By Peter J. Hammer, J.D., Ph.D.
Last November, Michigan voters approved Proposal 2. Ostensibly, the constitutional amendment was about restricting marriage to opposite-sex couples.
A wolf, however, was hiding in Proposal 2’s intentionally inartful language: “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.” Seizing upon this language, Attorney General Mike Cox turned an amendment designed to shield marriage into a sword to attack the economic rights and liberties of Michigan GLBT citizens. According to the Attorney General, Proposal 2 “prohibits state and local governmental entities from coffering benefits on their employees on the basis of a ‘domestic partnership’ agreement.”
Within days of the Attorney General Opinion, the ACLU of Michigan filed a law suit seeking a court order declaring that Proposal 2 does not prohibit public employers from providing domestic partnership benefits. The lawsuit was filed on behalf of twenty-one same-sex couples who receive health care benefits from public employers, pursuant to voluntary contracts of employment. I am one of those named plaintiffs. I am an Associate Professor at Wayne State University Law School, and I receive domestic partnership benefits that cover myself and my partner of fourteen years.
I care about love. I also care deeply about commitment. But I don’t care much about marriage. To me, marriage is an arcane social institution, overlaid with hypocrisy and burdened with discriminatory religious baggage. To be sure, I think that same-sex couples who want to get married should be permitted to do so. I also believe that state prohibitions against same-sex marriage violate the equal protection of law. That said, however, marriage is not for me.
What concerned me about Proposal 2 was not its restriction of marriage to opposite-sex couples. That type of narrow provincialism is exactly what I associate with those who advocate preserving the “sanctity” of marriage. What concerned me about Proposal 2 was its disingenuous overbreadth, and its potential to deny me and others important economic rights that have nothing to do with marriage.
Historically, there is a close relationship between the oppression of vulnerable groups and the denial of economic rights, such as the right to own property or the right to contract. People need to be reminded that not too long ago, married women did not have the right to own land, or the right to enter into binding legal agreements. As a result, the struggle for women’s rights was also a struggle for economic rights.
The same can be said about the struggle of African Americans for equal justice. There is a necessary linkage between the integrity of political rights and the integrity of economic rights. It was not enough to end slavery. It was also essential to empower African Americans as full economic citizens. This is easier said than done. The struggle for full economic citizenship for black Americans continues to this day.
Tellingly, the oppression of vulnerable subgroups of the German population in the 1930s began with the systematic denial of important economic rights. In 1933, economic boycotts were instigated against Jewish businesses. That same year, Jews were banned from any public employment to protect the integrity of the state’s civil service. Two years later, the Nuremberg laws were enacted denying Jews the rights of citizenship and, ironically, the full rights of marriage.
When the issue is framed as a denial of basic economic citizenship, the true invidious nature of the Attorney General’s Opinion is laid bare. Attorney General Cox is seeking to deny members of the gay and lesbian community fundamental economic rights – the right to contract and the right to use the fruits of their labor to bargain over the terms and conditions of their employment.
The Attorney General’s embrace of status-based discrimination stands in opposition to the entire march of western law and civilization. Sir Henry Maine characterized the evolution of law as a progressive move from status to contract. The Attorney General is taking Michigan in the exact opposite direction.
This denial of economic liberty has deep personal effects. This Fall, my partner and I will celebrate our 14th anniversary. There is nothing more important to me than my ability to provide love, care and support to my partner and our family. I accepted an academic position at Wayne State because the University offered domestic partnership benefits. Now, the Attorney General seeks to deprive me of the very economic rights that permit me to provide essential health care benefits to my family.
This is not just wrong, it is shameful. Every gay, lesbian or transgendered American knows the bitter sting of discrimination. We will not stand silently by. The lessons of history and the teachings of justice are on our side.