Casebook on Sexual Orientation and the Law — National Pride at Work, Inc. v. Governor of Michigan

National Pride at Work, Inc. v. Governor of Michigan
Supreme Court of Michigan
481 Mich. 56, 748 N.W.2d 524
May 7, 2008

MARKMAN, J.

[¶ 1] We granted leave to appeal to consider whether the marriage amendment, which states that "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," prohibits public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners. Because we agree with the Court of Appeals that providing such benefits does violate the marriage amendment, we affirm its judgment.

I. FACTS AND HISTORY

[¶ 2] The marriage amendment was approved by a majority of the voters on November 2, 2004, and took effect as a provision of the Michigan Constitution on December 18, 2004. At that time, several public employers, including state universities and various city and county governments, had policies or agreements in effect that extended health-insurance benefits to their employees' qualified same-sex domestic partners. In addition, the Office of the State Employer (OSE) and the United Auto Workers Local 6000 (UAW) had reached a tentative agreement to include same-sex domestic-partner health-insurance benefits in the benefit package for state employee members of the union. However, on December 2, 2004, the OSE and the UAW agreed not to submit the proposed contract to the Civil Service Commission until after there had been a court determination that the language of the proposed contract did not violate the marriage amendment.

[¶ 3] On March 21, 2005, plaintiffs filed this declaratory judgment action against the Governor, seeking a declaration that the marriage amendment does not bar public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners. The Attorney General, acting on behalf of the Governor, moved to dismiss plaintiffs' suit. The Governor obtained separate counsel, who withdrew the motion to dismiss and filed a brief supporting plaintiffs. The Attorney General then intervened in his own right and adopted the brief that he had initially filed on the Governor's behalf as his own.

[¶ 4] The trial court granted plaintiffs' motion for summary disposition and declared that the marriage amendment does not bar public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners. The court held that health-insurance benefits do not constitute one of the "benefits of marriage." The court further held that the "criteria [used by the public employers] also do not recognize a union 'similar to marriage'" because the "criteria, even when taken together, pale in comparison to the myriad of legal rights and responsibilities accorded to those with marital status."

[¶ 5] The Attorney General appealed and moved for a stay. The Court of Appeals granted the motion for a stay and reversed the trial court, declaring that the marriage amendment does bar public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners. The Court of Appeals held that "a publicly recognized domestic partnership need not mirror a marriage in every respect in order to run afoul of [the marriage amendment] because the amendment plainly precludes recognition of a 'similar union for any purpose.' All the plans listed establish criteria for eligibility that are similar to those for marriage. [T]he agreement between the employee and the dependent constitutes a union similar to marriage, because with the agreement (as with a marriage), the employer has a legal obligation to recognize the union and provide benefits to the eligible dependent (as with a spouse)." Finally,

[t]he requirement that an employee prove the existence either of a written domestic-partnership agreement or an agreement between the employee and the dependent to be jointly responsible for basic living and household expenses, in order to establish eligibility by the partner or dependent for insurance coverage, constitutes recognition by the public employer of a 'similar union for any purpose,' i.e., the purpose of extending to domestic partners and dependents the benefit of insurance coverage equivalent to coverage that is extended to spouses.

[¶ 6] Plaintiffs and the Governor appealed, and this Court granted the applications for leave to appeal.

III. ANALYSIS

A. DOMESTIC-PARTNERSHIP POLICIES

[¶ 7] The tentative agreement reached by the OSE and the UAW would require domestic partners to meet the following criteria in order to receive health-insurance benefits:

1. Be at least 18 years of age.

2. Share a close personal relationship with the employee and be responsible for each other's common welfare.

3. Not have a similar relationship with any other person, and not have had a similar relationship with any other person for the prior six months.

4. Not be a member of the employee's immediate family as defined as employee's spouse, children, parents, grandparents or foster parents, grandchildren, parents-in-law, brothers, sisters, aunts, uncles or cousins.

5. Be of the same gender.

6. Have jointly shared the same regular and permanent residence for at least six months, and have an intent to continue doing so indefinitely.

7. Be jointly responsible for basic living expenses, including the cost of food, shelter and other common expenses of maintaining a household. This joint responsibility need not mean that the persons contribute equally or in any particular ratio, but rather that the persons agree that they are jointly responsible.

