NATIONAL PRIDE AT WORK INC V GOVERNOR OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
NATIONAL PRIDE AT WORK, INC., BECKY
ALLEN, DORTHEA AGNOSTOPOULOS,
ADNAN AYOUB, MEGHAN BELLANGER,
JUDITH BLOCK, MARY M. BRISBOIS, WADE
CARLSON, COURTNEY D. CHAPIN,
MICHAEL CHAPMAN, MICHELLE CORWIN,
LORI CURRY, JOSEPH DARBY, SCOTT
DENNIS, JIM ETZKORN, JILL FULLER,
SUSAN HALSEY-CERAGH, PETER HAMMER,
DEBRA HARRAH, TY HIITHER, JOLINDA
JACH, TERRY KORRECK, CRAIG KUKUK,
GARY LINDSAY, KEVIN MCMANN, A.T.
MILLER, KITTY O'NEIL, DENNIS PATRICK,
TOM PATRICK, GREGG PIZZI, KATHLEEN
POELKER, JEROME POST, BARBARA
RAMBER, PAUL RENWICK, DAHLIA
SCHWARTZ, ALEXANDRA STERN, GWEN
STOKES, KEN CYBERSKI, JOANNE BEEMON,
CAROL BORGESON, MICHAEL FALK, and
MATT SCOTT,
FOR PUBLICATION
February 1, 2007
9:00 a.m.
Plaintiff-Appellees,
v
No. 265870
Ingham Circuit Court
LC No. 05-000368-CZ
GOVERNOR OF MICHIGAN and
CITY OF KALAMAZOO,
Defendant-Appellee,
Official Reported Version
and
ATTORNEY GENERAL,
Intervening Defendant-Appellant.
Before: Hoekstra, P.J., and Wilder and Zahra, JJ.
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WILDER, J.
Intervening defendant Attorney General Michael Cox (AG) appeals as of right the
Ingham Circuit Court's order granting summary disposition under MCR 2.116(C)(10) to
plaintiffs National Pride at Work, Inc., which is a nonprofit constituency group of the AFL-CIO,1
and various public employees and their respective same-sex domestic partners. In this appeal,
the AG challenges the trial court's declaratory ruling that the marriage amendment, article 1, § 25
of the Michigan Constitution,2 does not preclude public employers from extending benefits to
domestic partners of the same sex. We reverse.
I
We begin by noting the relatively significant public attention this case has received. In
that context, we feel constrained to observe at the outset that this case is not about the lifestyles
or personal living decisions of individual citizens. Rather, it is about whether the marriage
amendment may permissibly impose certain limitations on the state and its governmental
subdivisions. More specifically, this case is about whether the marriage amendment may
prohibit governmental subdivisions from entering into employment-benefit agreements that
define eligibility for benefits using criteria, based on lifestyle or personal living decisions, that
allegedly violate the policy choice approved in the marriage amendment. Further, we observe
that the arguments advanced in several of the amicus briefs regarding the effect of the
amendment on employee recruitment, retention, and morale and marketplace competitiveness are
irrelevant considerations in interpreting the constitutional amendment at issue. The vote to adopt
the marriage amendment charted the policy direction for Michigan. Our decision only interprets
the amendment and applies it to the particular situation presented in this case. Finally, we note
that our interpretation of the language of the marriage amendment is one of first impression,
insofar as it concerns a relatively unique phraseology. Thus, while other states have adopted
constitutional amendments and statutes that place limitations on governmental recognition of
same-sex relationships, no court in any of these states has had the occasion to interpret language
approximating the language "similar union" found in Michigan's marriage amendment.3
Consequently, guidance from the decisions of other jurisdictions is unavailing.
1
"AFL-CIO" stands for the American Federation of Labor and Congress of Industrial
Organizations.
2
Article 1, § 25 provides: "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." Const 1963, art 1, §
25.
3
For example, Kentucky's constitution states: "A legal status identical or substantially similar to
that of marriage for unmarried individuals shall not be valid or recognized." Ky Const, § 233a.
Similarly, in 2006, Wisconsin amended its constitution to provide that "[a] legal status identical
or substantially similar to that of marriage for unmarried individuals shall not be valid or
recognized in this state." Wis Const, art 13, § 13. However, neither Kentucky nor Wisconsin
(continued…)
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II
On November 2, 2004, Michigan voters approved proposal 04-2, which amended the
state constitution by adding article 1, § 25 (the marriage amendment or the amendment). The
amendment took effect on December 18, 2004. At the time this amendment was adopted, several
public employers, including state universities and various city and county governments, had
policies or agreements that extended health-care benefits to employees' same-sex domestic
partners. Also, the Office of State Employer (OSE) and the United Auto Workers (UAW) Local
6000 union had previously negotiated an agreement to include same-sex domestic-partner
benefits in the employment benefit packages for state-employee members of UAW Local 6000
(the state plan). Thereafter, in the midst of the public debate concerning the amendment's effect
on same-sex domestic-partner benefits, the OSE and the UAW entered into a letter of intent on
December 2, 2004, indicating their intent not to submit the proposed contract to the Civil Service
Commission until there was a "determination by any court of competent jurisdiction that the
language [of the contract] is lawful."
