Nat'L Pride v. Governor

732 N.W.2d 139

274 Mich. App. 147

NATIONAL PRIDE AT WORK, INC., Becky Allen, Dorthea Agnostopoulos, Adnan Ayoub, Meghan Bellanger, Judith Block, Mary M. Brisbois, Wade Carlson, Courtney D. Chapin, Michael Chapman, Michelle Corwin, Lori Curry, Joseph Darby, Scott Dennis, Jim Etzkorn, Jill Fuller, Susan Halsey-Ceragh, Peter Hammer, Debra Harrah, Ty Hiither, Jolinda Jach, Terry Korreck, Craig Kukuk, Gary Lindsay, Kevin Mcmann, A.T. Miller, Kitty O'Neil, Dennis Patrick, Tom Patrick, Gregg Pizzi, Kathleen Poelker, Jerome Post, Barbara Ramber, Paul Renwick, Dahlia Schwartz, Alexandra Stern, Gwen Stokes, Ken Cyberski, Joanne Beemon, Carol Borgeson, Michael Falk, and Matt Scott, Plaintiff-Appellees, v. GOVERNOR OF MICHIGAN and Claim of Appeal City of Kalamazoo, Defendant-Appellee, and Attorney General, Intervening Defendant-Appellant.

Docket No. 265870.

Court of Appeals of Michigan.

Submitted April 11, 2006, at Lansing.

Decided February 1, 2007, at 9:20 a.m.

Released for Publication May 14, 2007.

Deborah A. Labelle, Ann Arbor; Jay D. Kaplan, Detroit; Michael J. Steinberg, Detroit; Kary L. Moss, Detroit; Pepper Hamilton LLP (by Thomas P. Wilczak, Barbara Eckert Buchanan, Kurt A. Kissling, and Amanda J. Shelton), Detroit; Roderick M. Hills, Jr., Ann Arbor; and Nancy S. Katz, Plymouth, for National Pride at Work, Inc.; and others.

Susan I. Leffler and D.J. Pascoe, Assistant Attorneys General, for the Governor.

Michael A. Cox, Attorney General, Henry J. Boynton, Assistant Solicitor General, and Eric Restuccia and Joseph E. Potchen, Assistant Attorneys General, for the Attorney General.

Stephen K. Postema, City Attorney, for the city of Ann Arbor.

Gloria A. Hage, Marvin Krislov, Debra A. Kowich, and Louis A. Lessem for the University of Michigan Regents and the Wayne State University Board of Governors.

Allen Brothers PLLC (by John M. Allen), Detroit, for Triangle Foundation, Michigan Equality, Women Lawyers Association of Michigan, and National Gay and Lesbian Task Force.

Butzel Long (by Leonard M. Niehoff) for Arab Community Center, Ann Arbor, for Economic & Social Services, Fair Housing Center of Metropolitan Detroit, Patricia Klein, and Raymond Jefferson.

Stephen M. Crampton, Tupelo, MS, and Law Office of LaRae G. Munk, PC (by LaRae G. Munk), Midland, for American Family Association of Michigan.

David & Wierenga, P.C. (by James R. Wierenga) Grand Rapids, and Alliance Defense Fund (by Benjamin W. Bull, Glen Lavy, Christopher R. Stovall, and Dale Schowengerdt) Scottsdale, AZ, for Michigan Family Forum.

Before: HOEKSTRA, P.J., and WILDER and ZAHRA, JJ.

WILDER, J.

Intervening defendant Attorney General Michael Cox (AG) appeals as of right the Ingham Circuit Court's order granting summary disposition under MCR 2.116(C)(10) to plaintiffs National Pride at Work, Inc., which is a nonprofit constituency group of the AFL-CIO,¹ and various public employees and their respective same-sex domestic partners. In this appeal, the AG challenges the trial court's declaratory ruling that the marriage amendment, article 1, § 25 of the Michigan Constitution,² does not preclude public employers from extending benefits to domestic partners of the same sex. We reverse.

