The Impact of State Constitutions:
The Implementation and Effects of Super-DOMAs
Daniel R. Pinello
State constitutions are the stepchildren of American constitutionalism. As Tarr (1998, 1-2) observed: “Leading constitutional-law texts – even those that proclaim as their subject the generic ‘constitutional law’ or ‘American constitutional law’ – focus exclusively on the United States Constitution and its interpretation. So too do most contemporary constitutional commentaries and constitutional histories. Legal scholars announce constitutional theories that actually encompass only the federal Constitution – the rough equivalent of propounding a literary theory that pertains to a single novel. Small wonder, then, that almost half the respondents to a recent survey did not even realize that their state had a constitution.”
Indeed, the United States is among only about a dozen nations of the world with federal systems that have subnational units with their own constitutions. [The other countries are Argentina, Australia, Austria, Ethiopia, Germany, Mexico, South Africa, Switzerland, and Venezuela. Italy and Spain appear to be in transition to joining this group (Williams 2009).]
Several factors explain why “state constitutions do not inspire the same reverence as the U.S. Constitution” (Reed 2001, 64). A leading reason is the mutability of state charters. Whereas the federal Constitution has an enviable permanence – amended just 27 times in more than 200 years – “the provisions of the ‘fundamental’ state charter of a state are junked, scribbled on, and scratched out with dramatic regularity and remarkable ease” (Id., 89). In truth, Americans have spent much time and energy writing and re-writing state constitutions. “All told, [between 1776 and 2005,] the fifty states have held 233 constitutional conventions, adopted 146 constitutions, and ratified over 6,000 amendments to their current constitutions” (Dinan 2006, 1).
Another explanation for the lack of respect for state constitutions is their “penetrability by democratic majorities through state judicial selection and by constitutional referenda and initiatives” (Reed 1999, 887-88). Transient political majorities may subvert the independence of state judges who interpret constitutions but who are subject to popular check in the voting booth, while interest groups can bypass legislatures and enshrine their preferred policies in fundamental charters, at times by means of signature-gathering companies of questionable repute (Pinello 2006, 38).
Without doubt, nonetheless, state constitutions do matter. Inter alia, they create state governments, distribute power among the branches and between state and locality, and structure political conflict within their domains (Tarr 1998, 3). Yet these unquestionably vital attributes of subnational charters are principally procedural imperatives, organizing the internal mechanisms of the “black box” of state (and sometimes local) government without ordaining the policies it produces.
But most state constitutions aspire to do much more than simply address process. Many state charters, in fact, have extensive bills of rights that contain protections with no federal analogue. For example, “thirty-nine states guarantee access to a legal remedy to those who suffer injuries, and eleven expressly protect a right of privacy” (Tarr 1998, 13). Moreover, the state legislatures and interest groups that sponsor numerous referenda and initiatives to amend state constitutions with regard to economic and social-policy issues clearly believe that their efforts are worthwhile, that their alterations of state charters have import (e.g., Pinello 2006, 63-68, 108-109).
Thus, the inevitable question arises: what happens when state constitutions tackle controversial substantive issues like social policy? As Dinan (2006, 5) noted: “A complete evaluation of these distinctive state constitutions would, of course, require an analysis of their consequences. . . .”
Yet relatively little systematic scholarly investigation of state constitutional impact regarding policy outside of federal constitutional purview exists. The single most examined topic has been school finance reform, with major contributions by Reed (2001), Paris (2001), and Paris (forthcoming). These studies demonstrate that education clauses in state constitutions do produce significant results in the distribution of school funding when state courts, under the aegis of the education provisions, actively engage with legislatures and governors.
Indeed, the relevant empirical investigations are exclusively concerned with state-court implementation of state constitutions. As a methodological matter, for instance, the states selected as case studies are those whose courts of last resort have interpreted state constitutional provisions in innovative or otherwise noteworthy ways. States without such progressive state-supreme-court decisions are either ignored or used as null-set comparisons for the states with the innovative case law. In no circumstance does any study rely either exclusively or principally on states without significant judicial action. Thus, an otherwise uninformed reader of the field might easily believe that state constitutional policy provisions without federal analogue can be enforced only in state court.
But that view would be mistaken, at least from a theoretical perspective. “[W]hereas critics have argued that . . . positive rights are not as susceptible to judicial enforcement as traditional civil and political rights, state constitution makers have responded by calling attention to several other important purposes that might be served by constitutional provisions. In particular, the adoption of constitutional provisions can empower legislators and permit them to secure these rights in the face of contrary judicial decisions. Such provisions can also serve to inspire or admonish legislators to take action in a particular area” (Dinan 2006, 221).
In addition, theories of federal constitutionalism characterized by Reed (1999, 878) as “down and out” approaches provide insights into how state charters are fully implemented. Just as Tushnet (1999), for example, contends that Congress is as well suited to defining the meaning of the federal Constitution as the Supreme Court, branches and levels of state government other than the judiciary may be equally capable of enforcing the policy provisions of state charters.
Moreover, as policy analysts like Glick (1992, x) have observed: “[P]olicy analysis too often is compartmentalized and limited by separate studies of legislatures, courts, and administrative and executive agencies . . . . [U]nderstanding policy-making and the content of individual policies requires bridging research into several governmental institutions and various participants at the same time.”
