Scholar questions constitutionality of Michigan’s marriage amendment

By |2018-01-16T06:49:06-05:00October 31st, 2017|Uncategorized|

MOUNT PLEASANT – The constitutionality of Michigan’s marriage amendment is in question after a marriage amendment in Nebraska was struck down by a federal court May 12.
According to Central Michigan University finance and law professor Theodore Bolema, the logic used by the judge in the Nebraska case would apply equally well to Michigan’s amendment.
The judge in the Nebraska case found that Nebraska’s amendment, which was passed in 2000 and specifically prohibits civil unions and domestic partnerships, was unconstitutional because it prohibited gays and lesbians from working to attain equal rights under the law by effectively blocking their access to the proper legal and legislative channels. According to US District Judge Joseph Batallion, this amounted to “an unconstitutional bill of attainder.”
“In the national news there’s been some coverage about the striking down of the Nebraska decision, talking about how it may not apply to other states and if there’s one that it does apply to it’s Michigan,” said Bolema. “So maybe a federal court in the 6th circuit district would apply that same logic.”
The Nebraska decision is being appealed.
“The question is, what’s going to happen to the Nebraska decision on appeal,” Bolema said. “We don’t really know that yet.”
According to Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Legal Project, the two amendments have important differences. “Michigan’s amendment is not almost identical to Nebraska’s in that Nebraska’s amendment language explicitly prohibits both civil unions and domestic partnerships for same-sex couples,” said Kaplan. “Michigan’s amendment language specifically limits marriage to one man and one woman, but then has those ambiguous six words, ‘or similar union for any purpose.'”
The language of the Michigan amendment has yet to be interpreted by a court.
“We do agree with Professor Bolema that if Michigan’s amendment is interpreted by Michigan courts to prohibit recognition of domestic partner benefits that this would violate federal constitutional guarantees of equal protection and would constitute an unconstitutional bill of attainder, which is what the federal court in Nebraska found,” said Kaplan. “If Michigan courts were to interpret the marriage amendment to be have the same effect as Nebraska’s amendment, we would challenge the amendment in federal court.”

About the Author:

D'Anne Witkowski
D'Anne Witkowski is a writer living in Michigan with her wife and son. She has been writing about LGBTQ+ politics for nearly two decades. Follow her on Twitter @MamaDWitkowski.