June 8 2011 12:00 AM

Despite cultural and social gains, Proposal 2 makes Michigan a difficult place to live


    In 2000, Michael Falk came to Ann Arbor with his partner,
    Matthew, to begin a promising career in materials science. He was 31
    years old. By 2002, Falk’s teaching and research at the University of
    Michigan earned him an Early Career Development Award from the National
    Science Foundation.

    The prize goes to young scientists who show they are
    likely to “build a lifetime of leadership in integrating education and
    research.” Falk got another award, for excellence in teaching, in 2005.

    Falk works with the tiniest bits of semiconductor crystals
    and other nano-stuff that’s crucial to cutting-edge computer
    technology. He studies how these substances fail under high temperature.
    Everything has a breaking point.

    Last year, thanks to Michigan’s 2004 anti-gay
    constitutional amendment and its ongoing legislative and legal fallout,
    Falk moved to Baltimore’s Johns Hopkins University to build his
    “lifetime of leadership” in another state. He and his partner were
    married in Washington last summer.

    “It just felt like we were under attack,” Falk said. “It made us reconsider our long-term desire to make Michigan our home.”

    Despite a dramatic rise in public acceptance of gay and
    lesbian rights among a wider public, Proposal 2 and its chain reactions
    continue to make Michigan radioactive for much of the LGBT community.

    Michigan’s constitutional amendment forbids the
    recognition of same-sex marriages “as a marriage or similar union for
    any purpose.”

    No matter how fast gays and lesbians gain social or
    cultural acceptance, no matter how many local human rights ordinances
    are passed, no matter how many shows of support come from this or that
    straight institution, Proposal 2 hangs like a sword of Damocles over the
    LBGT community, making Michigan seem like a hostile environment. 

    “One of the worst in the country” — that’s how Tobias
    Barrington Wolff, a law professor at the University of Pennsylvania,
    described Michigan’s anti-gay-marriage amendment. Wolff was chief
    adviser and spokesman for Barack Obama on LGBT issues during the 2007-08

    “It just seems like a gratuitous effort to punish and be
    cruel toward three or four hundred thousand Michigan citizens,” Wolff
    said. “It makes it harder for them to find the person they’re going to
    share their life with, make a happy and successful home together and
    contribute to a larger community.”

    The stories drip from Lansing, week by week. When state
    universities tried to find another way to extend benefits to same-sex
    couples, legislators moved to cut their state funding by an extra 5
    percent. When the Civil Service Commission voted to extend the benefits
    to state employees, the attorney general sued to stop them. Thanks to
    Proposal 2, these countermoves and others like them can fly under color
    of “the law of the land” and “the will of the people.” But the political
    headlines don’t begin to describe how Proposal 2 has affected life in
    Michigan, not just for gays and lesbians, but for everyone.

    Attack of the super-DOMA

    A New York researcher has begun the first systematic study
    on how constitutional amendments like Michigan’s affect individual
    lives. Daniel Pinello, a professor of political science at the John Jay
    College of Criminal Justice of the City University of New York, has a
    name for amendments like Michigan’s. He calls them “super-DOMAs,” after
    the federal Defense of Marriage Act.

    In Pinello’s lingo, “mini-DOMAs,” like California’s famous
    Proposition 8 or Oregon’s Measure 36, only limit marriage to one man
    and one woman. Super-DOMAs like Michigan’s or Virginia’s ban all forms
    of recognition for same-sex relationships.

    Wolff calls them “desperate attempts to amend state
    constitutions to turn gay people into second-class citizens.” The broad
    language of super-DOMAs gave birth to an unpredictable, hydra-headed
    legal monster in Michigan.

    Pinello is working on a book about the national flare-up
    of anti-gay constitutional amendments and its consequences. He has
    released a preliminary study focusing on four or the 19 states with
    super-DOMAs, including Michigan. For the study, he interviewed 23
    same-sex couples in Michigan (75 couples in all).

    Pinello kept the names confidential, but he found the tentacles of Proposal 2 extending into unexpected corners of LGBT lives.

    He found direct consequences even before came here to do
    research in 2009. By coincidence, one of his colleagues at CUNY went to
    law school in Michigan with her lesbian partner. In 2004, shortly after
    Proposition 2 passed, the woman was offered a position at the University
    of Michigan.

    “This couple agonized for a couple of weeks,” Pinello
    said. Had they moved, they would have been reunited with a large
    extended family and enjoyed a drastically lower cost of living.

    But the couple didn’t return to Michigan.

    “They told me they just couldn’t do it, given the legal environment,” Pinello said.