My e-mail correspondence with scholars who are the most knowledgeable about state constitutionalism confirms the paucity of broad-ranging impact studies of state charter social-policy provisions. For instance, G. Alan Tarr wrote me: “As far as I know, there is no such literature [on the grass-roots or popular effects of state constitutions] . . . in part perhaps because most state constitutional changes have such low visibility for the populace” (Tarr 2009). John J. Dinan, another prominent student of the field, said: “Your particular research question is framed differently than much of the literature. . . . There is a literature that addresses the existence of state constitutional provisions without analogue in the federal Constitution. At times, this literature seeks to explain the adoption of these provisions. At other times, this literature seeks to catalog which states have adopted these sorts of provisions. This literature has focused to a great degree on the presence of positive rights in state bills of rights. Specific sources have focused on the presence of union rights, privacy rights, victims rights, environmental rights, and state ERAs, among others (Dinan 2006, 184-221; Friesen 2008; Williams 2006; Neuborne 1989; Hershkoff 2002; Thompson 1996). There is also a literature that addresses judicial interpretation of these various non-analogous state provisions (Friesen 2008; Williams 2006; Shaman 2008), as well as a number of issue-specific sources that look at how state supreme courts have interpreted privacy provisions, environmental rights provisions, victims rights provisions, etc. But as for your particular interest in the impact of state constitutional provisions as such, as distinct from how they have been interpreted by state courts, my sense is that this territory is rather unplowed or at least scholars have not conceived of their inquiries in this particular way” (Dinan 2009).
Accordingly, the national study proposed here will look at how multiple state and non-state actors implement a modern state constitutional social-policy provision without federal analogue that is shared across 19 states. In the process of investigating such state constitutional enforcement, the project will test a comprehensive theory of state constitutional impact.
A preliminary examination (underwritten by a John Jay College Faculty Research Support Fund award) of one such state informs the larger project and introduces its impact theory here.
Since 2000, voters in 19 states have ratified amendments to state constitutions banning recognition of all forms of relationship rights (i.e., marriage, civil unions, domestic partnerships, reciprocal benefits, etc.) for same-sex couples: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin.
These state measures are dubbed “Super-DOMAs.” The nickname derives from the 1996 federal Defense of Marriage Act (DOMA), which defined marriage for the purposes of federal law as only a union between one man and one woman. The Virginia Constitution, for example, states: “Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” More comprehensive language designed to limit the relationship options of lesbian and gays pairs would be difficult to imagine.
The Virginia provision is far more ambitious than the constitutions of ten other states (Alaska, Arizona, California, Colorado, Mississippi, Missouri, Montana, Nevada, Oregon, and Tennessee) that have been amended to include “Mini-DOMAs” (i.e., just limiting marriage to one man and one woman and doing nothing more). For example, California’s notorious Proposition 8 of 2008 says: “Only marriage between a man and a woman is valid or recognized in California.” This language left in tact the comprehensive statutory system of domestic partnerships that grants virtually all of the rights and responsibilities of civil marriage to same-sex couples in the Golden State. Likewise, despite the passage of Measure 36 (“It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage”) in 2004, the Oregon Legislature three years later enacted full civil unions for gay and lesbian couples.
Accordingly, the objectives of Super-DOMAs are substantially greater than those of Mini-DOMAs such as Proposition 8 and Measure 36. While the latter speak just to marriage and are silent about relationship arrangements such as civil unions, domestic partnerships, and reciprocal benefits, the former aspire to insure that same-sex pairs can be nothing other than complete legal strangers to one another. In short, Mini-DOMAs preserve the word “marriage” exclusively for opposite-sex couples, but not necessarily the attributes of civil marriage. Whereas, the goal of Super-DOMAs is to restrict the word and all of its attributes to heterosexual pairs. Thus, lesbian and gay couples in California domestic partnerships or in Oregon civil unions inherit from each other under state intestacy law, may adopt or sue for custody of or visitation with minor children of the couple, and enjoy a plethora of other rights comparable to those of civil marriage, regardless of the constitutional Mini-DOMAs. Yet same-sex pairs in Super-DOMA jurisdictions like Virginia may not benefit from any such attributes of marriage.
What is more, Florida, Ohio, Texas, and Virginia enacted statutory Super-DOMAs prior to their adoption of similar constitutional prohibitions. Indeed, Virginia has both narrow and broad statutory marriage bans in addition to the constitutional amendment quoted above. This behavior by the sponsors of constitutional Super-DOMAs indicates they believed that imbedding the language in a state charter was more authoritative and effective than legislative action alone.
The impact of Super-DOMAs like that in Virginia on lesbian, gay, bisexual, and transgendered (LGBT) communities and beyond could be quite extensive. American history teaches, for instance, that state consensual-sodomy statutes had broad civil effects (Pinello 2003, 54). Such criminal sanctions touched the home, with courts citing the laws as good reason to refuse lesbian and gay parents custody of, and visitation with, their children. The statutes also encroached on the workplace, with the federal ban on gay and lesbian servicemembers the most conspicuous example. At the state level, the denial of employment to otherwise qualified lesbian and gay employees was upheld in part because of sodomy laws. Accordingly, the wide-ranging prohibitions against same-sex relationship rights contained in Super-DOMAs may well have profound consequences on the daily lives of LGBT Americans.
While increasingly substantial social science literature has investigated the effects of civil marriage on lesbian and gay couples (e.g., Andersen, Taylor, and Kimport 2007; Andersen and Taylor 2008; Hull 2006; Pinello 2006), no systematic inquiry has yet occurred into the practical consequences of affirmative state denials of all relationship recognition to same-sex pairs and their families. Likewise, the legal literature on Super-DOMAs lacks empirical studies, because the books and law review articles there are either theoretical, track the relevant case law, or speculate about the grass-roots effects of the constitutional amendments (e.g., Koppelman 2006; Strasser 2007; Neely 2008). One goal of the proposed study, then, is to document that impact.
