NATIONAL PRIDE AT WORK INC V GOVERNOR OF MICHIGAN
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 7, 2008
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,
Plaintiffs-Appellees,
v
No. 133429
GOVERNOR OF MICHIGAN,
Defendant-Appellant,
and
CITY OF KALAMAZOO,
Defendant-Appellee,
and
ATTORNEY GENERAL,
Intervening DefendantAppellee.
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,
Plaintiffs-Appellants,
v
No. 133554
2
GOVERNOR OF MICHIGAN and CITY
OF KALAMAZOO,
Defendants,
and
ATTORNEY GENERAL,
Intervening DefendantAppellee,
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether the marriage amendment,
Const 1963, art 1, § 25, which states that “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,” prohibits public employers from providing health-insurance benefits
to their employees’ qualified same-sex domestic partners. Because we agree with
the Court of Appeals that providing such benefits does violate the marriage
amendment, we affirm its judgment.
I. FACTS AND HISTORY
The marriage amendment, Const 1963, art 1, § 25, was approved by a
majority of the voters on November 2, 2004, and took effect as a provision of the
Michigan Constitution on December 18, 2004.
At that time, several public
employers, including state universities and various city and county governments,
had policies or agreements in effect that extended health-insurance benefits to
3
their employees’ qualified same-sex domestic partners. In addition, the Office of
the State Employer (OSE) and the United Auto Workers Local 6000 (UAW) had
reached a tentative agreement to include same-sex domestic-partner healthinsurance benefits in the benefit package for state employee members of the union.
However, on December 2, 2004, the OSE and the UAW agreed not to submit the
proposed contract to the Civil Service Commission until after there had been a
court determination that the language of the proposed contract did not violate the
marriage amendment.
On March 16, 2005, in response to a state representative’s request for an
opinion regarding the marriage amendment’s effect on the city of Kalamazoo’s
ability to provide same-sex domestic-partner health-insurance benefits to its
employees, the Attorney General issued a formal opinion, concluding that the
city’s policy did violate the amendment. The Attorney General asserted that
“Const 1963, art 1, § 25 prohibits state and local governmental entities from
conferring benefits on their employees on the basis of a ‘domestic partnership’
agreement that is characterized by reference to the attributes of a marriage.”
OAG, ___, No 7,171, p ___ (March 16, 2005), 2005 Mich Reg 5, p 35.
4
On March 21, 2005, plaintiffs1 filed this declaratory judgment action
against the Governor, seeking a declaration that the marriage amendment does not
bar public employers from providing health-insurance benefits to their employees’
qualified same-sex domestic partners. After the city of Kalamazoo announced its
intention not to provide same-sex domestic-partner health-insurance benefits to its
employees for contracts beginning in January 2006 absent a court ruling that such
benefits do not violate the marriage amendment, plaintiffs added the city of
Kalamazoo as a defendant.
The Attorney General, acting on behalf of the
Governor, moved to dismiss plaintiffs’ suit. The Governor obtained separate
counsel, who withdrew the motion to dismiss and filed a brief supporting
plaintiffs. The Attorney General then intervened in his own right and adopted the
brief that he had initially filed on the Governor’s behalf as his own.
The trial court granted plaintiffs’ motion for summary disposition and
declared that the marriage amendment does not bar public employers from
1
Plaintiff National Pride at Work, Inc., is a nonprofit organization of the
American Federation of Labor–Council of Industrial Organizations. The
remaining plaintiffs are employees of the city of Kalamazoo, the University of
Michigan, Michigan State University, Eastern Michigan University, Wayne State
University, the Clinton/Eaton/Ingham County Community Mental Health Board,
or the state of Michigan and those employees’ same-sex partners. Because the
benefit plans of Eastern Michigan University, Wayne State University, and the
Eaton/Clinton/Ingham Community Mental Health Board are not part of the record,
they are not discussed. Likewise, this opinion does not address whether private
employers can provide health-insurance benefits to their employees’ same-sex
domestic partners.
5
providing health-insurance benefits to their employees’ qualified same-sex
domestic partners. The court held that health-insurance benefits do not constitute
one of the “benefits of marriage.” Unpublished opinion of the Ingham Circuit
Court, issued September 27, 2005 (Docket No. 05-368-CZ), p 7. The court further
held that the “criteria [used by the public employers] also do not recognize a union
‘similar to marriage’” because the “criteria, even when taken together, pale in
comparison to the myriad of legal rights and responsibilities accorded to those
with marital status.” Id. at 9.
The Attorney General appealed and moved for a stay.
The Court of
Appeals granted the motion for a stay and reversed the trial court, declaring that
the marriage amendment does bar public employers from providing healthinsurance benefits to their employees’ qualified same-sex domestic partners. Nat’l
Pride at Work, Inc v Governor, 274 Mich App 147; 732 NW2d 139 (2007). The
Court of Appeals held that “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.’” Id. at 163. “All the plans listed establish criteria for eligibility that are
similar to those for marriage.”
Id. at 164.
“[T]he 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
6
recognize the union and provide benefits to the eligible dependent (as with a
spouse).” Id. Finally,
[t]he requirement that an employee prove the existence either of 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. [Id. at 165.]
Plaintiffs and the Governor appealed, and this Court granted the applications for
leave to appeal. 478 Mich 862 (2007).
II. STANDARD OF REVIEW
A trial court’s decision to grant a motion for summary disposition is
reviewed de novo. Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 558;
737 NW2d 476 (2007). Questions of constitutional interpretation are also
reviewed de novo. Id.
III. ANALYSIS
A. DOMESTIC-PARTNERSHIP POLICIES
The tentative agreement reached by the OSE and the UAW would require
domestic partners to meet the following criteria in order to receive healthinsurance benefits:
1. Be at least 18 years of age.
2. Share a close personal relationship with the employee and
be responsible for each other’s common welfare.
7
3. Not have a similar relationship with any other person, and
not have had a similar relationship with any other person for the
prior six months.
4. Not be a member of the employee’s immediate family as
defined as employee’s spouse, children, parents, grandparents or
foster parents, grandchildren, parents-in-law, brothers, sisters, aunts,
uncles or cousins.
5. Be of the same gender.
6. Have jointly shared the same regular and permanent
residence for at least six months, and have an intent to continue
doing so indefinitely.
7. Be jointly responsible for basic living expenses, including
the cost of food, shelter and other common expenses of maintaining
a household. This joint responsibility need not mean that the
persons contribute equally or in any particular ratio, but rather that
the persons agree that they are jointly responsible.
The tentative agreement also provides: “In order to establish whether the criteria
have been met, the employer may require the employee to sign an Affidavit setting
forth the facts and circumstances which constitute compliance with those
requirements.”
The city of Kalamazoo’s “Domestic Partner Benefits Policy,” incorporated
in its collective-bargaining agreements, provided health-insurance benefits to the
domestic partners of the city’s employees who met the following criteria:
For the purposes of the City of Kalamazoo’s program, the
definition and use of the term domestic partner shall only include
couples of the same sex. To be considered as domestic partners, the
individuals must:
A. Be at least 18 and mentally competent to enter into a
contract;
8
B. Share a common residence and have done so for at least
six (6) months;
C. Be unmarried and not related by blood closer than would
prevent marriage;
D. Share financial arrangements and daily living expenses
related to their common welfare;
E. File a statement of termination of previous domestic
partnership at least six (6) months prior to signing another
Certification of Domestic Partnership. [Emphasis in the original.]
The city also required the employee and his or her domestic partner to sign a
notarized certification of domestic partnership that affirmed these criteria. In
addition, they were required to provide evidence of “mutual economic
dependence,” such as a joint lease or mortgage, and evidence of a “common legal
residence,” such as driver’s licenses or voter’s registrations. Finally, the city’s
policy provided: “It is the intent of this program to provide insurance coverage and
other benefits to domestic partners of the City of Kalamazoo identical to those
provided to spouses of City employees.”
For a domestic partner to be eligible for health-insurance benefits under the
University of Michigan’s “Same-Sex Domestic Partner Policy,” the employee and
his or her partner must:
• Be of the same sex; and
• Not be legally married to another individual; and
• Not be related to each other by blood in a manner that
would bar marriage; and
9
• Have registered or declared the Domestic Partnership in the
manner authorized by a municipality or other government entity;[2]
and
• Have allowed at least six months to pass since the
dissolution of a previous same-sex domestic partnership in the
manner authorized by a municipality or other government entity.
Michigan State University provided health-insurance benefits to its
employees’ domestic partners if the employee and the domestic partner:
1. are [the] same-sex and for this reason are unable to marry
each other under Michigan law,
2. are in a long-term committed relationship, have been in the
relationship for at least 6 months, and intend to remain together
indefinitely,
3. are not legally married to others and neither has another
domestic partner,
4. are at least 18 years of age and have the capacity to enter
into a contract,
2
The city of Ann Arbor’s “Declaration of Domestic Partnership” requires
the partners to “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.
