v. Hardwick in 1986 to Lawrence v. Texas in 2003) the Supreme Court reversed itself and declared that states could not criminalize sexual intimacy by same-sex couples.

The forces behind Amendment 2 can delay the inevitable, but they cannot stop it.

Soon, same-sex marriage will be legal and ordinary. It is already happening - Canada, several northern European countries, Spain, South Africa, and Massachusetts and Connecticut allow same-sex marriage.

Bigotry and prejudice frequently ride in on a horse of high-sounding moral principles. Sometimes even the best leaders can convince themselves that their support for a mean-spirited proposal is based on something other than bigotry and prejudice or animus.

Religious leaders who sold Amendment 2 as "biblically based" public policy need to rethink whether that washes in America. In this nation - the most religiously diverse on Earth - the laws must reflect the fact that we live in different religious traditions, with different interpretations of the Bible, and indeed different bibles.

One day, we will look back on the idea that government could have the power to dictate who adults can marry with as much bewilderment and embarrassment as we now, shamefully, wonder how we allowed government the power to ban interracial marriage - that is, until the U.S. Supreme Court ended the legal basis for that prejudice in the landmark 1967 ACLU case of Loving v. Virginia.

Howard L. Simon is executive director of the American Civil Liberties Union of Florida.

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