Even constitutional statements less absolute than Virginia’s language have substantial bite. Although Michigan’s provision (known as Proposal 2) is more succinct (“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose”), the Michigan Supreme Court nonetheless interpreted the words “or similar union for any purpose” to require the denial of health insurance benefits to the same-sex partners of state employees. National Pride at Work, Inc. v. Governor of Michigan (2008). The high court held that Proposal 2's language was unambiguous and thus prevailed, despite the fact that Citizens for the Protection of Marriage, the Michigan interest group responsible for placing the amendment on the 2004 ballot and its primary supporter in the ensuing campaign, published and distributed a brochure explaining that the measure would not preclude public employers from offering health-insurance benefits to their employees’ domestic partners.
With seed money from my college, I traveled to Michigan in January 2009 and conducted 28 in-depth interviews there to discover how Proposal 2 has been implemented. I chose the Wolverine State as the initial case because the National Pride at Work decision was the nation’s first authoritative court-of-last-resort interpretation of a Super-DOMA, affirming and documenting a specific grass-roots impact. My interview subjects were (1) personnel managers at major public employers, such as the University of Michigan and Michigan State University; (2) other experts knowledgeable about labor relations within Michigan; (3) officials with state and local lesbian, gay, bisexual, and transgendered interest groups; and (4) same-sex couples in the state who have married in other jurisdictions or who otherwise wish to marry.
The Michigan interviews reveal fascinating intimations about how Proposal 2 has been implemented there. Aside from the obvious event of the National Pride at Work litigation, far less conspicuous activities by both state and non-state actors have substantially impacted the Wolverine State’s LGBT community, and the state as a whole, as a result of the Super-DOMA.
I report notable findings in three major categories of inquiry. The first is whether gay and lesbian couples in Michigan have experienced actual, tangible losses from Proposal 2. The clearest example in this class of effects is that, as a result of the National Pride at Work precedent, the same-sex partners of public employees may no longer receive domestic-partner benefits in the Wolverine State. This development is particularly troublesome where such partners do not themselves have jobs that provide comparable health-insurance coverage.
Of even greater concern is the circumstance where partners are the biological parents of minor children being raised by the couples, because Proposal 2 also effectively eliminated the availability of second-parent adoptions for same-sex pairs in Michigan. Trial-court judges who had been willing to grant such adoptions prior to November 2004 (when the Super-DOMA passed) have declined to do so since then. Consequently, lesbian and gay public employees may not even be able to provide health coverage to their children in that setting.
However, despite 28 interviews with a wide variety of Michiganders, I have not been able to document even one instance of the actual loss of domestic-partner benefits by someone who was receiving them. Indeed, as of January 2009, Jay Kaplan, the staff attorney for the LGBT Project of the ACLU of Michigan, was not aware of any same-sex partner of a public employee in the Wolverine State who had actually had health-insurance benefits terminated. A major reason for this finding is that, after an adverse 2007 state intermediate-appellate-court ruling in the National Pride at Work litigation, some large public employers (like the University of Michigan and Michigan State University) revised personnel programs to eliminate partnership status for employment benefits and to replace it with “other qualifying adult” or similar alternative eligibility criteria. In other words, these employers substantially enlarged the categories of employees receiving benefits to include virtually all unmarried couples, the considerable portion of whom are heterosexual. This expansion of the eligibility pool significantly increased the employers’ health-insurance costs.
Such second-generation systems of state-employee benefits may also be contested. In the last year, a Grand Rapids legislator requested an official opinion from Michigan Attorney General Mike Cox on the constitutionality of the alternative eligibility criteria at Grand Valley State University.
A more subtle impact of Michigan’s Super-DOMA has been to scuttle the introduction of domestic-partnership provisions into collective bargaining agreements. At the time of Proposal 2's passage, for example, major state employee unions had negotiated new contracts with partnership benefits for same-sex couples. Shortly after November 2004, however, Governor Jennifer Granholm initiated a moratorium on such benefits, which stoppage was ultimately ratified in the National Pride at Work decision.
Further, in March 2009, Blue Cross/Blue Shield of Michigan announced that, because of the National Pride at Work ruling, it was withdrawing same-sex partner benefits from public-employee health plans that it underwrites in Michigan. Even so, self-funded groups (like the University of Michigan and Michigan State University) were unaffected by the Blue Cross/Blue Shield action, which principally touches smaller employers.
An additional subtle index of Proposal 2's impact is how Michigan hospitals treat patients’ same-sex partners. In a 2009 national survey, the Gay and Lesbian Medical Association sent questionnaires to every hospital in the Wolverine State inquiring about six measures of nondiscrimination involving LGBT patients (Healthcare Equality Index 2009). All 19 institutions replying to the survey indicated that their visitation policies allow same-sex partners the same visitation access to patients as opposite-sex spouses and next of kin. However, 17 of the responding facilities are located in or near Ann Arbor, home of the University of Michigan and the most socially progressive area in the state. Whereas, not one hospital in any of Michigan’s six largest cities (Detroit, Grand Rapids, Warren, Flint, Lansing, and Sterling Heights) answered the questionnaire. This empirical result confirms what same-sex pairs in Michigan repeatedly told me during interviews: They would be fearful to be hospitalized anywhere in the state except Ann Arbor.
