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Marriage amendment is about discrimination

Jeffery L. Bineham

“It is possible to love and respect our LGBT brothers and sisters and stand up for the essential definition of marriage being between one man and one woman, and that’s not about hatred, it’s not about discrimination.” — Rep. Steve Gottwalt, St. Cloud Times, May 10, 2012.

 All politicians describe their actions in positive terms, so it’s not surprising that the author of an amendment to enshrine the prohibition of gay marriage “more permanently in our Minnesota Constitution” would link his effort to love and respect for the people he wants to disenfranchise. And while one might believe he isn’t motivated by hatred, his amendment, should it pass, will place in the state’s most important legal document a justification for discrimination.

In many faith communities, marriage is a sacred commitment ordained by God to create a permanent union between two people, usually one male and one female.  I understand that and for the most part believe the state should not dictate how religious groups define or treat marriage. 

The civil-rights question

But when it comes to public policy, marriage is a contract that encourages a stable union between two people and provides certain legal protections and advantages to the parties who sign it.  It violates common sensibilities about equal rights – not to mention the U.S. Constitution’s 14th amendment, which asserts that no state may deny any person “equal protection of the laws” – to single out a group of people and deny them access to those protections and advantages and, in so doing, to suggest that their committed relationships are less legitimate or less important than the relationships entered into by those in the majority. To single out one group for unequal treatment is a textbook definition of discrimination.

If the state did not issue marriage licenses to anyone, but provided civil union contracts for everyone, then religious groups could keep the term “marriage” and the state could treat straight and non-straight people equally under the law. But if the state is going to issue marriage licenses, then it should not discriminate based on sexual orientation when it does that.

In written correspondence about this issue, Gottwalt has stated he is “not motivated” by “hatred, bigotry, and discrimination,” and that because his amendment is “not meant to offend or deny rights to anyone,” it is therefore not discriminatory. Whatever his motivations might be, the obvious result should his amendment pass will be to place in the constitution a prohibition that says the laws that apply to male-female couples can not be extended to gay and lesbian partners. 

Separating intent from effect

And that’s no small matter.  Minnesota has more than 500 laws that provide to male-female couples rights and benefits that are denied to same-sex couples. How is that not discriminatory? And since the amendment would ensure the continuation of this situation, how is that also not discriminatory?  

I’ll take Gottwalt at his word when he says he loves and respects his LGBT brothers and sisters. But let’s be honest: The effect of his efforts, whatever his intent might be, will be to treat one group of people differently than another group of people, and to do so in a way that provides power and privilege to the group that’s dominant, and denies equal treatment under the law to the group that’s subordinate.

Jeffery L. Bineham is professor of rhetoric in the Department of Communication Studies at St. Cloud State University.

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Comments (26)

  1. Submitted by James Hamilton on 05/14/2012 - 10:11 am.

    Where have I read this before?

    “It is possible to love and respect our [black] brothers and sisters and stand up for the essential [differences between our races] and that’s not about hatred, it’s not about discrimination.”

    Yes, Rep. Gottwalt, if what you propose is to deny a person the rights, responsibilities and dignity inherent in the civil recognition of his or her relationship with another human being, it it about discrimination. It is about the implicit belief that your [presumably] male-female relationship is in some way superior to a same-sex relationship and entitled to separate and superior treatment in the eyes of the law and our society.

    Whether it’s about hatred, I leave to you, because I choose not to make judgments about what lies in another’s heart. I can judge only their words and actions. I find that your’s simply echo those of others throughout history who have found others lacking in some way and, therefore, ineligible for the full benefits of life in a society.

    Vote No in November.

  2. Submitted by Dennis Tester on 05/14/2012 - 11:03 am.

    “I don’t think marriage is a civil right.” – Barack Obama

    Obama’s recent election-year conversion notwithstanding, his pronouncement in 2004 was correct in that marriage is not a civil right. The laws governing marriage are not a federal power and are instead controlled by the states.

    But in addition, “civil rights,” such as the right to free speech, religious freedom, self-defense, etc., are possessed by individuals and not assigned to groups or even couples. The same principle of individual rights applies when trying to invoke the 14th Amendment for the same-sex argument. We are all subject to the same state laws regarding marriage, in that each individual may marry a member of the opposite sex and so no one is being treated differently under the law.

