PROPOSAL 04-02: Banning Same-Sex Marriage or Similar Unions

On November 2, 2004, Michigan voters will be asked to approve the following amendment that would add Article I, Section 25, to the State Constitution:

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.

The initiative is part of a national trend of attempts at strengthening same-sex marriage prohibitions by amending state constitutions. In the November 2004 election, Michigan will be one of 11 states where the electorate will be asked to amend the state constitution to prohibit same-sex marriages.¹ Michigan is among 39 states that prohibit same-sex marriages by constitution or statute.

If made part of Michigan’s Constitution, the initiative may be rescinded in only three ways: state constitutional amendment by referendum, state constitutional amendment by initiative, or federal judicial determination that it violates the U.S. Constitution.

Long-term legal implications of passage are open to interpretation and range from simply strengthening existing state law that prohibits same-sex marriages, to reversing the legality of domestic partner benefits, same-sex or otherwise, offered by public and private employers. The difference in interpretation is attributable to the clause “or similar union for any purpose,” which opponents of the measure characterize as opening the door to recision of same-sex benefits currently offered by several state universities and local units of government. Further, opponents speculate that the clause could lead to an erosion of same-sex benefits offered by the significant number of private employers in Michigan, particularly those that pursue state contracts. Proponents maintain that the clause intends only to add emphasis to the proposal, and is not intended to reverse existing policies.

Background

The federal Defense of Marriage Act (DOMA) was enacted in response to a 1996 circuit court decision in Hawaii that struck down a law prohibiting same-sex marriages, citing a lack of a compelling state interest. Though an amendment to the Hawaii Constitution reinstated the prohibition in 1998, a legislative compromise settled the issue with a “reciprocal benefits” law, allowing certain rights and benefits to accord to same-sex partnerships registered under the law.

DOMA defines marriage as being exclusively between a man and woman. DOMA also allows states the freedom to not recognize same-sex marriages as sanctioned by other states, by carving out an exception to the Full Faith and Credit clause of the U.S. Constitution, Article IV, Section 1. An early exception to the clause allowed states to uphold laws against polygamy and miscegenation, though bans against miscegenation were overturned by the U.S. Supreme Court in 1967.

In July 2004, the United States Senate did not produce a simple majority of votes in support of a constitutional amendment to prohibit same-sex marriages in the United States, which would have required approval from 2/3 of its members, plus ratification by 3/4 of state legislatures. The elevation of same-sex marriages to the national agenda followed the recent set of state court opinions that liberalized statutory or common law status of marriage to include same-sex marriages.

 

Glossary of Terms

Terms and phrases used herein that connote quasi-marital partnerships have various legal meanings. Some of the following definitions derive from the state laws that initiated the term or phrase. Civil Union -- State of Vermont statute defines "civil union" as a legal relationship that extends most state marriage benefits to same-sex couples upon registration. Common Law Marriage -- State recognition of a heretofore-unrecognized marriage-like relationship, which, upon recognition as a common law marriage, accords marital benefits and liabilities to the relationship parties. Domestic Partnership -- a person (not necessarily a spouse) that cohabits with and shares a long-term sexual relationship with another. Primarily used in the context of "domestic partnership benefits," which are offered by some employers to unmarried employees and their partners. Reciprocal Benefits -- State of Hawaii statute defines "reciprocal benefits" as benefits flowing from a legal relationship that provides some partnership benefits to registered same-sex couples, including property and inheritance rights and hospital visitation rights.

In May 2004, the Massachusetts Supreme Court struck down a statute prohibiting same-sex marriages on constitutional grounds, citing, among other things, a lack of a rational basis to deny marital rights and privileges to same-sex couples. As a result, in May 2004, same-sex couples began to obtain marriage licenses, making Massachusetts the first and only state to provide full marital benefits to same-sex couples. The Massachusetts Legislature is now considering a constitutional amendment to prohibit same-sex marriages.

