Legal Commentary

The Michigan Supreme Court finally came down with their opinion in National Pride at Work v Governor of Michigan.  Download pride_at_work.pdf

The case involves the interpretation of Article I, section 25 of the Michigan Constitution, a provision barring the state from recognizing any agreement as a marriage "or similar union...for any purpose" except a marriage between one man and one woman.  According to the Michigan Supreme Court, this provision bars the state and its subdivisions from providing employment benefits -- basically, health insurance -- to the "domestic partners" of government employees.  The majority reasoned that domestic partnerships, as defined by the public employers at issue (e.g., the University of Michigan and some local governments like the City of Kalamazoo and Ann Arbor) were too "similar" to marriage, because the conditions for being eligible to enter into such a partnership mirrored the criteria for eligibility for marriage.  For instance, the City of Ann Arbor barred employees from registering someone as a domestic partner if they were related by a degree of consanguinity that would bar marriage.

The opinion, I think, is deeply confused.  (Full disclosure:  I was co-counsel for plaintiff-petitioners).  The weirdness of the opinion is most obvious in the decision's broad construction of the notion of "recognition."  According to the Court, "by providing legal significance to a relationship, the public employer is acknowledging the validity of that relationship."  It is this acknowledgment of "validity" (whatever that means)  that Article I, section 25 prohibits.

Think about that proposition for a minute.

Suppose that Professor X and Assistant Professor Y live together as domestic partners. Suppose that the University of Michigan asks Professor X not to vote on Assistant Professor Y's tenure because, after all, X has a conflict of interest. Does the "anti-gay marriage amendment" bar such an anti-nepotism rule because the rule obviously "recognizes" the existence of a relationship "similar to marriage"? Or suppose that the University of Michigan lists faculties' spouses, partners, and significant others in the faculty directory: Again, forbidden "recognition" of that forbidden "similar" union? And don't even get me started on the headaches caused by figuring out the guest list for the end-of-the-year faculty picnic: Do the partners get labeled "special friends"? Or just don't get invited?

Such results are deeply absurd, right? To say that a public entity must ignore plain social facts such as the existence of long-term relationships between unmarried employees, even when these facts impinge on the function of government, is to confess that the people of Michigan have gone bonkers.

The Ohio Supreme Court put the brakes on such insanity when it held that a similar amendment to the Ohio Constitution did not render unconstitutional laws imposing special penalties on domestic violence. Of course, such laws "recognize," and attribute legal significance to, relationships other than, but "similar to," marriage: People who beat up their live-in partner get harsher penalties than people who beat up strangers. To uphold the Ohio statute, the Ohio court had to look to the actual purpose of the constitutional provision and turn a blind eye to the absurd literal text.

But the Michigan Supreme Court refused to look to actual purpose, claiming that the text was unambiguous. Even though the proponents of the anti-gay-marriage amendment vociferously claimed that it would not prohibit DP benefits, the Court construed it to do so. 

Are Michigan's domestic violence laws next on the chopping block of textualism? Or does the Court adhere to textualism only when it burdens equal employment rights for gay and lesbian employees? Either way, it is a sad day for the rule of law and common sense.