My identical twin brother is straight. He has always been supportive of his gay sibling and a staunch advocate for LGBT civil rights.
He's written an essay on Prop. 8 from his own perspective. I think it is worth knowing how many of our straight friends and family members argue against it.
In 1850, the State of California passed a law declaring that marriages of white people to "negroes or mulattos" were illegal and void. In 1880, the California Legislature expanded that prohibition to outlaw the issuance of marriage licenses to whites who wanted to marry "Mongolians" (the term then used by the California Legislature to characterize people of Chinese descent). In 1905, the California Legislature yet again expanded the state's anti-miscegenation law, declaring "illegal and void" all marriages between whites and "Mongolians".
The purpose of this racist law is abundantly clear, but the later additions had a more sinister motive: genocide. If the disproportionately male population of Chinese (laborers brought over to build the railroads, but discarded once the work was finished) were forbidden to marry outside their race, they would not be able to reproduce and would cease to exist on California soil. That was the idea, anyway.
Those laws stayed on the books until 1938, when the landmark case of Perez v. Sharp was taken all the way to the Supreme Court of California. The highest court in the state ruled that the anti-miscegenation statute violated the Fourteenth Amendment to the United States Constitution and was therefore unconstitutional. The U.S. Constitution trumps a State Constitution every time.
What does this mean to me? Well, my three beautiful kids are the product of a marriage between a white (me) and a Filipino (one of those aforementioned "Mongolians"). If those disgusting laws had not been overturned, it would have been illegal for me to marry my children's mother. My brilliant son would have never been born to make me so proud. My lovely daughters would have never existed and filled my life with such love and joy.
1938. That was only 70 years ago.
Don't be fooled. Prop 8 is no different than those anti-miscegenation laws from our state's shameful past. Prop 8 won't "protect" families and it won't "preserve" marriage. All it will do is limit the rights of gays and lesbians who should have the same constitutional rights to life, liberty and the pursuit of happiness that all U.S. citizens enjoy.
Prop 8 will only limit and deny rights that the California Supreme Court has already determined are guaranteed to all Californians by our current laws--and it will do so by amending our State Constitution.
Amending our State Constitution is certainly a drastic step, and one that should not be taken lightly. It's a slippery slope that could lead to...denying marriage to people of different races? Religions? Political views? Before you discount this argument as exaggeration, consider the laws that were the rule of the land in California a mere 70 years ago.
You don't think some wacko fringe group will ever come along and seek to deny YOUR rights? Are you sure about that? In 1924, the KKK actually took over the city council of...Anaheim, California. They wanted to set up Anaheim as a "model city" and they almost succeeded. That was only 84 years ago. I'm sure if a similar group ever wants to get a toehold in California again, a ballot initiative to change the State Constitution will be just the ticket they'll need.
Vote NO on Prop 8. The rights you'll be protecting will be your own, whatever your sexual orientation.
My last post detailed how the proposed amendment would greatly expand Florida's current ban on marriage. Right now, Florida law prohibits the recognition of "relationships between persons of the same sex which are treated as marriages," while Amendment 2 would expand that to include any "legal union" (with no limitation to just same sex relationships) that is "treated as marriage or the substantial equivalent" to marriage. Because the phrase "substantial equivalent" to marriage is undefined under Florida law, it will be up to the courts to determine its exact meaning.
What has happened in other states with similar amendments should give us some clues about how Florida courts will interpret the "substantial equivalent" to marriage language of Amendment 2. Michigan, Ohio, and Kentucky provide the best guidance on how Amendment 2 will be treated by the courts, because these states passed amendments that not only define marriage, but prohibit the recognition of anything that resembles marriage.
This post will detail how Michigan courts interpreted its marriage amendment, which passed in November 2004.
Michigan's marriage amendment, which is now Section 25 of the Michigan Constitution, states:
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 phrase "as a marriage or similar union for any purpose" is as broad as Amendment 2's language that prohibits any "legal union that is treated as...the substantial equivalent" to marriage, so a very recent opinion of the Michigan Supreme Court should help us understand how Amendment 2 will be treated by the courts.
On May 7, 2008, the Michigan Supreme Court issued its opinion regarding its marriage amendment. The court essentially defined the phrase "similar union for any purpose," and held that it prohibited public employers from recognizing domestic partnerships for the purpose of awarding health insurance benefits. This ruling affects teachers, nurses, professors, fire fighters, and police officers. For many unmarried couples in Florida, there are many unfortunate lessons from this Michigan opinion that are applicable to understanding Florida's Amendment 2.
Lesson 1: It does not matter what the proponents of Amendment 2 claim it means
In interpreting Michigan's marriage amendment, the Michigan Supreme Court focused on what the voters thought would be the most common understanding of its words at the time that it passed. No deference was given to the meaning claimed by its drafters or proponents
For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it...1
This is an important point because the people who wrote and are pushing Amendment 2 repeatedly say that it is only about defining marriage, even though the amendment clearly goes beyond that. According to the main proponent and drafter of Amendment 2, John Stemberger:
A "yes" vote on Amendment 2 does one thing and one thing only: It defines marriage as the union of one man and one woman.
