Benefits for Same-Sex Partners: Is it Really a Fight Over Benefits?

Before 2004, many arms of the state chose to extend benefits to same-sex domestic partners of employees, coming up with their own criteria for what constitutes a "domestic partner." Then, in 2004 and 2005, Michigan amended its Constitution to include a "one-man-one-woman" definition of marriage and the state attorney general interpreted the new provision to ban benefit extension policies when they hinged on an employee's participation in a partnership institution that qualifies because of its similarity to marriage. Something like a marriage between two individuals of the same sex could never qualify you for marriage-like benefits, the argument went, because any union between individuals of the same sex is nothing like a marriage (at least in Michigan).

Undeterred, various municipalities and counties changed their rules to allow benefits extensions not when someone was in a marriage-like union, but rather to some "qualified adult," the definition of which was up to each public employer. This allowed the entities to extend benefits to individuals regardless of sexual orientation or relationship or kind of union. Governor Snyder and the state's Republican majority, animated by a Tea Party obsession with cutting government spending, felt that these "other qualified adult" provisions were attempts to skirt opposite-sex marriage law in Michigan and a financial burden on the state.

Therefore, the legislature passed and the governor signed Restriction Act, which "prohibits certain public employers in Michigan from offering health insurance benefits or any other fringe benefits to individuals who share a residence with a public employee and who are not married to the employee, dependents of the employee as defined in the Internal Revenue Code, or potential heirs of the employee as defined by Michigan intestate succession laws."

The problem with this law is not that a state should not be able to say which kinds of people should be able to get family health benefits, but that the Restriction Act is specifically aimed at banning gay people from the practice. The plain language of the law excludes gay people, but not other family relationships. The debate in the legislature was replete with comments that the Restriction Act was aimed at gay people. And, even the name of the law — the Public Employee Domestic Partner Benefit Restriction Act — refers to an institution that gay Michiganders use to sanctify their unions.

Therefore, the Restriction Act violates both the Substantive Due Process Clause and the Equal Protection Clause.

Substantive Due Process. Substantive due process rights refer to rights that are so fundamental to our system of government that without them, we would not be living in a free society. The clause gives us a constitutional hook for the right to privacy, the principles of fairness and justice in voting, as well as any other right reserved to the people that makes us who we are. Any law that attempts to take away such essential rights violates the substantive due process clause.

So, what right is being violated? Governor Snyder would argue that there is no substantive due process right involved in this case because the Restriction Act only refers to health benefits, and there is no right to extending health benefits to the partners of state employees.

That view suffers from the same myopia as the odious Bowers v. Hardwick, which assumed that a challenge to an anti-sodomy law was about a fundamental due process right to engage in gay sex. No. Like the issue in Bowers was broader — the liberty to define and express your intimate relationships — the issue in Barrett is broader than just access to benefits: the right to be free of government burdens on those intimate relationships.

Equal Protection Clause. Equal protection under the laws demands that the state treat all similarly situation individuals the same, unless there is a good reason for not doing so. Depending on the state's basis for treating people differently, the state must have a "legitimate," "important," or "compelling" justification for its discrimination. This is part of the difference between rational basis review, heightened scrutiny, and strict scrutiny, and as the wording implies, there are lots of "legitimate" justifications and very few "compelling" ones. The ACLU argues that there is no legitimate state interest, let alone an important or compelling one, in treating gay employees different than straight employees, especially since the financial burden on the state is negligible. If the court adopts President Obama's view that discrimination on the basis of sexual orientation merits heightened scrutiny, it will be even harder for Governor Snyder to justify his discrimination of his gay employees.

The fact is that this sorry case of discrimination exists because our laws not only recognize the state's power to exclude us from the institution of marriage, but also permit bans on same-sex marriage to justify discrimination on all the rights and entitlements associated with marriage or marriage-like unions. Notably, the extensive reach of one-man-one-woman marriage laws beyond marriage law cannot be solved by going to the ballot or to legislatures and passing gay marriage laws state by state. That is because even if Washington State or New Jersey pass marriage equality laws, those advances say nothing about Michigan's power to discriminate on the basis of sexual orientation or even Washington's and New Jersey's power to do the same. We need federal precedent that makes it law that the state has no legitimate or important or compelling justification for discrimination on the basis of sexual orientation when it comes to the institution of marriage. And, the only way to do that today is to support the Perry v. Brown litigation and not cut it off at the knees by going back to the ballot in California.

