Wednesday, April 9, 2008

Building a Firewall: The Unconstitutionality of SB 1250 (The PA Marriage Protection Amendment)

April 9, 2008

Testimony on Senate Bill 1250, a proposed marriage amendment to the Pennsylvania Constitution

Wendy Lynne Lee, Professor, Department of Philosophy
Bloomsburg University of Pennsylvania
Bloomsburg, PA USA 17815 (

First, please allow me to introduce myself: My name is Wendy Lynne Lee and I am a professor of philosophy at Bloomsburg University of Pennsylvania where I have taught for nearly sixteen years. My primary interest here, however, is that of a citizen. In my view, the Pennsylvania Marriage Protection Amendment (SB 1250) is premised on faulty if not disingenuous reasoning, a distortion of the Pennsylvania Constitution, a paucity of substantial evidence, and an obvious violation of the separation of church and state. It is, in effect, an attempt to build a constitutionally enforceable firewall against an unconstitutional law (PA-DOMA).

As The Support Center for Child Advocates (Philadelphia) makes clear in its March 13th testimony, such an amendment may function to deny legal protection for partners and their children in cases of domestic violence (as has already occurred in Ohio), and could have direct and damaging effects on an already struggling Pennsylvania foster care system. Moreover, SB 1250 could restrict “[a] child’s access to health insurance, medical care, Social Security, and pensions.” “At a minimum,” they go on to argue, “domestic partner benefits—and thus the benefits available to the children of the domestic partner—would no longer be available to any state or local government employee, nor the employee of any contract agent, government agency, or recipient of government funds!”

First to the amendment’s logic: Pennsylvania already has DOMA (Defense of Marriage Act) statutes. But, as is made clear on the amendment’s promotional website (, the proponents of the current law do not regard it as immune to law suit. In fact, they specifically claim that “[i]t's true that Pennsylvania, like 37 other states, already has a law which limits marriage to one man and one woman. Legal experts agree, however, that in the event of a lawsuit, the DOMA is likely to be overturned or struck down. It is also possible that court rulings at the national level could render such laws "unconstitutional"; an amendment to the state constitution is much more likely to withstand such challenges.” In other words, the aim of the amendment is to build a firewall in case of a lawsuit that would challenge the constitutionality of PA-DOMA. The sponsors of the amendment know that the current law is unconstitutional, and that this is why it’s unlikely to withstand challenge. So, the only way to insure that marriage remain an exclusively heterosexual institution is to amend the constitution itself. That the amendment’s proponents place the term “unconstitutional” in scare quotes only serves to underscore their view that the Pennsylvania constitution is bound to recognize only heterosexuals as full citizens and only heterosexual unions as meriting the privileges and responsibilities of specific social contracts, namely, marriages. Such manipulation is clearly inconsistent with the very concept of a constitution, leaving it open to the further erosion of its guarantees.

Second to its paucity of substantial evidence: Contrary to the religiously motivated rhetoric of the Pennsylvania for Marriage website, no evidence supports the claim either that gay unions endanger heterosexual unions or that children raised by gay parents are likely to suffer trauma on that count. That some children of gay parents are stigmatized or even bullied in a society that continues to discriminate on the basis of sexual orientation shows only the extent to which bills like SB1250 are likely to harm children and their families by reinforcing—indeed legitimating by constitutional amendment—second class citizenry. The bill’s proponents know that this is why the current law will not withstand constitutional challenge, but are effectively willing to allow, if not actively encourage, discrimination and its attendant harmful consequences for families and their children in the interest of enforcing a narrow and religiously proscribed definition of marriage on Pennsylvanians. The very title of the website offers a telling clue—Pennsylvanians for Marriage—implying that there is only one configuration of marriage that counts, and that whomever would oppose such an amendment opposes marriage per se. That the bill includes an addition to outlaw civil unions (SB 2381) further attests to this intent.

