A little more than a year after the University defended its admissions policies in front of the U.S. Supreme Court, another court battle may be on the horizon — this time regarding the University’s right to grant same-sex benefits to its employees.
Gov. Jennifer Granholm decided Wednesday to pull same-sex partner benefits from new contracts with state employees until a court can decide whether they are legal after the passage of Proposal 2. Supporters of the amendment said the University is likely headed to court, if it continues to offer its own domestic partner benefits and if the court rules the state can’t offer them.
Proposal 2, which was passed by state voters in last month’s election, amended the state constitution to ban gay marriage or similar unions, meaning that same-sex partnerships can’t be recognized as equal to marriage “for any purpose.” Prior to the election, the proposal’s opponents argued that its wording was vague and that it was not clear whether it would affect domestic partner benefits for state and public university employees.
“It’s our legal position that the proposal that passed is not relevant to our decision on what to offer our employees,” University spokeswoman Julie Peterson said yesterday. “We intend to continue offering the benefits, and if those benefits are challenged we will defend our right to do so.”
But Patrick Gillen, an attorney at the Thomas More Law Center who was a principal author of the amendment, said the University’s interpretation of the amendment is wrong and subject to legal challenge.
“There’s no question in my view that the amendment precludes domestic partner benefits (for public employees),” Gillen said. “I think it’s substantially certain there will be litigation.”
Gillen said he would not rule out the possibility that he or his law center would sue the University themselves.
Robert Sedler, a professor of constitutional law at Wayne State University, said it will be unclear whether the amendment legally bans any domestic partner benefits until a state court provides a ruling. If courts rule that it does, he said, the University’s last line of defense would be to argue that, as a constitutionally autonomous institution, it is exempt from the amendment.
Asked about the autonomy argument, Gillen called it “extraordinarily far-fetched.”
“It would be extremely unusual, I believe unprecedented in the history of the United States, if a state university was exempted from a requirement of the state constitution,” Gillen said.
“For example, does U of M maintain that it is exempt from the constitutional provision that prohibits religious discrimination? I don’t think so.”
If the University does face legal challenges over offering employee benefits for same-sex partners, it is not yet clear where the challenge would come from.
Although there has been speculation that the Thomas Moore center will file a lawsuit over the issue, Sedler said it is uncertain whether the center has legal standing to do so because a private organization may not be able to sue a public body for its use of taxpayer money.
“They would bring a taxpayer suit, and it’s questionable that those suits are allowed in Michigan,” Sedler said.
Gary Glenn, president of the American Family Association of Michigan and a prominent supporter of the amendment, said he expects Attorney General Mike Cox to enforce the amendment if necessary.
“This is no longer a political issue,” Glenn said. “It’s now part of the constitution, so it’s now an issue of law enforcement.”
Spokespeople from Cox’s office could not be reached yesterday.
Glenn added that he sees Granholm’s decision to pull domestic partner benefits from new contracts as a response to public opinion, and said the University should follow suit.
“I think the governor got caught trying to make a political payoff to gay and lesbian groups donating to her political campaign,” he said.
“We think her capitulation on the issue is certainly appropriate, and it’s a victory for Michigan taxpayers.”