Wednesday, February 21, 2007

Michigan Court of Appeals Mistaken in Same-Sex Benefits Case

(This OpEd was written on Feb. 8, 2007.)

Michigan Court of Appeals Wrong in Same-Sex Benefits Case
By: Michael Anthony Lawrence*

Last week’s Michigan Court of Appeals decision that the 2004 amendment to the Michigan constitution banning same-sex marriage also forbids state government and universities from allowing health benefits for same-sex partners is deeply problematic, for it gives broad scope to an amendment that is fundamentally flawed in both process and substance.

First, the process by which the amendment became law was, and is, deeply flawed. As my colleague Glen Staszewski points out in a persuasive 2006 Wisconsin Law Review article, there can be little doubt that the leading proponents of this vaguely-worded amendment intentionally misled Michigan voters during the 2004 campaign when they “chastised the opposition for seeking to distract the electorate from the ‘real issue’ and claimed that ‘the proposal [would] not affect benefits offered to people living together or in same-sex relationships.’” Almost immediately after the election, however, many of these same proponents began insisting that the amendment would prohibit benefits to same-sex partners. Now, in interpreting the amendment to prohibit same-sex benefits, the Court of Appeals rewards and encourages the sort of egregious bait-and-switch tactics as occurred here.

An additional problem with the amendment which applies to all ballot initiatives, not just in Michigan but other states as well, is identified by noted constitutional theorist Erwin Chemerinsky of Duke Law School. In short, the Constitution’s Guaranty Clause requires Congress to “guarantee to every state in this Union a Republican form of Government.” The framers knew well the tendency of majorities to oppress unpopular minorities (Exhibit A: the Michigan amendment discriminating against same-sex couples), so they mandated that state lawmaking be accomplished through a representative process, where rough edges could be smoothed with the benefit of full debate and negotiation. The process of direct democracy as practiced in Michigan and elsewhere thus arguably violates the Guaranty Clause - although it is extraordinarily difficult to make this argument given the U.S. Supreme Court’s long-held position that Guaranty Clause questions are “political questions” reserved for Congress, and therefore beyond the scope of the federal courts’ jurisdiction.

Not so long ago courts routinely upheld laws prohibiting interracial marriage with such language as that of one Virginia court in 1959 which stated, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for interracial marriages. The fact that he separated the races shows that he did not intend for the races to mix.” These laws were of course later struck down by the U.S. Supreme Court in the landmark 1967 Loving v. Virginia case, but we see the unmistakable parallels in today’s laws across the United States banning gay marriage and otherwise discriminating against same-sex couples.

It can only be a matter of time before the U.S. Supreme Court strikes down these modern-day laws of intolerance as well, for, as it said in 1996, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate government interest.” Enlightened state courts in Massachusetts, New Jersey, Hawaii, and Vermont have already done so in interpreting their own constitutions in the last few years. We can only hope if the case is appealed that the Michigan Supreme Court will be similarly enlightened, and reverse the disappointingly narrow-minded holding of the Michigan Court of Appeals.

*Mr. Lawrence is a professor of law at Michigan State University College of Law.