Third, to its violation of the separation of church and state: That the Protect Marriage Amendment’s motives are religious—despite the careful choreographing of the website to avoid overt religious references—could not be clearer. It’s no accident that many of its endorsements come from churches and other religious organizations. Its proponents claim that “if same-sex relationships are legally recognized, schools will be forced to change curricula to reflect homosexual role models and same-sex parenting as normal and acceptable. Parents will lose control of their children's moral education.” This passage, one of many like it, assumes without evidence or argument that homosexual role models are immoral and that same-sex parenting is abnormal and unacceptable. Its aim is to fear monger on the unsupported assumption that gays and gay marriage endanger the “traditional” family.

This reasoning is without justification: Sexual orientation is irrelevant to parenting skill, and as even the most cursory tour of family composition in the United States and elsewhere amply demonstrates, the nuclear, male-headed household does not have a monopoly on successful family structure. Moreover, the burden of proof to demonstrate that gays and lesbians are not adequate parents falls on the bill’s proponents, not on gay and lesbian parents.

That the amendment’s proponents site no fault divorce as an unqualified failure should send a very cold chill up the backs of women whose only escape from violent marriages are no-fault divorce laws. As, moreover, University of Pennsylvania law School Professor Tobias Barrington Wolff makes clear in his March 17th 2008 testimony,

SB 1250 threatens to write into the PA Constitution a license for deadbeat spouses to flee to Pennsylvania in order to avoid their alimony obligations; for disgruntled parents to disrupt the results of child custody resolutions; and for reckless individuals to use Pennsylvania as a safe haven to escape paying their judgments when their actions cause the wrongful death of a same-sex partner. I cannot imagine that any member of this body intends these results, but the amendment invites these bad public policies and even more.

The real motives behind the amendment are in fact to define a civil contract in terms of a religious institution; why else ban civil unions in addition to gay marriage? What makes the proponent’s arguments particularly onerous, however, is that the arguments in support of the so-called unnaturalness of homosexuality have been so thoroughly discredited, and for so long, that it demands nothing less than willful blindness to ignore them. This amendment erects a second-class citizenry in Pennsylvania; it overtly discriminates against citizens, their families, and their children. Professor Wolff makes the point clear in its constitutional context: “[DOMA] takes one class of citizens and (gay men and lesbians) and deprives their relationships, and only their relationships, of equal treatment under the full faith and credit clause [of the federal constitution].” SB1250 is rightly compared to laws that denied marriage across color. Yet, when I queried one legislator directly as to why he has sponsored this bill, his response was that it was the will of his constituents. Would he find this answer acceptable were the amendment to deny marriage across color? I doubt it.

Moreover, the additional amendment to outlaw civil unions clearly endangers current domestic partnership provisions in our and other union contracts. Domestic partnerships are civil unions; to outlaw one is to deny the enforceability of the other. As ACLU representatives make clear in their response to SB1250:

There is significant confusion and disagreement over the interpretation of constitutional amendments that go further than a simple, clear, and concise prohibition on same-sex marriage. The Michigan constitution was amended in 2004 to include this language: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Michigan Constitution, Article 1, Section 25. The Michigan Court of Appeals has held that this amendment bars state entities from providing health care benefits to domestic partners of state employees. National Pride at Work v. Governor, 274 Mich. App 147, 372 N.W. 2d 139 (Mich. App. 2007). The court found that “the operative language of the amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union.” (From the ACLU Senate Judiciary Committee Testimony)

Kentucky has also followed the Michigan precedent: “The Attorney General said that the state cannot provide domestic partner healthcare benefits without violating that state’s marriage amendment” (ACLU testimony). A similar case can be found in Idaho. As the ACLU representatives go on to make clear, the Philadelphia domestic Partnership law is in no way immune from being overturned:

Opponents of the Philadelphia Domestic Partnership Law have already tried to have it overturned once in the court. (They were largely unsuccessful as the Pennsylvania Supreme Court ruled against them in 2004 in Devlin v. City of Philadelphia, 862, A 2d 1234). Were this proposed amendment to become part of Pennsylvania Constitution, we would expect another challenge to the Philadelphia law as well as other local laws and that we would see arguments based on this amendment.

Obviously, this is a significant union issue given the recent inclusion of domestic partnership benefits within my current APSCUF contract.