    Banning same-sex marriage would only be discrimination if it involved overturning an existing law that allowed same-sex marriage. And that is not the case.

    • Submitted by Morris Hartman on 05/14/2012 - 12:44 pm.

      Marriage

      Mr. Tester’s absurd argument against marriage equality for same sex couples (“We are all subject to the same state laws regarding marriage, in that each individual may marry a member of the opposite sex and so no one is being treated differently under the law”) reminds me of that old line poking fun at the notion that laws impact everyone similarly: “All men, rich or poor, are equally prohibited from sleeping under bridges.”

    • Submitted by James Hamilton on 05/14/2012 - 02:39 pm.

      We were all subject to the same state laws

      governing voting, citizenship and owning slaves – until we recognized that these laws were based on no more than prejudice against those who were different in some way from the then-majority, be that white, property owning males, white males, or simply whites. Wake up, sir.

    • Submitted by Rachel Kahler on 05/14/2012 - 05:30 pm.

      As usual

      Not the whole story from Mr. Tester. If we ignore the president’s change of heart on the marriage issue, and simply take the conversation you are referring to in its entirety, you’ll find that he did not say what you’re implying. He indicated that marriage as a religiously recognized institution is not a right. And it isn’t. You cannot and should not be able to demand that a church do something for you that they prohibit as part of the religion. However, it is also wrong to deny gays and lesbians the legal rights afforded by marriage as a state recognized institution. He did not imply that state recognized marriage was not a civil right. Quite the opposite. He indicated that gays and lesbians should be afforded the same legal rights as provided by state recognized unions.

      Quite frankly, I don’t think that states should be licensing “marriage,” but rather only civil unions. Leave marriages up to churches, including those that have no problem marrying same-sex couples.

      • Submitted by Pat Berg on 05/18/2012 - 04:20 pm.

        I keep asking this . . . .

        Rachel wrote “I don’t think that states should be licensing ‘marriage,’ but rather only civil unions. Leave marriages up to churches, including those that have no problem marrying same-sex couples.”

        This strikes me as an eminently workable solution. And – assuming that the governmentally-bestowed civil unions carried ALL the same rights and responsibilities regardless of the gender of the couples and that marriage was limited to a church’s “blessing” on that civil union (to be bestowed – or not – according the tenets of whatever church is or is not bestowing it), then what are the pros and cons? Because people seem to really bristle whenever civil unions are mentioned, but what would be the problem with making sure THAT was the contract that provided the rights and protections on committed couples and the institution called “marriage” became a religiously based institution that held no actual legal status?

        The only time I’ve gotten someone to respond to this question, I got directed to a site that discussed the rights civil unions do NOT enjoy. But I don’t believe that’s what Rachel (and others I’ve seen bringing this up) are espousing. If we got religion out of it entirely so that “civil union” was the legal contract – fully endowed with rights – and “marriage” was a secondary religiously-based choice, then what are the pros and cons in the opinion of folks are fighting for this equality?

  3. Submitted by myles spicer on 05/14/2012 - 12:12 pm.

    Oh, the irony of it all

    This (the authors of the amendment) from those who proclaim so loudly “get government out of our lives”. Yet with this (and their sister abortion amendments) they want government to intrude into the most intimate parts of human activity.

  4. Submitted by Pat Berg on 05/14/2012 - 02:37 pm.

    From the article . . . .

    “If the state did not issue marriage licenses to anyone, but provided civil union contracts for everyone, then religious groups could keep the term ‘marriage’ and the state could treat straight and non-straight people equally under the law.”

    In the past I have encountered LGBT people getting very angry when the idea of civil unions has been proposed as a solution, and I must admit to not completely understanding why that is. But – as worded in the quote at the start of my comment – would that not constitute a solution?

    If not, why not?

    • Submitted by Rachel Kahler on 05/14/2012 - 05:35 pm.

      I don’t understand either

      Quite frankly, I agree that marriages should be left up to religious institutions. NO marriage should ever be instituted by the state. Of course, there are plenty of churches out there that are more than happy to help same-sex couples to tie the knot. So, states should stay out of the definition of “marriage” and then also stay out of the churches that perform them.

