In it for the Money: Equal Marriage

Editor’s Note: David Erik Nelson’s short story “The New Guys Always Work Overtime” won the 2013 Asimov’s Readers’ Award for Short Fiction. You can buy it or download a free copy: [here]

Back in March, for just shy of 24 hours, Michigan was willing to license, solemnize, and recognize the marriage of any two people without getting all particular about their genitals. [1] The three-judge appellate panel is still out on whether the question of a happily-ever-after for non-bigots and wedding-lovers here in Michigan. But that was still a pretty wonderful day.

David Erik Nelson

In one sense that day resulted from a specific victory in court: A courageous couple embarked on a legal battle in order to protect their adopted children in the case that either parent dies, lawyers argued the case, and based on the merit of those oral arguments and the testimony of experts a federal judge issued a very strongly-worded decision.

By itself, all of that was a wonderful example of our legal system basically working as we’d hope.

But here’s the thing:  If that was all that had been done – just plaintiffs and lawyers and experts and a level-headed judge – no one could have gotten married on Saturday, March 22, 2014. No offices would have been open, no staff would have been on hand, and the appropriate forms would not have existed.

So today I want to sing the praises of the quiet heroism of county clerks – who are, for the vast bulk of law-abiding citizens, the daily executors of the Law, which is to say our Will as a People. This column is meant to record in something approaching a permanent way their mettle in helping to bend the Arc of the Moral Universe towards Justice.

Background: Marriage Equality in Michigan

In October of 2013, when the DeBoer/Rowse v. Snyder case was filed, there was an expectation that federal judge Bernard Friedman would make a decision on the merits of the case based on the pleadings, without a full trial. This is called a “summary judgement.” Both the plaintiffs [DeBoer/Rowse] and the defendants [Governor Snyder and Attorney General Bill Schuette in their capacities as executors of the state's laws] had requested Friedman make such a judgement.

But he refused to do so because the “rational basis” of the state’s justification of the Michigan Marriage Amendment (which amended our state constitution to stipulate that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union”) is itself questionable. His denial of the request for summary judgement is worth a quick read.

My favorite sentence from the denial has to be this one, taken from Lawrence v. Texas (2003): “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause.” Friedman’s stated goal in forcing the case to trial was to permit (or, if you prefer, oblige) both parties to offer the most rigorous presentation of their case. However, several lawyers have independently told me that they believe Friedman forced the case to trial specifically to expose the state’s “pathetic” (their word) defense of MMA to the most intense possible scrutiny – and for that scrutiny to become a matter of public record, adding to the swiftly growing body of work dismantling common claims used to defend discriminatory marriage laws.

So, long story short: DeBoer and Rowse got their day in court and prevailed: Friedman deemed the MMA unconstitutional. Because same-sex marriage is such a hot-button, the expectation was that Friedman would place a stay on his decision – essentially hitting the pause button on canceling the MMA. He did not.

In retrospect, Friedman’s decision not to issue a stay makes a lot of sense, based on his deeply rational scrutiny of the matters of law surrounding the case itself. Generally a stay is issued for one of two reasons: Either because immediate execution of the judge’s findings would cause “irreparable harm,” or because the party requesting the stay seems likely to prevail on appeal based on the merits of the case presented. Friedman’s ruling makes it pretty clear that: (1) no one demonstrated that similarly gendered people saying “I do” has ever harmed anyone, irreparably or otherwise; and (2) the case the state presented had very little merit.

On the merit of the state’s case, I like Friedman’s characterization of one of the state’s four “expert” witnesses as “entirely unbelievable and not worthy of serious consideration.” About the four taken together, Friedman wrote that they “clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.”

But what really counts is that Friedman immediately voided our constitutional prohibition on same-sex marriage – at the end-of-business on a Friday. The state simply had no time to get someone down to the U.S. 6th Circuit Court of Appeals in Cincinnati – the next court up the ladder toward the SCotUS – to request a stay.

And Saturdays are great days for weddings.

Going to the Chapel

What does it take to get married in the state of Michigan? Well, you basically need four things:

1. A pair of opposingly-gendered, currently unmarried adult humans
2. A correct and complete Marriage License Application form
3. $20
4. Three days

In the last several years, Item (1) has been the sticking point here. Back in 2004 a group of well-funded national bigots convinced a minority of Michigan voters to approve the Michigan Marriage Amendment (aka, the “MMA”). This nuked an existing separate-and-not-really-equal-but-better-than-nothing arrangement we had here in Michigan, whereby gender-opposed folks could get “married” – and accrue all the liabilities and benefits associated with that legal status. Meanwhile gender-similar folks could join in a “civil union” – and accrue some, but not all, of the liabilities and benefits associated with the “married” status.