I have documented instances of other varieties of direct loss to gay and lesbian couples in Michigan. The first involves housing rights. Oakland University is a public institution in the northern Detroit suburbs that provides employee housing near campus. Oakland faculty or administration members and their families can purchase homes in the designated area that have restrictive covenants limiting transfers of the properties to people affiliated with the school. Should the faculty member or administrator die, his or her spouse may continue to live in the house until the spouse’s death. A lesbian tenured professor and her partner made an offer on one such home and secured a mortgage to finance it. Then Oakland informed them that, because of Proposal 2, in the event of the faculty member’s death, the surviving partner would have to leave the home before the end of the calendar year.
In another instance, a graduate student at a Michigan public university who was a residence hall director asked whether her partner could move in with her. Even though opposite-sex couples cohabited in the units, the school’s vice president for student affairs determined that Proposal 2 prevented the lesbian pair from doing so.
A particularly interesting illustration of another Super-DOMA effect concerns the denial of inheritance rights. I interviewed a lesbian couple where one of the women is an heiress to a substantial family trust fund. She and her two brothers are the principal beneficiaries of the trust. Their grandmother, knowing the granddaughter to be a lesbian, designed the trust to provide that only the legal spouses of her grandchildren would receive trust payments. Accordingly, should the heiress predecease her partner of 20 years, the latter would receive nothing from the family trust. Indeed, the two grandsons and their wives approached the trustees and said that they were willing to include the lesbian partner as a beneficiary of the trust. But the trustees refused. Even if the lesbian couple were married in Massachusetts (where they have a vacation home), Proposal 2 would still deny inheritance rights to the heiress’s partner because the family trust is governed by Michigan law.
All of these losses to lesbian and gay couples arising directly from the Wolverine State’s Super-DOMA are especially noteworthy in light of how Michigan public opinion on same-sex relationships has evolved since the passage of Proposal 2. According to an October 2004 poll by the Glengariff Group of Chicago that was commissioned by the Detroit Free Press, just 24 percent of Michiganders then supported civil marriage rights for same-sex couples, while 42 percent backed legal recognition of civil unions. The next month, 59 percent of Michigan voters endorsed Proposal 2. In June 2009, nonetheless, Glengariff found that 46.5 percent of Michiganders supported same-sex marriage and 63.7 percent approved of civil unions. Moreover, 57.5 percent of Michigan respondents backed adoption rights for gay people; 65.5 percent, domestic-partner benefits for government employees; and 70.9 percent, inheritance rights for same-sex partners (Bell 2009). Glengariff pollster Richard Czuba described the four-and-a-half-year shift in Michigan public opinion on gay rights issues as “seismic” and said that the opinion change “was evident in almost every demographic group, including self-identified Republicans.”
In short, although public attitudes toward same-sex relationships dramatically improved after the adoption of Michigan’s Super-DOMA, that seismic shift is not clearly manifested on the ground today. Rather, the more hostile opinion of five years ago, memorialized in Proposal 2, appears to control how gay and lesbian couples are treated now.
The second major category of Super-DOMA effects is the emigration of LGBT people away from the Wolverine State to jurisdictions with legal environments less hostile to same-sex pairs. So far, I’ve been informed of at least a dozen lesbian and gay couples who’ve left Michigan principally because of Proposal 2. I’ve been able to contact some of these people independently to substantiate the reasons for their relocation.
The final class of Super-DOMA effects is the most elusive to identify as a methodological matter: whether these constitutional regimes suppress immigration into their states. In other words, do LGBT people and their supporters take state legal environment into account when deciding where to live in the first instance and thereby refuse to consider states like Michigan as prospective homes? A key determinate for this category of impact is the experience over the last four years of large Wolverine State employers in recruiting and retaining personnel in light of Proposal 2. Yet there’s a notable methodological hurdle to documenting prospective job applicants who decide not to seek employment in Michigan because of its hostile legal environment for same-sex couples. Choices not to apply are non-events that are nearly impossible for an empiricist to observe at a distance.
Nonetheless, I’ve been able to identify a circumstance where an executive search firm was hired last year by a major Michigan public employer to solicit applicants nationwide for a senior administrative position there. Fortunately for my project, this search company’s experience is a virtual experiment that overcomes the methodological dilemma outlined above. The independent executive recruiter found 28 qualified people willing to apply for the Wolverine State post, but discovered another nine qualified individuals who refused to consider the position because of Proposal 2. In other words, Michigan’s Super-DOMA reduced the prospective national applicant pool for an important post at a significant public institution in the state by approximately 25 percent.
In addition, I’ve also substantiated instances at Michigan public universities where, during the last four years, the top or leading candidates for positions as provost, arts-and-science dean, and other administrative and faculty posts have either rejected offers or withdrawn applications once the candidates were informed about Proposal 2.
Relevant Scholarly Literature
The literature on public policy implementation initially informs the analytic framework here. That body of research has distilled a list of five sufficient and generally necessary conditions for the effective implementation of legally based policies (Sabatier 1986; Calista 1994, 132-33). First, Van Meter and Van Horn (1975) established that a policy must have clear and consistent objectives, which provide a standard for evaluation and important legal resources to implementing officials. Super-DOMAs meet this criterion of precise and clear goals. Although the wording of the provisions across the 19 states varies considerably (as suggested by the Michigan and Virginia amendments quoted above), their objectives are common and direct: to limit civil marriage and the legal incidents thereof exclusively to opposite-sex pairs. The textual differences among the amendments should not matter, because research on the impact of variation in the language of state education clauses indicates that the specific wording of constitutional provisions has no relationship to judicial interpretations or popular understandings of them (Thro 1993).
