Left2Right

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Posted by: Mona

Well Don, reading that was painful, but nothing therein was surprising -- and I think as a legal matter the AG gets it right. Look, of course the "pro-family" factions that brought MI that amendment are pleased that it also prohibits domestic partner benefits. Most of these folks really are alarmed and horrified by homosexuals, and want to stop the evil "gay agenda." And, for those Michiganders who are not so inclined, but who also are not themselves gay (the vast majority), this issue won't much concern them.

The fact is, this past election with its 11 anti-gay-marriage state referenda, was a debacle for gays, and there is no silver lining to be found. Michigan, as you know, is a blue state, and was not the only such to pass such an amendment. Gays lost big and overwhelmingly on 11/2/04.

It rankles some when I assert that the gay lobby blew it by pushing the issue to the fore a generation before their opponents had dwindled. But that is what happened, and the results are disastrous. There will be more referenda, or legislation, and state after state, red and blue, will follow the other 11.

Posted by: Mona | Mar 18, 2005 12:05:59 PM

Posted by: Mona

And Don, about this: Contemptible deception won their votes for a constitutional amendment. The attorney general has now explained that that amendment has precisely the legal force they distanced themselves from.

It would have passed without the deception.

Posted by: Mona | Mar 18, 2005 12:18:32 PM

Posted by: Thomas

If I understand you, you thought this was what the amendment meant prior to the amendment's passage, and so argued at the time. But now you criticize the AG's reading, which agrees with yours.

If your focus is health care and other such benefits, then why not urge a law that would allow any employee (married or unmarried) to designate an unrelated person in his or her household to receive benefits? That avoids the question of whether domestic partnership is equivalent to marriage, and manages to provide health care and other benefits.

Posted by: Thomas | Mar 18, 2005 12:20:19 PM

Posted by: Bret

Another example of why I think the government needs to get out of the marriage business, whether same-sex, heterosexual, etc. I think that this excerpt from a Reason article says it better than I could:

It is time to privatize marriage. If the institution is really so sacred, it should lie beyond the withering hands of politicians and policy makers in Washington D.C. There should be no federal or state license that grants validity to love. There should be no state-run office that peers into our bedrooms and honeymoon suites. If the church thinks divorce and homosexuality are problematic, it should initiate the real dialogue to address these problems in-house rather than relying on state-sponsored coercion to affirm doctrinal beliefs. And if tax-codes and guardianships need some classification for couples, let's revise civil union standards to reflect those needs.

Posted by: Bret | Mar 18, 2005 12:37:35 PM

Posted by: bakho

The state generally has no interest in employer/employee contracts other than adherence to Federal Minimum Wage Standards. What is the State interest in benefits offered to employees above the minimum requirements? I don't see how the State of Michigan can make this a compelling state interest, gay marriage/domestic partner/ whatever. BTW domestic partner relationships can exist in the absence of gay sex.

This is all about people who are uncomfortable with their own sexuality (prudes) and their children's sexuality trying to legislate limiting sexual activity to only procreative sex between a man and a woman married to each other. To them, all other sexual activity is immoral, they prefer not to hear about it and would even more prefer that sex did not exist. Even if sex does happen, they prefer to believe that unmarried people are not having sex and don't want this belief contradicted. They also believe that if they make all non-married, non-procreative sexual activity illegal, that people will follow the law and not engage in illegal lustful sex.

Suggested reading: "The Maypole of Merry Mount".

http://www.online-literature.com/hawthorne/145/

Posted by: bakho | Mar 18, 2005 12:47:00 PM

Posted by: Stuart

I'm with Mona on this one. The pro-gay-rights people miscalculated badly here. I have said elsewhere (and Don, this ties in to my view about how to read the Constitution and what is the proper role of the courts in our society): I'd venture to say that inside of ten years there will in all probability be legislative change in most states of the union to allow some form of legally sanctioned connection of gay people, up to and in many cases including marriage. That will only happen, however, if we don't have judges, acting by definition UNdemocratically, shoving that down the throat of people who aren't ready for it yet. If they do, there are going to be more of those referendums, like we had in 11 states this past November, to prevent it. And then, even if (say) a majority of Michigan's voters and representatives in ten years WOULD approve gay marriage, they will have to deal with a ban on it in the state constitution (or whereever referenda go).

In terms of the benefits to gay people, they will be much, much better off letting things work their way through the political system. They'll get protection, probably incrementally, and when they get it, it will be insulated from any conceivable attack on its legitimacy. And a little while after that everyone is going to wonder what the fuss was all about.

Posted by: Stuart | Mar 18, 2005 1:06:43 PM

Posted by: Alyssa P

"Traditionally, the benefits were won because a man would provide income for the family so women could stay home and take care of children," Hann said. "To try to arrange a new term of marriage to further people getting better and better benefits doesn't make sense."

