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Thursday, May 08, 2008
"Non-recognition" of same-sex couples in Michigan
The Michigan Supreme Court finally came down with their opinion in National Pride at Work v Governor of Michigan. Download pride_at_work.pdf
The case involves the interpretation of Article I, section 25 of the Michigan Constitution, a provision barring the state from recognizing any agreement as a marriage "or similar union...for any purpose" except a marriage between one man and one woman. According to the Michigan Supreme Court, this provision bars the state and its subdivisions from providing employment benefits -- basically, health insurance -- to the "domestic partners" of government employees. The majority reasoned that domestic partnerships, as defined by the public employers at issue (e.g., the University of Michigan and some local governments like the City of Kalamazoo and Ann Arbor) were too "similar" to marriage, because the conditions for being eligible to enter into such a partnership mirrored the criteria for eligibility for marriage. For instance, the City of Ann Arbor barred employees from registering someone as a domestic partner if they were related by a degree of consanguinity that would bar marriage.
The opinion, I think, is deeply confused. (Full disclosure: I was co-counsel for plaintiff-petitioners). The weirdness of the opinion is most obvious in the decision's broad construction of the notion of "recognition." According to the Court, "by providing legal significance to a relationship, the public employer is acknowledging the validity of that relationship." It is this acknowledgment of "validity" (whatever that means) that Article I, section 25 prohibits.
Think about that proposition for a minute.
Suppose that Professor X and Assistant Professor Y live together as domestic partners. Suppose that the University of Michigan asks Professor X not to vote on Assistant Professor Y's tenure because, after all, X has a conflict of interest. Does the "anti-gay marriage amendment" bar such an anti-nepotism rule because the rule obviously "recognizes" the existence of a relationship "similar to marriage"? Or suppose that the University of Michigan lists faculties' spouses, partners, and significant others in the faculty directory: Again, forbidden "recognition" of that forbidden "similar" union? And don't even get me started on the headaches caused by figuring out the guest list for the end-of-the-year faculty picnic: Do the partners get labeled "special friends"? Or just don't get invited?
Such results are deeply absurd, right? To say that a public entity must ignore plain social facts such as the existence of long-term relationships between unmarried employees, even when these facts impinge on the function of government, is to confess that the people of Michigan have gone bonkers.
The Ohio Supreme Court put the brakes on such insanity when it held that a similar amendment to the Ohio Constitution did not render unconstitutional laws imposing special penalties on domestic violence. Of course, such laws "recognize," and attribute legal significance to, relationships other than, but "similar to," marriage: People who beat up their live-in partner get harsher penalties than people who beat up strangers. To uphold the Ohio statute, the Ohio court had to look to the actual purpose of the constitutional provision and turn a blind eye to the absurd literal text.
But the Michigan Supreme Court refused to look to actual purpose, claiming that the text was unambiguous. Even though the proponents of the anti-gay-marriage amendment vociferously claimed that it would not prohibit DP benefits, the Court construed it to do so.
Are Michigan's domestic violence laws next on the chopping block of textualism? Or does the Court adhere to textualism only when it burdens equal employment rights for gay and lesbian employees? Either way, it is a sad day for the rule of law and common sense.
Posted by Rick Hills on May 8, 2008 at 07:43 AM in Current Affairs | Permalink
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Comments
I think you're overstating your examples a bit. For instance, there are "conflicts of interest" for longtime personal friends, former colleagues, and siblings. The corporate picnic might permit anyone to bring a guest or "family member," whether or not married (e.g., cohabiting opposite sex partner, fiance, date, grandparent, etc.).
In contrast, health benefits are only available to spouses (and, I suppose, offspring to a certain age). It's not as if an individual gets health insurance "plus one" (i.e., health insurance for herself and for one additional person of her choice). Instead, it's restricted to spouses. Opening it to another "union" would fall under this provision.
Posted by: anon | May 8, 2008 9:40:52 AM
What also seems strange is that the provision of a benefit has anything to do with "recognition" of marriage. Can't Michigan now just redefine the benefits plan to provide for coverage of any live-in individuals that meet the criteria it sets forth (which can mirror the domestic partner criteria) and ignore marriage altogether? This would be no different than providing benefits to foster children, non-live-in children, or whemever else they want to provide benefits for.
Put another way, what if the school wanted to provide coverage for my siblings that live in Michigan. It could do so, couldn't it, without even addressing marriage? Domestic partnership seems like it should be the same way: "You are NOT married, we do not RECOGNIZE you as married, but we want you to work here, so we will give you this benefit anyway."
