By Jay Kalpan
Most of you by now have heard about the Michigan Court of Appeals' decision, which reversed the Ingham County Circuit court decision that the language of 2004 Prop 2, now a constitutional amendment, does not prevent public employers from voluntarily offering domestic partner benefits. In reversing this decision, the panel (3-0 Judges Hoekstra, Wilder and Zahra) opted for a very broad interpretation of Prop 2's language, essentially saying that it prohibits public employers from recognizing same-sex relationships for any purpose. This is pretty much Attorney General Mike Cox's interpretation of the "so-called" Marriage Amendment and was certainly not the way that the Proposal was presented to voters. The decision is distressing and disappointing for a number of reasons:
1. The Court of Appeals chooses to equate an employer offering health insurance benefits with the status of a legal marriage or something similar to legal marriage. Health insurance is an employee benefit, but creates no legal status, and provides none of the 1,000 legal benefits, protections and recognitions of marriage.
2. The Court of Appeals chose to ignore court decisions in states such as Florida, Pennsylvania and California that have looked at the issue of whether laws prohibiting same-sex marriage, prevent public employers from offering domestic partner benefits. These courts have uniformly held that domestic partner benefits don't approach anything similar or the same as legal marriage. The judges maintain that the Michigan case involves a constitutional amendment and that it why they don't have to look to other courts- but that is disingenuous. The same legal arguments were raised in these cases.
3. The judges on their own, without any request from the parties (including Cox) and without any legal briefing, in a one sentence statement has ordered their opinion to have immediate effect. This is without any regard to how the harm that could come to families and children who could stand to lose their health insurance benefits and access to medical treatment. It is very telling of this panel's opinion, that these judges make no mention of any of the Plaintiffs involved in this case. No mention of Jerome Post, whose health insurance covers his partner Paul, who has a chronic illness and cannot obtain health insurance elsewhere. No mention of Dennis and Tom Patrick who have adopted 4 special needs children and are able to care for them because Tom works part time and receives health insurance coverage from Dennis' job. No mention of Alex Stern, Professor at University of Michigan, who moved with her partner Terry from California to Michigan because U of M offered access to health care for Terry.
So what happens next? Well we are filing a request to appeal to the Michigan Supreme Court. We are also asking the Michigan Court of Appeals to "stay" the effect of their decision while this appeal is pending so that no one's health insurance is interrupted during this period. Should the Michigan Court of Appeals turn down our request, we will make the same request of the Michigan Supreme Court. We will also be encouraging all public employers to continue providing health care benefits while this matter is under appeal. If we are unsuccessful at the Michigan Supreme Court, we will consider the option of a federal court challenge.
While this decision is both discouraging and distressing for Michigan LGBT families and the LGBT community as a whole, it is essential that we not give up on this fight nor let our opponents believe that our spirit or determination has been broken. Civil rights movements have never been solely based on a lawsuit or a court decision. Such movements involve people – educating and organizing and making some noise. You're upset about this decision? Well write your local newspaper and express your decision. Write letters to the judges who issued this opinion. They're elected by Michigan voters. Organize a rally in your community in protest of this decision (on the steps of Michigan's Court of Appeals and Supreme Court building). And never forget that who you vote for as Governor gets to appoint judges when there are vacancies in the courts. Advocate for public employers to continue offering employee benefits that recognize our families and our relationships. Work towards repealing the discriminatory 2004 Prop 2 amendment. Let's have more LGBT families telling their stories in the media and in the public – of how lack of legal recognition of our relationships is wrong and harms us. There's so much more to do and so much more than can be done.
