Mich-issippi Burning: Marriage Equality, Anti-Gay Animus and Majoritarian Politics Commentary
Mich-issippi Burning: Marriage Equality, Anti-Gay Animus and Majoritarian Politics
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JURIST Guest Columnist Peter J. Hammer, of Wayne State University Law School, discusses the socioeconomic disparities that gay, lesbian, bisexual and transgender individuals experience in Michigan …

In an increasing number of domains, from worker rights, to marriage inequality, to state-imposed “Emergency Managers,” almost exclusively in majority-minority cities, Michigan is becoming known as the “Mississippi of the North,” hence the moniker “Mich-issippi.” A recent Rolling Stones article ranked Michigan as one of the “5 worst states for LGBT people,” along with Mississippi, Alabama, Texas and Louisiana.

Mississippi’s historic reputation for suppressing civil rights is well known. Last June, we observed the 50th anniversary of the murder of the three civil rights workers near Philadelphia, Mississippi, as depicted in the film Mississippi Burning. Those killings came on the heels of violent protests in 1962 over efforts to enroll James Meredith at the University of Mississippi.

Few people appreciate the significant role played by the 1875 Mississippi Plan in violently ending post-Civil War reconstruction, or how rewritten state constitutions enshrined discriminatory practices and undermined the very functioning of democracy throughout the South. The truth is that majoritarian democratic processes can often be in opposition to the flourishing of civil rights.

In Bassett v. Snyder [PDF], Federal District Court Judge David Lawson provides insights into the life and daily struggles faced by gay, lesbian and transgender citizens of Mich-issippi. At issue was Public Act 297, a law revealingly entitled the “Public Employee Domestic Partner Benefit Restriction Act.” The legislation did exactly what its title indicated: “prohibited local units of government from continuing to furnish health care and other fringe benefits to the domestic partners of their employees.”

Finding that the law was motivated by anti-gay animus, Lawson declared the provision unconstitutional, even under the Equal Protection Clause’s more lenient rational basis test. “[T]he primary purpose of Act 297 was to deny health benefits to the same-sex partners of public employees, and that can never be a legitimate governmental purpose.”

It is sad, but not surprising, when anti-gay legislation is introduced in state houses across the country. It is something entirely different when anti-gay legislation such as Public Act 297 is introduced, wins super-majority support in the State House and Senate, is signed into law by the Governor and is vigorously defended by the state-elected Attorney General. But this is majoritarian democracy in Mich-issippi.

What does the reality of the democratically enshrined anti-gay animus documented in Bassett imply for the challenge to the state’s ban on marriage equality being litigated in DeBoer v Snyder [PDF]?

The two issues are inextricably interconnected. In a 2004 referendum, a majority of citizens voted to amend the state constitution to prohibit marriage equality. The language was broad: “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.” Mich. Const. Art. 1, § 25. In the political campaign, proponents claimed that the broad language was necessary to ensure the provision could not be circumvented through enactments such as civil unions, but disclaimed any desire to attack well-established domestic partnership benefits provided by public employers.

Once adopted, however, the marriage shield quickly became a benefits sword. The Attorney General issued an opinion asserting that the marriage ban also prohibited domestic partnership benefits provided by public employers.

I was one of the plaintiffs in a state lawsuit challenging the Attorney General’s interpretation. The suit maintained that whatever the amendment provided in terms of marriage, neither the language nor the voter intent prohibited public employers from providing domestic partnership benefits to their employees. The Circuit Court agreed and the Attorney General appealed.

I was in the courtroom when oral arguments were held. The three Appellate Court judges exhibited extreme physical discomfort resulting from being present in the same room as numerous gay and lesbian litigants. In my entire career, I have never seen such juvenile antics in what was supposed to be a professional setting. Yet, these were the jurists who would rule on the legality of my domestic partnership benefits. Not surprisingly, a unanimous panel decision held that the marriage amendment not only banned same-sex marriage, it prohibited domestic partnership benefits as well. The state Supreme Court affirmed. The shield had indeed become a sword.

The Appellate and Supreme Court judicial opinions serve as exemplars of how formalistic textual analysis can easily slide into pretext for results-driven judicial outcomes. This is part of a larger devolution of doctrine, procedure and judging in a legal system that now makes it nearly impossible for civil rights plaintiffs to obtain justice in Mich-issippi. State courts no longer serve as legitimate checks on the discriminatory abuses of voters, legislators or the state executive.

Undaunted, a number of public employers, including the state’s leading universities, amended their benefits agreements to establish “Other Qualified Adult” plans that allowed employees to designate a person of either sex with whom they live and share finances to receive benefits. Similar action was taken by the Michigan Civil Service Commission.

