U.S. District Judge David Lawson

Over a year ago, U.S. Federal District Judge David Lawson enjoined public entities from refusing the provide government benefits to domestic partners or same-sex couples.

Last month, in Bassett, et al vs Governor Snyder, Judge Lawson finally issued a 34-page opinion disposing of the cross motions for summary judgment filed in the matter. The decision cites to Judge Friedman's ruling in the DeBoer case as well as the seminal case on federal benefits: United States v Windsor.

The Michigan law that was struck in the federal case bans public schools and local governments from offering benefits to same-sex couples. In striking down the state law, Judge Lawson characterized the law as being imbued with an "irrational prejudice".

In so ruling, Judge Lawson distinguished his case from the multitude of same-sex marriage and adoption cases now pending on appeal.  Judge Lawson noted that, "this case is not about marriage." He said the state law ban, "amounts to a classification based on an irrational prejudice which cannot be sustained."

Contrary to the state's assertions that the ban was merely designed to save money, Judge Lawson saw an animus against gays; a punishment of same-sex couples.

Considering that the Sixth Circuit Court of Appeals reversed Judge Friedman's DeBoer decision supporting same-sex couples, an appeal filed by the Michigan Attorney General would seem inevitable; the deadline recently passed so we will be checking PACER on Monday.

These issues will continue to play out in the federal appellate circuits over the next few years. For our part, we will continue to monitor and report on the developments. The pace quickens for this task.

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Like neighboring Iowa, Illinois just passed a same-sex civil union law; the 6th state in the union (plus D.C.) to do so.  This law will likely be tested in court, as in other states passing such progressive legislation.

Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road.  In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.

Invariably, there is a political price attached to this legislation.  No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.

Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution.  In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.  [Here's a powerful Iowan's clear view on the topic.]

A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage.  In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union.  Many gay couples do not avail themselves of such status, rejecting the compromise.

On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.

Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation.  Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.

In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.

As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.

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