One of the main objectives of the Michigan courts when construing provisions of the State Constitution is to determine as closely as possible what the people intended by passing the provision in the first place. This objective is reduced to the following principle of statutory construction: When interpreting the Michigan Constitution, [the Supreme] Courts duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express. -- Simple, reasonable, and to the point, you might say.
During the campaign leading up to the passage of the marriage amendment in 2004, many of its supporters claimed repeatedly in the media that the measure would have no effect on the health benefits of unmarried couples and their children.
Proposal 2, the initiative to amend the Michigan Constitution to bar same-sex marriage, was spearheaded by the Citizens for the Protection of Marriage (CPM), a committee formed by the Michigan Christian Citizens Alliance.
In a brochure entitled Proposal 2 is Only About Marriage, CPM stated that Proposal 2 is not about rights or benefits or how people choose to live their life. This has to do with family, children, and the way people are. It merely settles the question once and for all what marriage is -- for families today and future generations.
Moreover, CPMs representative, a Lansing attorney, at an August 2004 public certification hearing before the Board of State Canvassers (an important step in the amendment process), stated:
There would certainly be nothing to preclude [a] public employer from extending [health-care] benefits, if they so chose, as a matter of contract between employer and employee, to say domestic dependent benefits... [to any] person, and it could be your cat. So they certainly could extend it as a matter of contract.
Yet in March of 2005, within three months of the effective date of the marriage amendment, the Michigan Attorney General issued an opinion stating that the amendment did indeed prohibit public employers from granting health care and other benefits to their employees same-sex partners.
This action prompted an AFL-CIO-sponsored group and 41 individuals --city and state employees and the employees of four major Michigan universities, all of whom understood such benefits were still available to same-sex partners -- to file suit, the suit just decided by the State‘s highest court.
When the suit reached the Supreme Court, CPM filed an amicus curiae (friend of the court) brief. And what do you suppose CPM argued in that brief? CPM argued that the plain language of Michigan‘s Marriage Amendment prohibits public employers from granting the benefits at issue. In the circumstances, the duplicity of that argument is breathtaking. As Judges Marilyn Kelly and Frank Cavanaugh wrote in their dissenting opinion:
Either CPM misrepresented the meaning of the amendment to the State Board of Canvassers and to the people before the election or it misrepresents the meaning to us now. Whichever is true, this Court should not allow CPM to succeed using such antics. The result of the majoritys disregard of CPMs pre-election statements is that, in the future, organizations may be encouraged to use lies and deception to win over voters or the Court. This should be a discomforting thought for us all.
However one may feel about the Marriage Amendment on its merits, everyone should be outraged at the manner in which the Supreme Court reached its decision. It was, as I say, deplorable. And this, in two respects: first, it is deplorable how one of the leading proponents of the amendment comported itself prior to the vote of the Michigan public and then in our Highest Court, and, second, it is deplorable that a majority of the Court condoned it.
By the way, the majority of the Court treated CPMs equivocations as an aside, as they called it, in a footnote, no less, by reasoning that there were other proponents of the measure who took the contrary position, by playing down the role of the Board of Canvassers, and by saying that the Court cannot read the minds of the voters and that, in any event, the voters did not vote for or against any brochure but for a ballot proposal that contained the actual language of the marriage amendment. Right, as if the voters were all attorneys skilled in the law and therefore had no need to seek guidance on such matters from organizations they trust. Deplorable.
Steve Morse is a retired attorney with 30-years experience as a civil litigator, and was a professor of law at the University of Notre Dame Law School. He has been active with the ACLU for about 20 years. The ACLU of Michigan represented the plaintiffs in the Supreme Court case at issue.