After Windsor: Michigan same-sex partners benefits suit advances [Updated: 7:49 p.m. & 8:49 p.m.]
Last Friday, a federal district judge in Detroit issued a ruling that might cast a large shadow over a state law limiting marriage to opposite-sex couples. The case is Bassett v. Snyder.
Technically speaking, the judge, David Lawson, of the Eastern District of Michigan, did not conclude that Michigan’s marriage law was unconstitutional. But that may be the practical effect of the decision, if it were to be sustained after trial and appeal.
The case is not about marriage licenses, as such, but instead about whether the state must provide benefits to the same-sex partners of five state employees. Michigan has denied benefits to those five partners because of the intersection of a Michigan constitutional provision and a recently enacted Michigan statute:
The statute, which became law in December 2011, provides that a public employer can provide benefits to a person living with an employee only if that person is married to the employee, a dependent of the employee under federal law, or otherwise eligible under Michigan law to inherit from the employee. The statute itself does not mention sexual orientation or the sex of eligible beneficiaries.
The cognate state constitutional provision in question, however, enacted in 2004, provides that “[t]o 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.”
Thus, Michigan law makes marriage (or dependency or eligibility for inheritance) a prerequisite for a live-in partner of a public employee to receive benefits; and the Michigan Constitution, in turn, prohibits same-sex partners from marrying — and thus from becoming eligible for benefits under the statute. Three of the five plaintiff couples in Bassett allege that they would get married if Michigan law allowed it; and a fourth was married in California when same-sex couples could marry there, but Michigan does not recognize that California marriage. (The fifth couple held a commitment ceremony in 2004; the opinion does not indicate whether they would be married but for the Michigan constitutional prohibition.)
In granting a preliminary injunction to the plaintiffs, the judge concluded that the plaintiffs are likely to prevail on their claim that the statutory provision, Public Act 297, in effect establishes a form of discrimination on the basis of sexual orientation, when read in conjunction with the Michigan constitutional provision making same-sex couples ineligible to marry:
“Although the act does not use the term ‘sexual orientation,’” he wrote, “it both explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples. The Act incorporates the definitions in the Michigan marriage amendment and the intestacy statute. Both of those laws distinguish between opposite-sex couples, who are permitted to marry and can inherit under intestacy, and same-sex couples, who cannot.” [The Michigan intestacy statute does not by terms discriminate on the basis of sexual orientation; but it, too, is dependent upon the state constitutional marriage restriction, because it allows inheritance only by spouses, descendants, and paternal and maternal relatives.]
Michigan law as a whole, in other words, “permit[s] benefits to be extended only to married couples while barring same-sex couples from marrying.”
The judge went on to hold that the plaintiffs were not likely to prevail on their due process claim, but that they were likely to prevail on their equal protection claim, even assuming (as Sixth Circuit law provides) that laws discriminating on the basis of sexual orientation are subject only to rational-basis review.
The state’s principal argument appears to have been that it had two rational bases for limiting employee-partner benefits only to spouses: to save funds that would be expended if non-married partners became eligible for benefits, and to “further traditional marriage.”
The court rejected the cost-savings justification on the ground that, “[a]side from saying so, the defendant has offered little to support its cost-savings rational[e].” As for the state’s interest in furthering traditional marriage, the court likewise concluded that the defendant had failed to present any argument about how denying benefits to live-in partners (of the same or opposite sex) would further marriage. One might have thought that Michigan would argue, as many states have, that offering special benefits to married couples would create an incentive for couples to commit to marriage, something the state endeavors to promote . . . but apparently Michigan did not do so. To the contrary, according to the court, “the defendant himself has written off serious consideration of that argument, stating that ‘it strains credulity to believe that a couple would marry simply to obtain health benefits, or would acquiesce to participation in a relationship they might not otherwise choose in order to qualify for the benefit.’”