10
5. are not related to one another closely enough to bar
marriage in Michigan,
6. share a residence and have done so for more than 6 months,
7. are jointly responsible to each other for the necessities of
life, and
8. provide a signed “partnership agreement” that obligates
each of the parties to provide support for one another, and provides
for substantially equal division, upon termination of the relationship,
of earnings during the relationship and any property acquired with
those earnings.[3]
B. MARRIAGE AMENDMENT
The marriage amendment, Const 1963, art 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.”
The primary objective in interpreting a constitutional provision is to
determine the original meaning of the provision to the ratifiers, “we the people,” at
the time of ratification.
Justice Cooley has described this rule of “common
understanding” in this way:
For as the Constitution does not derive its force from the
convention which framed, but from the people who ratified it, the
intent to be arrived at is that of the people, and it is not to be
supposed that they have looked for any dark or abstruse meaning in
the words employed, but rather that they have accepted them in the
3
When we use the term “domestic partnership” in this opinion, we refer to
a partnership that satisfies the criteria contained in one of the domestic-partnership
policies described in this opinion.
11
sense most obvious to the common understanding, and ratified the
instrument in the belief that that was the sense designed to be
conveyed. [Cooley, Constitutional Limitations (1st ed), p 66.]
Thus, the primary objective of constitutional interpretation, not dissimilar to any
other exercise in judicial interpretation, is to faithfully give meaning to the intent
of those who enacted the law.
This Court typically discerns the common
understanding of constitutional text by applying each term’s plain meaning at the
time of ratification. Wayne Co v Hathcock, 471 Mich 445, 468-469; 684 NW2d
765 (2004).
C. “SIMILAR UNION”
Plaintiffs argue that “the only thing that is prohibited by the [marriage]
amendment is the recognition of a same-sex relationship as a marriage” and that
the public employers here are not recognizing a domestic partnership “as a
marriage.” Plaintiff’s brief on appeal (Docket No. 133554), p 23 (emphasis in the
original).
We respectfully disagree.
First, the amendment prohibits the
recognition of a domestic partnership “as a marriage or similar union . . . .” That
is, it prohibits the recognition of a domestic partnership as a marriage or as a union
that is similar to a marriage. Second, just because a public employer does not
refer to, or otherwise characterize, a domestic partnership as a marriage or a union
similar to a marriage does not mean that the employer is not recognizing a
domestic partnership as a marriage or a union similar to a marriage. Cf. id. at 26
(“In providing benefits to the same-sex partners of their employees, these
12
employers have not declared the same-sex partnership to be a marriage or
anything similar to marriage.”) (emphasis added).4
The pertinent question is not whether public employers are recognizing a
domestic partnership as a marriage or whether they have declared a domestic
partnership to be a marriage or something similar to marriage; rather, it is whether
the public employers are recognizing a domestic partnership as a union similar to a
marriage.
A “union” is “something formed by uniting two or more things;
combination; . . . a number of persons, states, etc., joined or associated together for
some common purpose.” Random House Webster’s College Dictionary (1991).
Certainly, when two people join together for a common purpose and legal
consequences arise from that relationship, i.e., a public entity accords legal
significance to this relationship, a union may be said to be formed. When two
people enter a domestic partnership, they join or associate together for a common
purpose, and, under the domestic-partnership policies at issue here, legal
4
Plaintiffs seem to argue that if a public employer had provided healthinsurance benefits to spouses, and had defined “spouses” to include domestic
partners, this would violate the amendment, but because the public employers here
did not refer to domestic partners in this manner, there is no violation. See
plaintiffs’ brief on appeal (Docket No. 133554), pp 27-29. We do not agree that
whether the amendment is violated is a function of what label a public employer
chooses to place on the beneficiaries of the benefits. Instead, the only pertinent
question is whether the public employer is recognizing a domestic partnership as a
union similar to marriage for any purpose.
13
consequences arise from that relationship in the form of health-insurance benefits.
Therefore, a domestic partnership is most certainly a union.
The next question is whether a domestic partnership is similar to a
marriage. Plaintiffs and the dissent argue that because the public employers here
do not bestow upon a domestic partnership all the legal rights and responsibilities
associated with marriage,5 the partnership is not similar to a marriage. Again, we
respectfully disagree.
“Similar” means “having a likeness or resemblance,
[especially] in a general way; having qualities in common[.]” Random House
Webster’s College Dictionary (1991); see also White v City of Ann Arbor, 406
Mich 554, 572-574; 281 NW2d 283 (1979). 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 marriage. If the marriage amendment were
construed to prohibit only the recognition of a union that possesses legal rights
and responsibilities identical to those that result from a marriage, the language “or
similar union” would be rendered meaningless, and an interpretation that renders
language meaningless must be avoided. Sweatt v Dep’t of Corrections, 468 Mich
172, 183; 661 NW2d 201 (2003) (opinion by Markman, J.).
5
Further, the
For example, the right to hold property as tenants by the entirety, MCL
557.71; an equal interest in property of every kind acquired during the marriage,
MCL 557.204; the right to pension and retirement benefits accrued during the
marriage, MCL 552.18; the right to claim an exemption on taxes for spousal
(continued . . .)
14
dissimilarities identified by plaintiffs are not dissimilarities pertaining to the
nature of the marital and domestic-partnership unions themselves, but are merely
dissimilarities pertaining to the legal effects that are accorded these relationships.
However, given that the marriage amendment prohibits the recognition of unions
similar to marriage “for any purpose,” the pertinent question is not whether these
unions give rise to all the same legal effects; rather, it is whether these unions are
being recognized as unions similar to marriage “for any purpose.”6
For these reasons, we respectfully disagree with the trial court’s conclusion
that the “criteria [used by the public employers] . . . do not recognize a union
‘similar to marriage’” because the “criteria, even when taken together, pale in
comparison to the myriad of legal rights and responsibilities accorded to those
with marital status.” Unpublished opinion of the Ingham Circuit Court, issued
( . . . continued)
inheritance, MCL 205.202; and the right to spousal veterans’ benefits, MCL
32.49d and MCL 36.31.
6
Indeed, we agree with plaintiffs and the dissent that marriages and
domestic partnerships are dissimilar in many respects. Marriages give rise to
many legal rights and responsibilities that domestic partnerships do not. However,
we believe the pertinent question for purposes of the marriage amendment is not
whether these relationships give rise to identical, or even similar, legal rights and
responsibilities, but whether these relationships are similar in nature in the context
of the marriage amendment. The dissent, post at 18 n 50, fails to recognize that
the pertinent question here is not whether marriages and domestic partnerships are
similar in the abstract, but whether these relationships are similar for purposes of
the marriage amendment, i.e., for the purpose of a constitutional provision that
prohibits the recognition of unions similar to marriage “for any purpose.” If they
are, then there can be no legal cognizance given to the similar relationship.
15
September 27, 2005 (Docket No. 05-368-CZ), p 9. Instead, we agree with the
Court of Appeals that “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.’”
Nat’l Pride, 274 Mich App at 163.7
All the domestic-partnership policies at issue here require the partners to be
of a certain sex, i.e., the same sex as the other partner.8 Similarly, Michigan law
requires married persons to be of a certain sex, i.e., a different sex from the other.
MCL 551.1 (“Marriage is inherently a unique relationship between a man and a
7
Plaintiffs argue that the marriage amendment was adopted in response to
Baker v State, 170 Vt 194; 744 A2d 864 (1999), in which the Vermont Supreme
Court held that that state is constitutionally required to extend to same-sex couples
in a civil union all the same benefits and protections that are provided to married
couples. Thus, plaintiffs contend that the amendment only prohibits the
establishment of “civil unions” that confer the same rights and obligations as does
a marriage. However, as explained earlier, a union does not have to confer all the
same rights and obligations as does a marriage in order to be “similar” to a
marriage. Moreover, it is no less plausible that the amendment was adopted in
response to a series of judicial decisions holding that public employers can extend
health-insurance benefits to employees’ domestic partners. See, e.g., Tyma v
Montgomery Co, 369 Md 497; 801 A2d 148 (2002); Heinsma v City of Vancouver,
144 Wash 2d 556; 29 P3d 709 (2001); Lowe v Broward Co, 766 So 2d 1199 (Fla
App, 2000); Crawford v Chicago, 304 Ill App 3d 818; 710 NE2d 91 (1999);
Slattery v New York City, 266 AD2d 24; 697 NYS2d 603 (1999); Schaefer v City
of Denver, 973 P2d 717 (Colo App, 1998).
8
Indeed, the Michigan State University policy specifically states that the
partners must be of the “same-sex and for this reason are unable to marry each
other under Michigan law[.]” [Emphasis added.]
