IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON,
Plaintiffs,
vs.
RICHARD SNYDER, in his official capacity as Governor of the state of Michigan,
Defendant. ____________________________________

Case No. 2:12-cv-10038 Hon. David M. Lawson

FIRST AMENDED COMPLAINT Plaintiffs, Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller, and Michelle Johnson (collectively “Plaintiffs”), seek declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983, from Public Act 297 of 2011, the Public Employee Domestic Partner Benefit Restriction Act, which violates the Fourteenth Amendment to the United States Constitution by stripping family health care benefits only from the committed same-sex domestic partners of certain gay and lesbian public employees within the State of Michigan while allowing public employees’ other family members access to such benefits, and by preventing public employers from offering such benefits to employees’ same-sex domestic partners in the future. (Ex. A, 2011 Mich. Pub. Acts 297.)

INTRODUCTION 1. Family health insurance coverage is a valuable part of the compensation Michigan public employees earn. Some municipalities and other government employers extend family health insurance coverage to employees’ unmarried domestic partners (whether of the same or opposite sex). 2. Plaintiffs Bassett, Ways, Jach, Bloss, and Miller (the “Public Employee Plaintiffs”) are lesbian and gay public employees whose compensation includes family health insurance coverage. Plaintiffs Kennedy, Breakey, Ramber, Ascheri, and Johnson (the “Domestic Partner Plaintiffs”) are the committed same-sex partners of the Public Employee Plaintiffs, who have been covered by the family health insurance voluntarily provided by their partners’ employers. 3. The employers of the Public Employee Plaintiffs, and other public employers in Michigan, have established family health benefits programs that extend coverage to individuals who live with and share finances with employees, without regard to the nature of their relationships. These programs comply with the Michigan Constitution and applicable case law. 4. On December 22, 2011, Defendant Michigan Governor Richard Snyder reviewed, approved, and signed House Bill 4770, the Public Employee Domestic Partner Benefit Restriction Act, which then took immediate effect as Public Law 297 of 2011 (the “Act”). (Ex. A.) The Act prohibits certain public entities in Michigan from offering family health coverage to their employees’ domestic partners. 5. The Michigan Constitution prohibits same-sex couples from marrying. 6. Because unmarried opposite-sex couples can become eligible for family benefits by marrying, and employers remain free to offer family health care benefits to any other family
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members, including aunts, nieces, siblings, or cousins, the only family members whom the Public Employee Domestic Partner Benefit Restriction Act bars from receiving family health care benefits are the domestic partners of lesbian and gay workers. The Act therefore imposes on gay and lesbian employees’ families alone the burdens of being uninsured or underinsured: financial hardship, health-related anxiety, stress, and medical risk.
7. Categorically eliminating the possibility of receiving family health coverage for lesbian and gay public employees’ domestic partners—while leaving other family members, including opposite-sex spouses, eligible to receive family coverage—discriminates against the Public Employee Plaintiffs by treating them differently from other similarly situated public employees.
8. As described below, each of the Plaintiff couples has been in a committed relationship for between eight and twenty-five years. While one Plaintiff couple is legally married, their marriage is not recognized under Michigan law, and thus the phrase “domestic partners” is used in this Complaint to describe the Plaintiffs because the title of the law challenged here makes clear that the State has targeted them for discrimination as “domestic partners.”
9. The Public Employee Plaintiffs will lose or have already lost family health insurance coverage for their committed domestic partners, and all of the Domestic Partner Plaintiffs will lose their present health insurance coverage, or have already lost their coverage. The Act will particularly harm those Domestic Partner Plaintiffs who need ongoing medical care for serious chronic conditions, such as Plaintiff Barbara Ramber, who has glaucoma and arthritis.
10. Plaintiffs already have or soon will suffer these irreparable harms because of their sexual orientation and sex.
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11. The Public Employee Plaintiffs are similarly situated in every relevant respect to their heterosexual coworkers who are married and eligible to receive family coverage for their spouses as part of their employment compensation: Plaintiffs’ employment is no less demanding, and their service to the public no less valuable, than that of their married heterosexual coworkers.
12. There is no legitimate—let alone important or compelling—governmental interest in categorically barring lesbian and gay public employees, including Plaintiffs, from accessing the same health insurance benefits that heterosexual employees can share with their families.
13. The Public Employee Domestic Partner Benefit Restriction Act is the result and expression of discriminatory animus toward gay and lesbian individuals and families, and violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.
PARTIES A. Plaintiffs Plaintiffs Theresa Bassett and Carol Kennedy
14. Plaintiffs Theresa Bassett and Carol Kennedy are residents of Ann Arbor, Michigan.
15. Theresa works for Ann Arbor Public Schools. She has been employed by the district for twenty-eight years and has earned tenure. Theresa teaches math to sixth- and eighth-graders at Slauson Middle School in Ann Arbor. She has a Master’s Degree in Educational Leadership and is currently working on a Master’s Degree in Social Work.
16. Theresa has been in a committed relationship with her partner, Plaintiff Carol Kennedy, for twenty-five years. Theresa and Carol celebrated their commitment in a
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Unitarian Universalist Church ceremony in 1990 and were legally married in California in 2008. They also registered as domestic partners with the City of Ann Arbor in 1993. Theresa and Carol are financially interdependent. They own their home jointly and maintain a joint checking account. In addition, each is the primary beneficiary of the other’s will and life insurance policy.
17. Theresa and Carol have raised six children together: Maya, Olivia, Ben, Charlie, Sam, and Finnian (“Finn”) Bassett-Kennedy, ranging in age from six to twenty.
18. Carol has worked from the couple’s home as a day care provider since 1993. Because she is self-employed, she does not have access to her own employer-provided benefits plan.
19. Carol is currently covered through the school district’s “Other Eligible Adult” plan. Theresa pays taxes on the value of this coverage. Carol will lose her health insurance if the Public Employee Domestic Partner Benefit Restriction Act remains effective.
20. Carol’s age (fifty) and her family history of breast cancer mean that independent health care coverage for her would be very expensive. To keep her premium down to $250 per month, Carol would have to accept a $2,500 deductible and pay many medical expenses out of pocket; alternatively she could pay a premium of about $800 per month for more comprehensive coverage. This added cost would put considerable pressure on the family’s finances, which are already strained by a mortgage and the costs of sending two children to college.
Plaintiffs Peter Ways and Joe Breakey 21. Plaintiffs Peter Ways and Joe Breakey are residents of Ann Arbor, Michigan.
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22. Peter is employed by Ann Arbor Public Schools. He has served the school district in multiple capacities: as a consultant, as a central administrator, as a high school dean, and as a teacher. He currently teaches middle school at the Ann Arbor Open School.
23. Peter and his partner, Plaintiff Joe Breakey, have been together for more than twenty years. In 1998, Peter and Joe held a commitment ceremony that was attended by more than one hundred friends and family members. Peter and Joe are financially interdependent. They own their home jointly. They are the primary beneficiaries of each other’s wills and have given each other power of attorney for financial and medical decisions.
24. Peter and Joe are together raising their nine-year-old daughter, Aliza BreakeyWays.
25. Joe has a Master’s Degree in Social Work and works as a licensed therapist with his own private practice. He does not have access to his own employer-provided benefits plan because he is self-employed. The flexibility of being self-employed allows Joe to be home when Aliza comes home from school in the afternoons.
26. Peter’s health insurance plan through the school district currently covers Joe. Joe also presently receives dental and vision insurance through Peter’s employee plan. Peter pays taxes on the value of Joe’s benefits.
27. If the Public Employee Domestic Partner Benefit Restriction Act remains in effect, Joe will lose his health coverage and his dental and vision coverage. Because finding comparable individual insurance for Joe would be extremely expensive, Peter and Joe have considered moving back to Washington state, so that Peter could take a job that provides family benefits for which Joe would be eligible.
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Plaintiffs JoLinda Jach and Barbara Ramber 28. Plaintiffs JoLinda Jach and Barbara Ramber are residents of Kalamazoo,
Michigan. 29. JoLinda has worked for the City of Kalamazoo for twenty-four years. During that
time she has held multiple positions in information technology; she currently serves as a senior systems analyst for software applications and project management.
30. JoLinda and her partner, Plaintiff Barbara Ramber, have been in a committed relationship for seventeen years. In 1997, they had a commitment ceremony in California.
31. JoLinda and Barbara are financially interdependent. They jointly own their home. Each has granted the other power of attorney for financial and medical decisions. The couple has two children, Dylan and Jordan Ramber-Jach.
32. Barbara works part-time in the food-service division of Kalamazoo Public Schools.
33. Last year, Barbara was hit in her left eye by a baseball. The injury has permanently damaged her eyesight and she has developed glaucoma. To prevent blindness, she must take daily medication. Barbara has also recently been diagnosed with rheumatoid arthritis, which limits the mobility of her hands and wrists.
34. Barbara currently is covered under JoLinda’s health care plan provided by the City of Kalamazoo. JoLinda pays taxes on the value of the coverage for Barbara and contributes to the cost of Barbara’s premiums.
35. If the Act remains in effect, Barbara will lose her health insurance coverage through the City of Kalamazoo. JoLinda and Barbara are now exploring alternative methods of coverage for Barbara. The severity of her eye injury and her arthritis will make it very
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difficult for Barbara to find individual health insurance, and if she does find an individual plan that is willing to enroll her, the coverage is likely to be more expensive than the family can afford. Barbara could purchase health insurance coverage from the school district where she works, but the premiums would cost her $540 per month—more than half of her monthly take-home pay. Her present medications would cost Barbara more than $300 per month if insurance did not cover them.
Plaintiffs Doak Bloss and Gerardo Ascheri 36. Plaintiffs Doak Bloss and Gerardo Ascheri are residents of Lansing, Michigan. 37. Doak has worked for Ingham County for more than thirteen years. He currently
serves as Health Equity and Social Justice Coordinator for the County. 38. Doak has been in a committed relationship with his partner, Gerardo Ascheri, for
eighteen years. Doak and Gerardo met when they were both working on a musical production for a community theater—Doak was the director and Gerardo was the audition accompanist.
39. Doak and Gerardo are financially interdependent. They have given each other power of attorney for medical and financial decisions.
40. Gerardo is currently self-employed as a piano teacher, giving piano lessons in the couple’s home. He taught piano on a part-time basis through Michigan State University’s community outreach program for seventeen years, although he no longer does so. For many years, Gerardo has not been able to access health coverage through his own employment.
41. Gerardo has in recent years received health insurance, as well as dental and vision insurance, through Doak’s employer, Ingham County. Doak contributed to the premiums and paid taxes on the value of Gerardo’s benefits.
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42. Gerardo has high blood pressure and high cholesterol, and is currently taking medication for these conditions.
43. If the Act remains in effect, Gerardo will lose his coverage through the County. Gerardo and Doak have looked into purchasing individual coverage for Gerardo; he would have to pay premiums of $500 per month for health insurance with a $1,500 deductible and a 50% co-payment on prescriptions; this coverage would not include dental or vision. Gerardo’s present medications would cost the family more than $130 per month if insurance did not cover them.