Then, relying upon the Supreme Court’s brand-new decision in United States v. Windsor, the district court found that the plaintiffs were likely to prevail under rational-basis review for another reason, as well — namely, that they would be able to demonstrate that enactment of the 2011 law was motivated by animus or ill will against gays and lesbians. Prior to 2011, several Michigan counties, cities, and school districts — including those in which the plaintiff-employees work — had voluntarily extended benefits to certain live-in, domestic partners of employees (deemed “Otherwise Qualified Adults,” or OQAs), whether those OQAs were of the same or the opposite sex of the employees. The 2011 law was a reaction to this local practice: It was designed to prevent such local government entities from continuing to give benefits to such partners. According to the district court, however, the plaintiffs will likely be able to prove that the target of the legislation was not domestic partners writ large, but gay and lesbian partners, in particular: “Looking to the history and text of Public Act 297,” he wrote, “it is hard to argue with a straight face that the primary purpose—indeed, perhaps the sole purpose—of the statute is other than to deny health benefits to the same-sex partners of public employees. But that ‘can never be a legitimate governmental purpose’” (quoting the Sixth Circuit decision in Davis v. Prison Health Services). [The full quotation from the Davis opinion is this: “[T]he desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.” Presumably one major issue at trial and on appeal will be whether the 2011 Michigan enactment is governed by Davis, and by Windsor.]
The Bassett case in Michigan was decided the day after the Supreme Court denied a petition for certiorari in a similar case, Brewer v. Diaz. (Judge Lawson probably was not aware of the cert. denial — he did not cite it.) In Diaz, the U.S. Court of Appeals for the Ninth Circuit likewise held that plaintiffs were likely to be able to prove that Arizona violated equal protection on the basis of sexual orientation when it limited state benefits to spouses, given that Arizona law otherwise prohibits same-sex couples from marrying. Does the Court’s cert. denial in Diaz indicate anything about its view on the merits? Perhaps; but, as always, it is hazardous to read too much into a denial of certiorari. It may be, for instance, that the Justices agreed with the plaintiffs in Diaz that interlocutory review was not called for because Arizona might be able to carry its burden at trial.
If the courts’ rationale in Bassett and Diaz were to survive the pending trials and subsequent appeals, would it represent a significant threat to state laws denying marriage to same-sex couples? Maybe. To be sure, the courts in these cases have not gone so far as to hold that it is unconstitutional for a state to deny same-sex couples the right to marry. But the effect of the decisions might be to require a state either to recognize such marriages or to extend all state “spousal” benefits to couples that would be married but for the discriminatory nature of the state’s marriage law. As Arizona wrote in its reply brief in support of its petition in Diaz, the rationale of such decisions could, at a minimum, “undermine all laws that provide benefits based on the traditional definition of marriage.”
UPDATE: Just today, another trial judge in the Eastern District of Michigan issued a preliminary ruling in a similar case — one that tees up the Michigan marriage amendment directly. In DeBoer v. Snyder, Judge Bernard Friedman denied a motion to dismiss by the defendants, the state’s governor and attorney general. The case is brought by a female couple who wish to jointly adopt three children. They can’t do so because a Michigan statute restricts adoptions to either single persons or married couples, and, as explained above, the marriage amendment to the Michigan Constitution prohibits them from marrying. The statute and the Constitution thus, as in Bassett, “operate in tandem to prevent them from doing” what a married couple could do. The plaintiffs have also added a second claim, asserting that the Michigan marriage amendment itself violates the federal Constitution by denying them the right to wed one another.
In this case, it was the defendants who moved first — they filed a motion to dismiss the claim. In today’s ruling, Judge Friedman quite understandably denies that motion, reasoning that Windsor gives both sides plenty of ammunition — “the requisite precedential fodder” — to adjudicate the competing views in the case. “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law,” Judge Friedman writes, “this Court cannot say that plaintiffs’ claims for relief are without plausibility. Plaintiffs are entitled to their day in court and they shall have it.” The judge did not specify which factual disputes remain that might determine the outcome of the case, but presumably they would include adjudication of whether the Michigan legislature did, in fact, act with improper motive, as Judge Lawson described in Bassett.