DETROIT — A month after Michigan‘s same-sex marriage ban was overturned, the state is vigorously defending another law that’s being challenged by gays and lesbians: a prohibition on domestic partner benefits for employees in public schools and local governments.
U.S. District Judge David Lawson halted the law with an injunction last summer, saying it was a clear case of discrimination against same-sex couples. He was unimpressed by the rationale of the attorney general’s office, even colorfully comparing it to the “force of a five-week-old, unrefrigerated dead fish.”
Nonetheless, the state isn’t giving up. Lawson has scheduled another round of arguments Tuesday in Detroit federal court before making a final decision on the law’s fate, although it’s possible the case could be put on hold. The state believes it’s better to wait until the separate same-sex marriage challenge is over.
“I can’t think of a more mean-spirited piece of legislation,” said Michael Steinberg, legal director at the Michigan branch of the American Civil Liberties Union. “Yet the attorney general continues to fight for the state’s ability to discriminate. It’s very troubling.”
The law was passed in 2011 by the Republican-controlled Legislature and signed by Gov. Rick Snyder, also a Republican. It says schools and local governments can’t offer health insurance or any benefits to the unmarried partners of employees — gay or heterosexual. Universities are exempt, as well as most state workers whose benefits are set by the Michigan Civil Service Commission. Private businesses also are not affected.
A handful of school districts offered the benefits, along with Ingham and Washtenaw counties and the cities of Ann Arbor, East Lansing and Kalamazoo, according to the ACLU.
The law’s supporters say it’s intended to save money and follow the spirit of a 2004 constitutional amendment, approved by 58 percent of voters, that defines marriage only as between a man and a woman. The amendment, however, was struck down in March as unconstitutional by U.S. District Judge Bernard Friedman. That decision is being appealed by the state.
In court filings, Schuette’s office continues to argue that the ban on domestic partner benefits was not solely aimed at hurting same-sex couples.
“To the extent several legislators expressed views supporting traditional marriage, such expressions are not, per se, discriminatory or hostile,” Assistant Attorney General Margaret Nelson wrote.
She said the law is a “smaller piece of a larger effort to restore fiscal responsibility.”
The state, however, has an uphill climb to convince the judge. When he suspended the law last June, Lawson said it was “hard to argue with a straight face” that lawmakers weren’t targeting gays and lesbians.
“That can never be a legitimate governmental purpose,” the judge said.
ACLU attorney John Knight, who is representing five same-sex couples, said the law is an unwise expansion of state control over the choices of local officials. He said the cost of health insurance for domestic partners is only a tiny fraction of what public employers spend on overall coverage.
Indeed, Ingham County said it added up to $16,157, or 0.2 percent, in 2012.
“Local units of government offer (the) benefits because they have decided that doing so is central to attracting and retaining the best and the brightest,” Knight said.
Thomas M. Cooley law school professor Devin Schindler said he’s not surprised that the attorney general’s office still is defending the law, despite Lawson’s earlier injunction.
“He’s already ruled the plaintiffs have a substantial likelihood of winning,” Schindler said of the judge. “But if the state wants to appeal, you have to stick with it for a final judgment.”
Schuette spokeswoman Joy Yearout said “it’s our job” to defend the work of the Legislature.
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