Posted by: Michael Risch | May 8, 2008 10:28:52 AM
Four points:
(1) Anon pointedly failed to mention "domestic violence" laws, which underscores how plainly the majority's reasoning would render those laws unconstitutional.
(2) Contrary to Anon, faculty functions often invite spouse or spouse equivalents exclusively -- not siblings, and especially not children. The notion that Dean Evan Caminker can't invite a faculty member's same-sex partner unless he also invites my sister or "friend" is simply goofy. And what if Dean Caminker were to introduce a faculty member's partner as a partner at such a function? Would THAT violate the law against "official recognition"? It is hard to see why not. So I suppose that Evan must say, "let me introduce you to Professor X's 'special friend' (wink, wink)."
Such a rule is simply outlandish.
(3) Anon wants to single out health benefits as distintively marital. But health benefits are generally available to an employees' 'economic dependents' -- for instance, kids and often elderly parents: There is nothing distinctively "marital" about them. And the majority's reasoning would not uphold DP policies just because kids were thrown into the mix as well.
(4) Anon nicely confirms the sense of the majority's reasoning: According to the majority, the state must pretend that same-sex couples do not exist qua couples -- that their attitude towards each other does not amount to a long-term romantic or sexual attachment. The majority was offended by those aspects of the DP policies that acknowledged this character of the relationship.
And I say that, if the law requires policymakers to be blind to such plain social facts, then the law is unquestionably an ass. Maybe not such an ass as to amount to a violation of equal protection -- we'll leave that for the second round of litigation -- but, in any case, thoroughly asinine.
Posted by: Rick Hills | May 8, 2008 10:32:00 AM
Rick --
Could you (/did you) argue that Article I, section 25 violates the Contracts Clause of the federal Constitution (no State shall pass any law "impairing the Obligation of Contracts")? To the extent the Michigan provision applies prospectively, there wouldn't be a problem (for Contract Clause purposes anyway); but if the provision is applied retroactively, hasn't the state altered the terms of its contracts with certain government employees (by, e.g., withdrawing benefits that it once provided)?
BTW -- Thomas Colby has an article in the April Columbia LR -- The Federal Marriage Amendment and the False Promise of Originalism -- that seems somewhat relevant to your posting point here (suggesting a lack of consensus regarding the effect of the proposed amendment on domestic partnerships).
Posted by: Rob Mikos | May 8, 2008 1:43:22 PM
It seems to me the Michigan Supreme Court did do exactly what it's voters wanted it to do: kill partner benefits for same-sex couples. I have no problem with restricting benefits to those legally married and their dependants--so if you bring up common law marriages going away, eh well. They should get married then.
Look, the entire amendment was to prevent same sex couples from having incentives. No marriage, or anything else. Now, clearly you are biased since you were counsel on the case, but I don't think you can credibly argue that what happened was contrary to the will of the voters.
I note you acknowledge this by calling the voters all sorts of names, but then I suppose that opens up the question of elitism, anti-democracy, etc.
The amendment was passed in 2004, in the heydey of the "Massachuessetts is going to force gay marriage down everyone's throat" thing, which as I recall was indeed the intent. Since the gay marriage types were going to do an end run around the will of the people via the courts, many states ended up using a sledgehammer in the form of constitutional amendments to head that off at the pass.
And you gay marriage proponents are still trying to get the courts to effectively legalize it, just as you show in your post here. Under what scenarios would that language in the second part of the amendment that you complain about have any valid effect, in your opinion, that is acceptable?
Seriously, your comparison to the Ohio court is misguided; who is to say Michigan wouldn't do the same thing if faced with a domestic violence case? But you can't equate denying lucrative financial benefits as being the same as being beaten to a pulp.
Again I ask, what legitimate reading would you give the amendment that doesn't eviscerate it completely?
Posted by: Vanceone | May 8, 2008 3:45:29 PM
Three comments on Vanceone's remarks:
(2) The overwhelming and essentially uncontradicted evidence indicates that Michigan's voters did not want to prohibit domestic partnership benefits.
As the two dissenting justices noted, in an August 2004 poll of 705 likely voters, 50 percent of respondents favored the amendment while only 41 percent planned to vote against it. But 70 percent specifically disapproved of making domestic partnerships and civil unions illegal. Sixty-five percent disapproved of barring cities and counties from providing domestic-partner benefits. And 63 percent disapproved of prohibiting state universities from offering domestic-partner benefits.
