MI High Court Says No to Provision of Benefits to Same-sex Couples

May 9, 2008 (PLANSPONSOR.com) - The Michigan state Supreme Court has decided that providing health insurance benefits to same-sex domestic partners violates the marriage amendment of the state constitution.

In a split 5-2 decision, the majority said that since the marriage amendment prohibits the recognition of unions similar to marriage “for any purpose,” the pertinent question in the case is not whether these unions give rise to all of the same legal effects of marriage, but rather it is whether these unions are being recognized as unions similar to marriage “for any purpose.” The high court agreed with an appellate court ruling that same-sex unions are being recognized by public employers as similar unions to marriage “for any purpose,” and so the employers are violating the constitution.

The state Supreme Court pointed out in its opinion that the marriage amendment states: “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 plaintiffs in the case, National Pride at Work, Inc. and 21 same-sex couples, argued that the only thing the amendment prohibits is the recognition of a same-sex relationship as a marriage, and said government employers are not doing that by providing health benefits to same-sex domestic partnerships (See MI Couples: Amendment Didn’t Kill Public Same-Sex Benefits ).

The court said the pertinent question is whether the public employers are recognizing a domestic partnership as a union similar to a marriage. “When two people enter a domestic partnership, they join or associate together for a common purpose, and, under the domestic-partnership policies at issue here, legal consequences arise from that relationship in the form of health-insurance benefits. Therefore, a domestic partnership is most certainly a union,” the opinion said.

Continuing the argument, the high court noted “similar” means “having a likeness or resemblance,

[especially] in a general way; having qualities in common[.]” The court said that because marriages and domestic partnerships are the only relationships in Michigan defined in terms of both gender and lack of a close blood connection, they have core “qualities in common,” and it concluded that domestic partnerships are unions similar to marriage.

The majority further noted that public employers are truly recognizing a domestic partnership as a union similar to marriage when they provide health insurance benefits to domestic partners on the basis of the partnership. The court said: “When a public employer attaches legal consequence to a relationship, that employer is clearly “recognizing” that relationship.”

The public employers also are recognizing the same-sex partnership as an “agreement” when they provide health-insurance benefits to domestic partners, because each employer’s policy for the benefits requires each partner to sign an agreement that they are in a partnership or that they are jointly responsible for their welfare, according to the opinion.

In the history of the case, the trial court granted plaintiffs' motion for summary disposition that the marriage amendment does not bar public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners (See MI Gay Rights Group Wins Benefits Ruling ). The trial court said that health-insurance benefits do not constitute one of the "benefits of marriage," and further fournd that the "criteria [used by the public employers] also do not recognize a union 'similar to marriage'" because the "criteria, even when taken together, pale in comparison to the myriad of legal rights and responsibilities accorded to those with marital status."

However, a state appellate court reversed the trial court's decision, saying a union does not have to possess all the same legal rights and responsibilities that result from a marriage in order to constitute a union "similar" to that of marriage (See Michigan Court Rebuffs Appeal for Same-Sex Domestic Partner Benefits ). The high court agreed with the appellate court's point, and further noted that the marriage amendment contains more than just a statement of purpose. According to the majority opinion, the operative part of the amendment - that public employers must not recognize domestic partnerships for any purpose - sets forth how the ratifiers of the amendment intended to go about achieving the - to secure and preserve the benefits of marriage.

The majority recognized that the plaintiffs and the dissenting justices argued that Citizens for the Protection of Marriage, an organization responsible for placing the marriage amendment on the 2004 ballot and a primary supporter of this initiative during the ensuing campaign, published a brochure that indicated that the proposal would not preclude public employers from offering health-insurance benefits to their employees' domestic partners. The high court said that evidence could not be used to contradict the unambiguous language of the constitution.

In their dissenting opinion, Justices Marilyn Kelly and Michael F. Cavanagh said the language of the amendment itself prohibits nothing more than the recognition of same-sex marriages or similar unions, and that "[i]t is a perversion of the amendment's language to conclude that, by voluntarily offering the benefits at issue, a public employer recognizes a union similar to marriage."

The dissent also claimed circumstances surrounding the adoption of the amendment strongly suggest that Michigan voters did not intend to prohibit public employers from offering health care benefits to their employees' same-sex partners. According to the dissenting opinion, "The majority decision does not represent 'the law which the people have made, [but rather] some other law which the words of the constitution may possibly be made to express.'"

The opinion in National Pride at Work, Inc. v. Governor of Michigan is here .

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