The second condition for effective implementation is an adequate causal theory. Pressman and Wildavsky (1973) provided a fundamental insight that policy interventions incorporate an implicit theory about how to effectuate social change. Sabatier and Mazmanian (1979, 1980) elaborated by highlighting the adequacy of the jurisdiction and policy levers provided implementing officials in the policy framers’ causal assumptions. This enforcement stipulation of a causal premise appears reasonable since most implementation research focuses on aspirational reforms by progressive crusaders (e.g., Mazmanian and Sabatier 1983).
But few scholarly investigations look into the effects of the variety of conservative social activism reflected in Super-DOMAs. As a result, the second condition of the literature appears to be inapposite here because of the fundamentally different context in this study: the 19 state constitutional amendments in question seek to reinforce the social status quo. Their whole purpose is to avoid and oppose social change in family-relationship arrangements. In short, the charter provisions at issue deny rights, rather than grant or expand them. As Tarr (1998, 13) noted, state constitutional evolution is not a linear progression in one direction: “From 1986 to 1993, . . . the states adopted 52 amendments to their declarations of rights. Some of these amendments served to expand rights – for example, fourteen states added ‘little ERAs’ to their constitutions between 1971 and 1976. Others served to curtail them – Texas, for instance, has amended its bill of rights to restrict the right to bail and California to permit the use of illegally obtained evidence in criminal proceedings.”
The sponsors of amendments like Proposal 2 seem not to have anticipated an intricate system of jurisdiction and policy levers to enhance implementation. Instead, their implicit causal theory is the quintessence of simplicity: Public- and private-sector actors should “just say no” to same-sex pairs. Thus, the degree to which implementation is necessary in a Super-DOMA jurisdiction is the degree to which gay and lesbian couples have achieved any relationship recognition in the state prior to the constitutional amendment’s adoption. And the goal of implementation, then, is to roll back the existing recognition structures.
Of course, as revealed by the struggle over domestic-partner benefits in Michigan labor relations, the implementation reality on the ground in the Wolverine State was far from simple. The gay and lesbian partners of some public employees were already receiving benefits from Michigan institutions when Proposal 2 passed in 2004. Even though the campaign by Citizens for the Protection of Marriage assured voters that the measure would not preclude public employers from offering health-insurance benefits to their employees’ domestic partners, repealing those arrangements and preventing future ones soon became an integral part of enforcing the Super-DOMA. The true implied causal theory, therefore, was that the words “or similar union for any purpose” in Proposal 2 meant that all of the beneficial attributes of marriage, whatever the source, would have to be denied to same-sex couples in every circumstance. In National Pride at Work, in fact, the Michigan Supreme Court gave such an expansive reading to the 2004 amendment in the public-sector setting.
Another important distinction between the current project and the implementation literature is that the latter is often attentive to intergovernmental relations. In particular, scholars have focused on how state and local actors implement federal policy (e.g., Stoker 1991; Meier and McFarlane 1995). No such concern exists here, because the attempt to amend the federal constitution with a Super-DOMA collapsed in Congress (Pinello 2006, 20, 178-79). As a result, whatever causal theory built into Proposal 2 and its counterparts in other states does not have to address the complexities inherent in federalism.
The third condition necessary for effective implementation is that the execution process should be legally structured to enhance compliance by officials and target groups (Sabatier 1986). The number of veto points involved in program delivery, and the sanctions and incentives available to overcome resistance, are key factors determining how successful implementation will be. Although veto points as such aren’t directly relevant here, given that there isn’t any tangible program to deliver, overcoming potentially widespread resistance to Super-DOMA policy is absolutely crucial to its enforcement. In particular, the dodge of alternative eligibility criteria for employment benefits at the University of Michigan and other public institutions, and comparable defiance of important actors in the private sector like Chrysler, Ford, and General Motors, manifest a significant challenge for compliance with Proposal 2.
These first three stipulations from the implementation literature link to the initial policy statement reflected in the 19 state constitutional amendments. The remaining two conditions relate to subsequent political and social pressures during the implementation process.
The fourth hurdle is that enforcing officials must be committed to policy objectives and also skillful in utilizing available resources for their fulfillment (Lipsky 1971; Lazin 1973). Yet Super-DOMAs do not assign their enforcement to any agent. The “just say no” aspect of the policy presumes that no public official is necessary for consummation.
The final condition for effective implementation requires the on-going support of political sovereigns and interest groups throughout the enforcement process (Ripley and Franklin 1986).
The literature on the implementation and impact of judicial policies is the second body of research informing the analytic framework of the proposed study. Like landmark judicial decisions, state constitutions are sources of law that are not necessarily self-implementing. Accordingly, the analysis in Canon and Johnson (1999) provides a model that is useful here. Their approach suggests two large classes of prospective interpreters and implementors of state constitutional policy, as called to mind by the Michigan case study:
These actors have the authority to provide nuanced meanings to the constitutional language. They flesh out how charter provisions that may be stated in general terms apply to specific factual settings.
State and local executives. Soon after Proposal 2's adoption, Governor Granholm discontinued pursuing domestic-partner provisions in new public-employee contracts. Almost four years before the high-court ruling in National Pride at Work adjudicated the issue, she determined that the words “or similar union for any purpose” of Proposal 2 foreclosed granting employment benefits to the same-sex partners of public employees in Michigan.
