Prop 2, Defense of Marriage

What do we do in Michigan for marriage rights now?

by Jay Kaplan

What a wonderful, inspiring and energizing moment for LGBT people to see marriage licenses being granted to same-sex couples in California and to watch them wed. The marriage of Phyllis Lyons and her partner Del Martin, after 55 years together was tremendously moving and poignant. With California now joining Massachusetts as the only two states permitting same-sex couples to marry, there is the hope that we will be able to persuade other state courts and legislatures to end marriage discrimination against LGBT people.

With all the good news in California, members of the LGBT community in Michigan want to know what this might mean for them, should they decide to get married in California. Unfortunately, Michigan currently has a strong public policy against same-sex marriage. In 1996, our state legislature passed two laws, one prohibiting issuing marriage licenses to same-sex couples and the second, saying that Michigan did not have to recognize same-sex marriages from other states. At the same time, the U.S. Congress passed and President Clinton signed a federal law saying that federal programs did not have to recognize same-sex marriages and that states could refuse to recognize same-sex marriages performed in other states. Furthermore, as a result of a 2004 ballot initiative, our Michigan Constitution limits marriage to a man and woman. In other words, a California marriage between same-sex couples would not be legally recognized by the State and would have no legal effect in Michigan.

You might ask "what about the concept of Full, Faith and Credit under which states are supposed to recognize contracts and agreements from other states?" For the most part, states voluntarily honor marriages performed in other states for common sense reasons. However, the United States Supreme Court has not yet said that the Constitution requires states to recognize marriages performed elsewhere.

Recently a number of LGBT organizations, the ACLU, Lambda Legal, National Center for Lesbian Rights, Gay and Lesbian Advocates and Defenders, the Human Rights Campaign, Equality Federation, Freedom to Marry, and the National Gay and Lesbian Task Force issued a public statement paper encouraging those who want to marry in California to do so, but not to sue their home state in federal court if it fails to recognize their same-sex marriage. This paper has been met with frustration and hostility by some members of the LGBT community who believe that it is necessary to bring lawsuits in order to win the freedom to marry across the country.

It is important to remember that litigation has not been and is not the only way to win equality for our community. The successes of every civil rights movement have been achieved through a combination of education, coalition building, legislation, and litigation. The most powerful agent of change in America is people. Gains made in freedom to marry and relationship recognition have been a result of state court decisions, state legislation, and the education and mobilization of supporters for LGBT equality. Sometimes, we can have the most just cause and the best legal theory, but if the Court is not receptive to our argument, we will still lose. A perfect example of this is the recent Michigan Supreme Court decision regarding domestic partner benefits. We had a strong legal argument that when a public employer voluntarily provides health insurance to domestic partners of employees he/she is not creating a marriage or anything legally similar to marriage. Nonetheless, the Michigan Supreme Court majority rejected this argument, using a very flawed and disingenuous legal analysis.

Being strategic

We have to be strategic in the types of cases we bring because bad legal decisions create bad law. When a case is filed in federal court, the decision issued by the court not only impacts the parties involved in the lawsuit but the LGBT community nationwide. An unsuccessful federal challenge to a state's denial of freedom to marry makes it more difficult to achieve marriage in states that eventually may be receptive to freedom to marry (like New York, Iowa, Washington, Maryland and Illinois). Should the United States Supreme Court issue a negative decision on the freedom to marry, it will be more difficult to convince state courts to strike down laws excluding same-sex couples from marriage. The LGBT organizations are not discouraging same-sex couples from marrying in California, Massachusetts or Canada. That decision is and individualized and personal choice. However, they are asking them at this time to refrain from suing in federal court to have them recognized.

Start organizing

So what do we do in Michigan- just sit back and do nothing? Not at all. Let's work to repeal the constitutional amendment and 1996 laws that specifically deny us the fundamental right to marry. Let's advocate for laws and policies that recognize our relationships and our families. Let's work to elect legislators who are sympathetic to our issues and who believe in fundamental fairness. Let's educate ourselves regarding the judges we elect for our courts. We shouldn't be casting our vote for judges who don't believe in LGBT equality. Let's make informed choices regarding candidates for Governor and President- and the types of judges that they will likely appoint. In the 2008 Presidential Election there is a vast difference between the types of judges presumptive candidates Barak Obama and John McCain will appoint and this will have an impact on our struggle for equality. Have conversations with friends and family about how it feels to have our relationships treated different under the law and why this is so unfair. Most friends and family members don't realize the barriers we face, but would agree that our constitution guarantees the same equal protection for everyone. We can be an agent of change, just as, if not more important than the courts.

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Attorney Jay Kaplan works on the LGBT Project of the ACLU-Michigan

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