STATE OF
MIKE COX, ATTORNEY
GENERAL
|
MARRIAGE: CONST 1963, ART 1, § 25: |
Constitutionality of city providing same-sex domestic
partnership benefits |
Const 1963, art 1, § 25 operates as a
limitation on government conduct and therefore applies to state and local
governmental entities, including the City of
Const 1963, art 1, § 25 prohibits state and
local governmental entities from conferring benefits on their employees on the
basis of a "domestic partnership" agreement that is characterized by
reference to the attributes of a marriage.
Accordingly, the City of
Const 1963, art 1, § 25 does not invalidate a state or local
governmental entity's existing contractual obligations but does apply to its
future contracts.
Opinion No. 7171 March 16, 2005
Honorable Jacob
W. Hoogendyk, Jr.
State
Representative
The Capitol
You have asked
to what extent Const 1963, art 1, § 25, the recent amendment to Michigan's
Constitution involving same-sex marriages and similar unions, affects the City
of Kalamazoo's ability to provide domestic partnership benefits to its city
employees both under its current contracts and under new contracts.
The City has informed this office that, in accordance with
its Domestic Partner Benefits Policy (the City's Policy), it provides insurance
and other benefits to the same-sex "domestic partners" of city
employees "identical to those provided to spouses of City employees."
The City's Policy, incorporated in its collective
bargaining agreements, defines "domestic partners":
For the purposes of the City of
A. Be at least 18 and
mentally competent to enter into a contract;
B. Share a common
residence and have done so for at least six (6) months;
C. Be unmarried and not
related by blood closer than would prevent marriage;
D. Share financial
arrangements and daily living expenses related to their common welfare;
E. File a statement of
termination of previous domestic partnership at least six (6) months prior to
signing another Certification of Domestic Partnership. [City of
The City's Policy requires a notarized Certification of
Domestic Partnership, which affirms the criteria listed in paragraphs A through
E and requires proof of "mutual economic dependence" and evidence of "common
legal residence."
The City's Policy explains that the "identical" benefits provided are:
A. Hospital/medical coverage
B. Dental care
C. Sick leave
D. Funeral and critical illness leave
E. COBRA continuation coverage
F. Family Medical Leave Act (FMLA) provisions
G. Retiree medical coverage
H. Pension benefits
The partners have an obligation under the City's Policy to notify the City when there has been a change in any of the circumstances that qualify the couple as a domestic partnership.
On
To secure and preserve the benefits of
marriage for our society and for future generations of children, the union of
one man and one woman in marriage shall be the only agreement recognized as a
marriage or similar union for any purpose.
Your request, therefore, requires
consideration of whether, by entering into a contract that incorporates the
City of Kalamazoo's Domestic Partner Benefits Policy, the City recognizes a
partnership of persons of the same sex as a "marriage or similar union for
any purpose" within the meaning of, and contrary to the mandate of, Const
1963, art 1, § 25.
To ascertain
the meaning of a constitutional provision, the courts have laid down a number
of controlling rules of interpretation. It
must never be forgotten that "it is a Constitution we are
expounding," and that "[e]ach provision of a State Constitution is
the direct word of the people of the State, not that of the scriveners thereof."
Michigan
United Conservation Clubs v Secretary of State, 464
"A constitution is made for the
people and by the people. The
interpretation that should be given it is that which reasonable minds, the
great mass of the people themselves, would give it. 'For as the Constitution does not derive its
force from the convention which framed, but from the people who ratified it,
the intent to be arrived at is that of the people, and it is not to be supposed
that they have looked for any dark or abstruse meaning in the words employed,
but rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the
sense designed to be conveyed.'"[3]
Ordinarily, the common understanding
of constitutional text is understood by applying each term's plain meaning at
the time of ratification. But if the
constitution employs technical or legal terms of art, those terms must be
construed according to their technical or legal sense because, "in
ratifying a constitution, the people may understand that certain terms used in
that document have a technical meaning within the law." Hathcock,
471
A second important
rule of constitutional construction requires consideration of the circumstances
surrounding the provision's adoption and the purpose sought to be accomplished.