[¶ 8] The tentative agreement also provides: "In order to establish whether the criteria have been met, the employer may require the employee to sign an Affidavit setting forth the facts and circumstances which constitute compliance with those requirements."

[¶ 9] The city of Kalamazoo's "Domestic Partner Benefits Policy," incorporated in its collective-bargaining agreements, provided health-insurance benefits to the domestic partners of the city's employees who met the following criteria:

[¶ 10] For the purposes of the City of Kalamazoo's program, the definition and use of the term domestic partner shall only include couples of the same sex. To be considered as domestic partners, the individuals must:

A. Be at least 18 and mentally competent to enter into a contract;

B. Share a common residence and have done so for at least six (6) months;

C. Be unmarried and not related by blood closer than would prevent marriage;

D. Share financial arrangements and daily living expenses related to their common welfare;

E. File a statement of termination of previous domestic partnership at least six (6) months prior to signing another Certification of Domestic Partnership.

[¶ 11] The city also required the employee and his or her domestic partner to sign a notarized certification of domestic partnership that affirmed these criteria. In addition, they were required to provide evidence of "mutual economic dependence," such as a joint lease or mortgage, and evidence of a "common legal residence," such as driver's licenses or voter's registrations. Finally, the city's policy provided: "It is the intent of this program to provide insurance coverage and other benefits to domestic partners of the City of Kalamazoo identical to those provided to spouses of City employees."

B. MARRIAGE AMENDMENT

[¶ 12] The marriage amendment provides: "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."

[¶ 13] The primary objective in interpreting a constitutional provision is to determine the original meaning of the provision to the ratifiers, "we the people," at the time of ratification. Justice Cooley has described this rule of "common understanding" in this way:

For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. [Cooley, Constitutional Limitations (1st ed), p 66.]

[¶ 14] 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. This Court typically discerns the common understanding of constitutional text by applying each term's plain meaning at the time of ratification. Wayne Co v Hathcock, 471 Mich 445, 468-469 (2004).

C. "SIMILAR UNION"

[¶ 15] Plaintiffs argue that "the only thing that is prohibited by the [marriage] amendment is the recognition of a same-sex relationship as a marriage" and that the public employers here are not recognizing a domestic partnership "as a marriage." We respectfully disagree. First, the amendment prohibits the recognition of a domestic partnership "as a marriage or similar union . . . ." That is, it prohibits the recognition of a domestic partnership as a marriage or as a union that is similar to a marriage. Second, just because a public employer does not refer to, or otherwise characterize, a domestic partnership as a marriage or a union similar to a marriage does not mean that the employer is not recognizing a domestic partnership as a marriage or a union similar to a marriage.

[¶ 16] The pertinent question is not whether public employers are recognizing a domestic partnership as a marriage or whether they have declared a domestic partnership to be a marriage or something similar to marriage; rather, it is whether the public employers are recognizing a domestic partnership as a union similar to a marriage. A "union" is "something formed by uniting two or more things; combination; . . . a number of persons, states, etc., joined or associated together for some common purpose." Random House Webster's College Dictionary (1991). Certainly, when two people join together for a common purpose and legal consequences arise from that relationship, i.e., a public entity accords legal significance to this relationship, a union may be said to be formed. When two people enter a domestic partnership, they join or associate together for a common purpose, and, under the domestic-partnership policies at issue here, legal consequences arise from that relationship in the form of health-insurance benefits. Therefore, a domestic partnership is most certainly a union.

[¶ 17] The next question is whether a domestic partnership is similar to a marriage. Plaintiffs and the dissent argue that because the public employers here do not bestow upon a domestic partnership all the legal rights and responsibilities associated with marriage, the partnership is not similar to a marriage. Again, we respectfully disagree. "Similar" means "having a likeness or resemblance, [especially] in a general way; having qualities in common[.]" Random House Webster's College Dictionary (1991); see also White v City of Ann Arbor, 406 Mich 554, 572-574 (1979). A union does not have to possess all the same legal rights and responsibilities that result from a marriage in order to constitute a union "similar" to that of marriage. If the marriage amendment were construed to prohibit only the recognition of a union that possesses legal rights and responsibilities identical to those that result from a marriage, the language "or similar union" would be rendered meaningless, and an interpretation that renders language meaningless must be avoided. Sweatt v Dep't of Corrections, 468 Mich 172, 183 (2003) (opinion by Markman, J.). Further, the dissimilarities identified by plaintiffs are not dissimilarities pertaining to the nature of the marital and domestic-partnership unions themselves, but are merely dissimilarities pertaining to the legal effects that are accorded these relationships. However, given that the marriage amendment prohibits the recognition of unions similar to marriage "for any purpose," the pertinent question is not whether these unions give rise to all the same legal effects; rather, it is whether these unions are being recognized as unions similar to marriage "for any purpose."