Anyone else just as terrified by where this line of reasoning might take us next?

Alyssa P.,
employed woman (currently) with health insurance

Posted by: Alyssa P | Mar 18, 2005 1:13:34 PM

Posted by: Tad Brennan

I don't get this thread.

DH complains that the anti-gay lobby employed a dishonest tactic to pass a referendum they could not have passed honestly. Most responses ignore that aspect of it. Mona's second at least addresses the question of honesty--is Mona right about the levels of support for an alternately-worded referendum? These are things pollsters ask about; what was the answer? At least in some parts of the country, an honestly-worded referendum would *not* have won, where a wording that seemed not to affect domestic partnership rights *would* have won.

And I'm inclined to think that the backers of this one--who seem now to have planned on switching the referendum's effect all along--clearly did not themselves think that they could get the referendum passed with honest language. If they knew that a clear majority of the state would vote for the more sweeping effect, why did they not write that into the referendum? Why did they engage in the campaign of coy denials that DH documents?

If the AG is arguing for a reading that would *not* have won the support of the majority who voted in the *actual* amendment, then why aren't we hearing the usual noise about anti-majoritarian lawyers in long black robes who are flouting the voters' intent? Don't tell me that was just a fashion complaint about black robes all along?

Posted by: Tad Brennan | Mar 18, 2005 1:57:51 PM

Posted by: Mona

Tad Brenna asks: Most responses ignore that aspect of it. Mona's second at least addresses the question of honesty--is Mona right about the levels of support for an alternately-worded referendum?

Do you really imagine that most Michiganders who would vote against same-sex marriage engaged in thoughtful discussions examining whether this amendment impinges on domestic partner benefits? I work in Michigan, and most of my co-workers voted for the referendum -- many did note even know it existed until they got in the booth, and one called me from there to ask me what it meant! (She did not vote as I preferred.) If they even know what domestic partner benefits are, they would not have minded voting against those as well, to end same-sex marriage.

People like us here, intelekshuls, debate these nuances; the voting public that reflexively opposes same-sex marriage does not. The debate does not even interest them. They "know" marriage or any "marriage-like" arrangement is between a man and woman, and that's it.

As to the AG's advisory opinion, the clear language of the amendment forces his conclusion. It doesn't matter what denials any of its backers may have made. And further, people like me and Don were saying it would lead to this result; it has as far as the AG is concerned; and the language mandates it. So if he were to look at the argument in the "legislative history," he'd find many saying his conclusion is unavoidable. Moreover, some of the other referenda that passed also clearly prohibit the recognition of domestic partnerships. I do not recall which, or if they are a majority, but MI is not alone.

And the AG is not a black-robed judge. His opinion is merely advisory, not binding. (But useful to have for a variety of legal reasons if one is in CYA mode.)

Posted by: Mona | Mar 18, 2005 2:18:30 PM

Posted by: john t

What if somebody gave a gay marriage ok and nobody came? The NYT did a couple of pieces on the less than expected reaction to Canadian legalization a while back. David Frum writes that there has been a decreased number of same sex marriages and estimates that in Canada 98% of that country's 750,000 gays have not availed themselves of their new found liberty. I won't pull a Justice Kennedy and suggest that this should be written into American law or decisions but on the other hand I have no fear that our more forward looking judges would do so. Rather we may expect modest incremental judicial fiats like the judge in California declaring a state amendment void,pushing the rest of the state into the dark halls of political impotence. And then ther's the Harvard Bisexual,Gay,Lesbian,Transgender,and Supporetrs Alliance {can't leave out the supporters } known affectionately around campus as BGLTSA,sounds like a great diner sandwich,denouncing Jada Pinkett Smith for a heteronormative speech. Given point one,addiing point 2 {BGLTSA,but no ketchup please } I would hazard that ther's more at work here than a simple,honest,heartfelt desire to spend a lifetime wrapped in wedded bliss apart from {or because of? } the desire to overturn some stodgy tradition supported by the goons of the State. That last remark exempts the Internal Revenue Service which as we know is doing God's work.

Posted by: john t | Mar 18, 2005 2:24:39 PM

Posted by: Terrier

Also, I have to say this whole pat-on-the-head advice about lawsuits and activist judges is ridiculous. What will most likely happen is that this judicial rabble-rousing will eventually bear fruit and over time wear down the injunctions in other states. I wonder how many of these people would be willing to walk around with a knife sticking out of their back and for how long before they went to the hospital and begged for its removal. It must be easy for them to counsel patience when their lives sail along unaffected. My advice is to use any means available because it is clear that the opponents not only of gay marriage but also of gay human beings will do everything in their power (including their own activist judges if it comes to that or sweetly offered advice) to slap these people down.

