Column One:
Eye on Unmarried America

February 19,  2007  



Michigan court provides loophole in benefits ruling

By Thomas F. Coleman

Government employers may not provide spousal-type benefits to unmarried couples.  So says the Michigan Court of Appeals.

The ACLU has vowed to take the case to the Michigan Supreme Court.

The case arose when 21 same-sex couples filed a lawsuit to prevent the Michigan "Defense of Marriage Act" from invalidating domestic partner benefits plans operated by various state and local government employers.  The act was adopted in 2004 when nearly 59 percent of state voters approved a ballot measure amending the Michigan Constitution.

The amendment specified 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."

The Michigan ruling will undoubtedly be used by opponents of domestic partner benefits programs in other states.  Twenty-seven states have passed constitutional bans on gay marriage in the past few years.  Like Michigan, 18 of them also ban the recognition of civil unions or domestic partnerships.

The benefits programs at issue in the Michigan case had eligibility criteria for same-sex couples which virtually mirrored the requirements for marriage.  It was the marriage look-alike aspect which caught the court's attention.

Although the plaintiffs were all same-sex partners, the appeals court noted that its ruling applied equally to unmarried heterosexual couples.

Michigan Attorney General Mike Cox intervened in the case to oppose the same-sex plaintiffs after Governor Jennifer Granholm expressed her support for the domestic partner benefits programs.  Granholm said that voters never intended to ban such benefits when they voted for the constitutional amendment.

Nearly a dozen public colleges and universities in Michigan have programs which are immediately affected by this decision. The University of Michigan, one of the largest, had 204 employees using the school's same-sex partner benefits policy.

Employees of the State of Michigan will also lose out. The state agreed to provide same-sex benefits in 2004 but put the plan on hold until the courts ruled on its legality.

The Michigan ruling did, however, leave open the possibility of public employers giving benefits to unmarried couples if it is done in a way that does not mimic marriage.

"The amendment as written does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship," the court observed in its decision. 

If the Michigan Supreme Court does not reverse the ruling, then public employers will need to discontinue them completely unless they are creatively modified to take advantage of this narrow loophole.

Two alternative methods come to mind. 

They could expand the definition of "family" and recognize unmarried adults in an "extended family benefits" program, or they could institute a "household benefits" plan.  Either way, the courts should not find the program to be a marriage look-alike.

The District of Columbia has a plan which allows an employee to obtain benefits for an immediate family member, which can include an unmarried partner or a blood relative.  The University of California has taken a similar approach.

By allowing relatives to participate, eligibility looks more like a "family" plan than a "spousal" benefits program.  The Michigan constitutional amendment does not restrict the definition of "family" -- only the definition of "marriage". 

Employers could also create a "household benefits" program, allowing each employee to designate one adult household member for benefits, whether they be a spouse, a relative, or a domestic partner.  To prevent fraud or abuse, employers could require the parties to supply proof they are financially interdependent and have lived together for a specified period of time.

I don't know of any government employers with household benefits programs, but two private employers do come to mind.  Ohio-based Nationwide Insurance started its program in 2000.  Catholic Charities, a San-Francisco nonprofit, started its "household benefits" program a few years earlier.

If the courts do not stay this decision until it is resolved by the Supreme Court, public employers in Michigan may consider one of these alternatives as an immediate solution.

Assuming their objective is to distribute benefits more fairly, they really don't have to wait for Michigan voters to repeal the Defense of Marriage Act.  If they wait for that to happen, their younger employees may have transformed over the ensuing years from employees to retirees.

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Unmarried America 2007

Thomas F. Coleman, Executive Director of Unmarried America, is an attorney with 33 years of experience in singles' rights, family diversity, domestic partner benefits, and marital status discrimination.  Each week he adds a new commentary to Column One: Eye on Unmarried America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.