The Long Arm of the New Laws

On the surface, the recently passed constitutional amendments to ban marriage equality in Florida and Arizona and the measure to outlaw adoption by unmarried couples in Arkansas promise obvious harmful effects for LGBT residents. But look closely, and the laws also hold negative implications for unmarried straight couples, and potential consequences for vulnerable groups like children, domestic violence victims, and seniors.

"These amendments are nefarious not only because of the things they clearly do; they also create uncertainty about what's left on the table," says Sharon McGowan, staff attorney with the ACLU Lesbian and Gay Rights Project.

Take Florida, where same-sex marriage was already illegal. Voters passed Amendment 2 -- which constitutionally defines marriage as a union between a man and a woman and outlaws any relationship treated as "the substantial equivalent thereof" -- by 62%. While supporters said Amendment 2 was necessary to prevent judges from overturning the state law, it could affect an estimated 400,000 unmarried couples in Florida, the vast majority of whom are heterosexual.

"I don't know what 'substantial equivalent thereof' is," says Matthew Dietz, chair of the equal opportunities law section of the Florida Bar. "It all depends on how this is interpreted." Based on other states' experiences, gay couples in Florida have reason to worry about benefits and protections like health care and hospital visitation rights. In Michigan, which passed a similarly worded amendment in 2004, the supreme court later ruled that public universities and government agencies cannot offer benefits to employees' same-sex partners.

Also endangered are Florida's seniors. Many have partners but do not marry because of concerns about losing their Social Security and pension benefits. "The problem for a lot of seniors is that if they remarry, they would lose their widows' pensions," says Michael Kenny, deputy campaign manager for Florida Red and Blue, which fought against the ban.

Less obvious are the potential dangers for domestic violence victims when heterosexual marriages are the only valid relationships. When someone seeks a restraining order against their partner, judges often cite domestic partnerships as evidence of the relationship. "In domestic violence cases, there has to be a recognized relationship," Dietz says. "Otherwise, [defendants] can say the statute does not apply."

Arizona passed a more straightforward ban. Prop. 102 amends the constitution to say, "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." The narrowly focused language is expected to have limited implications in Arizona. Like Florida, the state already had a law banning same-sex marriage.

But the measure's passage did accomplish something. More than $7 million was raised, mostly by supporters. That kind of fund-raising indicates that gay marriage is still a hot-button issue two years after the failure of a similar proposition. And then there's the immediate effect on the political landscape. The amendment may have helped Republicans maintain their majorities in both chambers of the legislature, which likely complicates efforts to pass gay rights legislation.

Gay and straight unmarried couples in Arkansas are affected by Proposed Initiative 1, which passed by 57%, barring cohabiting couples of any sexual orientation from adopting or fostering children. Singles -- gay or straight -- may still adopt, although it remains unclear what will happen if they later move in with a partner. The measure could have devastating consequences for at least 1,000 Arkansas children who need adoption now.

"Even people who qualify may not want this kind of scrutiny of their lives," says Debbie Willhite, executive director of Arkansas Families First, which was against the ban. "I don't think that anyone here fully understands the breadth of the implications."

Some less anticipated but common questions include whether parents can will custody of children to a cohabiting couple and whether young adults, if cohabiting, can adopt younger siblings once they leave foster care. In the long run, the success of the measure may also inspire attempts to limit adoptions by gay people in other states.

"We've long known that with the success in passing marriage bans, adoption would be the next target," says Abby Rubenfeld, a family law attorney in Nashville. In fact, given the potential for harm, many prefer to classify these measures as part of a purposeful, nationwide campaign.

The insidiousness of these measures does not lie in their unintended consequences, says Evan Wolfson, executive director of Freedom to Marry: "It's the bait-and-switch hidden agenda behind these amendments."