Dispatches from the Creation Wars

Thomas More Law Center Sues MSU

Continuing their crusade to insure that gay couples are punished as much as possible for being gay, the Thomas More Law Center has sued Michigan State University over their policy of providing health care benefits to gay couples employed by the university. This is the second such lawsuit the TMLC has filed, the first being against Ann Arbor Public Schools (that case was dismissed by the appeals court on a technicality). In addition, the ACLU and the National Pride at Work organization has filed suit against Governor Granholm from the other side of the issue because Granholm voided the domestic partnership benefits from a state employees contract that had already been negotiated with the union prior to the amendment being passed. The second case is in the state appeals court after the district court issued a summary judgment in favor of the plaintiff, which does not bode well for the TMLC’s case.

In 2004, Michigan passed a referendum against gay marriage, a referendum that was initiated by a group calling itself Citizens for the Protection of Marriage (CFPM). The actual language of the referendum was written by TMLC attorney Patrick Gillen and by Michigan AFA President Gary Glenn. The language of that referendum said:

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 a similar union for any purpose.

In the campaign to pass the amendment, the CFPM repeatedly assured voters that this had only to do with the definition of marriage, not with rights or benefits already given to gay couples through employment contracts and the like. Indeed, they distributed a brochure all around the state that said explicitly:

Proposal 2 is Only about marriage. Marriage is a union between husband and wife. Proposal 2 will keep it that way. This is not about rights or benefits or how people choose to live their lives. This has to do with family, children and the way people are. It merely settles the question once and for all what marriage is-for families today and future generations. (Emphasis in the original)

Compare that to what they are saying now. The TMLC “action alert” that went out this morning announcing the suit against MSU contains quotes from both Gillen and Glenn that flatly contradict the brochure that their group put out in 2004 to sell the referendum to the people:

Patrick T. Gillen, the Law Center’s attorney handling the case said that MSU’s policy is a transparent effort to circumvent the Marriage Amendment and state law. According to Gillen, “The constitution and laws of Michigan are designed to protect marriage and refuse recognition to same-sex unions, including same-sex domestic partnerships. Common sense and history demonstrate the enduring value of the traditional family, and its vital role in promoting the good of spouses and children, as well as the common good of society. MSU is not free to disregard state law to promote its own definition of marriage and use state funds to promote its experiment with the family.”

The district court in the National Pride at Work case already smacked down this argument in its order granting summary judgment to the plaintiffs. The court was not fooled by this ridiculous argument, noting:

[T]he intent of the people who approved art 1, sec 25 is contained in the very language of the amendment. The stated purpose of the amendment is “to secure and preserve the benefits of marriage for our society and for future generations of children.” Health care benefits are not among the statutory rights or benefits of marriage. An individual does not receive health care benefits for his or her spouse as a matter of legal right upon
getting married. If a spouse receives health care benefits, it is as a result of a contractual provision or policy directive of the employer. Likewise, health care benefits are not limited to those who are married. Within the
confines of what the health insurance provider offers, an employer may choose to offer coverage to any person who bears an employer-defined relationship to the employee. Health care benefits for a spouse are benefits of employment, not benefits of marriage…

[T]he employer-defined criteria for obtaining the health insurance benefits in this case are not based on marriage. The question is whether the criteria act as recognition of “a union similar to marriage.”

The criteria used by the employers in the present case do not recognize “a union.” There is no “union” that arises out of the employers’ criteria. The criteria are no more than a collection of characteristics the employer has identified for purposes of extending health insurance benefits. Moreover, the criteria can hardly be said to recognize a union when the criteria differ by employer. Nor can the criteria be said to create a union where one does not exist according to law. Civil unions are not recognized in this state. Employer-defined criteria for the receipt of health care benefits cannot create a union where one does not exist.

The behavior of the TMLC and the CFPM in this situation is appalling. Over and over again during the campaign for Proposal 2 in 2004, they assured the public that the amendment would not have any effect on domestic partnership benefits. The Detroit News, in November 2005, quoted several people who voted for the amendment as saying that if they had known the law would outlaw such benefits they never would have voted for it.

Voters themselves seem confused about the debate over health care benefits. At least a dozen contacted by The Detroit News said they would not have supported the marriage amendment if they had known it would put domestic partner health care benefits at risk.

“I voted that way because I believe marriage is a sacrament,” said Patricia Klein, 75, a retired former supervisor at Verizon Wireless who lives in Belleville. “But I definitely support them having a civil ceremony and having domestic partner benefits. I don’t remember (the proposal) saying anything about health benefits.”

Even the Catholic Diocese of Detroit, which bankrolled the campaign for the referendum, says that the proposal was not intended to stop such benefits:

The Catholic Church, which kicked in more than half of the $1.7 million raised in support of Proposal 2, also supports health benefits for gay employees.

“The question we put before voters reaffirmed the traditional definition of marriage, it was not about benefits,” said Ned McGrath, spokesman for the Archdiocese of Detroit.

