# Same-sex couples in Michigan lose benefits - isn't that an "impairment of contract"? **URL:** \ **Category:** Factual Questions\ **Created:** [June 21, 2007, 5:58am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815 "2007-06-21T05:58:44Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 21, 2007, 5:58am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/1 "2007-06-21T05:58:44Z")
According to this article, same-sex couples employed in the public sector in Michigan have started to lose pre-existing benefits, becasuse of the amendment to the state constitution, prohibiting marriage-like benefits for couples who aren’t married: [Michigan domestic partners face tough choices](http://www.usatoday.com/news/nation/2007-06-19-ohio-domestic_N.htm): > [@](#): > > Five years ago, JoLinda Jach and her partner, Barbara Ramber, had the same worries that every working couple with children faces: how to balance work and day care. > They decided that Ramber would stay home with their son and daughter and work part-time as a city bus driver. They could manage it, they thought, because Jach’s employer, the city of Kalamazoo, offered health benefits to partners of gay employees. > > But come June 30, Ramber’s health care benefits will end. > > A Michigan court ruled in February that public employers may not offer benefits to same-sex partners of employees because the state’s constitutional ban on gay marriage recognized only a marriage between a man and a woman. Michigan public employers offered domestic partnership benefits only to same-sex couples. My question is how this is consistent with [Article I, § 10](http://caselaw.lp.findlaw.com/data/constitution/article01/index.html) of the U.S. Constitution, which reads: > [@](#): > > No State shall … pass any Bill of Attainder, ex post facto Law, or **Law impairing the Obligation of Contracts** , or grant any Title of Nobility. If the public employee had the right to benefits for her partner under her employment contract, how can the State impair that contractual right, even by an amendment to the state constitution? I can see why the amendment to the state constitution might bar future contracts from giving benefits to a same-sex couple in the future, but how can it reduce the pre-existing contractual benefits? 😕 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 21, 2007, 6:27am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/2 "2007-06-21T06:27:47Z")
Although the clause seems to establish a blanket prohibition, the Supreme Court has not read it that way. > [@](#): > > State governments are not absolutely prohibited from modifying the obligations in private or public contracts. In order to protect the health, safety, and welfare of its citizens, a state may enact legislation which impairs contracts under certain conditions. United States Trust, 431 U.S. at 17. However, despite the customary deference courts give to social and economic legislation, laws altering the rights and obligations of contracting parties must be reasonable and necessary for the public purpose for which they were enacted. Allied Structural Steel v. Spannaus, 438 U.S. 234, 244 (1977). [http://w3.uchastings.edu/plri/fall94/call.html](http://w3.uchastings.edu/plri/fall94/call.html) The discussion that follows the quoted material is pretty good. _See also_, [http://caselaw.lp.findlaw.com/data/constitution/article01/56.html#f1953](http://caselaw.lp.findlaw.com/data/constitution/article01/56.html#f1953) ---
**Author:** ![zelie\_zelerton](https://avatars.discourse-cdn.com/v4/letter/z/59ef9b/32.png) [@zelie\_zelerton](https://boards.straightdope.com/u/zelie_zelerton)\ **Post date:** [June 21, 2007, 6:35am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/3 "2007-06-21T06:35:54Z")
Out of curiosity, would male-female couples also lose these benefits if they were not married? Or did they not get them in the first place? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 21, 2007, 6:40am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/4 "2007-06-21T06:40:45Z")
[QUOTE=zelie zelerton] Out of curiosity, would male-female couples also lose these benefits if they were not married? Or did they not get them in the first place? [/QUOTE] There’s a previous thread on this issue: [Michigan Court of Appeal strikes down benefits for unmarried couples, straight or gay - Great Debates - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=407859) (yes). The opinion discussed in the previous thread is on appeal, but the Michigan Supreme Court refused to stay the lower court’s order while the appeal is pending: [http://courtofappeals.mijud.net/documents/sct/public/orders/20070523\_s133554\_123\_133554\_2007-05-23\_or.pdf](http://courtofappeals.mijud.net/documents/sct/public/orders/20070523_s133554_123_133554_2007-05-23_or.pdf) ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 21, 2007, 12:01pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/5 "2007-06-21T12:01:30Z")
[QUOTE=Northern Piper] If the public employee had the right to benefits for her partner under her employment contract, how can the State impair that contractual right, even by an amendment to the state constitution? [/QUOTE] Who said she had a contract? Does anyone have contracts these days aside from CEO’s and union people? With proper notification per federal law, companies (in this case, the state of Michigan) are pretty much free to change benefits according to their will. However, I thought all of our state employees were unionized in some way or another due to lack of individual worker protection laws in Michigan. ---