I

We begin by noting the relatively significant public attention this case has received. In that context, we feel constrained to observe at the outset that this case is not about the lifestyles or personal living decisions of individual citizens. Rather, it is about whether the marriage amendment may permissibly impose certain limitations on the state and its governmental subdivisions. More specifically, this case is about whether the marriage amendment may prohibit governmental subdivisions from entering into employment-benefit agreements that define eligibility for benefits using criteria, based on lifestyle or personal living decisions, that allegedly violate the policy choice approved in the marriage amendment. Further, we observe that the arguments advanced in several of the amicus briefs regarding the effect of the amendment on employee recruitment, retention, and morale and marketplace competitiveness are irrelevant considerations in interpreting the constitutional amendment at issue. The vote to adopt the marriage amendment charted the policy direction for Michigan. Our decision only interprets the amendment and applies it to the particular situation presented in this case. Finally, we note that our interpretation of the language of the marriage amendment is one of first impression, insofar as it concerns a relatively unique phraseology. Thus, while other states have adopted constitutional amendments and statutes that place limitations on governmental recognition of same-sex relationships, no court in any of these states has had the occasion to interpret language approximating the language "similar union" found in Michigan's marriage amendment.³ Consequently, guidance from the decisions of other jurisdictions is unavailing.

II

On November 2, 2004, Michigan voters approved proposal 04-2, which amended the state constitution by adding article 1, § 25 (the marriage amendment or the amendment). The amendment took effect on December 18, 2004. At the time this amendment was adopted, several public employers, including state universities and various city and county governments, had policies or agreements that extended health-care benefits to employees' same-sex domestic partners. Also, the Office of State Employer (OSE) and the United Auto Workers (UAW) Local 6000 union had previously negotiated an agreement to include same-sex domestic-partner benefits in the employment benefit packages for state-employee members of UAW Local 6000 (the state plan). Thereafter, in the midst of the public debate concerning the amendment's effect on same-sex domestic-partner benefits, the OSE and the UAW entered into a letter of intent on December 2, 2004, indicating their intent not to submit the proposed contract to the Civil Service Commission until there was a "determination by any court of competent jurisdiction that the language [of the contract] is lawful."

On March 16, 2005, the AG issued a formal opinion in response to a state representative's request for an opinion regarding the amendment's applicability to the city of Kalamazoo's ability to provide same-sex domestic-partnership benefits to its employees under existing and future contracts.⁴ The AG found that the "operative clause" of the amendment-"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"—is "best interpreted as prohibiting the acknowledgement of both same-sex relationships and unmarried opposite-sex relationships. More simply, the only relationship that may be given any recognition or acknowledgement of validity is the union of one man and one woman in a marriage." OAG No. 7,171 (March 16, 2005), 2005 MR 5, p 33.

National Pride at Work, Inc., together with a number of individual plaintiffs who are employees of seven different public employers and those employees' same-sex domestic partners, initiated this action seeking a declaratory judgment that the amendment does not prohibit public employers from conferring health benefits to same-sex domestic partners of employees. Plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(10). Meanwhile, the city of Kalamazoo announced its plan not to extend health-care benefits to same-sex domestic partners for contracts beginning in January 2006 absent a court ruling that the benefits do not violate the amendment. Plaintiffs then added the city of Kalamazoo as a defendant.

In their amended motion for summary disposition, plaintiffs argued (1) that the plain language of the amendment does not prohibit public employers from granting same-sex domestic-partnership benefits, (2) that the amendment's proponents' assurances that the passage of the amendment would not effect benefits to same-sex partners supported such a conclusion, and (3) that if the amendment were interpreted to preclude benefits for same-sex partners, it would conflict with the Equal Protection Clause and the public universities' autonomy under article 8, §§ 5 and 6 of the Michigan Constitution, as well as constitute an unconstitutional bill of attainder under article 1, § 10 of the Michigan Constitution.⁵

The city of Kalamazoo agreed that whether the amendment does or does not preclude the benefits at issue was appropriately resolved by summary disposition. The AG submitted a motion on the Governor's behalf seeking dismissal of plaintiffs' claims on the basis that plaintiffs lacked standing and failed to allege an actual case or controversy or concrete harm or injury as the result of any action by the Governor. Thereafter, the Governor obtained separate counsel and filed a brief opposing dismissal and instead supporting the plaintiffs. The AG then intervened in the lawsuit, adopting as his own the brief initially filed on behalf of the Governor in support of dismissal.

The trial court granted plaintiffs summary disposition, declaring that "Const 1963, art 1, sec 25, does not prohibit public employers from entering into contractual agreements with their employees to provide domestic partner benefits or voluntarily providing domestic partner benefits as a matter of policy." The trial court determined that because "[h]ealth care benefits are not among the statutory rights or benefits of marriage," "[h]ealth care benefits for a spouse are benefits of employment, not benefits of marriage," and further concluded that the criteria for same-sex domestic-partner benefits in the employment contracts before the court "do not come close to approaching the legal status that marriage holds in our society." The trial court further held:

The Court must also give meaning to the final phrase of the amendment, "for any purpose." Intervening defendant Cox argues that this language is intended to prevent circumvention of...