      Civil unions, then, would be the legal equivalent of state recognized marriages today. Then, the Catholic Church can keep its stupid word. And it had better not bleat when all the other churches get to keep it, and their own definition, too.

    • Submitted by Gail Bumala on 05/14/2012 - 06:13 pm.

      Civil Unions Vs Marriage

      Pat,

      This is a thoughtful question on your part. What Jeff was suggesting was that if ALL licenses granted by the state were for “civil unions” and the term “marriage” was left to the religious realm, then all Civil Unions, which constituted a contract in the state would be equal in all ways. The religious institutions could then perform “marriages” (which could also be civil unions as marriage is now a civil contract as well) to whomever they wished. It would not be considered against the law to refuse to perform those unions they deemed unacceptable, because they would have the protection of their freedom of religion.

      As it stands now, civil unions, which are reserved for those the state does not wish to join in a marriage contract, serves the purpose of providing essentially the same rights as marriages in those states that have them. Unfortunately, the reality is that civil unions do not now bestow identical civil rights or benefits. They are separate and actually not equal. Additionally, civil unions are not recognized by the federal government for provision of federal benefits. If my partner of 23 years were to die, I would not receive any social security benefits. That is why LGBT people reject most ideas of civil unions. What Jeff is suggesting is a fairer solution where all become actually equal in civil life, leaving the religious free to choose to discriminate as their consciences dictate.

      • Submitted by Pat Berg on 05/18/2012 - 04:37 pm.

        Woops!

        I wrote a reply to Rachel above before I finished reading the thread. My bad!

        Thank you for your response. So let’s see if I’m envisioning this correctly – in order for the “civil unions” idea to work, we’d ALSO have to establish a sea change not only in each state, but ALSO at the federal level. For starters, we’d have to get the term “marriage” (and then, perhaps also “divorce”?) out of the legal lexicon entirely and replace it with “civil union” in all useages, in all states, and at the federal level.

        The term “marriage” would then be re-defined (How is this done? Would the churches fight it as being dictatorial intrusion? Not sure how the “battle” here would be framed) as a religious-based observation with no legal recognition beyond the faith tradition which endowed it. (Sort of like baptism I suppose?).

        We’d then have to make sure that everywhere there were previously conferred rights for the thing called “marriage”, that ALL those rights now would be effectively transferred and appy to the contract called “civil union” – again at both the state and federal level. At this point, the religious objections should be “de-fanged” since the religious aspect has been separated from this arrangement. So I guess we’d then be dealing with the silly argument about the necessity of possibility of procreation being part of the contract. You’d think that – removing the moral argument – that should be an easier fight to win at this point.

        So logistically, I can see where this could both be a real help to same sex committed couples, and also a real administrative nightmare to changing not just all the legal definitions, but getting all the different legislative bodies to pass this through the lawmaking gristmill.

        Sigh.

        Maybe we should keep the word “marriage” and declare it comes in two “flavors” – the governmentally-bestowed variety which has no religious trappings and applies to any committed couple and carries ALL the rights and responsibilities at both state and federal level and the religiously-bestowed variety which holds force only within the faith tradition that issued it.

        Nothing is ever simple . . . . . . .

    • Submitted by Dennis Tester on 05/14/2012 - 06:47 pm.

      Because to them, this isn’t about equal legal rights after all

      This is about winning the argument.

      • Submitted by Pat Berg on 05/19/2012 - 09:43 am.

        I don’t accept your answer, Mr. Tester

        There are often nuances to a discussion that are not immediately apparent. I was pretty sure that was the case here, as well, and that is what I wanted to find out. Ms. Bumula was helpful in describing what some of those nuances are.

        So you see, it isn’t about “winning the argument” after all. It actually is about equal legal rights, whether you and all the others who want to deny rights to those who aren’t like you care to accept that or not.

        Thank you again Ms. Bumula for helping me to a better understanding of the complexities of this whole situation. A follow-up comment I wrote (but that hasn’t yet posted at the time of my writing this – has anyone else noticed how slow comments are to post – particularly on the weekends?) outlines my visualization of how complicated this might actually get – assuming I’m understanding this right.