**Author:** ![crazyjoe](https://avatars.discourse-cdn.com/v4/letter/c/f14d63/32.png) [@crazyjoe](https://boards.straightdope.com/u/crazyjoe)\ **Post date:** [June 21, 2007, 1:57pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/6 "2007-06-21T13:57:33Z")
[QUOTE=Balthisar] Who said she had a contract? Does anyone have contracts these days aside from CEO’s and union people? With proper notification per federal law, companies (in this case, the state of Michigan) are pretty much free to change benefits according to their will. However, I thought all of our state employees were unionized in some way or another due to lack of individual worker protection laws in Michigan. [/QUOTE] You have a lot of misconceptions about who works under a contract and what the state can and cannot do. Firstly, as you noted these employes are likely part of a union. Since they are union employees, they typically work under a union contract, which establishes how they will be paid, what benefits will be offered, and what infractions can lead to termination, etc. Employers are not allowed to simply invalidate contracts, whether it’s the state or not. However, this law has been imposed and the contract must be modified accordingly. ---
**Author:** ![gotpasswords](https://avatars.discourse-cdn.com/v4/letter/g/c57346/32.png) [@gotpasswords](https://boards.straightdope.com/u/gotpasswords)\ **Post date:** [June 21, 2007, 3:18pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/7 "2007-06-21T15:18:17Z")
From **Gfactor’s** quote: _“In order to protect the health, safety, and welfare of its citizens, a state may enact legislation which impairs contracts under certain conditions.”_ How does offering health insurance to unmarried couples impede the state’s ability to protect the health, safety or welfare of its citizens? One could argue that removing those benefits will actually harm the health, safety and welfare of those citizens. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 21, 2007, 3:24pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/8 "2007-06-21T15:24:48Z")
[QUOTE=crazyjoe] You have a lot of misconceptions about who works under a contract and what the state can and cannot do. Firstly, as you noted these employes are likely part of a union. [/quote] So what is my misconception here?? > [@](#): > > Since they are union employees, they typically work under a union contract, which establishes how they will be paid, what benefits will be offered, and what infractions can lead to termination, etc. Again, my misconception is where? Why the heck do you think I pointed out the possibility of their being union? Strictly speaking, they’re _not_ union employees. That would be illegal (can’t be part of the union you work for). They’re _unionized_ employees (assuming they are, in fact, unionized), or they’re city/county/state/whatever employees. > [@](#): > > Employers are not allowed to simply invalidate contracts, whether it’s the state or not. However, this law has been imposed and the contract must be modified accordingly. Go back and read and try to comprehend again. I’m not talking about people with contracts. Of course you can’t just invalidate contracts without a court order providing such relief. Employers, though, including government agencies, are certainly free to change benefits any time they want in compliance with federal/state/municipal laws (usually having to do with notification, lack of discrimination, and such). ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 21, 2007, 3:35pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/9 "2007-06-21T15:35:22Z")
[QUOTE=gotpasswords] From **Gfactor’s** quote: _“In order to protect the health, safety, and welfare of its citizens, a state may enact legislation which impairs contracts under certain conditions.”_ How does offering health insurance to unmarried couples impede the state’s ability to protect the health, safety or welfare of its citizens? One could argue that removing those benefits will actually harm the health, safety and welfare of those citizens. [/QUOTE] Things are getting a little mixed up. That state didn’t enact legislation; the people of the state amended the constitution to prohibit the recognition of marriage of same sex couples. “Sec. 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.” This isn’t a law; it’s a constitutional amendment passed by initiative. On its own, it doesn’t prevent governments from offering benefits to gay partners, however Michigan courts have ruled that it _does_. This is currently under appeal as noted in a previous post. It’s obvious that the people don’t want marriage to be defined as anything but one man, one woman, but what is _not_ obvious is whether the people intended to prevent such benefits from being offered. So far, no legislation – only a constitutional amendment and a court decree. Keep in mind that there was no legislation forcing municipalities to offer such benefits, ergo, given the chance they would continue to do so. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 21, 2007, 4:04pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/10 "2007-06-21T16:04:26Z")