[¶ 18] For these reasons, we respectfully disagree with the trial court's conclusion that the "criteria [used by the public employers] . . . do not recognize a union 'similar to marriage'" because the "criteria, even when taken together, pale in comparison to the myriad of legal rights and responsibilities accorded to those with marital status." Instead, we agree with the Court of Appeals that "a publicly recognized domestic partnership need not mirror a marriage in every respect in order to run afoul of [the marriage amendment] because the amendment plainly precludes recognition of a 'similar union for any purpose.'"

[¶ 19] All the domestic-partnership policies at issue here require the partners to be of a certain sex, i.e., the same sex as the other partner. Similarly, Michigan law requires married persons to be of a certain sex, i.e., a different sex from the other. In addition, each of the domestic-partnership policies at issue in this case requires that the partners not be closely related by blood. Similarly, Michigan law requires that married persons not be closely related by blood. Although there are, of course, many different types of relationships in Michigan that are accorded legal significance -- e.g., debtor-creditor, parent-child, landlord-tenant, attorney-client, employer-employee -- marriages and domestic partnerships appear to be the only such relationships that are defined in terms of both gender and the lack of a close blood connection. As discussed earlier, "similar" means "having a likeness or resemblance, [especially] in a general way; having qualities in common[.]" Random House Webster's College Dictionary (1991). Marriages and domestic partnerships share two obviously important, and apparently unique (at least in combination), qualities in common. Because marriages and domestic partnerships share these "similar" qualities, we believe that it can fairly be said that they "resembl[e]" one another "in a general way." Therefore, although marriages and domestic partnerships are by no means identical, they are similar. Because marriages and domestic partnerships are the only relationships in Michigan defined in terms of both gender and lack of a close blood connection, and, thus, have these core "qualities in common," we conclude that domestic partnerships are unions similar to marriage.

D. "RECOGNIZED"

[¶ 20] The next question concerns whether public employers are truly recognizing a domestic partnership as a union similar to marriage when they provide health-insurance benefits to domestic partners on the basis of the partnership. "Recognize" is defined as "to perceive or acknowledge as existing, true, or valid[.]" Random House Webster's College Dictionary (1991). When a public employer attaches legal consequence to a relationship, that employer is clearly "recognizing" that relationship. That is, by providing legal significance to a relationship, the public employer is acknowledging the validity of that relationship. When public employers provide domestic partners health-insurance benefits on the basis of the domestic partnership, they are without a doubt recognizing the partnership.

E. "ONLY AGREEMENT"

[¶ 21] The next question concerns whether public employers are recognizing an "agreement" when they provide health-insurance benefits to domestic partners. An "agreement" is "the act of agreeing or of coming to a mutual arrangement." The city of Kalamazoo policy requires putative partners to sign a domestic-partnership agreement. The OSE's policy requires partners to "agree that they are jointly responsible" "for basic living expenses . . . ." Obviously, if two people have decided to sign a domestic-partnership agreement or have agreed to be jointly responsible for basic living expenses, they have come to a mutual arrangement. Therefore, public employers recognize an agreement when they provide health-insurance benefits to domestic partners on the basis of a domestic partnership.

[¶ 22] However, the marriage amendment specifically states that the "only" agreement that can be recognized as a marriage or similar union is the union of one man and one woman. "Only" means "the single one . . . of the kind; lone; sole[.]" Random House Webster's College Dictionary (1991). Therefore, a single agreement can be recognized within the state of Michigan as a marriage or similar union, and that single agreement is the union of one man and one woman. A domestic partnership does not constitute such a recognizable agreement.

