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The Michigan Supreme Court ruled on May 7 by a vote of 5-2 that the state constitutional amendment against same-sex marriage approved by Michigan voters on November 2, 2004, makes it illegal for public employers in that state to provide health insurance benefits to domestic partners of their employees. The dissenting judges angrily charged that "the majority condones and even encourages the use of misleading tactics in ballot campaigns," as the proponents of the amendment had repeatedly stated verbally and in print that the purpose of the amendment was not to take benefits away from anybody. National Pride at Work v. Governor of Michigan, Nos. 133429 & 133554.
[Note: At time of posting, the opinion had not yet been posted on the court’s website, or added to the westlaw or lexis databases, but a copy could be obtained through a link on the press release issued by the ACLU of Michigan, which represents the plaintiffs.]
At the time of the vote, several public employers in the state, including state universities and several city and county governments, were providing benefits to same-sex partners, and a union representing state workers was negotiating over such benefits with the Office of State Employer. The proposed amendment, as it appeared on the ballot, stated that "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." Preliminary language indicated that the purpose of the amendment was to reserve the "benefits of marriage" to different-sex couples. Because of the existing domestic partner benefits plans, the union negotiations, and the perceived lack of clarity in the amendment’s language, the question whether the amendment would ban such benefits was much discussed.
Justice Marilyn Kelly’s dissenting opinion relates that the representative for the Citizens for Protection of Marriage Committee (CPM), the originator of the amendment, testified at the public certification hearing before the Board of State Canvassers in August 2004 that the amendment would not bar such benefits. Attorney Eric E. Doster told the Board, "An employer, as a matter of contract between employer and employee, can offer benefits to whomever the employer wants to. And if it wants to be my spouse, if it wants to be my domestic partner – however that’s defined under the times of your contract, or my cat, the employer can do that."
The campaign director of CPM was quoted in USA Today stating that "this has nothing to do with taking benefits away," and the organization’s communications director told local newspapers that "this Amendment has nothing to do with benefits. . . It’s just a diversion from the real issue." CPM also distributed a brochure, stating, "This is not about rights or benefits or how people choose to live their life."
Public opinion polls taken during the campaign showed that while a majority of Michigan voters wanted to ban same-sex marriages, an even steeper majority opposed banning domestic partnership benefits.
On the other side of this issue, Justice Stephen J. Markman’s opinion for the court points out that the state’s civil service commission issued a statement during the campaign warning that "if passed, Proposal 2 would result in fewer rights and benefits for unmarried couples, both same-sex and heterosexual, by banning civil unions and overturning existing domestic partnerships. Banning domestic partnerships would cause many Michigan families to lose benefits such as health and life insurance, pensions, and hospital visitation rights."
Commenting on the diversity of views,. Markman observes that "supporters of legislative and constitutional initiatives often tend to downplay the effect of such initiatives during public debate, while opponents tend to overstate their effect."
After the measure passed, there was a quick rush to determine whether it would affect partner benefits plans, not least because the union and the state had tentatively agreed to extend such benefits to public employees. The Attorney General, Mike Cox, quickly issued an opinion stating that partner benefits for public employees were prohibited by the amendment, and a group of Michiganders, under the banner of National Pride at Work, filed their lawsuit, represented by the ACLU of Michigan, arguing that the ambiguous language of the amendment should be interpreted in line with what its proponents had said during the campaign. Governor Jennifer Granholm, who supports domestic partnership benefits, disavowed the Attorney General’s motion to dismiss the case, and retained separate counsel to file a brief on the side of the plaintiffs, even though she is named as the defendant.
The plaintiffs persuaded the trial judge that the amendment does not ban the benefits, but the state’s court of appeals reversed in February 2007, holding that the language of the amendment clearly ruled out partner benefits.
Justice Markman evoked one of the central rules of interpreting constitutional and statutory provisions, that only if the constitutional language is itself ambiguous does one consult the "legislative history" to try to determine its meaning. In this case, said Markman, it was the intent of the voters, not the intent of the drafters or proponents, that should count. But the various arguments quoted by the dissenters struck the majority of the court as irrelevant because, according to Markman, the language of the measure is clear and can be interpreted without reference to legislative history.