Currently, four states have statutes that permit same-sex couples to have a governmentally-sanctioned union and certain rights and benefits. The State of California passed a domestic partner law that offers marriage-like benefits to same-sex couples, effective January 1, 2005. Table 2 lists the states and same-sex marriage rights and obligations offered. Employment-based domestic partner benefits are offered by 11 states, with Connecticut and Washington allowing such for same-sex couples only.²

 

Table 2 Same-Sex Couple Benefits by State
State	Same-Sex Couple Benefits
California	Domestic Partnership Registry becomes effective January 1, 2005; will allow most of the same rights and obligations to registered same-sex couples as heterosexual marriages.
Hawaii	Reciprocal Beneficiaries Act provides some partnership benefits to registered same-sex couples, including hospital visitation rights, the ability to sue for wrongful death, and property and inheritance rights.
Massachusetts	Full marital benefits for legally married same-sex couples. Same-sex couple marriages in Massachusetts are illegal for out-of-state residents if same-sex marriages are illegal in their state of residence.
New Jersey	Domestic Partner Registry allows insurance coverage, medical decision-making and joint state tax returns. Does not allow alimony or automatic parenting rights.
Vermont	"Civil Union" statute provides joint tax filing, inheritance, family law rights (divorce, annulment, child custody and support, alimony, domestic violence protection, and others), family leave benefits, power of attorney, and lawsuit standing to same-sex couples.
Source: www.nolo.com.

Marriage in Michigan: Legal Provisions

In 1996, Michigan revised the statutory definition of marriage to "a unique relationship between a man and a woman." To underscore the point, the statute explicitly invalidates the matrimonial contractual obligations of individuals of the same sex.

Michigan’s Definition of Marriage

Michigan defines marriage as:

inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.³

In separate sections of the statute, "marriage is a civil contract between a man and a woman, to which the consent of parties capable in law of contracting is essential."⁴ Subsections of the statute further emphasize that: "A man shall not marry . . . another man."⁵ And: "A woman shall not marry . . . another woman."⁶

Proposal 04-02, if passed, would alter the definition of marriage in Michigan. The clause "or similar union for any purpose," is not found in any of Michigan’s marriage statutes. Therefore, passage of Proposal 04-02 would not just elevate existing state law to the state constitution, but would augment the current definition of marriage with language that could arguably proscribe same-sex (or heterosexual) civil unions or domestic partnership benefits.

Legal and Financial Benefits

According to the U.S. General Accounting Office, there are over 1,000 references in the U.S. Code to marital status.⁷ Selectively, these include social security benefits, low income housing and food stamp programs, as well as veterans’ and military benefits, taxation implications, employment benefits, and immigration and naturalization status. Statutory protections for married couples are also numerous, including legal protections such as the right to not have to testify against one’s spouse, domestic violence statutes, custody and child support, and probate statutes, to name just a few. Michigan statutes contain over 400 references to marriage.

Absent the ability to obtain a legally sanctioned marriage, couples (same-sex or otherwise) can enjoy many of the economic benefits of marriage by private contract, with exceptions that include joint tax filing status, joint insurance policies, and loss of consortium tort benefits. Non-economic benefits offered by marriage that cannot be privately contracted include judicial protections and evidentiary immunity, immigration residency for partners from other countries, and joint adoption rights.

Non-Traditional Marriage

Household arrangements similar to but not enjoying state-sanctioned marriage exist throughout the United States:

Same-Sex Couples. According to the United States Bureau of the Census, there are over 8,000 female and 7,200 male couples who identified themselves as cohabiting in Michigan, or approximately 0.7 percent of all Michigan households. It is likely that the actual number of such couples is significantly higher, inasmuch as privacy issues regarding sexual orientation leads to underreporting of same-sex, couple-based households.

Common Law Marriage. Generally, common law marriage is legal recognition of a de facto marital relationship not previously sanctioned by the state. Common law marriage is recognized in only 15 states, not including Michigan (See Table 3). Upon recognition as a common law marriage, benefits, liabilities, and responsibilities accrue as if the marriage was sanctioned. Of the 15 states that recognize common law marriages, only one, Rhode Island, does not prohibit same-sex marriages by law. Historically, state recognition of common law marriage by the state is rooted in equity, when partners were unable to travel to or be visited by a state-sanctioned marriage official.

