MICHIGAN DOMESTIC-PARTNER BENEFITS DENIED

Academe, Mar/Apr 2007 by Levinson, Rachel B

In February, the Michigan Court of Appeals issued a decision in National Pride at Work, Inc. v. Granholm, concluding that Michigan public universities cannot provide domestic-partner benefits to the same-sex partners of employees or the partners' children.

In November 2004, Michigan voters approved an amendment to the Michigan constitution stating that "one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." The Michigan attorney general issued an opinion holding that the amendment precluded public employers, including public colleges and universities, from providing domesticpartner benefits. National Pride at Work (a nonprofit organization working with the American Civil Liberties Union) filed suit against the state, asking the court to clarify the issue and declare the attorney general's interpretation incorrect. The lower court issued a ruling declaring that the amendment "does not prohibit public employers from entering into contractual agreements with their employees to provide domestic-partner benefits." However, the attorney general appealed the case.

The national AAUP joined the Michigan AAUP conference in an amicus brief to the appellate court arguing that public universities have a right, and a need, to offer benefits to the same-sex partners of employees and to those partners' children. To forbid such benefits, the brief stated, would be an unconstitutional interference with the First Amendment academic freedom rights and contractual rights of universities and their faculty and a violation of AAUP policy against discrimination on the basis of sexual orientation.

The appeals court held that the language of the amendment prohibited contractual benefits "if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union." Because most of the employment plans, including those of the two state universities, required domestic partners to have entered into some sort of formal domesticpartnership agreement to receive benefits, the court concluded that the universities were "recognizing" the validity of a same-sex union in violation of the amendment. The court also concluded that the amendment did not violate the Michigan constitution's requirement that all citizens receive equal protection under the law (modeled on the federal equal protection clause), because it found that "the marriage amendment's purpose, 'to secure and preserve the benefits of marriage for our society and for future generations of children ...,' is neither arbitrary nor invidious on its face," and the benefits' proscription applied equally to same-sex and heterosexual couples. The court did not address the AAUP's argument that prohibiting the universities from conferring domestic-partner benefits implicates issues of academic freedom.

The plaintiffs have indicated that they intend to appeal the case to the Michigan Supreme Court.

-R.B.L.