        Now that might be a good “Community Voices” piece for someone who understands the complexities to write: A column that explains why “civil unions” in their current format don’t solve the problem, why and how having a religious component to what our U.S. society calls “marriage” complicates things, and what might be involved in separating that religious component from this thing we call “marriage”. Maybe we’d then have “marriages” (conferred by whatever church) and “civil unions” (conferred by the state and fully recognized by the federal government). Or perhaps – to keep the terminology simpler, we’d have “civil marriages” and “religious marriages” (which would make it easier for people to continue saying “I’m married” and “This is my husband/wife”, etc. Again, all under the assumption that the union conferred by the state holds all the rights and responsibilities as are conferred by our current useage of the term “marriage”.

        Of course, the conservatives will still object. But such a column would be really helpful for the people like me who don’t always understand a lot of the critical nuance (beyond the obvious) that makes this issue so problematic for the LGBT community.

  5. Submitted by Lowell Anderson on 05/15/2012 - 03:17 pm.

    Let me see if I can understand…

    So, if there was a movement to redefine “work” to include watching TV and sleeping, and a Constitutional amendment was introduced to protect the original definition, then that would be discrimination????

    • Submitted by Rachel Kahler on 05/15/2012 - 04:06 pm.

      Hyperbole is a terrible way to make an argument.

      Besides, the English language is a living language–definitions change all the time. The Constitution’s job isn’t to set preconceived notions in stone. It’s meant to organize the bounds within which all laws are made and enforced. The Constitution is no place for a definition–look to a dictionary for that. And since the Constitution provides for equal protection under the law, it’s actually unconstitutional to put amendments within the Constitution that is antithetical to that concept. Thus, putting a definition in the Constitution that results in laws that no longer apply equally to all individuals (gay or straight, black or white, male or female, etc.) is unconstitutional. Even the rather silly example you’ve provided, if it should result in unequal protection under the law.

      Unless, of course, you’d like to repeal the 14th Amendment…

      • Submitted by Lowell Anderson on 05/16/2012 - 08:32 am.

        Answer the question

        But, would it be discrimination?

      • Submitted by Lowell Anderson on 05/16/2012 - 08:41 am.

        Not hyperbole

        I’d say it’s an accurate analogy.
        Changing the definition of marriage is far more radical and has much more potential to destroy the basis of our society than changing the definition of work.
        I agree, the constitution is not the best place to define a word, but when you’re attacked and in mortal danger, you do whatever you can to survive.

        • Submitted by Rachel Kahler on 05/16/2012 - 11:37 am.

          Mortal danger?

          Hyperbole again. The definition of marriage has always been malleable. Your awareness of the “definition” of marriage is simply a snapshot–it wouldn’t be anything like what your great great grandparents would define it, which would be inconsistent with the way their great great grandparents defined it. In other words, you labor under the mistaken belief that your opinion and narrow awareness is superior to that of anyone else’s at this time or any other. It’s a common mistake, but it’s a mistake, nonetheless.

  6. Submitted by Neal Krasnoff on 05/17/2012 - 12:24 am.

    re: mortal danger.

    Rachel Kahler asserted:

    “The definition of marriage has always been malleable.”

    Do you, Miss Kahler, or does Mr. Bineham, or any other person who supports the re-definition of marriage argue for the repeal of MN Stat. 517.02 and 517.03?

    Mr. Bineham asserted:

    “But when it comes to public policy, marriage is a contract that encourages a stable union between two people and provides certain legal protections and advantages to the parties who sign it.”

    Wrong, Mr. Bineham. I will correct your obvious mistake.

    “But when it comes to public policy, marriage is a contract between a man and a women in order to create the basis for a family unit, subsequently procreate, raise the successive generation, and provide certain legal protections and advantages to the parties who sign it.”

    You stand corrected, Mr. Bineham.

    • Submitted by Rachel Kahler on 05/17/2012 - 09:06 am.

      Repeal and a new hyperbole

      You clearly share the gift of hyperbole with your fellows. Amendment is just fine, but let’s take a look at the statutes you recite.