One might characterize the MMA as unequally targeting a minority group and unconstitutionally stripping them of rights and responsibilities, in much the same way one might characterize grass as green and the sky as blue.  That is, the characterization would arise from immediately evident facts easily observed by reasonable minds – which is to say the great mass of the people. Michigan lawyers in the audience will see what I did there, clever, clever boy that I am – the rest of y’all might wanna Google “Justice Cooley” and “reasonable minds.”

So, assuming that you, Dear Reader, are not a bigot, then you are likely wondering what needs to happen to fix this fundamental injustice written into our state constitution? The voiding of MMA by either judicial, legislative, or voter action is obviously the start – but it’s only the start, because if something is legal, but functionally impossible, then we haven’t really restored justice; we’d be patting ourselves on the back for being so progressive without making any actual progress.

In order to move forward here in a meaningful way, we have do more than turn the Wheels of Justice. We need to turn the Wheels of Bureaucracy.

We have a tendency to lambast bureaucrats as, at best, ineffectual pencil-pushers with an unspellable title, and at worst pitiful and infuriating tin-pot dictators of tiny demonic fiefdoms, but they really are neither of these things, which is why I want to draw attention to them here and now.

They aren’t gremlins, or unglorified data-entrists; they are our legal conscience.

What it Takes to Get Married

Except for some common edge cases, here’s the basic process: A pair of otherwise unmarried adult humans with mismatched genitals show up at their county clerk’s office with proper ID. They fill out a single-page marriage license application and pay a $20 fee (unless neither are county residents, at which time the fee is $30). They wait for three days. (State law actually stipulates “A marriage license shall not be delivered within a period of 3 days including the date of application.”) After the three days have expired, the happy couple just need to get the license solemnized (i.e., have a judge or mayor or rabbi or whatever mumble some words and sign off on the deal). Boom! Married!

But let’s say you don’t want to wait three days. Maybe you have a plane to catch, or maybe you and your life partner need to rush things a little in order to dash through the brief gap in a stupid, hateful, and fundamentally unjust law. Don’t worry! The law allows for counties to issue licenses immediately, forgoing the waiting period, provided “the person applying for the license … pay a fee.”

When Larry Kestenbaum took office in 2004, that fee was $5. As it turns out, that was a terrible price point.

Brief Economic Tangent

People mostly don’t care about the three day wait; a marriage license is valid for 33 days after issuance, and applying for a marriage license is one of those things that everyone involved in your wedding is going to hound you about. It’s in the game plan, and thus “rush service” is just not a service many folks need under normal operating conditions. When accelerated processing is not an option, they don’t even notice. But once they hear that they can have their marriage license immediately for just $5, plenty of folks will say “Well, why not?” and drop the fiver.

In other words, at that price it’s an impulse purchase, just like the candy bars at the grocery store checkout. What human needs a 250-Calorie sugar boost in order to make it from the register to their car carrying bags upon bags of food? Perhaps some small subset of poorly-managed diabetics, but that hardly justifies the display, and that isn’t the reason it’s there: When we can immediately gratify some need cheaply, it takes an act of will not to do so.

So, the low price of expedited marriage licenses was actually incentivizing the purchase of something these folks didn’t really need, and wouldn’t have missed had it been unavailable.

The thing is, preparing marriage licenses is not the same as leaving a box of Snickers on the counter. Prepping a marriage licenses is time consuming and legally fraught; screw-ups can only be corrected by court order. So marriage license applications are only handled by workers specially deputized to do so, which will tend to be your more experienced (i.e., most efficient) staff. While a more skilled worker is monopolized rushing a marriage license for folks who are in no hurry, the line is backing up with other folks in need of quick fixes (e.g., picking up notarized birth certificates, completing DBA renewals, being told they are at the wrong counter and need to go to the second floor of a different building, etc.)

When Washtenaw County Clerk Larry Kestenbaum took office in 2004, it was immediately obvious to him that it costs more than $5 to rush a marriage license, so he bumped the fee up to $50, with the dual purpose of: (1) ensuring that the fee covered the added workload; and (2) disincentivizing rush orders. And it worked great – under normal operating conditions.

