A Tragic Lie in Michigan

First published in Between the Lines on February 8, 2007

It was a classic bait-and-switch. When gay-rights opponents sought to amend Michigan’s constitution to prohibit, not only same-sex marriage, but also “similar union[s] for any purpose,” they told us that the amendment was not about taking away employment benefits. They told us that in their speeches. They told us that in their campaign literature. They told us that in their commercials.

They lied.

The initiative passed, the constitution was amended, and before the ink was dry the opponents changed their tune and demanded that municipalities and state universities revoke health-insurance benefits for same-sex domestic partners.

For a while it looked like we might win this battle. In a trial court opinion Judge Joyce Draganchuk argued that “health care benefits are not benefits of marriage and cannot be construed as ‘benefits of marriage’ that are prohibited by [the amendment].”

Last week the Michigan Court of Appeals reversed Draganchuk’s decision and ordered an end to health-care benefits for same-sex partners of state employees. They leaned heavily on the reasoning of Attorney General Mike Cox, who argued that the operative clause of the amendment–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”–is “best interpreted as prohibiting the acknowledgement of both same-sex relationships and unmarried opposite-sex relationships. More simply, the only relationship that may be given any recognition or acknowledgment of validity is the union of one man and one woman in marriage.”

But that is not quite what the amendment says. To see why, consider another relationship to which we give “recognition or acknowledgment of validity”: the parent-child relationship. Most employers, including state employers, provide health insurance for employees’ children, and their doing so does not run afoul of the amendment. The reason is simple: contra Cox, the amendment does not prohibit recognizing relationships other than marriage. It prohibits recognizing them “as a marriage or similar union.” Giving health insurance to your employees’ domestic partners does not entail that you recognize their relationship “as a marriage or similar union” any more than giving it to their children entails you recognize the parent-child relationship as “a marriage or similar union.”

On the other hand, let’s be real. The reason certain employers give health-insurance benefits to the same-sex domestic partners (and typically not to the opposite-sex domestic partners) of their employees is precisely because they recognize these relationships as being similar to marriage in relevant ways. Employers know that it is good for employees to have someone at home whose job it is to take care of them (and vice-versa), and gay employees are no different in this respect than anyone else.

Given the makeup of the Michigan Supreme Court, our chance of winning this on appeal is about as good as that of Mike Cox marrying Antonin Scalia. Which means that unless and until the constitution is re-amended (something that won’t happen easily), state employers will no longer be able to offer domestic-partner benefits.

This result is tragic for several reasons. It means that people will lose their health insurance. It means that gay employees who availed themselves of these benefits will effectively take a pay cut. And it means that Michigan’s state universities, among other state employers, will be less competitive for top talent.

Remember: the people who fought for this assured us that none of this would happen, then they worked hard to make it happen. Family values, indeed.

In his eloquent dissent to Bowers v. Hardwick, which upheld the right of states to criminalize homosexual conduct, U.S. Supreme Court Justice Harry Blackmun wrote, “It took but three years for the Court to see the error of its analysis in Minersville School District v. Gobitis and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”

It took not three years, but seventeen, for Blackmun’s vision to be realized, when in its 2003 decision in Lawrence v. Texas the Court repudiated its earlier position in Bowers. I wept that day with relief and joy. I can only hope that I’ll live long enough to shed similar tears at the news that Michigan corrected course and repealed this awful amendment.

Until then, I’m going to work like hell to make it happen. The liars are on notice.