Gay Rights in Kalamazoo

international | rights, freedoms and repression | opinion/analysis Thursday September 29, 2005 10:58 by Fiona de Londras fionadelondras at gmail dot com 085 7361536

A Michigan judge decides the meaning of the anti-gay-marriage clause inserted into the Constitution after a referendum last November.

Last November many of us had two reasons to lament the results of the American elections: the re-election of George Bush and the success of anti-gay-marriage constitutional amendments in many American states. These amendments were designed to both limit judicial activism in relation to ‘gay marriage’ in certain states and to bring out the conservative-Bush-loving (oh the irony…) vote. They certainly succeeded in the second aim, but what about the first? What do these constitutional clauses actually mean?

In one of what is sure to be many cases challenging the meaning and effect of these amendments a Michigan court has held that the amendment, which made the union between a man and a woman the only agreement recognised as a marriage “or similar union for any purpose”, did not preclude employers from offering benefits to same-sex couples. This was in stark contrast to the state Attorney General, Mike Cox (Republican…surprisingly), who had claimed that the amendment prevented the city of Kalamazoo from paying or offering benefits to same-sex couples.

In reaction to Cox and the amendment twenty-one couples employed by the university and city of Kalamazoo challenged his decision and were successful in front of Judge Joyce Draganchuk, who said that the purpose of the amendment was to ban gay marriage and civil unions - not to keep public employers from offering benefits to gay employees.

It’s quite likely that the Attorney General, who is said to be disappointed with the decision, but even if he does Judge Draganchuk’s judgment is a significant one. It goes to prove that no piece of law can be really assessed until we see how it’s implemented, and that even if one tries to curtail judicial activism interpretation remains in the judicial domain. We saw this ourselves in Ireland in the X Case where the Supreme Court interpreted the Constitutional provision relating to abortion in a manner never anticipated by those who proposed and supported that amendment in the first place.

It has to be said that, on appeal, I think this decision would likely be overturned – it does seem to contradict the natural meaning of the amendment, but maybe the Attorney General will take the advice of Jay Kaplan, an attorney for the American Civil Liberties Union of Michigan, and not “waste” taxpayer dollars on an appeal. Could we even be so optimistic as to hope that other federal courts will follow suit?