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ACLU and Michigan Families Demand Discriminatory State Law Be Struck Down
By Kate Opalewski
Originally printed 9/6/2012 (Issue 2036 - Between The Lines News)
The ACLU recently asked a federal judge on behalf of four Michigan couples to strike down a discriminatory state law that forces employers to cancel family benefits for gay and lesbian employees in committed relationships.
Represented by the ACLU and Kirkland & Ellis LLP, the plaintiffs in the case - Theresa Bassett and Carol Kennedy of Ann Arbor, Ways and Joe Breakey of Ann Arbor, Barbara Ramber and JoLinda Jach of Kalamazoo, Denise Miller and Michelle Johnson of Kalamazoo and Gerardo Ascheri and Doak Bloss of Lansing - attended court in August with more than 60 supporters to state their names, show their faces, and share their stories in front of U.S. District Judge David Lawson.
"It was disheartening, but energizing. We are committed to doing what we can to fight this and remain active in talking about why it's not fair," said Bloss. "It's the state's prerogative that they can tell employer's what they can and can't do. It's so wrong for the state to dictate to counties and cities and school districts that they can't provide a benefit that they want to provide." Bloss said that he and his partner, Ascheri, will take a financial hit, but are able to manage. "We are much more concerned about the people who don't have the resources. We're not rich by any means, but we will get by," he said.
For Ramber, the outcome of this case may significantly change her life. She has glaucoma and arthritis and faces potential blindness if she loses her benefits at the end of the year when her partner Jach's employer, the City of Kalamazoo, stops offering them. According to the Detroit Free Press, during Ramber's testimony before Judge Lawson, she said, "I'm scared to death about losing my benefits. And my eyesight? The thought of losing that is terrible. It's been hard. My son doesn't understand why this law treats us differently than other families."
Ways and his partner, Breakey, were surprised how long it took to come before the judge for the first hearing. "I think many individuals are already losing their benefits and the clock is ticking for the rest of us. Our family is happy and healthy. We just got a new puppy and we're looking forward to going back to school. The only problem is that we feel on guard against a political leadership that has taken the stand, essentially, that our family does not exist," said Ways. "It's a strange kind of discrimination to be legislated against in this targeted and mean-spirited way. I feel welcome in my community and we have been supported by friends, family, acquaintances and strangers, really in large numbers. But we also know that the governor, the majority of the house, and the majority of the senate would prefer that we disappear."
This contradicts the 65 percent of polled Michigan voters that want domestic partner benefits to be extended to gay and lesbian government and university employees. While Gov. Rick Snyder tried to pass the unfair statute off as a cost-cutting measure, Amanda C. Goad, ACLU staff attorney with the ACLU LGBT and AIDS Projects said "This discriminatory law serves no purpose other than to single out a small minority of people and deprive them of critical protections. The state is unconstitutionally interfering with the benefit plans established by city and county governments, school districts, and community colleges, and that's hurting hardworking employees and their families."
According to the Detroit Free Press, state attorney Margaret Nelson defended the law on behalf of the state, arguing it has "a legal right to try to save money and an interest in protecting marriage. The plaintiffs assume that they are similarly situated to married employees. They do not have a legally recognized relationship under Michigan law. Same-sex couples are viewed under state law more like single people, friends or roommates, who also will lose their benefits as a result of the law change."
Bloss said he felt like he was in a "funk" after listening to the state's argument. "The President makes you feel like change will happen, but the state of Michigan is actively doing things in the opposite."
That's why ACLU LGBT Project staff attorney Jay Kaplan said this year's election is so important. "There are three openings on the Court and depending on the outcome of these elections the majority could change. That is why it so important that voters are informed about the candidates running for the Michigan Supreme Court and their positions on LGBT rights. The lack of awareness of the candidates and their positions has probably contributed to a majority on the Court which has issued a number of decisions hostile to the LGBT community, as well as other minority groups."
Kaplan explained that it would be difficult to prevail on an LGBT civil rights issue with the current composition of Michigan's Supreme Court, a 4-3 conservative majority. "At this point in time, bringing an action in federal district court may seem more viable because judges are appointed by the president and are not likely to be as beholden to political parties as our state judges are. However, the viability of success of a federal challenge also depends on the composition of the Court of Appeals in the Sixth Circuit, as well as the U.S. Supreme Court, which is the ultimate decider. These judges and justices are appointed by the president and that is why who we vote for president makes a big difference regarding who ends up on the courts. Voters also need to be informed on this issue. A Romney federal bench would be vastly different that an Obama federal bench and this would also have an impact on LGBT rights."
As for the future of this particular case, Goad said an additional round of briefing was submitted toward the end of August. "We are waiting to receive a decision from Judge Lawson on plaintiffs' motion for a preliminary injunction, as well as defendant's motion to dismiss."