The State of Michigan Court of Appeals has ruled that, effective immediately, public employees may not receive same-sex domestic partner benefits; in Michigan, such benefits have been available to public workers both within and outside of collective bargaining agreements.

The ruling is based on the court's interpretation of a constitutional amendment Michigan voters passed on Nov. 2, 2004. That amendment states: "To secure and preserve the benefits of marriage for our society and for future generations of children, 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."

After that vote, state attorney general Mike Cox announced that the amendment invalidated domestic partner benefit plans. Pride at Work, an AFL-CIO coalition, and numerous state employees from the University of Michigan, Wayne State University and Michigan State University, went to the state Circuit Court seeking a summary judgment on Cox's interpretation. The court ruled that the plans came as a benefit of the employment agreement, not as a benefit of marriage, and so were not affected by the amendment.

Cox appealed and the appeals court decision upholds his view. It finds that in establishing eligibility for the benefit plans, the public employers in most cases required proof of a domestic partner agreement. That proof stands in opposition to the "plain language" of the amendment, said the court.

The court was at pains to point out that its decision was not a judgment of the "lifestyle or personal living decisions of individual citizens." Rather it was about whether the public employer may enter into an agreement where its provision of benefits is determined by its recognition of personal decisions that violate the new state policy. This distinction seems to open the door to employers providing the benefits based on criteria that don't conflict with the marriage amendment policy.

The AFT Michigan-affiliated unions at Michigan, Michigan State and Wayne State have contracts with same-sex, domestic partner provisions, says Alyssa Picard, a staff representative at the state federation who is a former president of the Graduate Employees Organization/AFT at the University of Michigan. She notes that the number of people who use the benefits is "very, very, very small." The question for these unions is, "What do we replace it with?"

Julie Robert, grievance chair at GEO at UM, says that the contract ratified last year has language allowing for the reopening of negotiations on this issue in the event that benefits were taken away by state policy. "The university has said it is committed to maintaining the benefits," she says.

The Lecturers' Employees Union at UM is currently in negotiations for its second contract. "LEO is very concerned about the impact of recruiting top-notch faculty to the University of Michigan when it's located in a state where the public and political mood is so racist and homophobic," says LEO president Bonnie Halloran.

One option, says Picard, is to explore an approach known as Plus One or Plus Two, which comes from the corporate world. It allows any adult to name any other adult—spouse, adult child, parent, sibling, roommate, etc.—as the "plus one." (Children are still eligible as dependents, as per usual.) Because it completely avoids the question of how the people are related to each other, it is not "similar" to marriage.

As the consequences of the decision unfold, "AFT Michigan will not stand idly by," says David Hecker, AFT Michigan president. "Through any means necessary—through court actions, through collective bargaining—we will do everything possible to ensure that same-sex headed families are not discriminated against." [Barbara McKenna]

February 6, 2007