Plaintiffs Denise Miller and Michelle Johnson 44. Plaintiffs Denise Miller and Michelle Johnson are residents of Kalamazoo,
Michigan. 45. Denise has taught English at Kalamazoo Valley Community College for
seventeen years and has been tenured since 1997. She has a Bachelor’s degree in Creative Writing and a Masters in English Literature.
46. Denise has been in a committed relationship with Michelle for eight years. Denise and Michelle met when Denise was presenting at a conference Michelle attended.
47. Denise and Michelle are financially interdependent. They share all expenses, including rent, groceries, car payments, and car insurance. Each hasThey have named eachthe other as a beneficiary of their life insurance policies, . Denise has giaven Michelle a pPower of aAttorney for mMedical decisions.Care several years ago, when Denise was in the hospital for a period of time.
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48. Denise and Michelle held a commitment ceremony on December 31, 2004, which was attended by the President of Kalamazoo Valley Community College and more than 100 people.
49. Michelle has a Ph.D. in American Culture. She is currently the Executive Director for the non-profit Fire Historical and Cultural Arts Collaborative, a Kalamazoo-based organization dedicated to combining social justice initiatives with arts and culture. Michelle’s employer does not offer health insurance.
50. In August 2011, when Denise’s employer began allowing each of its employees to enroll “Another Eligible Adult” in its benefit plans, Denise signed Michelle up for coverage. Denise contributed to the monthly premium cost for Michelle’s coverage and paid taxes on the value of the coverage. Michelle’s coverage included health insurance, dental insurance, vision insurance, and prescription coverage with a co-pay of ten percent.
51. Michelle has a number of non-malignant fibroid tumors and cysts on her breasts, medical conditions which require continued monitoring. If her tumors grow, Michelle will have to have surgery. These conditions will make it difficult for Michelle to find affordable health coverage like the coverage she had been receiving from Kalamazoo Valley Community College.
52. After the Act was signed into law, Kalamazoo Valley Community College canceled Michelle’s coverage as of December 31, 2011. Since that time, Michelle has been without health coverage.
B. Defendant 53. Defendant Richard Snyder is sued in his official capacity as Governor of
Michigan. Governor Snyder is a person within the meaning of 42 U.S.C. § 1983 and was
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acting under color of state law at all times relevant to this Complaint. The Governor of Michigan has the duty and authority to transact all executive business with the officers of the government and the duty to ensure that the laws are faithfully executed. Mich. Const. 1963, art. V, § 8. The Governor is also charged with supervising the official conduct of all executive and ministerial officers and ensuring that all offices are filled and all duties performed. Id. Governor Snyder reviewed and approved H.B. 4770. He was and is directly responsible for the implementation and enforcement of the Act.
54. Plaintiffs allege that the Defendant intentionally performed, participated in, aided in, and/or abetted the acts averred herein, is liable to Plaintiffs for the relief sought herein, and has and will injure Plaintiffs irreparably if not enjoined.
JURISDICTION AND VENUE 55. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 56. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. 57. Venue is proper in this Court unde r 28 U.S.C. § 1391(b) because, upon information and belief, the Defendant resides within this District, and a substantial part of the events that gave rise to Plaintiffs’ claims took place within this District. 58. This Court has the author ity to enter a declarator y judgment and to provide preliminary and permanent injunctive relief pursuant to Federal Rules of Civil Procedure 57 and 65, and 28 U.S.C. §§ 2201 and 2202.
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59. This Court has personal jurisdiction over the Defendant because he is a resident of the State.
FACTUAL BACKGROUND A. The History of Benefits for Michigan Public Employees’ Same-Sex Domestic
Partners 60. Public employers in Michigan provide certain valuable health benefits to
employees for their families, including subsidized access to health care coverage for employees’ opposite-sex spouses.
61. Prior to 2004, a number of Michigan public employers voluntarily provided family health benefits to same-sex domestic partners as well. Each public employer defined its own criteria for who could qualify as a “domestic partner.” These programs typically required, among other things, that domestic partners be the same sex as the employee, share a residence, and sign an affidavit or similar document attesting to the committed nature of their relationship and to their obligation to provide each other mutual support.
62. In 2004, the Michigan Constitution was amended to include article I, section 25, which states that “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.”
63. In 2005, then-Michigan Attorney General Mike Cox issued an opinion regarding the legality of the City of Kalamazoo’s domestic partner benefits. Cox opined that the domestic partner benefit program was impermissible under article I, section 25, because benefits were contingent on the employee and his or her domestic partner’s committed relationship. He asserted that
The provision of benefi ts itself does not violate the am endment, but the benefits cannot be given based on the similarity of the union or dom estic partnership agreement to a legal m arriage. In other words, Const 1963,
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art. 1, § 25 does not prevent the City of Kala mazoo, if it elects to do so, from conferring benefits on persons a city employee may wish to designate as a recip ient as long as the benefits are no t dependent on the existence of a union that is sim ilar to a marriage as defined by Michigan law. Constitutionality of City Providing Same-Sex Domestic Partnership Benefits, Mich. Att’y Gen. Op. 7171 (Mar. 16, 2005), available at http://www.ag.state.mi.us/opinion/datafiles/ 2000s/op10247.htm. 64. In 2007, the Michigan Court of Appeals held in National Pride at Work, Inc. v. Granholm, 732 N.W.2d 139 (Mich. Ct. App. 2007), that article I, section 25 prohibits public employers from providing health-insurance benefits to their employees’ same-sex life partners on the basis of a domestic partnership relationship. The Court of Appeals noted that “[t]he amendment as written does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship.” Id. at 155. 65. The Michigan Supreme Court upheld this ruling in 2008, reasoning that public employers’ domestic partnership policies that were “defined in terms of both gender and the lack of close blood connection” could not share these two unique qualities with marriage without being sufficiently similar that they violated article I, section 25. National Pride at Work, Inc. v. Granholm, 748 N.W.2d 524, 537 (Mich. 2008). 66. In light of this decision, some public employers revised their health insurance policies to voluntarily provide family health care benefits to unmarried employees who live with an “Other Qualified Adult.” Employers made these changes because both the Attorney General and the Court of Appeals recognized that the provision of benefits to employees’ same-sex partners was legal as long as it was not predicated on an agreement establishing or affirming a particular type of relationship.
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67. Each public employer that provides such benefits defines its own criteria for an “Other Qualified Adult.” These criteria allow an employee to designate a person he or she lives with and shares finances with as an Other Qualified Adult, without any requirement that the relationship be of an intimate nature. They also allow an employee to designate an Other Qualified Adult of either the same sex or the opposite sex. Employees are required to submit documentation of shared residence, and, in some programs, of financial interdependence with the Other Qualified Adult, to confirm eligibility and prevent fraud. (Ex. B, City of Kalamazoo Other Qualified Adult Criteria; Ex. C, Ann Arbor Public Schools Other Eligible Adult Criteria; Ex. D, Ingham County Other Qualified Adult Criteria).
68. Municipal and county employers that have provided an “Other Qualified Adult” or similar program include the Cities of Ann Arbor and Kalamazoo, and the Counties of Washtenaw, Ingham, and Eaton. Public school districts that have provided health insurance for unmarried partners include Ann Arbor, Birmingham, and Farmington. Community colleges that have provided such programs include Kalamazoo Valley CommunityState College and Lansing Community College.
69. Plaintiffs are lesbian and gay public employees and their committed domestic partners who participated in their respective employers’ health benefits plans as Other Qualified Adults or a similar benefit offered under a different name. Plaintiff public employees and their Plaintiff domestic partners met the applicable eligibility requirements for coverage at the time of enrollment and continue to meet those requirements.
B. The Public Employee Domestic Partner Benefit Restriction Act 70. On December 7, 2011, the Michigan Senate passed H.B. 4770 and its companion
bill, H.B. 4771, which prohibited public employees from collective bargaining with respect to health insurance coverage for unmarried adults. On December 8, 2011, the Michigan House
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of Representatives passed H.B. 4770 as amended by the Michigan Senate as well as H.B. 4771, and the bills were ordered enrolled. On December 13, 2011, H.B. 4770 and H.B. 4771 were presented to Defendant Richard Snyder for review, consideration, and approval or rejection in his capacity as Governor of Michigan. On December 22, 2011, Defendant Snyder signed H.B. 4770 into law but vetoed H.B. 4771.
71. H.B. 4770, which became Public Act 297 of 2011, is titled the “Public Employee Domestic Partner Benefit Restriction Act.”
72. The Act prohibits certain public employers in Michigan from offering health insurance benefits or any other fringe benefits to individuals who share a residence with a public employee and who are not married to the employee, dependents of the employee as defined in the Internal Revenue Code,1 or potential heirs of the employee as defined by Michigan intestate succession laws.
C. Anti-Lesbian and Gay Animus Underlying the Public Employee Domestic Partner Benefit Restriction Act
73. The title of the Public Employee Domestic Partner Benefit Restriction Act conveys its direct intent to prevent certain public employers from offering benefits to committed same-sex couples, commonly referred to as “domestic partners.”
74. The Act singles out lesbian and gay public employees and categorically denies them, and only them, the ability to obtain employee health insurance benefits for their closest family members—the partners with whom they share their lives. The Act prohibits certain public employers from providing health insurance coverage to the same-sex domestic partners
1 Pursuant to the Internal Revenue Code, a taxpayer may claim as a dependent an adult who receives more than 50% of his or her financial support from the taxpayer and has no more than $3,700 in gross annual individual income, and who either lives with the taxpayer or is related to the taxpayer in one of several listed ways by blood, adoption, or federally recognized marriage. 26 U.S.C. §§ 151(d), 152(d) (2011); Exemptions, Standard Deductions, and Filing Information, I.R.S. Pub. No. 501, at 12, 16-21 (2011) .
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of public employees because Michigan does not recognize the marriages of same-sex couples, its intestate succession laws do not cover domestic partners, and almost no domestic partners would qualify as dependents under the Internal Revenue Code.
75. In contrast, nothing in the Act prevents public employers from providing family health insurance coverage to other family members, such as aunts, uncles, parents, siblings, nieces, nephews, or cousins, all of whom are eligible to inherit from an employee under Michigan’s intestate succession laws.
76. The Act facially discriminates against lesbian and gay public employees by conditioning their employers’ ability to grant benefits to any domestic partner who is not an IRS dependent on marriage or eligibility under the law of intestate succession, two statuses that are unavailable to gay and lesbian employees and their same-sex domestic partners under Michigan law.
77. The House sponsors of the bills also made their discriminatory motivation clear in public statements leading up to the bills’ passage. For instance, Representative Pete Lund called one public employer’s decision to provide these benefits “an absolute abomination” and decried “this clearly political move that shifts people’s hard earned dollars into the pockets of same-sex partners.”
78. Proponents of H.B. 4770 wrongly characterized granting employee health benefits for lesbian and gay families as “illegal.” For example, the legislative analysis of H.B. 4770 and H.B. 4771 completed by the nonpartisan House Fiscal Agency, dated September 6, 2011, upon the report of those bills from committee, states in its “ARGUMENTS: For” section that bill proponents contended these bills were necessary because “any public employer who extends health care insurance to same-sex or opposite-sex domestic partners is clearly
