The Perils of Marriage as Transcendent Ontology: National Pride at Work v. Governor of Michigan

William B. Turner, University of Wisconsin, Madison

Abstract

National Pride at Work v. Governor of Michigan provides a unique opportunity to watch as courts struggle to define “marriage.” This is not a suit seeking recognition of same-sex marriages. It presents the question of whether an amendment to the Michigan state constitution prohibiting recognition of same-sex marriages or any “union” that is “similar” to marriage also prohibits public employers in the state from conferring benefits on the same-sex partners of their employees. The trial and appeals courts came to exactly opposite conclusions, and their respective positions nicely demarcate the options in what promises to be an ongoing debate in the many states that now have statutes or constitutional amendments prohibiting recognition of same-sex marriages. This article demonstrates how the trial court adhered strictly to the amendment itself and state statutes, while the appeals court covertly imported an ontological definition of “marriage” that relies more on the judges’ personal philosophies than on the relevant law.