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December 04, 2007

Michigan Supreme Court Could End Health Benefits for Many Same-Sex Couples

By Anna Magazinnik

The Michigan Supreme Court will decide by July 31 of 2008 whether an amendment voters added to the Michigan State Constitution in 2004 defining marriage as between a man and a woman prevents public employers, including the University of Michigan, from offering health care benefits to same-sex partners. Pride at Work v. Granholm, filed by the ACLU of Michigan in 2005 on behalf of 21 families, seeks a declaratory ruling that the amendment does not bar domestic partner health care benefits. The trial court ruled in favor of the ACLU, but the appeals court reversed. The Michigan Supreme Court heard oral arguments on November 12. On November 14th Jay Kaplan, a staff attorney for the ACLU of Michigan LGBT law project, visited UM law to speak about the case.

According to Mr. Kaplan, the appeals court essentially adopted an opinion issued by Michigan’s Attorney General that the language of the Constitution prohibites recognition of same sex relationships in any context. To obtain health benefits, domestic partners have to show among other things that they are over a certain age and that they have lived together for over six months. The court found this showing similar to the requirements for showing a marriage and agreed with the Attorney General, who entered the case as a defendant, that recognition of the domestic partner relationship is prohibited by the 2004 amendment to the Constitution. The ACLU argued that health insurance is not a benefit of marriage, that a marriage is a bundle of many rights, and that offering health insurance, by itself, cannot create a marriage. Mr. Kaplan pointed out that many benefits require a showing of age or other conditions without creating a legal marriage. In addition, he said employers also provide coverage for many others, not only same-sex domestic partners, so that there is no special treatment of same-sex couples amounting to an unconstitutional recognition of their relationship. He disagreed with the Attorney General’s position that the intent of the amendment was to prohibit any incremental approaching of same sex marriage. The ACLU also argued that if there is ambiguity concerning the language, voter intent should be a determining factor in interpretation. Mr. Kaplan described his personal participation in many public forums leading up to the vote in which the main supporters of the amendment, Citizens for the Protection of Marriage and the American Family Association of Michigan, insisted that the issue was only about marriage and that health insurance and domestic partnerships would not be affected. Finally, the ACLU also raised equal protection issues in order to preserve them for a possible federal court challenge to the amendment.

Mr. Kaplan said that despite the generally conservative trend of the Michigan Supreme Court in its prior rulings on LGBT issues, the justices, in their questioning, suggested the possibility of a favorable ruling. Justice Markman, a conservative judge and part of the “solid block of four” that the ACLU believes are not likely to find in their favor, was concerned about the idea that health insurance contains everything that a marriage contains, saying that “a few sticks does not a bundle make.” However, the justices also asked whether the case was even necessary because the ACLU developed an alternative method by which employers could provide health care benefits without basing them on domestic partnerships. Under this plan, an employee can “designate another” to receive benefits so long as that other meets certain criteria including that the person not be a family member and have lived with the employee for a specified period of time. However, Mr. Kaplan noted that this program requires a great deal of hoop-jumping and was being used by employers only in a limited capacity as a pilot program.. Moreover, many employers do not use the program in fear that it will also be found unconstitutional.

The appeals court ruling that the amendment prohibits public employers from extending benefits to domestic partners when into effective immediately, which Mr. Kaplan pointed out is extremely unusual when such a case is pending appeal. As a result, many people have now lost their health coverage. The ACLU interviewed many such people, some of whom are now considering moving to another state. If this occurs, the University of Michigan could lose a number of employees. In fact, The University’s amicus brief argues that recruitment of professors would suffer without the ability to offer the benefits to domestic partners (Gay, Mara, “Court Set to Hear Benefits Case,” The Michigan Daily, posted online, 11/6/07).

Student questions for Mr. Kaplan raised many broader implications of the case. Many questioned the very issue of bringing such a case, and whether it might, through potential backlash, harm the LGBT community. Mr. Kaplan responded that there has been a movement recently in the community to ask for rights separate from recognition of intimate relationships. He said that to some degree, this might represent a regression to a willingness to “be accepted” so long as one does not show pictures of one’s partner or actually express oneself fully. Mr. Kaplan did say, however, that before filing an action in federal court, if the Michigan Supreme Court returns an unfavorable ruling, the ACLU would consult with other national LGBT groups to determine the best course of action. As an alternative, he suggested that the ACLU may instead concentrate on local communities and incremental changes, while continuing to persuade employers to use the “designate another” program to offer health insurance benefits to same-sex partners.