F. "FOR ANY PURPOSE"

[¶ 23] Furthermore, the marriage amendment specifically prohibits recognizing "for any purpose" a union that is similar to marriage but is not a marriage. "Any" means "every; all[.]" Therefore, if there were any residual doubt regarding whether the marriage amendment prohibits the recognition of a domestic partnership for the purpose at issue here, this language makes it clear that such a recognition is indeed prohibited "for any purpose," which obviously includes for the purpose of providing health-insurance benefits. Whether the language "for any purpose" is essential to reach the conclusion that health-insurance benefits cannot be provided under the instant circumstances, or merely punctuates what is otherwise made clear in the amendment, the people of this state could hardly have made their intentions clearer.

G. "BENEFITS OF MARRIAGE"

[¶ 24] The marriage amendment begins with a statement of its purpose that is effectively a preamble: "To secure and preserve the benefits of marriage for our society and for future generations of children . . . ." Plaintiffs argue that the marriage amendment does not prohibit public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners because health-insurance benefits do not constitute a benefit of marriage. However, the marriage amendment contains more than just a statement of purpose. In full, it states: "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." The latter -- the operative -- part of this provision sets forth how the ratifiers intended to go about achieving the purposes set forth in the first part, "secur[ing] and preserv[ing] the benefits of marriage . . . ." This operative part specifies that public employers must not recognize domestic partnerships for any purpose. That is, the first part of the amendment states its purpose, and the second part states the means by which this purpose is to be achieved. Doubtless, there are those who would disagree about the efficacy of achieving the former purpose by the latter means. However, it is not for this Court to decide whether there are superior means for "secur[ing] and preserv[ing] the benefits of marriage," or indeed whether the means chosen in the amendment are ineffectual or even counterproductive. The people of this state have already spoken on this issue by adopting this amendment. They have decided to "secure and preserve the benefits of marriage" by ensuring that unions similar to marriage are not recognized in the same way as a marriage for any purpose.

H. EXTRINSIC EVIDENCE

[¶ 25] Plaintiffs and the dissent argue that Citizens for the Protection of Marriage, an organization responsible for placing the marriage amendment on the 2004 ballot and a primary supporter of this initiative during the ensuing campaign, published a brochure that indicated that the proposal would not preclude public employers from offering health-insurance benefits to their employees' domestic partners. However, such extrinsic evidence can hardly be used to contradict the unambiguous language of the constitution. American Axle & Mfg, Inc v Hamtramck, 461 Mich 352, 362 (2000) ("[R]eliance on extrinsic evidence was inappropriate because the constitutional language is clear."). As Justice Cooley explained:

The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. . . . "Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the [lawgiver] should be intended to mean what they have plainly expressed, and consequently no room is left for construction." [Cooley, Constitutional Limitations (1st ed), p 55 (emphasis in the original), quoted in American Axle, 461 Mich at 362.]

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.

[¶ 26] In Michigan Civil Rights Initiative v Bd of State Canvassers, 475 Mich 903, 903 (2006) (Markman, J., concurring), in which it was alleged that numerous petition signatures had been obtained in support of placing the Michigan Civil Rights Initiative (MCRI) on the ballot by circulators who misrepresented the MCRI, it was emphasized that "the signers of these petitions did not sign the oral representations made to them by circulators; rather, they signed written petitions that contained the actual language of the MCRI." Similarly, the voters here did not vote for or against any brochure produced by Citizens for the Protection of Marriage; rather, they voted for or against a ballot proposal that contained the actual language of the marriage amendment.

[¶ 27] Moreover, like the Citizens for the Protection of Marriage, the Michigan Civil Rights Commission issued a statement asserting:

If passed, Proposal 2 would result in fewer rights and benefits for unmarried couples, both same-sex and heterosexual, by banning civil unions and overturning existing domestic partnerships. Banning domestic partnerships would cause many Michigan families to lose benefits such as health and life insurance, pensions and hospital visitation rights.

