Even though the U.S. Court of Appeals for the 6th Circuit rejected a constitutional challenge to the state’s ban on same-sex marriage just days ago, U.S. District Judge David M. Lawson ruled on November 12 that Michigan’s Public Employee Domestic Partner Benefit Restriction Act, passed in 2011, violates the Equal Protection Clause. Judge Lawson rested his ruling on the anti-gay animus he found in reviewing the enactment of the measure.
On the one hand, the court’s decision in Bassett v. Snyder could not have been too surprising, since Judge Lawson had previously granted a pre-trial motion to enjoin the operation of the law while the case was pending. On the other, however, such apparent open defiance of a 6th Circuit ruling by a federal court whose decision is subject to appeal to that court is a bit unusual.
Judge Lawson took pains to distinguish the two cases. Referring to his earlier order in the case, he wrote, “Since the injunction was issued, there has been a new development. This district court declared that Michigan’s marriage amendment (which prohibits same-sex marriage) violated the Equal Protection Clause because there was no rational basis for the State to deny the benefits of marriage to same-sex couples. The Sixth Circuit reversed that decision, hold that states ‘retain authority’ to regulate marriage by classifying who may marry; and if same-sex couples are denied that right, they can find no comfort in the Federal Constitution.”
But, he continued, “this case is not about marriage, as such, although allowing same-sex couples to marry would go a long way toward minimizing the discriminatory sting of the Public Employee Domestic Partner Benefit Restriction Act. Rather, this case deals with couples who cannot marry under state law and their families. It is one thing to say that states may cleave to the traditional definition of marriage as a means of encouraging biologically complimentary couples to stay together and raise the offspring they product. It is quite another to say that a state may adopt a narrow definition of family, and pass laws that penalize those unions and households that do not conform. The former represents the application of a generous and deferential standard of reviewing legislative classifications, one that permits ‘legislative choices [that] may rest on “rational speculation unsupported by evidence or empirical data.”‘ The latter amounts to a classification based ‘on irrational prejudice,’ which cannot be sustained. And when that occurs, courts play a vital role in our constitutional system to protect individual rights.”
Judge Lawson recounted how the challenged statute was passed by outspoken legislative opponents of gay rights in response to an earlier decisions by the Michigan Supreme Court holding that governmental agencies were not forbidden to grant benefits to same-sex partners of their employees by the state’s Marriage Amendment, which prohibits same-sex marriage or any other similar recognized union for same-sex couples. (This is the Amendment that was declared unconstitutional by a different federal judge in the DeBoer case, and then revived recently by the 6th Circuit.) Anti-gay state legislators were particularly incensed when the state’s Civil Service Commission approved domestic partner benefits for state employees. Although the legislature refused to overrule the Commission’s decision, individual legislators criticized it as “disgusting,” and political outraged mounted when the Michigan Supreme Court rejected the attorney general’s argument that the Marriage Amendment should be construed to prohibit the Commission’s action.
The title of the challenged law gives away its specific purpose: to deprive same-sex partners of benefits. The court pointed out the particular harms suffered by the plaintiffs, all of whom were receiving benefits for themselves or their partners that were lost until Judge Lawson issued his preliminary injunction requiring their restoration.
The November 12 decision ruled on motions for summary judgment filed by Governor Snyder and the plaintiffs. It appears that Judge Lawson waited to rule on the motions until after the 6th Circuit ruled in the marriage case, since a right for same-sex couples to marry would ultimately render this case irrelevant.
In evaluating the plaintiffs’ equal protection arguments, Judge Lawson summarized recent developments under which courts in other circuits had applied heightened scrutiny to claims involving anti-gay discrimination, but noted that in the 6th Circuit he was bound by precedent to apply the deferential rational basis test. However, he noted, there was strong precedent from the Supreme Court to apply heightened scrutiny if a discrimination government action was motivated by animus. In an extended portion of his opinion, the judge determined that this was such a case.
