Government employers in Michigan cannot offer health insurance to same-sex domestic partners, the Michigan Supreme Court ruled 5-2 on May 7, 2008 in National Pride at Work v. Governor of Michigan (opinion here). Interpreting a state constitutional amendment that was designed to keep same-sex couples from legally marrying, the state supreme court disregarded all the evidence that the voters only intended to affect the state’s marriage law and not domestic partnerships, and put its blessing on the Michigan Christian Citizens Alliance’s bait-and-switch tactics.
The so-called “marriage amendment” to Michigan’s constitution, crafted by the MCCA and its Citizens for the Protection of Marriage committee, was adopted by ballot initiative in 2004. It provides: “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.” (Curiously, the pre-comma portion of this amendment did not actually appear on the ballot.) This language made Michigan’s marriage limitation amendment significantly broader than many other states’.
Just how much broader was the question in National Pride at Work, and the Michigan Supreme Court majority basically answered, “very.” Justice Markman’s opinion did not focus on the operative consequences of the “domestic partnerships” at issue, which fell dramatically short of those of marriage, which could have allowed the court to read the amendment as the dissent did, as simply precluding government from creating or accepting another state’s marriages between same-sex couples or comparable statuses like civil unions. Instead, the majority focused on the eligibility criteria for the lone benefit at issue (health insurance). Giving health coverage to a domestic partner “recognized” a domestic partnership for some purpose, and so would be unconstitutional if the domestic partnership were a union “similar” to marriage. “Because marriages and domestic partnerships are the only relationships in Michigan defined in termsof both gender and lack of a close blood connection, and, thus, have these core ‘qualities in common,’” the majority reasoned, “the domestic partnerships are unions similar to marriage.”
The interpretation adopted in the opinion of the court is far from preposterous. But in their rush to exemplify judicial restraint, the majority justices found clarity where the dissent saw ambiguity, and took that as their license to ignore considerations of justice as well as the likely intent of the Michigan electorate. Justice Kelly’s dissent recounted the significant evidence that a sizeable majority of the voters of Michigan wished only to keep their state constitution from becoming a tool to open civil marriage to same-sex couples, and in fact favored the extension of health benefits for the same-sex partners of government employees. And the amendment’s sponsor, the MCCA, repeatedly and publicly insisted that the measure wasn’t about benefits, just about the definition of marriage. (The majority questioned why the measure’s proponents’ views should get more weight than the opponents view, which suggested it would have more far-reaching consequences. But that’s how the U.S. Supreme Court has approached the U.S. Constitution, giving more weight to the Federalist Papers than to the Anti-Federalist.) Yet because the language of the measure the voters approved arguably could be read more broadly, forbidding the government to extend any marital benefit to a committed same-sex relationship as such, the majority deemed the “extrinsic” evidence of voter intent to be irrelevant. Caveat voter. (Troublingly, the Michigan “marriage amendment” is not expressly phrased as a restriction on government, instead providing that nothing but one man-one woman marriage “shall be ... recognized.” It is almost unthinkable that the court would hold this to forbid private companies from extending domestic partners benefits, but that reading might appear as “unambiguous” to the majority as its other conclusions seemed to them in National Pride at Work.)
What now? Perhaps governmental institutions such as the city of Kalamazoo, the University of Michigan, and Michigan State University, just to name a few, might redefine the eligibility for health benefits for domestic partners. Perhaps they could remove the limitation to same-sex couples, so that a man and an unrelated woman who chose not to marry could get domestic partner health benefits; alternatively, these institutions might continue to limit eligibility to same-sex couples but remove the restriction against certain close relatives forming domestic partnerships, so that two sisters could get DPP health benefits; or maybe they could remove both, so that a brother and sister could be domestic partners, for example. Either or both of these moves would eliminate at least one of the two features–sex limitations, and the exclusion of close relatives–which together made (same-sex) domestic partnerships “similar” to (different-sex) marriages in the majority’s eyes.
Whether that would be enough to make the “recognized” relationships sufficiently unlike marriage to make health benefits permissible is an open question, though. Footnote 14 of the majority opinion listed numerous other respects in which the majority justices regarded marriages and domestic partnership as similar relationships. The majority called attention to the binary nature of the relationship, undertaking obligations of mutual support, the necessity for a contract or agreement for the relationship to exist, minimum age requirements, indefinite durations of the relationship (until “one of the parties takes affirmative action to terminate the relationship”), and for some of the policies the requirement that the domestic partners share a common residence. (The majority’s argument on the last point invoked the possibly oxymoronic notion that common residence “typically defin[es]” the marriage relationship.)
In light of that litany, it could be that the majority would not find providing any benefit to a domestic partner or partnership consistent with the state’s “marriage amendment” unless the eligibility criteria were so loose that they did not connote a relationship at all in any meaningful sense of the word. A policy that allowed an employee to designate any one person whatsoever of her or his choice to be eligible for health insurance coverage might pass muster with the majority precisely because it would not look like it is extending any official respect to the relationship of a committed same-sex couple. If that were to prove right, then the Michigan Supreme Court would have essentially turned a state constitutional amendment “To secure and preserve the benefits of marriage” into a general-purpose repudiation of the dignity of same-sex couples and relationships.
By denying the ability for government to provide any benefit to same-sex domestic partners that is offered to married couples, unless they can get the state constitution re-amended, that also might make Michigan’s “marriage amendment” more vulnerable to constitutional challenge. By increasing the broad sweep of the measure, it would more closely resemble the anti-lesbigay Amendment 2 to Colorado’s constitution, which the U.S. Supreme Court held violated the Equal Protection Clause in Romer v. Evans in 1996. Of course, the composition of the Supreme Court today is different from its composition in 1996, with Justice O’Connor replaced by Justice Alito, who so far appears further to the right on the Court than did O’Connor. So the theoretical prospect of a federal constitutional ruling in their favor may be cold comfort to the same-sex couples in Michigan now deprived of health insurance, and thus of equal pay for equal work.
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