Posted by Eugene Volokh:
Anti-Same-Sex-Marriage Being Used to Challenge Non-Marriage Benefits:
Michigan's [1]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 [2]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 [3]my "Phyllis Schlafly Said It Would Be Like This"
post.
Thanks to my fellow lawprof [4]Michael Froomkin for the pointer to
this, and to [5]Don Herzog (Left2Right) for the post to which Michael
pointed me, and which this post in some measure echoes.
References
1. http://www.michigan.gov/documents/04_Proposals_106416_7.pdf
2.
http://www.mlive.com/news/aanews/index.ssf?/base/news-11/1107877260293571.xml
3. http://volokh.com/2003_11_16_volokh_archive.html#106917664607446885
4. http://www.discourse.net/
5. http://left2right.typepad.com/main/2005/02/bait_and_switch.html
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