The Michigan Amendment

Here's the exact language of the 2004 amendment to the Michigan constitution in relevant detail: "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.''

Opponents of the amendment argued that, among other things, the ban would do much more than block same-sex marriages or civil unions. It would also, they said, prevent the state from offering more limited rights and benefits to same-sex couples (or unmarried heterosexual couples): things like domestic partner benefits, medical decision-making rights, and protection under domestic violence laws.

While a few proponents of the ban acknowledged the possibility that the amendment would reach that far, most scoffed at the idea. The ban, they said, would only prevent same-sex couples from marrying or entering into a functionally equivalent legal relationship such as a civil union.

So far, so familiar. Anyone living in Indiana or Florida or Ohio or any of the other states where "marriage +" amendments have been debated knows this argument inside and out.

What we haven't known is how courts would interpret these amendments, because it usually takes several years for a case to work its way up from a trial court to the state's court of last resort. (That's the fancy technical term for a state's highest court. Why don't eggheads such as moi just call it a supreme court like everybody else? Because not all states have gotten the memo. New York, for example, calls its trial courts "supreme court," and calls its court of last resort the "Court of Appeals." Go figure.)

Now we've reached the point where two separate state courts of last resort have ruled on the reach of their states' same-sex marriage amendment.

The Ohio Supreme Court Ruling

The Ohio Supreme Court ruled last year that the marriage ban did not mean that unmarried couples could not be covered under the state's domestic violence laws. Here's the exact language of the Ohio amendment:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

An Ohio law on domestic violence specifically protected people "living as a spouse" and the question before the court was whether the "living as a spouse" provision violated the constitution because it recognized a legal status for relationships of unmarried couples that approximated the "design, qualities, significance or effect of marriage."

The Ohio court ruled that the domestic violence law was constitutionally kosher. Specifically, it held that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage -- a marriage substitute" (emphasis added).

So in other words, a law treating unmarried couples as though they were married for just one specific purpose (in this case domestic violence) doesn't violate the constitution. A law would have to treat unmarried couples as married for all legal purposes of marriage in order to violate the constitution.

What the Ohio Supreme Court ruled, in effect, was that the marriage amendment only banned married and separate-but-equal equivalents, such as civil union.

The Michigan Supreme Court Ruling

With me so far? Good. Now let's turn to the Michigan Supreme Court.

That court took a distinctly different approach to reading the state's marriage ban, even though the language of the Ohio and Michigan amendments seem sort of similar. (If anything, the Ohio amendment seems broader in scope than the Michigan one.)

According to the Michigan Supreme Court, "[a] union does not have to possess all the same legal rights and responsibilities that result from a marriage in order to constitute a union "similar" to that of marriage. . . . the pertinent question is not whether these unions give rise to all the same legal effects; rather, it is whether these unions are being recognized as unions similar to marriage for any purpose" [emphasis added.]

You may be forgiven for thinking "WTF? How can two different state high courts come up with two such radically different interpretations of amendments that sound pretty similar?"

The one dissenting justice in the Michigan case was equally perplexed. "It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage," Justice Kelly said.

But the majority argued that all it was doing was interpreting what it saw as the plain meaning of the words. "[O]ur responsibility is, as it has always been in matters of constitutional interpretation, to determine the meaning of the amendment's actual language."

The curious part is that this is exactly what the Ohio Supreme Court said it was doing as well: interpreting the meaning of the amendment's actual language.

Judges Are Just Humans

And that's what we expect courts to do: figure out the meaning of the laws and rule accordingly. The problem is that those meanings aren't always clear and that different judges can come to different conclusions about what a law means, and what it requires. That's why appellate court decisions often have dissenting opinions--because the judges deciding the case legitimately disagree about what a law means, and/or what it requires.

That doesn't make some judges good and others evil. It makes them all human, struggling to understand and interpret laws written by other humans, who have multiple motivations for writing those laws in the first place. Laws that are easy to understand pretty much never make it past the trial courts. It's the complicated laws, ones admitting to multiple possible interpretations that make it to the high courts in the first place. It's no surprise that the amendments that simply limit marriage to heterosexual couples aren't the ones being litigated. Everybody knows what those laws mean.

Here in Indiana, nobody was arguing over the meaning of the first clause of SJR-7, the proposed same-sex marriage amendment that didn't make it out of the legislature. It simply limited marriage to one man and one woman. It was the second clause of amendment, the "marriage +" part, that got all the attention, because people legitimately disagreed about what it meant. And lemme tell you, if we're not clear about a law's meaning, it's not going to be clear to judges either. Different judges in different states will come to different conclusions.

In the instances at hand, that means same-sex couples in Ohio got lucky while same-sex couples in Michigan didn't.