What makes this even more enraging is the sheer hypocrisy of the anti-gay marriage groups. These people talk in lofty terms about morality, yet they blatantly lie to the public about what this proposal would do and then, the moment it’s passed, begin filing suits to do exactly what they assured us the law would not do. I would go so far as to say that Gillen, at least, should be under investigation by the bar association for this. He told the public one thing in advocating a law, then tries to use the law to do what he said it would not do. That’s a pretty clear breach of ethics in my view.


  1. #1 kehrsam
    July 5, 2006

    Is this not exactly the same type of (legal) behavior that they are accusing gay rights activists of? Ignore the merits of this particular proposal, because it is part of a larger “agenda.”

    Unfortunately, political speech is protected, so I doubt anyone can be disbarred for what they said in a campaign, even if it was a bald-faced lie.

    Still, the effrontery is remarkable. Something to keep in mind the next time TMLC puts out the “We don’t hate homosexuals” bit: Yes they do, they want them to disappear. If you can only stop hating when the offender ceases to exist, you have a serious hate problem.

  2. #2 Michael LoPrete
    July 5, 2006

    political speech is protected by law to the extent that things like defamation may not apply even where it otherwise would, but I don’t know if the bar operates similarly. Since bar organizations are not government entities and are self-governing (and because disbarring an attorney does not require the commission of a crime or civil wrong), this type of behavior might be up for sanction.

  3. #3 Ed Darrell
    July 6, 2006

    There are a number of sets of good economic data that indicate people who don’t have insurance cost the public huge sums of money annually for “indigent” care. In short, whenever anyone — ANYONE — drops of the insurance rolls, it increases the costs for everyone else.

    It would be nice to see someone intervene in the suit and counterclaim against TMLC asking them to take on the additional costs to local hospitals. Monaghan ought to be good for it — $2 million to $3 million annually in Wayne County, I’d wager.

    Discrimination is costly, Adam Smith detailed in 1776. Some people are very slow on the uptake about this free enterprise stuff. Shifting costs to the public and multiplying the costs is too high a cost to pay for the right to pester a few gays. Make TMLC open their wallets.

  4. #4 Sonik
    July 6, 2006


    Several state bar organizations are indeed government agencies because they are govered by the state supreme court. In my state, every licensed lawyer issued by the state is required to be a member of the state bar; what we call an “integrated bar.” Even though they are “self-governing,” state bar associations have a tremendous amount of power over practicing attorneys (especially because through the state supreme court, they grant us our licenses) and they have the power to remove them through hearings and disciplinary proceedings.

    It is true that some bar organizations like the ABA are voluntary, and there are some local organizations or chapters that you can join as well, some related to the state bar and others not. However, it is the state supreme court and their appointed agency, the state bar that really controls how lawyers are supposed to act and what standards of ethics are required in that state.

    As to political speech and lawyers, in my state at least we have adopted the ABA’s Model Rules of Ethics, which strictly prohibits me from donating to certain campaigns, like judges, and then taking a position with the judge as a clerk or a magistrate because I would look like I was calling in a favor from the judge instead of being selected because of my merits. Similarly, judges have restrictions on what they can say in public concerning candidates because it could unfairly sway the public. This is not only a good thing, because it lowers the public’s view that all lawyer deals are made in smoke filled back rooms, but it also preserves the bar’s primary mission- to provide our clients with as detached and bias-free access to the courts and justice that we can.

    Now, whether that’s the case in practice I have no idea since I’m still a lowly idealistic law student. And, as to whether this can apply to Proposition 2 in Michigan I’m also not quite sure. But, at least there is a foundation for either the public or the bar to work on in a situation like this.

  5. #5 Raging Bee
    July 6, 2006

    What standing, exactly, do the TMLC have to sue here?

  6. #6 Ed Brayton
    July 6, 2006

    The same standing anyone does to sue the government (MSU is a public school). Their claim is that the government is violating the state constitution. They’re wrong, but they do have standing.

  7. #7 friend
    July 6, 2006

    No — it is simply not true that “anyone” has standing to sue the government claiming a violation of the state constitution. The plaintiff must have an injury, to them specifically. There may be taxpayer standing or other such broad interpretation, but the law school itself would likely not fit that. Is TMLC representing taxpayers, or students at MSU, rather than being the plaintiff itself?

  8. #8 Ed Brayton
    July 6, 2006

    Yes, I’m sure the TMLC is representing taxpayers and using that doctrine, just as the ACLU does on the other side.

  9. #9 friend
    July 6, 2006

    Oh — and this is just a despicible fund-raising tool for the right wing, in any case. The MI Court of Appeals is considering this very issue (having heard arguments in April in a similar case). Once they rule, this filing will be meaningless — except as a nice piece of fundraising literature.

  10. #10 Treban
    July 7, 2006

    Granholm actually tried to void part of the state employee contracts? I have to say she is an improvment over king john but she still leaves a hell of a lot to be desired. Such ridiculous pandering is what continually sickens me about the body politic.

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