On March 16, 2005, the AG issued a formal opinion in response to a state representative's
request for an opinion regarding the amendment's applicability to the city of Kalamazoo's ability
to provide same-sex domestic-partnership benefits to its employees under existing and future
contracts.4 The AG found that the "operative clause" 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"—is "best interpreted as prohibiting the acknowledgement of both samesex relationships and unmarried opposite-sex relationships. More simply, the only relationship
that may be given any recognition or acknowledgement of validity is the union of one man and
one woman in a marriage." OAG No. 7,171 (March 16, 2005), 2005 MR 5, p 33.
National Pride at Work, Inc., together with a number of individual plaintiffs who are
employees of seven different public employers and those employees' same-sex domestic
(…continued)
courts have interpreted the meaning of the language "substantially similar." We also note that
Missouri has a statute providing, among other things: "A marriage between persons of the same
sex will not be recognized for any purpose in this state even when valid where contracted." Mo
Rev Stat 451.022(4). Florida law similarly provides: "Marriages between persons of the same
sex entered into in any jurisdiction . . . or relationships between persons of the same sex which
are treated as marriages in any jurisdiction . . . are not recognized for any purpose in this state."
Fla Stat 741.212(1). While there are some cases interpreting these and other states' marriage
amendments, the language of these amendments or statutes is not similar to the language in the
Michigan marriage amendment, and, therefore, these cases are inapposite.
4
Eligibility for domestic-partnership benefits under the city of Kalamazoo policy required,
among other things, that the individuals (1) be of the same sex, (2) be at least 18 years old and
mentally competent, (3) share a common residence for at least six months, (4) be unmarried and
not be related by blood closer than would prevent marriage, (5) share financial arrangements and
daily living expenses, and (6) file a statement of the termination of any previous domestic
partnership at least six months before signing another certification of domestic partnership.
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partners, initiated this action seeking a declaratory judgment that the amendment does not
prohibit public employers from conferring health benefits to same-sex domestic partners of
employees. Plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(10).
Meanwhile, the city of Kalamazoo announced its plan not to extend health-care benefits to samesex domestic partners for contracts beginning in January 2006 absent a court ruling that the
benefits do not violate the amendment. Plaintiffs then added the city of Kalamazoo as a
defendant.
In their amended motion for summary disposition, plaintiffs argued (1) that the plain
language of the amendment does not prohibit public employers from granting same-sex
domestic-partnership benefits, (2) that the amendment's proponents' assurances that the passage
of the amendment would not effect benefits to same-sex partners supported such a conclusion,
and (3) that if the amendment were interpreted to preclude benefits for same-sex partners, it
would conflict with the Equal Protection Clause and the public universities' autonomy under
article 8, §§ 5 and 6 of the Michigan Constitution, as well as constitute an unconstitutional bill of
attainder under article 1, § 10 of the Michigan Constitution.5
The city of Kalamazoo agreed that whether the amendment does or does not preclude the
benefits at issue was appropriately resolved by summary disposition. The AG submitted a
motion on the Governor's behalf seeking dismissal of plaintiffs' claims on the basis that plaintiffs
lacked standing and failed to allege an actual case or controversy or concrete harm or injury as
the result of any action by the Governor. Thereafter, the Governor obtained separate counsel and
filed a brief opposing dismissal and instead supporting the plaintiffs. The AG then intervened in
the lawsuit, adopting as his own the brief initially filed on behalf of the Governor in support of
dismissal.
