The Ohio case was the leading case to watch to see just how far these anti-marriage amendments would go. Proponents and opponents had argued vociferously over their effects when they were on the ballot, sometimes switching their positions once the amendments were enacted and came before a court. After the Ohio decision, many breathed a sigh of relief.
Until now. Michigan's Supreme Court held yesterday that its state schools may not offer domestic partners the same employee benefits available to married couples. The Michigan court specifically distinguished the Ohio decision because it was based on different language. Michigan's amendment reads: "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." Thus, according to the court,
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.It answered that question as follows:
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; 281 NW2d 283 (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.With this broad a meaning for "similar," the domestic partner benefits were doomed:
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.A dissenting judge called this "a perversion of the amendment's language." The dissenter also emphasized pre-election statements by the campaign for the amendment, which essentially assured voters that things like this wouldn't happen. The court's majority said this "extrinsic evidence" couldn't be used to contradict the "unambiguous language of the constitution."
... When a public employer attaches legal consequence to a relationship, that employer is clearly “recognizing” 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.
There's much more to the decision, which I haven't fully digested. The majority opinion is remarkably cold-blooded; I am not surprised by its analysis or result, but I am surprised that they didn't utter a word about the obvious unfairness of the result.
In any event, this should reinvigorate opposition to anti-marriage amendments, particularly those that include sweeping language targeted at things other than fully civil marriage recognition.