[QUOTE=Balthisar] This isn’t a law; it’s a constitutional amendment passed by initiative. [/QUOTE] > [@](#): > > ‘‘Law’’ Defined .–The term comprises statutes, **constitutional provisions** , 1846 municipal ordinances, and administrative regulations having the force and operation of statutes. But are judicial decisions within the clause? The abstract principle of the separation of powers, at least until recently, forbade the idea that the courts ‘‘make’’ law and the word ‘‘pass’’ in the above clause seemed to confine it to the formal and acknowledged methods of exercise of the law-making function. Accordingly, the Court has frequently said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights. Nevertheless, there are important exceptions to this rule that are hereinafter set forth. [http://caselaw.lp.findlaw.com/data/constitution/article01/54.html#f1846](http://caselaw.lp.findlaw.com/data/constitution/article01/54.html#f1846) (Emphasis added; footnotes, including the one citing cases as early as 1856, omitted). ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [June 22, 2007, 12:46am UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/11 "2007-06-22T00:46:58Z")
[QUOTE=Gfactor] [http://caselaw.lp.findlaw.com/data/constitution/article01/54.html#f1846](http://caselaw.lp.findlaw.com/data/constitution/article01/54.html#f1846) (Emphasis added; footnotes, including the one citing cases as early as 1856, omitted). [/QUOTE] Well, okay, you’re a lawyer who provides cites, so I defer to you. I’ve always meant to ask what area you practice, you know, “just in case” :). ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 22, 2007, 7:51pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/12 "2007-06-22T19:51:04Z")
[QUOTE=Balthisar] Well, okay, you’re a lawyer who provides cites, so I defer to you. I’ve always meant to ask what area you practice, you know, “just in case” :). [/QUOTE] He practices Straight Dope law. 😛 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 22, 2007, 8:47pm UTC](https://boards.straightdope.com/t/same-sex-couples-in-michigan-lose-benefits-isnt-that-an-impairment-of-contract/408815/13 "2007-06-22T20:47:17Z")
[QUOTE=Balthisar] Well, okay, you’re a lawyer who provides cites, so I defer to you. I’ve always meant to ask what area you practice, you know, “just in case” :). [/QUOTE] Right now I’m general counsel for a mortgage banker, so I’m not in private practice. I’ve done all kinds of litigation, real estate, and probate work. I’ve also got some criminal and appellate experience. I’d actually intended to come back and flesh out my earlier answer, but I was trapped near the inner circle of fault. It looks like most of it got covered anyway. Let me summarize without citations: 1. Whether there is a contract and who it is with, and how it gets modified can be very complicated in employee benefits law, and also in public sector employment law. All employees have employment contracts. Some are terminable at-will, and for most purposes, that means the terms of the contract can be easily modified by the employer. On top of that there are statutorily imposed contract terms sometimes (COBRA, for example, which deals with what happens when certain events disqualify an employee from coverage under a group policy). There could be union contract, but public sector union contracts are creatures of state law, mostly. I think the best we can say for sure without a lot more research than I’m willing to do is that it’s unclear what the terms of the contract in question really are. I note that the article mentions the benefits remain in place until June 30. This is probably the date the insurance policy is up for renewal. If the law’s been changed, the insurer might not even offer domestic partner coverage to public employees, so that’s another complication. 2. I pointed out that the bar on impairments of contracts isn’t an absolute one. Obviously that doesn’t mean that the government automatically wins the case. **gotpasswords** raises a good point; but you can’t read a case like a statute. The fact that the some language in the case seems to suggest that the exception is about health and welfare, doesn’t mean that’s an exhaustive list. This is really shorthand for the state’s police power, which is broader in two ways: First, it includes more than health and welfare of individuals–it’s about the overall welfare of the state. Second, the courts tend to defer to the states on the merits of the question of welfare, so arguing that a different result would be better doesn’t usually win the day. 3. Michigan, and especially, the Court of Appeals, has a history of approving of discrimination against unmarried people. The Court of Appeals once approved of landlords refusing to rent to unmarried couples based on an interpretation of the cohabitation statute that had already been rejected by the Michigan Supreme Court years earlier. A while ago, I started a thread about the Court of Appeals again ignoring this line of cases in a case involving modification of visitation. So there’s a fair amount of Court of Appeals dicta about how Michigan has a public policy that strongly favors marriage. The Pride at Work case that I cited earlier is another example of that. I think that about covers it. **Northern Piper** , was that a satsifactory answer? 🙂