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Information On Same-Sex Marriage

What is marriage? In Michigan, MCLA 551.1, MSA 25.1 provides as follows:

Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contract between individuals of the same sex is invalid in this state.

In 1996, the Michigan legislature amended the statutes governing marriage to provide that same-sex marriages are invalid in Michigan. MCLA 551.1, MSA 25.1. Although marriages between a man and a woman that are solemnized in another state are valid under Michigan law, MCLA 551.271(1), MSA 25.15[1), marriages between persons of the same sex that are solemnized in a state that recognizes same-sex marriage are not valid in Michigan. MCLA 551.272, MSA 25.16.

Under the Federal Defense of Marriage Act, 28 USC 1738C, no state may be required to recognize any act or judicial proceeding involving a relationship between people of the same sex that is recognized by a state that permits same-sex marriages. Nor may a state be required to recognize any rights or claims arising from these marriages.

Despite the clear language of the Michigan and Federal law, the issue of same-sex marriage has continued to be controversial during the past ten years. In 1993, a Hawaii Supreme Court decision set off the movement in many states to prohibit the

recognition of same-sex marriages regardless of where they were formed. In the Hawaii case, three same-gender couples filed suit against the State of Hawaii, citing as unconstitutional the State’s marriage law prohibiting same-gender couples from obtaining marriage licenses. The Hawaii Supreme Court ruled that the marriage law denies same-gender couples’ equal protection rights in violation of the Hawaii Constitution, and placed the burden on the State to show that the law against same-sex marriages was justified.

The Hawaii legislature in 1994 amended the State’s marriage law to provide that only marriages between a man and a woman are valid. In November, 1998, Hawaii citizens voted to give the state legislature the power to decide the same-sex marriage issue. This resulted in an amendment to the state constitution that defined marriage as a union “between a man and a woman.”

Finally, in December, 1999, the Hawaii Supreme Court ruled that the 1998 amendment ratified by the voters of Hawaii rendered the plaintiffs argument moot, with the result that same-sex marriage remains illegal in Hawaii. Baehr v Miike, 92 Haw 634, 994 P2d 566 (1999).

In Baker v State, 744 A2d 864 (Vt 1999), the Vermont Supreme Court held that the state was constitutionally required to extend to same-sex couples the same benefits and protections that married couples enjoy under Vermont law. Without requiring the marriage laws to change to accommodate same-sex couples, the court required the state to adopt a system that affords all state residents “the common benefit, protection, and security of the law.” Id. at 867. In April 2000, Vermont legalized the “civil union” of same-sex couples. See 15 VSA ‘1201 et seq. Under Vermont’s Civil Union Act, “[Oates to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.” Id. at 1204(e).

Presently, same-sex marriages are not legal in any state. In fact, 36 states have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages in reliance upon the Federal Defense of Marriage Act, which creates an exception to the Full Faith and Credit clause of the United States Constitution.

In a landmark ruling, an Ontario Provincial Court legalized same-sex marriage in the Province on June 10, 2003. A three-member Ontario Court Panel ruled that a law limiting marriage to heterosexuals violated the 1982 Charter of Rights Freedoms, part of the Canadian Constitution. The Court removed the “one man and one woman” passage from the marriage statute and redefined it as “the voluntary union for life of two persons to the exclusion of all others.” This ruling, for now, applies only to Ontario, but could increase pressure to legalize same-sex marriages throughout Canada. In fact, Canadian Prime Minister, Jean Chretien, announced that he would support a bill to legalize gay marriage throughout the country. Currently, only Belgium and the Netherlands recognize same-sex marriages. However, the action recently taken by the Ontario Court may lead to new challenges to the Defense of Marriage Act and other civil rights advancements in the United States.

Interestingly, in the seven weeks following the legalization of same-sex marriages in Ontario, Toronto issued 441 same-sex marriage licenses. Of those, 79 were to US couples from 27 different states, including Michigan. In Windsor, 45 marriage licenses were issued, including 24 to United States couples. Approximately

one month after the landmark ruling from Ontario, on July 17, 2003, the United States Supreme Court in a 6-3 decision in Lawrence v Texas, NO. 02-102, struck down a Texas law prohibiting intimate sexual conduct between same sex persons as a violation of the due process clause of the 14 th Amendment. Supporters and critics of the Lawrence decision agree that it will be used as a vehicle to attack discrimination against homosexuals in all its forms, including the prohibition against same-sex marriages.

Since the Ontario Provincial Court and United States Supreme Court rulings, there has been a flurry of activity regarding the issue of same-sex marriages. Nationally, President Bush announced that he has directed his lawyers to draft a law defining marriage as a union between a man and a woman. In the State of Michigan, Governor Jennifer Granholm stated that she “believes that marriage should be between a man and a woman.” However, she would “support legal recognition of long-term commitments of same-sex couples similar to Vermont’s civil union.”

Most recently, on November 18, 2003, the Massachusetts highest court ruled 4 to 3 that the state’s ban on same-sex marriage is unconstitutional and gave lawmakers 180 days to come up with a solution that would allow gay couples to wed. In doing so, the court said:

Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family – these are among the most basic of every individual’s liberty and due process rights … and central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations … barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. The right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interest of public health, safety and welfare…

Immediately after the Massachusetts court issued its opinion, Governor Mitt Romney and others quickly called for an amendment to the State Constitution to define marriage as a union between a man and a woman. If approved, this would make same-sex marriages impossible in Massachusetts. However, under Massachusetts’s law, that process could not take effect until November 2006, which means that by this spring, Massachusetts may be the first state in the country to legalize same-sex marriages. Furthermore, since Massachusetts has no residency requirements for marriage licenses, there may be a flood of applications and same-sex marriages thereafter.

As a result of the above, there is again a strong movement throughout the United States to ban same-sex marriages. On a national level, according to a new Gallup Poll, 61% oppose same-sex marriages, up from 55% in July. In Michigan, by a 51-38% margin, voters said they would like to see same-sex marriages banned. Likewise, by a 53-39% margin, voters also opposed civil unions. The poll of 600 voters was sponsored in part by the Detroit News. Based partly upon the results of this survey, on October 7, 2003, Senator Alan Cropsey introduced Senate Joint Resolution E which provides for an amendment to the Michigan State Constitution which would define marriage as only between one man and one woman. If two-thirds of our state lawmakers approve the legislation, it will appear on the State’s November 2004 ballot.

Finally, based upon President Bush’s statement, support has grown to 90 sponsors in the House of Representatives for a Federal Marriage Amendment to the United States Constitution, which would state as follows:

Marriage in the United States shall consist only of the union of a man and a woman.

Neither this Constitution or the Constitution of any state, nor state or federal law, shall be construed to be required that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

While this amendment has yet to be introduced in the United States Senate, several senators have indicated that they would vote for it. A Constitutional Amendment requires the approval of two-thirds of the House and Senate, and three-quarters of the states.

In summary, the issue of same-sex marriage continues to be a hot topic. However, despite the recent favorable rulings by the United States Supreme Court and the Ontario Provincial Court, it appears that the majority of state governments and the federal government are moving quickly to make sure that same-sex marriages will never be allowed to take place or be recognized in the United States