Cox decides DP benefits unconstitutional

LANSING – Attorney General Mike Cox issued an opinion March 16 that said public employers offering domestic partner benefits would no longer be able to do so once current contracts expire due to the passage of Proposal 2, the anti-marriage amendment.
The opinion came at the request of State Representative Jack Hoogendyk (R-Kalamazoo) who had been approached by Kalamazoo County Commissioner Mary Balkema in November 2004 after Proposal 2's passage inquiring about domestic partner benefits offered by the city of Kalamazoo.
At issue are the words "or similar union for any other purpose" included in the amendment. Opponents of the measure warned that the amendment's vague wording could be interpreted to go beyond marriage and could jeopardize benefits for same-sex couples and their families.
However, Proposal 2's backers repeatedly asserted in interviews and in campaign literature that the amendment was only about marriage. On Oct. 15, 2004, Marlene Elwell, campaign director for Citizens for Protection of Marriage, told USA Today, "This has nothing to do with taking benefits away. This is about marriage between a man and a woman."
According to Cox's opinion, "It is reasonable to conclude that average citizens when casting their votes … commonly understood that … Proposal 04-2 would reserve that unique recognition to the union of one man and one woman in marriage and not allow its extension to similar unions." Cox's opinion stated that domestic partner benefits resulted in a "marriage-like" status.
American Family Association of Michigan's Gary Glenn praised the opinion. "This validates what we were saying before and after the election," Glenn said. "I don't think there's any question the majority of Michigan taxpayers will be strongly supportive of the attorney general's opinion."
Governor Jennifer Granholm reiterated her support for domestic partner benefits after Cox's opinion was issued. "Governor Granholm supports domestic partner benefits and is pleased that the issue is now in the courts where we think it should be. We will now await an interpretation of this matter by a court with the hope of an outcome that allows us to provide health care to all of our employees and their families," said Liz Boyd, Granholm's press secretary.
Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan, took issue with Cox's opinion. "It's just wrong," he said. "Michigan voters didn't vote to take away health insurance from children and families."
According the Kaplan, Cox's opinion disregards a full body of case law that says providing domestic partner benefits does not provide for marriage or a marriage-like relationship.
"We should expect something better from our attorney general," said Kaplan. "The opinion should be based on law and should take in account previous case law and case decisions."
Though the issue hasn't been addressed in Michigan it has been in other states including California, Pennsylvania, Washington, and Illinois, according to Kaplan. "He really had to go out of his way not to mention those cases."
"I think one could probably assume that politics entered into this decision," Kaplan added. "Certainly not law."
The ACLU announced a lawsuit against the state of Michigan over domestic partner benefits March 21.
In a statement released from Hoogendyk's office, Commissioner Balkema claimed Cox's decision was a victory for fairness. "The attorney general agreed that it is unfair for homosexuals to receive special treatment by state and local governments," she said. "This represents a victory for residents who said in November that marriage is between one man and one woman."
Jeffrey Montgomery, executive director of the Triangle Foundation, called Cox's decision "unsound, unwise and unfortunate."
"Cox is either blindly partisan or simply a bad lawyer," said Montgomery. "There is plenty of case law and precedence that should have led him to a different conclusion."
Montgomery continued, "Beyond the pesky details of law, however, lies the profound and damaging effect that the Attorney General's opinion will have on families across Michigan who are now in danger of losing family and health benefits. The unfairness endorsed by Mr. Cox is stunning."
Those employees currently receiving domestic partner benefits from Kalamazoo who are under contract will not lose their benefits until their contracts expire. However, employees without a contract, said Kaplan, risk having their benefits pulled at any time. Those benefits include medical coverage, dental care, sick leave, funeral and critical illness leave, COBRA continuation coverage, Family Medical Leave Act provisions, retiree medical coverage, and pension benefits.
"The anti-marriage amendment is an embarrassment to Michigan," said Montgomery. "Mr. Cox's opinion on domestic partner benefits only brings further shame on the State."