Unsurprisingly, Citizens for the Protection of Marriage (CPM), the outfit that pressed the anti-gay-marriage ballot proposition, repeatedly stated that their measure would not outlaw same-sex marriage. CPM’s representative, attorney Eric E. Doster, assured the Board of State Canvassers that "there would certainly be nothing [in the proposal] to preclude [a] public employer from extending [health-care] benefits, if they so chose, as a matter of contract between employer and employee, to say domestic dependent benefits . . . [to any] person, and it could be
your cat. So they certainly could extend it as a matter of contract." Similar statements were made by CPM's campaign director, Marlene Elwell and communications director, Kristina Hemphill, who was quoted as stating that “[t]his Amendment has nothing to do with benefits . . . . It’s just a diversion from the real issue.”
In sum, the notion that voters of Michigan intended to prohibit employers from offering health insurance to the partners of their employees is simply indefensible. All of the evidence points in exactly the opposite direction. The Michigan Supreme Court's opinion, therefore, stands as one of the great bait-and-switch operations of statutory interpretation.
(2) On how the provision ought to have been construed: Article I, section 25 ought to have been construed to forbid "unions... similar to marriage." the defining characteristic of such unions is that (a) they cannot be unilaterally terminated by one party without triggering some legal consequence -- division of property, for instance and (b) they have effects on third parties, in wrongful death statutes, inheritance, and so forth. Domestic partnership has neither characteristic: One is no more "married" to one's domestic partner than one is "married" to one's child (who also qualifies for health insurance benefits under the relevant employment policies). DP policies simply allow employers to provide a third-party contractual benefit to a person designated by an employee. To call this relationship between employee and employer a marriage between an employee and a partner is a linguistic travesty.
(3) On my supposed elitism: I certainly do not think that the voters of Michigan are stupid. After all, they never endorsed anything like the "no-recognition-of-same-sex-relationships" position attributed to them by the Michigan Supreme Court. That position -- which is either goofy or paranoid or both -- is purely a judicial creation, foisted on the people of Michigan against their obvious intent (see (1) above) by their allegedly textualist court.
The voters were plainly hoodwinked by CPM and the Court. I deplore a method of statutory construction that so flagrantly ignores their intentions on the pretext of textualism. (See (2) above regarding the plain meaning of "union").
Posted by: Rick Hills | May 8, 2008 4:09:48 PM
I am surprised anyone would try to defend the Michigan court['s atrociouls reasoning here. Note that some said that the Virginia anti-same-sex couples law would stop two brothers from entering into a contract with one another. If they're in for a penny, they should be in for the pound of bigotry and irrationality at the core of anti-gay laws.
Posted by: Hills is Absolutely Right | May 9, 2008 9:21:34 PM
I find it amusing that anon states that "It's not as if an individual gets health insurance 'plus one'", since that is essentially what some of the affected institutions have actually moved to, having been forced to abandon domestic partnership as a qualifier. The new plan is actually open to more people than before, at least in theory. In practice, the requirements actually force domestic partners to jump through even more hoops than before. Despite what you may hear, it's untrue that no one lost their ability to immediately qualify under the new benefit plan.
From the arguments I've had with a certain representative of a certain group that helped to spearhead the amendment - both of whom I'll leave nameless here - it's clear from their approval of the new plan that coverage of one's domestic partner wasn't the issue - recognition of a domestic partnership was. Nevermind that the new plan results in the employer essentially recognizing the existence of a relationship between the employee and the person they designate for coverage. Without recognizing that relationship, the non-employed party wouldn't be covered - it's as simple as that. No, the problem is in giving that relationship a name - even if that name isn't 'marriage'. That's how threatened some people are by any 'official' recognition of a same-sex relationship. Whether or not it really approximates marriage isn't even the real issue - it's official recognition in any form, which they argue validates the relationship. Hard to miss the not-so-subtext here - the demand is that same-sex relationships be treated by the state as invalid. The intent of the amendment was to punish same-sex couples and encourage them to leave for friendlier states. Mission accomplished.
Not to mention the limbo this leaves domestic partners in when it comes to stuff like family leave, bereavement leave. These would appear to not be covered under the new plan, which seems to focus exclusively on health insurance.
Whether or not this was what the voters intended, it's what we're stuck with. Many voters cared more about "protecting" marriage than they did the possible negative effects of the amendment. The resulting collateral damage is something that most of them don't care about strongly. So I suggest that no one should hold their breath waiting for the amendment to be repealed or modified.
Posted by: Stephen Fuller | May 12, 2008 10:56:26 AM
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