Nick Krieger (@nckrieger):
Within the next ten days, we should know the outcome of DeBoer v. Snyder, the Michigan same-sex marriage case currently pending before the United States Supreme Court. It is widely expected that a majority of the Justices will strike down Article 1, section 25 of the Michigan Constitution of 1963, which prohibits same-sex marriage and defines the institution of marriage as the union of one man and one woman.
What if the Supreme Court does invalidate Michigan’s same-sex marriage ban? Then what? Two members of the Michigan House of Representatives have decided that the Legislature should make it more difficult for everyone to get married.
House Bills 4731, 4732, and 4733, introduced last week by State Representatives Todd Courser (R-Lapeer) and Cindy Gamrat (R-Plainwell), would make it unlawful for anyone other than a member of the clergy or a minister of the gospel to perform a marriage in Michigan. Under the proposed legislation, only religious marriages would be recognized. No longer would judges, magistrates, mayors, or county clerks be entitled to join couples in civil marriage ceremonies. And couples wishing to be married would no longer obtain marriage “licenses” from the office of the county clerk. Instead, they would receive nongovernmental marriage “certificates” directly from their priest, minister, or clergyman.
In addition, the bills would revive the institution of common-law marriage, which has not existed in Michigan since January 1, 1957. A couple that is not joined in matrimony by way of a religious ceremony performed by a member of the clergy or a minister of the gospel could consent to live together as husband and wife, and this consensual arrangement would be recognized as a common-law marriage. Any couple so consenting would be entitled to file an affidavit of common-law marriage with the office of the county clerk, which would effectively take the place of a religious marriage certificate.
House Bills 4731, 4732, and 4733 specifically state that they will only take effect if the United States Supreme Court invalidates Michigan’s same-sex marriage ban. What does this mean? It means that State Representatives Courser and Gamrat are not actually motivated by their professed desire to promote religion, but rather by a compulsion to undermine the United States Constitution and perpetuate the disparate treatment of gay persons.
The bills are replete with typographical errors and internal inconsistencies. This is unsurprising given that they were hastily drafted to prevent the perceived “emergency” of same-sex marriage. As just one example, section 1A of House Bill 4733 conflates affidavits of common-law marriage with marriage certificates, providing that an affidavit of common-law marriage must contain each party’s name “which shall become the full legal name of the party upon filing of the marriage certificate.” As already noted, only a couple that is not married by a member of the clergy during a religious service (and hence not in possession of a marriage certificate) would ever need to file an affidavit of common-law marriage. Therefore, this section makes no sense at all. It was clearly cut and pasted from a different section of the bill without any proofreading or thought.
The bills are also overbroad. They are in no way limited to preventing same-sex marriages. The bills would prevent any marriage (including between a man and a woman) that could not be performed by a member of the clergy or a minister of the gospel. Thus, for instance, it appears that the bills would prevent a Roman Catholic man from marrying an Orthodox Jewish woman. Both Roman Catholicism and Orthodox Judaism disfavor interfaith marriages. Accordingly, neither a priest nor a rabbi would be able to officiate at the marriage ceremony or sign the marriage certificate. And without any option for a civil ceremony (recall that the bills eliminate the ability of judges, magistrates, mayors, and county clerks to perform civil marriages), the Roman Catholic man and Orthodox Jewish woman would have only common-law marriage available to them.
The same would be true for any interfaith, agnostic, or atheist couple that could not locate a willing member of the clergy or minister of the gospel. The law according to Courser and Gamrat would really be quite simple: If the church doesn’t condone it, neither does the state of Michigan.
And what about the revival of common-law marriage under the pending legislation? Would a common-law marriage be equal to a religious marriage? Or would it be some kind of second-class marriage? The bills offer few hints. It is clear that religious marriages performed by members of the clergy or ministers of the gospel would be preferred. As such, it is arguable that common-law marriage would be viewed merely as quasi-marriage or pseudo-marriage under the legislation. How would this fit together with Michigan’s laws governing divorce, child custody, intestate succession, conservatorship and guardianship, personal property, banking, and housing? Would only religiously married persons be considered husbands or wives under these numerous statutes? We don’t know for sure because Courser and Gamrat do not tell us in the text of their bills. But it certainly seems that this is one of the devious motives underlying the legislation.
Of course, virtually anyone can become a minister of the gospel. With nothing but an Internet connection, you or I can be ordained as a minister of the Universal Life Church today. It is a fundamental principle of American constitutional law that the state may not favor one religion over another. In other words, once you’re ordained in the Universal Life Church, you’ll have the same status as an Episcopal priest or Presbyterian minister for purposes of the pending bills. Try as they might, Courser and Gamrat will not be able to legislate around this little hiccup. The First Amendment simply won’t permit it.
Which brings me to the good news. House Bills 4731, 4732, and 4733 are so blatantly unconstitutional that they will never be enforced—even if they unanimously pass both houses of the Legislature and Governor Rick Snyder signs them with gold ink. Under the Due Process Clause of the Fourteenth Amendment, all individuals have a fundamental right to marry, regardless of their religion or lack thereof. Under the Equal Protection Clause of the Fourteenth Amendment, the government may not permit one group of people to marry while at the same time prohibiting a similar group of people from marrying absent a compelling state interest. And under the Establishment Clause of the First Amendment, the state may not favor religion over irreligion, or one religion over another.
We need not worry that these three bills will ever see the light of day. Even if they are ultimately enacted into law, they will be completely unenforceable. In addition to unconstitutionally favoring religion over irreligion, they would unconstitutionally impair the fundamental right to marry and would unlawfully treat similarly situated groups differently without any compelling governmental reason for doing so.
We should all be worried, however, that individuals like Todd Courser and Cindy Gamrat are making our laws. The Michigan Legislature has become increasingly unrepresentative in recent years. Even if you oppose the idea of same-sex marriage, you should be outraged by the sheer folly of this reactionary legislation. By introducing and promoting three facially unconstitutional bills, Courser and Gamrat—two supposed conservatives—have cost us real money. And why? Because the United States Supreme Court is poised to do something they don’t like. It all sounds pretty childish, doesn’t it? Courser and Gamrat both describe themselves as “constitutional conservative[s].” Maybe it’s time for them to drop the “constitutional” bit. They aren’t fooling anyone.