House
Speaker v Governor, 443
A threshold
issue that must be considered in light of these governing principles is to whom
art 1, § 25 applies and whether, in particular, it applies to cities, such as
the City of
To secure and preserve the benefits of
marriage for our society and for future generations of children, the union of
one man and one woman in marriage shall be the only agreement recognized as a
marriage or similar union for any purpose.
[Const 1963, art 1, § 25.]
The plain text
of this provision is general in scope. It clearly mandates that the union of one man
and one woman shall be the only agreement "recognized" as a marriage
or similar union, but it does not specifically identify what entities or
persons, public or private, are bound by its terms. Its placement in Article 1 of Michigan's
Constitution is legally significant, however, in that Article 1, entitled
"Declaration of Rights," generally articulates limitations on government conduct.
The Michigan
Supreme Court elaborated on this point in Woodland
v Michigan Citizens Lobby, 423 Mich 188; 378 NW2d 337 (1985), in which the
issue presented was whether the free speech guarantees of Const 1963, art 1, §§
3 and 5[4]
applied to limit only state action or were directly applicable against private
entities as well. The case involved a
challenge brought by citizens' groups whose members had been blocked in their
efforts to solicit signatures for an initiative petition drive in large
shopping malls. In ruling that privately
owned shopping malls were not prohibited from denying or restricting access to
private individuals, the Court concluded that these provisions of Article 1
were implicitly limited to state action:
The Michigan Constitution's Declaration of Rights provisions
have never been interpreted as extending to purely private conduct; these
provisions have consistently been interpreted as limited to protection against
state action. [423
The
In light of traditionally accepted
notions of the limited reach of constitutionally guaranteed individual rights,
the past decisions of this Court, the documented history of Michigan's most
recent constitutional convention, and the underlying rationale of the state
action limitation, it may not be presumed that the constitutional provisions
here in question are intended to apply against private individuals or entities.
If any presumption is to be raised it is
to the contrary: that unless otherwise
expressed, constitutionally guaranteed protections are applicable only against
government. [
Accordingly, addressing the precise
question raised, it is clear that art 1, § 25's extension of constitutional
protection to the "union of one man and one woman in marriage" to
"secure and preserve the benefits of marriage for our society and for
future generations of children" is applicable against the government. Municipal corporations, including cities, are
creatures of the State of
It is my opinion, therefore, that Const 1963, art 1, § 25
operates as a limitation on government conduct and therefore applies to state
and local governmental entities, including the City of
Analysis of your question next turns
to the core issue of whether the City's contracts that incorporate its Domestic
Partner Benefits Policy violate the mandate of art 1, § 25. To the extent the City recognizes a same-sex
partnership "agreement" as a "marriage" or "similar
union" for "any purpose," it contravenes the provision. Under the primary rule of constitutional
construction, the common understanding of the meaning of each of these
operative terms must be ascertained. Analysis
will begin with the term on which this amendment is focused: marriage.
The word "marriage" appears three times in art 1,
§ 25 and is reasonably understood in both a common sense and a technical or
legal sense. In chapter 551 of the Michigan Compiled Laws,
"marriage" is defined as a "civil contract between a man
and a woman, to which the consent of parties capable in law of contracting is
essential. Consent alone is not enough
to effectuate a legal marriage . . . .
Consent shall be followed by obtaining a license . . . and solemnization
. . . ." MCL 551.2. "Marriage" is further described in
MCL 551.1:
Marriage is inherently a unique
relationship between a man and a woman. As
a matter of public policy, this state has a special interest in encouraging,
supporting, and protecting that unique relationship in order to promote, among
other goals, the stability and welfare of society and its children. A marriage contracted between individuals of
the same sex is invalid in this state.
Under MCL 551.3, the Legislature prohibits marriage between
a man and certain listed family members, blood relations, and other persons, including
another man, and under MCL 551.4, the Legislature prohibits marriage between a
woman and certain listed family members, blood relations, and other persons,
including another woman. Chapter 551
also prohibits bigamy, MCL 551.5, and creates a minimum age for marriage at 16
years of age, MCL 551.51. It further
provides the terms for obtaining marriage licenses. MCL 551.101 et seq.
