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Marriage Law Affects Domestic Benefits
The Michigan Supreme Court recently ruled that a referendum defining marriage as between a man and a woman requires public-sector employers to stop offering benefits to the domestic partners of employees. The ruling should have limited impact, however, experts say.
A Michigan referendum that clarified marriage as between a man and a woman had an unexpected impact on the benefits offerings of public employers in the state. In 2005, a nonprofit group representing gay, lesbian, bisexual and transgendered workers, National Pride at Work, joined some public employees and their same-sex partners in a lawsuit looking for some clarity following the referendum that amended the state constitution after it was approved by a majority of Michigan voters in 2004. The lawsuit was seeking a court determination that the amendment -- that stated "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." -- did not forbid public employers -- city/county governments, state universities -- from providing or continuing to provide health-insurance benefits to same-sex domestic partners. That was not the decision, however. The Michigan Supreme Court ruled in early May that the marriage amendment does ban state and municipal employers from providing health-insurance benefits to employees' same-sex domestic partners. It seemed, at first blush, like a decision that could reverberate across the country, but according to employment-law experts, the state high court's decision will probably have little, if any, impact on public-sector employers nationwide. That won't be the case for Michigan's public-sector employers, who must now make policy changes to continue to offer benefits to employees' same-sex partners. According to Pedro Ramos, a partner at Blank Rome, a Philadelphia law firm, employers in Michigan can side-step the decision by changing the language in their benefit policies. "So far, the response by some public employers, including the University of Michigan, is an expanded definition -- to try and reach some of the people who would lose benefits as a result of this decision," says Ramos, a University of Michigan Law School graduate. For example, employers can remove any marriage-specific language in their benefit policies, acknowledging mutual support or some other type of more objective criteria. As a result, the employer would not be subject to the marriage-amendment decision. According to Michele Granda, staff attorney with the nonprofit advocacy group, Gay and Lesbian Advocates and Defenders, in Boston, the decision "is an outlier, and meaningless in terms of national impact." "Of course, she says, "this decision certainly isn't what anyone wanted. These types of referendum amendments are punitive and toxic, and, in this case, can be used to take away benefits that can hurt a lot of people." "Despite the court's decision, gay people will continue to have benefits for their partners," agrees Emily Doskow, an attorney and co-author of A Legal Guide for Lesbian & Gay Couples (Nolo, 2007). "But the decision supports the argument that these anti-gay-marriage statutes are harmful." When the Michigan Supreme Court affirmed an appeals court's decision that "domestic partnerships are unions similar to marriage," it added that when public-sector employers provide health-insurance benefits to employees' domestic partners, "they are without a doubt recognizing the partnership." As such, giving benefits to same-sex partners violated the state's marriage amendment, the court ruled. Ramos says the court's decision is mostly a blow to public-sector employers in Michigan in their efforts to compete for talent with private-sector employers. The decision "certainly puts those institutions at a disadvantage," he says. "The biggest issue is a financial one," he says. "It's going to cost. You either will lose talent or ultimately have to pay more for the same talent. The people of Michigan end up losing on this, from a competitive perspective." The irony, he adds, is that while it is not yet common, domestic-partner benefits are increasing in popularity within the private sector for competitive reasons. "I've recently helped a number of employers institute domestic-partner policies," he says. An additional complication for public institutions could ensue when an employer makes changes to its policies to enable the offering of domestic benefits. "There will be situations within public employers that, in order to capture everyone they lose, they may end up with different types of household relationships who now become eligible for health benefits," he says. Granda doubts the Michigan decision will affect public-sector employers in other states. "Most people largely believe Michigan court got it wrong," she says. "Marriage restrictions are not typically used to prevent unmarried people from receiving the same benefits. Even the court itself noted that the Michigan marriage-amendment language was unique. It's really a meaningless result outside of Michigan."
June 2, 2008 Copyright 2008© LRP Publications |
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