By Dawn Wolfe Gutterman
LANSING – On Oct. 12, Michigan's Attorney General made yet another failed attempt to take health insurance and other benefits away from families, including families with children, headed by same-sex couples by preventing the state of Michigan from offering domestic partner benefits.
This time, Attorney General Mike Cox's office went before Ingham County Circuit Judge Joyce Draganchuk asking her to issue a stay of her decision last month that cleared the way for the city of Kalamazoo to continue to offer the benefits and for the state of Michigan to honor employee contracts negotiated in 2004 that include them.
"Once again the courts stood up to Mike Cox's bullying and maintained sanity on domestic partner benefits," said Sean Kosofsky, policy director for Triangle Foundation.
According to Jay Kaplan, the American Civil Liberties Union LGBT Project's staff attorney, Draganchuk called Mike Cox's arguments in favor of a stay, "fairly absurd."
Kaplan said that Cox's request for a stay was unusual on several fronts.
"In order to get a stay or injunction," Kaplan explained, "you have to show a number of things. One, that the Attorney General's office would be irreparably harmed [if the stay is not issued] and two, that you are likely to prevail on the merits – that the first judge's decision is going to be reversed on appeal."
"The bottom line," Kaplan said, "is that it seemed that this motion was all about the fact that the Attorney General didn't agree with the judge's decision."
"They [Cox's office] kept arguing that the judge needed to do this to maintain the status quo in Michigan, but they were misconstruing what the status quo was – the status quo before the decision was that domestic partner benefits were legal in Michigan. That's what it was before, and that's what it is now," Kaplan said.
Ironically, according to Kaplan, Cox's office also argued that the stay should be issued to protect the plaintiffs.
"The Attorney General was purporting to be concerned about the welfare of our plaintiffs, saying if you don't issue a stay and the Michigan Supreme Court rules against them, then the plaintiffs would have to pay back the money spent on these benefits," Kaplan said. "That's crazy, because a declaratory judgment is not retroactive. So even if the Supreme Court reversed Draganchuk, people wouldn't have to pay back their benefits – because the state has voluntarily offered to provide them."
Liz Boyd, a spokesperson for Governor Jennifer Granholm, said the governor plans to go forward with implementing the benefits.
"We continue to believe that the judge's original decision was the right decision, and we plan to continue moving forward," Boyd said. "This is a collective bargaining issue – the benefit was requested by the employee unions, we agreed to it, and we are going to move forward with it."
Michigan Family Forum Executive Director Brad Snavely decried Gov. Granholm's commitment to move forward with domestic partner benefits.
"The Governor's action is inconsistent with the will of the people, who cast their votes to prevent the state from recognizing unions that are 'similar' to marriage," said Snavely.
Children at risk of losing benefits
Despite the fact that Michigan's anti-gay industry claimed that Proposal 2 was about protecting "traditional" marriage and would not affect employment benefits, many, led by the Attorney General, are now attacking those benefits as unconstitutional. As a result, children of same-sex partners may be at risk of losing their health insurance.
During the November campaign, the Michigan Family Forum claimed that Proposal 2 would not affect benefits for the children of same sex couples.
"While opponents claim this will be a significant problem, no child is in danger of losing benefits," the group claimed on its Web site.
Michael J. Steinberg, the legal director of the ACLU of Michigan, said this claim is false. "Several of our clients have children, and some are the children of the partners, not the employee providing the benefits," he said. "Certainly, if Cox prevails, there are domestic partners throughout the state who have children who will lose benefits."
In addition, benefits have allowed one partner in some couples to cut work hours or stay at home and care for the couples' children – arrangements that are also now threatened.
The Michigan Family Forum site also claims that "Nothing in Proposal 2 can reasonably be interpreted to interfere with the right of a union or private business to negotiate benefits with their employees." State employees' unions negotiated the benefits now being targeted by the anti-gay industry. (See http://www.michiganfamily.org/special-protectmarr/documents/faq-prop2.htm.)
Asked why he thought that Cox had requested the stay, Kaplan said, "I could say that I think it's politics, but I just don't know. When they go to the Michigan Court of Appeals they could try the same thing. I think they're going to try everything they can to challenge Draganchuk's opinion."
"The best thing to say is, 'To Be Continued,'" said Kaplan, "because it's certainly not over yet."
