In recent years, a considerable number of states have adopted constitutional amendments that deprive same-sex couples of the right to marry. (1) While the fundamental long-term question is whether these amendments violate the Federal Constitution, (2) in the short run, judges have been asked to interpret these measures without deciding their constitutionality. (3) Recently, in National Pride at Work, Inc. v. Governor of Michigan, (4) the Supreme Court of Michigan undertook such an interpretive exercise and held that the state's marriage amendment prohibits public employers from providing healthcare benefits to the same-sex domestic partners of their employees. (5) In reaching this conclusion, the majority erred in finding that the text of the amendment is unambiguous. In fact, the text is susceptible to different constructions, and accordingly, the majority should have further analyzed the history of the amendment to answer the question presented. In doing so, the majority should have reached the same conclusion as that of the dissent: the amendment should not be interpreted to bar public employers from providing healthcare benefits to the same-sex domestic partners of their employees.
On November 2, 2004, a majority of Michigan voters approved a proposal to amend the Michigan Constitution. (6) The amendment states: "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." (7) At the time, various public employers, including state universities and municipalities, provided healthcare benefits to the eligible same-sex domestic partners of their employees. (8) In addition, the Office of the State Employer and a union had negotiated an agreement that would have provided such benefits to the same-sex domestic partners of state employees who were members of the union. (9) A few months after the marriage amendment was approved, however, the Attorney General of Michigan issued an opinion in which he concluded that the amendment prohibited public employers from providing domestic-partnership benefits. (10) In response, National Pride at Work, Inc., together with individual employees and their partners, filed an action against the Governor of Michigan in the Ingham County Circuit Court, seeking a declaration that the amendment did not impose such a ban. (11)
The circuit court ruled in favor of the plaintiffs and declared that the marriage amendment did not bar public employers from providing healthcare benefits to the same-sex domestic partners of their employees. (12) The court concluded that the public employers at issue did not recognize unions that were "similar" to marriage. (13) The court reasoned that the domestic partnerships, as defined by the employers' eligibility criteria, were not comparable to marriage because the "hundreds of legal rights" that inhere in marriage--such as the right to joint ownership of personal property--were absent from these domestic partnerships. (14) Moreover, the court noted, health insurance was not a benefit of marriage, and thus its provision did not violate the amendment's purpose, as indicated in its preambular clause: to reserve the "benefits of marriage" to only opposite-sex couples. (15)
The Attorney General of Michigan, who had intervened as a defendant at the circuit court, appealed, and the Court of Appeals of Michigan reversed. (16) The appellate court observed that the meaning of the amendment must be ascertained by looking at its operative clause and not just its preambular clause. (17) In analyzing the operative clause, the court concluded that the public employers did recognize unions that were "similar" …