16
woman.”).9 In addition, each of the domestic-partnership policies at issue in this
case requires that the partners not be closely related by blood.10
Similarly,
Michigan law requires that married persons not be closely related by blood. MCL
551.311 and MCL 551.4.12 Although there are, of course, many different types of
relationships in Michigan that are accorded legal significance-- e.g., debtor-
9
See also MCL 551.1 (“A marriage contracted between individuals of the
same sex is invalid in this state.”); MCL 551.2 (“[M]arriage is a civil contract
between a man and a woman . . . .”); MCL 551.3 (“A man shall not marry . . .
another man.”); MCL 551.4 (“A woman shall not marry . . . another woman.”);
MCL 551.272 (“This state recognizes marriage as inherently a unique relationship
between a man and a woman, . . . and therefore a marriage that is not between a
man and a woman is invalid in this state regardless of whether the marriage is
contracted according to the laws of another jurisdiction.”).
10
Three of these policies specifically refer to blood relationships that would
prevent “marriage.” The city of Kalamazoo’s policy provides that the partners
cannot be “related by blood closer than would prevent marriage[.]” The
University of Michigan’s policy provides that the partners cannot be “related to
each other by blood in a manner that would bar marriage[.]” Michigan State
University’s plan provides that the partners cannot be “related to one another
closely enough to bar marriage in Michigan[.]”
11
MCL 551.3 provides:
“A man shall not marry his mother, sister, grandmother, daughter,
granddaughter, stepmother, grandfather’s wife, son’s wife, grandson’s wife, wife’s
mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s
daughter, sister’s daughter, father’s sister, mother’s sister, or cousin of the first
degree, or another man.”
12
MCL 551.4 provides:
“A woman shall not marry her father, brother, grandfather, son, grandson,
stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband,
husband’s father, husband’s grandfather, husband’s son, husband’s grandson,
(continued . . .)
17
creditor, parent-child, landlord-tenant, attorney-client, employer-employee-marriages and domestic partnerships appear to be the only such relationships that
are defined in terms of both gender and the lack of a close blood connection.13 As
discussed earlier, “similar” means “having a likeness or resemblance, [especially]
in a general way; having qualities in common[.]” Random House Webster’s
College Dictionary (1991).
Marriages and domestic partnerships share two
obviously important, and apparently unique (at least in combination), qualities in
common.14 Because marriages and domestic partnerships share these “similar”
( . . . continued)
brother’s son, sister’s son, father’s brother, mother’s brother, or cousin of the first
degree, or another woman.”
13
At oral arguments, despite being asked several times to provide an
example of another relationship in Michigan defined in terms of both gender and
the lack of a close blood connection, plaintiffs’ counsel was unable to do so.
14
Although we believe that these are the core qualities that make marriages
and domestic partnerships similar, these relationships are similar in other respects
as well. For instance, marriages and domestic partnerships are relationships that
only two people may enter into. See MCL 551.5 (“No marriage shall be
contracted whilst either of the parties has a former wife or husband living, unless
the marriage with such former wife or husband, shall have been dissolved.”); OSE
policy (domestic partners must “[n]ot have a similar relationship with any other
person, and not have had a similar relationship with any other person for the prior
six months”); City of Kalamazoo policy (domestic partners must “[f]ile a
statement of termination of previous domestic partnership at least six (6) months
prior to signing another Certification of Domestic Partnership”); University of
Michigan policy (domestic partners must “[h]ave allowed at least six months to
pass since the dissolution of a previous same-sex domestic partnership in the
manner authorized by a municipality or other government entity”); Michigan State
University policy (domestic partners must not be “legally married to others [or
have] another domestic partner”).
(continued . . .)
18
( . . . continued)
In addition, persons involved in either marital or domestic-partnership
relationships must undertake obligations of mutual support. See MCL 750.161(1)
(“[A] person who being of sufficient ability fails, neglects, or refuses to provide
necessary and proper shelter, food, care, and clothing for his or her spouse . . . is
guilty of a felony . . . .”); OSE policy (domestic partners must “[b]e jointly
responsible for basic living expenses”); City of Kalamazoo policy (domestic
partners must “[s]hare financial arrangements and daily living expenses related to
their common welfare”); Michigan State University policy (domestic partners
must be “jointly responsible to each other for the necessities of life”). Although
the University of Michigan policy does not include a mutual-support obligation, it
does require the partners to “[h]ave registered or declared the Domestic
Partnership,” and the city of Ann Arbor’s “Declaration of Domestic Partnership”
requires the parties to declare that “we are in a relationship of mutual support” and
that “we share the common necessities of life.”
Further, both marital and domestic-partnership relationships require
agreements or contracts as a precondition. See MCL 551.2 (“[M]arriage is a civil
contract between a man and a woman, to which the consent of parties capable in
law of contracting is essential.”); OSE policy (domestic partners must “agree that
they are jointly responsible” “for basic living expenses”); City of Kalamazoo
policy (domestic partners must be “mentally competent to enter into a contract”
and must sign a domestic-partnership agreement); University of Michigan policy
(domestic partners must sign a domestic-partnership agreement); Michigan State
University Policy (domestic partners must “provide a signed ‘partnership
agreement’”). See part III(E) of this opinion.
Additionally, both marital and domestic-partnership relationships have a
minimum age requirement. See MCL 551.51 (“A marriage in this state shall not
be contracted by a person who is under 16 years of age . . . .”); OSE policy
(domestic partners must “[b]e at least 18 years of age”); City of Kalamazoo policy
(domestic partners must “[b]e at least 18”); Michigan State University policy
(domestic partners must be “at least 18 years of age”). Although the University of
Michigan’s policy does not include an age requirement, it does require the partners
to “[h]ave registered or declared the Domestic Partnership,” and the city of Ann
Arbor’s “Declaration of Domestic Partnership” requires the parties to be “at least
18 years of age . . . .”
Further, both marriages and domestic partnerships are relationships of an
indefinite duration. That is, they are both ongoing relationships that continue until
(continued . . .)
19
qualities, we believe that it can fairly be said that they “resembl[e]” one another
“in a general way.” Therefore, although marriages and domestic partnerships are
by no means identical, they are similar.
Because marriages and domestic
partnerships are the only relationships in Michigan defined in terms of both gender
and lack of a close blood connection, and, thus, have these core “qualities in
common,” we conclude that domestic partnerships are unions similar to
marriage.15
( . . . continued)
one of the parties takes affirmative action to terminate the relationship. See MCL
552.6 (one must file a complaint for divorce in order to dissolve a marriage); OSE
policy (domestic partners must “jointly share[] the same . . . residence . . . and
have an intent to continue doing so indefinitely”); City of Kalamazoo policy
(domestic partners must “[f]ile a statement of termination of previous domestic
partnership . . . prior to signing another Certification of Domestic Partnership”);
University of Michigan policy, (domestic partners must “[h]ave allowed at least
six months to pass since the dissolution of a previous same-sex domestic
partnership in the manner authorized by a municipality or other government
entity”); Michigan State University policy (domestic partners must be “in a longterm committed relationship, have been in the relationship for at least 6 months,
and intend to remain together indefinitely”).
Finally, it seems relevant that all but one of the domestic-partnership
policies at issue here require the partners to share a common residence, a
circumstance typically defining the marital relationship as well. See OSE policy
(domestic partners must “share[] the same regular and permanent residence”); City
of Kalamazoo policy, (domestic partners must “[s]hare a common residence”);
Michigan State University policy (domestic partners must “share a residence”).
15
It is noteworthy in this regard that the city of Kalamazoo’s policy
specifically states that “[i]t is the intent of this program to provide insurance
coverage and other benefits to domestic partners of the City of Kalamazoo
identical to those provided to spouses of City employees.” [Emphasis added].
Indeed, each of the four policies at issue here specifically refers to marriage or
spouses, and the Michigan State University policy specifically refers to marriage
(continued . . .)
20
D. “RECOGNIZED”
The next question concerns whether public employers are truly recognizing
a domestic partnership as a union similar to marriage when they provide healthinsurance benefits to domestic partners on the basis of the partnership.
“Recognize” is defined as “to perceive or acknowledge as existing, true, or
valid[.]” Random House Webster’s College Dictionary (1991). When a public
employer attaches legal consequence to a relationship, that employer is clearly
“recognizing” that relationship. That is, by providing legal significance to a
relationship, the public employer is acknowledging the validity of that
relationship. When public employers provide domestic partners health-insurance
benefits on the basis of the domestic partnership, they are without a doubt
recognizing the partnership.16
( . . . continued)
in three different provisions. If domestic partnerships are not similar to marriage,
why would there be the need in each of these agreements to invoke marriage as an
apparently analogous or comparable institution?
16
Plaintiffs themselves acknowledge that public employers recognize a
domestic partnership by providing health-insurance benefits to their employees’
domestic partners on the basis of the partnership. See plaintiffs’ brief on appeal
(Docket No. 133554), p 26 (“What these employers have recognized . . . is that a
relationship exists between one of their employees and another individual.”; “in
recognizing the existence of that relationship and making that relationship the
basis for the employment related benefits which are at issue”; “[T]hese institutions
may be giving recognition to the relationship that exists between their employees
and their partners.”) (emphasis added and omitted).
21
E. “ONLY AGREEMENT”
The next question concerns whether public employers are recognizing an
“agreement” when they provide health-insurance benefits to domestic partners.
An “agreement” is “the act of agreeing or of coming to a mutual arrangement.”