Likewise, Attorney General Cox presently faces a related interpretive challenge: Does the Wolverine State’s Super-DOMA also prevent public institutions from providing employment benefits to their employees’ lesbian or gay partners pursuant to the alternative eligibility criteria established at the University of Michigan, Michigan State University, and other state schools? This question is apparently far more difficult than the one addressed by the governor because the attorney general has been deliberating on his issue for many months without resolution. Several Michiganders informed me that Cox (who is a Republican) wants to run for governor and that he is expected to find that the second-generation benefits programs violate Proposal 2.
The roles of the governor and the attorney general as interpreters of the meaning of the state constitutional language are consequential. Jay Kaplan, the ACLU staff attorney in Detroit, said that several other public senior and community colleges in Michigan are considering adopting alternative eligibility criteria as a way to offer health insurance coverage to domestic partners. But he added, “The specter of an AG Opinion Request has slowed down the deliberation process.”
Similarly, mayors and city and county attorneys could interpret the Super-DOMA at the local level.
State and local legislators. A Grand Rapids legislator triggered the attorney general’s investigation into the benefits program at the local state university. Of course, that’s a fairly modest action by a lawmaker, compared with what the legislature itself could do to interpret the state constitution. A bill passed in Lansing that prohibited alternative eligibility criteria, for instance, would be an efficient method to resolve the meaning of Proposal 2 with regard to employment benefits (even though the political constraints against such legislation might be formidable).
State and local judges. The National Pride at Work litigation manifests how authoritatively state courts can interpret constitutional provisions. As discussed in the introductory comments, the current literature documents this aspect of constitutional impact in large measure.
Independent state and local agencies and institutions. Like Governor Granholm, all Michigan public universities interpreted Proposal 2 to invalidate domestic-partner benefit plans existing at the time of its passage. Moreover, the Super-DOMA had a chilling effect on the future extension of such rights. Oakland University, for example, refused to extend the same housing rights to lesbian and gay employees that it offered heterosexuals.
Public school systems are another category of public employers that sometimes provide domestic-partner benefits. Their interpretations of Super-DOMAs would affect a substantial portion of the LGBT population. Likewise, state agencies not in the business of education could also determine the meaning of broad constitutional language as applied in their bailiwick.
Private actors. Proposal 2 speaks in the passive voice (“the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose”), and thus is indeterminate in its application. Although the National Pride at Work ruling touched public employment, there’s nothing in the language of the Super-DOMA itself that limits coverage to the public sector. Thus, businesses could read the constitutional marriage-or-similar-union rule to mean no domestic-partner benefits in the private arena as well.
Yet large employers like Chrysler, Ford, and General Motors have not interpreted Proposal 2 as an impediment to providing generous benefits to their employees’ same-sex partners in Michigan. Indeed, all current or former Big Three workers I interviewed praised the automakers for continuing benefits packages unabated by the Super-DOMA.
“The implementing population usually performs a policing or servicing function in the political system – that is, implementors apply the system’s rules to persons subject to their authority” (Canon and Johnson 1999, 19). This category of actors is fairly clear in the context of implementing judicial policies. A landmark court decision serves as a manifest trigger, so that people like police officers, prosecutors, welfare and social security workers can then apply the new rule in the discharge of their official duties. Thus, if a Super-DOMA is the subject of state litigation as in Michigan, then the Canon and Johnson categories may work well once a court acts.
As mentioned, the National Pride at Work judgment prompted the 2009 decision by Blue Cross/Blue Shield of Michigan to discontinue same-sex partner benefits in public-employee health plans it underwrites. This new restriction is causing havoc in the negotiations at Oakland University for a labor contract there. Even though the faculty union is adamant about continuing health-insurance coverage for lesbian and gay partners, the university’s health plan is not self-funded. Thus, the school cannot circumvent the Blue Cross/Blue Shield policy. What is more, nothing prevents Blue Cross/Blue Shield or other health-care providers from expanding the ambit of the Proposal-2-based prohibition to include all employee health plans in the state.
The Canon and Johnson distinction between interpreters and implementors is not necessarily so clear or mutually exclusive with regard to state constitutional impact in the absence of litigation. Roles may overlap in that circumstance.
In any event, interest groups like Citizens for the Protection of Marriage and the ACLU are important prospective implementors of Super-DOMAs. In addition to commencing litigation to interpret or otherwise enforce constitutional provisions, they can also lobby public officials to abide by the interest group’s belief as to the appropriate action.
Labor unions. Several large public- and private-sector unions have been instrumental in negotiating domestic partner benefits for gay and lesbian employees in Michigan. Even though Oakland University denied housing benefits to the same-sex partners of its employees, the school’s collective bargaining agreement (expiring in 2009) extended health-insurance coverage to them. And the Oakland employees union is demanding that such benefits continue in the next contract. Equally important, the United Auto Workers has insisted that full domestic-partner benefits for same-sex pairs be included in agreements with automobile manufacturers.
A significant private-sector implementation of Proposal 2 was the refusal by the trustees of the family trust fund to extend survivor benefits to the 20-year partner of the lesbian heiress. The financial institution or law firm controlling the trust independently enforced the Super-DOMA, even though no trust beneficiary objected to the partner’s inclusion.