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breaking the law.” The actual holding of National Pride at Work, however, was that public employers could not “provide health-insurance benefits to domestic partners on the basis of a domestic partnership.” 748 N.W.2d 524, 538 (Mich. 2008) (emphasis added).
79. Similarly, the legislative analysis notes that the bill proponents argue “these bills are needed . . . because public employers . . . and their employees have found ways around the law that is now a part of the Michigan Constitution, by avoiding the clearly prohibited language barring health benefits for same-sex partners.” The analysis recounts the various ways that the benefit schemes provide benefits to employees’ “same-sex partners.” This portion of the legislative analysis makes clear the bill proponents’ desire to discriminate against lesbian and gay public employees and their families on the basis of their sexual orientation and sex, as well as the attempted strategy of couching such discrimination in misstatements of existing law.
80. Unlike their heterosexual coworkers, lesbian and gay public employees cannot marry their committed partners in Michigan, nor can they inherit from their same-sex partners under state intestacy laws. Therefore, the Public Employee Domestic Partner Benefit Restriction Act effectively closes every door that would allow public employers to grant health insurance coverage to gay and lesbian employees’ same-sex partners.
81. The Act also eliminates the public employers’ ability to define their own benefits criteria and develop competitive benefits packages to attract the most qualified candidates for employment. Moreover, the Act reverses many public employers’ policies of offering equal compensation in the form of benefits, regardless of an employee’s sexual orientation or the sex of an employee’s partner. The public policies supporting broad extension of family coverage—providing fair compensation, attracting talent by offering benefits competitive with
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the marketplace, and reducing the stress inflicted on employees by family health emergencies—apply equally to lesbian and gay public employees like Plaintiffs who have committed same-sex partners. D. The Effects of the Public Employee Domestic Partner Benefit Restriction Act
82. By designation from the legislature, the Act took immediate effect when Governor Snyder signed it. Under the terms of the Act, coverage is terminated when collective bargaining agreements or contracts that were effective at the time the Act took effect expire, which in some instances is as early as January 1, 2012. Thus, many of Michigan’s gay and lesbian public employees, including Plaintiffs, have been stripped or imminently will be stripped of family health care coverage for their domestic partners.
83. Plaintiff public employees are highly skilled and valuable employees, whose job duties and contributions to their workplaces are neither different from nor less valuable than those of their heterosexual married coworkers or of their coworkers who live with another relative qualified under Michigan intestacy law.
84. Each Public Employee Plaintiff seeks to maintain the family health insurance coverage that he or she currently receives and relies upon as an important part of employment compensation. Each Plaintiff established eligibility for such coverage at the time of enrollment and remains eligible at the present time. E. No Legitimate Governmental Interest Justifies Categorically Barring Localities
from Granting Benefits to Domestic Partners 85. No legitimate governmental interest—much less a compelling or important
interest—justifies the restrictions imposed by the Domestic Partner Benefit Restriction Act. 86. While proponents of the Act claimed that it would reduce cost to the State, the
State will save only negligible costs by barring municipal and local government entities,
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school districts, and community colleges from granting family health benefits to the domestic partners of gay and lesbian public employees. In fact, providing family benefits accessible to gay and lesbian families has numerous financial advantages, in that it allows public employers to attract and keep talented employees. Moreover, retaining such benefits is consistent with Michigan’s tradition of nondiscrimination in employment. Not only is the Act disconnected from any valid goals of the State, but it was motivated by prejudice against lesbians and gay men purely because of their sexual orientation and/or the sex of their partners.
87. The Public Employee Domestic Partner Benefit Restriction Act cannot have been motivated by the State’s desire to save costs, nor do the claimed cost savings explain the categorical exclusion in the law. First, the costs of domestic partner benefits to public employers are limited because, among other reasons, the pool of lesbian and gay employees usually is very small, and not all employees in same-sex relationships enroll in such coverage. Further, the Act contains exceptions that will continue to permit public employers’ provision of benefits to a wide variety of employees’ relatives and to any individuals (regardless of their relationship with the employee) who do not reside with the public employee. These significant omissions belie any contention that the elimination of unmarried partner benefits was merely a cost-reduction measure.
88. An analysis of H.B. 4770 issued by the House Fiscal Agency on June 21, 2011, aggressively assumed that 66% of eligible employees would enroll Other Qualified Adults in their benefits programs. It ignored both the value of the taxes employees currently pay to the State on the benefits at issue and the value that offering family health insurance benefits provides to public employers. This analysis was clearly flawed.
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89. A Floor Summary issued by the Senate Fiscal Agency on October 19, 2011, said the bill would result in “an indeterminate amount of savings for the State and local units of government, depending on the number of public employees’ domestic partners who would not be eligible for medical and other benefits under the bills, and the cost of the benefits that would not be offered.” The summary cited “recent data” from the Civil Service Commission indicating that only 138 employees enrolled “their domestic partners and/or their partners’ dependents in the State’s Health Care benefits plan.” The Commission estimated that the State would save a mere $893,000 in Fiscal Year 2011–2012 were the bill enacted—which is roughly 0.0019% of the State’s approximately $47 billion budget for that period. As passed, the law applies to far fewer public employees than its original scope, rendering any cost justification for the bill even more patently phony. Further, the Senate Fiscal Agency’s conservative analysis failed to account for the likelihood that heterosexual couples currently participating in an “Other Qualified Adult” benefits program will marry and thus continue receiving benefits. The numbers offered in this analysis also sharply differ from those shown in the House Fiscal Agency’s analysis, indicating that anti-gay animus, rather than concrete and accurate cost data, were the basis for H.B. 4770.
90. Upon information and belief, public employees with same-sex domestic partners comprise a small fraction of Michigan public employees. Additionally, employees receiving health benefits for their same-sex domestic partners are (unlike their colleagues in heterosexual marriages recognized by the State) taxed by the State on the value of those benefits, thus providing the State with additional income tax revenue to offset the costs of those benefits.
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91. Public and private employers who offer health benefits to all employees without discrimination achieve a number of economic and business advantages, including the ability to attract talented and highly skilled employees, decrease turnover, and improve employee morale and productivity.
92. In addition to the positive effects it has on recruiting and retaining excellent employees, offering nondiscriminatory health benefits is a core part of employers’ commitment to a diverse workforce.
93. In addition, on information and belief, some people who currently receive health coverage through public employers as other eligible adults would otherwise have no access to affordable health insurance and would qualify for publicly funded health care, thereby costing the State additional money.
94. Further, on information and belief, some of the individuals currently receiving health coverage through public employers as other eligible adults or the children of other eligible adults would otherwise go without health insurance or be able to obtain coverage only under plans with fewer covered services, higher co-payments, and/or higher deductibles, which in turn would reduce their access to preventative health care and prompt responsive treatment for health problems, which would ultimately increase the cost of their treatment.
95. Moreover, many of the costs of insuring the domestic partners of public employees are not borne by the State. In many instances, the public employers voluntarily offering these benefits pay for them using locally raised funds; in some cases, the public employees receiving the family benefits pay for them.
96. The Act also permits public employers to provide benefits to a wide range of other family members, including those who can inherit under Michigan’s intestacy laws. In
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addition, the Act bars benefits only for individuals residing in the same household with public employees, allowing public employers, if they so choose, to provide coverage for any individual who does not live with an employee. Given the minimal cost of providing such benefits to gay and lesbian families and the numerous exceptions that permit the governmental entities to continue paying for health benefits for other members of unmarried employees’ families, it is clear that the Act is not rationally related to any legitimate interest in cost containment.
97. Because of the positive effects on employee recruitment, retention and morale, and the reduction in costs caused by and to persons forced to go without health insurance, many large and small public employers in Michigan have shown a desire to provide health coverage to a range of other eligible adults, including unmarried partners.
98. Nationally, this type of equal compensation practice has been adopted by increasing numbers of public and private employers. At least twenty-four states and the District of Columbia now offer health benefits to lesbian and gay state employees for their same-sex domestic partners. The majority of Fortune 500 companies offer health benefits to lesbian and gay employees for their same-sex domestic partners.
99. The U.S. Department of Labor’s Bureau of Labor Statistics released a report in July 2011 on the number of employers offering unmarried domestic partner benefits.2 The report found that 33% of state and local government workers and 29% of private sector workers in the United States had access to health care benefits for unmarried domestic partners of the same sex. The report further noted that 33% of state and local government
2 The mere fact that the federal government collects and reports this data provides significant evidence of how common it is for employers to extend benefits to their unmarried employees’ partners.
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workers and 25% of private sector workers had access to health care benefits for unmarried domestic partners of the opposite sex.
100. A number of private employers—who compete with Michigan public employers for talented, skilled employees—extend family health benefits to lesbian and gay employees. Such companies include General Motors, Ford, Chrysler, Dow Chemical, Kellogg, and Whirlpool (all of which are headquartered in Michigan), as well as national employers with presences in Michigan, such as Bank of America, Coca-Cola, MillerCoors, Costco Wholesale, Hilton Hotels, Home Depot, Marriott International, Sears, Target, UPS, Walgreens, and Wells Fargo. In addition to those national companies, dozens of smaller private employers headquartered in Michigan that compete directly with public employers for the most qualified employees offer health benefits to lesbian and gay employees and their families. All of these private entities have determined that the value of providing benefits to employees’ domestic partners exceeds the costs.
101. Michigan itself has declared a commitment to treating gay and lesbian public employees equally. Executive Directive 2003-24, signed by Governor Jennifer M. Granholm on December 23, 2003, prohibits discrimination on the basis of sexual orientation in public employment. The Directive says: “[S]tate employment policies and procedures that encourage non-discriminatory and equal employment practices provide desirable models for the private sector and local governments and build upon successful policies and procedures of private and public sector employees.”
102. This commitment notwithstanding, through the Public Employee Domestic Partner Benefit Restriction Act, the State has instituted a policy of discrimination explicitly
23

