By Jay Kaplan
On the heels of the both wonderful and historic U.S. Supreme Court decision in Windsor v United States (a case brought by the national ACLU), striking down the Defense of Marriage Act as unconstitutional discrimination against gay and lesbian couples, the most frequent question that the ACLU of Michigan’s LGBT Project has been receiving is what does this mean for marriage equality in Michigan and how do we get there? There are numerous potential roads towards marriage equality for all 50 states and there are several important points to keep in mind:
1. In deciding to dismiss the Perry case (the challenge to California Prop 8 constitutional amendment which denied same-sex couples the right to marry) and thus allowing same-sex couples in California to marry, the Supreme Court majority sent the message that at this time it is not ready to decide the issue of marriage equality overall for same-sex couples. This means that 29 state constitutional amendments (including Michigan’s, which is one of the most prohibitive in the country), denying gay couples the right to marry still stands. This also means that whatever further litigation, advocacy and lobbying done on behalf of marriage equality in individual states has an impact on the marriage equality movement overall, building momentum for the eventual day when a majority of the Supreme Court justices will be ready to decide the issue of marriage equality for LGBT people.
2. With DOMA being struck down, this means that same-sex couples who are legally married in states that permit them to marry, will be afforded all the federal benefits, rights and recognitions associated with marriage. However, for legally married same-sex couples who live in states like Michigan, which prohibit the right to marry, as well as refuse to recognize marriages between same-sex couples in other states and jurisdictions (such as Canada), things are a bit more problematic. While the Immigration Naturalization Service (INS) defines marriage for purposes of obtaining U.S. citizenship as the place of celebration, many other federal programs such as Social Security and the Internal Revenue Service, define marriage in terms of the place of domicile, rendering Michigan couples (who married in other states), ineligible for these benefits and programs. Fortunately, the Obama Administration has stated that they will take aggressive administrative action to issue executive orders and federal regulations that define marriages as the place of celebration, to permit as many legally married same-sex couples to receive federal benefits and protections. In addition, the Respect for Marriage Act has been reintroduced in Congress and would have all federal programs (including Social Security and the IRS), recognize the legal marriages of same-sex couples. Both Michigan Senators Debbie Stabenow and Carl Levin have signed on as co-sponsors of this bill. Another way to ensure that legally married same-sex couples in Michigan receive full recognition by the federal government, would be to have the Michigan legislature repeal the 1996 law which denies state recognition to legally married same-sex couples. Given the make-up of Michigan’s current legislature, this would not be politically feasible at this point in time.
3. The same week of the Windsor and Perry decisions, federal district Judge Lawson held that Michigan’s law prohibiting certain public employers from providing health insurance coverage to same-sex partners of employees was unconstitutional and he issued a preliminary injunction against further enforcement of the law. Although the Bassett v Snyder decision (an ACLU of Michigan case), did not address the issue of marriage equality, there’s plenty of strong language addressing the unconstitutionality of discrimination against LGBT people and skepticism regarding the state’s rationale for such discrimination. (The state’s claims “come close to striking (the court) with the force of a 5-week-old, unrefrigerated dead fish”). Such language, coupled with the compassionate language in the Windsor decision, certainly could support striking down Michigan’s constitutional marriage amendment, which is being challenged in the DeBoer federal court second parent adoption case. Federal district court Judge Friedman could issue a decision in that case as early as October 2013. A favorable decision in this case would likely be appealed in the 6th Circuit Court of Appeals.
4. In addition to the DeBoer case, the ACLU has filed federal challenges in Pennsylvania and Virginia (in partnership with Lambda Legal), regarding the denial of marriage equality. The Pennsylvania case will eventually bring ten couples in long-term committed relationships, plus one widow, to the Third Circuit Court of Appeals and the Virginia marriage claim will be heard by the Fourth Circuit. In North Carolina, the ACLU is adding marriage claims to their existing case seeking second-parent adoptions for families headed by same-sex couples. The ACLU believes that the language in the Windsor decision which spoke about how children are harmed by the denial of federal recognition of married same-sex couples, will resonate with the Court. Aside from these cases, there are six other federal marriage claims pending all around the country. Eventually one or more of these cases will make it to the U.S. Supreme Court.
5. Litigating in State Court – The ACLU is working to persuade states’ courts that discriminatory marriage laws violate state constitutional protections. It pursuing such cases in New Mexico (as co-counsel with the National Center for Lesbian Rights) and in Illinois (with Lamba Legal). Since these cases raise claims only under state law, and not federal law, the state supreme courts will have the last word and opponents won’t be able to get the U.S. Supreme Court to overturn favorable rulings. This strategy is unlikely work in Michigan as 5 out of the 7 Michigan Supreme Court justices are conservative and thus less inclined to find the amendment to violate Michigan’s constitution.
6. Lobbying in state legislatures – The ACLU is working to pass freedom to marry laws in state legislatures with a current focus on Hawaii, Illinois and New Jersey. In addition, the organization has launched Out for Freedom, a campaign to raise $10 million in special funds to ensure the success of a state by state marriage initiative. Steve Schmidt, former manager of John McCain’s 2008 Presidential Campaign has been hired to work on securing Republican support for marriage equality in various states.
7. Organizing ballot campaigns to repeal state constitutional amendments – Equality Michigan is spearheading the efforts of the Michigan Marriage Coalition, which is a campaign to repeal Michigan’s Marriage Amendment in the 2016 elections. The campaign estimates that it will need to fundraise at least $12 million dollars to launch a successful repeal campaign. The ACLU will be working with state and national partners to build campaigns in Oregon (2014) and Nevada (2016) to build successful repeal campaigns. The overall goal of the national ACLU marriage equality work is to have at least 20 states with marriage equality by the end of 2016 (which currently is at 13 states, plus the District of Columbia).
So there are many roads that eventually lead to marriage equality in all 50 states, as well as the State of Michigan. There remains much work to be done, which includes careful and thoughtful strategic planning – because anything and everything that is done on behalf of the freedom to marry impacts the cause overall. Due to a number of factors, achieving marriage equality in Michigan is going to be a tougher road to travel than other states. We need to know our legislative leaders and to know our courts. However, these are very exciting and hopeful times, with an inevitable favorable destination at the end of these roads.