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Michigan Supreme Court Domestic Partner Benefits Decision Available Online,

here.

REPEAL 16-17 (mail):
Thanks. It will be nice to be able to give an informed opinion.
5.7.2008 7:36pm
Malthus:
Though gay-friendly, I think it great that gays continue to suffer the same disadvantages that singles and hetero unmarrieds suffer. They need to make common cause with us in order to eliminate the nonsense of marriage and marriage preferences, not spend their time trying to get a bite out of the marriage pie.
5.7.2008 7:58pm
Frog Leg (mail):
The three main problems with this opinion are:

1) the opinion ignores the fact that it voids valid contracts unilaterally,

2) the opinion has no sound limiting principle of what constitutes a benefit incident to marriage, and

3) the opinion treats as irrelevant the contrary natures of the petitions and the advertising campaign.
5.7.2008 8:38pm
Nunzio:
The way around this is for the state to ask Congress to include states and municipalities under ERISA, which then would pre-empt this legislation.
5.7.2008 9:23pm
REPEAL 16-17 (mail):
It was fascinating to see the fundamental difference between the way the majority and the dissenters interpreted the Michigan State Constitution in this case. The majority used strict textualism, while the dissenters used originalism.

This meant the majority used the dictionary definitions of the words of Michigan's Marriage Protection Amendment and nothing else. On the other hand, the dissenters used the writings of the group that proposed the amendment to discern that group's intent in proposing its Marriage Protection Amendment.

Both opinions make sense. It all comes down to which style of interpretation you prefer. In this case, textualism won 5-2.
5.7.2008 9:57pm
Oren:
3) the opinion treats as irrelevant the contrary natures of the petitions and the advertising campaign.
I think this is a strike against the disingenuous way it was advertised, not the Michigan Supremes. If voters are dumb enough to approve a referendum thinking it does X when it really does X + Y, what they heck are the courts going to do to stop them?
5.7.2008 10:04pm
Perseus (mail):
The majority used strict textualism, while the dissenters used originalism.

My point exactly that I made on the other thread. I also asked whether even under original public meaning originalism (as opposed to original intent originalism) whether the awkward language opens the door to considering extra-textual evidence in determining the original public meaning.
5.7.2008 11:46pm
Loophole1998 (mail):
I live in Michigan and remember the publicity before the ballot proposal was enacted by the People. Not unsurprisingly, the parties positions were diametrically opposed before the election. The advocates of the proposition (religious conservatives) promised that it would not effect benefits--just marriage. The opponents (Triangle Foundation, i.e. gays) argued that the amendment would, in fact, eliminate benefits.

Because both arguments were being made before the election, I don't think its fair to say that the original intent was to not touch benefits. The intent that matters was the intent of the voters who approved the proposal and made it law, not the intent of the petitioners who got it onto the ballot. If the voters heard both arguments before the election, then it can't be assumed that the voters accepted the petitioners original intent.
5.8.2008 12:27am
shawn-non-anonymous:
This same exact situation is playing out in Florida right now.

The "marriage protection" folks are saying it will not affect benefits. The "gays" are saying it will. The voters will vote (my guess is in favor of "protection") and then act surprised later and claim they were lied to.

It is my belief that this vote is more a referendum on who is willing to tolerate openly gay people in their life and who is not. Or more simply: pro-gay/anti-gay. No one wants to think of themselves as being a bigot or taking employment benefits away from people so they will deny they knew this would happen. When in reality, they just don't care. It'll be an emotional jab of the finger and they'll move on to the next item.

The local media appears to be happy with a "he said/she said" reporting method on this issue. I've not seen any coverage linking the Michigan case to the Florida one.

We're still the state of Anita Bryant.
5.8.2008 11:57am
darelf:
I believe that any Internet based discussion of this topic will be filled with thoughtful and measured responses.
5.8.2008 1:27pm
ejo:
state of anita bryant-actually, has the pro side of the issue of gay marriage ever had a victory at the ballot box? it must rank up there with affirmative action as one of the issues most lost when put to a vote.
5.8.2008 1:37pm
Randy R. (mail):
Loophole: "It is my belief that this vote is more a referendum on who is willing to tolerate openly gay people in their life and who is not. Or more simply: pro-gay/anti-gay. No one wants to think of themselves as being a bigot or taking employment benefits away from people so they will deny they knew this would happen. When in reality, they just don't care. It'll be an emotional jab of the finger and they'll move on to the next item. "'

Bingo. Thanks for cutting through the BS.

ejo: " has the pro side of the issue of gay marriage ever had a victory at the ballot box? it must rank up there with affirmative action as one of the issues most lost when put to a vote."

Yes, ejo, as has been pointed out to you numerous times, Arizona rejected a statewide referendum that would ban gay marriage. In Mass., they couldn't get even one-quarter of the representatives to vote to take it to the polls. Where it would have lost anyway, since a majority of the people in the state have no problem with gay marriage.

Additionally, in Canada, Spain, Belgium and the Netherlands, a clear majority of the people have no problem with gay marriage, so there is no movement afoot there to 'take it to the people.' They don't believe in wasting time and resources over something that is a non issue.

Eliot Spitzer ran for governor pledging to push through gay marriage, and he won by a substantial margin.

Furthermore, even in the states where gay marriage was banned, in VA, Ohio, and MI, for instance, there was still a substantial minority who voted against the ban. So to conclude that 'everyone' is against gay marriage is just wrong.
5.8.2008 2:00pm
Randy R. (mail):
Malthus: "I think it great that gays continue to suffer the same disadvantages that singles and hetero unmarrieds suffer."

Hey, it works both ways. If gays can get married, they can suffer the same disadvantages that other hetero married suffer, like no more sex after a few years, dispiriting marriages that never seem to end, kids that disappoint you, and so on.

Whatever the suffering, we are with you, bro!
5.8.2008 6:14pm
one of many:
I'm still trying to digest the ruling, but it looks like the State of Michigan has outlawed many things other than domestic partnerships with the Amendment, like small law firms (both marriages and small partnerships are registered with the state, may have community property). Although they nod towards saying that only gender/consanguinity restrictions are the basis for a relationship being considered as similar to a marriage, that is such an obvious error of logic it must be a false impression (as a side note, if the poor logic is what they were actually saying then dropping the non-consanguinity requirement for recognition of domestic partnerships will make them legal). If a relationship is similar to a marriage in apparently 2 ways, then the State of Michigan has made it unrecognizable by the state. The Catholic confession seems to likewise be illegal in Michigan, for it shares two core components with marriage, a religous significance and a testimonial privilege. The court is saying that relationships which resemble marriages in a few ways are illegal, or seem to be - I'm still trying to figure out all of the relationships which the state cannot recognize under this doctrine. The logic of this ruling just doesn't work for me, merely because cats and elephants both share the common qualities of having 4 legs and a tail doesn't mean that recognition of an elephants 4 legs and tail is the same as treating it as a cat.
5.9.2008 1:36am
Happyshooter:
one of many, did you go to the University of Michigan Law School? That is exactly the same argument style they taught us there to use to attack non-liberal positions. That, combined with a sarcastic toone and the head flip eye roll.
5.9.2008 10:13am
one of many:
Happy:
no, I wish my tier 3 law school (which will remain nameless lest I embarrass it with a post on an ill-remembered legal doctrine I've not had occasion to consider in the decades since I went to law school) was as well known as Michigan on occasion. The argument style has nothing to do with Liberal/Conservative positions though, it is standard for over expansive use of definitions which is what the Michigan Court was doing.
5.9.2008 2:34pm