These statutory provisions recognize that the term
"marriage" has social and legal connotations.
Moreover, the courts make it clear that marriage is not like
any other private contract, but it creates a legal relation in which the
spouses and the State have a vested interest.
For example, addressing the validity of a marriage, the Court in Hess v Pettigrew, 261 Mich 618, 621-622;
247 NW 90 (1933), observed:
Marriage is a civil contract, but it
is not a pure private contract. It is
affected with a public interest and by a public policy. The status of children, preservation of the
home, private morality, public decency, and the like afford ample grounds for
special treatment of marriage as a contract, by statute and decision. In recognition of its public and social
nature, courts have cast about it the protecting mantle of presumptions,
sustaining validity of marriage, said to be the strongest known to the law. Any rule concerning it must favor the
validity of an intended marriage if it may be done without violence to the
essentials of the civil contract.
[Citation omitted.]
See also Maynard v Hill,
125 US 190, 210-211; 8 S Ct 723; 31 L Ed 654 (1888) ("It is also to be
observed that, whilst marriage is often termed by text writers and in decisions
of courts a civil contract . . . it is something more than a mere
contract").
A simple, working definition of
marriage that accords with
Although the meaning of "marriage" is well established, art 1, § 25 states in its first clause that its purpose is "[t]o secure and preserve the benefits of marriage for society and our children." (Emphasis added.) Because any examination of the question whether the domestic partnership defined in the City's Policy constitutes a "similar union" to a marriage must be pursued in light of the purpose sought to be accomplished by art 1, § 25, attention now turns to the meaning of this first clause of the amendment.
Two broad categories of
"benefits" that stem from marital relationships can be identified:
social or societal benefits and legal or financial benefits. With regard to the societal benefits of
marriage, the United States Supreme Court has described marriage as "the
foundation of the family and of society, without which there would be neither
civilization nor progress." Maynard, supra, 125
With regard to the legal or financial
benefits associated with marriage, the Citizen's Research Council of Michigan
summarized some of the major benefits conferred by federal law in its
Publication No. 1076 (September 2004) (CRC Memorandum), which was available to
voters during the November 2004 general election:
According to the U.S. General Accounting Office, there are
over 1,000 references in the U.S. Code to marital status. Selectively, these include social security
benefits, low income housing and food stamp programs, as well as veterans' and military
benefits, taxation implications, employment benefits, and immigration and
naturalization status. Statutory
protections for married couples are also numerous, including legal protections
such as the right to not have to testify against one's spouse, domestic
violence statutes, custody and child support, and probate statutes, to name
just a few.
Thus,
Three terms
remain for consideration before turning to the amendment's application to the
City's Policy: "similar union,"
"recognized," and "for any purpose." Under the rule of construction requiring an interpretation
that gives reasonable effect to all, not just some, of the parts of a
constitutional provision, each of these terms must be given full effect. See House
Speaker, supra, 443
With regard to "similar
union," the Supreme Court has made clear that words in a constitutional
provision must be given their plain meaning if they are obvious on their face. Phillips
v Mirac, Inc, 470
Where the words of a provision are as
clear as "a similar union," resort to the circumstances surrounding
adoption of the provision to assist in clarifying meaning is not
necessary. This is especially true in
light of the guidance provided by the Supreme Court that surrounding
circumstances may be relevant, but are not controlling. Lapeer
County Clerk v Lapeer Circuit Court, 469
As stated in the September 2004 CRC Memorandum,
the Proposal 04-2 initiative was "part of a national trend of attempts at
strengthening same-sex marriage prohibitions by amending state
constitutions." [CRC Memorandum at
p 1.] The Citizens Research Council
noted that
After Proposal 04-2 was officially
declared part of the November 2004 ballot,[17] numerous reports,
articles, and editorials appeared in the media regarding the amendment. The legal implications of passage were widely
discussed, including the continued legality of domestic partner benefits,
same-sex or otherwise. The difference in
interpretation among the various views expressed on this subject was
attributable to the clause "or similar union for any purpose" and the
effect the clause would have on domestic partner benefits if the amendment
passed.