Id. The city of Kalamazoo’s, the University of Michigan’s, and Michigan State
University’s policies require putative partners to sign a domestic-partnership
agreement. The OSE’s policy requires partners to “agree that they are jointly
responsible” “for basic living expenses . . . .” Obviously, if two people have
decided to sign a domestic-partnership agreement or have agreed to be jointly
responsible for basic living expenses, they have come to a mutual arrangement.17
Therefore, public employers recognize an agreement when they provide healthinsurance benefits to domestic partners on the basis of a domestic partnership.
However, the marriage amendment specifically states that the “only”
agreement that can be recognized as a marriage or similar union is the union of
one man and one woman. “Only” means “the single one . . . of the kind; lone;
sole[.]” Random House Webster’s College Dictionary (1991). Therefore, a single
agreement can be recognized within the state of Michigan as a marriage or similar
17
In addition, all the policies except the University of Michigan’s require
partners to live together. When two people decide to live together, they have
clearly reached a “mutual arrangement.”
22
union, and that single agreement is the union of one man and one woman. A
domestic partnership does not constitute such a recognizable agreement.
F. “FOR ANY PURPOSE”
Furthermore, the marriage amendment specifically prohibits recognizing
“for any purpose” a union that is similar to marriage but is not a marriage. “Any”
means “every; all[.]” Id. Therefore, if there were any residual doubt regarding
whether the marriage amendment prohibits the recognition of a domestic
partnership for the purpose at issue here, this language makes it clear that such a
recognition is indeed prohibited “for any purpose,” which obviously includes for
the purpose of providing health-insurance benefits. Whether the language “for
any purpose” is essential to reach the conclusion that health-insurance benefits
cannot be provided under the instant circumstances, or merely punctuates what is
otherwise made clear in the amendment, the people of this state could hardly have
made their intentions clearer.
G. “BENEFITS OF MARRIAGE”
The marriage amendment begins with a statement of its purpose that is
effectively a preamble: “To secure and preserve the benefits of marriage for our
society and for future generations of children . . . .” Plaintiffs argue that the
marriage amendment does not prohibit public employers from providing healthinsurance benefits to their employees’ qualified same-sex domestic partners
23
because health-insurance benefits do not constitute a benefit of marriage.18
However, the marriage amendment contains more than just a statement of purpose.
In full, it 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.” The latter-- the operative-- part of this provision sets forth how the
ratifiers intended to go about achieving the purposes set forth in the first part,
“secur[ing] and preserv[ing] the benefits of marriage . . . .” This operative part
specifies that public employers must not recognize domestic partnerships for any
purpose. That is, the first part of the amendment states its purpose, and the second
part states the means by which this purpose is to be achieved. Doubtless, there are
those who would disagree about the efficacy of achieving the former purpose by
18
Reasonable people doubtlessly can disagree regarding whether healthinsurance benefits are or are not a benefit of marriage. On the one hand, one can
argue that health-insurance benefits are not a benefit of marriage because they
arise out of the employer-employee relationship rather than the marital
relationship, as demonstrated by the fact that not all married couples have healthinsurance benefits. On the other hand, one can argue that they are a benefit of
marriage, as demonstrated by the fact that a significant number of people obtain
such benefits from their spouses’ employers while they would be unable to obtain
such benefits if they were not married. Resolution of this disagreement depends,
in part, on whether the term “benefit of marriage” implies an exclusive benefit or
merely a typical benefit. Nonetheless, for the reasons set forth in this part of our
opinion, we believe that the people have resolved this disagreement, or at least
rendered it moot, in the operative part of the amendment. There, it is made clear
that domestic partnerships will not be given legal cognizance “for any purpose,”
including presumably for the purpose of providing health-insurance benefits.
24
the latter means. However, it is not for this Court to decide whether there are
superior means for “secur[ing] and preserv[ing] the benefits of marriage,” or
indeed whether the means chosen in the amendment are ineffectual or even
counterproductive. The people of this state have already spoken on this issue by
adopting this amendment.19
They have decided to “secure and preserve the
benefits of marriage” by ensuring that unions similar to marriage are not
recognized in the same way as a marriage for any purpose.20
19
It is also of some interest that the preamble concerning the benefits of
marriage was not even on the ballot when the amendment was ratified. The only
language on the ballot was the operative part of the amendment. Although we
cannot conclude from this fact that the people did not adopt the entire amendment,
such a ballot presentation seems to underscore the traditional view of preamble
provisions. See n 20 infra.
20
This view of the preamble is consistent with the well-established rule that
“the preamble is no part of the act, and cannot enlarge or confer powers, nor
control the words of the act, unless they are doubtful or ambiguous . . . .” Yazoo &
M V R Co v Thomas, 132 US 174, 188; 10 S Ct 68; 33 L Ed 302 (1889); see also
Coosaw Mining Co v South Carolina, 144 US 550, 563; 12 S Ct 689; 36 L Ed 537
(1892) (“While express provisions in the body of an act cannot be controlled or
restrained by the . . . preamble, [it] may be referred to when ascertaining the
meaning of a [provision] which is susceptible of different constructions.”). That
is, a “‘preamble no doubt contributes to a general understanding of a [provision],
but it is not an operative part of the [provision],’” and “‘[w]here the enacting or
operative parts of a [provision] are unambiguous, the meaning of the [provision]
cannot be controlled by language in the preamble.’” Nat’l Wildlife Federation v
EPA, 351 US App DC 42, 57-58; 286 F3d 554 (2002) (citations omitted); see also
United States v Emerson, 270 F3d 203, 233 n 32 (CA 5, 2001) (“‘[T]hough the
preamble cannot control the enacting part of a [provision], which is expressed in
clear and unambiguous terms, yet, if any doubt arise on the words of the enacting
part, the preamble may be resorted to, to explain it.’”) (citation omitted); Planned
Parenthood of Minnesota v Minnesota, 910 F2d 479, 482-483 (CA 8, 1990);
White v Investors Mgt Corp, 888 F2d 1036, 1042 (CA 4, 1989); Atlantic Richfield
(continued . . .)
25
H. EXTRINSIC EVIDENCE
Plaintiffs and the dissent argue that Citizens for the Protection of Marriage,
an organization responsible for placing the marriage amendment on the 2004
ballot and a primary supporter of this initiative during the ensuing campaign,
published a brochure that indicated that the proposal would not preclude public
employers from offering health-insurance benefits to their employees’ domestic
partners. However, such extrinsic evidence can hardly be used to contradict the
unambiguous language of the constitution.
American Axle & Mfg, Inc v
Hamtramck, 461 Mich 352, 362; 604 NW2d 330 (2000) (“[R]eliance on extrinsic
evidence was inappropriate because the constitutional language is clear.”). As
Justice Cooley explained:
The object of construction, as applied to a written
constitution, is to give effect to the intent of the people in adopting it.
In the case of all written laws, it is the intent of the lawgiver that is
to be enforced. But this intent is to be found in the instrument
itself. . . . “Where a law is plain and unambiguous, whether it be
expressed in general or limited terms, the [lawgiver] should be
intended to mean what they have plainly expressed, and
( . . . continued)
Co v United States, 764 F2d 837, 840 (Fed Cir, 1985); Hughes Tool Co v Meier,
486 F2d 593, 596 (CA 10, 1973). Similarly, see Parker v Dist of Columbia, 375
US App DC 140, 159-160; 478 F3d 370 (2007) (reasoning that the preamble of
the Second Amendment [“[a] well regulated Militia, being necessary to the
security of a free State,”] could not override the clear substantive guarantee of the
Second Amendment [“the right of the people to keep and bear Arms, shall not be
infringed”]), cert gtd sub nom Dist of Columbia v Heller, ___ US ___; 128 S Ct
645 (2007); see also Jacobson v Massachusetts, 197 US 11, 22; 25 S Ct 358; 49 L
Ed 643 (1905) (holding that the preamble of the United States Constitution is not a
source of governmental power).
26
consequently no room is left for construction.”
[Cooley,
Constitutional Limitations (1st ed), p 55 (emphasis in the original),
quoted in American Axle, 461 Mich at 362.]
When the language of a constitutional provision is unambiguous, resort to
extrinsic evidence is prohibited, and, as discussed earlier, the language of the
marriage amendment is unambiguous.21
In Michigan Civil Rights Initiative v Bd of State Canvassers, 475 Mich 903,
903 (2006) (Markman, J., concurring), in which it was alleged that numerous
petition signatures had been obtained in support of placing the Michigan Civil
Rights Initiative (MCRI) on the ballot by circulators who misrepresented the
MCRI, it was emphasized that “the signers of these petitions did not sign the oral
21
Contrary to the dissent’s contention, post at 12 n 34, the fact that the
amendment does not explicitly state that public employers are prohibited from
providing health benefits to their employees’ domestic partners does not mean that
the amendment is “ambiguous.” That is, the fact that a constitutional provision
does not explicitly set forth every specific action that is prohibited does not mean
that such a provision is ambiguous. If that were the case, almost all constitutional
provisions would be rendered ambiguous. Rather, as this Court explained in
Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004):
[A] provision of the law is ambiguous only if it
“irreconcilably conflict[s]” with another provision or when it is
equally susceptible to more than a single meaning. In lieu of the
traditional approach to discerning “ambiguity”—one in which only a
few provisions are truly ambiguous and in which a diligent
application of the rules of interpretation will normally yield a
“better,” albeit perhaps imperfect, interpretation of the law—the
dissent would create a judicial regime in which courts would be
quick to declare ambiguity and quick therefore to resolve cases and
controversies on the basis of something other than the words of the
law. [Citation omitted; emphasis in the original.]
