By Dawn Wolfe Gutterman
LANSING – Accusing Ann Arbor Public Schools of "pursuing its own domestic agenda," Thomas More Law Center attorney Patrick Gillen urged the State Court of Appeals to overturn the Washtenaw Circuit Court's dismissal of a suit to force the school district to stop offering vital health benefits to gay and lesbian families.
The April 5 hearing was the latest chapter in the saga of Rhode Vs. Ann Arbor Public Schools, a suit that was originally filed in 2003 by conservatives in an attempt to stop the system from treating the families of its gay and lesbian employees equally to those of its heterosexual married employees.
The three basic issues in the appeal were whether or not the plaintiffs had standing to sue in the first place, whether the state's Defense of Marriage Act restricts unions' rights to bargain for domestic partner benefits, and whether or not the passage of the anti-marriage Proposal 2, along with a recent negative opinion by Attorney General Mike Cox on domestic partner benefits offered by the city of Kalamazoo, should be brought to bear on the Appeals Court's final decision. The Washtenaw Circuit Court originally dismissed the case on the question of whether the plaintiffs had standing to sue, but the Thomas More Law Center attorney argued that the Appeals Court should also take the passage of Proposal 2 and Cox's recent opinion into account when rendering its decision.
Seth Lloyd, who appeared on behalf of the school system, presented compelling arguments on all three points. After saying that the plaintiffs in the case had waited too long to bring their suit, Lloyd turned to the meat of the argument, explaining to the court that Michigan's DOMA does not apply to benefits that employers choose to offer their employees.
"Ann Arbor public schools is not marrying anyone," said Lloyd, who reminded the court that appellate decisions in eight other states have found that there is no relationship between a defense of marriage act and benefits. Lloyd also said that Cox's opinion in the Kalamazoo case does not apply because the school system is not providing identical benefits to the families of same-sex partners as it does to the families of opposite-sex married partners, as had been the case in that city.
Theresa Alderman, who appeared on behalf of the Ann Arbor Education Association, took up the argument, asserting that state law regulating bargaining "is the law of the land when it comes to bargaining in the public sector," and that bargaining law has been given precedent over conflicting laws in other court cases. Further, Alderman argued that Michigan's bargaining laws have been revised several times but have never been changed as a result of the state's DOMA.
As for Proposal 2 and the attorney general's opinion, Alderman argued that neither was relevant to the current case and that Gillen's efforts to make the court consider them "is an effort to add a new cause of action," and should therefore be rejected.
Alderman also argued that, given the recent filing of a case by the ACLU of Michigan and several gay and lesbian families seeking to protect domestic partner benefits and limit the scope of the amendment, that it would be premature of the Appeals Court to bring Proposal 2 into the current case.
In closing, Alderman urged the justices to carefully consider the impact of their decision. In an age of rising health care costs, said Alderman, "It makes no sense to seek ways to rob people of this very precious benefit."
In his rebuttal, Gillen's said, "There are a lot of people who need benefits," while also denying that there ought to be a court case to determine the voters' will in passing Proposal 2. Gillen did not make mention of the fact that the organizers who pushed Proposal 2 denied publicly that the amendment would affect benefits, instead insisting that they were merely trying to protect "traditional" marriage.
The Appeals Court panel – Mark J. Cavanagh, Kathleen Jansen and Hilda R. Gage – were mostly silent during the oral arguments.
After the hearing, Alderman was adamant about her union's intention to fight to continue offering domestic partner benefits.
Asked whether the union would be willing to pursue the case to the State Supreme Court, Alderman responded, "Absolutely. This is of utmost importance to us, because it governs issues concerning bargaining. That's what we do. We bargain benefits for our employees, and those protections are extremely important to us. We'll go to any lengths to protect those."