Looking at the circumstances surrounding adoption of Proposal 2, therefore, the issue of domestic partner benefits based on a union similar to marriage was at the forefront of the public debate as voters prepared to go to the polls. Regardless of whether there was agreement regarding the effect the proposal might have on domestic partner benefits, one thing that would clearly have been evident to voters was that benefits provided based on the recognition of a "similar union" were at issue and might be eliminated if the measure passed.
Of greatest significance, however, is
the plain language of the amendment itself. Looking at the words "a similar
union" in the "sense most obvious to the common understanding,"
combined with the historical context in which they arose, leads inescapably to
the conclusion that "similar union" means a union similar to a
marriage but not a marriage.
The final terms
of art 1, § 25 to examine are "recognized" and "for any purpose."
The term "recognized" appears
in conjunction with the term "agreement." When read in context, it is reasonable to
conclude that it means "to acknowledge the existence, validity, authority
or genuineness of." Webster's
Considering these interpretations as a whole, the operative clause of art 1, § 25, "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose," is best interpreted as prohibiting the acknowledgement of both same-sex relationships and unmarried opposite-sex relationships. More simply, the only relationship that may be given any recognition or acknowledgement of validity is the union of one man and one woman in a marriage.
Applying art 1, §
25 to the City of Kalamazoo's Domestic Partner Benefits Policy, the intent of
the City is to accord same-sex partners the same health- and retirement-related
benefits accorded to married
spouses. The policy's threshold
criterion requires that only "couples
of the same sex" may apply
for the benefits. To obtain the
benefits, the City requires the individuals to fill out a
"certification" attesting to their domestic-partnership status. It also requires that the persons applying be
"unmarried" and "not related by blood closer than would prevent
marriage." These criteria parallel
the State of
The City's Policy accords same-sex
"domestic partnerships" a "marriage-like" status. The clear design of the City of
Thus, the City's
policy of offering benefits to same-sex domestic partners violates the
amendment's prohibition against recognizing any "similar union" other
than the union of one man and woman in marriage. The City's contracts fall squarely within the
scope of what the amendment prohibits.
The provision of benefits itself does not violate the amendment, but the
benefits cannot be given based on the similarity of the union or domestic
partnership agreement to a legal marriage. In other words,
Const 1963, art 1, § 25 does not prevent the City of Kalamazoo, if it elects to
do so, from conferring benefits on persons a city employee may wish to
designate as a recipient as long as the benefits are not dependent on the
existence of a union that is similar to a marriage as defined by Michigan law.
It is my opinion, therefore, that
Const 1963, art 1, § 25 prohibits state and local governmental entities from
conferring benefits on their employees on the basis of a "domestic
partnership" agreement that is characterized by reference to the
attributes of a marriage. Accordingly, the City of
The remaining question, then, is
whether the amendment applies to existing contracts or only to future
contracts. The City may not act contrary to constitutional mandate[18] and, thus, art 1, § 25 prohibits the
City from offering domestic partnership benefits, as the City's Policy is
currently written, in future contracts.
It is basic contract law that a contractual provision that violates the
law is void. Nelson v Galpin, 277
With respect to existing contracts
offering these benefits, it is "a general rule [that] constitutional
amendments operate prospectively and not
retroactively." People v Gornbein, 407
In Michigan Power Co, the City of Lansing
sought to compel the defendant utility company to remove from the city's
streets all poles, wires, and other equipment installed by the company on the
basis that the former franchise agreement between the city and the company had
expired, and that statutory law authorizing the company to use the city's
streets in this way was abrogated by a subsequent constitutional amendment.
"It is claimed that the act of 1905 has been abrogated or repealed by section 28, art. 8, of the Constitution of 1909 [now commonly cited as Const 1908] . . . .
* * *
This provision of the Constitution is a wise and radical change in the policy of exercising the sovereign power over the streets, and upon its adoption it at once superseded the act of 1905 and rendered that act from that time inoperative.
The Constitution of 1909 did not revoke and terminate existing user of the streets under Act 264 of 1905. The Constitution did abrogate the law of 1905, but it did not and could not revoke existing contracts under that act arising out of beneficial user of the streets for public utility purposes.