27
representations made to them by circulators; rather, they signed written petitions
that contained the actual language of the MCRI.” Similarly, the voters here did
not vote for or against any brochure produced by Citizens for the Protection of
Marriage; rather, they voted for or against a ballot proposal that contained the
actual language of the marriage amendment.22
22
As an aside, this brochure did not render a verdict on the instant
controversy. Rather, it stated:
Marriage is a union between a husband and wife. Proposal 2
will keep it that way. This is not about rights or benefits or how
people choose to live their life. This has to do with family, children
and the way people are. It merely settles the question once and for
all what marriage is—for families today and future generations.
We do not read this language as resolving that the marriage amendment would not
prohibit domestic partners from obtaining health-insurance benefits. Moreover,
statements made by other supporters of the amendment stated that partnership
benefits would, in fact, be prohibited by the amendment. See amicus curiae brief
of the American Family Association of Michigan, pp 6-8.
In addition to the brochure, plaintiffs and the dissent rely on statements
made by counsel for Citizens for the Protection of Marriage to the Board of State
Canvassers in which he apparently asserted that the amendment would not prohibit
public employers from providing health-insurance benefits to domestic partners.
Post at 9-10, quoting the transcript of the August 23, 2004, hearing before the
board, reproduced in the Governor’s appendix (Docket No. 133429), p 68a.
Whatever the accuracy of this characterization, cf. amicus curiae brief of the
American Family Association of Michigan, p 8 n 2, it should bear little repeating
that the people ultimately did not cast their votes to approve or disapprove
counsel’s, or any other person’s, statements concerning the amendment; they
voted to approve or disapprove the language of the amendment itself.
Moreover, given that the “Board of State Canvassers . . . has the authority
only to ‘ascertain if the petitions have been signed by the requisite number of
(continued . . .)
28
Moreover, like the Citizens for the Protection of Marriage, the Michigan
Civil Rights Commission issued a statement asserting:
If passed, Proposal 2 would result in fewer rights and benefits
for unmarried couples, both same-sex and heterosexual, by banning
civil unions and overturning existing domestic partnerships.
Banning domestic partnerships would cause many Michigan families
to lose benefits such as health and life insurance, pensions and
hospital visitation rights.[23]
( . . . continued)
qualified and registered electors,’” Michigan Civil Rights Initiative, 475 Mich at
903 (Markman, J., concurring), quoting MCL 168.476(1), we are not sure why the
dissent places particular emphasis, post at 9 n 22, on the fact that this statement
was made before the Board of State Canvassers.
23
Other opponents made similar statements concerning the adverse
consequences of the amendment. See, generally, amicus curiae brief of the
American Family Association of Michigan, pp 9-12. The dissent contends that
“[i]t is reasonable to assume that the public relied heavily on the proponents of the
amendment to explain its meaning and scope.” Post at 14 n 35. We see no basis
for this argument. Contrary to the dissent, it is no more likely that the voters relied
on proponents’ views rather than opponents’ views of the amendment. Indeed,
one might conceivably think that at least some of the people would be
significantly more likely to rely on an assessment of the amendment from an
official agency of the government than from a private organization with an
obvious stake in the passage of the amendment. Similarly, it might be expected
that at least some might be influenced by the characterizations of newspapers such
as the Detroit Free Press, in which its political columnist stated in a questionanswer format on September 13, 2004:
Q. What about employee benefits accorded to domestic
partners and their dependents by some municipalities and public
universities?
A. Proponents and opponents of the amendment say they
would be prohibited to the extent they mimic benefits for married
employees.
(continued . . .)
29
Therefore, all that can reasonably be discerned from the extrinsic evidence is this:
before the adoption of the marriage amendment, there was public debate regarding
its effect, and this debate focused in part on whether the amendment would affect
domestic-partnership benefits. The people of this state then proceeded to the
polls, they presumably assessed the actual language of the amendment in light of
this debate, and a majority proceeded to vote in favor.24 The role of this Court is
not to determine who said what about the amendment before it was ratified, or to
speculate about how these statements may have influenced voters. Instead, our
responsibility is, as it has always been in matters of constitutional interpretation, to
determine the meaning of the amendment’s actual language.25
( . . . continued)
Because we cannot read voters’ minds to determine whose views they relied on
and whose they ignored-- and because in the end this would not be relevant-- we
must look to the actual language of the amendment. The dissent inadvertently
illustrates the principal infirmity of reliance upon legislative history, namely that it
affords a judge essentially unchecked discretion to pick and choose among
competing histories in order to select those that best support his own predilections.
In relying on what she describes as the “wealth of extrinsic information available,”
post at 12 n 34, the dissenting justice refers only to information supporting her
own viewpoint, while disregarding the abundant “wealth of extrinsic information”
that does not.
24
It perhaps can also be discerned that supporters of legislative and
constitutional initiatives often tend to downplay the effect of such initiatives
during public debate, while opponents tend to overstate their effect.
25
The dissent chastises us for failing to consider extrinsic evidence, given
that we considered such evidence in People v Nutt, 469 Mich 565, 588-592; 677
NW2d 1 (2004), and Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich 146, 156160; 665 NW2d 452 (2003). Post at 13 n 34. In those cases, we considered the
Official Record of the Constitutional Convention and the Address to the People.
(continued . . .)
30
When the dissent accuses the majority of “condon[ing] and even
encourag[ing] the use of misleading tactics in ballot campaigns,” post at 21, we
can only surmise from this that the dissent believes that this Court must defer in its
constitutional interpretations, not to the language of the constitution, but to myriad
statements from private individuals and organizations, some of which may have
ascribed meanings to the constitution utterly at odds with its actual language. We
do not believe the people of this state have acquiesced in this delegation of judicial
responsibility from the courts to private interest groups.
I. OTHER STATES
Finally, none of the decisions from other states on which plaintiffs rely is
helpful because none involves the specific language contained in Michigan’s
marriage amendment. See, e.g., State v Carswell, 114 Ohio St 3d 210; 871 NE2d
547 (2007) (constitutional provision, Ohio Const art 15, § 11, providing: “Only a
union between one man and one woman may be a marriage valid in or recognized
by this state and its political subdivisions.”); Knight v Superior Court of
( . . . continued)
These are hardly comparable to campaign statements made by private
organizations. Further, we recognized in those cases that “constitutional
convention debates and the Address to the People . . . are . . . not controlling.”
Lapeer Co Clerk, 469 Mich at 156. To say the least, neither case stands for the
dissent’s apparent proposition that any stray bit of historical flotsam or jetsam can
serve as guidance in giving meaning to the constitution. In a similar vein, the
dissent would trump the actual language of the constitution by relying on a
telephone survey conducted three months before the election that indicated that a
majority of those surveyed were not opposed to domestic-partnership benefits.
31
Sacramento Co, 128 Cal App 4th 14; 26 Cal Rptr 3d 687 (2005) (statute, Cal Fam
Code 308.5, providing that “[o]nly marriage between a man and a woman is valid
or recognized in California”); Devlin v Philadelphia, 580 Pa 564; 862 A2d 1234
(2004) (statute, 23 Pa Cons Stat 1704, providing that “marriage shall be between
one man and one woman”); Tyma v Montgomery Co, 369 Md 497; 801 A2d 148
(2002) (statute, Md Code Ann Fam Law 2-201, providing that “[o]nly a marriage
between a man and a woman is valid in this State”); Heinsma v City of Vancouver,
144 Wash 2d 556; 29 P3d 709 (2001) (statute, Wash Rev Code 26.04.010(1),
providing that “[m]arriage is a civil contract between a male and a female”); Lowe
v Broward Co, 766 So 2d 1199 (Fla App, 2000) (statute, Fla Stat 741.212(1),
providing that “[m]arriages between persons of the same sex entered into in any
jurisdiction . . . are not recognized for any purpose in this state”); Crawford v
Chicago, 304 Ill App 3d 818; 710 NE2d 91 (1999) (statute, 750 Ill Comp Stat
5/201, providing that a marriage is valid if it is “between a man and a woman”);
Slattery v New York City, 266 AD2d 24; 697 NYS2d 603 (1999) (statute, NY Dom
Rel Law 12, providing that “the parties must solemnly declare in the presence of a
clergyman or magistrate and the attending witness or witnesses that they take each
other as husband and wife”); Schaefer v City of Denver, 973 P2d 717 (Colo App,
1998) (statute, Colo Rev Stat 14-2-104(1)(b), providing that a marriage is valid if
it is “only between one man and one woman”). As the Washington Court of
Appeals explained, “Michigan’s marriage amendment is unique from other
32
jurisdictions because it prohibits the recognition of not only same-sex marriages,
but also ‘similar unions.’” Leskovar v Nickels, 140 Wash App 770, 780; 166 P3d
1251 (2007). “Washington’s marriage statute prohibits marriage by ‘persons other
than a male and a female.’ It is distinct from Michigan’s marriage amendment,
and does not prohibit the recognition of ‘similar unions for any purpose.’” Id.
