Academic

Pennsylvania Marriage Amendment?Revived by the California Supreme Court?

By Anthony Infanti

My hometown newspaper, the Pittsburgh Post-Gazette, was reporting over the weekend that supporters of the so-called marriage amendment to the Pennsylvania Constitution are attempting to revive the bill in the wake of the California Supreme Court?s decision overturning that state?s ban on same-sex marriage. Supporters are using the California decision in support of their argument that the Pennsylvania statute banning same-sex marriage is not enough, because ?a single state judge could allow gay marriage.? (By the way, I?m sure that it will come as a surprise to the justices on both the Pennsylvania and California Supreme Courts that a single judge can act on their behalf.)

As the story reports, however, the more pertinent case to be cited in discussions of the so-called marriage amendment is National Pride at Work, Inc. v. Governor of Michigan, which was decided by the Michigan Supreme Court on May 7th. In that case, the Michigan Supreme Court held that Michigan?s marriage amendment, which reads ?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,? prohibits public employers (including universities and state and local governments) from providing health insurance benefits to the domestic partners of their employees. Proponents of the Pennsylvania measure had been arguing that the broad language in the proposed amendment here?which would not only prohibit Pennsylvania from recognizing same-sex marriages but also any same-sex or different-sex union (other than a different-sex marriage) as the ?functional equivalent? of marriage?would not affect the ability of state and local governments or public universities from providing health insurance benefits to the domestic partners of their employees. In support of this argument, the proponents cited the absence of decisions in other states construing their broadly written ?marriage? amendments in this way. Clearly, the decision from the Michigan Supreme Court takes the wind out of the sails of this argument and strongly bolsters the case against the proposed amendment to the Pennsylvania Constitution.

It is also worth noting that, in reaching its decision, the Michigan Supreme Court specifically refused to take into account similar arguments made by proponents of that state?s constitutional amendment during the campaign for the amendment, both because the supporters? arguments were contradicted by the plain language of the amendment and because, as here in Pennsylvania, those arguments were contested by opponents of the amendment, who argued that it did have the potential to prohibit the provision of domestic partner benefits. The Michigan Supreme Court correctly noted that the voters there did not vote on the materials produced by either the proponents or opponents of the amendment, but on the text of the constitutional amendment itself. So, any reassurance from proponents of the amendment about limits on its potential effects once enacted should be taken as little, if any, comfort.

The proposed constitutional amendment here in Pennsylvania is no less dangerous to the many same-sex and unmarried different-sex couples living in Pennsylvania now than it was the day before the California Supreme Court?s decision. (For copies of my written testimony to the Pennsylvania Senate describing these harms as well as follow-up testimony requested by one of the senators at the hearing that I attended, please contact me.) Hopefully, our state legislators will have the wisdom to stop trying to revive this misguided measure.

-Anthony C. Infanti

Full post as published by Feminist Law Professors on May 19, 2008 (boomark / email).