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Wednesday, May 29,2013

'Not backing down'

Same-sex couple in Lansing uses Canadian marriage license to secure property rights not available to same-sex partners in Michigan, potentially setting up court challenge

by Sam Inglot
Just over nine years ago, Lansing City Clerk Chris Swope and his partner, Bradly Rakowski, got married in Canada, with the skyline of Detroit as the backdrop to their ceremony. The marriage is legally recognized in Canada but not on this side of the Detroit River. 

On Tuesday, Rakowski and Swope filed their marriage certificate with Ingham County to both protect their property and to make a political statement about equality. That statement could set up a challenge to Michigan’s constitutional amendment banning same-sex marriages. Rakowski and Swope seek the same property rights protections as marriages between a man and a woman. That includes jointly owning property, like a home, which could be at risk if a creditor seeks a judgment against one of them because they’re not married in the eyes of Michigan law, according to one real estate attorney.

“With this, they’ll be assuming all property rights of a married couple,” said Ingham County Register of Deeds Curtis Hertel Jr. “We think it’s an innovative idea. It certainly could use a test case. Our belief is that it’s a legal contract in another country that grants these rights and we don’t feel like Michigan should be able to ignore this legal contract.”

An affidavit signed Tuesday secures Swope’s and Rakowski’s property rights as a couple and uses their Canadian marriage certificate as a backing document — a first in the state, according to Emily Dievendorf of Equality Michigan, a lesbian, gay, bisexual and transgender advocacy group. 

“We believe that by putting this record into the archive of the Register of Deeds Office, we are making: one, an important political statement, but also providing protection and notice to people in the property records,” Hertel said at a press conference Tuesday afternoon. “We hope other same-sex couples from around the state follow suit. We look forward to a dialog with the courts and people that want to challenge this and we will defend this vigorously.”

Right now, same-sex couples are forced to go through lengthy legal processes to secure their property rights as a couple through things like a will, Swope said. These are rights that are automatically granted to a man and a woman if they are married. Also, a will does not necessarily mean property rights are guaranteed to a same-sex couple. Family members could challenge the will in court. 

“Chris has many immediate cousins who currently have more rights to his estate than I would,” Rakowski said. “How can anyone look at that situation and say it’s fair? Those people are not living a life together, we are. It’s a huge right, or lack thereof, that somebody who we don’t even know has more rights to our estate than we do. It’s ridiculous.”

Greg McClelland, a partner with McClelland and Anderson, a Lansing law firm specializing in real estate litigation, said the affidavit aims to establish “Tenants by the Entireties,” which is ownership of land available only to married couples in Michigan. McClelland reviewed the affidavit at City Pulse’s request.

But he doesn’t think the move could survive a court battle unless the state’s constitutional amendment, defining marriage as between a man and a woman, is overturned.

“While it is always significant to me when people have the courage to stand up for their convictions, I do not see the filing as significant in addressing issues of ownership of property by gay people lawfully married under the laws of another state or country,” he said. “Their issue will only be resolved by the recognition of gay marriage in Michigan.”

A spokeswoman for the Michigan Attorney General’s Office declined to comment for this story.

Hertel said McClelland’s take on the situation wasn’t surprising and added that the goal of the filing is to have the issue brought up in court.

With the passage of Proposal 2 in 2004, Michigan officially banned the recognition of same-sex marriages. However, the attitude in Michigan has changed since then, Hertel and Swope argued, with a majority of Michigan citizens supporting a lifting of the ban. A Glengariff Group poll in May found nearly 57 percent of voters would vote for a constitutional amendment permitting same-sex marriage. Most recently, Minnesota became the 12th state to recognize same-sex marriages.

John Knight, senior staff attorney with the American Civil Liberties Union’s national LGBT Project based in Illinois, said in an email: “Reminding others of the discrimination same-sex couples regularly face — as this affidavit does — is crucially important. People need to find ways to speak out about the harms caused by denying same-sex couples the freedom to marry in Michigan. Only then will Michigan law change for the better.”

It’s uncertain who may challenge Tuesday’s filing, but Rakowski assumes it might be a target for Republican Attorney General Bill Schuette. 

“My father told me to never give in, never give up,” Rakowski said. ”If somebody is stronger than you, don’t back down. I’m not backing down to the state and I’m not backing down from Bill Schutte and his hatred, so let him try something because I’m not going away. I’m here to stay.”

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