Michigan Messenger – By Todd A. Heywood | 05.11.11
After the state legislature failed to override the Michigan Civil Service Commission decision to offer insurance benefits to unmarried partners of state employees, Republicans are trying a different tack. Michigan Attorney General Bill Schuette has filed a lawsuit to void that decision.
The key issue here is whether the state’s anti-gay marriage amendment, passed in 2004, forbids such benefits from being offered. That amendment says:
“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.”
It’s the “or similar union” phrase that is at issue here. Does a provision that extends insurance benefits to unmarried partners and their dependents constitute the recognition of a “similar union” to marriage? The state supreme court ruled in 2008 that offering benefits specifically to the partners of gay employees does violate this provision, but the policy being challenged here is not specific to same-sex partners. The courts have yet to rule on this broader kind of policy.
1) The decision exceeds the Constitutional authority granted to the Commission. The Michigan Constitution grants authority for the Commission to establish compensation rates for State employees. It does not empower the Commission to compensate or otherwise provide benefits to non-family members or non-employees.
2) The decision violates the Equal Protection Clause of the Michigan Constitution. By arbitrarily granting state health plan eligibility exclusively to “non-family” adults and their dependents, the Commission has violated the equal protection rights of actual family members and their dependents not eligible under the plan. If an unmarried state employee lives with a sibling or a cousin, for example, that relative is not eligible for health benefits, yet such benefits are available to any non-family member.
Denise Brogan-Kator, interim executive director of Equality Michigan, says the law suit is “ridiculous.”
“First, he talks about what he thinks is the Michigan Civil Service Commission’s unconstitutional order,” Brogan-Kator said. “That is not true, in my opinion, I think it certainly meets the letter and the intent of the law and the supreme court decision.”
On top of that, Brogan-Kator took Schuette to task on the cost estimates of the proposal, which would take effect Oct. 1. The governor’s office has said the benefit plan could cost the state as much as $6 million a year.
“He continues to throw around this projected cost that some one literally made up and there is no support for,” she said. “It is purely a scare tactic.”
She also found some irony in the fact that had a citizen sued over the decision, the Attorney General would have to defend the decision.
“How much is this going to cost us?” she asked.
Brogan-Kator is not alone in her criticisms of the lawsuit. Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Michigan, was also critical.
“We believe that the lawsuit brought by the Attorney General, not only is misguided but it completely mischaracterizes the action that was taken by the Michigan Civil Service Commission,” Kaplan said. “This particular contractual provision had been put on hold for more than 6 years, with the passage of Michigan’s Constitutional amendment denying same-sex couples the right to marry. In addition to recognizing what had been collectively bargained for, the action taken by the Michigan Civil Service Commission also recognizes the diversity of the State of Michigan’s workforce and the importance of treating all employees fairly in terms of compensation and access to health insurance benefits.”
“The decision to extend health insurance benefits is not only lawful, but it’s the right decision, as families (both traditional and non-traditional) are always stronger when health insurance is accessible,” Kaplan continued. “Estimates show that less than 2 percent of all eligible households are likely to opt in to this program, making the already inflated cost estimates from Senator Richardville and House Speaker Bolger even more out of line with reality.”
“Family members who are considered to be dependents of state employees can be covered for health insurance benefits in Michigan (whereas non-family dependents are not) and we believe that the Attorney General’s allegations regarding equal protection are legally flawed,” Kaplan said. “At a time when many Michigan residents are suffering the effects of our economic downturn, it is inappropriate for the Attorney General to try to take away health care benefits from state employees and their families that were bargained in good faith.”
The AG’s lawsuit is not the only attack on such partner benefits being launched by state Republicans. Last week, the Michigan House approved an amendment to the education omnibus bill which would penalize state universities and colleges if they offer benefits to unmarried adult partners — called other eligible individuals by both the MCSC and state universities. Under the amendment educational institutions that do not certify they have ended those programs would lose five percent of their state appropriations.
The legislature will have to vote again on a conference committee bill which would combine the Senate and House versions of the education funding. It is not yet determined whether the amendment will be included in the compromise legislation.
Michigan State University, which was one of the state’s first public bodies to create an other eligible individual insurance program following the 2008 supreme court ruling, issued the following statement from Kent Cassella, the MSU spokesperson.
“We are reviewing the text of the amendment and evaluating what the potential impact might be. MSU has an Other Eligible Individuals program that allows employees to add one other adult to their policy subject to certain restrictions. The governor and house have already proposed cuts as deep as 22 percent for public universities in the coming year. We do not believe the state should consider imposing any additional cuts on top of the already steep reductions proposed and significant reductions taken in recent years.”
But Republican lawmakers are defending the amendment.
“Well the universities can make their own policy; they just have to pay for it. If they want the money, they are gong to have to comply with the law. The Civil Service Commission found a way to go around it, which in my mind — once again — if you don’t like the law, that’s a legitimate point of view, go change it,” Moss said. “But it’s illegal.”
Equality Michigan’s Brogan-Kator disagreed with Moss.
“The Michigan Supreme Court said explicitly that universities and other state employers could not provide benefits to the partners of their gay employees by virtue of them being their partners. That’s why the universities and the state had to go around and do these, other eligible employee programs,” Brogan-Kator said. “It is not a wink and nod, but because it is living up to the reality imposed by the marriage amendment and the supreme court.”
ACLU’s Kaplan also assailed the legislation.
“The ACLU of Michigan strongly opposes any efforts by the Michigan Legislature to penalize universities that have voluntarily chosen to provide health insurance benefits to designated others of employees, which may include same-sex partners,” Kaplan said. “This action interferes and usurps the authority and autonomy of public universities to decide what kinds of benefits and compensation it offers to employees. At a time where Michigan families are feeling the effects of the economic downturn, why are members of Michigan legislature trying to eliminate the ability of universities to provide access to health care for their employees’ families? This insensitive and intrusive action taken by the Michigan House would also make it more difficult for Michigan universities to attract and retain the best and brightest talent for its faculty and staff, since universities in most other states are able to provide health insurance benefits to employees’ families, including same-sex partners.”