The Freedom to Fail

On the eve of my realization that I was again single, I invested in my future to someday marry someone I have yet to meet. Last night, I attended the political fundraiser for the "No Nonsense in November" campaign to defeat next month's proposed Texas state constitutional amendment. This mean-spirited amendment takes the current state law against gay marriages and goes several steps further. More on this point in a second. I'm no lawyer, and I don't mean for my disclaimer to be disparaging of my lawyerly friends, but I've developed a layman's viewpoint on this issue that I'd like to share. I encourage you to discuss this viewpoint with better qualified individuals to develop your own viewpoint. But more importantly, I urge you to discuss it with your straight friends, acquaintances, co-workers, and family members. The proposed language needs MANY readings and discussions in the public forum before we can hope that the people of Texas, regardless of their political affiliation or stance on gay marriage, will do the right thing.



Don't Preach to the Choir

Although I've been "out" for years, there are still plenty of people in my professional world that don't know me as a gay man. This proposed amendment has prompted me to come out to some select colleagues so that I could discuss the amendment with them. Most of these colleagues are executives in various companies who respect me and my work. A surprising number of them are Republicans. Many of them had probably guessed that I am gay, though until recently, the fact remained irrelevant and unconfirmed. I doubt any of them would want to see injustice come my way. The feeling is mutual. This professional mutal respect was the basis for coming out and discussing an amendment I feared my colleagues would inadvertently support unless they discovered that it hurt someone like me.



Plan B

Texas already has a law on the books that limits marriage to men and women. As a result, gay people with property (many of us), with children (increasingly more of us), and with concerns about who gets to make medical decisions about us when we're unable (all of us) have had to come up with Plan B. This plan means hiring a lawyer and constructing a series of contracts, wills, trusts, and powers of attorney that more or less confer upon us the same rights and protections that legally married people automatically enjoy when they purchase a $41 marriage license. Our "license," on the other hand, costs about $10,000. As result, few of us can actually afford Plan B and risk uncertain futures should the following situations arise:



If you die, will your joint property transfer to your partner, your family, or your partner's family? What about your personal property?



If you die, will your children remain in your partner's custody or will they go to your family, your partner's family, or worse, the State?



If you become unable to make medical decisions about yourself, will these decisions be made by your partner, your family, your partner's family, or the court?



Perhaps these questions are less meaningful if you, your partner, and your families are on the same page. But what happens if you're not? It's for these very reasons, that marriage is useful in automatically addressing the critical, but often ambiguous post-life decisions for straight people. Simply put: the spouse decides. But recently, in a famous national example, we saw a man and his wife's family caught in a tragic dispute over the disposition of her comatose life. Rightfully, the court sided with the spouse. What would have happened if this were a gay couple? As you can see, these post-life issues matter and engaged our country in a national debate. Do you want your post-life issues to be decided by national opinion, or would you prefer that they are decided by your partner? If the latter, hopefully you can afford Plan B's $10,000 price tag. If you can't, then things may not go as you intend.



What the Amendment Does

I'm concerned that the proposed constitutional amendment is a direct attack on those who can't afford Plan B (most of us). Here's the language from the amendment that concerns me:



BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article I, Texas Constitution, is amended by
adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of
the union of one man and one woman.
(b) This state or a political subdivision of this state may
not create or recognize any legal status identical or similar to
marriage.

SECTION 2. This state recognizes that through the
designation of guardians, the appointment of agents, and the use of
private contracts, persons may adequately and properly appoint
guardians and arrange rights relating to hospital visitation,
property, and the entitlement to proceeds of life insurance
policies without the existence of any legal status identical or
similar to marriage.




Great, if you can afford Plan B, then hopefully every anti-gay marriage homophobe in the state will obey SECTION 2 of this constitutional amendment, if they're aware of it. Fat chance. How long did it take for the South to obey the Emancipation Proclamation? 100 years? Not yet? How long did it take before the United States Supreme Court and the Administration to move decisively to end racial discrimination? And is the work over yet? How many lives have been ruined in the interim?



Now imagine your life in the aftermath of this amendment. Can you see yourself quarreling over constitutional interpretation with a nurse while your partner lies on the other side of a locked door? How about engaging an ignorant child protective services officer in a debate as they take your son? Perhaps you can sue your partner's family before they are able to sell your home out from under you? Perhaps you have many thousand more dollars to spend in order to protect your $10,000 investment in private contracts.



This proposed amendment is hurtful because it sends the wrong message to the people of our state that want to hurt us because they disagree with us. These people will not read the language of this amendment. They will not respect Section 2. They will only remember their victory over fags and dykes and it will fall to us to engage them in the corridors of hospitals, state agencies, court houses, and mortuaries when we are at our weakest, when we have lost our loved ones. We need to deny them this victory while we are strong. We need to discuss this unjust amendment outside of our normal circles. We need to help straight people understand its unfairness before we allow this amendment to intensify the discrimination we are already facing.



While the amendment and the contract challenges may not withstand ultimate judicial scrutiny, the suffering and loss endured by gay people who've had their will and intent countermanded by homophic meddlers in their personal affairs will be real and possibly irremediable. Keep in mind, that until recently, Texas carried discriminately-enforced anti-sodomy laws on the books. Gay civil rights advocates actively pursued decriminalization because it had been used as justification by many employers for workplace discrimination against gay employees. There's no limit to the creativity that homophobes will employ to suit their needs at the expense of gay people.



In Summary

Texas already has a law on the books that defines marriage. This amendment unnecessarily reiterates the law. I'm afraid that we are setting up our state's court of last resort as no refuge from future injustice against the gay citizens of Texas. If we can't solve our problems at the state level, for those of us that cannot afford the pricetag of equality, are we ceding control over our lives while we wait years or decades for possible Federal intervention?



My relationship recently ended. We entered into it willfully and somehow, as many seem to do, we bungled it. We did not have the choice to get married. Perhaps if we were married, we'd still be together trying to work through it. Who knows. Most marriages fail. We had the option of Plan B, and although we could have afforded it, it wasn't appropriate for us. But for many others, Plan B is not an affordable option. So these people in love will willfully enter into a committed relationship that will ultimately end, if only by death. More likely it will end by the myriad mundane ways that lead most marriages and committed relationships to fail. What happens then will be determined by you in November.