Sunday, February 04, 2007

Michigan decision may tell us little about Wisconsin's marriage amendment

An intermediate (below the state's Supreme Court) appellate court in Michigan has held that the state's marriage amendment bans public employers from offering same-sex domestic partner benefits.

The language of the two amendments is close , but not identical. Michigan's amendment provides that no other relationship other than the union of one man and one woman shall be recognized as "a marriage or its legal equivalent by the state for any purpose" while ours says that no "legal status that is identical or substantially similar to marriage shall be valid or recognized." While Michigan's amendment seems concerned with providing a relationship with any of the incidents of marriage, ours is arguably concerned with providing a relationship with so many of the incidents of marriage that it becomes a marriage equivalent.

A court may conclude that our amendment prohibits only the creation of a status that has most of the legal incidents of marriage, while Michigan's focus is on whether a relationship is treated as a marriage for any purpose. I can see a court concluding that just giving someone employee benefits does not confer most of the benefits of marriage (and is, therefore, ok in Wisconsin), but providing benefits is treating a relationship as a marriage if those benefits are something that are otherwise available only to married couples (and, therefore, not ok in Michigan).

More importantly, the Wisconsin courts (more so than in Michigan) give a lot of weight to the legislative and electoral history of a constitutional amendment. It will look closely at what the legislature said when it passed it and what claims were made about it in the course of the campaign. (It will also look at relevant legislation passed shortly after its passage.) That history is, of course, unique to Wisconsin.

Of course, even under the Michigan decision (which will certainly be reviewed by that state's high court), it would probably be possible to confer benefits if eligibility weren't defined in a way that consciously tracks marriage.

8 comments:

Anonymous said...

I'm waiting for that fine American Jullaine Appling to carry her brave defense of marriage to what should have been the first line of defense: divorce. We had the spector in the Legislature of good, upstanding conservative Republicans literally frothing at the mouth, proclaiming that gay men and women in love would destroy the noble institution, never mind that some of them had been divorced once or, in at least one case, twice.

If gay men and women were a threat to our noble institution, what about the serial divorcers? The people who apparently think marriage is a lark, to be entered into and departed from on a whim?

This is no attack on you, Ricky, so do not censor me as you have done to others...

Rick Esenberg said...

Gee, that's pertinent. I seem to remember, during the campaign, that people thought amendment proponents would say one thing before the election and another after it "just like they did in Michigan." Here I try not to do that and someone who apparently lacks a name throws a fit.

Social conservatives have been concerned about divorce and, rightly or wrongly, saw the potential redefinition of marriage as another step in changing the public understanding of marriage to an institution that exists to serve the current wishes of those who enter into it. It would, they said, do that by further decoupling marriage from the unique needs of potentially procreative heterosexual relationships. "Gay men and women in love" had absolutely nothing to do with it.

As far as my "censoring" people, I have deleted a few posts that, apart from having nothing to do with the issues at hand, either made claims about people other than me who have not chosen to interject themselves into the public debate or which could not be responded to without discussing those people. If you can't understand why I would do that, then I can't help you.

Anonymous said...

The point is that despite all of the righty ramblings about protecting marriage (from people wanting to get married, no less), the MI case demonstrates what we all know to be true: this is about hurting people who are different. Honestly Rick, if you look at your life, how on earth can you pretend that you are a messenger out to protect the sanctity of marriage? You got divorced, yet my partner and I and our child have been together for closing in on two decades with no split in sight. Which one of us truly threatens marriage?

It is a matter of time before your cronies file suit to stop benefits. Certainly they will use it in the current ACLU domestic partner benefits case. Whether or not that would survive here is beside the point. The point is that your friends are trying to hurt real families. For shame.

Finally, the amendment proponents are saying one thing and doing another. Where is the promised attack on divorce? Oh wait, that would mean that a pile of people who voted for the amendment would be hurting their own self-interests in being able to have serial marriages interspersed with divorce. You say this is about marriage? Prove it.

Rick Esenberg said...

There are at least three problems with this type of ad hominem attack. First, you are making assumptions about why someone got divorced. It could well be that the divorced conservatives that you criticize did not, in any commonly accepted sense of the term, "choose" divorce - there always being two people involved. It is that issue that I think it would be tacky for me (and any of the others you criticize) to address because it would violate the privacy of others. Second, these divorced conservatives may have been chastened by their own experiences. Paul was changed on the road to Damascus. Arriana Huffington became a liberal. People change. Third, let's assume that I am a raging hypocrite (although, when it comes to this stuff at least, I am not), my own flaws have nothing to do with the strength of my arguments.

Peter said...

It could well be that the divorced conservatives that you criticize did not, in any commonly accepted sense of the term, "choose" divorce - there always being two people involved.

Exactly. Using that argument, someone who is in an abusive marriage or with an unfaithful spouse should stay in the marriage regardless.

No-fault divorce, where someone just chooses to change spouses like changing socks or underwear or returns merchandise to a store has had a damaging effect on marriage, no question. But that is the straw dog set up by the pro-homosexual marriage crowd. Fact is, once marriage is defined as a civil right it cannot be denied to anyone anywhere for any reason.

Anonymous said...

"While Michigan's amendment seems concerned with providing a relationship with any of the incidents of marriage, ours is arguably concerned with providing a relationship with so many of the incidents of marriage that it becomes a marriage equivalent."


When you say "incidents" of marriage, you really mean special rights, correct? As in, you don't want GLBT people in life-long, committed relationships to have the right to the same health care benefits their office mates enjoy. That is what Michigan is doing (contrary to the stated objectives-read:lies-- of proponents). It is only a matter of time before the same folks file the same hateful lawsuits here. If you think people will wait to file suits only when all "incidents" of marriage are offered as a package deal (the way you get to enjoy them--with two separate families I might add), you are naive. They will move to prevent any single protections they can, including the basic protections of health insurance. It is not now, nor was it even about marriage Rick. It is about bigotry and hate. I suspect that you will recognize this years from now. I'd love to be there when it happens.

Rick Esenberg said...

I don't know why you think I have tow families. I have one kid who lived with me from the time he was born until he went off to college. But I guess that's just your general snarkiness.

On a substantive note, incidents of marriage does not mean "special rights." There as many obligations as rights that come with marriage.

As I've always said, employers can provide health care benefits to whomever they want. That doesn't create a marriage. Whether other people see it differently (and file lawsuits) is not something I can control.

Anonymous said...

Rick,

The point is that in order to get insurance benefits, the insurers require participants to sign affidavits that in essence demonstrate a marriage in all but name. That is what happened in MI.

Your casual disavowal of the actual impact of the amendment on real people is disingenuous. You knew before the amendment fight, during the amednment fight, and now that the amendments unquestionably were going to hurt real families. Saying now that you don't really intend for it to do so is meaningless. Like handing a loaded pistol to a teenager and then saying you did not approve of him pulling the trigger. Now that the kid has the gun, what are you personally going to do to stop it. You say you disagree with preventing people from getting insurance benefits by virtue of the existence of this great amendment? Then prove it by committing here, today, in public, that when such protections are challenged in Wisconsin, you will donate $$ to the legal defense fund and you will offer your legal "expertise" to stop such heinous abuse of the amendment that really had nothing to do with hurting gay families. Will you commit to those two things right now?

But, you say, marriage comes with obligations!! Like what? Throughout the country courts order child support in nonmarital couples. In Wisconsin, they order property division and similar obligations to non-married couples. I would sign up in a heartbeat to have a formal legal obligation to my family. You won't support that because somehow that interferes with your marriage.