The trial court granted plaintiffs summary disposition, declaring that "Const 1963, art 1,
sec 25, 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." The trial court determined that because "[h]ealth care benefits are
not among the statutory rights or benefits of marriage," "[h]ealth care benefits for a spouse are
benefits of employment, not benefits of marriage," and further concluded that the criteria for
same-sex domestic-partner benefits in the employment contracts before the court "do not come
close to approaching the legal status that marriage holds in our society." The trial court further
held:
The Court must also give meaning to the final phrase of the amendment,
"for any purpose." Intervening defendant Cox argues that this language is
5
Plaintiffs do not argue on appeal that a determination that the amendment prohibits public
employers from granting same-sex domestic-partnership benefits constitutes an unconstitutional
bill of attainder. Therefore, we consider the claim abandoned. Etefia v Credit Technologies, Inc,
245 Mich App 466, 471; 628 NW2d 577 (2001).
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intended to prevent circumvention of the plain meaning of the amendment. The
Court takes these words to mean what they say in the context of the entire
amendment. If the employers in this case were recognizing a marriage or similar
union, then they would be prohibited from doing so for any purpose. However, as
discussed above, this Court cannot conclude that the employers are recognizing a
marriage or similar union. On the facts of this particular case, the "for any
purpose" language does not apply. Intervening defendant Cox's interpretation of
this phrase would go beyond purposes of non-circumvention and would actually
negate the language that preceded it.
By voluntarily providing domestic partner health care benefits to an
employer-defined group of people, the Plaintiffs' employers are not "recognizing
a marriage or similar union." Furthermore, the health care benefits are not
benefits of marriage and cannot be construed as "benefits of marriage" that are
prohibited by Const 1963, art 1, sec 25. Plaintiffs' employers are not prohibited
by Const 1963, art 1, sec 25, from voluntarily providing these health care benefits
and using criteria which do not recognize a union similar to marriage to determine
those who will receive these benefits of employment.[6]
The AG subsequently moved for a stay of the declaratory judgment, and also for an
injunction to prevent (1) the Governor from submitting the state plan's revised definition of
"eligible dependent" to the Civil Service Commission for possible approval and (2) the city of
Kalamazoo from entering into new contracts that would confer the same health benefits on samesex domestic partners as provided to employees' spouses. Without addressing the AG's motion
for injunctive relief, the trial court denied the motion for stay.
The AG filed motions in this Court, seeking a stay and immediate consideration. This
Court granted the motions for stay and immediate consideration, but declined to issue an
injunctive order and instead ordered the parties to brief the question of this Court's authority and
standards for the issuance of an injunction.7 The AG now appeals the trial court's declaratory
order.
III
6
Because the motion to dismiss originally filed on behalf of the Governor was subsequently
withdrawn when the Governor obtained separate counsel, the trial court concluded that plaintiffs'
standing was no longer an issue. Although the AG argued in part below that plaintiff 's claims
should be dismissed for lack of standing, the AG has not raised or briefed this issue on appeal.
Therefore, we consider the claim abandoned. Etefia, supra at 471.
7
National Pride at Work, Inc v Governor, unpublished order of the Court of Appeals, entered
October 31, 2005 (Docket No. 265870).
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Constitutional issues and summary disposition rulings are reviewed de novo. Van Buren
Charter Twp v Garter Belt, Inc, 258 Mich App 594, 608-609; 673 NW2d 111 (2003). When
deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the
pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the
light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681
NW2d 342 (2004).
IV
A
Michigan law recognizes three rules for construing constitutional provisions. As stated
by our Supreme Court in Wayne Co v Hathcock, 471 Mich 445, 468-469; 684 NW2d 765 (2004),
the rule of common understanding constitutes the first rule of constitutional construction:
[T]he primary objective of constitutional interpretation is to realize the
intent of the people by whom and for whom the constitution was ratified.
This Court typically discerns the common understanding of constitutional
text by applying each term's plain meaning at the time of ratification. But if the
constitution employs technical or legal terms of art, "we are to construe those
words in their technical, legal sense." [Citation omitted.]
Second, "to clarify [the] meaning [of a constitutional provision, if the meaning may be
questioned], the circumstances surrounding the adoption of a constitutional provision and the
purpose sought to be accomplished may be considered." Traverse City School Dist v Attorney
General, 384 Mich 390, 405; 185 NW2d 9 (1971), citing Kearney v Bd of State Auditors, 189
Mich 666, 673; 155 NW 510 (1915). However, if the constitutional language is clear, reliance
on extrinsic evidence is inappropriate. American Axle & Mfg, Inc v City of Hamtramck, 461
Mich 352, 362; 604 NW2d 330 (2000). Under the third rule for construing a constitutional
provision, "wherever possible an interpretation that does not create constitutional invalidity is
preferred to one that does." Traverse City School Dist, supra at 406.
B
Michigan has a long public-policy tradition of favoring the institution of marriage. Van v
Zahorik, 460 Mich 320, 332; 597 NW2d 15 (1999). "Indeed, this public policy is deeply
entrenched in our law." Id. at 332 n 4. In Michigan, marriage is recognized "as inherently a
unique relationship between a man and a woman . . . ." MCL 551.272. In addition, "[s]o far as
its validity in law is concerned, marriage is a civil contract between a man and a woman, to
which the consent of parties capable in law of contracting is essential." MCL 551.2. However,
"[c]onsent alone is not enough to effectuate a legal marriage . . . . Consent shall be followed by
obtaining a license . . . and solemnization . . . ." Id.