designed to trump public employers’ voluntary provision of equal compensation to their lesbian and gay public employees.
103. The Act also fails to advance any legitimate state interests related to the promotion of marriage. First, the Act does not limit the family members who can receive health insurance benefits to spouses, but allows access to benefits for siblings, parents, uncles, and cousins, among other relatives, as well as allowing benefits to be provided to any individual who does not reside with the public employee. Second, providing family coverage to unmarried employees with long-term partners does not promote marriage as applied to lesbian and gay employees, because the law does not permit lesbian and gay couples to marry in Michigan, and Michigan law forbids the State and its localities from recognizing valid same-sex marriages performed elsewhere (including the marriage of Plaintiffs Bassett and Kennedy).
104. The State’s explicit policy of discrimination inflicts significant harm upon Plaintiffs, including depriving them of their constitutional right to equal protection of the law and imposing financial deprivations and emotional distress, all because of their sexual orientation and their sex.
FIRST CLAIM FOR RELIEF Equal Protection on the Basis of Sexual Orientation and Sex 105. Plaintiffs incorporate by reference all of the foregoing paragraphs as though set forth fully herein. 106. Plaintiffs state this cause of action against Defendant in his official capacity for purposes of seeking declaratory and injunctive relief. 107. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that “[n]o State shall make or enforce any law which
24

shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
108. Defendant’s conduct violates Plaintiffs’ right to equal protection of the laws, and specifically Plaintiffs’ right not to be denied equal protection on the basis of their sexual orientation or sex.
109. Defendant denies equal compensation to Public Employee Plaintiffs by prohibiting their employers from voluntarily offering “Other Qualified Adult” health insurance coverage, with no constitutionally adequate reasons for this knowing and intentional prohibition. Defendant’s conduct, policies, and practices in limiting public employers’ health benefits plans, including in particular Defendant’s implementation and enforcement of the Public Employee Domestic Partner Benefit Restriction Act, subjects Plaintiffs to intentionally differential, adverse, and inferior treatment because of Plaintiffs’ sexual orientation and because of each Plaintiff’s sex in relation to the sex of his or her committed domestic partner.
110. Certain lesbian and gay public employees and their same-sex domestic partners are excluded from obtaining family health insurance coverage because of their sexual orientation and sex, since the Act restricts public employers from granting family health insurance coverage to any person who lives with the public employee but is not married to the public employee, a dependent of the employee, or eligible to inherit from the employee under Michigan’s intestacy laws. Thus, the Act discriminates both facially and as applied against lesbian and gay public employees, including Plaintiffs, based on their sexual orientation and sex.
25

111. The Act is invalid under any form of constitutional scrutiny because it was enacted for the improper purpose of disadvantaging a specific class, is founded in animus against lesbian and gay Michiganders, and serves no legitimate government interest.
112. Defendant’s acts, omissions, policies, and practices alleged herein were—and if not enjoined, will continue to be—committed intentionally and purposefully because of Plaintiffs’ sexual orientation and sex in relation to the sex of each one’s committed domestic partner.
113. Public Employee Plaintiffs are similarly situated in every relevant respect to the heterosexual public employees who are not barred from receiving benefits under the Act because they can marry under Michigan law, or to employees with any of the multiple family members identified in Michigan’s intestacy law who remain eligible for benefits under the Act.
114. Defendant’s intentional exclusion of lesbian and gay public employees, including Plaintiffs, from eligibility to provide health insurance for their domestic partners purposefully singles out a minority group that historically has suffered unjust and discriminatory treatment in law and society based on group members’ sex and sexual orientation.
115. Defendant’s categorical exclusion of Public Employee Plaintiffs from those employees eligible to be granted family coverage based on their sexual orientation and sex is subject to strict or at least intermediate constitutional scrutiny, which Defendant’s conduct cannot withstand because it serves no legitimate governmental interests, let alone any important or compelling interests.
116. The categorical bar on granting family health insurance to the class of lesbian and gay public employees with committed same-sex domestic partners violates the Equal
26