First he found that the law, “as its title suggests,” was enacted specifically to impose restrictions on same-sex partner benefits, thus imposing a deprivation on a disfavored group. “One need not look very far to learn that gays and lesbians are a disfavored group,” he wrote. “In 2012, twelve percent of all reported hate crimes in Michigan targeted gays and lesbians. Gays and lesbians in Michigan have a 27 percent change of experiencing discrimination in obtaining housing. The State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation. And the Michigan Legislature has not repealed its sodomy or gross indecency statutes, despite the Supreme Court’s decision in Lawrence v. Texas nearly twelve years ago.” Lawson pointed out that even the 6th Circuit, in its anti-gay marriage decision, had conceded that gay people have suffered prejudice in the United States. Going even further, Lawson quoted 7th Circuit Judge Richard Posner’s statement in that circuit’s marriage equality decision, “Until quite recently,” gays and lesbians “had, as [gays and lesbians], no rights.”
“In light of the reactions to the Michigan Civil Service Commission’s furnishing benefits to the same-sex partners of public employees,” he continued, “it is hard to deny that these attitudes persist today. And it is equally difficult to ignore the inference that Act 297 emerged from those attitudes.” Thus, heightened scrutiny should apply in this case, despite the 6th Circuit precedents on sexual orientation discrimination.
Lawson examined three alleged “purposes” for the law argued by the state, and found them all insufficient against the test of heightened scrutiny. Lawson rejected the government’s argument that the purpose of the law was to “augment laws that maintain family relationships,” finding that this denial of benefits did nothing to strengthen heterosexual families while intentionally harming gay families. The government claimed that the law “eliminates local government programs that are irrational and unfair to traditional families,” a justification whose “reasoning” the court skewered as “flawed,” pointing out that localities had adopted programs allowing employees to designate co-habitants to receive benefits solely as a workaround to avoid the problems imposed by the Marriage Amendment, and not to try to weaken traditional families. Lawson found that this argument only made sense if “same-sex domestic partners do not constitute families,” but, he asserted, “They do.” “That justification can be ‘rational’ only if the State could promote a favored group by imposing a deprivation upon a disfavored ‘other’ one,” but that justification, he found, “runs afoul of the Equal Protection Clause.” He found that this justification supports a finding of animus. He also rejected the “cost justification” advanced by the state, pointing out that the state saved little, if anything, by denying the benefits, especially when noting the costs to the state of providing medical care to uninsured people with serious medical conditions who would otherwise be insured under domestic partner benefits programs. And, he pointed out, the state saves no money by prohibiting local governments and county and city agencies from providing such benefits, which do not come out of the state treasury. Although he conceded that the state is entitled to adopt policies to save money, “the lack of substance behind this stated justification does little to dispel the ‘suspicion that bigotry rather than legitimate policy is afoot.'” He also found that the law marked a departure from the state’s usual practice, which is to leave local governments a wide degree of autonomy in establishing their employee benefits policies. Departures from usual practices, especially when they impose deprivations on targeted groups, are another sign of animus.
Quoting from the 10th Circuit’s marriage equality ruling — in fact, a concurring opinion by Judge Holmes — Lawson wrote, “Once animus is detected, the inquiry is over; the law is unconstitutional.” And, summarizing the Supreme Court’s ruling from the Colorado anti-gay amendment case of 1996, Lawson wrote, “A law is irrational if its purpose is to target a disadvantaged group.” Thus, the outcome of this case is clear. “Public Act 297 was enacted to deprive the same-sex partners of public employees of health and other fringe benefits offered by local units of government. The defendant has not identified any other credible justification for the law. The Supreme Court has explained that ‘the Constitution’s guarantee of equality ‘must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
Thus, the court denied the state’s motion for summary judgment, granted the plaintiffs’ motion, and declared that the law violated the 14th Amendment. Judge Lawson issued an injunction banning the state from enforcing the act.Tags: 14th Amendment Equal Protection Clause, Bassett v. Snyder, domestic partner benefits for public employees, Michigan domestic partner benefits, Michigan Governor Rick Snyder, U.S. District Court for Eastern District of Michigan, U.S. District Judge David Lawson