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Sunday, August 12, 2007

Law - "Anti-Same-Sex Marriage Laws and Their Intended and Unintended Consequences"

Joanna Grossman, a professor of law at Hofstra University, has a Findlaw column this week on the Ohio Supreme Court Case interpreting that State's anti-same-sex-marriage amendment. Here is the lengthy article's concluding section:

At this point, almost every state in the Union has enacted either a constitutional amendment, statute, or both, designed to prohibit the celebration or recognition of same-sex marriage. But some - like Ohio's - are drafted broadly to ban not only marriage, but any legal recognition of same-sex relationships.

As I have discussed in several previous columns such as this one, these laws are historically unprecedented -- particularly to the extent they seek to reach beyond marriage to all forms of legal recognition.

Moreover, these laws are in many cases poorly drafted, and likely to produce unintended consequences - such as the trial court's initial acceptance of Michael Carswell's argument that the amendment prevented his prosecution.

Another example comes from an appellate court in Michigan. In the case of National Pride at Work v. Governor of Michigan, that court recently ordered all public universities, state agencies, and local governments to cease providing health insurance to the partners of gay and lesbian employees because of a 2004 constitutional amendment stating that only a union of one man and one woman is valid "as a marriage or . . . for any purpose." A decision to opt to give equal health insurance benefits is very different from the compulsion to do so, and as in the Ohio case, it's unlikely that here, Michigan voters affirmatively intended, by their amendment, to prohibit the government from offering health insurance benefits in a fair and non-discriminatory way.

The intended consequences of such laws - to systematically deny rights to gays and lesbians based solely on animus against them - are bad enough. Their unintended consequences only pour salt into the wound these amendments create. Voters and legislatures should be cautious lest they discover that they have allowed irrational fear and hostility to menace the integrity of their state codes and constitutions.

See this July 25th ILB entry on Ohio, Michigan, and Indiana for background.

Posted by Marcia Oddi on August 12, 2007 06:24 PM
Posted to General Law Related