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BALLOT PROPOSAL PROPOSITION 2:

Michigan voters risk creating a real mess

By Jack Lessenberry

On Election Day, Michigan voters will be asked to outlaw something that is already illegal, but to do so in a way that will invite lawsuits, threaten health care for children, and have other unintended consequences.

The issue is called Proposal 2 and, if enacted, it is apt to create a real mess. But every sign is that voters will do so anyway. The issue, of course, is gay marriage, which is already against the law in Michigan and across the nation.

Now, however, those opposed to it want to enact a proposed state constitutional amendment specifying that "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."

That amendment got on the ballot this fall, despite its rejection by the conservative, Republican-led Michigan legislature, which said it was unnecessary and feared it might have far-reaching effects beyond gay marriage.

But a group called Citizens for the Protection of Marriage then managed to collect nearly half a million signatures to get the issue on the ballot. Polls show it passing easily, despite bitter opposition from civil rights groups.

Similar propositions are on the ballot in Ohio and eight other states this November, many of them spurred by reaction to San Francisco and Massachusetts' brief experiments in recognizing gay marriage earlier this year.

However, many of them - including Michigan's - may have effects far more sweeping than their framers intended.

he main problem here is in the last six words of the amendment - "or similar union for any purpose." That was clearly meant to also outlaw civil unions between gay couples. But it would also prevent public officials from extending marriage benefits, such as health care coverage, to same-sex partners of unmarried employees.

A number of cities, universities, and a few private employers provide such benefits now. Some even fear the amendment would also outlaw so-called domestic partner benefits for any unmarried people, even opposite sex couples. That would affect health care coverage for an unknown number of children.

That would mean, of course, lawsuits galore.

The Coalition for a Fair Michigan, an ad hoc group of those opposed to the amendment, has been making that argument in an effort to persuade voters that Proposal 2 is bad news.

But that argument isn't working. "I think that marriage is between a man and a woman, period," said Randell Shafer, a Republican candidate for Congress in the hopelessly Democratic 12th District. Mr. Shafer doesn't have a chance, but many who vote against him are certain also to vote against gay marriage.

Surveys have found that black voters, who overwhelmingly back liberal Democratic candidates, are also some of the strongest supporters of the gay marriage ban. Their signatures, many collected in packed churches, went a long way toward helping get it on the ballot.

Some who are bitterly opposed to gay marriage have indicated to pollsters the hope and the mistaken belief that the amendment will outlaw gay sexual activity, period. But even if Michigan voters wanted to do that, they could not.

The U.S. Supreme Court ruled last year in Lawrence vs. Texas that the state could not prohibit sexual activity between same-sex persons.

The hope of those who believe in equal rights for same-sex unions now largely centers on the U.S. Supreme Court. Robert Sedler, a distinguished professor of law at Wayne State University in Detroit, predicts that eventually the high court is bound to decide the issue.

Many lawyers - including some who oppose same sex marriage - think the current amendment is clumsily written and apt to be overturned by the courts, which may rule that it is too vague to be enforced.

But it would be especially ironic if Michigan voters outlaw same sex marriage this fall, and the Supreme Court later not only overturns the law, but also decides that gay marriage is a constitutionally protected right.

Professor Sedler isn't willing to predict that will happen. "I learned a long time ago that you can't predict how the court will decide."

But he thinks that is exactly what the courts should do. "Indeed, I see Lawrence as providing Ö impetus to recognition of a constitutional right to same-sex marriage." Mr. Sedler said.

The professor, who has been married for 44 years and whose children are all married and heterosexual, believes strongly that not only is the current amendment wrongheaded, "the Constitution should protect the right to same-sex marriage under the equal protection clause. There is no logical or rational reason why marriage should be limited to opposite-sex couples."

Polls show his is the minority view today. But they also show that the state's youngest voters are the most in favor of a right to gay marriage.

Thirty years from now, Michigan may be a very different place.
                                 
Jack Lessenberry is a member of the journalism faculty at Wayne State University in Detroit. This article first appeared in the Toledo Blade.
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This is the first in a series that will examine the key State Ballot Proposals in the November election.

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