The same is true of all the cases cited by plaintiffs-- each is interpreting a
provision of law that is simply too different from Michigan’s marriage amendment
to be of persuasive value in determining how this state’s amendment should be
interpreted.
IV. CONCLUSION
The trial court held that providing health-insurance benefits to domestic
partners does not violate the marriage amendment because public employers are
not recognizing domestic partnerships as unions similar to marriage, given the
significant distinctions between the legal effects accorded to these two unions.
However, given that the marriage amendment prohibits the recognition of unions
similar to marriage “for any purpose,” the pertinent question is not whether these
unions give rise to all of the same legal effects; rather, it is whether these unions
are being recognized as unions similar to marriage “for any purpose.”
Recognizing this and concluding that these unions are indeed being recognized as
similar unions “for any purpose,” the Court of Appeals reversed. We affirm its
33
judgment.26 That is, we conclude that the marriage amendment, Const 1963, art 1,
§ 25, which states that “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,”
prohibits public employers from providing health-insurance benefits to their
employees’ qualified same-sex domestic partners.
Stephen J. Markman
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
26
Because the other issues addressed by the Court of Appeals were not
appealed in this Court, we do not address these.
34
STATE OF MICHIGAN
SUPREME COURT
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,
Plaintiffs-Appellees,
v
No. 133429
GOVERNOR OF MICHIGAN,
Defendant-Appellant,
and
CITY OF KALAMAZOO,
Defendant-Appellee,
and
ATTORNEY GENERAL,
Intervening DefendantAppellee.
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,
Plaintiffs-Appellants,
v
No. 133554
GOVERNOR OF MICHIGAN and CITY
OF KALAMAZOO,
Defendants,
2
and
ATTORNEY GENERAL,
Intervening DefendantAppellee,
KELLY, J. (dissenting).
The issue we decide is whether the so-called “marriage amendment”1 of the
Michigan Constitution prevents public employers from voluntarily providing
health benefits to their employees’ same-sex domestic partners. The majority has
determined that it does. I disagree.
First, the language of the amendment itself prohibits nothing more than the
recognition of same-sex marriages or similar unions. 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. Second, the
circumstances surrounding the adoption of the amendment strongly suggest that
Michigan voters did not intend to prohibit public employers from offering healthcare benefits to their employees’ same-sex partners. The majority decision does
not represent “the law which the people have made, [but rather] some other law
1
Const 1963, art 1, § 25.
3
which the words of the constitution may possibly be made to express.”2
Accordingly, I dissent.
THE UNDERLYING FACTS
On November 2, 2004, a majority of Michigan voters chose to amend the
Michigan Constitution to add § 25 to article 1.3 This amendment is sometimes
termed the “marriage amendment.” It 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.
At the time the amendment was adopted, several public employers in the
state had policies that extended health-care benefits to their employees’ same-sex
domestic partners. Also, the Office of the State Employer had negotiated an
agreement that was to provide domestic-partner benefits to some state employees.4
In March 2005, in response to an inquiry, the Attorney General issued a
formal opinion that concluded that the amendment prohibited public employers
from granting benefits to their employees’ same-sex partners.5 Five days after the
2
People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).
3
The amendment became effective December 18, 2004.
4
After the amendment was passed, the interested parties entered into an
agreement not to submit the proposed contract to the Civil Service Commission
until a court determined whether the benefits were lawful.
5
OAG ,___, No 7,171, p ___ (March 16, 2005); 2005 Mich Reg 5, p 20.
4
Attorney General issued the opinion, National Pride At Work, Inc., which is a
constituency group of the AFL-CIO, and 41 individuals6 filed the instant lawsuit
against Governor Granholm. The lawsuit sought a declaratory judgment that the
amendment does not prohibit public employers from providing the benefits.7
The Attorney General, acting on the Governor’s behalf, moved to dismiss
the suit on the basis that plaintiffs lacked standing. The Governor then obtained
separate counsel and withdrew the motion.
She proceeded to file a brief
supporting plaintiffs’ position. This prompted the Attorney General to intervene
as a defendant.
Plaintiffs moved for summary disposition, arguing that the amendment does
not prohibit public employers from voluntarily providing the benefits at issue.
The trial court agreed and granted the motion.
The court found that the
amendment does not prohibit the benefits because “[b]y voluntarily providing
6
Plaintiffs include employees of (1) the state of Michigan, (2) the city of
Kalamazoo, (3) the University of Michigan, (4) Michigan State University, (5)
Eastern Michigan University, (6) Wayne State University, and (7) the
Eaton/Clinton/Ingham Community Mental Health Board.
7
Shortly after plaintiffs filed the suit, the city of Kalamazoo indicated that
it would not provide benefits to same-sex domestic partners beginning in 2006
unless a court ruled them lawful. In response, Kalamazoo was added to the instant
lawsuit as a defendant.
5
domestic partner health care benefits to an employer-defined group of people, the
Plaintiffs’ employers are not ‘recognizing a marriage or similar union.’”8
The Attorney General appealed the trial court’s decision in the Court of
Appeals and moved for a stay. The Court of Appeals granted the stay and, in a
unanimous published opinion, reversed the trial court’s decision.
The panel
concluded that the amendment prohibited public employers from granting health
benefits to their employees’ same-sex domestic partners.9
This Court granted leave to appeal to consider the issue.10
TWO KEY CONSIDERATIONS
As always, when interpreting the Michigan Constitution, this Court’s “duty
is to enforce the law which the people have made, and not some other law which
the words of the constitution may possibly be made to express.”11 The initial step
in determining what law the people have made is to examine the specific language
used. In so doing, “‘“it is not to be supposed that [the people] have looked for any
8
Nat’l Pride at Work, Inc v Governor, unpublished opinion of the Ingham
Circuit Court, issued September 27, 2005 (Case No. 05-368-CZ). The trial court
did not consider the standing issue because the Attorney General did not raise the
issue after the Governor withdrew her motion.
9
Nat’l Pride at Work, Inc v Governor, 274 Mich App 147; 732 NW2d 139
(2007).
10
478 Mich 862 (2007).
11
Harding, 53 Mich at 485.
6
dark or abstruse meaning in the words employed, but rather that they have
accepted them in the sense most obvious to the common understanding, and
ratified the instrument in the belief that that was the sense designed to be
conveyed.”’”12 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.”13
THE CIRCUMSTANCES SURROUNDING THE ADOPTION OF THE AMENDMENT
Beginning in 1993 with the Hawaii Supreme Court case of Baehr v
Lewin,14 a number of state courts and state legislatures joined in a national
discussion on the constitutionality of barring same-sex marriages. In Baehr, the
court held that Hawaii’s statute limiting marriage to one man and one woman was
presumptively unconstitutional under the Hawaii Constitution. It held that the
state had the burden of showing a compelling state interest in limiting marriage to
male/female unions.15 Following Baehr, the Vermont Supreme Court issued a
decision in 1999 ordering the state legislature to create a legal form that would
12
Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185
NW2d 9 (1971) (citations omitted).
13
Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460
Mich 75, 85; 594 NW2d 491 (1999).
14
Baehr v Lewin, 74 Hawaii 530; 852 P2d 44 (1993).
15
Id. at 580.
7
afford same-sex couples a status similar to that of married couples.16 Then, in
2003, in the famous case of Goodridge v Dep’t of Pub Health,17 the Massachusetts
Supreme Judicial Court held that barring two people of the same sex from
marrying violated the equal protection guarantees of the Massachusetts
Constitution.18
That same year, the California Legislature granted registered
domestic partners “the same rights, protections, and benefits . . . as are granted to
and imposed upon spouses.”19
It was against this background that the Michigan Christian Citizens
Alliance commenced an initiative to amend the Michigan Constitution to bar
same-sex marriage.
The alliance formed the Citizens for the Protection of
Marriage committee (CPM) “in response to the debate taking place across the
country over the definition of marriage.”20 The committee’s stated goal was to
place the issue of same-sex marriage on the ballot so that Michigan voters would
have the ultimate say in the matter.21
16
Baker v State, 170 Vt 194, 197-198; 744 A2d 864 (1999).
17
Goodridge v Dep’t of Pub Health, 440 Mass 309; 798 NE2d 941 (2003).
18
Id. at 312, 342.
19
Cal Fam Code 297.5(a).
20
Plaintiff’s appendix (Docket No. 133554), p 95c, reproducing a CPM
webpage no longer available online.