But there are times when the county clerk might reasonably expect (or even encourage) a surge in expedited marriage licenses – like, let’s say there’s a comet headed straight for earth. Or maybe we’re blessed with a very brief suspension of our fundamentally bigoted constitutional ban on certain subsets of minority marriages. In such emergency scenarios the county clerk isn’t necessarily eager to soak the desperate for $50 a pop. Or, at least, our county clerk, Larry Kestenbaum, is not eager to soak the desperate for $50 a pop, because our county clerk is a mensch.

So back in 2013 our county clerk made arrangements to be able to call “fee holidays” in situations where reasonable minds might need a rushed Marriage License at no fault of their own – for example, on occasions when the county offices will be closed for four days, or during a very temporary ellipses in our relentless legalistic bludgeoning of people based on a few stray clauses in an ancient religious text that we otherwise almost completely ignore.

During a fee holiday the $50 rush fee drops to one cent. (The Chronicle report on the Washtenaw County board of commissioners meeting of Feb. 19, 2014 details the discussion and approval of the fee holiday.)

There’s No Box on the Form

So the judge has (temporarily) fixed the problem of the “mismatched genitals mandate”, and the clerks have fixed the “time and money” problems. One catch remains: Check out Michigan’s standard-issue marriage license application.

You’ll note that this form cannot be correctly completed by a couple that isn’t male-female. Heck, owing to its sort of narrow expectations about who does what with his surname upon marriage, I actually know several heterosexual couples who couldn’t technically complete this form completely and accurately.

Anyway, the problems posed by a form that demands one male and one female applicant (no more, no less) were not lost on the county clerks. So last year a group of clerks, led by Kestenbaum, contacted the State Registrar for Michigan’s Division for Vital Records and Health Statistics, Glenn Copeland. They asked Copeland to consider issuing a new gender-neutral marriage license application and marriage license forms. These were designed by a committee of county clerks, and ultimately were distributed by the state – which then abruptly whipsawed, claiming that the gender-neutral forms they’d issued had not been approved and thus couldn’t be used.

Interestingly, Michigan law doesn’t stipulate that the state has to approve these forms in any manner, just that they have to issue them. The statutory mandate is that “blank forms for a marriage license and certificate shall be prepared and furnished by the state registrar appointed by the director of the department of community health to each county clerk of this state in the quantity needed.”

If this seems like a minor point, bear in mind that some county clerks were arguing that same-sex marriages couldn’t be performed if the form didn’t provide for it – which is sort of bass-ackward, because the county clerk’s sworn duty is to facilitate the execution of the law. And for those hours between Friedman’s decision and the District Court of Appeals’ subsequent stay of that decision, the law was that any two Michganders who were of age and not already married could contract marriage.

“[The Law] didn’t require that the state be officially backing the form at the time we are using the form,” Kestenbaum said. “This is a question of 14th amendment equal protection under the law; I don’t think the form should stand up as a barrier.” Not surprisingly, Kestenbaum made a point to redistribute the state-issued gender-neutral marriage application forms far and wide.

Please note well: Assuring that all citizens were equally protected under the law, in the most functional day-to-day sense, fell not to legislators or judges, but to standard-issue pencil pushers in a small offices you never even think about.

March 22, 2014: Washtenaw, Ingham, Oakland

All of the pieces were in place on Saturday, March 22, 2014: The MMA was not in effect and the forms were fixed; forward-looking county clerks had even gone so far as to make sure their fee structure was prepared to fairly accommodate extraordinary circumstances.

But of Michigan’s 83 county clerks, only four made arrangements to provide services on Saturday, March 22. These were: Larry Kestenbaum in Washtenaw County (home to Ann Arbor, the University of Michigan, me, and probably everyone reading this), Barbara Byrum in Ingham County (which includes Lansing and Michigan State University), Lisa Brown in Oakland County (immediately adjacent to Detroit and among the ten highest-income counties in the U.S., and second most-populous county in the state, with about 13% of the state’s population), and Nancy Waters in Muskegon County (a small, rural county in West Michigan).

All told these four clerks and their staffs issued 329 marriage licenses on March 22. Washtenaw County alone – which was only able to stay open for a half-day, from 9 a.m. to 1 p.m., but was well staffed with deputized workers and a bevy of holyfolks ready to solemnize – processed 74 expedited marriage licenses that day. By comparison, Kestenbaum noted in an email that the Washtenaw County Clerk’s office has “averaged around seven [non-rush marriage licenses] per business day for the last several years.” Based on population size you’d expect the entire state to issue about 200 licenses on your average business day.