The plaintiffs had successfully argued to the trial court that because of the many differences between legal marriage and the limited recognition of partnerships for purposes of health insurance benefits, the two could not be deemed "similar," but the Supreme Court majority disagreed. "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," wrote Markman. "If the marriage amendment were construed to prohibit only the recognition of a union that possesses legal rights and responsibilities identical to those that result from a marriage, the language ‘or similar union’ would be rendered meaningless, and an interpretation that renders language meaningless must be avoided."
Markman pointed out that there were two central features common to marriage and domestic partnerships, as they are defined by the various Michigan public employers who were providing benefits. One was that they "require the partners to be of a certain sex," and the other that they require that the parties "not be closely related by blood." "Although there are, of course, many different types of relationships in Michigan that are accorded legal significance – e.g., debtor-creditor, parent-child, landlord-tenant, attorney-client, employer-employee – marriages and domestic partnerships appear to be the only such relationships that are defined in terms of _both_ gender and the lack of a close blood connection."
Referring to a dictionary definition of "similar" as "having qualities in common," Markman continued, "Marriages and domestic partnerships share two obviously important, and apparently unique (at least in combination), qualities in common. Because marriages and domestic partnerships share these ‘similar’ qualities, we believe that it can fairly be said that they ‘resemble’ one another ‘in a general way,’" thus meeting the dictionary definition of being "similar."
Markman also said that when an employer extends benefits based on the existence of such a union, it is recognizing the union, and that because the various entities that were providing such benefits required that the parties have a domestic partnership agreement or that they have "agreed" to be mutually responsible for each other’s welfare, the constitutional language about "recognizing" an "agreement" as a "similar union" was met. From there, Markman emphasized that the constitutional provision forbids such recognition for "any purpose," leading to his conclusion that the language forbids recognizing such unions for the purpose of providing benefits.
The court found irrelevant the long string of cases decided in other jurisdictions that have found anti-marriage amendments do not ban partnership benefits, because Michigan’s constitutional wording is unique. When the measure was passed, commentators observed that it seemed to be among the most far-reaching state marriage bans, precisely because of the "similar union" and "any other purpose" phrases.
"The trial court held that providing health-insurance benefits to domestic partners does not violate the marriage amendment because public employers are not recognizing domestic partnerships as unions similar to marriage, given the significant distinctions between the legal effects accorded to these two unions," concluded Markman. "However, given that the marriage amendment prohibits the recognition of unions similar to marriage ‘for any purpose,’ the pertinent question is not whether these unions give rise to all of the same legal effects; rather, it is whether these unions are being recognized as unions similar to marriage ‘for any purpose.’"
The dissent strongly disagreed with the majority that the language was unambiguous, noting the differences of opinion voiced during the election campaign, and insisting that "the language of the amendment itself prohibits nothing more than the recognition of same-sex marriages or similar unions. It 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," wrote Justice Kelly, because domestic partnerships are not, in her view, similar to marriage, in that they carry with them none of the benefits of marriage.
As had the trial court, Kelly pointed out that health insurance is not a benefit of marriage, but rather a benefit of employment. One does not automatically qualify for benefits upon getting married, but rather one qualifies for benefits by marrying somebody whose employer has agreed to provide benefits to the partners of its employees. More significantly, as the majority insisted that the question of intent focused on the voters, not the proponents of the amendment, Kelly argued that the public opinion polls showed that the voters were opposed to banning domestic partnership benefits, and thus must have believed the proponents’ assurances that the amendment would not prohibit such benefits. Kelly pointed out that the expressed intent of the amendment was to reserve the "benefits of marriage" for different-sex couples, but because partnership benefits are not a "benefit of marriage" provided by the state, she found it consistent with the amendment to allow public employers to provide the benefits.
Kelley argued that for a domestic partnership to be "similar" to a marriage, it should carry the legal benefits of marriage, and she labeled as "preposterous" the majority’s use of the phrase "for any purpose" to modify the word "similar," claiming that this "distorts" the language of the amendment.
Justice Michael F. Cavanagh joined Justice’s Kelly’s dissenting opinion.
Because the Michigan Supreme Court, the state’s highest court, is the authoritative interpreter of the state’s constitution, there is no appeal from this ruling to the United States Supreme Court as to the interpretation of the marriage amendment.
