Worldview embodied by Agema, Michigan’s same-sex marriage ban headed for history’s trash heap

Peter Luke was a Lansing correspondent for Booth Newspapers for nearly 25 years, writing a weekly column for most of that time with a concentration on budget, tax and economic development policy issues. He is a graduate of Central Michigan University.

The ravings on Dave Agema’s Facebook page only seek to justify discrimination, a losing proposition given the rapid shift in public attitudes in favor of gay rights.

For the continued licensing of that discrimination in this state, however, you only have to look to the Michigan Constitution and its creative statutory offshoots.

With a few exceptions, Republicans weren’t embarrassed by Agema because, a little more than a year ago, they were unanimously voting for the former House member's bills that defend a preferred version of Michigan culture shared by the social conservatives who remain the core of the party’s base.

And you can’t be too hard on the guy when you essentially voted to codify in law the sentiment he's now being criticized for broadcasting -- or when you actually sign it. That’s what Gov. Rick Snyder did 16 months ago with Agema’s HB 4770, which specifically prohibits extending employee benefit packages to the domestic partners of school district and local government workers.

Snyder, who chose to allow the state to get in the middle of local government employee relations, said recently he really didn’t want to get in the middle of the debate over whether Agema should retain his new position on the Republican National Committee.

He did reiterate that he was opposed to discrimination, even if Public Act 297 strips benefits from some employee households, but not others -- those with employees of universities. GOP legislators continue to insist that the benefits ban does cover universities, a point retained in 2014 higher education legislation.

What has to worry the few Republicans out there failing to isolate Agema as a fringe character (albeit one with a seat at the RNC) is that the controversy exposes a long thread of apparently hard to discard wedge-issue politics that is fast becoming out-of-step with voter attitudes and demographic change.

How times have changed since 2004

Back in 2004 it was a different story, as Republican donors helped secure ballot access and passage of Proposal 2, the constitutional amendment that defined marriage, or other “similar union,” as between one man and one woman. While it passed in every county save Ingham and Washtenaw, it didn’t deliver Michigan for George W. Bush, whose campaign believed it would draw ambivalent social conservatives to the polls. A similar ballot measure may have delivered Ohio, however, and that was enough.

Opponents at the time asked the Board of State Canvassers to adopt ballot language informing voters of the sweeping nature of the amendment. Proposal 2 backers said the Michigan Supreme Court would ultimately determine its parameters, obviously confident that a conservative majority would set broad ones.

So broad that it upheld an opinion by Attorney General Mike Cox that the term “similar union” did indeed bar arrangements through which the established gay partners of government employees could receive health insurance and other benefits. Cox this month said the amendment should now be repealed.

The response to the Supreme Court's ruling was a broader policy by municipalities, schools and universities to extend benefits to any long-term domestic partner, gay or straight. But a punitive Republican legislative majority took its collective thumb and pressed down.

Hence PA 297, which the ACLU of Michigan is contesting in U.S. District Court in Detroit, where a ruling is pending. The law limits employee benefits to married couples, dependent children and anyone else “eligible to inherit from the employee under the laws of intestate succession in this state.” That last category gives third cousins the right to taxpayer-funded health insurance in order to slam the door on providing it to partners who are, for all intents and purposes, spouses.

But there are bound to be casualties in defense of the Michigan Constitution, which polling suggests the public might now want to amend again.

Last November's survey by Michigan State University pollsters found 56 percent of those questioned now back gay marriage in Michigan, while 39 percent remain opposed.

So it is inevitable that voters will be asked to replace the 2004 amendment with one that legalizes same-sex marriage in Michigan.

If the ACLU and the employee plaintiffs it represents succeed in having Agema’s law ruled unconstitutional on equal protection grounds, and if the U.S. Supreme Court strikes down the federal Defense of Marriage Act in June, thus possibly extending some of the federal benefits of marriage to Michigan couples married in, say, New York, there could be a movement to quickly channel that momentum toward a 2014 ballot effort.

More likely, though, is that the money required for a petition drive and fall campaign will focus attention on the 2016 presidential year, when the turnout will be larger and younger – and with fading opposition even more out of touch with public sentiment.

Constitutional amendments are rarely repealed. Proposal 2 of 2004, however, just might have the shelf life of a Facebook post.