As Lawson noted [PDF], these actions outraged powerful, conservative state legislators. Representative Peter Lund, who later co-sponsored the Public Employee Domestic Partner Benefit Restriction Act, characterized the [Michigan Civil Service Commission] decision as “an absolute abomination … that shifts people’s hard earned dollars into the pockets of same-sex partners.” Representative Ken Yonker reacted by issuing a press release condemning the decision as “disgusting” and one that “makes a mockery of the moral fabric that has made America what it is today.”

Public Act 297 was subsequently introduced and passed.

Proving the existence of anti-gay bias behind the “Public Employee Domestic Partner Benefit Restriction Act” was not difficult in this context. Animus could be inferred from the title of the legislation, the novel nature of the mandate and its deviation from historic practices, the lack of any defensible alternative public policy justification, as well as these pre-enactment statements of the legislators.

Significantly, Lawson highlighted a number of other characteristics defining life in Mich-issippi for gay, lesbian and transgender citizens: We are leading targets of hate crimes. We face substantial discrimination in obtaining housing. The state provides us no protection against discrimination in employment. We can be fired from employment or be denied service in public accommodations with no recourse to state anti-discrimination laws. Indeed, nearly twelve years since the decision in Lawrence v. Texas, 539 U.S. 558 (2003), the state has failed to repeal its laws prohibiting fundamental expressions of intimacy.

Given the oppressive interconnection between the state’s ban on marriage equality and its prohibition of domestic partnership benefits, what are the implications of finding of legislative anti-gay bias in Bassett for the challenge to the marriage ban in DeBoer?

In DeBoer, Federal District Court Judge Bernard Friedman put the state’s justifications for banning same-sex marriage on trial. After lengthy evidentiary hearings, Judge Friedman held that the state’ marriage ban “impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable legitimate state interest.”

The Sixth Circuit recently reversed Judge Friedman’s decision. Unable to challenge the district court’s factual findings, the majority opinion essentially reasons that facts do not matter. The ban on marriage equality could be salvaged on the basis of “rational speculation” regardless of evidentiary support. As characterized by the dissent, most of the majority decision reads not like a judicial opinion, but rather like a “TED Talk” in praise of federalism and the wisdom of state-led social change: voters and legislators should have the final say. Burkean courts should not interfere in the process.

The Sixth Circuit’s reasoning falls flat. Trust in federalism’s “laboratories of experimentation” may be wise in revealing new strategies for utility regulation, but such trust is misplaced in regards to the protection of civil rights. The 1875 Mississippi Plan may be one of the most extreme examples of how democracies can be hijacked and turned into systems of oppression, but the lessons are generalizable. Mich-issippi is also burning.

The juxtaposition of Bassett and DeBoer is revealing. In real-time controversies over domestic partnership benefits and marriage equality, public actors in the state legislature, the judiciary and the executive have proven themselves incapable of protecting the rights of their citizens. Instead, state democratic processes have demonstrated themselves to be infused with anti-gay animus. In this frame, the “rational speculation unsupported by evidence or empirical data” cited by the Sixth Circuit becomes a very thin veil for irrational bias, prejudice and discrimination.

Martin Luther King would become visibly irritated when people counseled him to be “patient.” A voter referendum was not a viable remedy for Mr. and Mrs. Loving of Virginia. For a brief 20-hour window in September 2014, I had the right to marry my partner of over 20 years, but I have never had a right not to be fired from my job due to vile forms of discrimination on the basis of sexual orientation. The state offers no such protection.

Lawson’s opinion in Bassett serves as a wake-up call: anti-gay legislative bias is alive and well in Mich-issippi. This has to fundamentally alter how courts frame the legal issues in the debate over marriage equality in DeBoer and the trust they can place in majoritarian politics and in the experiments of federalism. In this setting, deference to state’s rights is simply a license for continuing discrimination.

Postscript: While drafting this essay, capping a year-long effort that catalyzed support from the business community, advocates of amending state law to prohibit discrimination on the basis of sexual orientation and gender identity, introduced legislation in the State House. Earlier, the Republican co-sponsor of the bill had been primaried and lost his seat because of his support for the legislation. The Speaker of the House has now declared the effort dead. Instead, the House Judiciary Committee voted to approve a so-called “religious freedom act” that would make it easier to discriminate against members of the gay, lesbian and transgender community in the state. Mich-issippi still burns.

Peter J. Hammer is Professor of Law at Wayne State University Law School in Detroit, Michigan. He received a B.S. and two B.A.s from Gonzaga University and a J.D. and a Ph.D. from the University of Michigan. He serves as the Director of the Damon J. Keith Center for Civil Rights, which is “dedicated to promoting the educational, economic, and political empowerment of under-represented communities in urban areas.”

Suggested citation: Peter J. Hammer, Mich-issippi Burning: Marriage Equality, Anti-Gay Animus and Majoritarian Politics, JURIST – Academic Commentary, Dec. 7, 2014, http://jurist.org/academic/2014/12/peter-hammer-michigan-marriage.

This article was prepared for publication by Joseph Macklin, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org.

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