Planning needed to repeal state "marriage amendment"

Court decision goes against our country's founding principles

By Jay Kaplan

Originally printed 05/15/2008

 
Depressing, distressing and disappointing are words that can only begin to describe the reaction to the Michigan Supreme Court's 5-2 decision last week, upholding the appeals court ruling that Michigan's so-called "Marriage Amendment," approved by voters in 2004, prohibits public employers from offering domestic partner benefits. However, more alarming than the decision itself, is the extremely flawed legal analysis that the Michigan Supreme Court majority used to reach the conclusion that the constitutional amendment bars Michigan and local governmental entities from recognizing the validity of same-sex relationships.

The majority, which included Clifford Taylor, Maura Corrigan, Robert Byrd, Stephen Markman and Elizabeth Weaver consider themselves to be textualists. This means they believe that the meaning of laws is found in the actual words themselves and that it is not the duty of the Court to look for hidden meanings or interpretations.

Well then, let's take a look at the actual language of the amendment: "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." Nowhere in this provision is there anything about domestic partner relationships or health insurance. Yet, this court insisted that it was absolutely clear to voters when they saw the ballot language that they intended to strip same-sex couples and their families of health insurance benefits that had been in place for years.

The American Civil Liberties Union of Michigan argued in Court that when a public employer voluntarily chooses to offer health insurance to domestic partners, the employer is not creating a legal marriage or anything that comes close to a legal marriage. In fact, marriage provides more than 1000 federal and state benefits, protections, and rights. Health insurance is not a benefit of marriage, nor does it confer any form of legal recognition to same-sex domestic partners. However, this court found that because both marriage and domestic partnerships, which employers required for benefits, had common elements such as sex, age and not being related by blood, this was sufficient to make a domestic partner relationship similar to a legal marriage - a highly disingenuous and dubious conclusion.

Not surprisingly, when deciding the fate of hundreds of families in Michigan, this court majority made no mention of the 21 families who were part of our lawsuit. They made no acknowledgement of their years working for state governments and universities or the years that they have had domestic partner health insurance benefits. They made no mention that these employees' partners or their partner's children depend on these benefits. But most disturbingly, they made no mention of how this decision puts families and children at risk.

Nine other state courts have looked at this issue. All nine state courts have consistently said that offering domestic partner benefits does not violate laws prohibiting same-sex marriage. However, the Michigan Supreme Court said that they didn't have to take into consideration this legal precedent. And in fact, the justices in the majority opinion went on to say that it didn't matter that proponents of the "Marriage Amendment" had lied to voters during the 2004 election by stating that the ban was about marriage and would have no affect on health insurance benefits. Of course, these groups changed their tune after the ballot initiative was approved.

As flawed as this decision is, it does state that employers could provide health insurance to domestic partners so long as the eligibility criteria did not include recognition of the same-sex relationship. Public employers like University of Michigan, City of Kalamazoo, Michigan State University, Ann Arbor Public Schools and Michigan Tech have redesigned their eligibility criteria so as to continue health care coverage for domestic partners and their children within the parameters of the court's decision.

The ACLU will continue to work with every public employer to redesign their eligibility criteria to ensure that no one loses their health insurance coverage. We will also advocate for other public entities, like the State of Michigan to offer health insurance coverage to domestic partners through this alternative eligibility criteria.

In the next couple of weeks, the ACLU will consult with national LGBT organizations regarding the viability of a federal court challenge to Michigan's interpretation of the "Marriage Amendment." We have to be especially careful because any federal challenge would have the potential to impact LGBT families across the country. That means that even the best federal legal theory may fail to convince a particular panel of judges, in turn creating bad federal law.

But rather than dwelling on this decision, our frustration, disappointment and sense of betrayal by this court need to be channeled into determination to make Michigan a better place to live in.

If we learned anything from last week's decision, it is the importance of being informed about the judges we elect in our state. Furthermore, it is equally as important to make informed decisions about who we elect for president and governor. After all, they can make judicial appointments when there are vacancies. And as we look to the future, it's time for us to start talking about a plan to repeal this "Marriage Amendment." Even without this broad interpretation from the Michigan Supreme Court, the amendment needs to go. Michigan can't afford to single out an entire group of people and deny a basic fundamental right afforded to others. It is simply wrong and goes against every basic principle our country was founded on.