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State marriage amendments

To the Kansas constitution

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In this essay, and others, "SSM" means "same-sex marriage."

Text of the Senate Resolution:

SENATE CONCURRENT RESOLUTION No. 1601:
A PROPOSITION to amend article 15 of the constitution of the state of Kansas by adding a new section thereto, concerning marriage. Be it resolved by the Legislature of the State of Kansas, two-thirds of the members elected (or appointed) and qualified to the Senate and two thirds of the members elected (or appointed) and qualified to the House of Representatives concurring therein:

bulletSection 1. The following proposition to amend the constitution of the state of Kansas shall be submitted to the qualified electors of the state for their approval or rejection: Article 15 of the constitution of the state of Kansas is amended by adding a new section thereto to read as follows:
''? 16. Marriage. (a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.
''(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.
''
bulletSection 2. The following statement shall be printed on the ballot with the amendment as a whole: ''Explanatory statement. There is currently no constitutional provision regarding marriage. There is a statute, enacted by the legislature, that defines marriage as a civil contract between two persons who are of opposite sex and declares all other marriages to be contrary to public policy and void.''
''A vote for this proposition would amend the Kansas constitution to incorporate into it the definition of marriage as a civil contract between one man and one woman only and the declaration that any other marriage is contrary to public policy and void. The proposed constitutional amendment also would prohibit the state from recognizing any other legal relationship that would entitle the parties in the relationship to the rights or incidents of marriage.''
''A vote against this proposition would not amend the constitution, in which case the current statute that defines marriage would remain unchanged but could be amended by future acts of the legislature or modified by judicial interpretation.''
bulletSection 3. This resolution, if approved by two-thirds of the members elected (or appointed) and qualified to the Senate, and two-thirds of the members elected (or appointed) and qualified to the House of Representatives, shall be entered on the journals, together with the yeas and nays. The secretary of state shall cause this resolution to be published as provided by law and
shall cause the proposed amendment to be submitted to the electors of the state at the general election in April in the year 2005 unless a special election is called at a sooner date by concurrent resolution of the legislature, in which case it shall be submitted to the electors of the state at the special election.

(Emphasis was not in the original).

This proposed amendment cleared the Kansas Senate and House, and was scheduled for a vote by the general public on 2005-APR-05.

Implications of the amendment to the institution of marriage:

In 1867 marriage was defined as a union between one man and one woman in Kansas legislation. It remained unchanged to the present day. However, that law could be altered at any time by the legislature, either on their on initiative, or after having been ordered to by the courts. In order to make both of these impossible, an amendment was proposed to the Kansas Constitution. Before SSM could be approved in the future, the Constitution would have to be re-amended to allow SSM.

After the amendment was approved on 2005-APR-05, part A of the amendment confirmed that marriage is defined as a union of one woman and one man in the Constitution. This did not change the institution of marriage in the state. It merely reinforced the existing legislation and made it impossible for the legislature to readily change the institution of marriage. It was on this basis that the amendment was promoted to the public.

Implications of the amendment to non-married couples in Kansas:

Little attention was paid to Part B of the amendment, shown in bold above.

Paragraph B simply states that other types of relationships might be recognized by the state. But in recognizing them, the state cannot give them access "to the rights or incidents of marriage." There are typically a few hundred of these rights, obligations, and benefits automatically given to married couples when their marriage is registered. A literal interpretation of Paragraph B would mean that common-law couples could not enjoy any of these benefits. Part B implies that loving, committed couples who are living together, planning for the future, creating a family, etc. who do not happen to be married are denied access to these rights. This applies to every same-sex committed couple in the state, and their children, if any. It also applies to every opposite-sex committed couple and their children.

Some of the hundreds of "rights and incidents" that they may be denied are:

bulletMedical power of attorney.
bulletAccess to protection from abuse orders.
bulletSpecial child-care arrangements
bulletThe right to visit your partner in the hospital.
bulletThe right to make medical decisions concerning treatment of their partner.
bulletEmployee health insurance benefits,
bulletetc. 1

A literal interpretation of the Amendment would affect hundreds of thousands of citizens of Kansas, and even more important, large numbers of children. Strictly interpreted, it would change the legal status of a common-law couple to that of two roommates who are simply occupying the same house or apartment.

Similar amendments in other states have already started to impact loving, committed but unmarried couples:

bulletUtah: Unmarried heterosexual victims of domestic violence are being denied "Protection from Abuse" orders to victims of domestic violence. 2
bulletMichigan: The state has cancelled provisions of a previously negotiated contract with SEIU -- the Michigan Public Employees union. They no longer provide health care benefits to partners of state workers unless they are married.
bulletOhio: Unmarried heterosexual couples are having problems exercising medical powers of attorney. The similar constitutional amendment in that state has been interpreted to bar any person from having medical power of attorney for another unless they are a relative or a married spouse.

