Gain Spotlight in Bills, on Ballots
A Backward Ruling in Michigan Reveals Right-Wing Reliance on Courts
by Hans Johnson
President, Progressive Victory
Contributing Editor, In These Times
For conservatives, the impact of the '06 election is still sinking in. It's not just the loss of Congress or the attention lavished on the Democratic presidential aspirants that signals their diminished stature. The right wing is also undergoing a very painful role reversal rooted in its age-old accusation that liberals can't win elections and look instead to courts for their authority. One area where the switcheroo now playing out among conservatives becomes plain is the politics of recognizing same-sex couples.
Late last week, in Michigan, a three-judge panel of the state court of appeals held that domestic partner benefits for public-sector workers are no longer permissible. The ruling followed approval by state voters in Nov. 2004 of a sweeping antigay proposal meant to bar gay couples from ever attaining equal access to civil marriage. But the measure went much further: it also prohibited recognitions similar to marriage under state law.
This fuzzy language encompassed a host of hard-won health benefits for the committed same-sex partners of city and state workers under various collective bargaining agreements. In thrall to antigay activists, the state attorney general, Mike Cox, sued to cancel existing benefits. He used the ballot measure as leverage. And despite counterarguments by the gay labor group Pride At Work and the ACLU, the 3-member panel of the appeals court took his side.
That conservatives should rush to court to claim victory is a strategy rife with hypocrisy. For fifty years, from school desegregation to reproductive privacy to abolition of sodomy laws by the U.S. Supreme Court, opponents of the rights revolution mocked progressives by alleging they couldn't prevail at the ballot box and so headed instead to the bench. Especially on gay issues, right-wing politicos from local school boards up to the Bush White House built campaigns and even careers on attacking same-sex couples. They exploited public ignorance and stigma while denouncing gay-rights' groups reliance on the courts to kill or curb their hostile measures.
It's also why conservatives' shift to the courts in Michigan indicates their gradual loss of power. In 2001, a coalition defending domestic-partner benefits from outright prohibition won a decisive battle at the ballot box in Kalamazoo. The next year, Cox narrowly won office, thanks in part to a third-party also-ran who siphoned votes from the Democrat. Now, five years later, foes of recognizing same-sex couples claim a temporary triumph only after disguising the death-sentence-for-benefits phrase within the '04 ballot measure. The case seems likely to go before the state supreme court.
Nationwide, domestic-partner benefits are showing up well beyond the traditional, local arenas of consideration and are increasingly a priority for state lawmakers. Washington legislators took up a partnership bill this month and could soon pass such a law. Oregon may not be far behind. While Massachusetts remains the only state with full-fledged marriage equality, New Jersey just built on its own strong benefits law, passed in '04, to join Vermont and Connecticut as states with comprehensive civil-unions legislation covering same-sex couples. California, whose partnership statutes are a national model, may also improve even on that standard by repeating the feat of two years ago: passing an equal-marriage statute through the legislature. So much for winning partnership protections only via "unelected judges"!
Enjoying above 60 percent public support in most polls, partnership benefits are likely to gain the spotlight during the 2008 presidential race. All the Democratic candidates are supportive. But on the Republican side, only Giuliani and McCain break the lockstep contempt for such policies expressed by the cast of antigay scolds. And even McCain must explain the prominent role he played in trying to pass a sweeping antigay measure in Arizona in '06 that would have taken away benefits from committed same-sex couples. In another sign of gay people's increasing clout at the ballot box, voters nixed that proposal long before it ever came before the courts.
In the run-up to 2008, advocates of gay rights will still look to the bench as one part of policy battles to gain recognition for committed same-sex couples. But going to court to block them is fast becoming a path of first resort for their opponents.