Friday, November 12, 2004

Anti-gay rights amendments and ambiguity

Via How Appealing comes this article about concerns over the enforceability of certain legal agreements between same-sex partners. An excerpt:

Kent Ostrander, who led the pro-amendment Vote Yes for Marriage coalition and helped draft the amendment, said that language should not affect individuals' contracts.

And he said amendment advocates "don't plan on tracking things down" and challenging contracts.

This is a rather puzzling statement. I'd be a little surprised if the Religious Right were to start challenging these contract, but that's not really the concern. A gay couple in Kentucky probably isn't overly concerned about Kent suing; what they probably are and should be worried about is a nasty relative suing to throw a will out, for example, on the grounds that their web of contracts and powers of attorney create a "legal status similar to marriage."

It'll probably happen sooner rather than later that a values-voter will sue to take custody of a same-sex couple's child when the legal guardian partner has passed away.

My question is, why have all these amendments been drafted so ambiguously? For one thing, it's a clear invitation to what RRs refer to as 'judicial activism.' Given that legal ambiguity so obviously cuts against their main goal of staunching judicial political power, I can't help but read some nefarious intent into the poor draftsmanship.