21
Id.
8
During CPM’s campaign, concerns arose regarding exactly what the
amendment would prohibit.
CPM attempted to address these concerns at an
August 2004 public certification hearing before the Board of State Canvassers.22
Specifically, CPM addressed whether the amendment, which it had petitioned to
place on the ballot, would bar public employers from providing benefits to their
employees’ same-sex domestic partners. CPM’s representative, attorney Eric E.
Doster, assured the board that it would not. Mr. Doster stated:
[T]here would certainly be nothing to preclude [a] public
employer from extending [health-care] benefits, if they so chose, as
a matter of contract between employer and employee, to say
domestic dependent benefits . . . [to any] person, and it could be
your cat. So they certainly could extend it as a matter of contract.
***
[A]n employer, as a matter of contract between employer and
employee, can offer benefits to whomever the employer wants to.
And if it wants to be my spouse, if it wants to be my domestic
partner—however that’s defined under the terms of your contract or
my cat, the employer can do that . . . .[23]
Mr. Doster reiterated this point several times throughout the proceedings.
I’d hate to be repetitive, but again, that’s a matter of contract
between an employer and employee. And if the employer wanted to
do that, offer those benefits, I don’t see how this language affects
that. If the language just said “marriage” or “spouse,” then I would
22
In order for a proposal to be placed on the ballot, the Board of State
Canvassers must certify it. MCL 168.476. Thus, the certification hearing was a
very important step for CPM.
23
The Governor’s appendix (Docket No. 133429), p 67a-68a, reproducing
the transcript of the August 23, 2004, hearing.
9
agree with you. But there’s nothing in this language that I would
interpret that would say that that somehow would go beyond that.[24]
In its campaign to win over voters, CPM made a number of additional
public statements that were consistent with Mr. Doster’s testimony before the
Board of State Canvassers. For example, Marlene Elwell, the campaign director
for CPM, was quoted in USA Today as stating that “[t]his has nothing to do with
taking benefits away. This is about marriage between a man and a woman.”25
Similarly, CPM communications director Kristina Hemphill was quoted as stating
that “[t]his Amendment has nothing to do with benefits . . . . It’s just a diversion
from the real issue.”26
CPM also made clear on its webpage that it was “not against anyone, [CPM
is] for defining marriage as the union of one man and one woman. Period.”27
Instead, CPM contended that its reason for proposing the amendment was its
belief that “[n]o one has the right to redefine marriage, to change it for everyone
24
Id. at 69a.
25
Charisese Jones, Gay marriage on ballot in 11 states, USA Today,
October 15, 2004, p A.3.
26
John Burdick, Marriage issue splits voters, Holland Sentinel, October 30,
2004.
27
Plaintiffs’ appendix (Docket No. 133554), reproducing a CPM webpage
no longer available online.
10
else. Proposal 2 will keep things as they are and as they’ve been. And by
amending Michigan’s constitution, we can settle this question once and for all.”28
CPM even distributed a brochure that asserted that the amendment would
not affect any employer health-benefit plan already in place. The brochure stated:
Proposal 2 is Only about Marriage
Marriage is a union between a husband and wife. Proposal 2 will
keep it that way. This is not about rights or benefits or how people
choose to live their life. This has to do with family, children and the
way people are. It merely settles the question once and for all what
marriage is—for families today and future generations.[29]
It can be assumed that the clarifications offered by CPM, the organization
that successfully petitioned to place the proposal on the ballot, carried
considerable weight with the public. Its statements certainly encouraged voters
who did not favor a wide-ranging ban to vote for what they were promised was a
very specific ban on same-sex marriage.
And a poll conducted shortly before the election indicates that CPM’s
public position was in line with public opinion. The poll results indicated that,
whereas the public was in favor of banning same-sex marriage, it was not opposed
to employer programs granting benefits to same-sex domestic partners.
28
CPM’s brochure, Protect Marriage, reproduced in the Governor’s
appendix (Docket No. 133429), p 30a.
29
Id.
11
In an August 2004 poll of 705 likely voters,30 50 percent of respondents
favored the amendment while only 41 percent planned to vote against it. But 70
percent specifically disapproved of making domestic partnerships and civil unions
illegal.31
Sixty-five percent disapproved of barring cities and counties from
providing domestic-partner benefits.32 And 63 percent disapproved of prohibiting
state universities from offering domestic-partner benefits.33
Accordingly, the circumstances surrounding the adoption of the amendment
indicate that the lead proponents of the amendment worked hard to convince
voters to adopt it.34 CPM told voters that the “marriage amendment” would bar
30
For full poll results, see the August 3, 2004, letter from Lake Snell Perry
& Associates, Inc., to interested parties, reproduced as exhibit 10 of the amici
curiae brief on appeal of various law professors at Michigan public universities.
31
Twenty-four percent approved of making domestic partnerships and civil
unions illegal.
32
Twenty-seven percent approved of barring cities and counties from
providing domestic-partner benefits.
33
Twenty-nine percent approved of prohibiting state universities from
offering domestic-partner benefits.
34
The majority claims that I rely on extrinsic sources to trump the
amendment’s language. As I will explain in more detail, my interpretation is
consistent with the amendment’s language, not a trump card.
The majority attempts to justify its disregard of the extrinsic sources
available by concluding that the “marriage amendment” is unambiguous. As can
be discerned by any reader of the amendment, the vague language used is
ambiguous in regard to the resolution of the question presented by this case.
Clearly, the amendment does not unambiguously state whether public employers
are barred from providing health benefits to their employees’ same-sex partners.
(continued . . .)
12
same-sex marriage but would not prohibit public employers from providing the
benefits at issue. It is reasonable to conclude that these statements led the ratifiers
to understand that the amendment’s purpose was limited to preserving the
traditional definition of marriage.35 And it seems that a majority of likely voters
( . . . continued)
It says nothing about these benefits. Accordingly, it is necessary to engage in
judicial construction to resolve that question.
Since the amendment is ambiguous in regard to the proper resolution of the
issue presented, I disagree with the majority’s choice to ignore the extrinsic
sources available. Because our goal is to discern the law that the people have
made, when extrinsic sources exist that shed light on this intent, I believe it is
essential to consider them. And given that every United States Supreme Court
justice sitting today considers sources outside the language in ascertaining the
correct interpretation of a constitutional provision, my methods are hardly
unusual. Accordingly, contrary to the majority’s allegations, it is not a “delegation
of judicial responsibility from the courts to private interest groups” to consider
these extrinsic sources. Ante at 31. It is a widely accepted means of
interpretation.
But, my personal disagreement with the majority’s methodology aside, I
find remarkable its decision to turn a blind eye to the wealth of extrinsic
information available. Consider the majority’s recent forays into constitutional
interpretation: The majority did not hesitate to consult outside sources when
interpreting a constitutional provision in People v Nutt, 469 Mich 565, 588-592;
677 NW2d 1 (2004), and in Lapeer Co Clerk v Lapeer Circuit Court, 469 Mich
146, 156-160; 665 NW2d 452 (2003). Though the majority protests my
characterization of its actions in these cases, the simple fact remains that its modus
operandi is to consider extrinsic sources in some cases but not in others. The
seemingly inconsistent approaches of the majority are baffling.
35
It has been pointed out that, before the election, opponents of the
amendment suggested that the amendment would prohibit the benefits at issue.
These statements are relevant. But it does not follow that the opponents’
suggestion coupled with the election results shows that the people actually
intended to prohibit the benefits. First, in determing a law’s meaning, one
logically assumes that the statements of its drafters and lead supporters carry more
(continued . . .)
13
favored an amendment that would bar same-sex marriage but would go no further.
Therefore, this Court’s majority errs by holding that the amendment not only bars
same-sex marriage but also prohibits the benefits at issue.
The error of the
majority decision is confirmed by examining the amendment’s language.
THE LANGUAGE OF THE “MARRIAGE AMENDMENT”
The “marriage amendment” 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.[36]
It has two parts. The first lists the amendment’s purpose: “[t]o secure and
preserve the benefits of marriage for our society and for future generations of
( . . . continued)
weight than the concerns of those who voted against it. Second, it was the
opponents’ suggestion that prompted the proponents to publicly state that the
amendment would not bar the benefits at issue. Because the proponents’
statements were in response to the opponents’ suggestion, the statements become
even stronger indicators of voter intent. The opponents’ suggestion indicates that
there was confusion regarding what the amendment would prohibit. It is
reasonable to assume that the public relied heavily on the proponents of the
amendment to explain its meaning and scope.
The majority is “perplexed” by my conclusion that it is reasonable to afford
the statements of the proponents more weight than the statements of the
opponents. It appears that they do not agree with me that, if one wishes to
understand the meaning of an author’s words, the best source is the author himself.
The best source is not the author’s critics. Similarly, I believe it reasonable to
conclude that, in deciding what the amendment’s language meant, the people
turned to the organization that proposed the amendment. They did not turn to the
organizations that were opposed to its approval.
36
Const 1963, art 1, § 25.