That highly productive Saturday was well covered by the media in Washtenaw, Ingham, and Oakland Counties; these are easy places for them big city papers to reach and pigeonhole. These are large (and largely supportive), diverse communities with large, well-staffed county offices.

Muskegon County is a little different, but instructive.

March 22, 2014: Muskegon

Muskegon County did not open their offices on Saturday, March 22. Nancy Waters, their county clerk, was much less confident of her community’s support than the other clerks, and so she made separate arrangements to hold what amounted to “office hours” in a nearby Unitarian church. There she was joined by the church’s pastor, Rev. Bill Freeman, and a deputized volunteer legal secretary. She informed the chair of the county board and the county administrator of her plans on Friday, but in the interest of avoiding conflict did not plan to do anything in any county building, use any paid county employees, or rely on any public resources.

Working from 9 a.m. until 3:50 p.m. – when the federal appellate court in Cincinnati issued its stay, thus reinstating the discriminatory MMA – Waters, Freeman, and their unnamed volunteer issued and solemnized 48 marriage licenses. That’s just shy of 15% of the total number of marriage licenses issued that day statewide.

They worked, without breaks, without lunch. When they ran out of HIV brochures – which county clerks are required by law to give to couples seeking a marriage license – Waters announced that she’d have to stop because they could not legally process the paperwork unless they could truthfully attest to the pamphlet having been issued. Upon hearing this, and of their own volition, freshly-wed couples took it upon themselves to collect and redistribute these pamphlets, so that there would be an ample supply. After all, the law says that couples need to receive this pamphlet in order to be issued a license; no one says a married couple has to keep it. I have no idea where my and my wife’s HIV pamphlets are. For that matter, I am a touch foggy as to where our marriage license is.

Operating from  9 a.m. to 3:50 p.m. also meant that Waters was face-to-face with a line of eager fiancees when she was told by the Detroit Free Press that a stay had been issued and she had to stop issuing licenses and marrying couples.

“There were people crying, there were people in line. One person – not in line, one of the family members – came up to me and said ‘Well, couldn’t you go on and issue these last few? Who would know?’ And I pointed to me, to my heart, and said ‘I would know.’ And I want to be able to say ‘I have followed the law all the way through this process.’”

Earlier in our conversation Waters had explained:

When this is over, and people hear the whole story, they’ll see that this was a real commitment on my part for following the law, and I would remind so many people who called me [before hand] and were opposed to it, and didn’t want me to do this, that up until 1967 interracial marriages were not legal [in much of the United States], and clerks were not allowed to issue marriage licenses if a black and a white came in to get a marriage license… There’s been a little backlash [to Muskegon County's March 22 "office hours"], but there’s been a lot of favorable support from people that I didn’t know, from people that have sent me little personal notes saying, ‘Even though I’m heterosexual, I want to commend you, I’m so proud of you, I salute you.’ And, you know, the few that were not in support or favorable were so minor that I don’t even think about it.

Bending the Arc

I love and admire the Rev. Dr. MLK, Jr., but I’ve taken him to task for favoring this passive, objectless grammatical construction when he said:

The Arc of the Moral Universe is long but it bends toward Justice.

That’s not just a grammatical peeve. In this case my gripe is rhetorical, because as King lays it out, the implication is that, given time, History will end up in a place of Justice and equality all on its own. Ice will melt. Fog will lift. And the Arc will bend toward Justice.

I do not believe this to be true.

The Arc of History is not going to bend toward Justice all on its own.  It will bend toward Justice if, and only if, we get up every morning and put a little effort into bending that bastard. Not a ton, just a little.

Larry Kestenbaum, Nancy Waters, Barb Byrum, Lisa Brown – they got up early on a Saturday morning, enlisted the help of friends and colleagues, put their hands to the Arc and pulled that dogleg straight. I want this column to be a lasting testament to their mettle.

Why did Nancy Waters go it alone and work her ass off to marry as many couples as possible on March 22? She was quite explicit when we spoke: “It was an opportunity for me, as a county clerk, to follow my oath of office, which said ‘Follow the law.’” But following the law wasn’t super popular where she serves, which is why she went forward independently, relying on no public resources.

But what gave her the courage to move forward?

