The fourth in a series of posts detailing the legal implications of Florida’s proposed marriage amendment, Amendment 2.

My last post detailed how the proposed amendment would greatly expand Florida’s current ban on marriage.  Right now, Florida law prohibits the recognition of “relationships between persons of the same sex which are treated as marriages,” while Amendment 2 would expand that to include any “legal union” (with no limitation to just same sex relationships) that is “treated as marriage or the substantial equivalent” to marriage.  Because the phrase “substantial equivalent” to marriage is undefined under Florida law, it will be up to the courts to determine its exact meaning.  

What has happened in other states with similar amendments should give us some clues about how Florida courts will interpret the “substantial equivalent” to marriage language of Amendment 2.  Michigan, Ohio, and Kentucky provide the best guidance on how Amendment 2 will be treated by the courts, because these states passed amendments that not only define marriage, but prohibit the recognition of anything that resembles marriage.

This post will detail how Michigan courts interpreted its marriage amendment, which passed in November 2004.  Michigan’s marriage amendment, which is now Section 25 of the Michigan Constitution, states:

To secure and preserve the benefits of marriage for our society and for future generations of children, 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.

The phrase “as a marriage or similar union for any purpose” is as broad as Amendment 2’s language that prohibits any “legal union that is treated as…the substantial equivalent” to marriage, so a very recent opinion of the Michigan Supreme Court should help us understand how Amendment 2 will be treated by the courts.  

On May 7, 2008, the Michigan Supreme Court issued its opinion regarding its marriage amendment.  The court essentially defined the phrase “similar union for any purpose,” and held that it prohibited public employers from recognizing domestic partnerships for the purpose of awarding health insurance benefits. This ruling affects teachers, nurses, professors, fire fighters, and police officers.  For many unmarried couples in Florida, there are many unfortunate lessons from this Michigan opinion that are applicable to understanding Florida’s Amendment 2.

Lesson 1: It does not matter what the proponents of Amendment 2 claim it means

In interpreting Michigan’s marriage amendment, the Michigan Supreme Court focused on what the voters thought would be the most common understanding of its words at the time that it passed.  No deference was given to the meaning claimed by its drafters or proponents

For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it…¹

This is an important point because the people who wrote and are pushing Amendment 2 repeatedly say that it is only about defining marriage, even though the amendment clearly goes beyond that.  According to the main proponent and drafter of Amendment 2, John Stemberger:  

A “yes” vote on Amendment 2 does one thing and one thing only: It defines marriage as the union of one man and one woman.

The same claim was made in Michigan.  The Citizens for the Protection of Marriage, one of the main supports of Michigan’s Amendment, produced a campaign brochure that claimed: “This is not about rights or benefits…It merely settles the question once and for all what marriage is…”²  In interpreting the amendment’s meaning, the court said the brochure was irrelevant:  

Similarly, the voters here did not vote for or against any brochure produced by Citizens for the Protection of Marriage; rather, they voted for or against a ballot proposal that contained the actual language of the marriage amendment.³

The lesson here is simple:  it just doesn’t matter what Mr. Stemberger says or thinks Amendment 2 means.  Instead, the courts will look to see what Amendment 2 actually says and not what any proponent claims, which leads us to the next important lesson to come from the Michigan Supreme Court.

Lesson 2: If it was only about defining marriage, why would the drafters include the “substantial equivalent” to marriage language?

A large portion of Michigan Supreme Court’s opinion focused on the “similar union” language in the amendment.   The court emphasized that if the court did not extend “similar union” to include domestic partnerships, it would be deeming that portion of the amendment meaningless:  

If the marriage amendment were construed to prohibit only the recognition of a union that possesses legal rights and responsibilities identical to those that result from a marriage, the language “or similar union” would be rendered meaningless, and an interpretation that renders language meaningless must be avoided.⁴

In further support of this point, it distinguished the Michigan amendment from those amendments passed in other states that simply recognize marriages between one man and one woman.⁵   It emphasized the fact that the Michigan amendment went even further and also prohibited “similar unions for any purpose,” essentially saying that there could be no other purpose to add “similar union” to the amendment than to prohibit domestic partnerships.  

Lesson 3: In determining what is “substantially equivalent” to marriage, the courts may focus on how the domestic partnerships are formed and not on the subsequent benefits awarded to them.

The most interesting and far reaching portion of the Michigan Supreme Court decision was how it determined whether domestic partnerships were similar to marriage.  The court refused to accept the argument that if all of the rights and responsibilities associated with marriage were not given to the domestic partnership, it was not similar to marriage.  Instead, the court examined the underlying composition of a domestic partnership and a marriage and found that they were similar.  The focus was on how the relationships were formed legally, and the court determined that domestic partnerships and marriages were legally formed in similar ways.  For example, the court found these similarities between marriages and domestic:

• Marriages and domestic partnerships are often defined by the sex of the parties (marriages are for opposite sex couples and domestic partnerships are for same-sex or opposite-sex couples).

• Both require that the people involved not be closely related by blood.

• Both are limited to two people.

• Both require that the persons involved in the relationships undertake obligations of mutual support.

• Both require a minimal age requirement.

• Both are relationships that continue until one party takes steps to terminate it.

The court was especially moved by the fact that it could not find any other relationships in Michigan that were defined in terms of both gender and lack of close blood relations:

Because marriages and domestic partnerships are the only relationships in Michigan defined in terms of both gender and lack of a close blood connection, and, thus, have these core “qualities in common,” we conclude that domestic partnerships are unions similar to marriage.⁶

By focusing on how and why domestic partnerships are formed instead of the benefits that are given to the relationships, the court changed the analysis significantly.  Most importantly, if the Florida courts simply focus on how domestic partnerships are formed, as the Michigan Supreme Court did, they almost certainly will find that domestic partnerships are the “substantial equivalent” to marriage.

Let’s just compare the requirements for establishing a domestic partnership in Broward County, which are typical for domestic partner registries in the state:

1. Each party is at least 18 years old and competent to contract

2. Neither person is married, nor a partner to another domestic partnership relationship

3. Consent of either person to the domestic partnership relationship has not been obtained by force, duress, or fraud

4. Each person agrees to be jointly responsible for each other’s basic food and shelter

These are essentially the same requirements for a marriage in Florida.  A marriage has to be between individuals over 18 years old (unless other requirements are met), who are not currently married, and who are going to provide for the mutual care of each other.  There are really no differences here.

There is no doubt that the exact meaning of Amendment 2 will be litigated for years if it passes, but this Michigan Supreme Court opinion gives us a glimpse into the wide-reaching impact it could have on all of the relationships that currently are recognized in Florida, including domestic partnerships.  

This Michigan Supreme Court opinion makes one thing certain about Amendment 2–it will do more than just define marriage as one man and one woman.

Be sure to read the rest of my series discussing the legal issues surrounding Amendment 2:

– The Real Impact of Florida’s Amendment 2

– Florida’s Amendment 2: Florida Is No Connecticut!

– Florida’s Amendment 2: What Does “Substantial Equivalent” To Marriage Mean?

– Florida’s Amendment 2: The Lessons from Michigan

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¹ National Pride at Work, et al. v. Governor of Michigan, 748 N.W.2d 524, 533 (Mich. 2008).

² Id. at FN 22.

³ Id. at 543-544.

⁴ Id.

⁵ Id. at 542-543.

⁶ Id. at 537