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Plaintiffs seek to define marriage as requiring comprehensiveness and durability. But
marriage is defined by statute. See MCL 551.1 et seq.8 For recognition, the key components of
the statutory definition are consent, MCL 551.2, and taking each other as husband and wife,
MCL 551.9. MCL 551.9 provides, in relevant part: "In the solemnization of marriage, no
particular form shall be required, except that the parties shall solemnly declare . . . that they take
each other as husband and wife . . . ."
In reliance on the amendment's statement of purpose, "[t]o secure and preserve the
benefits of marriage," plaintiffs contend that health insurance is not a benefit of marriage
because health insurance is not among the statutory benefits of marriage.9 However, the
common understanding of a constitutional text is determined "by applying each term's plain
meaning at the time of ratification." Hathcock, supra at 468-469 (emphasis added).
Accordingly, the provision must be examined as a whole. See id.; see also House Speaker v
Governor, 443 Mich 560, 579; 506 NW2d 190 (1993) (a constitutional provision must be
interpreted to give reasonable effect to all, not just some, of its parts). Plaintiffs' emphasis on the
statement of purpose ignores the provision's mandate: that only one "agreement"—the union of
one man and one woman in marriage—may be recognized as a marriage or similar union for any
purpose. The operative language of the 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.10
Whether a public employer's extension of employment benefits, e.g., same-sex domesticpartnership benefits, is based on an agreement recognized as a marriage or similar union,
8
MCL 551.1 provides:
Marriage is inherently a unique relationship between a man and a woman.
As a matter of public policy, this state has a special interest in encouraging,
supporting, and protecting that unique relationship in order to promote, among
other goals, the stability and welfare of society and its children. A marriage
contracted between individuals of the same sex is invalid in this state.
9
Examples of statutory rights that spouses accrue upon marriage include an equal interest in
property of every kind acquired during the marriage, MCL 557.204; the right to hold property as
tenants by the entirety, MCL 557.71; the right to pension and retirement benefits that accrue
during the marriage, MCL 552.18; the right to claim an exemption on taxes for spousal
inheritance, MCL 205.202; joint spousal liability for certain debts, MCL 330.1804; and the right
to spousal veterans' benefits, MCL 32.49d and MCL 36.31.
10
In this regard, we reject the proposition that the amendment's mandate is ambiguous because it
is written in the passive voice. The Michigan Supreme Court has held the location of provisions
in article 1 of the Michigan Constitution is legally significant and contemplates limitations of
governmental conduct. Woodland v Michigan Citizens Lobby, 423 Mich 188, 205; 378 NW2d
337 (1985) (holding that the provisions of article 1 have consistently been interpreted as limited
to protection against state action).
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requires this Court to discern the meanings of "recognized" and "similar union." Plaintiffs argue
that to violate the amendment the state must, in effect "create" a marital union. We disagree,
because creating and recognizing are not the same.
The AG contends that the term "recognize" as commonly understood means to
acknowledge the existence of something. In contrast, plaintiffs contend that the term refers to
the state's conferment of legal status or rights.11 Consistently with our Supreme Court's mandate
to construe technical or legal terms of art in their technical, legal sense, Hathcock, supra at 469,
we conclude that the common understanding of the term "recognize" as used in the amendment
is in a legal sense, i.e., to acknowledge the legal validity of something. See, e.g., Detroit v
Walker, 445 Mich 682, 699; 520 NW2d 135 (1994) ("A vested right has been defined as an
interest that the government is compelled to recognize and protect of which the holder could not
be deprived without injustice."); see also Mack v Detroit, 467 Mich 186, 190; 649 NW2d 47
(2002) (rejecting the "plaintiff 's invitation to recognize such a cause of action"); Van, supra at
332-333 (using the term "recognition" in the sense of conferring or granting legal status).
Here, in determining whether public employers' extension of same-sex domesticpartnership benefits operated to recognize a union similar to marriage, the trial court stated:
The criteria used by the employers in the present case do not recognize "a
union." There is no "union" that arises out of the employers' criteria. The criteria
are no more than a collection of characteristics the employer has identified for
purposes of extending health insurance benefits. Moreover, the criteria can
hardly be said to recognize a union when the criteria differ by employer. Nor can
the criteria be said to create a union where one does not exist according to law.
Civil unions are not recognized in this state. Employer defined criteria for the
receipt of health care benefits cannot create a union where one does not exist.