“I certainly looked to Larry Kestenbaum. I have looked to him from the day that I became a county clerk in 2008, when I was elected. … Larry Kestenbaum had everything in order; that’s why I do look to him … and was so pleased for his very, very, very strong leadership in this significant process.”

Waters was of the opinion that the Oakland and Ingham county clerks had also looked to Kestenbaum for guidance. It was a contagion of courage, spreading like whooping cough in a California hippie school.

But where did Kestenbaum get this overabundance of courage? He got it from the Washtenaw County board of commissioners, who had pledged their support. And they pledged their support, because they knew we had their backs.

Is the virtuous feedback-loop clear?

Bending the Arc need not be a grand effort, like rustling up ministers and churches and volunteers to help process minority marriage applications. Nancy laid hold of the Arc because she knew Larry was doing so, and Larry did so because he’d done the ground work, and because he lives in a region of the state full of us, and knew that we wanted someone to straighten out the offensive jag that a minority of our fellow voters crammed into the Law in 2004.

And Larry knew we wanted this not just because we’d voiced support in obvious ways – with emails and notes and votes – but because this is a part of Michigan where, if our kid calls a teammate a “fag” for dropping the ball, we yell at our damn kid and give him “consequences.” We’d no sooner sit idly while a co-worker called a lame reality show “gay” then let a man beat a child in the street.

There is shit we just don’t tolerate, and discrimination against homosexuals has joined that shit list.

And our queer notions are spreading. Every time we put our hands to the Arc, a few more folks join us – because of herd mentality, because of peer pressure. Bending the Arc in these little daily ways is the joyous inverse of a lynch mob.

Midway through our conversation, Kestenbaum told me this:

One thing that I hadn’t really thought about was that these specific scenes – something happens, same-sex marriage becomes legal, and couples show up, and you have this wonderful happy time, and the examples of many of these people, who’ve been together for years or decades and have children – those scenes have helped drive support for same-sex marriage. I think that’s absolutely the case. …There’s that famous line about ‘the Supreme Court reads the election returns‘ – I think that public opinion is moving quickly on this, and the Supreme Court does not want to be left on the wrong side of it. So I’m still pretty optimistic [about how the U.S. 6th Circuit Court of Appeals and Supreme Court will ultimately adjudicate this issue.]“

And I’m optimistic about the rest of us, because it’s true: None of us want to be left on the wrong side, and our powerful need to be in the right will drive us to be sure that no one is left out in the cold.

Notes

[1] I know it’s going to begin to seem like I’m being snarky with all this talk about genitals in reference to the Michigan Marriage Amendment – which dictates “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union.” But in all honesty, once you start to actually think about the ramifications of those words, it’s really hard to determine what the MMA wants from marriage license applicants. The law doesn’t define what “man” and “woman” mean in Michigan, so we’re left with the “reasonable person” standard, at which time we’d assume that if someone shows up expressing a given gender and with a birth certificate and driver’s license indicating they have that gender, then that’s the case. But check out footnote 9 here, where the Michigan Court of Appeals finds that “Under the most obvious and commonly understood meaning of the words ‘man’ and ‘woman,’ a postoperative male-to-female transsexual is not a ‘woman.’” The note goes on to explain that’s because the surgery has not changed the fact that the individual has an X and Y chromosome, not two X chromosomes, because, in day-to-day life, the first thing any of us checks when deciding which pronoun to use is whether or not someone has a Y chromosome in the mix.

Snark aside, this finding strikes me – a reasonable person – as a pretty wacky interpretation of what a “reasonable person” would infer when introduced to a human with a female name, female demeanor, female genitals, and “FEMALE” printed on her birth certificate and driver’s license (Michigan law allows these records to be revised and sealed by folks who’ve undergone sexual reassignment surgery). Call me crazy, but I would be satisfied that such an individual was “female” and just get on with my life. In fact, judging by what I hear from folks married in Michigan more recently than I, if the state does anything to actually enforce the MMA, it goes no further than checking the sex listed on the applicants’ drivers’ licenses and birth certificates: There is no mandatory genital check or genetic testing, no mandate for a doctor’s affidavit. In other words, the state appears to be perfectly content to issue licenses that it knows to be “unconstitutional” under current Michigan law and its own inane common-law findings – which is hardly the sort of thing we’d expect “reasonable people” to do. [All credit and much love to Anne Marie Miller for digging up the legal reference for me.]

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