Nat'l Pride at Work, Inc. v. Governor of Mich., 274 Mich. App. 147 (Mich. App. 2007); Nat'l Pride at Work, Inc. v. Governor of Mich., 481 Mich. 56 (Mich. 2008)

The case involves an anti-gay marriage amendment to the Michigan Constitution, and its effect on domestic partnership benefits offered by public entities, including public universities. 

In November 2004 Michigan voters approved an amendment to the Michigan Constitution stating that “one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”  After this provision was passed, the Michigan Attorney General issued an opinion holding that the amendment precludes public employers, including public colleges and universities, from providing domestic partner benefits to their employees’ domestic partners and children.  National Pride at Work (a non-profit organization working with the ACLU) filed suit against the state, asking the court to clarify the issue and declare the Attorney General’s interpretation incorrect.  The Michigan circuit court subsequently issued a ruling against the Attorney General, declaring that the amendment “does not prohibit public employers from entering into contractual agreements with their employees to provide domestic partner benefits or voluntarily providing domestic partner benefits as a matter of policy.”  However, the Attorney General appealed the case to the Michigan Court of Appeals, which granted review on an expedited schedule.

The national AAUP joined Michigan Conference of the AAUP on an amicus  brief to the appellate court arguing that public universities have a right, and a need, to offer domestic partnership benefits to same sex employees and their children, and to forbid such benefits is an unconstitutional interference with the First Amendment academic freedom rights and contractual rights of universities and their faculty, and a violation of AAUP policy against discrimination on the basis of sexual orientation. The brief points out the educational objectives involved in domestic partnership benefits, including promotion of educational diversity by facilitating the recruitment and retention of gay and lesbian faculty and faculty interested in working in a diverse environment, sending a message of welcome to gay and lesbian students, and sending a policy message of the value of tolerance, diversity, inclusion and equality.  

Update:  The AAUP brief (.pdf) was filed December 14, 2005.  On February 1, 2007, the Michigan Court of Appeals issued a decision(.pdf) overturning the circuit court decision.  The court concluded that “the operative language of the [Michigan amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union.”  The court noted that most of the employment plans, including those of the two state universities, require domestic partners to have entered into some sort of formal domestic partnership agreement in order to receive benefits, and therefore concludes that “a public employer that requires proof of the existence of a formal domestic partnership agreement to establish eligibility for benefits ‘recognizes’ the validity of a same-sex union as reflected in the ‘agreement’ for the ‘purpose’ of providing the same benefits to a same-sex couple that would be provided to a married couple.  This violates the plain language of the amendment prohibiting such unions to be ‘recognized . . . for any purpose.’”

The court also concluded that the amendment did not conflict with universities’ special autonomous status under the Michigan constitution and does not violate the state constitution’s equal protection clause.  The court ruled that the universities remain subject to government regulation, including “the public policy mandate of the people as reflected in” the marriage amendment, and that in any event the narrower marriage amendment must control over the broader constitutional provisions on university autonomy.  On the equal protection issue, the panel pointed to Michigan law holding that only “arbitrary and invidious” distinctions violate the guarantee of equal protection, and concluded that “the marriage amendment’s purpose, ‘to secure and preserve the benefits of marriage for our society and for future generations of children. . .,’ is neither arbitrary nor invidious on its face.”  Finally, the court ruled that the amendment also did not violate equal protection as applied in this case, because neither same-sex couples nor heterosexual couples who are not married can obtain employment benefits “on the basis of an agreement ‘recognized as a marriage or similar union for any purpose.'"  The court did not address the AAUP’s argument that prohibiting the universities from conferring domestic partnership benefits implicates issues of academic freedom. 

On March 6, the court of appeals denied the plaintiffs’ motion for reconsideration.  On August 15, 2007, the Michigan conference and national office of the AAUP jointly filed an amicus brief (.pdf) in support of the plaintiffs’ appeal to the Michigan Supreme Court.  On May 7, 2008, the Michigan Supreme Court handed down its decision (.pdf), upholding the court of appeals in a 5-2 opinion.  The majority reasoned that in providing health care benefits to domestic partners and children, Michigan public employers were recognizing a domestic partnership as a “similar union” to a marriage; it was a “union” because legal consequences (such as health-insurance benefits) arose from the relationship, and it was “similar” to a marriage because the union had many of the same hallmarks as marriage, including, most importantly, a specification of the partners’ gender and a prohibition on marrying blood relations.  The majority rejected the argument that a domestic partnership was not similar to a marriage because it lacked many of the legal consequences and benefits flowing from marriage, 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 a marriage.”   

The majority also reasoned that the provision of health-insurance benefits indicated that the employers were “recognizing” the partnership; that a domestic partnership constituted an “agreement” (violating the amendment’s requirement that a union between a man and a woman be the “only agreement” recognized as a union); that the prohibition on recognizing such a union “for any purpose” included recognition for the purpose of providing health-insurance benefits; and that whether or not health-insurance benefits were a “benefit of marriage” of the type contemplated by the preamble to the amendment, the preamble could not limit the specific language that followed it.  

In addition, the majority rejected the assertion that extrinsic evidence should be considered; such evidence included statements made by the drafters and backers of the amendment that it was not intended to bar domestic partners from having access to health-insurance benefits but was meant only to “define” marriage.  The majority noted that the evidence was contradictory, and asserted that because the court had already determined that the language of the amendment was unambiguous, it was inappropriate to use extrinsic evidence to construe its meaning.  Finally, the majority considered and rejected the notion that other states’ “marriage amendments” could be used by analogy to construe Michigan’s amendment, because the language of the Michigan amendment differed from the others.  

The two dissenters argued that “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,” and that “the 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.”  The dissent agreed that the court’s role was to discern the meaning of the amendment itself, but the dissenting judges believed the amendment’s language was ambiguous, and “since our task is a search for intent, it is often necessary to consider the circumstances surrounding the adoption of the provision and the purpose it is designed to accomplish.”   

Finally, the dissent took exception to the majority’s equating of domestic partnerships and marriage, stating that “health coverage is not a benefit of marriage. . . .  Instead, the health coverage at issue is a benefit of employment. . . . But even if health coverage were a benefit of marriage, it is the only benefit afforded to the same-sex couples in this case.  The same-sex couples are not granted any of the other rights, responsibilities, or benefits of marriage.”