Protection Clause of the Fourteenth Amendment to the United States Constitution. Defendant has been and is acting under color of state law at all relevant times in his implementation of the Act and his resulting and purposeful violation of Plaintiffs’ constitutional rights. Defendant’s actions and omissions, and practices and policies, both facially and as applied to Plaintiffs, violate Plaintiffs’ constitutional rights to equal treatment without regard to sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution.
117. For the above stated reasons, the Domestic Partner Benefit Restriction Act deprives Plaintiffs of their rights to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States constitution, in violation of 42 U.S.C. § 1983.
SECOND CLAIM FOR RELIEF Substantive Due Process
118. Plaintiffs incorporate by reference all of the foregoing paragraphs as though set forth fully herein.
119. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall deprive any person of life, liberty, or property without due process of law. The above-described conduct by Defendant infringes upon Plaintiffs’ fundamental rights and protected liberty interests, and in so doing violates Plaintiffs’ right not to be deprived of substantive due process.
120. The Fourteenth Amendment’s Due Process Clause has a substantive component that protects against government interference with fundamental rights and protected liberty interests. All Plaintiffs have protected fundamental rights and liberty interests in their private intimate conduct and family relationships with their committed same-sex domestic partners.
27

121. The Act’s categorical denial of eligibility for family coverage to the class of lesbian and gay public employees with committed same-sex domestic partners, coupled with the continued ability to provide family coverage to heterosexual employees’ legally recognized spouses, various other dependents and relatives eligible for intestate succession, and individuals who do not live with the employees, and Defendant’s conduct and omissions, and policies and practices in connection therewith, selectively, disproportionately, and impermissibly burden Plaintiffs’ intimate family relationships and subject Plaintiffs to punishment and penalty based upon Plaintiffs’ exercise of their fundamental rights and protected liberty interests without compelling, legitimate, or otherwise adequate reason, in violation of Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment.
122. The categorical denial of eligibility for family coverage for lesbian and gay public employees with committed same-sex domestic partners, and Defendant’s conduct and omissions, and policies and practices in connection therewith, do not satisfy applicable standards for the infringement of Plaintiffs’ fundamental rights and liberty interests protected by the Due Process Clause of the Fourteenth Amendment because they are not supported by, do not significantly further, and are not necessary to, any legitimate or important, let alone compelling, governmental interests.
123. The categorical denial of equal compensation in the form of family coverage for lesbian and gay public employees with committed same-sex domestic partners violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Defendant has been and is acting under color of state law at all relevant times in his implementation of the Act and his resulting and purposeful violation of Plaintiffs’ constitutional rights. Defendant’s intentional and purposeful actions and omissions and
28

practices and policies, both facially and as applied to Plaintiffs, violate Plaintiffs’ clearly established constitutional rights, of which a reasonable person would have known, to due process under the Fourteenth Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF 124. Plaintiffs incorporate by reference all of the foregoing paragraphs as though set forth fully herein. 125. This case presents an actual case or controversy because there is an existing, ongoing, real, and substantial controversy between Plaintiffs and Defendant, who have adverse interests. This controversy is sufficiently immediate, substantial and real to warrant the issuance of a declaratory judgment because Plaintiffs have been stripped of family coverage. 126. This case is ripe for consideration because it presents issues suitable for an immediate and definitive determination of the legal rights of the parties in this adversarial proceeding, and Plaintiffs each have been or will be subjected to irreparable injury and significant hardship if this dispute is not heard. 127. Plaintiffs’ claims are not speculative or hypothetical, but rather involve the validity of a law that was approved and put into force by Defendant Snyder; that has been or will shortly be applied to each Plaintiff and other lesbian and gay public employees with a committed same-sex partner; that now controls or will control each Public Employee Plaintiff’s ability to continue receiving family coverage for his or her committed same-sex domestic partner; and that has deprived or soon will deprive Plaintiffs of the constitutional rights pleaded herein.
29