[¶ 28] Therefore, all that can reasonably be discerned from the extrinsic evidence is this: before the adoption of the marriage amendment, there was public debate regarding its effect, and this debate focused in part on whether the amendment would affect domestic-partnership benefits. The people of this state then proceeded to the polls, they presumably assessed the actual language of the amendment in light of this debate, and a majority proceeded to vote in favor. The role of this Court is not to determine who said what about the amendment before it was ratified, or to speculate about how these statements may have influenced voters. Instead, our responsibility is, as it has always been in matters of constitutional interpretation, to determine the meaning of the amendment's actual language.

[¶ 29] When the dissent accuses the majority of "condon[ing] and even encourag[ing] the use of misleading tactics in ballot campaigns," we can only surmise from this that the dissent believes that this Court must defer in its constitutional interpretations, not to the language of the constitution, but to myriad statements from private individuals and organizations, some of which may have ascribed meanings to the constitution utterly at odds with its actual language. We do not believe the people of this state have acquiesced in this delegation of judicial responsibility from the courts to private interest groups.

I. OTHER STATES

[¶ 30] Finally, none of the decisions from other states on which plaintiffs rely is helpful because none involves the specific language contained in Michigan's marriage amendment. See, e.g., State v Carswell, 114 Ohio St 3d 210 (2007) (constitutional provision providing: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions."). As the Washington Court of Appeals explained, "Michigan's marriage amendment is unique from other jurisdictions because it prohibits the recognition of not only same-sex marriages, but also 'similar unions.'" Leskovar v Nickels, 140 Wash App 770, 780 (2007). "Washington's marriage statute prohibits marriage by 'persons other than a male and a female.' It is distinct from Michigan's marriage amendment, and does not prohibit the recognition of 'similar unions for any purpose.'"

[¶ 31] The same is true of all the cases cited by plaintiffs -- each is interpreting a provision of law that is simply too different from Michigan's marriage amendment to be of persuasive value in determining how this state's amendment should be interpreted.

IV. CONCLUSION

[¶ 32] The trial court held that providing health-insurance benefits to domestic partners does not violate the marriage amendment because public employers are not recognizing domestic partnerships as unions similar to marriage, given the significant distinctions between the legal effects accorded to these two unions. However, given that the marriage amendment prohibits the recognition of unions similar to marriage "for any purpose," the pertinent question is not whether these unions give rise to all of the same legal effects; rather, it is whether these unions are being recognized as unions similar to marriage "for any purpose." Recognizing this and concluding that these unions are indeed being recognized as similar unions "for any purpose," the Court of Appeals reversed. We affirm its judgment. That is, we conclude that the marriage amendment, which states that "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," prohibits public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners.

Stephen J. Markman

Clifford W. Taylor

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

KELLY, J. (dissenting).

[¶ 33] The issue we decide is whether the so-called "marriage amendment" of the Michigan Constitution prevents public employers from voluntarily providing health benefits to their employees' same-sex domestic partners. The majority has determined that it does. I disagree.

[¶ 34] First, the language of the amendment itself prohibits nothing more than the recognition of same-sex marriages or similar unions. It is a perversion of the amendment's language to conclude that, by voluntarily offering the benefits at issue, a public employer recognizes a union similar to marriage. Second, the circumstances surrounding the adoption of the amendment strongly suggest that Michigan voters did not intend to prohibit public employers from offering healthcare benefits to their employees' same-sex partners. The majority decision does not represent "the law which the people have made, [but rather] some other law which the words of the constitution may possibly be made to express." Accordingly, I dissent.

THE UNDERLYING FACTS

[¶ 35] On November 2, 2004, a majority of Michigan voters chose to amend the Michigan Constitution. This amendment is sometimes termed the "marriage amendment." It provides:

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.

[¶ 36] At the time the amendment was adopted, several public employers in the state had policies that extended health-care benefits to their employees' same-sex domestic partners. Also, the Office of the State Employer had negotiated an agreement that was to provide domestic-partner benefits to some state employees.

[¶ 37] In March 2005, in response to an inquiry, the Attorney General issued a formal opinion that concluded that the amendment prohibited public employers from granting benefits to their employees' same-sex partners. Five days after the Attorney General issued the opinion, National Pride At Work, Inc., which is a constituency group of the AFL-CIO, and 41 individuals filed the instant lawsuit against Governor Granholm. The lawsuit sought a declaratory judgment that the amendment does not prohibit public employers from providing the benefits.