The trial court erred in ignoring the significance of the term "agreement" in the marriage
amendment. Three of the four plans provided in the record12 (those of the University of
Michigan, Michigan State University, and the city of Kalamazoo), require the domestic partners
to have registered, declared, signed, or filed a domestic-partnership agreement to establish
entitlement to benefits. 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
11
Random House Webster's College Dictionary (2000) defines the term "recognize" as "to
identify from knowledge of appearance of characteristics[;] . . . to perceive or acknowledge as
existing, true, or valid[;] . . . to acknowledge or accept formally as being something stated[.]"
Black's Law Dictionary (6th ed) defines "recognized" as "[a]ctual and publicly known."
12
The Eastern Michigan University, Wayne State University, and Eaton/Clinton/Ingham
Community Mental Health Board domestic-partner benefit plans are not part of the record.
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language of the amendment prohibiting such unions from being "recognized . . . for any
purpose."
Given the purpose of a domestic-partnership agreement, which is to proclaim the
existence of the relationship by establishing a mechanism for the public expression, sanction,
and documentation of the commitment,13 we reject plaintiffs' assertion that a domesticpartnership agreement is a mere formality having no legal consequences beyond the recognition
of the relationship for insurance purposes. The "public proclamation" nature of a domesticpartnership agreement grants a same-sex couple the ability to hold themselves out as a publicly
recognized monogamous couple, i.e., a union.
Plaintiffs contend that for such a union to exist, the legal status of the parties to the union
typically encompasses legal effects, governing hundreds of legal rights, benefits, and obligations
imposed by the state and federal governments. Plaintiffs assert that, absent the conferment of the
legal rights, responsibilities, and benefits triggered by marriage and given the ease in terminating
a domestic partnership (unilaterally, without judicial intervention), a determination equating
marriage to the extension of health insurance to same-sex partners would distort the plain
meaning of "marriage." Again, we disagree.
In Michigan, marriage is recognized "as inherently a unique relationship between a man
and a woman," MCL 551.272. Marriage triggers legal rights, responsibilities, and benefits not
afforded to unmarried persons, pursuant to a compact that is public and social in nature:
Marriage is a civil contract, but it is not a pure private contract. It is
affected with a public interest and by a public policy. The status of children,
preservation of the home, private morality, public decency, and the like afford
ample grounds for special treatment of marriage as a contract, by statute and
decision. In recognition of its public and social nature, courts have cast about it
the protecting mantle of presumptions, sustaining validity of marriage, said to be
13
The city of Ann Arbor's Declaration of Domestic Partnership includes a declaration section in
which,
[p]ursuant to Chapter 110 of Title IX of the Code of the City of Ann Arbor, the
undersigned hereby declare the following to be true:
1. We are in a relationship of mutual support, caring and commitment.
2. We share the common necessities of life.
3. We are not related by blood in a manner that would bar marriage in the
State of Michigan.
4. We are not married or in any other domestic partnership.
5. We are at least 18 years of age and otherwise competent to enter into a
contract.
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the strongest known to the law. [Hess v Pettigrew, 261 Mich 618, 621; 247 NW
90 (1933).]
By officially recognizing a same-sex union through the vehicle of a domestic-partnership
agreement, public employers give same-sex domestic couples status similar to that of married
couples. Contrary to plaintiffs' argument, a publicly recognized domestic partnership need not
mirror a marriage in every respect in order to run afoul of article 1, § 25 because the amendment
plainly precludes recognition of a "similar union for any purpose."14
The AG argues that the state plan and the plans of the University of Michigan, Michigan
State University, and the city of Kalamazoo share five attributes that are functionally the same as
the requirements of legal marriage:
(1) each requires that the partner be of the same-sex; cf MCL 551.1
(requires that spouse be of the opposite sex);
(2) each requires there be some kind of agreement about the relationship;
cf MCL 551.2 (marriage requires the consent of the parties);
(3) each requires that the partner not be a blood relation; cf MCL 551.3;
MCL 551.4 (listing blood relations that one cannot marry);
(4) each requires that the partner not be married to another or have a
similar relationship to another person; cf MCL 551.5 (prohibition against
bigamy); and
(5) each mandates an age requirement of 18 years of age; cf MCL 551.51
(minimum age for marriage is 16 years of age).
We agree. All the plans listed establish criteria for eligibility that are similar to those for
marriage. In addition, as we previously noted, the plans of the University of Michigan,
Michigan State University, and the city of Kalamazoo also require that the employee enter into a
domestic-partnership agreement in order to receive benefits. In order to be eligible for benefits
under the state plan, the employee and the employee's eligible dependent must have agreed to be
jointly responsible for basic living expenses and other common expenses of maintaining a
household. Thus, while the state plan does not characterize the agreement between the employee
and the dependent as a domestic-partnership agreement, its character and operation are
effectively the same. Therefore, in the case of each of the plans, upon being advised of the
existence of the employer-required agreement, the employer is contractually, i.e., legally,
obligated to recognize the agreement for the purpose of providing health-care benefits to the
14
"Similar" means "having a likeness or resemblance, [especially] in a general way; having
qualities in common . . . ." Random House Webster's College Dictionary (2000) (emphasis
added).