      MN Statue 517.02 refers to the ability of kids to get married as young as 16 as long as they have parental permission. If we must repeal MN Stat. 517.02 rather than amend it, yeah, I’m ok with that. Either you’re old enough to get married or your not. You’re not 18 at 16, no matter what your parents say. Once they’re 18 and of legal age to make that decision themselves, fine. So, ok. Repeal it.

      Regarding MN Stat. 517.03–if it must be repealed instead of amended, ok. It should be replaced with something that looks exactly like it, except removes paragraph 4 under subdivision 1(a) and the entirety of subdivision 1(b). These were only added in 1997–so the precedent for this foolishness is not even old enough to get married (even with its parents’ permission). The adoption language should also be removed–even if it’s creepy for adopted siblings to marry, there’s no reason to prevent the union of individuals that are genetically unrelated.

      • Submitted by Neal Krasnoff on 05/18/2012 - 12:51 pm.

        re: mortal danger.

        hyperbole: exaggerated statements or claims not meant to be taken literally. New Oxford American Dictionary.

        Rachel Kahler stated:

        “If we must repeal MN Stat. 517.02 rather than amend it, yeah, I’m ok with that”.

        Rachel Kahler further stated:

        “Regarding MN Stat. 517.03–if it must be repealed instead of amended, ok…The adoption language should also be removed–even if it’s creepy for adopted siblings to marry, there’s no reason to prevent the union of individuals that are genetically unrelated.”

        Miss Kahler, I am giving you a chance to reconsider and retract before I reply.

    • Submitted by Maria Jette on 05/18/2012 - 01:26 pm.

      Apparently we wouldn’t qualify then…

      Mr. Krasnoff, the marriage I entered into with my husband in 1995 did not include plans to “…subsequently procreate, [and] raise the successive generation,” as you state in your supposed “correction” above. In fact, we successfully avoided parenthood; and as far as I can tell, are still considered married in the eyes of the state of Minnesota.

      The state doesn’t compel its citizens to reproduce. It shouldn’t shock anyone to learn that quite a few straight couples marry in religious ceremonies, intone the solemn promise to welcome children into their lives, and then proceed to avoid parenthood, just as we did. Also, being married and having children doesn’t guarantee that every couple will bother with the “raise the successive generation” bit.

      Our marriage is accurately described by Mr. Bineham’s description, which you’ve quoted. I don’t think our version of marriage is having a negative impact on American society. I can’t imagine how same-sex marriage would, either.

      • Submitted by Neal Krasnoff on 05/20/2012 - 07:30 am.

        re: qualifying

        The fundamental purpose of marriage is to form a union of a man and a woman as the basis for a family, the man and the woman engaging in the procreative act, and raising the successive generation.

        That you and your husband decided not to procreate has no bearing on the definition of marriage, nor that not “every couple will bother with the “raise the successive generation” bit”.

        Marriage is a contract between a man and a women in order to create the basis for a family unit, subsequently procreate, raise the successive generation, and provide certain legal protections and advantages to the parties who sign it.

        The definition stands as correct.

        • Submitted by Pat Berg on 05/20/2012 - 08:36 pm.

          Says who?

          If the very basis for marriage is so inextricably entwined with the idea of procreation (according to who, by the way?), then why isn’t the divorce of a childless couple simply a matter of siging a few documents to dissolve the union and that’s it?

          Could it be because procreation is only PART of that thing called a “marriage”, and that the state is every bit as concerned with the various property rights and legal definitions and so on that the marriage contract involves?

          Seems to me that the state sees much more to a marriage than just procreation. And that the state takes a VERY active interested in ALL the aspects of the union that are affected when the union comes to an end.

          If it’s about much more than just procreation when it ends, then it stands to reason that it’s also about much more than just procreation period.

          You let me know when divorce courts start concerning themselves ONLY with the children of a divorcing couple – if there are any – and I might reconsider your opinion on “the fundamental purpose of marriage”.

  7. Submitted by Neal Krasnoff on 05/21/2012 - 08:11 am.

    Objective truth.

    Marriage – clearly understood across cultures and across history – is defined as a man and a woman joining together to procreate, establish a family, and raise the successive generation.

    Either you believe that as an objective truth or you don’t.

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