It happened in Ohio; it happened in Michigan. It almost happened in Indiana, and could again, although now thankfully no earlier than after November 2012. It could happen in Florida after November of this year.
So what’s the “it”? Just a little technique by the folks on the largely evangelical right who have written the book on how to push for a state constitutional “marriage protection” amendment, denying it would do anything other than ban same-sex marriage, watch it passed, and then run to court to flip-flop so much that it would Mitt Romney’s positions look like the Rock of Gibraltar. The evidence of that advocacy “double-dealing” is as plain as the note on Pinocchio’s face:
Take Michigan, for example. In statewide messages to voters, the right-wing Citizens for the Protection of Marriage (CFPM), through its director, insisted:
“This [the proposed Michigan amendment] has nothing to do with taking benefits away. This is about marriage between a man and a woman.”
And the closely allied American Family Association told the Michigan press that warnings that domestic partner benefits would be affected by the amendment were “a scare tactic”. A spokesman assured voters that “public and private employers could continue to offer domestic-partnership benefits if they want to.”
Relying on these assurances, many Michigan voters cast their votes in favor of the amendment, enough of them to assure its passage. Soon afterward the Michigan attorney general ruled that the amendment invalidated domestic partnership benefits for employees of state institutions. The ruling was challenged in court, and guess who quickly entered the case, arguing that indeed, the Michigan amendment spelled the end of such benefits? You guessed it: who else but another member of the coalition pushing these amendments: The Alliance Defense Fund. As its website proudly heralds, the attorney who wrote its amicus (friend of the court) brief said:
"All government programs should comply with state law. Michigan law expressly prohibits marriage substitutes. There are other ways these individuals can get benefits and still comply with state law, without basing them on a marriage-like status."
Talk about a flip-flop!
In Indiana, during the most recent Indiana Senate Judiciary Committee hearing, State Senator Tim Lannane (D-Bloomington) pointed out that the same “bait and switch” approach had been taken by advocates of that state’s successful amendment.
In our Hoosier state, sponsors perpetually insisted that the only thing the controversial second sentence of SJR7, the so-called “Indiana Marriage Protection Amendment”, simply muzzled “unelected activist judges” in “judicially imposing” same-sex marriage and civil unions, but left the Indiana General Assembly perfectly free to bestow the “legal incidents of marriage” on same-sex and other unmarried couples if it wanted to. They added the standard denial that the amendment would have no impact on existing domestic partnership benefits.
Fortunately, thanks to the efforts of many dedicated people, joined by respected voices in the business community as well as 56 Hoosier law professors who signed a letter expressing great concern over SJR7’s wording, the measure died at the end of the most recent “short” session.
Now we can’t say with absolute certainty that had it passed the Indiana General Assembly, and then approved by a Hoosier electorate bombarded with assurances that nothing would be affected except judge-made same-sex unions, the proponents would have done a complete 180 and gone to court arguing just the opposite. But given what’s happened in Michigan, Ohio, and other states, I would still have bet the farm that they would behave the same way.
Now you might ask: “Well, OK, but if it would pass couldn’t our side just tell the courts what the proponents had said before the election, and that would convince them to apply that interpretation?" The short answer is that although this is precisely one argument being made by our allies in Michigan, it isn’t at all clear that it will be effective.
Clearly such an argument wouldn’t work in Indiana. Our Indiana Supreme Court almost never pays any attention to what sponsors, or even legislators say that their pet measure means. They look at the words themselves, and what they interpret them to mean.
The proponents of SJR7 almost got away with it. Next time, if there is a next time, they’ll have a lot more people forewarned of the tactics in other states, and prepared to help keep it from happening in future sessions.
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