A second significant stream of research in the judicial-impact literature is best known through Rosenberg (2008). Of special interest here is that the only significant change that his second edition makes to the original The Hollow Hope of 1991 is a 90-page addition on same-sex marriage. The theme of Rosenberg’s new material is that state-supreme-court decisions in Hawaii, Vermont, and Massachusetts recognizing relationship rights for gay and lesbian couples based on state constitutions triggered a massive political backlash that resulted in passage of the federal DOMA and state Mini- and Super-DOMAs. The study proposed here tests in part the degree to which Rosenberg’s dire judgment on the effects of Super-DOMAs is empirically well founded.
The last literature informing this proposal emphasizes the importance of public opinion in determining state constitutional policy implementation and impact (Reed 2001, 92-124). In theory, those states that are less tolerant of same-sex relationships ought to enforce Super-DOMAs more vigorously than states with comparatively greater tolerance for the rights of gay and lesbian couples. Of course, the percentage of voters endorsing a state constitutional amendment is the best contemporary measure of public opinion on the issue in the state. The difference in size of the majorities approving Super-DOMAs will give a comparative estimate of that opinion. In 2004, for instance, nine states added such provisions to their charters, and the winning majorities varied from a low of 59 percent (in Michigan) to a high of 78 percent (in Louisiana). Yet as discussed in the Michigan case study, public opinion about same-sex relationships has been volatile over the last decade. As a result, polling data should be as contemporary as possible to the Super-DOMA enforcement action under examination.
The Proposed Research
There is no way to document grass-roots effects without direct observation on the ground. Thus, I propose to conduct in-depth interviews in the six most populous states among the other 18 Super-DOMA jurisdictions: Florida, Georgia, Ohio, Texas, Virginia, and Wisconsin. A total of seven cases will permit meaningful comparative study across states, because the Wolverine State findings may be idiosyncratic.
For example, the 2008 Michigan Supreme Court decision remains the only authoritative court-of-last-resort Super-DOMA interpretation in the United States. [The Ohio Supreme Court determined that the language of the Ohio Constitution (which is similar to that in Virginia) does not invalidate domestic violence statutes when applied to unmarried opposite-sex couples. State v. Carswell (2007). However, the Carswell ruling does not address how the Buckeye State Super-DOMA impacts same-sex pairs there.] The singularity of the Michigan high-court action is especially interesting in light of the opportunity for litigation in 18 other jurisdictions. No doubt reaching a court of last resort is a costly and time-consuming process, but there aren’t even any consequential Super-DOMA interpretations from intermediate appellate courts in the other 18 states.
This paucity of judicial action is noteworthy since, among the ten most populous states in the country, five (Florida, Georgia, Michigan, Ohio, and Texas) are included among the 19 Super-DOMA jurisdictions. One plausible explanation is that public interest law groups like Lambda Legal Defense and Education Fund and the National Center for Lesbian Rights have chosen not to initiate challenges to the state constitutional provisions. In truth, Jay Kaplan, the ACLU staff attorney in Detroit, lamented to me that national LGBT interest groups looked on Super-DOMA states as “lost causes.” Hence, the strategic allotment of scarce litigation resources may explain the uniqueness of the National Pride at Work ruling.
Nonetheless, other parties (e.g., attorneys general like Mike Cox) may have important stakes in prospective Super-DOMA litigation, and legal organizations like Lambda Legal don’t monopolize the field of skilled lawyers who might serve as counsel for private claimants. The recent partnership of David Boies and Theodore B. Olson attacking California’s Proposition 8 in federal court is a striking example of how LGBT interest groups can be powerless to control litigation on behalf of the gay community (McKinley 2009). Indeed, the Hawaii case of the early 1990s that catapulted same-sex marriage onto the national political agenda was instituted by a local “rogue” non-gay attorney (Pinello 2006, 25-27).
Accordingly, interest-group strategy is not a sufficient reason to account for the paucity of Super-DOMA litigation in the 19 states. Other factors have to be in play. Thus, a further goal of a national study is to investigate why other states have not had important rulings like National Pride at Work.
Furthermore, the absence of court action elsewhere provides an invaluable opportunity to investigate extrajudicial state constitutional implementation. Even with an authoritative court-of-last-resort interpretation in the Wolverine State, implementation of Proposal 2 appears piecemeal there. What occurs when no appellate judges adjudicate the meanings of Super-DOMAs in places like Georgia and Ohio? Have their constitutional provisions been implemented at all or not? And what does such finding say about the presumptively premier enforcement role for courts that is so prominent in the literature?
To track the implementation and impact of Super-DOMAs in Florida, Georgia, Ohio, Texas, Virginia, and Wisconsin, I will speak with these people there: (1) personnel managers at major public and private employers; (2) other state and local experts knowledgeable about labor relations; (3) the interest-group and/or legislative sponsors of the constitutional amendments; (4) officials with state and local lesbian, gay, bisexual, and transgendered interest groups; (5) same-sex couples in the states who have married in other jurisdictions or who otherwise wish to marry; and (6) demographers familiar with state and local population patterns.
I intend to make a total of nine ten-day trips, two to each of the three most populous states (Florida, Ohio, and Texas), and one to each of the remaining three, as follows: in Florida, Fort Lauderdale/Miami and St. Petersburg/Tampa; in Ohio, Cleveland and Columbus; in Texas, Dallas/Fort Worth and Houston; in Georgia, Atlanta; in Virginia, Norfolk/Virginia Beach; and in Wisconsin, Milwaukee. During the ten days of each of the nine trips, I hope to conduct between 25 and 30 interviews, which should last about 60 minutes each on average.