    While doing research in Michigan, Pinello talked to a
    tenured professor at Oakland University, 15 years older than her
    partner, who had to back out of buying a “perfect house” near campus.
    The house was in an area reserved for Oakland University staff and
    spouses. If the professor died, she was told, her partner would have to
    leave the house.

    Pinello also interviewed an heiress living in a northern
    suburb of Detroit. The heiress’s grandparents set up a trust that left a
    large estate to her, her two brothers and their “legal spouses.”

    The heiress and her lesbian partner have been together for
    20 years, but if she dies, her partner would get nothing while her
    brothers’ wives would have full shares.

    “There’s nothing they can do to get the partner recognized,” Pinello said.

    To make the case more perverse, the brothers and their
    wives offered to welcome their sister’s partner into the family in some
    official way, but the trustee refused to hear them.

    Pinello also talked with a student at the University of
    Michigan medical school who had tried to persuade a friend, a top
    hospital administrator in New England, to apply for a similar job at U.
    of M.

    The friend, a lesbian, wouldn’t consider applying for the position, given the legal status of gays and lesbians in Michigan.

    Pinello said he has only found the tip of the iceberg. He
    pointed out that his respondents, found via the Gay Yellow Pages, were
    relatively well heeled and educated.

    “I didn’t have access to the most heart-rending stories,
    which are going on out in the hinterlands,” he said. “People are
    schoolteachers and can’t get health insurance for their partners,
    they’re raising children and they’re frightened to talk to anyone. The
    more telling stories are probably invisible.”

    When looking at Michigan, Pinello concluded that one development was the most significant of all.

    The first, and only, time a state Supreme
    Court brought the super-DOMA hammer down on lesbian and gay couples was
    in National Pride at Work, Inc. v. Governor of Michigan (2008), where
    the court interpreted the words “or similar union for any purpose” of
    Proposal 2 to bar health insurance benefits for same-sex partners of
    state employees.

    Pinello called it “the clearest example of an actual,
    tangible, statewide loss for gay and lesbian couples” in the nation
    based on a super-DOMA.

    But there were also intangible losses, harder to quantify but no less damaging.

    “The effects of Super-DOMAs on same-sex couples, revealed time and again in interviews, are fear and depression,” Pinello said.

    There are many painful questions gays and lesbians must
    ask themselves if they live in Michigan. Will we end up in separate
    nursing homes? Will a biological son or daughter assert legally
    recognized rights and contest a document? Will I be able to visit a
    loved one in the hospital?

    Same-sex pairs in Michigan repeatedly told Pinello they
    would be fearful to be hospitalized anywhere in the state except Ann

    Only 28 percent of the couples Pinello interviewed felt
    confident their legal papers (wills, living wills, durable powers of
    attorney, health care proxies, etc.) would be honored when the time
    came, especially if they met with illness or accident away from home.

    Penny Gardner, president of Lansing Association for Human Rights, is familiar with these fears.

    Gardner doesn’t care much about marriage (“it’s
    patriarchal and Christian and phhhhh”) but cares about the legal and
    civic recognition it would bring.

    “I’m virtually married to my partner, Marilyn, for 15
    years, but she has no legal standing,” Gardner said. “”My kids do.
    They’re fine kids, but who’s to know?”

    Buyer’s remorse

    The irony of Proposal 2 is that
    Michigan’s electorate may already be feeling remorse for the full-body,
    gay-bashing tattoo it impulsively bought in 2004.

    Poll numbers are shifting fast, especially for a
    hot-button social issue. When the Glengariff Group conducted a random
    survey of registered Michigan voters in June 2009, pollsters found a
    “seismic shift among Michigan voters on the issue of gay marriage and
    civil unions” since October 2004. Support for civil unions went from 42
    percent to 63.7 percent, a 52 percent increase. Support for gay marriage
    went from 24 to 46.5 percent, a 94 percent increase.

    In a milestone CNN/Opinion Research Corp. poll released
    Tuesday, April 19, 51 percent said they think marriages between lesbians
    and gay couples should be recognized as legal, up from 44 percent in
    2009. For the first time in history, support for gay marriage punched
    into the majority in a national poll.

    “Every day it becomes more and more apparent that
    [Proposal 2] is out of step with majority sentiment around the country
    and, I think, in the state of Michigan,” Wolff said.

    “The more hostile opinion of six years ago, memorialized
    in Proposal 2, appears to control how gay and lesbian couples are
    treated there now,” Pinello said.

    Democratic action via constitutional amendments is a
    novelty in the United States. Legislatures can repeal laws, but it’s
    much more cumbersome process to change a state constitution.