Posted by: Terrier | Mar 18, 2005 2:29:52 PM

Posted by: Tad Brennan

Mona--

"Do you really imagine that most Michiganders...."

What do I imagine? Beats me. I was hoping to get *past* imagining. I wondered if there were poll results available. My *impression* (from reading sully over the years, fwiw) is that gay marriage still polls strongly negative, but that the extension of rights to gay partners, e.g. insurance, inheritance, custody, etc.--polls fairly positive. I was wondering if you Michiganders (or, to maintain sauce-neutrality, Michigeese) would have any local poll information.

And yes, I do understand that AG's are not judges, and are in fact a part of the executive. My point was that people who object to legal overrulings of majoritarian intent should do so on principled reasons. The fact that some over-rulers wear black robes and others do not is not a principled reason. The fact that one opinion is binding and one is advisory is surely a *more* interesting distinction. The fact that one official serves with life-tenure and one is part of an elected team is more interesting. But if there is a blatant disregard for the people's intent--if the people were baited with one legislative proposal, and had it switched to a proposal with a different effect--then do these differences make the disregard any less outrageous? I want to ask those whose outrage on these matters is more practiced than mine.

Posted by: Tad Brennan | Mar 18, 2005 2:46:14 PM

Posted by: OldMountainGoat

Mona nails it. And, whether he likes it or not, I'm guessing that Don Herzog knows she is right. Or is he holding his breath waiting for the duped voters of MI to wake up and march on the state capital in righteous indignation?

Posted by: OldMountainGoat | Mar 18, 2005 3:24:50 PM

Posted by: D.A. Ridgely

So, assuming arguendo that Mr. Herzog's analysis is accurate, what various folks here are getting outraged over is the discovery that politics is a dirty business?

Posted by: D.A. Ridgely | Mar 18, 2005 3:42:51 PM

Posted by: Clayton

While the voters of Michigan won't be marching anytime soon, I don't think Mona is so clearly in the right here that we should accept what she says without corroboration. About 65% of my students are opposed to same sex-marriage. When I ask these same students what they think of laws that would exclude domestic partners from receiving the same sorts of benefits that married couples receive, there is near consensus that there shouldn't be such laws. In fact, I've often found that students who are vocal in their opposition to same sex marriage bristle at the charge that they are standing in the way of domestic partners receiving the sorts of benefits more traditional spouses have. Last, I'd ask Mona why she thinks that the groups pushing for these measures use guarded language? The obvious explanation seems to be that these groups recognized that the majority of the voters that constitute the mushball middle are decent enough to think that measures as they are now being interpreted go too far. Their cause depended upon ambiguity and they knew it.

Posted by: Clayton | Mar 18, 2005 4:19:54 PM

Posted by: Mona

D.A. Ridgely writes: So, assuming arguendo that Mr. Herzog's analysis is accurate, what various folks here are getting outraged over is the discovery that politics is a dirty business?

Or that only social conservatives engage in disingenuous denials? I came of political age during the effort to pass a federal Equal Rights Amendment. Its advocates heatedly denied Schlafley-esque accusations that the ERA could or would be used to enshrine same-sex marriage as a constitutional right. (At the time I would have opposed that result; I would not now.)

Bull. Of course that case would have been brought, and most feminists pushing hardest for the ERA would not remotely have objected, and I strongly suspect many saw and approved the path to that end that the ERA would have paved. Further, as the High Court was then constituted, or even as it is now, such a claim might well have been successful.

Politicians and partisans lie. This is news?

The bigger issue to me is, now what? We have state after state amending their constitutions or otherwise passing legislation prohibiting same-sex marriage, and even domestic partnerships. The juggernaut continues. Is the gay rights lobby thinking hard about what changes need to be made in their strategies to control as much damage as is possible? I'd certainly join sensible efforts so directed. But lamenting that their opponents in one state campaigned deceptively is not, not even a little, the root of the big trouble they face.

Posted by: Mona | Mar 18, 2005 4:39:53 PM

Posted by: Mona

Clayton inquires: Last, I'd ask Mona why she thinks that the groups pushing for these measures use guarded language?

Well, if I were driving their PR bus (which I would not be for any amount of $), I'd strongly argue they should do just as Don says they did, and that is to keep crying "gay marriage, gay marriage, gay marriage." The truth is -- and your students may not realize this when 65% oppose SSM but so often accept the legitimacy of domestic partner benefits -- once gay partners begin to accrue all of the badges and benefits of marriage, calling their unions something else does not change the fact that SSM moves toward becoming de facto established, and for all practical purposes de jure as well, after a point. Thus, to prevent that, opponents of SSM have to (in order to achieve their goal) also ban "marriage-like" arrangements, which will also capture incidents of marriage like spousal health benefits.