[¶ 38] The Attorney General, acting on the Governor's behalf, moved to dismiss the suit on the basis that plaintiffs lacked standing. The Governor then obtained separate counsel and withdrew the motion. She proceeded to file a brief supporting plaintiffs' position. This prompted the Attorney General to intervene as a defendant.

[¶ 39] Plaintiffs moved for summary disposition, arguing that the amendment does not prohibit public employers from voluntarily providing the benefits at issue. The trial court agreed and granted the motion. The court found that the amendment does not prohibit the benefits because "[b]y voluntarily providing domestic partner health care benefits to an employer-defined group of people, the Plaintiffs' employers are not 'recognizing a marriage or similar union.'"

[¶ 40] The Attorney General appealed the trial court's decision in the Court of Appeals and moved for a stay. The Court of Appeals granted the stay and, in a unanimous published opinion, reversed the trial court's decision. The panel concluded that the amendment prohibited public employers from granting health benefits to their employees' same-sex domestic partners.

[¶ 41] This Court granted leave to appeal to consider the issue.

TWO KEY CONSIDERATIONS

[¶ 42] As always, when interpreting the Michigan Constitution, this Court's "duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express." The initial step in determining what law the people have made is to examine the specific language used. In so doing, "'"it is not to be supposed that [the people] have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed."'" And, since our task is a search for intent, it is often necessary to "consider the circumstances surrounding the adoption of the provision and the purpose it is designed to accomplish."

THE CIRCUMSTANCES SURROUNDING THE ADOPTION OF THE AMENDMENT

[¶ 43] Beginning in 1993 with the Hawaii Supreme Court case of Baehr v Lewin, a number of state courts and state legislatures joined in a national discussion on the constitutionality of barring same-sex marriages. In Baehr, the court held that Hawaii's statute limiting marriage to one man and one woman was presumptively unconstitutional under the Hawaii Constitution. It held that the state had the burden of showing a compelling state interest in limiting marriage to male/female unions. Following Baehr, the Vermont Supreme Court issued a decision in 1999 ordering the state legislature to create a legal form that would afford same-sex couples a status similar to that of married couples. Then, in 2003, in the famous case of Goodridge v Dep't of Pub Health, the Massachusetts Supreme Judicial Court held that barring two people of the same sex from marrying violated the equal protection guarantees of the Massachusetts Constitution. That same year, the California Legislature granted registered domestic partners "the same rights, protections, and benefits . . . as are granted to and imposed upon spouses."

[¶ 44] It was against this background that the Michigan Christian Citizens Alliance commenced an initiative to amend the Michigan Constitution to bar same-sex marriage. The alliance formed the Citizens for the Protection of Marriage committee (CPM) "in response to the debate taking place across the country over the definition of marriage." The committee's stated goal was to place the issue of same-sex marriage on the ballot so that Michigan voters would have the ultimate say in the matter.

[¶ 45] During CPM's campaign, concerns arose regarding exactly what the amendment would prohibit. CPM attempted to address these concerns at an August 2004 public certification hearing before the Board of State Canvassers. Specifically, CPM addressed whether the amendment, which it had petitioned to place on the ballot, would bar public employers from providing benefits to their employees' same-sex domestic partners. CPM's representative, attorney Eric E. Doster, assured the board that it would not. Mr. Doster stated:

[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 . . . .

[¶ 46] Mr. Doster reiterated this point several times throughout the proceedings.

I'd hate to be repetitive, but again, that's a matter of contract between an employer and employee. And if the employer wanted to do that, offer those benefits, I don't see how this language affects that. If the language just said "marriage" or "spouse," then I would agree with you. But there's nothing in this language that I would interpret that would say that that somehow would go beyond that.

[¶ 47] In its campaign to win over voters, CPM made a number of additional public statements that were consistent with Mr. Doster's testimony before the Board of State Canvassers. For example, Marlene Elwell, the campaign director for CPM, was quoted in USA Today as stating that "[t]his has nothing to do with taking benefits away. This is about marriage between a man and a woman." Similarly, CPM communications director Kristina Hemphill was quoted as stating that "[t]his Amendment has nothing to do with benefits . . . . It's just a diversion from the real issue."

