AGO 7171.

• Case Date: March 16, 2005
• Court: Michigan

Michigan Attorney General Opinions 2005. AGO 7171. STATE OF MICHIGANMIKE COX, ATTORNEY GENERALMARRIAGE: 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 Kalamazoo. 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 Kalamazoo's Domestic Partner Benefits Policy is contrary to the mandate of Const 1963, art 1, § 25. 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. 7171March 16, 2005Honorable Jacob W. Hoogendyk, Jr.State Representative The Capitol Lansing, MI 48913 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 Kalamazoo's program, the definition and use of the term domestic partner shall only include couples of the same sex. To be considered as domestic partners, the individuals must: 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 Kalamazoo, Domestic Partner Benefits Policy, ¶ I. (Emphasis in original.)] 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." Id., at ¶ III, B and C. 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 November 2, 2004, Michigan voters approved Proposal 04-2[1], adding art 1, § 25 to Michigan's Constitution.[2] Const 1963, art 1, § 25 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. 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 Mich 359, 373; 630 NW2d 297 (2001) (Young, J., concurring) (citations omitted). Thus, the primary rule of construction is to give effect to the intent of the people of the State of Michigan who ratified the Constitution by applying the rule of "common understanding." Wayne County v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). The Michigan Supreme Court reiterated its long-standing reliance on Justice Thomas Cooley's discussion in his treatise Constitutional Limitations to explain the basis for this rule: "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 Mich at 469 n 48. See also Michigan Coalition of State Employee Unions v Michigan Civil Service Comm, 465 Mich 212, 222-223; 634 NW2d 692 (2001). 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 Mich 560, 580; 506 NW2d 190 (1993). The historical origins of the provision are relevant in following this rule. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 85; 594 NW2d 491 (1999). The provision must also be interpreted to give reasonable effect to all, not just some, of its parts. House Speaker, 443 Mich at 579. 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 Kalamazoo. Analysis of this question begins with an examination of the precise language used in art 1, § 25: 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 Mich at 205.] The Woodland case rejected any presumption that would find certain constitutional provisions applicable to private individuals or entities in the absence of direct language requiring it: 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...