Palm Beach Post Editorial: How far, really, would 'marriage protection' go?

Wednesday, May 14, 2008

You've heard Florida and Michigan mentioned together when the issue is Democratic presidential delegates. They are being mentioned again when the issue is bans on same-sex marriage.

Last week, the Michigan Supreme Court ruled that the state's 2004 man/woman-only marriage amendment means that counties and cities cannot offer domestic partner benefits. Opponents of the so-called Marriage Protection Amendment, which goes before Florida voters in November, have argued that by placing in the constitution what state law already forbids, the amendment also would jeopardize those benefits for Floridians.

What are these?

Obviously, a Michigan court ruling has no power in Florida. Supporters of the Marriage Protection Amendment also note the differences between the two proposals.

The Michigan amendment read this way: "To secure and preserve the benefits of marriage for our society and for future generations of children, 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." The Florida amendment reads this way: "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."

In Michigan, the key phrase for the court was "similar union for any purpose," which is not in the Florida amendment. By a vote of 5-2, the Michigan high court ruled that the amendment linked marriage and domestic partnerships. Backers of the Florida amendment point to a 2006 Florida Supreme Court advisory opinion that their proposal does not intend to eliminate domestic partner benefits along with same-sex marriage, and thus would not violate the state constitution.

Still, like the Michigan amendment, Florida's same-sex ban contains the word "recognized." In the Michigan case, a key portion of the majority opinion stated, "When public employers provide domestic partners health-insurance benefits on the basis of the domestic partnership, they are without a doubt recognizing the partnership."

The Florida advisory opinion was unanimous, but it's still just advisory. The court always notes that allowing an amendment on the ballot doesn't indicate an opinion about the amendment. In Michigan, a trial court judge ruled that the same-sex marriage ban did not apply to domestic partnerships, but was overturned. And, of course, there was disagreement among members of the supreme court.

As all lawyers know, there's no certainty with any jury or any court. There's also no certainty about the possible reach of the Marriage Protection Amendment.