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dependent. In this way, the agreement between the employee and the dependent constitutes a
union similar to marriage, because with the agreement (as with a marriage), the employer has a
legal obligation to recognize the union and provide benefits to the eligible dependent (as with a
spouse).
We reiterate that article 1, § 25 invalidates the recognition of "union[s]" "similar" to
marriage "for any purpose." By recognizing a domestic-partnership agreement for the purpose
of providing benefits, the state plan and the plans of the University of Michigan, Michigan State
University, and the city of Kalamazoo run directly afoul of the plain language of the amendment.
We therefore hold that the trial court erred in declaring that "Const 1963, art 1, sec 25,
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." The requirement that an employee prove the existence of either a
written domestic-partnership agreement or an agreement between the employee and the
dependent to be jointly responsible for basic living and household expenses, in order to establish
eligibility by the partner or dependent for insurance coverage, constitutes recognition by the
public employer of a "similar union for any purpose," i.e., the purpose of extending to domestic
partners and dependents the benefit of insurance coverage equivalent to coverage that is
extended to spouses.
Because article 1, § 25 is unambiguous and plainly precludes the recognition of same-sex
domestic partnerships or similar unions for any purpose, this Court need not look to extrinsic
evidence to ascertain the voters' intent. American Axle & Mfg, supra at 362. We therefore
decline plaintiffs' invitation to consider the circumstances and public debate surrounding the
adoption of the amendment.
We also reject the contention of the University of Michigan and Wayne State University
as amici curiae that article 1, § 25 directly conflicts with article 8, § 515 of the Michigan
Constitution. The Michigan Constitution confers a unique constitutional status on Michigan's
public universities and their governing boards. Const 1963, art 8, §§ 5 and 6.16 The governing
boards' status is that of "'the highest form of juristic person known to the law, a constitutional
corporation of independent authority, which, within the scope of its functions, is co-ordinate with
15
Article 8, § 5 provides, in relevant part: "Each [university] board shall have general
supervision of its institution and the control and direction of all expenditures from the
institution's funds. Each board shall . . . elect a president of the institution under its supervision."
(Emphasis added.)
16
Article 8, section 6 provides, in relevant part: "Other institutions of higher education
established by law having authority to grant baccalaureate degrees shall each be governed by a
board of control which shall be a body corporate. The board shall have general supervision of
the institution and the control and direction of all expenditures from the institution's funds. It
shall . . . elect a president of the institution under its supervision." (Emphasis added.)
-11-
and equal to that of the legislature.'" Federated Publications, Inc v Michigan State Univ Bd of
Trustees, 460 Mich 75, 84 n 8; 594 NW2d 491 (1999) (citation omitted). But universities are not
exempt from all regulation; they are subject to the Legislature's police power, as long as the
regulation does not invade the university's constitutional autonomy. Id. at 87-88.
By the plain language of article 8, §§ 5 and 6, Michigan's public universities are
autonomous only within their own spheres of authority. In Western Michigan Univ Bd of
Control v Michigan, 455 Mich 531, 540-541; 565 NW2d 828 (1997), the Supreme Court, first
noting "that the state universities are organically part of the state government," quoted
approvingly from Branum v Bd of Regents of Univ of Michigan, 5 Mich App 134, 138-139; 145
NW2d 860 (1966), in which this Court stated:
In spite of its independence, the board of regents remains a part of the
government of the State of Michigan. . . .
* * *
. . . It is the opinion of this Court that the legislature can validly exercise
its police power for the welfare of the people of this State, and a constitutional
corporation such as the board of regents of the University of Michigan can
lawfully be affected thereby. The University of Michigan is an independent
branch of the government of the State of Michigan, but it is not an island. Within
the confines of the operation and allocation of funds of the University, it is
supreme. Without these confines, however, there is no reason to allow the regents
to use their independence to thwart the clearly established public policy of the
people of Michigan.
See also Federated Publications, Inc, supra at 87. Because the provisions in article 1 of the
Michigan Constitution contemplate limitations of government conduct, Woodland v Michigan
Citizens Lobby, 423 Mich 188, 205; 378 NW2d 337 (l985), and because the universities in
question remain a part of the government of the state, Western Michigan University Bd of
Control, supra at 540-541, Michigan's public universities are bound by the public policy
mandate of the people reflected in article 1, § 25.
