Same Sex, Same Benefits

April 29, 2005
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DETROIT — The American Civil Liberties Union of Michigan has challenged an opinion from the state's attorney general. In March, Mike Cox announced that governmental units in the state couldn't extend benefit packages to gay or lesbian partners of qualified employees.

Cox based his decision on a statewide proposal voters overwhelmingly approved last fall that amended the state constitution and defined marriage as a legal union solely reserved for one man and one woman.

The ACLU disagrees with the AG's same-sex benefits ban opinion and filed a lawsuit in March in Ingham County Circuit Court arguing that the passage of Proposal 2 had nothing to do with who is eligible to receive workplace perks.

"It's our argument that all Proposal 2 does is define marriage as between one man and one woman. It does not, in any way, impact the position of domestic partnership benefits. Those other additional six words in the ballot language were not intended to reach as far as (what) the Attorney General would suggest," said Kary Moss, ACLU of Michigan executive director.

"We remind everybody that the proponents of Proposal 2 said that in their literature and in their public speeches over and over again — that they weren't trying to take away anybody's health-care benefits. But now, lo and behold, it passes and all of a sudden that seems to be their agenda," she added in a phone interview from her office in Detroit

The ACLU is asking the court to determine what Proposal 2 actually means. The suit was filed on behalf of National Pride at Work, a constituency group of the AFL-CIO unions, and 21 same-sex couples who receive health coverage from their public employers or who would have received that benefit as part of a new state contract.

Besides arguing in its complaint that Proposal 2 had nothing to do with benefits, the ACLU also contends that courts across the country have held that employers who provide health coverage to same-sex partners are not recognizing a marriage or similar union, and that barring government from providing benefits to one group of people violates the equal protection and contract provisions of the state constitution.

"We're going to wait to see what the state court does with our case and our arguments, and then we will look into filing a lawsuit in the federal court. Most likely if we were to do so, our theory would also be equal protection under the federal constitution," said Moss.

A hearing date hasn't been set, but the case has been assigned to Ingham Circuit Court Judge Joyce Draganchuk. Moss said a brief and motion would be filed soon and a date for the hearing would be requested when both were filed.

One plaintiff in the lawsuit recently testified before a U.S. Senate Judiciary Committee Subcommittee. Kathleen Moltz, a pediatrician and assistant professor at the Wayne State University School of Medicine, told the panel that she and her female partner, whom she married in Massachusetts, were raising two children, and she feared that her family might lose their health-care benefits because of the proposal.

Moltz told the subcommittee that she wasn't a "political" person, but said she decided to get involved when out-of-state, anti-gay groups tried to use Proposal 2 to take away her benefits package.

"I am here today because I am concerned that the Federal Marriage Amendment, which is very similar to Michigan's amendment, will be used to deny equal benefits nationwide," she said last month.

Moss said Moltz' appearance marked the first time that a gay person had testified before the U.S. Senate.

Kalamazoo had planned to offer domestic partner benefits in upcoming contracts, but Cox ruled that the city couldn't do that. Moss said the AG's opinion does not affect existing contractual benefits that a county or city may have with an employee group or union, just future ones. Nor does it have any direct impact on current private-sector employee benefit packages.

But the ACLU points out that if governments in the state can't offer health coverage to same-sex couples, then highly educated and talented gays and lesbians might see Michigan as someplace to avoid and look for employment in other states. If that happens, then it could become more difficult for the state's private employers to recruit those they might consider to be the best and brightest.

"We think that both public and private employers need to have the freedom to be able to create the kind of employment packages they need and want to attract the kind of work force they want," said Moss. "If Michigan is going to be a truly competitive and welcoming economy, you can't have the state telling them who they can and can't hire."  

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