The scope of actions against non-married couples is undoubtedly going to expand within each of the states, and from state to state as more jurisdictions pass marriage amendments.

Promotion of the amendment:

From the media reports, it seems that the amendment was being promoted primarily as an anti-SSM measure. For example, meetings held on 2005-APR-03 were reported by the KansasCity Star as follows:

In a Prairie Village church, gay activist Mel White roused a crowd when he encouraged voters to stop the swell of states passing constitutional amendments to ban gay marriage. "Kansas, you can do it," White said Sunday, referring to the ballot issue before voters Tuesday. "You can stop it here. You have a chance to say to the rest of the nation and to a horrified world: 'It won't go here in Kansas'."

But at Memorial Hall in Kansas City, Kan., a crowd rose to its feet as the Rev. Bill Owens said God's word had been dismissed enough in today's world. "We want to tell the forces of evil today who are hell-bent on taking God out of everything that we will not stand by any longer. ? Homosexuality is a sin, and we say it for what it is. We stand on the word of God together."

Results of the vote:

70% of the voters in Kansas voted to amend the Kansas constitution to ban same-sex marriage and strip rights, privileges, and obligations from common-law opposite-sex couples. It was passed with a surplus of 170,000 votes. It will likely take effect on 2005-APR-29. Kansas became the 18th state to pass an amendment of this type. Mississippi's amendment passed by 86%; Oklahoma by 76% and Missouri by 71%. Similar amendments will be on the ballot during 2006 in Alabama, South Dakota and Tennessee.

Reactions:

bulletJoe Wright, senior pastor at Wichita's Central Christian Church was a leading proponent of the amendment. He said: "We felt all along that Kansans would do the right thing, so we're not surprised how they voted. We are just thrilled with the overwhelming numbers." He is reported as saying that amendment supporters may now turn their attention to access to restricting gambling, abolishing the teaching of evolution in the public schools, and restricting abortion access.
bulletBruce Ney, chairman of Kansans for Fairness, a coalition of gay and civil-rights groups said: "One thing I can promise you is that the voices of fairness in this state will not be silenced. We will not stand by and let thousands of our neighbors, friends and relatives live as second-class citizens."
bulletSome of those who opposed the amendment plan to challenge it in the courts. 6

Thomas Witt, field organizer for Equality Kansas -- a group that favors SSM -- said it will be up to the courts to interpret the second part of the amendment. He said: "The people who push this complain about activist un-elected judges, but the only people who are going to be able to figure this out now are un-elected judges. We don't know what's going to happen to Paragraph B, but we do know that it's basically going to give license to any petty official who doesn't like gay families to discriminate."

Was the attack on unmarried couples intentional?

Paragraph A seems to have been the part of the amendment that received the vast majority of public attention by those supporting and opposing it. But Paragraph B -- the section that strips rights away from both opposite-sex and same-sex common-law couples -- will probably have the greatest impacts on families in Kansas. It may result in a profound change to the state culture. It may cause major hardship and a loss of protections for common-law parents and their children. It all depends upon the interpretation of Paragraph B by the courts.

There are two obvious explanations why Paragraph B was worded as it is:

bulletLegislators may simply have been careless in the framing of the amendment. They may have been so focused on attacking SSM and preserving opposite-sex marriage that they did not consider what effect Paragraph B would have on the common-law relationships in the state.
bulletLegislators may have had both a pubic and a hidden agenda. They may have intentionally designed the amendment to have two effects:
bulletKeeping same-sex committed couples at a second-class citizen status and prevent them from receiving any of the special privileges reserved for opposite-sex married couples, and
bulletStripping rights, privileges and benefits from opposite-sex common law couples and their children so that they will be so uncertain and insecure that they will be forced to marry in order to gain protection for their families and the status of first-class citizens.

It is unlikely that the former is the case, because Paragraph B seems a near copy of the original wording of the Federal Marriage Amendment. It is difficult to understand how "B" could not have been intentionally written to have major affects on non-married couples in the state.

References used:

  1. Personal Email titled: "Vote NO on April 5th," received
  2. "Attorney Cites Amendment 3 in Fighting Protection Order," Associated Press, Nov. 15, 2004.
  3. Press Release, Human Rights Campaign, Dec. 2, 2004.
  4. Connie Cartmell, "Marriage Amendment's Impact Felt Around Ohio," Marietta Times, OH, 2004-DEC-18.
  5. Diane C arroll, "Rallies have mixed messages," Kansas City Star, 2005-APR-04, at: http://www.kansascity.com/
  6. Suzanne Tobias et al., "Amendment passes. Gay marriage ban wins 70% of the vote," The Witchita Eagle, 2005-APR-06. at: http://www.kansas.com/

Copyright © 2005 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2005-APR-27
Latest update: 2009-JUN-18
Author: B.A. Robinson

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