Defeat for Same-Sex Benefits

A Michigan appeals court on Friday ruled that public colleges and universities in the state may not offer health insurance or other benefits to the same-sex partners of employees. The ruling said that a state ban on gay marriage, approved by voters in 2004, barred such benefits.

Since the spread of state amendments to bar gay marriage, a concern of many gay and lesbian college employees had been that the measures would be used to limit their employee benefits, and the Michigan ruling may be the most dramatic evidence yet that those fears reflect a real danger.

A state district judge ruled in 2005 ruled that the amendment did not bar public colleges and universities from offering the benefits. That judge noted that health-care benefits for spouses are not a legal part of marriage, but relate to employment relationships. As a result, she found that benefits for the same-sex partners of public employees did not violate the 2004 amendment, which said that "the union of one man or one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

Michigan's attorney general appealed that ruling. The appeals court sided with the attorney general, focusing on the act of recognition of same-sex relationships that accompanies the process of providing benefits. Michigan's public universities that provide domestic partner benefits -- like other employers offering the benefits -- require employees to demonstrate that they are in a domestic partnership by meeting certain requirements.

By setting out such requirements, the universities are recognizing the gay couples as couples in a formal sense that is "directly afoul of the plain language of the amendment," the appeals court ruled.

The University of Michigan and Wayne State University filed a brief in the case arguing that Michigan's Constitution gives considerable autonomy to public higher education, and that universities should be able to provide the benefits regardless of the measure against gay marriage. The appeals court rejected that argument, saying that "public universities are autonomous only within their own spheres of authority."

Another argument presented by defenders of the benefits was that a ban on them would violate the equal protection provisions of Michigan's Constitution by denying gay couples the right to the same benefits that married couples enjoy. But the court rejected this idea as well, saying that because the amendment also applies to unmarried heterosexual couples, it does not single out gay couples. In addition, the court found that the amendment was consistent with "the longstanding and legitimate governmental interest in favoring the institution of marriage."

While the three-judge panel, in its unanimous ruling, repeatedly said that it was focused only on interpreting the 2004 amendment and not trying to make judgments on any groups, the decision used language favored by those who argue that sexual orientation is a choice. For example, there is a reference to the decision not being about "lifestyle or personal living decisions."

The Michigan branch of the American Civil Liberties Union has already vowed to appeal the decision and the University of Michigan on Friday pledged to support the appeal. It is unclear how many employees statewide are affected, but the University of Michigan said that it currently has 201 employees using the benefit to provide health insurance to partners.

According to the database of the Human Rights Campaign, a national gay rights group, 10 public colleges and universities offer domestic partner benefits: Central Michigan, Eastern Michigan, Michigan State, Northern Michigan, Oakland, and Wayne State Universities; Lansing Community College; and the University of Michigan's campuses at Ann Arbor, Dearborn and Flint.

Laurita Thomas, associate vice president and chief human resources officer at the University of Michigan, issued a statement Friday saying that the university was "deeply disappointed" in the ruling and that offering the benefits for gay employees' partners reflected Michigan's "commitment to an inclusive and welcoming environment." Her statement also said that university officials believed that they could continue to offer benefits to partners for the rest of the calendar year or the end of contract periods for those covered by collective bargaining agreements.

Lou Anna K. Simon, president of Michigan State University, issued a statement in which she said that her institution was "surprised and very disappointed" about the outcome of the case, while noting that Michigan State did not formally participate in it. Simon said that Michigan State would study its legal options before changing any employee benefits.

R. Van Harrison, a professor of medical education at Michigan and coordinator of the University of Michigan LGBT Faculty Alliance, said that he had been fielding calls and e-mail messages from colleagues all afternoon as people learned of the decision. "I'm hearing from people whose partners don't have other sources of benefits," he said.

Harrison's partner has benefits through his own employer and Harrison said that he believed a majority of gay employees don't actually use the benefit. But he stressed that the benefit was extremely important to such employees anyway. Because of his role on the gay faculty group, Harrison said that he receives calls all the time from gay people being recruited to Michigan for jobs. Even if these people don't have partners, they ask about partner benefits because they are a good proxy for the level of institutional commitment to gay faculty members.

"It's a way people judge the university," Harrison said.

Only a distinct minority of colleges offer the benefits -- 290 as of the Human Rights Campaign's last national survey. But the benefits are standard among the top colleges and universities in the country. Harrison said that he's worried about the impact the ruling could have on Michigan "because we are going after the very top people," many of them at universities where such benefits are well established.

The appeals court decision noted that some of the briefs filed in the case had raised the issue of a benefits ban having a negative impact on universities' ability to recruit professors. But the decision called that issue "irrelevant" in interpreting the state's Constitution.

While the ACLU and others are planning an appeal to the Michigan Supreme Court, they will face opposition there. Mike Cox, the state's attorney general, vowed to defend the position of the appeals court, which he said was consistent with what the people of Michigan wanted. "I am committed to protecting the will of the people," he said in a statement.

While the people of Michigan did vote against gay marriage, it is less clear that they are against benefits for gay employees' partners. While polling has consistently found broad national opposition to gay marriage, there is support (although varying by region and age) for civil unions and other measures to provide many benefits to gay couples -- and that support is always well above support levels for gay marriage.

Most of the 27 amendments (including Michigan's) passed by states to bar gay marriage did not explicitly cover the benefits issue, and the only state that has rejected an amendment barring gay marriage -- Arizona, narrowly last year -- was one in which there was explicit language applying the measure to domestic partnerships of state employees. In fact, there is a move now in Arizona to go back to voters with a simple amendment against gay marriage in the hope of ban proponents that removing the benefits issue will add support.

In most states that have had campaigns over ballot measures to ban gay marriage, there is an interesting reversal before and after the campaigns. Before a vote, proponents of a ban say that the measure is about protecting marriage and not denying rights to others. Gay rights groups and other opponents of the ban say that it will have a dramatic impact on benefits and other issues beyond marriage. Once a ban passes, proponents have tried to apply it to other benefits while critics have tried to define the measures narrowly.

The Michigan ruling notes that because states use "unique phraseology" in their amendments, and the fact that they are frequently challenged under state constitutions, different states may decide these issues in different ways.

One of the other states where benefits for university employees has resulted in litigation is Ohio. In November, a state judge there rejected a challenge to domestic partner benefits offered by Miami University. But the decision was based on the narrow issue of whether man who brought the suit -- a state legislator who said he was suing as a taxpayer and the parent of two students at Miami -- had standing to sue. The judge found that he did not, but suggested that his legal arguments may well have merit.

Ohio’s ban on gay marriage also bans public institutions from creating or recognizing relationships that “approximate the design, qualities, significance or effect of marriage.” The Alliance Defense Fund, a group that opposes gay marriage and benefits for gay people, is appealing the decision.