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    Jack Lessenberry

    Jack Lessenberry

    The Same-Sex Marriage Penalty

    November 6, 2015

    DETROIT – Nearly four years ago, Dana Nessel took up a civil rights case many experts felt was hopeless. She led the team that helped overturn Michigan’s ban on same-sex marriage—a case which helped lead to the U.S. Supreme Court ruling this past June that gay marriage was constitutionally protected and legal nationwide.

    Now Nessel, a sometimes tart-tongued mother of twin 12-year-old boys, is again setting out to change history. This time, she aims to amend Michigan’s Constitution to protect everyone in the state from any discrimination based on sex, gender identity, or sexual orientation. This would—if it gets on next year’s ballot and passes—effectively end a system where, while same-sex marriage is fully legal, Michigan employers can still fire someone for being gay, or withhold benefits from their spouses.

    But this time, something is different. Now, she has a strong partner in her effort: One of the state’s most powerful Republican attorneys, Richard McLellan, a longtime major, behind-the-scenes player in Lansing. Oakland County Executive L. Brooks Patterson, one of the state’s most prominent Republicans, is also supporting Fair Michigan, the group organizing to get this done.

    Why are conservatives supporting this?

    “There’s a growing recognition that, besides being the right thing to do, this is good for business—that by not having these protections, Michigan is being held back,” Nessel said. “Conventions are not coming here. Employers are not expanding here. This is contributing to the brain drain, because young people are leaving here.” Fair Michigan’s goal is to raise an estimated $1.5 million they will need to collect the 315,654 signatures required to put a proposed amendment on the November, 2016 ballot.

    If they can do that, she is confident of victory. A poll conducted by the Chicago-based Glengariff Group showed that 59.8 percent of voters would support an amendment to ban discrimination while only 19.2 percent would vote, “no.” National polls have consistently shown a dramatic shift in attitudes, with similar majorities supporting an end to discrimination.  In Michigan, however, that hasn’t been reflected in the legislature, which has been controlled by a combination of Tea Party activists and the religious right. Some traditional human rights organizations, including Equality Michigan, have been reluctant to support a ballot drive, indicating they’d prefer legislative action instead.

    That attitude is utterly exasperating to Dana Nessel. “We have to do this by amending the constitution, because it is very clear that the Michigan Legislature will never do anything. We’ve been trying to get them to amend the state’s Elliott-Larsen civil rights act to include sexual orientation and gender identity for a dozen years. They’ve never taken a vote. The state senate has never even held a hearing. [Discrimination] is destroying people, destroying families. How long should we ask them to wait?”

    Ironically, Nessel, who recently got married herself to her partner Alanna Maguire, wasn’t looking for another major cause so soon after her first one. She was hoping to make some money and spend time with her family. But then, she wasn’t actively looking for her first landmark case, either. A former assistant Wayne County prosecutor who specialized in domestic homicide and child abuse cases, she has been in private practice (Nessel and Kessel Law) specializing in criminal and family law, for a decade.

    Four years ago, two lesbian nurses, April DeBoer and Jayne Rowse, came to her because they wanted to jointly adopt three special needs children they cared for as foster parents. Michigan allowed only single people and married couples to adopt children. The children had each been adopted by one of the nurses, and were being raised as siblings, but the couple worried. If one were to die, the survivor would have no rights to the dead partner’s child or children.

    Confronted with this injustice, Nessel turned to traditional civil rights agencies. She said they told her the case was too risky, and might set the cause back. She took it anyway, filing a lawsuit in federal court in Detroit. To her surprise, in August 2012 U.S. District Judge Bernard Friedman advised Ms. Nessel and her legal team – attorneys Carole Stanyar, Kenneth Mogill and Wayne State University Law Professor Robert Sedler—to broaden the case to challenge Michigan’s ban on same-sex marriage. They did. And, in March 2014, he struck down Michigan’s ban on both same-sex marriage and adoptions. The state appealed, and the case was later combined with others. That led the to the U.S. Supreme Court’s ruling on June 26 that the Fourteenth Amendment requires all states to grant and recognize same-sex marriages.

    But within days, people were calling Nessel’s office, telling her that this had made things worse for them in some ways. People were hiding their marriages so they wouldn’t be fired.  Insurance companies were claiming they could choose to pay benefits only to spouses of the opposite sex.  Once again, Nessel was dismayed to see other groups shying away from their cause. “I thought, well, maybe I’m not the best person to do this, but somebody’s better than nobody.”

    These days, she’s hardly nobody.  This fall, she finally got reimbursed by the state for four years of legal expenses in the same-sex marriage and adoption case, which was good. Especially since, thanks to the new Fair Michigan campaign, she faces months of pro bono work ahead.  

    Jack Lessenberry teaches at Wayne State University, serves as Michigan Radio’s senior political analyst and writes regularly for several publications. He also serves as The Toledo Blade’s writing coach and ombudsman and is host of the weekly television show Deadline Now on WGTE-TV in Toledo.

  • November 5, 2015 · Filed under Jack Lessenberry



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