Opponents of SSM who do not draft their prohibitions to include unions called something other than marriage, have not prevented it from occurring by another name. (Before the Mass. S.Ct. decision that launched all this anti-SSM furor, we were seeing the creeping establishment of SSM, with both private and public employers offering domestic partner benefits, and some jurisdictions treating their unions like marriages in family law and other contexts. This would have continued until SSM would have been nearly completely established, but it would have taken another decade or two.)

But, to run a campaign against SSM that acknowledges the proposed law would also ban health care benefits for domestic partners, opens a window for gays to make sympathetic bids to the public about those benefits, rather than arguing for SSM. Ads with, say, two middle-aged grandma lesbians, one of whom stands to lose her health care, might be very effective; but any measure that would not prevent that, would also not effectively preclude SSM. Thus, opponents of SSM are well-advised to keep the focus on "GAY MARRIAGE, OH MY GOD!" and off of nice ladies who stand to lose their health insurance.

Posted by: Mona | Mar 18, 2005 5:11:07 PM

Posted by: Terrier

D.A. Ridgely, I get upset when someone calls me a Marxist. So now you went straight to Lenin's philosophy of the end justifying the means. Well, thanks away, comrade, the point of this whole post IS that "politics is a dirty business."

Mona, isn't it disingenuous to offer advice about staying in the back of the bus when you know the busdriver has a noose waiting for any passenger he chooses? You just made a great argument for the ERA, what did you do to pass it then? I was out in the streets but I kept bumping into to pea-brains that were worried about bathroom facilities. Somebody should have told me not to worry about it - civil rights just aren't important.

Posted by: Terrier | Mar 18, 2005 5:17:59 PM

Posted by: Chris Cagle

Another example of why I think the government needs to get out of the marriage business, whether same-sex, heterosexual, etc.

Fine impulse, I guess (though I can't help but notice that not many were on the uber-libertarian bandwagon for marriage before gay marriage was a distinct possibility). Question remains though, if Michigan voters, much less the U.S. population votes for constitutional amendments to keep straight marriage "special", what do you think the chances are they'll get behind something that gets rid of state recognition of marriage altogether? This let's abolish marriage business is always presented as a compromise between homophilic and anti-gay opinion, when in fact it would broker no such deal. Oh, and the issue of how taxes are done aren't a small issue, but gets to the heart of how the government will recognize joint finances.

Posted by: Chris Cagle | Mar 18, 2005 5:28:46 PM

Posted by: Mona

Terrier writes: Mona, isn't it disingenuous to offer advice about staying in the back of the bus when you know the busdriver has a noose waiting for any passenger he chooses?

Um, yeah, sure. must....not... have....nooses....they....are....bad

You just made a great argument for the ERA, what did you do to pass it then?

I actively opposed it. And still do. But not because it would likely legitimate SSM, which is now a result that might persuade me to overcome my other objections. (Back then, SSM was an exotic topic to me and most, and I gave it almost no thought.)

Posted by: Mona | Mar 18, 2005 5:32:45 PM

Posted by: S. Weasel

I believe civil unions only appeal to those in the middle; people who believe practical issues like medical benefits and hospital visitation rights are the point of the exercise. Both proponents and opponents of same sex marriage are exclusively interested in the electricity generated by the word "marriage" -- and the normalization and societal seal of approval the word implies.

At least, that's how it looks from my vantage point in the middle.

Posted by: S. Weasel | Mar 18, 2005 5:38:29 PM

Posted by: clayton

Mona,

I'm still not convinced. The most common justification I've heard for refusing to recognize same sex marriages from my students is this: they think that the government shouldn't endorse homosexuality and think that this is what recognizing same sex marriage would amount to. They seem to think of the package of legally defined rights and responsibilites that go with being married as extrinsic to the institution and see no reason to deny couples of any sort access. So it may well be that the position they seem to want most is one they are unlikely to end up with, but I'm still at a loss as to why you think that these measures still would have passed without deception.

Posted by: clayton | Mar 18, 2005 5:41:47 PM

Posted by: OldMountainGoat

Clayton, what is the average age of your students? You imply that they are representative of the public at large.

Posted by: OldMountainGoat | Mar 18, 2005 6:03:43 PM

Posted by: D.A. Ridgely

Umm, Terrier, you write "My advice is to use any means available," and you complain about my supposedly Leninist question?

Posted by: D.A. Ridgely | Mar 18, 2005 6:04:44 PM

Posted by: Bret

Chris Cagle wrote: "what do you think the chances are they'll get behind something that gets rid of state recognition of marriage altogether?"

In one step in the near term? Zero. There's some small chance it might evolve to that point in one or more states in the distant future. I didn't say I thought it would happen, only that it should happen.

And, BTW, if the bandwagon had existed earlier, I might've got on it. It's a potential solution to a problem that is apparent now, but wasn't particularly apparent before.

Posted by: Bret | Mar 18, 2005 6:08:20 PM

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