Constitutional
provisions, as well as legislative enactments, must be held prospective in
operation only, unless they carry upon their face an intention to be
retrospective." [
The Michigan Supreme Court concurred
in the trial court's conclusion with respect to this issue and further
explained:
After examining the many authorities
cited by counsel, we are satisfied that the provisions of the new Constitution,
cited and referred to in the briefs and arguments, are prospective in their
operation. The rule is well stated in
volume 6, Am. & Eng. Enc. Law (2d Ed.), at page 917, as follows:
"Constitutions are construed to operate prospectively only, unless on the face of the instrument a contrary intention is manifest beyond reasonable question."
See, also, the many cases there
cited. The same rule is applied to
statutes. [
Accordingly, in
determining whether a statute or a constitutional amendment should be applied
retroactively, "the primary and overriding rule is that . . . intent
governs. All other rules of construction
and operation are subservient to this principle." Lynch v
Flex Technologies, Inc, 463
There is nothing in the text of art 1, § 25 that clearly manifests an intention that the amendment apply retroactively. Again, the amendment states, "[t]o secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." The words "secure" and "preserve" do not suggest retroactive application. Thus, there is no language in art 1, § 25 that manifests beyond a reasonable question that it was intended to apply retroactively. Michigan Power Co, supra.
Moreover, art 1, § 25 does not fall
within the recognized "exception" to prospective application for laws
"which operate in furtherance of a remedy or mode of procedure and which
neither create new rights nor destroy, enlarge, or diminish existing rights." Lynch,
supra, 463
Thus, in accordance with these general principles and in the absence of any contrary indications in the amendment or the circumstances surrounding its passage, Const 1963, art 1, § 25 applies prospectively only. Generally, depending on the specific terms of the various contracts entered into and the surrounding factual circumstances, any new contractual obligations taking effect on or after December 18, 2004, including extensions and renewals of contracts entered into before that date, must comply with the mandate of art 1, § 25. Similarly, with respect to those employees who work for the City pursuant to an employment policy or implied contract, a definitive answer depends on the actual facts and circumstances. Generally, however, for those employees not covered by a collective bargaining agreement, personal services contract, or other formal contractual arrangement, art 1, § 25 prohibits the continuation of domestic partnership benefits on or after December 18, 2004, except with respect to those benefits already accrued or vested and provided that the employer gives affected employees reasonable notice of the policy change.[22]
It is my opinion, therefore, that Const 1963, art 1, § 25 does not invalidate a state or local governmental entity's existing contractual obligations but does apply to its future contracts.
MIKE COX
Attorney General
[1]
Of 4,602,396 votes cast, 2,698,077 voted in
favor of the amendment and 1,904,319 voted against the measure. See http://miboecfr.nicusa.com/election/results/04GEN/90000002.html.
[2]
By constitution, Proposal 2 became effective
[3]
Hathcock, 471 Mich at 468, quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405;
185 NW2d 9 (1971), in turn quoting from 1 Cooley, Constitutional Limitations (6th
ed), p 81 (emphasis omitted). See also American Axle & Mfg, Inc v
[4]
Const 1963, art 1, § 3 states: "The people have the right peaceably to
assemble, to consult for the common good, to instruct their representatives and
to petition the government for redress of grievances." Const 1963, art 1, § 5 states: "Every person may freely speak, write,
express and publish his views on all subjects, being responsible for the abuse
of such right; and no law shall be enacted to restrain or abridge the liberty
of speech or of the press."
[5] Meriam-Webster Online Dictionary, http://www.meriam-webster.com. See also Baker
v Vermont, 170 Vt 194, 199; 744 A2d 864, 868 (2000) ("Although it is
not necessarily the only possible definition, there is no doubt that the plain
and ordinary meaning of 'marriage' is the union of one man and one woman as
husband and wife"); Adams v Howerton,
486 F Supp 1119, 1122 (CD Cal, 1980) (Concluding that "marriage" is
"a contract, a status, and a relationship between persons of different
sexes").