    “They were wily,” Pinello said of Proposal 2’s Michigan
    backers. “They intended to immortalize the opinion of the day into the

    Removing the tattoo will probably be a long and painful operation.

    Pinello isn’t rushing his book. He’s confident history will not leap forward and make his work moot anytime soon.

    “I don’t see things improving for a long, long time,”
    Pinello said. “If there’s any salvation, it will come from the U.S.
    Supreme Court. Barring that, it’s unlikely that there will be the
    political will to repeal these awful amendments.”

    Wolff said it would either take “a mobilized effort by
    state legislatures and the people, or action by the federal courts.”
    Nevertheless, when Pinello asked gay and lesbian couples if they have
    thought of moving out of the Michigan, he was amazed at the answers.

    “Most of them have not,” he said. “They’ll say, ‘I was born and raised a Michigander, I’ll stay here and fight.’”

    Pinello wasn’t shy about comparing what he heard to rationales offered by Jews who didn’t leave Germany in the 1930s.

    “There were all these signs of increasing hostility, but
    people were saying very similar things,” Pinello said. “‘I’m as German
    as Hitler.’ ‘It’s a passing thing.’ ‘I’m going to stay and fight.’
    ‘Things will get better.’”

    You won’t get any Weimar Germany delusions from Dennis
    Hall, a retired State of Michigan worker who lives in Lansing. Hall has
    trouble buying the argument that a small group of rabid legislators are
    to blame for Proposal 2 and its fallout.

    “If people of Michigan were really tolerant, they wouldn’t
    be voting for these people they keep putting in office,” he said. “It’s
    a frustrating feeling to be gay and living in Michigan, to be honest. I
    really don’t feel comfortable in this state anymore.”

    The rain of legal and legislative blows, large and small,
    takes a toll. Hall was aghast at a measure proposed in April to require
    universities that have accredited counseling programs to report to the
    state Legislature on how students’ religious beliefs are accommodated.
    The measure was proposed when an Eastern Michigan University counselor
    was fired after refusing to counsel a gay student. Michigan’s attorney
    general, Bill Schuette, filed a brief in support of the fired counselor.

    Hall is angry that lawmakers would busy themselves with
    inserting such a provision when LGBT rights are actively suppressed
    across the board.

    “When are they going to put something in the boilerplate that says something positive about us?” Hall said.

    Hall said he’s had it. As soon as his partner retires, he’s leaving the state.

    “I’ve been all around the country, and Michigan is the
    most beautiful state in the United States, but I would leave it in a
    heartbeat,” he said.

    When fear penetrates Michigan that deeply, the whole state suffers incalculable loss.

    “The 50 states are a marketplace, and talent that is mobile will take that into account,” Pinello said.

    When Michael Falk left Ann Arbor last year, the University
    of Michigan lost more than a promising scientist. Falk walked away from
    a start-up package of computer and lab equipment, customized to his
    research needs, worth about $300,000.

    “They support you when you’re an assistant professor while
    you’re getting up to speed as an academic,” he said. “It’s obviously
    better for the university if you stay on and spend your most productive
    years in this institution that’s made a big investment in you.”

    Falk stays in touch with friends in Ann Arbor who were
    relieved when the University of Michigan offered “other qualified adult”
    benefits, but he’s glad he moved to Baltimore.

    “To us, it looked like a patch, until that gets
    challenged, and then what happens?” Falk asked. Watching the situation
    from afar, he was not surprised to learn that the Michigan legislature
    came close to penalizing universities that still offer benefits to
    same-sex couples by cutting funding an extra 5 percent.

    Proposal 2 gave legislators like State Rep. Dave Agema the
    constitutional cover to claim that universities who offered benefits to
    same-sex couples were putting themselves “above the law and the will of
    the people.”

    Michigan’s Civil Service Commission voted
    to extend benefits to same-sex partners of state employees in January
    2011.The state’s Legislature fell short in an effort to overturn the
    ruling, but Schuette has sued to stop the benefits, Gov. Rick Snyder has
    warned that the state can’t afford them, and some Republican
    legislators, outraged by the Civil Service Commission’s ruling, want to
    abolish the commission altogether.

    “This is not the end of story,” Falk said. “We’re very
    concerned for our friends in Michigan. Some are couples with kids. The
    parent who’s taking care of the children is the one whose benefits
    depends on the university.”

    A bill recognizing same-sex marriage narrowly missed
    passage in the Maryland legislature this spring, but Falk is hopeful it
    will go through in the near future.

    “It’s good to be in a place where things are moving in the right direction,” Falk said.