128. The Act took immediate effect on December 22, 2011. The injury Plaintiffs have suffered and will suffer from the Act’s enforcement is real, immediate, actual, concrete and particularized.
129. Plaintiffs seek permanent injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendant would redress and prevent the irreparable injuries to Plaintiffs identified herein.
130. The irreparable injuries Plaintiffs will suffer absent injunctive relief have no adequate remedy at law or in equity. An injunction is the only way of adequately protecting Plaintiffs from harm because no legal or other equitable remedy could effectively cure or compensate for the invasion of Plaintiffs’ constitutional rights, the harm the Plaintiff partners have suffered or will suffer in the absence of family coverage to address their urgent, ongoing health needs, and the emotional harms of anxiety about family members and of governmentimposed rejection and exclusion of one’s family.
131. The burden on the State of allowing public employers affected by the Act to maintain family coverage for their lesbian and gay employees will be minor, given the small number of such employees who are eligible and who have enrolled for family coverage, and the negligible cost of providing the family coverage, whereas the hardship for Plaintiffs of going without access to this insurance coverage is extreme and subjects Plaintiffs to enormous financial hardship and risk of potential catastrophe in the event of a partner’s serious illness. The balance of hardships thus tips heavily in favor of Plaintiffs.
132. Declaratory relief under 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57 is appropriate, and the standards for injunctive relief under Federal Rule of Civil Procedure 65 are met.
30

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
1. Declaring that the provisions and enforcement by Defendant of the Act, which
forbids public employers from offering family coverage to lesbian and gay public employees
with a committed same-sex domestic partner, violates Plaintiffs’ rights under:
a. the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; and
b. the Due Process Clause of the Fourteenth Amendment of the United States Constitution;
2. Permanently enjoining enforcement by Defendant of the Act;
3. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant
to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
4. Granting such other and further relief as the Court deems just and proper.
Respectfully submitted,
s/Michael J. Steinberg (P43085) s/Jay D. Kaplan (P38197) s/Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, Michigan 28201 (313) 578-6814 msteinberg@aclumich.org kaplan@aclumich.org kmoss@aclumich.org
s/John A. Knight (admission pending) American Civil Liberties Foundation 180 N. Michigan, 2300 Chicago, Illinois 60601 (312) 201-9740 jaknight@aclu.org
31

Dated: February 17, 2012

s/Amanda C. Goad (admission pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 (212) 549- 2627 agoad@aclu.org
s/Donna M. Welch, P.C. (admission pending) s/Bradley H. Weidenhammer (admission pending) s/Amy E. Crawford (admission pending) Kirkland & Ellis, LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 dwelch@kirkland.com bweidenhammer@kirkland.com amy.crawford@kirkland.com
Attorneys for Plaintiffs Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller, and Michelle Johnson

32

 
 2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 1 of 39 Pg ID 203

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

T HERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLIN DA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI , DEN ISE MILLER, AND M ICHELLE JOHNSON
Pl aintiffs,
vs.

Case No.2: 12-cv-I0038-DML-MJH
I-Ion. David M. Lawson
Magistrate Judge Michael 1. I-Iluchaniuk

Rl CHA RD SNYDER, in hi s official capacity
as Governor of the State o f Michigan,

Defendant.

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Plaint iffs Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, loLinda lach, Barbara Ramber, Doak Bloss, Gerardo Ascheri , Deni se Miller, and Michelle Johnson, by counsel , hereby submit this Motion for Preliminary Injunction pursuant to Federal Rule of Civi l Procedure 65. Plaintiffs respectfully request that the Courl enjoin enforcement of201 1 P.A. 297 because the law violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution , and in the absence of an injuncti on, the enforcement of the law w ill cause Plaintiffs' irreparable harm.
In compli ance with Local Rule 7. I(a), on March 7, 20 12, Plai ntiffs' counsel conferred w ith Defendant' s counsel. Plaintiffs' counsel explained the nature of Plai ntiffs' motion and its legal basis, but Defendant did not concur in the relief sought.

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 2 of 39 Pg ID 204

Dated: March 7, 20 12

Respectfully submitted,
51 Michael 1. Steinberg
Michael J. Steinberg (P43085) Jay D. Kaplan (P38 197) Kary L. Moss (P49759) American Civil Liberties Union fund of Michigan 2966 Woodward Avenue Detroit, Michigan 2820 1 (3 13) 578-68 14 msteinberg@ac lumi ch.org kap la n@ a c lumi ch. o r g kmoss@aclumich.org
John A. Knight (admission pending) American Civi l Liberties Union Foundation 180 N. Michigan, 2300 Chicago, Illinoi s 60601 (312)20 1-9740 jaknight@aclu.org
Amanda C. Goad (admission pending) American Civil Liberlies Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 (212) 549- 2627 agoad@ac1u.org
Donna M. Welch, P.C. (admission pending) Bradley H. Weidenhammer (admission pending) Amy E. Crawford (admission pending) Kirkland & Ellis, LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 dwelch@kirkland.com bwei denham m er@ki rkl a nd .co m amy.crawford@kirk land .com
Attorneys for Plaintiffs Theresa Bassell, CaroL Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller, and Michelle Johnson

2

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 3 of 39 Pg ID 205

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLfNDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHER!, DENISE MILLER, AND MICHELLE JOHNSON
Plaintiffs,
vs.

Case No. 2:12-cv-10038
HOll. David M. Lawson Mag. Michael J. Hluchaniuk

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan,

Defendant.

BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 4 of 39 Pg ID 206
TABLE OF CONTENTS
IN T R O D U C T I O N....................... ... ....... .. ............. ....... ... ..... .... ........... .. .... ...... .. ... .......................... .1
BACKGROUND ............................................................................................................................2
I. RELEVANT LEGAL HISTORY.....................................................................................2 A. The Law Pri or to the Act's Passage ............................................... ..........................2 B. The Publ ic Employee Domestic Partner Benefit Restriction Act.. .................... ......2 C. Fiscal Impact of the Act .... ....... ....... .................................................. ..... ....... ...........6 I. Lnitial Figures ...............................................................................................6 2. Cost Savi ngs to the State............................................................... ....... .. ... ...7 3. Cost Savings to Local Units of Government .................. .......... ...................9
II. TH E PLAINTIFFS .......................................................................................................... 10
A R G U M E N T .. .... ..... ..... ......... ..... .... ... .. ...... .. .... ...... ......... .... ....... ..... .... ...... ..... ...... ......................... 12
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERlTS.............................. 13 A. The Act Violates Plai ntiffs' Rights to Equal Protection........................................ l3 I. The Act lntentionall y Targets Gay and Lesbian Families for Differential Treatment on the Basis of Sexual Orientation ....................... J3 2. The Act Has No Rational Basis............................................................ ..... 16 3. The Act Was Motivated by Illegitimate Anti-Gay Animus.. ..................... 18 B. The Act Also Fails Under Heightened Scrutiny. ............................................. ......20 1. Gays and Lesbians Are a Suspect or a Quasi-Suspect Class .....................20 2. Intermediate Scrutiny Applies Because The Act Discrimi nates On The Basis of Sex................................................................. ........ ... ............24 3. Strict Scrutiny Applies Because the Act Burdens Fundamental Rights .......................................................................................... ... .... .... .... 24 4. The Act Fai ls Heightened Scrutiny................ ......... .... ....... ..... ... ................25
II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE ACT IS ENFORCED. ....................................................................................................................26
111. THE BALANCE OF THE EQUITIES FAVORS ENTRY OF AN INJUNCTION. .................................................................................................................27
IV. THE PUBLIC INTEREST FAVORS AN INJUNCTlON...........................................27
CONCLUSION ............................................................................................................................29

