With the country on the precipice of cementing protections for same-sex marriage into federal law, questions of whether Michigan will do the same has arisen in recent days. And the state’s top law enforcement official is pushing for a citizen-led referendum on the issue.
Up before Congress is H.R. 8404, known colloquially as the Respect for Marriage Act. It would repeal the 1996 Defense of Marriage Act, or DOMA, which barred the federal government from respecting same-sex marriages done under state laws.
The move would also repeal the Full Faith and Credit portion of DOMA – a clause of the 90s-era act that didn’t require a state to acknowledge same-sex, out-of-state marriages – while putting federal protections in place for interracial marriages as well.
H.R. 8404 passed the U.S. House in July with a bipartisan vote of 267-157, which according to the American Civil Liberties Union makes it the most pro-LGBTQ vote in Congressional history. The U.S. Senate advanced the bill in a 62-37 vote on Nov. 16 after tacking on an amendment which specifies that nonprofit religious organizations are not required to provide services for same-sex marriages.
It now is awaiting a final confirmation vote in the U.S. House before further movement.
And though progress is being made at the federal level on the issue, whether Michigan will follow suit on codifying protections for same-sex marriages is now something many, including Attorney General Dana Nessel, are pondering. Should Congress pass their version of the law, it would preempt anything on Michigan’s books, though proponents argue changing state law as well would only serve as an additional reinforcement measure to protect same-sex marriage.
To do so, however, it would take a constitutional amendment – similar to what voters OK’d on Nov. 8, with respect to the right to an abortion. That’s because in 2004, the state overwhelmingly voted in the MI Marriage Amendment, which bars the state from recognizing or performing either same-sex marriages or civil unions altogether.
The measure passed with nearly 59% of the vote at the time, with only two counties voting in opposition.
The 2004 amendment was later usurped by the Supreme Court’s decision in the landmark 2015 case Obergefell v. Hodges, which held that the Fourteenth Amendment does require a state to license and recognize same-sex marriages just like heterosexual marriages. Yet, much like how Michigan’s 1931-era ban on abortion stayed on its books following a decision in Roe, the MI Marriage Amendment remains part of Michigan law; and proponents of same-sex marriage see that as a major problem, should Obergefell suffer a similar fate to Roe.
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Sen. Jeremy Moss, D-Southfield, who will hold the gavel in the Senate next term, said he does believe the votes are now there statewide to change that. He likened it to how Michiganders’ attitudes on abortion have dramatically changed since it was last on the ballot.
“Regardless of what happens with Obergefell in the future – which obviously, there is a threat it could be overturned – right now, we have unconstitutional language in our Constitution,” he said. “Just like that 1931 abortion … law was unconstitutional the second the Roe v. Wade, the legislature should have addressed it then. We should be working now, as we should have been working, to repeal the language in our constitution that bans marriage equality.”
That could present an uphill battle for proponents in the near future, considering that for a constitutional amendment to even make the ballot it needs a number of signatures equal to a portion of the total votes cast for all gubernatorial candidates in the most recent election.
“I’m convinced that we have the votes to pass it. I’ve been saying it for the last several years,” said Moss, who is openly gay. “I think it is going to, hopefully, be a quick process to maneuver, to get that enshrined into law, with all Democrats supporting it – but certainly, Republican members of the legislature, I think, are now freed up to support it because the leadership will allow it to come to a vote.”
As to why the country is now looking into legal protections for same-sex couples, it comes on the heels of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. That ruling overturned the 1973 Supreme Court decision in Roe v. Wade, a move which acknowledged the constitutional right to an abortion.
As there was no federal statute codifying the right to an abortion into law, states – including Michigan – were left scrambling to either push back against what was on the books (effectively rendered moot under Roe) or to cobble together new guidance on the subject.
But it was in the Dobbs opinion that Supreme Court Justice Clarence Thomas raised the specter of possibility that if the high court erred in its move to litigate abortion, it may have done so as well on topics like same-sex marriage and contraception.
“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous.’”
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He went on to say the court had a “duty to ‘correct the error’ established in those precedents.” Respectively, “precedents” established in those three cases include the protection of contraception, same-sex relationships and same-sex marriage.
That spurred Michigan into overwhelmingly passing Proposal 3, the ballot measure for a constitutional “right to reproductive freedom,” in the most recent midterm.
No such move has been made to codify similar protections for same-sex marriage, something Nessel, the state’s top-most ranking openly LGBTQ lawmaker, opined on the need for in a thread on Twitter.
Like Moss, Nessel pushed for a petition drive to commence on codifying same-sex marriage rights into Michigan’s Constitution, writing that while it was crucial the federal government did commit to marriage protections for same-sex unions, “if Obergefell is overturned, same-sex couples will NOT be permitted to marry in Michigan.”
“If Obergefell falls without the Respect for Marriage Act, no further same-sex marriages in Michigan and no recognition for out-of-state same-sex marriages (although expect litigation about whether currently married couples are grandfathered in),” Nessel wrote. “If Obergefell falls with the Respect for Marriage Act having passed, all current same-sex marriages or couples married out-of-state recognized under MI & federal law (even if Windsor also falls) but no new marriages allowed in our state [because] of the MI Marriage Amendment of 2004.”
The Windsor case Nessel refers to is the 2013 ruling in United States v. Windsor, which ultimately established the federal government could not discriminate against married gay and lesbian couples for the purposes of determining federal benefits and protections.
This leaves Michigan with two possible paths ahead of it on the subject: either having a group garner enough signatures for it to make the ballot on its own, or having two-thirds of the legislature in each chamber vote to place a constitutional amendment codifying the right to same-sex marriage on the ballot – similar to what was done with Proposal 1 of 2022.
If there ever were a legislative class that could see the proposal to the ballot, it would potentially be this one: The incoming 102nd legislature, which will be under Democratic control in both chambers, will possess the largest incoming class of openly LGBTQ lawmakers in Michigan history.
“I think that these issues, the people are there, but the only thing – whether in the legislature or whether in the electorate – the only thing that’s sort of holding up process has been out-of-touch, far-right extreme leadership in the Michigan legislature,” Moss said, “which the people just voted out.”
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