This case also makes clear that our fight for marriage is not just about marriage and does not only apply to those of us who want to get married. Success in Perry would mean the end to the discrimination at issue in Barrett, which is discrimination that can affect any gay person, including those who do not care to marry. Marriage means more than benefits, favorable tax treatment, and even love — it is the key to equality in general.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.


  1. Matt says

    I disagree that mooting Perry by victory at the ballot would be bad. First, it would take away the principal talking point of NOM and other groups that gay marriage has always been defeated when people get a chance to vote. Second, I think it would embolden legislators in states considering gay marriage to vote for gay marriage. Third, I am skeptical of the timing of Perry and think we’re better of with the passage of a little more time before the Court get this (Bowers was a touch too early, and look at how that bad ruling negatively impacted things).

  2. Jay says

    I agree with the importance of fighting for marriage equality and fighting against the kind of discrimination involved in the Michigan law. However, there is no relationship between those quests and declaring that something is wrong with challenging Prop 8 at the ballot. I hope that Perry v. Brown will result in nullifying Prop 8, but that may take years to accomplish, and the decision may well go against us. We have to be prepared to continue fighting at the ballot box, however distasteful and expensive that is. Thank God for Love, Cherish, Honor.

  3. V-8 says

    they should impeach him (meaning, help organize the impeachment process), instead of suing him… he is a terrible governor in so many areas, I live in MI… and now I am hoping to get a job elsewhere, even if I lose my home in the process…

  4. Fodolodo says

    I don’t understand your argument at the end of this post. You suggest that we need Perry to prevent states like Michigan from doing this. But doesn’t the very litigation you talk about in this post show otherwise?

    Very few people argue that we should never go to the federal courts to challenge anti-gay laws. After all, Lambda Legal brought Romer and Lawrence, and won. The question is whether Perry specifically is the right way to go. And actually, contrary to the argument in your post, it seems to me that cases like this one (and Diaz v. Brewer in the Ninth Circuit, which has been quite successful so far) show that there are good opportunities to bring about federal case law protecting same-sex relationships without going to the extreme of asking the Supreme Court to invalidate the marriage bans of forty-four states, and without having to respond to vague worries that “redefining” marriage will have consequences for unintended heterosexual reproduction.

  5. Zlick says

    Hmm, I hope that since Love Honor Cherish apparently has $150K to pay its new director, it also has stashed away the $3 million it takes to gather enough signatures for a ballot measure in California. But I doubt that.

    What a 360 I’ve done on this issue. I remain worried about the outcome of Perry with the U.S. Supreme Court, but I feel it’s too uncaring of our fellow Americans to not take the shot the Perry case offers. Practically all significant benefits of marriage come from the federal government anyway, so a win in a California election would merely be a symbolic victory with PR value and not enough real value.

  6. Rich says

    Throughout my lifetime, the advocates of civil rights have divided over tactics. Whether it was NAACP vs CORE, Mattachine vs Gay Liberation Front, or ACT-UP vs AMFAR, the tendency of partisans is “my way or the highway.”

    I happen to agree with Ari that resolving the family law rights questions in the courts would be preferable to winning them in the political process, but I also think we need to step back and realize that it is the combination of vectors that bends the arc of history in the direction of liberty.

  7. Zlick says

    Yeah, Paul R. Exactly my point. I wrote “U.S. Supreme Court” in my post – and I reiterate that I think it’s worth the chance to bring marriage equality to all Americans (and the only significant benefits to Californians amongst ’em) by not mooting the Perry case with a ballot initiative in CA.

    That said, perhaps cases such as Diaz v. Brewer, mentioned by Fodolodo above, offer a better shot at the equality goal.

    Ari, care to take up explaining the differences between those cases and your opinions on their respective chances at the U.S. Supreme Court?

