Michigan Court Ruling Tells Us Why SJR-7 Matters

The Michigan Court of Appeals has ruled that a constitutional amendment voters adopted there to ban same-sex marriages, which is strikingly similar to Indiana's proposed SJR-7, prohibits public universities and governmental bodies from providing domestic partner health care benefits to employees with same-sex partners. The AP reports on the decision in National Pride At Work v. Gov. of Michigan:

Public universities and governments can’t provide health insurance to the partners of gay employees without violating the state constitution, the Michigan Court of Appeals ruled Friday.

A three-judge panel said a 2004 voter-approved ban on gay marriage also applies to same-sex domestic partner benefits.“The marriage amendment’s plain language prohibits public employers from recognizing same-sex unions for any purpose,” the court said.

The decision reverses a 2005 ruling from an Ingham County judge who said universities and governments could provide the benefits.

A constitutional amendment passed by Michigan voters in November 2004 made the union between a man and a woman the only agreement recognized as a marriage “or similar union for any purpose.” Those six words led to a fight over benefits for gay couples.

Leaders of Indiana's religious right have been falsely communicating to Indiana lawmakers that SJR-7 will not impact other benefits for same-sex couples, such as domestic partner benefits. Currently, some public universities, including IU and Purdue, offer their employees domestic partner benefits. High profile Christian right lawyer Jim Bopp from Terre Haute told the Senate Judiciary Committee this week that SJR-7 would not impact those rights. The Star quoted Bopp as saying:

"In my judgment, those claims are bogus," said James Bopp Jr., a Terre Haute attorney who specializes in constitutional law.

Bopp said the Michigan and Ohio amendments are different because they prevent legislatures in those states from recognizing, in any law, couples who aren't married.

The Indiana amendment, he said, would prevent the courts only from allowing unmarried couples to receive marriage benefits. He said legislators also still could pass laws granting those privileges to unmarried couples.

Bopp also told lawmakers that adoption rights and domestic-partner benefits offered by state universities would be unaffected by the amendment. And he said Indiana's domestic-violence law would continue to apply to all.

Bopp's argument is that the language of Indiana's amendment confines it to interpretations of a court; therefore, he argues legislators are free to enact laws providing for such benefits. But can he be so sure? The first paragraph of SJR-7 limits marriage to "the union of one man and one woman." The second paragraph reads, "This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups." Now, let's contrast that with the language of the Michigan constitution, which reads:

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.

Arguably, an interpretation of the plain language contained in Indiana's amendment could easily lead one to conclude it is even more clear on the point that neither Indiana's constitution nor its laws could allow any benefits for same-sex couples that are similar to those offered to married couples. Bopp's argument that the legislature can still pass a law is a pointless argument. The legislature can pass whatever law it wants, but Indiana courts are bound by the Indiana Constitution in interpreting state statutes. SJR-7, on its face, doesn't permit an interpretation which would allow public universities, for example, to offer domestic partner benefits.

In determining the meaning of Michigan's amendment, their Court of Appeals applied these rules of constitutional construction:

[T]he primary objective of constitutional interpretation is to realize the intent of the people by whom and for whom the constitution was ratified. This Court typically discerns the common understanding of constitutional text by applying each term’s plain meaning at the time of ratification. But if the constitution employs technical or legal terms of art, “we are to construe those words in their technical, legal sense.
Second, “to clarify [the] meaning [of a constitutional provision, where the meaning may be questioned], the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered.”

The Michigan Court of Appeals noted the state's long history of favoring the institution of marriage, not unlike Indiana. The court rejected the argument that domestic partner benefits were not akin to a benefit of marriage. "Plaintiffs’ emphasis on the statement of purpose ignores the provision’s mandate: that only one 'agreement' – the union of one man and one woman in marriage – may be recognized as a marriage or similar union for any purpose. The operative language of the amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union." The court reasoned it was not necessary for the benefit to result in an actual legal union of the couple. "By officially recognizing a same-sex union through the vehicle of a domestic partnership agreement, public employers give same-sex domestic couples similar status to that of married couples. Contrary to plaintiffs’ argument, a publicly recognized domestic partnership need not mirror a marriage in every respect in order to run afoul of article 1, section 25, as the amendment plainly precludes recognition of a “similar union for any purpose.”

What is really troubling is that lobbyists for Purdue and Indiana University are backing up Bopp's claims to the detriment of their own employee benefit plans. Why? If this Michigan Court of Appeals decision doesn't serve as a wake-up call to legislators and other interested parties to take a harder look at the second paragraph of SJR-7, then I don't know what will. People have to understand that Bopp has an agenda. He is advocating a legal system in this country which will make all judges, lawmakers and government executives beholden to fundamentalist Christian law, akin to the Muslim law that trumps the civil laws in so many of the Muslim-dominated countries of the world. This is a very dangerous path he's taking us down. Did we free the people of Afghanistan with the blood of American soldiers from the tyrannical rule of the Taliban only to turn over the American legal system to an American Taliban? Liberty-loving people must speak out before it's too late.

For more on today's ruling, go to the Indiana Law Blog by clicking here.