Correction appended: This story originally said Prof. Michael Schoenfeldt and his partner plan to move to Baltimore. Though Schoenfeldt is a plaintiff in the lawsuit, he does not plan to move to Baltimore. The information and quotations attributed to him should have been attributed to Engineering Prof. Michael Falk.
The Michigan Supreme Court will begin hearing arguments today about whether or not a 2004 gay marriage ban prohibits state employers, including the University of Michigan, from providing benefits to the same-sex partners of employees.
The state chapter of the American Civil Liberties Union is representing 21 gay couples who are appealing the case to the state Supreme Court after a February decision by a lower court said the 2004 constitutional amendment also prohibits state employers from offering benefits to their employees’ same-sex partners.
The case hinges on whether the 2004 amendment, passed by ballot initiative, extends to the benefits offered by public employers or just prevents the state from recognizing gay marriages.
The ACLU argues that the ban has nothing to do with benefits and is strictly about preventing gay marriage. State Attorney General Mike Cox has argued that it does.
Many University employees with same-sex partners say a ruling from the Republican-dominated court upholding the lower court’s decision would make them less likely to stay in Ann Arbor.
The University has filed an amicus brief supporting the ACLU, arguing that the University’s ability to recruit and retain the best professors and researchers would be compromised if it could not offer same-sex partner benefits to its employees.
According to the amicus brief, 196 partners of University employees and eight children covered by University health care would lose their coverage if the University were unable to provide same-sex benefits.
The University rewrote its employee contracts in 2004 to ensure it could offer the partners of its employees health insurance without violating the new state law. After the appeals court ruling earlier this year, the University altered the wording of its policy to ensure it could legally continue to provide same-sex partner benefits by offering benefits under an employee’s contract to an “other qualified adult.” That policy is slated to take effect on Jan. 1, 2008.
But while many say they are pleased with the University’s response to the court battles, there are fears about its ability to offer benefits in the future if the ACLU loses its case.
Bruce Frier, a University law professor who has served as the chair of the Task Force on the Campus Climate for Transgender, Bisexual, Lesbian and Gay Faculty, Staff and Students, shared those concerns.
“The University has done a good and thoughtful job with trying to come up with possibilities,” he said. “But it’s doubtful that there’s a right solution to the problem unless the court is prepared to listen to rational argument.”
Scott Dennis, a senior associate librarian at the Hatcher Graduate Library, is one of the plaintiffs in the case.
“My partner of six years is a psychotherapist. He runs a small practice,” Dennis said. “He has relied on my benefits from the University. If he did not have those benefits it would be a profound financial burden.”
Engineering Prof. Michael Falk said he and his partner plan to leave the state because of the ruling by the appellate court in February.
“We were extremely disappointed and we felt targeted essentially by the citizens of the state unfairly,” Falk said.
Falk has accepted a job offer at Johns Hopkins University in Baltimore, Md.
Some supporters of same-sex partner benefits say it is unlikely that state voters intended to deny health coverage to same-sex partners of employees when they passed the 2004 constitutional amendment.
“The people did not think they were taking away partnership benefits from anybody,” Dennis said. “They were deceived.”
Jay Kaplan, a staff attorney for the Michigan ACLU working on the case, agreed.
“It was never the intention of voters to take away health insurance from people. They were told this amendment was about preserving the so-called marriage between a man and a woman,” Kaplan said. “The idea that voters would put something in the constitution that they didn’t understand – that’s a radical idea.”
Frier said that because he finds the court conservative, the decision will be affected largely by precedent-even though he thinks the University and the ACLU have strong legal arguments.
“There’s not much chance of a successful outcome in the sense that domestic partner benefits would be consistent with the constitutional amendment,” Frier said. “The reason for that is more political than legal. The majority on the Supreme Court is very conservative. Symbolically they would find it very difficult to do what they should be doing.”
Alexandra Stern said she would not have come to the University if domestic partner benefits were not available. The medical historian and associate professor of obstetrics and gynecology at the University is a plaintiff. Win or lose, she is not particularly optimistic about the case.
“Either way, I’m not expecting any great celebratory win,” she said. “There are still no civil unions. There are still no marriages.”
Although she has no immediate plans to leave, Stern said losing in the Supreme Court would be depressing and make her more likely to leave the University.
“I have been recruited – approached by universities in California, and Chicago and New York – places where this isn’t even an issue,” she said. “Would those kind of recruitments seem more appealing if the case was lost? Yeah.”
Stern said the decision to ban public employers from providing same-sex partner benefits is bad for the state economy as well, because it sends a message to qualified people who want to work in Michigan that they are not welcome.
“Most Fortune 500 companies and all private universities and most public ones have benefits,” she said. “The (appellate court’s) decision is somewhere between foolish and cruel. It’s a bad decision and it’s a mean decision.”
Dennis said a loss at the Supreme Court is not necessarily the end of the story, and he plans to stay and fight for same-sex partner benefits regardless of the case’s outcome.
“I think it’s important to stand up for what’s right,” he said. “I have deep roots in this state. It’s my state. I’m as native as any Michigander gets.”