A proposed constitutional ban on gay marriage has critics worried about its effect on domestic partnerships, but backers say that's not a valid concern.
BY JENNIFER MOONEY PIEDRA, jmooney@MiamiHerald.com
Although gay marriage is already illegal in Florida, Amendment 2 would enshrine the prohibition in the Florida Constitution, making it nearly impossible for a judge to overturn.
Supporters, primarily conservative and Christian groups, say their goal is straightforward and deserving of constitutional shelter: to ''protect'' marriage by defining it exclusively as a union between a man and a woman. Doing so, they say, would benefit children by promoting a traditional family with a mother and father -- not two moms or two dads.
''Children always fare better when they have a mother and father,'' said John Stemberger, president and general counsel of the Florida Family Policy Council, which is promoting the Yes On 2 campaign. ``We should not, as a matter of law and public policy, create inherently motherless and fatherless homes.''
But opponents say the Florida Marriage Protection Amendment isn't a gay issue, but rather a measure that could negatively affect many heterosexual couples as well.
They point to particular wording in the amendment that they say could lead to unmarried couples -- gay and straight -- losing hospital visitation rights, the ability to make emergency medical decisions, and domestic partner health benefits provided by employers.
The proof, they say, is what has happened in other states where similar amendments have passed.
Since Michigan voters approved a ''marriage protection'' amendment in 2004, the state Supreme Court has struck down domestic partner benefits, including health insurance and pensions. A battle is also under way in Kentucky to eliminate domestic partner benefits for employees of state universities because of similar legislation.
''This amendment says that because marriage is between a man and a woman, nothing else counts,'' said Derek Newton, campaign manager for Florida Red & Blue, the bipartisan organization running the SayNo2 campaign to defeat the amendment. ``It could take away existing rights and benefits of Floridians.''
`AN OUTRIGHT LIE'
Davie Mayor Tom Truex, who is rallying for the amendment, said such claims are nothing more than scare tactics. ''It goes beyond misleading,'' he said. ``It's an outright lie.''
At issue is the wording of the amendment, which reads, ``In as much as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.''
Florida Red & Blue and a group of attorneys from around the state have criticized the wording, saying it is ''vague'' and could lead to lawsuits challenging shared health plans. The state's largest insurer, Blue Cross Blue Shield, voices similar concerns in opposing the amendment.
Critics object especially to the words ''or the substantial equivalent thereof'' as a catch-all phrase dangerous to civil unions and domestic partnerships.
Nathaniel Persily, a professor at Columbia Law School in New York, agrees.
'The proponents put in the language `substantial equivalent thereof' for a reason, and the reason is that they do not think the law should recognize some other relationship that is not exactly marriage,'' he said. ``Insofar as domestic partnerships can be the substantial equivalent of marriage, then they are also covered by this measure.''
But Stemberger, who led the charge to put the amendment on the ballot through a petition drive, said opponents are overreaching.
''This is about the singular subject of marriage,'' he said. ``The language is very clear, and it defines marriage as a union between a man and a woman. Amendment 2 will have no affect on domestic partnerships.''
Joe Little, a constitutional-law professor at the University of Florida, said that because domestic partnership benefits are similar to those offered to married couples, there will be a gray area in the law that could be raised in a courtroom.
''I don't think it's conclusive in any way,'' he said. ``But I do think it's a legitimate question that won't be answered until the amendment is passed and somebody challenges it.''
Another argument made by critics is that the law would have a negative effect on widowed seniors, many of whom choose to be in a domestic partnership rather than remarry and risk losing some of their benefits, like Social Security or pensions.
That is what concerns Helene Milman, who has been in a committed relationship with Wayne Rauen for 25 years.
The heterosexual couple from Sunrise chose not to marry because Milman, 67, would lose the $13,000 a year she receives from Social Security for being a widow.
Milman and Rauen, 59, registered as domestic partners in Broward County in 1999, when the county passed an ordinance that extended healthcare and other benefits to the partners of gay and unmarried county employees. In August, Miami-Dade County began to offer similar benefits to its employees.
Milman, a former Broward Sheriff's Office employee and a breast cancer survivor, says the registration allowed Rauen to stay with her in a hospital for nearly five hours as she awaited lumpectomy surgery.
''If he didn't have his card showing that we were domestic partners, I would have laid on a gurney, by myself in the hospital,'' she said. ``I would have been alone. That can't be.''
But proponents say the amendment would not interfere with the benefits of seniors and unmarried couples. That's because, unlike wording in similar amendments passed in states where domestic partnership rights have subsequently been revoked, the language in Florida's proposal does not prevent the government or companies from giving benefits to anyone, they say.
''There's a fear element the opponents are pushing aggressively,'' said Jim Finnegan, 74, a supporter of Amendment 2 who lives in Naples. ``But it will not take those rights away.''
Finnegan, a snowbird who divides his time between Southwest Florida and a Chicago suburb, has been campaigning for the ballot measure. He worries that if it fails, the existing state law prohibiting gay marriage would be overturned by a judge and homosexuals would be allowed to legally wed, as they can in California, Massachusetts and Connecticut.
'In the long run, the homosexual activists' objective is to change the culture of America,'' Finnegan said.
Similar proposals are on the November ballot in California and Arizona, but Florida is the only state that requires approval by 60 percent of the voters to rewrite the constitution. Voters in 27 other states already have approved similar measures.
Two statewide polls released Thursday show the amendment close to the 60 percent mark.
A Miami Herald poll showed 59 percent of voters in support, 34 percent against it and 7 percent undecided. A Mason-Dixon poll showed 56 percent for the amendment, 37 percent against it and 7 percent undecided.
Mason-Dixon pollster Brad Coker said he ''would not be surprised'' if the measure passed, thanks to the undecided contingent.
With Election Day nearing, both campaigns will continue to rally for votes at events across the state. They are also relying on TV ads, calls from phone banks, yard signs and mailers.
The opposition has come on strong, with Florida Red & Blue raising nearly $3.3 million -- three times more than Florida4Marriage, the group backing the amendment, according to the Florida Division of Elections.
Although the amendment is billed as nonpartisan, politicians are sparring over it.
Supporters include Gov. Charlie Crist, U.S. Sen. Mel Martinez and state Rep. David Rivera of Miami. Against it are U.S. Rep. Ileana Ros-Lehtinen, former Florida Gov. Bob Graham and Miami Mayor Manny Diaz.
Several local governments, including those of Miami, Miami Beach and West Palm Beach, have passed resolutions against the amendment. Also opposing it are the Broward County School Board, the American Civil Liberties Union and the NAACP.
Across the state, the issue has also caused a fierce debate among religious leaders. Conservatives from many denominations, including Catholic priests and Baptist ministers, support the ballot measure, saying voters should protect what the leaders consider to be the sanctity of marriage.
''We're here to defend marriage according to what the Lord and Bible described from the beginning,'' Guillermo Maldonado, pastor of Ministerio Internacional El Rey Jesús in West Kendall, said during a recent press conference in Miami.
Others in the faith-based community see it differently.
Florida Clergy for Fairness recently launched an interfaith campaign to defeat Amendment 2 on the grounds that it infringes on religious liberties and revokes people's rights.
''We are always looking to make society just, compassionate and equitable for everyone,'' said Kathy Schmitz, interim minister of the Unitarian Universalist Congregation of Miami. ``This amendment moves in a different direction.''