Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

DC Council Introduces Marriage Equality Bill

"Show your friends across the sea/It's a fair dance"

On Tuesday, October 6, the Council of the District of Columbia introduced legislation to allow same-sex couples to marry, the New York Times reports. The bill is expected to pass, but it could be subject to congressional override, setting up the prospect of potentially uncomfortable votes for Democrats in Congress, which under Republican "leadership" had for a decade (until 2002) barred DC from spending federal or local money to implement the District's domestic partnership law. If Congress manages not to intervene, it will be powerfully symbolic to see marriage equality come to the nation's capitol, in stronger form than merely recognizing valid marriages performed in other jurisdictions. Now if Congress would repeal DOMA!

In Sickness and in Health

Government employers in Michigan cannot offer health insurance to same-sex domestic partners, the Michigan Supreme Court ruled 5-2 on May 7, 2008 in National Pride at Work v. Governor of Michigan (opinion here). Interpreting a state constitutional amendment that was designed to keep same-sex couples from legally marrying, the state supreme court disregarded all the evidence that the voters only intended to affect the state’s marriage law and not domestic partnerships, and put its blessing on the Michigan Christian Citizens Alliance’s bait-and-switch tactics.

The so-called “marriage amendment” to Michigan’s constitution, crafted by the MCCA and its Citizens for the Protection of Marriage committee, was adopted by ballot initiative in 2004. It provides: “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.” (Curiously, the pre-comma portion of this amendment did not actually appear on the ballot.) This language made Michigan’s marriage limitation amendment significantly broader than many other states’.

Just how much broader was the question in National Pride at Work, and the Michigan Supreme Court majority basically answered, “very.” Justice Markman’s opinion did not focus on the operative consequences of the “domestic partnerships” at issue, which fell dramatically short of those of marriage, which could have allowed the court to read the amendment as the dissent did, as simply precluding government from creating or accepting another state’s marriages between same-sex couples or comparable statuses like civil unions. Instead, the majority focused on the eligibility criteria for the lone benefit at issue (health insurance). Giving health coverage to a domestic partner “recognized” a domestic partnership for some purpose, and so would be unconstitutional if the domestic partnership were a union “similar” to marriage. “Because marriages and domestic partnerships are the only relationships in Michigan defined in termsof both gender and lack of a close blood connection, and, thus, have these core ‘qualities in common,’” the majority reasoned, “the domestic partnerships are unions similar to marriage.”

The interpretation adopted in the opinion of the court is far from preposterous. But in their rush to exemplify judicial restraint, the majority justices found clarity where the dissent saw ambiguity, and took that as their license to ignore considerations of justice as well as the likely intent of the Michigan electorate. Justice Kelly’s dissent recounted the significant evidence that a sizeable majority of the voters of Michigan wished only to keep their state constitution from becoming a tool to open civil marriage to same-sex couples, and in fact favored the extension of health benefits for the same-sex partners of government employees. And the amendment’s sponsor, the MCCA, repeatedly and publicly insisted that the measure wasn’t about benefits, just about the definition of marriage. (The majority questioned why the measure’s proponents’ views should get more weight than the opponents view, which suggested it would have more far-reaching consequences. But that’s how the U.S. Supreme Court has approached the U.S. Constitution, giving more weight to the Federalist Papers than to the Anti-Federalist.) Yet because the language of the measure the voters approved arguably could be read more broadly, forbidding the government to extend any marital benefit to a committed same-sex relationship as such, the majority deemed the “extrinsic” evidence of voter intent to be irrelevant. Caveat voter. (Troublingly, the Michigan “marriage amendment” is not expressly phrased as a restriction on government, instead providing that nothing but one man-one woman marriage “shall be ... recognized.” It is almost unthinkable that the court would hold this to forbid private companies from extending domestic partners benefits, but that reading might appear as “unambiguous” to the majority as its other conclusions seemed to them in National Pride at Work.)

What now? Perhaps governmental institutions such as the city of Kalamazoo, the University of Michigan, and Michigan State University, just to name a few, might redefine the eligibility for health benefits for domestic partners. Perhaps they could remove the limitation to same-sex couples, so that a man and an unrelated woman who chose not to marry could get domestic partner health benefits; alternatively, these institutions might continue to limit eligibility to same-sex couples but remove the restriction against certain close relatives forming domestic partnerships, so that two sisters could get DPP health benefits; or maybe they could remove both, so that a brother and sister could be domestic partners, for example. Either or both of these moves would eliminate at least one of the two features–sex limitations, and the exclusion of close relatives–which together made (same-sex) domestic partnerships “similar” to (different-sex) marriages in the majority’s eyes.

Whether that would be enough to make the “recognized” relationships sufficiently unlike marriage to make health benefits permissible is an open question, though. Footnote 14 of the majority opinion listed numerous other respects in which the majority justices regarded marriages and domestic partnership as similar relationships. The majority called attention to the binary nature of the relationship, undertaking obligations of mutual support, the necessity for a contract or agreement for the relationship to exist, minimum age requirements, indefinite durations of the relationship (until “one of the parties takes affirmative action to terminate the relationship”), and for some of the policies the requirement that the domestic partners share a common residence. (The majority’s argument on the last point invoked the possibly oxymoronic notion that common residence “typically defin[es]” the marriage relationship.)

In light of that litany, it could be that the majority would not find providing any benefit to a domestic partner or partnership consistent with the state’s “marriage amendment” unless the eligibility criteria were so loose that they did not connote a relationship at all in any meaningful sense of the word. A policy that allowed an employee to designate any one person whatsoever of her or his choice to be eligible for health insurance coverage might pass muster with the majority precisely because it would not look like it is extending any official respect to the relationship of a committed same-sex couple. If that were to prove right, then the Michigan Supreme Court would have essentially turned a state constitutional amendment “To secure and preserve the benefits of marriage” into a general-purpose repudiation of the dignity of same-sex couples and relationships.

By denying the ability for government to provide any benefit to same-sex domestic partners that is offered to married couples, unless they can get the state constitution re-amended, that also might make Michigan’s “marriage amendment” more vulnerable to constitutional challenge. By increasing the broad sweep of the measure, it would more closely resemble the anti-lesbigay Amendment 2 to Colorado’s constitution, which the U.S. Supreme Court held violated the Equal Protection Clause in Romer v. Evans in 1996. Of course, the composition of the Supreme Court today is different from its composition in 1996, with Justice O’Connor replaced by Justice Alito, who so far appears further to the right on the Court than did O’Connor. So the theoretical prospect of a federal constitutional ruling in their favor may be cold comfort to the same-sex couples in Michigan now deprived of health insurance, and thus of equal pay for equal work.