Anti-Domestic Partner Benefits Bills are Illegal, Harmful to Economy, ACLU Testifies Before Senate Committee

October 19, 2011

LANSING, Mich. – At a Senate committee hearing today, the American Civil Liberties Union of Michigan testified against two bills, which, if successful, would prohibit public employers from providing domestic partner health benefits and forbid the discussion of partnership benefits during all collective bargaining.

“Given the lack of economic soundness behind these proposals, one is left to believe that the true motivation behind these bills is a cynical, mean-spirited attempt to attack and harm people that certain members of this legislature do not like,” said Jay Kaplan, ACLU of Michigan LGBT Project staff attorney during his testimony. “House Bills 4770 and 4771 are wrong. They are unfair. They are unconstitutional and they will be challenged in court should they become law.”

Read the ACLU's testimony

House Bills 4770 and 4771 passed the state House in September and would prohibit any government entity, including universities and city governments, from providing health benefits to domestic partners. These bills were introduced after the legislature failed to override a Michigan Civil Service Commission decision to ratify a collective bargaining agreement that allows certain state employees to share health care benefits with an "other eligible adult."

During his testimony before the Reform, Restructuring, and Reinventing Committee, Kaplan said he agreed with the legal analysis of Michael Gadola, legal counsel to Governor Rick Snyder, who indicated in a May 18, 2011 letter to Senate Majority Leader Randy Richardville and Speaker of the House Jase Bolger, that legislative policies such as those outlined in HB 4770 and 4771 infringe upon the constitutional authority of public universities and are therefore both unconstitutional and unenforceable.

Read Michael Gadola's letter

In addition, Kaplan explained that the policies also infringe upon the authority of local governments to adopt employment practices, including the ability to decide who should receive health insurance coverage.

“Michigan courts have long recognized that the legislature may not interfere with a university board institutional management and control,” said Kaplan. “The State of Michigan, including its legislative body, has always been strongly committed to the concept of home rule. This legislation blatantly goes against this history.”

In his testimony, Kaplan stated that although the Michigan Supreme Court ruled that Michigan’s anti-marriage amendment precludes public employers from providing domestic partner benefits based solely on the type of relationship individuals share, the amendment does allow universities and local governments to provide domestic partner benefits to employees based on a variety of unrelated criteria, including joint ownership of property and durable powers of attorney.

In addition, Kaplan quoted former Attorney General Mike Cox and the Michigan Court of Appeals who stated in reaction to the ACLU of Michigan’s 2005 lawsuit challenging the amendment: “The Amendment does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship.”

Kaplan also warned committee members that the U.S. Supreme Court has weighed in on such discriminatory policies in Romer v Evans, making it clear that laws based on animus toward a particular group violate the Fourteenth Amendment right to equal protection under the law.

Previously, sponsors of the legislation estimated the cost of benefits would be well over $8 million, however a recent analysis conducted by the Civil Service Commission found that only about 100 employees opted in by the September deadline, proving the true cost of domestic partners benefits was about $600,000. Citing this information and the fact that more than 50 prominent businesses in the state provide domestic partner benefits, Kaplan questioned the decision to take away health benefits and tie the hands of public employers to attract and retain the brightest and best.

“The ACLU has to wonder why, in the face of Michigan’s economic downslide – with unemployment rates the highest in the country and with families struggling to make ends meet – would the legislature want to take away health insurance from its citizens,” said Kaplan. “Why, given Michigan’s urgent need to attract new businesses and industry to our state, would the legislature want to severely interfere with and hamper the ability of public employers to set their own terms of compensation in order to attract the talent and entrepreneurship that it takes to develop new businesses? Why, when Michigan has one of the highest exoduses of college graduates in the country, would it consider a policy that not only deters economic opportunities, but is exclusionary, unwelcoming, and unsupportive of the diversity of Michigan families?”

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