Moreover, every provision in our constitution must be interpreted in the light of the
document as a whole, and no provision should be construed to nullify or impair another. Lapeer
Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d 452 (2003). All constitutional
provisions enjoy equal dignity, and a fundamental rule of construction requires construction of
every clause or section of a constitution consistently with its words, to protect and guard its
purposes. In re Proposals D & H, 417 Mich 409, 421; 339 NW2d 848 (1983). "Words must be
given their ordinary meanings . . . ." Lapeer Co Clerk, supra at 156. If there is a conflict
between general and specific provisions in a constitution, the more specific provision must
control in a case relating to its subject matter:
This second rule of construction is grounded on the premise that a specific
provision must prevail with respect to its subject matter, since it is regarded as a
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limitation on the general provision's grant of authority. The general provision is
therefore left controlling in all cases where the specific provision does not apply.
[Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich 631, 639-640;
272 NW2d 495 (1978).]
In the instant case, even if there were a conflict between the marriage amendment and the
provisions granting universities autonomy, the marriage amendment must control because the
marriage amendment governs the narrow question of whether a marriage "or similar union" will
be recognized "for any purpose," whereas the grant of autonomy to the universities is general
and broad.
Next, the city of Ann Arbor, as amicus curiae, argues that under its statutory authority
pursuant to MCL 117.4j(3),17 it may voluntarily provide same-sex domestic-partnership benefits.
We disagree.
MCL 117.4j provides:
Each city may in its charter provide:
* * *
(3) For the exercise of all municipal powers in the management and
control of municipal property and in the administration of the municipal
government, whether such powers be expressly enumerated or not; for any act to
advance the interests of the city, the good government and prosperity of the
municipality and its inhabitants and through its regularly constituted authority to
pass all laws and ordinances relating to its municipal concerns subject to the
constitution and general laws of this state.
"'[H]ome rule cities enjoy not only those powers specifically granted, but they may also exercise
all powers not expressly denied.'" AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695
(2003) (citation omitted). Home rule cities enjoy certain powers, subject to the constitution and
laws of the state:
Under general laws the electors of each city and village shall have the
power and authority to frame, adopt and amend its charter, and to amend an
existing charter of the city or village heretofore granted or enacted by the
17
MCL 117.4j is part of the Home Rule City Act, MCL 117.1 et seq.
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legislature for the government of the city or village. Each such city and village
shall have power to adopt resolutions and ordinances relating to its municipal
concerns, property and government, subject to the constitution and law. No
enumeration of powers granted to cities and villages in this constitution shall limit
or restrict the general grant of authority conferred by this section. [Const 1963,
art 7, § 22 (emphasis added).]
As a creation of the state, the city of Ann Arbor is subject to limitations imposed by the
state. See Kent Co Aeronautics Bd v Dep't of State Police, 239 Mich App 563, 580; 609 NW2d
593 (2000) ("'"A municipal corporation, created by a state for the better ordering of government,
has no privileges or immunities under the federal constitution which it may invoke in opposition
to the will of its creator."'") (citations omitted). Thus, as is true with regard to Michigan
universities, and because provisions in article 1 of the Michigan Constitution contemplate
limitations of government conduct, Woodland, supra at 205, cities like Ann Arbor are also
bound by the public policy mandate of the people reflected in article 1, § 25.
Next, plaintiffs claim that applying article 1, § 25 to prohibit them from receiving
employer-provided benefits would deprive same-sex couples of the equal protection of the laws
guaranteed by article 1, § 218 of the Michigan Constitution.19 We disagree.
It is a cornerstone of a democratic form of government to assume that a free people act
rationally in the exercise of their power, are presumed to know what they want and to have
understood the proposition submitted to them in all its implications, and by their approval vote
have determined that the proposal is for the public good and expresses the free opinion of a
sovereign people. In re Proposals D & H, supra at 423. Additionally, it is a "basic premise that
in a republican form of government the 'Supreme Power resides in the body of the people.'" Id.
at 424-425, quoting Chisholm v Georgia, 2 US (2 Dall) 419, 457; 1 L Ed 440 (1793). In
Michigan, the people have the constitutional power to propose constitutional amendments.
Const 1963, art 12, § 2 provides, in relevant part:
Amendments may be proposed to this constitution by petition of the
registered electors of this state. . . .
* * *
If the proposed amendment is approved by a majority of the electors
voting on the question, it shall become part of the constitution, and shall abrogate
or amend existing provisions of the constitution at the end of 45 days after the
date of the election at which it was approved. If two or more amendments
18
"No person shall be denied the equal protection of the laws . . . ." Const 1963, art 1, § 2.