[¶ 48] CPM also made clear on its webpage that it was "not against anyone, [CPM is] for defining marriage as the union of one man and one woman. Period." Instead, CPM contended that its reason for proposing the amendment was its belief that "[n]o one has the right to redefine marriage, to change it for everyone else. Proposal 2 will keep things as they are and as they've been. And by amending Michigan's constitution, we can settle this question once and for all."

[¶ 49] CPM even distributed a brochure that asserted that the amendment would not affect any employer health-benefit plan already in place. The brochure stated:

Proposal 2 is Only about Marriage

Marriage is a union between a husband and wife. Proposal 2 will keep it that way. This is not about rights or benefits or how people choose to live their life. This has to do with family, children and the way people are. It merely settles the question once and for all what marriage is -- for families today and future generations.

[¶ 50] It can be assumed that the clarifications offered by CPM, the organization that successfully petitioned to place the proposal on the ballot, carried considerable weight with the public. Its statements certainly encouraged voters who did not favor a wide-ranging ban to vote for what they were promised was a very specific ban on same-sex marriage.

[¶ 51] And a poll conducted shortly before the election indicates that CPM's public position was in line with public opinion. The poll results indicated that, whereas the public was in favor of banning same-sex marriage, it was not opposed to employer programs granting benefits to same-sex domestic partners.

[¶ 52] In an August 2004 poll of 705 likely voters, 50 percent of respondents favored the amendment while only 41 percent planned to vote against it. But 70 percent specifically disapproved of making domestic partnerships and civil unions illegal. Sixty-five percent disapproved of barring cities and counties from providing domestic-partner benefits. And 63 percent disapproved of prohibiting state universities from offering domestic-partner benefits.

[¶ 53] Accordingly, the circumstances surrounding the adoption of the amendment indicate that the lead proponents of the amendment worked hard to convince voters to adopt it. CPM told voters that the "marriage amendment" would bar same-sex marriage but would not prohibit public employers from providing the benefits at issue. It is reasonable to conclude that these statements led the ratifiers to understand that the amendment's purpose was limited to preserving the traditional definition of marriage. And it seems that a majority of likely voters favored an amendment that would bar same-sex marriage but would go no further. Therefore, this Court's majority errs by holding that the amendment not only bars same-sex marriage but also prohibits the benefits at issue. The error of the majority decision is confirmed by examining the amendment's language.

THE LANGUAGE OF THE "MARRIAGE AMENDMENT"

[¶ 54] The "marriage amendment" provides:

[¶ 55] It has two parts. The first lists the amendment's purpose: "[t]o secure and preserve the benefits of marriage for our society and for future generations of children . . . ." The second discusses how that purpose is to be accomplished. Both are relevant in determining whether public employers are prohibited from providing the benefits at issue in this case.

[¶ 56] The "marriage amendment" undertakes to accomplish its purpose of protecting the benefits of marriage by providing that "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." Through this language, the amendment prohibits the recognition of same-sex "[1] marriage or [2] similar union[s]."

[¶ 57] It is clear that the employee-benefit programs at issue do not recognize same-sex marriage. Therefore, if the programs violate the amendment, it must be by recognizing a union similar to marriage. For a union to be "similar" to marriage, it must share the same basic characteristics or qualities of a marriage. Thus, in deciding whether the public employers violate the amendment by providing the benefits at issue, we must first consider what a marriage entails.

[¶ 58] Marriage has been called "the most important relation in life . . . ." It "is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects."

[¶ 59] "[B]ut [marriage] is not a pure private contract. It is affected with a public interest and by a public policy." Therefore, the state retains control to define and regulate the marriage union. It does so by defining who is qualified to marry, what must be done for a marriage to take place, and the methods for the solemnification and dissolution of marriage.

[¶ 60] And the state confers many rights, benefits, and responsibilities solely as the result of a marriage. As the United States Supreme Court has said, "[t]he relation once formed, the law steps in and holds the parties to various obligations and liabilities." It would take pages to list each of the state statutes that name legal rights and responsibilities that stem from a marriage. Examples of a few are: Each spouse has an equal right to property acquired during the marriage. Each spouse has the right to pension and retirement benefits accrued during the marriage. Each spouse has the right to invoke spousal immunity to prevent the other spouse's testimony. And each has the right to damages for the wrongful death of his or her spouse. In addition, there are more than 1,000 federal laws conferring even more benefits and privileges on married couples.