The bulk of the interviews will be with same-sex couples, since recognizing and documenting the grass-roots effects of Super-DOMAs in the LGBT community are fundamental to the project. Yet sampling such pairs is a challenging task because the gay and lesbian population is, in a sense, invisible. “Whether a researcher meets someone face to face, makes phone contact, or gives out anonymous confidential questionnaires, that researcher remains at the mercy of the participant to self-identify as lesbian or gay” (Riggle and Tadlock 1999, 6).
Nonetheless, I developed a satisfactory process for identifying same-sex couples for the Michigan case study that can be used in the proposed research for the other six states. The Gayellow Pages (gayellowpages.com) is a directory of American organizations, businesses, and other resources for the LGBT community. Begun in 1973 and published continuously ever since, the Gayellow Pages is as comprehensive a reference as one can find for LGBT contact information in the United States. Accordingly, I sent an introductory e-mail message to every source listed with an e-mail address in southeastern Michigan in the Gayellow Pages. In addition, I mailed hardcopy letters to those sources with only U.S. Postal Service addresses. This technique proved sufficient, because I completed 28 interviews in southeastern Michigan during my ten-day trip in January 2009. Also, as I discovered conducting 85 interviews in five states for my last book (Pinello 2006), word-of-mouth introductions will supplement the search for interview subjects once on location.
Moreover, as an openly gay researcher with prior scholarship explaining how American courts treat gay litigants (Pinello 2003) and chronicling the social movement for inclusion of same-sex couples within the institution of civil marriage in the United States (2006), I have unique entry into the LGBT community. And such an established identity can be absolutely crucial to gain the confidence of an interview population that is located within a legal and social environment that is potentially hostile to it. As an extreme example of this circumstance, I was able to interview a lesbian couple in Michigan who had been the victims of an arson attack on their home at night. They and their two-year-old son escaped the flames through a bedroom window. The assault was prompted by publicity generated from their being plaintiffs in a lawsuit for domestic-partner benefits at work. The family was willing to meet with me only because of my reputation as a gay scholar. Indeed, they were so cautious about further incident that I had to park a mile away from their house and then have them pick me up in their own car to go the remaining distance.
To measure the implementation and impact of Super-DOMAs, I plan to test in the proposed research the following hypotheses developed from the preceding commentary:
Indicators of Super-DOMA Implementation and Impact
Together, eight grass-roots indices of comprehensive enforcement quantify how effectively the constitutional provisions are implemented:
H1. Domestic-partner benefits for the same-sex partners of employees are discontinued or otherwise prohibited at public institutions. Such benefits may include health insurance, housing rights, tuition waivers, etc.
H2. Domestic-partner benefits for the same-sex partners of employees are discontinued or otherwise prohibited by private employers.
H3. Second-parent adoptions of minor children are denied to the same-sex partners of the biological or adoptive parents of such children.
H4. Proceedings for the custody and visitation of minor children are denied to the same-sex partners of the biological or adoptive parents of such children.
H5. Primary and secondary schools refuse to recognize as parents the same-sex partners of the biological or adoptive parents of students.
H6. Intestate inheritance of property by the same-sex partners of property owners is denied.
H7. Hospital visitation is denied to the same-sex partners of patients.
H8. Medical-care decisions (other than by legally executed health-care proxies or living wills) are denied to the same-sex partners of patients.
Agents of Super-DOMA Implementation
Sundry actors may facilitate the achievement of the implementation measures described in Hypotheses 1-8:
H9. State and local executives act to enforce state constitutional Super-DOMAs.
H10. State and local legislatures act to enforce state constitutional Super-DOMAs.
H11. State and local courts act to enforce state constitutional Super-DOMAs.
H12. Independent state and local agencies act to enforce state constitutional Super-DOMAs.
H13. Interest groups act to enforce state constitutional Super-DOMAs.
H14. Other private-sector players act to enforce state constitutional Super-DOMAs.
Conditions for Super-DOMA Implementation
Assorted conditions may influence the agents in Hypotheses 9-14 to achieve the implementation described in Hypotheses 1-8. For instance, the social science literature indicates that, with regard to social policies involving LGBT Americans, public officials affiliated with the Democratic Party are substantially more likely to support the rights of those minorities, while Republicans are substantially more likely to be antagonist to them (Rimmerman, Wald, and Wilcox 2000; Pinello 2003, 114-15, 151-52; Rayside 2008, 32-33). Thus:
H15: State and local officials affiliated with the Republican Party are substantially more inclined to implement Super-DOMAs than officials affiliated with the Democratic Party.
The Michigan case study reveals that prospective implementors’ resistance to enforcement can be crucially important. The dodge of alternative eligibility criteria developed by several state universities to avoid the discontinuance of domestic-partner benefits to employees’ lesbian and gay partners effectively neutralized the impact of Proposal 2 in places like Ann Arbor and East Lansing. Hence:
H16. States and communities that are ideologically conservative are substantially more likely to implement Super-DOMAs, while states and communities that are liberal are substantially more likely to resist Super-DOMA enforcement. Community ideology may be measured using empirical techniques developed by Erikson and Wright (1980, 2000) or Poole and Rosenthal (2007).
Public opinion could be an important mediator. “One aspect of constitutional meaning lies in the extent to which enforcement or implementation reflects and articulates the public’s attitudes and beliefs. The public dimension cannot be ignored if one is to fully encompass the range of constitutional meanings that enforcement actions present” (Reed 2001, 57):
H17. Public opinion that is less supportive of the issues addressed in Hypotheses 1-8 results in more substantial enforcement of state constitutional Super-DOMAs, while public opinion that is more supportive of those issues results in less enforcement.
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