The same claim was made in Michigan. The Citizens for the Protection of Marriage, one of the main supports of Michigan's Amendment, produced a campaign brochure that claimed: "This is not about rights or benefits...It merely settles the question once and for all what marriage is..."2 In interpreting the amendment's meaning, the court said the brochure was irrelevant:
Similarly, the voters here did not vote for or against any brochure produced by Citizens for the Protection of Marriage; rather, they voted for or against a ballot proposal that contained the actual language of the marriage amendment.3
The lesson here is simple: it just doesn't matter what Mr. Stemberger says or thinks Amendment 2 means. Instead, the courts will look to see what Amendment 2 actually says and not what any proponent claims, which leads us to the next important lesson to come from the Michigan Supreme Court.
Lesson 2: If it was only about defining marriage, why would the drafters include the "substantial equivalent" to marriage language?
A large portion of Michigan Supreme Court's opinion focused on the "similar union" language in the amendment. The court emphasized that if the court did not extend "similar union" to include domestic partnerships, it would be deeming that portion of the amendment meaningless:
If the marriage amendment were construed to prohibit only the recognition of a union that possesses legal rights and responsibilities identical to those that result from a marriage, the language "or similar union" would be rendered meaningless, and an interpretation that renders language meaningless must be avoided.4
In further support of this point, it distinguished the Michigan amendment from those amendments passed in other states that simply recognize marriages between one man and one woman.5 It emphasized the fact that the Michigan amendment went even further and also prohibited "similar unions for any purpose," essentially saying that there could be no other purpose to add "similar union" to the amendment than to prohibit domestic partnerships.
Lesson 3: In determining what is "substantially equivalent" to marriage, the courts may focus on how the domestic partnerships are formed and not on the subsequent benefits awarded to them.
The most interesting and far reaching portion of the Michigan Supreme Court decision was how it determined whether domestic partnerships were similar to marriage. The court refused to accept the argument that if all of the rights and responsibilities associated with marriage were not given to the domestic partnership, it was not similar to marriage. Instead, the court examined the underlying composition of a domestic partnership and a marriage and found that they were similar. The focus was on how the relationships were formed legally, and the court determined that domestic partnerships and marriages were legally formed in similar ways. For example, the court found these similarities between marriages and domestic:
• Marriages and domestic partnerships are often defined by the sex of the parties (marriages are for opposite sex couples and domestic partnerships are for same-sex or opposite-sex couples).
• Both require that the people involved not be closely related by blood.
• Both are limited to two people.
• Both require that the persons involved in the relationships undertake obligations of mutual support.
• Both require a minimal age requirement.
• Both are relationships that continue until one party takes steps to terminate it.
The court was especially moved by the fact that it could not find any other relationships in Michigan that were defined in terms of both gender and lack of close blood relations:
Because marriages and domestic partnerships are the only relationships in Michigan defined in terms of both gender and lack of a close blood connection, and, thus, have these core "qualities in common," we conclude that domestic partnerships are unions similar to marriage.6
By focusing on how and why domestic partnerships are formed instead of the benefits that are given to the relationships, the court changed the analysis significantly. Most importantly, if the Florida courts simply focus on how domestic partnerships are formed, as the Michigan Supreme Court did, they almost certainly will find that domestic partnerships are the "substantial equivalent" to marriage.
Let's just compare the requirements for establishing a domestic partnership in Broward County, which are typical for domestic partner registries in the state:
1. Each party is at least 18 years old and competent to contract
2. Neither person is married, nor a partner to another domestic partnership relationship
3. Consent of either person to the domestic partnership relationship has not been obtained by force, duress, or fraud
4. Each person agrees to be jointly responsible for each other's basic food and shelter
These are essentially the same requirements for a marriage in Florida. A marriage has to be between individuals over 18 years old (unless other requirements are met), who are not currently married, and who are going to provide for the mutual care of each other. There are really no differences here.
There is no doubt that the exact meaning of Amendment 2 will be litigated for years if it passes, but this Michigan Supreme Court opinion gives us a glimpse into the wide-reaching impact it could have on all of the relationships that currently are recognized in Florida, including domestic partnerships.
This Michigan Supreme Court opinion makes one thing certain about Amendment 2--it will do more than just define marriage as one man and one woman.
Be sure to read the rest of my series discussing the legal issues surrounding Amendment 2:
- The Real Impact of Florida's Amendment 2
- Florida's Amendment 2: Florida Is No Connecticut!
- Florida's Amendment 2: What Does "Substantial Equivalent" To Marriage Mean?
- Florida's Amendment 2: The Lessons from Michigan
__________________________
1 National Pride at Work, et al. v. Governor of Michigan, 748 N.W.2d 524, 533 (Mich. 2008).
2 Id. at FN 22.
3 Id. at 543-544.
4 Id.
5 Id. at 542-543.
6 Id. at 537
No comments:
Post a Comment