Court Gets It Wrong on Partnership Benefits

[COMMENTARY] It was with great disappointment that many of us heard the news late last week that the Michigan Supreme Court had ruled that the ban on same-sex marriage passed by state voters in 2004 also prohibited public employers from offering health and other benefits to the partners of gay employees. With the passage of a few days and a more detailed reading of the ruling, that disappointment has, for me at least, only grown stronger. Added to that disappointment is a palpable sense of frustration with the disingenuous reasoning that is suffused throughout the ruling.

The court’s ruling, officially called National Pride at Work v. Governor of Michigan, was a declaratory ruling of statutory interpretation, which means the parties in the case were asking the court to determine the meaning and application of Proposal 2, the 2004 constitutional amendment that banned same-sex marriage. The text of that amendment read:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

And the court begins by recognizing that the key to statutory interpretation is to discern the intent of the voters:

Continued -

Thus, the primary objective of constitutional interpretation, not dissimilar to any other exercise in judicial interpretation, is to faithfully give meaning to the intent of those who enacted the law.

But the key question then is, how does one determine what the voters intended, what they believed the law they were voting for would do? This is what legal scholars call the original public meaningof a law, the scope and application of that law as explained by those who wrote it to those who voted either for it or against it. But the court’s majority ignores the various ways such meaning can be discerned entirely, arguing instead that the text of Proposal 2 had a plain, uncontroversial meaning.

However, such extrinsic evidence can hardly be used to contradict the unambiguous language of the constitution …

When the language of a constitutional provision is unambiguous, resort to extrinsic evidence is prohibited, and, as discussed earlier, the language of the marriage amendment is unambiguous.

This is a staggeringly disingenuous claim for the court to make in light of the evidence in this case. Those who actually wrote the amendment, placed it on the ballot and advocated its passage to the voters, the Committee for the Protection of Marriage, testified to the State Board of Canvassers, the agency that certifies ballot language for such amendments, that the unambiguous meaning of the text was precisely the opposite of the meaning the majority opinion gives to it. The committee was represented at the hearing by Eric Doster, an attorney who helped write the actual language of the amendment. His testimony was quite clear:

[T]here would certainly be nothing to preclude [a] public employer from extending [health-care] benefits, if they so chose, as a matter of contract between employer and employee, to, say, domestic-dependent benefits . . . [to any] person, and it could be your cat. So they certainly could extend it as a matter of contract…

[A]n employer, as a matter of contract between employer and employee, can offer benefits to whomever the employer wants to. And if it wants to be my spouse, if it wants to be my domestic partner — however that’s defined under the terms of your contract — or my cat, the employer can do that.

Indeed, when opponents of Proposal 2 suggested that the language could be interpreted to forbid such benefits from being offered, advocates of the amendment accused them of creating a red herring. The committee’s communications director, Kristina Hemphill, told the press that the amendment “has nothing to do with benefits” and that the issue was only being raised by opponents of the amendment as “a diversion from the real issue.”

Clearly the meaning of this text cannot possibly be “unambiguous” if those who wrote the language claimed that it means the exact opposite of what the court declares it to mean. Just as clearly, it is dishonest to pretend that the meaning is unambiguous and thus to ignore all evidence that the citizenry that voted for Proposal 2 believed it did not do what the court now claims it clearly does. All one has to do is look at the polling data, which shows much lower levels of support for prohibiting domestic partnership benefits than for banning same-sex marriage. Indeed, the level of support for such domestic partnership benefits is considerably higher than the number that voted for Proposal 2. That fact alone shows just how lazy and shoddy the court’s analysis was in this case.