May 8

Michigan Ruling Bars Domestic Partner Benefits

Michigan’s Supreme Court ruled Wednesday that the state’s ban on gay marriage makes it illegal for public universities and other entities of state government to provide domestic partner benefits to the partners of gay employees.

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The ruling came in a case that has been closely watched because many states in which some public universities offer domestic partner benefits also have bans on gay marriage. The impact in Michigan itself is unclear. After a lower court ruled that the gay marriage ban applies to benefits, some universities switched their benefits programs so that they were available not to domestic partners but to “other eligible individuals,” a category that would include many gay partners, but would also include others who live with but are not legally related to university employees. For example, the University of Michigan’s criteria include joint residence for at least six months, some joint financial ties such as checking accounts, and no legal relationship or marriage between the individuals involved.

After the Supreme Court decision Wednesday, the university immediately asserted that its new benefits are not domestic partner benefits and are thus not covered by the ruling. Further, the university said it had eliminated domestic partner benefits after the lower court’s decision. “The university believes all current benefit offerings are in full compliance with Michigan law. The university cares deeply about recruitment, retention, and maintaining a healthy workforce and we design our benefits with these principles in mind,” the statement said.

Other universities said that they were still studying the decision.

Dale Schowengerdt, a lawyer for the Alliance Defense Fund, which filed a brief challenging the legality of domestic partner benefits, said that he had not studied the university’s latest plans in detail so he was not certain whether they would be legal. Schowengerdt said that, generally, public universities are free to extend benefits widely, but that if the university rules are creating relationships that in any way resemble marriages and their associated benefits, Wednesday’s rulings might make them legally vulnerable. He noted that the ruling was based on the type of relationship created, not calling it a domestic partnership. He said that his group and others would be looking to see if the universities “are just trying to get around [the earlier ruling] by calling it something else, but doing the exact same thing.”

Steve Sanders, a Chicago lawyer who filed a brief in the case on behalf of law professors in the state who believe domestic parntership benefits should be legal, said he didn’t see any reason that the latest decision should endanger the benefits structures more recently set up by the University of Michigan and others.

“Those new arrangements have been designed so that they cannot possibly be confused with unions similar to marriage, which was the operative language of the amendment,” he said. Sanders added that “I believe the Supreme Court was aware of the new, broader benefit
arrangements at the time this case was argued, so one would hope that if the justices felt those new policies were problematic or just some sort of end run, they would have said something to that effect.”

Many universities and academic groups had filed briefs with the Michigan Supreme Court specifically asking it to uphold domestic partner benefits, saying that they were crucial for recruiting academic talent and that the gay marriage ban was intended to apply only to gay marriage.

But Michigan’s highest court decided differently, in a 5-2 vote.

Writing for the majority, Justice Stephen J. Markman said that while those favoring benefits argued that Michigan’s ban on gay marriages applies only to marriage, it in fact also covers any “similar union.” Just because a university doesn’t declare partners to be the same as married couples doesn’t mean that the partners aren’t being accorded such recognition, the decision says. The decision goes on to say that marriages and domestic partnerships are unique in Michigan in that both are defined in part by gender and that blood relatives can not enter into them together. As a result, these relationships are similar, the court says. Notably, the new benefits arrangements set up by universities do not feature gender limits of any kind, although they do have measures that would bar blood relatives from registering for benefits in that way.

In addition, while those defending partner benefits argued that providing them was not recognizing a relationship in a marriage-style way, the court disagreed. “When a public employer attaches legal consequences to a relationship, the public employer is clearly ‘recognizing’ that relationship,” the decision says. “That is, by providing legal significance to a relationship, the public employer is acknowledging the validity of that relationship.”

The dissent, by Justice Marilyn Kelly, calls it “a perversion” of the gay marriage ban to imply that it applies to anything more than marriage or civil unions. The dissent notes that the campaign to adopt the gay marriage ban was based on repeated statements that it was needed for a single purpose: to define marriage. “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 opposing views of the majority decision and dissent largely bypass the arguments put forward by universities and academic groups on the case. A brief filed by a group of Michigan public universities details the role that domestic partner benefits play in recruiting and retaining faculty members. The brief also included specific cases where such benefits played a major role in helping a couple. For example, an assistant professor’s partner had a near fatal heart attack and the “life-saving, ongoing treatment” that led to his recovery would not have been possible without coverage under the university’s plan. In another case, the benefits allow the partner of an employee to stay at home and care for the two young children of the employee and parter. One of the children was born with a birth defect and can’t be in day care. In addition, the brief noted that passage of the gay marriage ban had led some professors to take jobs elsewhere, viewing the measure as a sign of hostility.

The American Association of University Professors argued in its brief that the ban on partner benefits also amounted to inappropriate state intrusion in the autonomy of universities.

Other briefs were filed by groups in favor of gay rights, opposed to gay marriage, and several localities. A group of law professors in Michigan also filed a brief, arguing that domestic partner benefits should not be banned. The professors said that the lower court had failed to see the limited nature of the gay marriage ban and had accorded to much status to the employment considerations at play when a university or state agency grants benefits.

— Scott Jaschik

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