[¶ 61] Accordingly, it is obvious that there are two separate elements to marriage: There is the private bond between two people, which the state recognizes by solemnifying the marriage. And there are the benefits, rights, and responsibilities that the state confers on individuals solely by virtue of their status of being married. Both elements are necessary and important components of marriage. Hence, for a union to be similar to marriage, it must mirror more than the manner in which the private bond is recognized. It must also carry with it comparable benefits, rights, and responsibilities.

[¶ 62] The employer benefit programs at issue do not grant same-sex couples the rights, responsibilities, or benefits of marriage. The most that can be said is that the programs provide health-insurance coverage to same-sex partners. But health coverage is not a benefit of marriage. Although many benefits are conferred on the basis of the status of being married, health benefits are not among them. Notably absent is any state or federal law granting health benefits to married couples. Instead, the health coverage at issue is a benefit of employment. And the fact that the coverage is conferred on the employee's significant other does not transform it into a benefit of marriage; the coverage is also conferred on other dependents, such as children.

[¶ 63] But even if health coverage were a benefit of marriage, it is the only benefit afforded to the same-sex couples in this case. The same-sex couples are not granted any of the other rights, responsibilities, or benefits of marriage. It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage. It follows that the amendment is not violated because the employee-benefit programs do not constitute recognition of same-sex "marriage or [a] similar union."

[¶ 64] Determining that the amendment does not prohibit public employers from providing health benefits to same-sex domestic partners is consistent with the purpose explicitly expressed in the amendment. The amendment's stated purpose is "[t]o secure and preserve the benefits of marriage for our society and for future generations of children[.]" As discussed earlier, the state is not required to provide health benefits to spouses. Therefore, it makes no sense to find that health benefits are benefits of marriage just because some public employers voluntarily provide those benefits to spouses. Instead, the health benefits at issue are benefits of employment. The amendment's stated purpose does not protect or restrict employment benefits. Therefore, barring public employers from providing the benefits at issue does nothing to further the purpose of the amendment. This is another fact that weighs in favor of my interpretation.

[¶ 65] The Attorney General makes much of the fact that the amendment uses the phrase "for any purpose." The Attorney General contends that, as long as one benefit is provided to same-sex couples in the same way that it is provided to married couples, the amendment is violated. The majority accepts this argument. The majority's interpretation of the amendment is problematic because it essentially reads the word "similar" out of the amendment. It construes the amendment to read: "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or union for any purpose."

[¶ 66] The amendment does not prohibit the state from recognizing the validity of same-sex unions for any purpose. It prohibits the state from recognizing a same-sex marriage or a same-sex union that is similar to a marriage for any purpose. Accordingly, unless the state recognizes a same-sex marriage or a same-sex union that is similar to a marriage, the "for any purpose" language has no application. The majority fails to recognize this point.

CONCLUSION

[¶ 67] The majority decides that the "marriage amendment" prevents public employers from voluntarily entering into contractual agreements to provide health benefits to their employees' same-sex domestic partners. Its decision is contrary to the people's intent as demonstrated by the circumstances surrounding the adoption of the amendment and as expressed in the amendment's language. For those reasons, I must dissent.

[¶ 68] Furthermore, by proceeding as it does, the majority condones and even encourages the use of misleading tactics in ballot campaigns by ignoring the extrinsic evidence available to it. CPM petitioned to place the "marriage amendment" on the ballot, telling the public that the amendment would not prohibit public employers from offering health benefits to their employees' same-sex domestic partners. Yet CPM argued to this Court that the "plain language of Michigan's Marriage Amendment" prohibits public employers from granting the benefits at issue. Either CPM misrepresented the meaning of the amendment to the State Board of Canvassers and to the people before the election or it misrepresents the meaning to us now. Whichever is true, this Court should not allow CPM to succeed using such antics. The result of the majority's disregard of CPM's preelection statements is that, in the future, organizations may be encouraged to use lies and deception to win over voters or the Court. This should be a discomforting thought for us all.

Marilyn Kelly Michael

F. Cavanagh