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ACLU: Amendment 2 - a futile effort to delay the inevitable

By HOWARD L. SIMON

The vote approving Amendment 2 -- the so-called marriage-protection amendment -- was a devastating but temporary setback for the cause of equal treatment for all.

By a 1.9 percent margin, Florida voters prohibited allowing same-sex couples the opportunity to have their relationships legally protected, denying the religious institution of their choice the authority of law "invested in the institution" to bless the relationship. Arizona and California also voted to add a ban on same-sex marriage to their state constitutions.

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 that their mission is accomplished; marriage has been protected. But none of the economic and social pressures on marriage that have resulted in the terribly high divorce rate have been addressed. That would have been an honest program to "protect marriage."

It remains a mystery how the institution of marriage is "protected" by denying the right of some people the ability to enjoy its benefits.

Despite its passage, Amendment 2 does not bar health or other benefits that same-sex couples currently receive from public or private employers. Neither 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 that is different, but shares similarities with earlier struggles to make the Constitution's promise of equality a reality for women, for racial minorities, for people with disabilities -- for everyone.

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 among same-sex couples.

The world is changing. 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; Ontario, several northern Europe countries, Spain, South Africa and, as of this writing, Massachusetts and Connecticut, allow same-sex marriage. New York and Rhode Island recognize such marriages that are conferred elsewhere.

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 whom adults can marry with as much bewilderment and embarrassment as we now, shamefully, wonder how we allowed government the power to ban interracial marriage. 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 of Miami is executive director of the American Civil Liberties Union of Florida.

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