  8. MiddleoftheRoader says

    If all judges, or at least a majority of the Supreme Court judges, followed the type of analysis given by Ari, then the gay community would prevail. However (and I hope that I am proven wrong), I think that the Supreme Court will uphold Prop 8 (if it reaches the merits) and it will set back gay rights for another decade or more if its reasoning is joined by a majority of the Justices.

    That being said, the issue in Michigan is actually much more narrow in many respects, and courts like to decide issues on narrow grounds. It’s really the same as in Roemer: Can a state enact a law that prohibits its cities, counties, etc. from providing benefits to certain individuals (and in fact, a law that actually takes away such benefits that are now being provided)? Note that the law does not (on its face) focus only on same-sex domestic partners (an opposite-sex live-in partner who is registered as a domestic partner or civil union partner, under French law for example, is also prevented from getting benefits under the law because s/he is not “married”) — so the courts would have to look to the legislative history to see that it primarily targets same-sex partners (and its impact on others is collateral, albeit also harmful). If the court sees the law in this light as targeting same-sex partners, then the law is similar to what Colorado did when it prohibited cities and counties from adopting gay rights ordinances — that is, it singles out gay people for discriminatory treatment because they are gay (and Roemer said that violates equal protection because sexual orientation was not a valid rational basis to discriminate in the Colorado law).

    However, please also note (for those lawyers out there) that the Michigan law is both over-inclusive and under-inclusive. For example, if Ari’s quote is correct and complete, why does this law take away benefits only from persons who “share a residence” with a public employee (and who aren’t married to him/her, a dependent, or potential inheritee)? For example, if a city or county could still provide benefits to a domestic partner who shares bank accounts, shares real estate, shares expenses, etc, but who does NOT “share a residence” with the public employee, then the law penalizes partners who choose to “share a residence” — and how irrational is that, and how intrusive of personal privacy is that? Also, because Michigan intestacy law includes descendants of grandparents (e.g., potential second cousins?), then these remote relatives who live with the public employee would be eligible for benefits — but not opposite (or same) sex partners who live with the employee ….. is this rational?

    The point is that the Michigan law can be found unconstitutional on a variety of narrow legal grounds, and any of them would advance the rights of gay people. Trying to overturn the Michigan law because it refuses to recognize “same sex marriage” is a broad and unlikely approach, and one that could backfire.

  9. John M. says

    @Zlick – I hear your concerns about Perry being our one shot to advance federal rights for gays and lesbians who live in the worst of the worst of anti-gay states. But “taking a shot” at the U.S. Supreme Court has to be weighed against the consequences of losing at the Supreme Court. I fear that a loss at the Supreme Court will do far more longstanding to harm gays and lesbians in Arkansas, Alabama, Mississippi etc., than would losing at the California ballot this November.

    And I’ve got to disagree with you that a win at the ballot in California would be “merely symbolic.” There’s a dynamic interaction between courts, legislatures, and the public, and a win at the ballot – aside from repealing Prop. 8 *now* and allowing marriages to resume right away – would also be a huge momentum boost for future successes in other states and, eventually, the U.S. Supreme Court. Our big legislative win in New York last summer is paving the way for possible wins in New Jersey and Washington state. And as more states and more people get on board with marriage equality, our “swing vote” judges (Kennedy) will feel more comfortable voting in our favor, too.

  10. Zlick says

    Good points, John M. Well, truly, though I may not agree – I wish the folks at LHC all the luck in the world. I’ll sign the petition. I don’t know what their strategy is for getting the required signatures this time (they didn’t make it on their last attempt), but I hope it’s a change that will work for them.

    Meanwhile, there seems to be some buzz afoot that the Ninth Circuit ruling is coming real soon. I’m pretty sure that ruling will figure heavily on whether there’s broad support for a ballot initiative.

  11. Fodolodo says

    It seems to me that, quite aside from mooting Perry, the decisive reason not to support the LHC attempt to repeal Prop. 8 is that the community is not united behind it. There would be divisive fights about whether it’s the right time, and there would be a lot of people who (rightly or wrongly) would be reluctant to donate time and effort because they wouldn’t want to see Perry mooted. That’s a recipe for failure, and for a lot of bitterness and mutual blame.

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