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OAKLAND BUSINESS REVIEW — Public entities likely to be targets of Proposal 2 lawsuits

February 14, 2005

“Supporters of the proposal say they believe the (Marriage Protection Amendment) does stipulate that public institutions, including the University of Michigan and Michigan State University, do not have the right to extend benefits to the same-sex partners of their employees. ‘The amendment says they cannot receive benefits on the basis of the employer recognizing or treating a homosexual relationship as if it is equal or similar to marriage,’ said Gary Glenn, president of the American Family Association of Michigan. ‘These universities believe philosophically that such relationships should be treated the same as marriage. The people of Michigan disagree.'”

OAKLAND BUSINESS REVIEW
Novi, Michigan
February 9, 2005

Public entities likely to be targets of Proposal 2 lawsuits
by Eric Morath

The passage of Proposal 2 this past fall has some Michigan labor attorneys and employers reassessing the legality of same-sex and domestic partner benefits.

Now part of the state constitution, the proposal defines marriage as “the union of one man and one woman” and states that union is “the only agreement recognized as a marriage or similar union for any purpose.”

That broad language could lead those who supported the amendment to challenge the legality of same-sex health, insurance and other employer benefits, said labor and employment law attorney Charles Oxender, of Miller Canfield Paddock and Stone PLC. Detroit-based Miller Canfield has offices in Troy.

Oxender said future state and federal court decisions will define the legality of same-sex benefits, but in his view, publicly funded universities, local governments and other employers who could be considered “arms of the state” are most likely to be targets of lawsuits alleging that taxpayer dollars are being spent on benefits the state constitution bans.

The amendment is highly unlikely to have any affect on private firms, Oxender said.

“We will primarily see this play out with public employers,” he said. “Most public universities in Michigan offer these benefits and most likely would be the first target of any lawsuit.”

Oakland University does offer domestic partner benefits. A spokesman for the Rochester-based school said Oakland doesn’t believe it is or will be affected by the new amendment.

Oakland County Government does not offer same-sex benefits. The state of Michigan had discussed adding domestic partner benefits to their employee benefit package but scrapped the plans after Proposal 2’s passage.

Supporters of the proposal say they believe the amendment does stipulate that public institutions, including the University of Michigan and Michigan State University, do not have the right to extend benefits to the same-sex partners of their employees.

“The amendment says they cannot receive benefits on the basis of the employer recognizing or treating a homosexual relationship as if it is equal or similar to marriage,” said Gary Glenn, president of the American Family Association of Michigan. “These universities believe philosophically that such relationships should be treated the same as marriage. The people of Michigan disagree.”

The Midland-based association campaigned for Proposal 2’s passage. The association and its supporters don’t have immediate plans to file suit against a publicly-funded employer offering same-sex benefits, he said. Instead Glenn said he expects state executives to “enforce” the constitution and put a halt to the benefits, but added a court battle remains a possibility.

Oxender said any call for an immediate halt in benefits is unlikely to succeed, because they are outlined in existing collective bargaining agreements. He said domestic partner benefits renewed or added after the amendment’s inception are more likely targets.

Oxender also speculated that UM is the high profile target that groups opposing same-sex benefits would first target.

The school has already gone on the offensive to defend its benefits package.

In an open letter addressing Proposal 2’s passage, Laurita Thomas, U-M associate vice president and chief human resource officer, stated that “discrimination based on any form of prejudice is harmful to the individual and destructive to our whole community.”

U-M believes the benefits are legitimate, are not tied to the definition of marriage and intends to continue offering them. No group has yet challenged U-M’s policies, spokeswoman Julie Peterson said.

“That is not to say we won’t be challenged,” she said. “But we intend to defend these benefits against any challenge.”

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