[6]
[7] See,
e.g., MCL 205.93 (exemption from use tax for transfer of personal property);
MCL 205.202 (tax exemption for transfer of property); MCL 205.202c (tax
exemption for surviving spouse benefits); and MCL 206.514, 206.520 and 206.522
(tax credits for senior citizens and spouses).
[8] See,
e.g., MCL 257.236 (right to transfer title of deceased spouse's vehicle); MCL
333.2855 (right to request autopsy); MCL 333.10102 (authority to make gift of
deceased's body); MCL 333.20201 (right of nursing home resident to meet
privately with spouse, right of married residents to reside in same room, and
right of spouse of terminally ill resident to stay at facility 24 hours a day);
MCL 338.847 and 338.1076 (right to carry on business of deceased spouse holding
certain licenses for 90 days after death); MCL 390.1243 and 390.1263 (higher
education tuition waiver for spouse of police officer, firefighter, or
correction officer killed in line of duty); MCL 419.203 (death benefits for
spouse of firefighter); MCL 550.2003 (eligibility for prescription drug
coverage under the Elder Prescription Insurance Coverage program); MCL 28.634
(death and disability benefits for spouses of public safety officers); MCL
32.49d, 32.810, and 32.811 (death benefits for spouses of military officers and
enlisted persons); MCL 500.3708 (coverage under small employer health benefit
plans).
[9]
See, e.g., MCL 552.15 and 552.16
(child custody, parenting time, and child support); MCL 552.18 and 552.101
(rights to spouse's pension, annuity, and retirement benefits upon annulment,
divorce, or judgment of separate maintenance); MCL 552.19 (property rights upon
annulment, divorce, or judgment of separate maintenance); MCL 552.23 (spousal
and child support); MCL 722.124 (right to place child in control and care of
another person – i.e., daycare/child care centers); and MCL 552.401 (award of
property upon decree of divorce or separate
maintenance).
[10]
See, e.g., MCL 558.1 – 558.14 (rights to dower in lands); MCL
700.2201-700.2206 (elective share of surviving spouse in deceased spouse's
estate); and MCL 700.2301 (rights in spouse's estate).
[11]
See, e.g., MCL 600.2162 (spousal privilege) and MCL 700.2114 (presumption that
spouses are the natural parents of children born during marriage).
[12] See,
e.g., MCL 710.24.
[13] See MCL 18.354 and 18.361 (crime victims'
compensation) and MCL 36.31 (spouse of veteran qualified for residence in
veterans' facility).
[14] See, e.g., MCL 38.27 and 38.31 (interest in spouse's retirement allowance under state employee retirement system); MCL 38.556 (interest in spouse's retirement allowance, disability and death benefits under firefighters and police officers retirement system); MCL 38.1024 (interest in spouse's retirement allowance under legislative retirement system); MCL 38.1050a (life insurance benefits under legislative retirement system); MCL 38.1050b (health insurance benefits under legislative retirement system); MCL 38.1391 (health care benefits under school employee retirement system); MCL 38.1389 and 38.1390 (interest in spouse's retirement allowance and worker's disability compensation under school employee retirement system); MCL 38.1391 (health insurance benefits under school employee retirement system); MCL 38.1624 - 38.1630 (interest in spouse's retirement allowance under state police retirement system); and MCL 38.2508 (interest in spouse's retirement allowance under judges retirement system); MCL 38.2669 (health insurance benefits under judges retirement system).
[15]
No
[16] The other states were
[17] A lawsuit filed before the
election resolved challenges regarding whether the proposal was properly placed
before
[18] Const
1963, art 7, § 22; Mack v Detroit,
supra, 467 Mich at 194; Mich Coalition for Responsible Gun Owners v
City of Ferndale, 256 Mich App 401, 406-407; 662 NW2d 864 (2003).
[19]
When the Michigan Constitution of 1963 was
adopted, it made clear that its provisions applied prospectively: "[a]ll writs, actions, suits . . .
contracts, claims, demands . . . existing on the effective date of this
constitution shall continue unaffected except as modified in accordance with
the provisions of this constitution."
Mich Const 1963, sched § 2.