14
children . . . .” The second discusses how that purpose is to be accomplished.
Both are relevant in determining whether public employers are prohibited from
providing the benefits at issue in this case.
The “marriage amendment” undertakes to accomplish its purpose of
protecting the benefits of marriage by providing that “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.” Through this language, the amendment prohibits
the recognition of same-sex “[1] marriage or [2] similar union[s].”
It is clear that the employee-benefit programs at issue do not recognize
same-sex marriage. Therefore, if the programs violate the amendment, it must be
by recognizing a union similar to marriage.
For a union to be “similar” to
marriage, it must share the same basic characteristics or qualities of a marriage.37
Thus, in deciding whether the public employers violate the amendment by
providing the benefits at issue, we must first consider what a marriage entails.
Marriage has been called “the most important relation in life . . . .”38 It “is a
coming together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not causes;
37
See OAG, ___, No 7,171, p ___ (March 16, 2005); 205 Mich Reg 5, pp
38
Maynard v Hill, 125 US 190, 205; 8 S Ct 723; 31 L Ed 654 (1888).
30-31.
15
a harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects.”39
“[B]ut [marriage] is not a pure private contract. It is affected with a public
interest and by a public policy.”40 Therefore, the state retains control to define and
regulate the marriage union. It does so by defining who is qualified to marry,41
what must be done for a marriage to take place,42 and the methods for the
solemnification and dissolution of marriage.43
And the state confers many rights, benefits, and responsibilities solely as
the result of a marriage. As the United States Supreme Court has said, “[t]he
relation once formed, the law steps in and holds the parties to various obligations
and liabilities.”44 It would take pages to list each of the state statutes that name
legal rights and responsibilities that stem from a marriage. Examples of a few are:
Each spouse has an equal right to property acquired during the marriage.45 Each
39
Griswold v Connecticut, 381 US 479, 486; 85 S Ct 1678; 14 L Ed 2d 510
(1965).
40
Hess v Pettigrew, 261 Mich 618, 621; 247 NW 90 (1933).
41
See MCL 551.1; MCL 551.3; MCL 555.4; MCL 551.5; MCL 551.51.
42
See MCL 551.101 through 551.103
43
See MCL 551.7; MCL 551.9; MCL 551.15; MCL 552.104; MCL 552.6
44
Maynard, 125 US at 211.
45
MCL 557.204.
et seq.
16
spouse has the right to pension and retirement benefits accrued during the
marriage.46 Each spouse has the right to invoke spousal immunity to prevent the
other spouse’s testimony.47 And each has the right to damages for the wrongful
death of his or her spouse.48 In addition, there are more than 1,000 federal laws
conferring even more benefits and privileges on married couples.49
Accordingly, it is obvious that there are two separate elements to marriage:
There is the private bond between two people, which the state recognizes by
solemnifying the marriage. And there are the benefits, rights, and responsibilities
that the state confers on individuals solely by virtue of their status of being
married. Both elements are necessary and important components of marriage.
Hence, for a union to be similar to marriage, it must mirror more than the manner
in which the private bond is recognized. It must also carry with it comparable
benefits, rights, and responsibilities.50
46
MCL 552.18.
47
MCL 600.2162.
48
MCL 600.2922(3)(a).
49
See plaintiffs’ appendix (Docket No. 133554), pp 16c-17c, reproducing a
January 31, 1997, letter from Barry R. Bedrick, Associate General Counsel,
General Accounting Office, to the Honorable Henry Hyde, Chairman of the
United States House Judiciary Committee, pp 1-2.
50
It is by relying exclusively on the personal commitments expressed in
the domestic-partnership agreements that the majority determines that the benefit
programs at issue violate the amendment. The majority attempts to justify its
(continued . . .)
17
The employer benefit programs at issue do not grant same-sex couples the
rights, responsibilities, or benefits of marriage. The most that can be said is that
the programs provide health-insurance coverage to same-sex partners. But health
coverage is not a benefit of marriage. Although many benefits are conferred on
the basis of the status of being married, health benefits are not among them.
Notably absent is any state or federal law granting health benefits to married
couples. Instead, the health coverage at issue is a benefit of employment. And the
fact that the coverage is conferred on the employee’s significant other does not
transform it into a benefit of marriage; the coverage is also conferred on other
dependents, such as children.
( . . . continued)
disregard of the legal incidents that flow from the marital status by relying on the
language “for any purpose.” It concludes that, because of this language, a union
can be similar to marriage even if it carries with it none of the rights, benefits, or
responsibilities of marriage. This is preposterous. The language “for any
purpose” does not modify the word “similar.” It modifies the word “recognize”:
“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.” (Emphasis added.)
Thus, it is error to conclude that the phrase “for any purpose” alters the word
“similar.” In any event, as already discussed, the word “similar” requires a
comparison of essentials. Essential aspects of a marriage include the legal
incidents that flow from it. Therefore, it is not I who misreads the meaning of the
word “similar” but the majority. It distorts the amendment’s language when it
concludes that, in deciding whether a union is similar to marriage, the framers
intended we consider solely the personal commitments expressed by individuals.
The majority’s holding contradicts the amendment’s express purpose: “To secure
and preserve the benefits of marriage for our society and for future generations of
children . . . .” This language indicates that the amendment’s drafters and ratifiers
did not ignore the important—perhaps more important—rights, benefits, and
(continued . . .)
18
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. It is an
odd notion to find that a union that shares only one of the hundreds of benefits that
a marriage provides is a union similar to marriage. It follows that the amendment
is not violated because the employee-benefit programs do not constitute
recognition of same-sex “marriage or [a] similar union.”51
Determining that the amendment does not prohibit public employers from
providing health benefits to same-sex domestic partners is consistent with the
purpose explicitly expressed in the amendment. The amendment’s stated purpose
is “[t]o secure and preserve the benefits of marriage for our society and for future
generations of children[.]”
As discussed earlier, the state is not required to
provide health benefits to spouses. Therefore, it makes no sense to find that health
benefits are benefits of marriage just because some public employers voluntarily
provide those benefits to spouses. Instead, the health benefits at issue are benefits
of employment. The amendment’s stated purpose does not protect or restrict
( . . . continued)
responsibilities of marital status. Nor did they intend to equate the sacred benefits
of marriage with the mundane benefits of employment.
51
This conclusion is consistent with the decisions of other state courts that
have considered whether providing benefits to same-sex partners violates state
laws regulating marriage. E.g., Slattery v New York City, 266 AD2d 24; 697
(continued . . .)
19
employment benefits. Therefore, barring public employers from providing the
benefits at issue does nothing to further the purpose of the amendment. This is
another fact that weighs in favor of my interpretation.
The Attorney General makes much of the fact that the amendment uses the
phrase “for any purpose.” The Attorney General contends that, as long as one
benefit is provided to same-sex couples in the same way that it is provided to
married couples, the amendment is violated. The majority accepts this argument.
The majority’s interpretation of the amendment is problematic because it
essentially reads the word “similar” out of the amendment.
It construes the
amendment to read: “the union of one man and one woman in marriage shall be
the only agreement recognized as a marriage or union for any purpose.”
The amendment does not prohibit the state from recognizing the validity of
same-sex unions for any purpose. It prohibits the state from recognizing a samesex marriage or a same-sex union that is similar to a marriage for any purpose.
Accordingly, unless the state recognizes a same-sex marriage or a same-sex union
that is similar to a marriage, the “for any purpose” language has no application.
The majority fails to recognize this point.
CONCLUSION
( . . . continued)
NYS2d 603 (1999); Tyma v Montgomery Co, 369 Md 497; 801 A2d 148 (2002);
Lowe v Broward Co, 766 So 2d 1199 (Fla App, 2000).
20
The majority decides that the “marriage amendment” prevents public
employers from voluntarily entering into contractual agreements to provide health
benefits to their employees’ same-sex domestic partners. Its decision is contrary
to the people’s intent as demonstrated by the circumstances surrounding the
adoption of the amendment and as expressed in the amendment’s language. For
those reasons, I must dissent.
Furthermore, by proceeding as it does, the majority condones and even
encourages the use of misleading tactics in ballot campaigns by ignoring the
extrinsic evidence available to it.
CPM petitioned to place the “marriage
amendment” on the ballot, telling the public that the amendment would not
prohibit public employers from offering health benefits to their employees’ samesex domestic partners. Yet CPM argued to this Court that the “plain language of
Michigan’s Marriage Amendment” prohibits public employers from granting the
benefits at issue.52 Either CPM misrepresented the meaning of the amendment to
the State Board of Canvassers and to the people before the election or it
misrepresents the meaning to us now. Whichever is true, this Court should
not
52
Amicus curiae brief on appeal of Citizens for the Protection of Marriage,
p 1.
21
allow CPM to succeed using such antics. The result of the majority’s disregard of
CPM’s preelection statements is that, in the future, organizations may be
encouraged to use lies and deception to win over voters or the Court. This should
be a discomforting thought for us all.
Marilyn Kelly
Michael F. Cavanagh
22
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