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A Way to Keep Domestic Partner Benefits

June 15, 2007

Michigan's public colleges and universities were barred by a state appeals court in February from offering health and other benefits to the same-sex domestic partners of employees. So Michigan State University is trying another tack: extending benefits to people it labels "other eligible individuals."

Who are these eligible individuals? The key to the pilot program, which takes effect on July 1 and will be reviewed at least yearly to see if it should continue, is that it does not mention marriage, unions or same-sex domestic partnerships. Instead, it uses what are essentially neutral criteria to determine who is eligible. In order to receive benefits, a person must have lived with a non-unionized Michigan State employee for at least 18 months without being either a tenant or a legal dependent. They also can't be automatically eligible to inherit the employee's assets under Michigan law, which means no children, parents, grandparents or other close relations -- and no spouses, since they are covered under the traditional benefits package.

The new policy doesn't distinguish between same-sex and opposite-sex living arrangements, and in fact it would cover people who aren't really couples in any sense, but who merely share a home. Because the court decision did not apply to current labor health care contracts, which in Michigan State's case last through 2009, the pilot program won't be available to unionized employees until it presumably becomes part of the next round of negotiations.

The question now seems to be whether other universities in Michigan and other states with gay-marriage bans will follow suit. But that may depend on whether there will be a challenge to Michigan State's pilot program.

The office of Attorney General Mike Cox, who challenged the same-sex benefits, didn't have a legal position on whether the Michigan State plan would pass legal muster. The ruling focused on the text of the state's marriage amendment, passed by referendum in 2004, which states: "To secure and preserve the benefits of marriage for our society and for future generations of children, 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."

It was the first significant case in which a court interpreted language defining a "similar union," not typical wording for marriage amendments in other states. The appeals court found, in essence, that allowing benefits to domestic partners amounted to recognizing a same-sex union -- or, as the ruling stated, the amendment "prohibits public employers from recognizing same-sex unions for any purpose."

The new program would seem to avoid that problem.

Jay Kaplan, a staff attorney for the American Civil Liberties Union of Michigan's Gay, Lesbian, Bisexual and Transgender Project, which is appealing the decision to the Michigan Supreme Court, took that position. "It was in the parameters of that decision, because the court never said that you couldn’t provide health care coverage for domestic partners," he said. "It’s not getting around the decision, it’s figuring out a way to continue this health care coverage in accordance with this decision, as flawed as it is."

Kaplan also said he doesn't believe most Michigan voters intended to deny benefits to domestic partners in voting for the marriage amendment. There are data to show that even among those who oppose gay marriage rights, there is some support for domestic benefits. None of the state amendments, except Arizona's, passed last year, explicitly mention benefits -- leaving them open for courts across the country to interpret.

Who's next? The University of Michigan says it is evaluating its options and has not committed to a course of action. The university's same-sex domestic partner policy, like that of other institutions in the state, was invalidated by the court ruling, and it filed an amicus brief supporting the plaintiffs in the original case.

"They’re definitely thinking about doing something. I think every public university is exploring options," Kaplan said, and he predicted that the issue would recur again across the country in the next several years.

Earlier this month, the Kentucky attorney general issued a nonbinding opinion that the University of Kentucky and University of Louisville violated the state's marriage amendment for similar reasons cited in the Michigan case. Still, he appeared to imply that a policy similar to the one created by Michigan State would not violate the Kentucky constitution.

Universities consider health insurance and other employee benefits to be an important tool for recruiting and retaining faculty members. "Of course we’re going to apply the law, but it's incredibly important that we have the ability to offer health benefits to our employees," said Michigan spokeswoman Kelly Cunningham.

As it happens, the new Michigan State program has at least one positive side effect, at least from the employees' view: it would potentially expand eligibility to more people than under its previous domestic partnership plan. Unmarried heterosexual couples who met the criteria, for example, could now take advantage of the benefits.

Advocates of domestic-partner benefits appear to support Michigan State's program despite the fact that it doesn't -- and can't -- explicitly recognize same-sex unions. "I think that if there’s a way to offer these benefits to all of the people that are getting the benefits currently, then that’s acceptable," said Sean Kosofsky, the director of policy at the Detroit-based Triangle Foundation, which has been involved with efforts to support same-sex benefits in Michigan. "What’s not acceptable is [to] throw your hands up in the air and quit."

"Not only is this important to us ... it's also important as a signal from the administration," said Grant Littke, the president of Michigan State's LGBT Faculty and Staff Association. "That signal of inclusion and acceptance is important to us."

Although there has been opposition to the gay marriage acceptance movement throughout the state, there wasn't much of an outcry on campus, possibly because of the timing of the announcement, which came earlier this week.

"There would have been active opposition on campus, but it unfortunately came at the wrong time of the year," said Kyle Bristow, the chairman of Michigan State's Young Americans for Freedom group, via e-mail. He said his group believes the university is contradicting both the law and the will of the state's citizens. "MSU is doing nothing more than playing word games to avoid following the law," he said.

 

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