19
Plaintiffs do not raise an equal protection claim under the Fourteenth Amendment of the
United States Constitution.
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approved by the electors at the same election conflict, that amendment receiving
the highest affirmative vote shall prevail. [Emphasis added.]
"Fundamental principles of democratic self-government preclude the judiciary from substituting
its judgment for that of the people." In re Proposals D & H, supra at 423. Thus, the marriage
amendment is to be interpreted together with the Equal Protection Clause, so that neither
provision nullifies or impairs the other. Lapeer Co Clerk, supra at 156.
"[I]t is well established that even if a law treats a group of people differently, it will not
necessarily violate the guarantee of equal protection." Doe v Dep't of Social Services, 439 Mich
650, 661; 487 NW2d 166 (1992). Moreover:
"The essence of the Equal Protection Clauses is that the government not
treat persons differently on account of certain, largely innate, characteristics that
do not justify disparate treatment. . . . Conversely, the Equal Protection Clauses
do not prohibit disparate treatment with respect to individuals on account of other,
presumably more genuinely differentiating, characteristics. . . . Moreover, even
where the Equal Protection Clauses are implicated, they do not go so far as to
prohibit the state from distinguishing between persons, but merely require that
'the distinctions that are made not be arbitrary or invidious.'" [Heidelberg Bldg,
LLC v Dep't of Treasury, 270 Mich App 12, 17-18; 714 NW2d 664 (2006)
(citations omitted).]
Interpreting the marriage amendment together with the Equal Protection Clause, so that
neither is read as nullifying or impairing the other, we conclude that, consistent with the state's
long public-policy tradition of favoring the institution of marriage, the marriage amendment's
purpose, "[t]o secure and preserve the benefits of marriage for our society and for future
generations of children," is neither arbitrary nor invidious on its face. Rather, as we have already
noted, the protection of the institution of marriage is a longstanding public policy and tradition in
the law of Michigan. Van, supra at 332; Hess, supra at 621-622. The people, in an act of selfgovernment, could rationally conclude that the welfare and morals of society benefit from
protecting and strengthening traditional marriages, and this act of the people constitutes a
legitimate governmental interest. See also Lawrence v Texas, 539 US 558, 585; 123 S Ct 2472;
156 L Ed 2nd 508 (2003) (O'Connor, J., concurring). Therefore, we find that the marriage
amendment, on its face, does not violate the equal protections afforded to Michigan citizens.
We also conclude that there is no equal protection violation resulting from the marriage
amendment as applied to the facts in this case. First, plaintiffs incorrectly assert that the
amendment selectively targets same-sex couples for loss of protections under state law. It is
undisputed that under the marriage amendment, heterosexual couples who have not married also
may not obtain employment benefits as a couple on the basis of an agreement "recognized as a
marriage or similar union for any purpose." Second, we reiterate that the amendment is
grounded in the longstanding and legitimate governmental interest in favoring the institution of
marriage. The amendment as written does not preclude the extension of employment benefits to
unmarried partners on a basis unrelated to recognition of their agreed-upon relationship. In this
regard, the amendment is narrowly tailored to further the legitimate governmental interest in
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protecting and strengthening the institution of marriage, and not to arbitrarily or invidiously
exclude individuals from the protections of the laws of this state. In this regard, Romer v Evans,
517 US 620, 633; 116 S Ct 1620; 134 L Ed 2d 855 (1996), is distinguishable.20
Because the marriage amendment does not make arbitrary or invidious distinctions in
furthering the legitimate governmental interests of the state, article 1, § 25 does not violate the
equal protection guarantee of the Michigan Constitution. See Heidelberg Bldg, supra at 17-18.
V
The marriage amendment's plain language prohibits public employers from recognizing
same-sex unions for any purpose. Therefore, we reverse the grant of summary disposition
upholding the plan negotiated between the OSE and UAW Local 6000, and further reverse the
trial court's order determining that the domestic-partnership policies of the University of
Michigan, Michigan State University, and the city of Kalamazoo were not violative of article 1,
§ 25 of the Michigan Constitution.
Reversed. This opinion is to have immediate effect. MCR 7.215(F)(2).
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Brian K. Zahra
20
We similarly find plaintiffs' citation of Alaska Civil Liberties Union v State, 122 P3d 781
(Alas, 2005), inapposite and unpersuasive given the different law involved. First, Alaska's equal
protection clause is more broadly worded, id. at 785, and its lowest level of equal protection
scrutiny requires more than a mere rational basis, id. at 791. Second, the Alaska marriage
amendment does not contain the language "for any purpose" or "similar union" found in
Michigan's marriage amendment. See id. at 785-786.
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