Anti-Same-Sex-Marriage Being Used to Challenge Non-Marriage Benefits:

Michigan's recently enacted anti-same-sex-marriage amendment reads:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

According to the Detroit News (Oct. 27, 2004), the amendment's chief supporters said it was just about marriage, not about domestic partner benefits and the like:

"Same-sex marriage is illegal (in Michigan) and will remain against the law after the election," said [Dana House, political direct for the anti-proposition forces]. "However, there are some folk who seem to want to distract the voters by talking about same-sex marriage so that they can take away domestic partner benefits and actually change the definition of marriage. Our job is to alert the voters to that risk. It will have the same affect on heterosexual couples." . . .

Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination. Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.

"This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage. As for people losing benefits, "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation."

However, now the amendment is in fact being used to challenge domestic partner benefits:

As opponents of Proposal 2 predicted, the constitutional amendment approved by Michigan voters last November to define marriage is being used to challenge same-sex benefits provided to partners of gay public employees. . . .

The Ann Arbor-based Thomas More Law Center and 17 taxpayers are asking the Michigan Court of Appeals to stop the local school district from providing medical benefits to gay couples. In court papers, they cite the November constitutional amendment known as Proposal 2, which says the union between a man and a woman "shall be the only agreement recognized as a marriage or similar union for any purpose." The lawsuit was filed in 2003, before Proposal 2 passed, but the Thomas More Law Center wants the constitutional amendment considered in its appeal. . . .

Now it may well be that the More Center will lose, and the amendment will be interpreted the way Ms. Hemphill predicted. And it may well be that the agenda of the More Center is indeed broader than that of Citizens for the Protection of Marriage. Nonetheless, the language of Amendment 2 is potentially broad enough that it may well have the effect the More Center urges, and that Citizens for the Protection of Marriage pooh-poohed. So just a reminder that voters and other observers need to look at the text of the provision, and not be lulled by the disclaimers by the provision's backers.

For an example of a similar phenomenon, but from the opposite directions, see my "Phyllis Schlafly Said It Would Be Like This" post.

Thanks to my fellow lawprof Michael Froomkin for the pointer to this, and to Don Herzog (Left2Right) for the post to which Michael pointed me, and which this post in some measure echoes.

Ohio Court Interprets Its State Anti-Same-Sex Marriage Amendment:

The amendment, enacted in 2004, provides,

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

A preexisting state statute, Ohio Rev. Code 2919.25(A), provides, "No person shall knowingly cause or attempt to cause physical harm to a family or household member," with "family or household member" defined to include not just spouses and relatives, but also "a person living as a spouse," in turn defined to include "a person who ... is cohabiting with the offender," which is in turn defined as living together with "sharing of familial or financial responsibilities and ... consortium.... Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." (I take it that when pushed on this, Ohio courts would require a sexual or at least a romantic relationship, or else siblings living together with "mutual respect, ... affection, ... society, cooperation, solace, comfort, aid of each other, [and] friendship" would be treated as "living as ... spouse[s].")

Defendant Michael Carswell was indicted for causing or attempting to cause harm to a woman with whom he was living but to whom he wasn't married. He argued this violate the anti-same-sex-marriage amendment because the treatment of people "living as ... spouse[s]" the same way as spouses involved the creation of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." A trial court agreed with Carswell; the court of appeals reversed; and the Ohio Supreme Court agreed to hear the case.

In today's decision, the court held 6-1 (five Justices in the majority, one concurring in the judgment only) that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage -– a marriage substitute" (emphasis added). A provision treating certain unmarried couples as legally tantamount to spouses for one purpose (domestic violence law) doesn't account.

This seems to me generally right. I'd say that a legal status that bears nearly all the attributes of marriage would probably count as "intend[ing] to approximate the design, qualities, significance or effect of marriage" (emphasis added), and I expect that if such a status was enacted and challenged, the court wouldn't feel entirely wedded to the "all of the attributes" language. But a legal status that focuses only on one consequence that accompanies various relationships, including marriage, just isn't an "approximat[ion]" of either the design, qualities, significance, or effect of marriage.

It's true that a test that focuses on whether the legal status has "nearly all" the attributes of the marriage is in some measure vague. But that's a vagueness that stems from the vague constitutional term "approximates." And the domestic violence law challenged in this litigation is very far from any gray zone.

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Michigan Marriage Amendment Nixes Domestic Partners Benefits:

So said the Michigan Supreme Court in a 5-2 decision today.

By state constitutional amenment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

The "similar union" language, along with the "for any purpose" language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: "It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage."

The Michigan decision sets an interpretive precedent that may be followed in the many other states that have banned same-sex marriages and recognition of other relationships "similar" to marriage.

UPDATE: The full opinion is now available here.

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Michigan Supreme Court Domestic Partner Benefits Decision Available Online,

here.

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