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.