Issues

Economic Impacts. According to the American Family Association of Michigan, voter approval of the ballot question would ensure that taxpayers would not be liable for governmentally funded benefits to same-sex couples already accorded to heterosexual marriages, including social security death benefits. Conversely, the Triangle Foundation, a gay, lesbian, bisexual and transgender advocacy organization, asserts that marriage ceremonies and attendant receptions offer a net positive impact on the economy.

Assuming that the minute number of same-sex couple households is vastly underreported, and further assuming that all same-sex couples would take advantage of same-sex benefits if they were offered, it is doubtful that tangible differences in taxpayer-funded liabilities or overall economic impact could be illustrated.

Legal Import. According to the Coalition for a Fair Michigan, voter approval of the proposal would be the first time the Michigan Constitution would be amended to deny individual rights rather than to expand or affirm them. While Article I of the State Constitution is titled “Declaration of Rights,” and primarily limits the power of government while according specific rights to individuals, there does exist at least one limitation on individual liberty, as found in Article I, Section 20 as amended in 1994. This section limits the rights of appeal for persons accused in criminal proceedings.

The Coalition for a Fair Michigan also asserts that passage would eliminate existing domestic partner benefits that are provided by state universities and some other government employers, which give health care and other benefits to the unmarried partners of employees. Whether this would come to pass is a question for judicial interpretation of the clause “or similar union for any purpose” if the proposed amendment is approved. The Coalition, as well as other opponents of the proposal, suggest that this clause could be interpreted as a basis for invalidating same-sex domestic benefits offered by public employers, including the University of Michigan and Wayne State University, the Ann Arbor, Kalamazoo, and Port Huron school districts, and the City of Kalamazoo.

According to the American Family Association of Michigan, the clause is part of the ballot proposal solely to make the ballot language as strong as possible.

 

Table 3 Summary of Same Sex Marriage Policies in 50 States
State Law(s) Affecting Same-Sex Marriages	States Where Laws Apply
Defense of Marriage Act (DOMA) Adopted by State (all adopted in state law except those noted)	AL, AK1, AZ, AR, CO, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MI, MN, MS, MO, MT, NE1, NV1, NC, ND, OH, OK, PA, SC, SD, TN, TX, UT, VA, WA2, WV
Same-Sex Marriage Banned (or defined as between man and woman) by State Law or by State Courts	CA3, CT, MD, NH, NJ, VT, WI, WY
Same-Sex Couple Benefits Offered or Law Banning Same-Sex Marriage Overturned	CA3, HI, MA, NJ, VT, WA2
No State Policy	DC, NM, NY4, OR5, RI
Common Law Marriage Recognized	AL, CO, GA6, ID6, IA, KS, NE, NH7, OK6, OR, PA6, RI, SC, TX, UT, DC
1 Alaska -- DOMA adopted in state constitution and state law Nebraska and Nevada -- DOMA adopted in state constitution 2 Washington Superior Court judge ruled in September 2004 that state law banning same-sex marriage violates the State Constitution. Case is expected to be taken up by the Washington Supreme Court. 3 California’s Domestic Partner Registry becomes effective January 1, 2005; will allow most marital rights and obligations to registered same-sex couples. 4 New York -- Legislation pending 5 Oregon -- Constitutional ban question on November ballot 6 Common law marriage recognized only if unions existed before: Georgia - January 1, 1997; Idaho -- January 1, 1996; Oklahoma -- October 1991; Pennsylvania -- September 2003 7 New Hampshire -- common law marriage recognized for probate purposes only Source: Stateline.org

1 Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. Louisiana held a ballot issue vote on Sept. 18 that resulted in passage of the ban.

2 California, Connecticut, District of Columbia, Hawaii, Iowa, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington.

3 MCL 551.1

4 MCL 551.2

5 MCL 551.3

6 MCL 551.4

7 Government Accounting Office, Defense of Marriage Act, GAO/OGC-97-16 (Washington, D.C.; January 31, 1997),