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Wednesday, December 12,2012

Finally

The U.S. Supreme Court takes up same-sex marriage equality — and it could have major implications for Michigan's prohibitive laws against the LGBT community

by Andy Balaskovitz
Depending on how a case before the U.S. Supreme Court turns out, Amy Hunter may change her birth certificate.

Hunter, who was born a male but now identifies as female, has not changed the gender listed on her birth certificate since she married her partner, Cindy Hunter, in 2006, before her transition. On paper, the Hunters are a heterosexual couple. Amy Hunter, a Kalamazoo resident, has avoided the change so the two can continue to file joint federal income taxes, she said.

Last week, the U.S. Supreme Court announced that it would take up two major cases in the coming months related to marriage equality and same-sex partner benefits.

One case challenges the constitutionality of the federal Defense of Marriage Act, which defines marriage as between a man and a woman and bars states from recognizing same-sex marriage in other states. It also prevents the federal government from giving same-sex married couples the same federal benefits as opposite-sex couples.

While Hunter said striking down DOMA would “at least” make their marriage “theoretically” recognized in the nine states that allow same-sex marriage, she said it would also mean that she could change her birth certificate to reflect her female gender without giving up being able to file joint income tax returns. At that point, the couple — and all other same-sex partners in Michigan — could get married in a state that recognizes same-sex marriages and qualify for federal benefits. Michigan barred same-sex marriage in 2004.

But not so fast. The other case being heard by the Supreme Court involves a constitutional amendment passed in California in 2008 defining marriage between one man and one woman, which overturned a state Supreme Court ruling there allowing same-sex marriage. Lower courts have ruled Prop 8 unconstitutional. The Supreme Court could rule that all statewide bans on same-sex marriage are unconstitutional. Couples like the Hunters wouldn’t have to marry out of state to get married — they could do so here.

“Right now I sort of balance on a knife’s edge,” said Hunter, who is the president of Equality Michigan Pride PAC, an organization advocating LGBT rights and supporting LGBT-friendly politicians. Should the court strike down the federal law signed by Bill Clinton in 1996, “I could feel much safer about changing my birth certificate.”

Hunter’s story reflects potentially major changes that could affect same-sex couples throughout the country, including in Michigan. 

Legal experts say there’s a variety of outcomes — based on how narrow or broadly the U.S. Supreme Court rules — that could affect Michigan’s LGBT community in June, when decisions on the two cases are expected. 

Even though Michigan has a constitutional ban on same-sex marriages, striking down DOMA would mean the federal government recognizes such marriages if they were carried out in states or other countries that allow it, said Jay Kaplan, staff attorney for the Michigan American Civil Liberties Union LGBT Project. With that could come the ability to take advantage of federal programs and benefits. For instance, a Michigan same-sex couple who married in Massachusetts would be able to file joint income tax returns or social security, Kaplan said.

The DOMA case from New York, known as the Windsor case, involves a lesbian couple and inheritance rights. Edith Windsor and Thea Spyer married in Canada in 2007. Windsor inherited Spyer’s property after she died in 2009. However, under DOMA, the Internal Revenue Service did not recognize Windsor as a beneficiary. Windsor not only was denied the property, but she also faced a tax bill of $360,000 that an opposite-sex beneficiary wouldn’t have. Lower courts ruled in Windsor’s favor, saying section 3 of the law — which defines marriage as between a man and a woman — was unconstitutional.

Also, a technicality in how the appellate court’s ruled could also positively impact Michigan residents, Kaplan said. Should the high court rule that states that don’t recognize same-sex marriages apply a “higher level of scrutiny” when deciding future cases, “The government has to show more justification to support the constitutionality of discrimination,” Kaplan said. “That certainly can benefit our state.”

In February 2011, the Obama administration concluded that DOMA was unconstitutional and wouldn’t defend it in court. In May, President Obama announced his support for same-sex marriages.

The case challenging Prop 8 in California has a potentially much broader impact than the Windsor case: It could end all same-sex marriage bans in 31 states. However, it could also have a demoralizing effect should the Supreme Court overturn a lower court decision.

In 2008, California voters approved a ballot initiative defining marriage as between a man and a woman after the California Supreme Court ruled that same-sex couples were allowed to marry. Federal District Judge Vaughn Walker’s August 2010 ruling and an appellate court ruling upholding Walker’s decision to overturn Prop 8 were stayed, meaning same-sex partners have been unable to get married in California since Prop 8 passed, pending appeal.

Kaplan said there’s three potential outcomes of the Prop 8 case: the Supreme Court makes it about marriage equality in general and strikes down same-sex marriage bans in all states, making Michigan’s unconstitutional; the court rules only on the referendum in California, saying it took away the legal right for same-sex partners to marry; or the court rules that states have a right to deny gay couples the right to get married and ballot initiatives — like Michigan’s in 2004 — are constitutional.

Melanie Jacobs, a professor at Michigan State University’s College of Law, says a lot hinges on the court decisions. 

“What I think is interesting and maybe relevant is: This could mean a lot or it could mean nothing,” she said. “Living in Michigan, we’re kind of in a wait and see mode.”

At the heart of these cases is whether gays and lesbians who seek to marry are afforded equal protection under the Constitution as opposite-sex partners. Jacobs believes that a “social tide change” seen throughout the country — statewide and national polls now suggest a majority of Americans support same-sex marriage — will lead to the court striking down DOMA. 

As for Prop 8? “Several years ago, I sat in a classroom with a group of professors around the university talking about the California case. I believe I did predict the Supreme Court would recognize the right of marriage equality,” she recalled. She’s keeping her bet. “I don’t know if I should bet my house on it — it may just be wishful thinking. But I’m an optimist.”

Either way, Kaplan called the U.S. Supreme Court’s decision to take the cases “momentous and historic.”

“It’s definitely a turn of the tide,” he said.

Lansing City Clerk Chris Swope, who married his partner, Brad Rakowski, eight years ago in Canada, echoes the importance of the cases and for their possibility to affect him personally. Should DOMA be struck down, he said, they might qualify for federal benefits like inheritance rights and not paying taxes on health insurance — the same protections afforded to straight couples.

Upon hearing the announcement Friday, Swope said he was “surprised and excited.”

“I’m hoping they will broadly expand the rights of gay couples,” he said. “Clearly our society has come around.”

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