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 5 of 39 Pg ID 207
TABLE OF AUTHORITIES
Page(s)
CASES
Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005) ...................................................................................... .. .. .. .. .. .. ... 14
Alco Universal/nc. v. City ofFlinl, 192 N.W.2d 247 (Mich. 1971) .................................................. ..... ..... ..... .... .... .. .. .................... 19
Andersel1l'. King en/y., 138 P.3d 963 (Wash. 2006) ...... .... .. .... ....... ..... ......................................................................... .. 2 1
Ark. Dep 'f ofHuman Servs. v. Cole, 2011 Ark. 145,20 11 WL 13192 17(Ark. Apr 7,201 1) ... .. .. ... ... .............................................. 25
All YGen. Bill Schuette v. Mich. Civil ServoCOllin! 'n,
No. 11-538-CZ (Mich. Cir. Ct. Oct. 6, 2011) ........... ... .... .... .. .. .. .... ............................................. 4
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ............................................... .............. ..... ........................................ 24
Barbour v. Dep" a/Soc. Servs., 497 N.W.2d2 16 (Mich. App. 1993) .......................................... ...... ..... .. .................................. 22
BaxlrOI11 v. Herold, 383 U.S. 107(1966) .......................................................... .... ..... .... .. .................................... ..... 16
Seerrard v. New Hampshire Onty. Technical Coil. Sys., No. 04-E-229, 2006 WL 1217283 (N.H. Super. Ct. May 3, 2006) ........................................... 15
Ben-Shalom v. Marsh, 881 F.2d454(7thCir. 1989) ........................... ........ .. ... ...... ....................................... .. ... ... ....... 21
Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 200 1) ............................... ... ...... .. ... .. .. .. ........................................... .... .. . 26
Bowers v. Hardwick, 478U.S.186( 1986) .......... ................................... .................................. .. ...................... 20
Bowler v. Nagel, 200 N.W. 258 (Mich. 1924) .................. .. ... ................................. .. .. .. ... ...................... ............... 14
City a/Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................................................................... 13,2 1

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 6 of 39 Pg ID 208 TABLE OF AUTHORITIES (CONT'D)
Page{s)
Clark 1'. Jeter, 486 U.S. 456 (1988) .......... .... ....... .. .... ....................................................................................... 25
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 20 10) ................................................................................... 15,27
Cook \I. Gales, 528 F.3d 42 (I st Cir. 2008) ....................................................................................................... 25
Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 20 11) ......................................... .. .... .................................. .. .... ...... 16,20
Dragovich v. Us. Dep', ofthe rreaslIIY, No. C 10-01564 CW, 2012 WL 253325 (N.D. Cal. Jan. 26, 20 12) ............................ .. ...... 15, 20
Elrod v. Burns, 427 U.S. 347 (1976) ......................... ......................................................................................... 26
Erie Cnty. Retirees Ass '11 v. Cnly. ofErie, Pa.. 220 F.3d 193 (3d Cir. 2000) ............. ................................................................................... ...... 14
Fronliero v. Richardson, 4 11 U.S.677(1973) ............................................................................................ 21,23
Golden v. Kelsey-Hayes Co., 845 F. Supp. 4 10 (E.D. Mich. 1994), afJ'd, 73 F.3d 648 (6t h Cir. 1996) ................................. 27
Golinski v. u.s. Office of Pers. Mgmt"
No. C 10-00257,2012 WL 569685 (Feb. 22, 2012) ........ ..... .............................................. 23, 24
High Tech Gays v. Del i ndlls. Sec. Clearance Office, 895 F.2d 563 (9[h Cir. 1990) ........ .......... .. ...................... .. ........ .. ............................................... 2 1
In re Brad Levenson, 560 F.3d 1145 (9th Cir. 2009) ................................................................................................... 24
In re Marriage Cases , 183 P.3d 384 (Cal. 2008) ...................................................................................................... 23
Johnson v. New York, 49 F.3d 75 (2d Cir. 1995) .......................................................................................................... 14
Kerrigan v. Coml11 'r ofPub. Health, 957 A.2d 407 (Conn. 2008) ........................................................................................... 21, 22, 24
Lawrence v. Texas , 539 U.S. 558 (2003) ............................ ............................ .... ............................................. . passlln
ii

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 7 of 39 Pg ID 209 TABLE OF AUTHORITIES (CONT'D)
Pagc(s)
Lyng \I, Castillo, 477 U.S. 635 ( 1986) .................... .................................... ........................................ .. 2 1, 22, 23
Jvfarlil1-/I,lariella Corp. v. Bendix Co/p., 690 F.2d 558 (6th Cir. 1982) .......................................... ..... .. ..... ............................................... 27
Mem '/ Hosp. v. Maricopa Cnfy., 4 15 U.S. 250(1974) ................................................................. ............................................. 16
Moore v. City of EaSI Cleveland, 43 1 U.S. 494 ( 1977) ............................................. ............................... ....................... 24
Moore v. Delroil Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002) ............................................. .. ... ... .............................. .... .... .... ...... 18
Nat '/ Pride 01 Work v. Granholm, No. 05-368-CZ, 2005 WL 3048040 (M ich. Cir. Ct. Sept. 27, 2005) .......................................... 2
NGlional Pride of Work v. Governor, 748 N.W.2d 524 (Mich. 2008) ........................... ....... . passim
Pel/01'lI1QnCe Unlld., Inc. v. Questa,. Publishers, Inc., 52 F.3d 1373 (6th Cir. 1995) ... .... .... .. ............................. ............. ......................... .................... 26
Peny v. Brown, No. 10- 16696,2012 WL 3727 13 (9th Cir. Feb. 7, 20 12)........... ...................................... ......... 23
Peny v. Schwarzenegger, 704 F. Supp. 2d 92 1 (N.D. Cal. 2010) ............................................................................ .... 23,24
Perry v. Sindermann, 408 U.S. 593 (1972) .................................................................. ................................................ 25
Planned Parenthood Ass '/1 a/Cincinnati, Inc. v. City a/Cincinnati, 822 F.2d 1390 (6th Ci r. 1987) ................................................................................................... 27
Plyler v. Doe, 457 U.S. 202 (1982) ....................................................................................................... .... ....... 13
Romer v. Evans, 5 17 U.S. 620( 1996) ............................. ................................. ..... ..... ................ ........... ...... 18
Scarbrough v. Morgan Cnly. Ed ofEdllC.• 470 F.3d 250 (6th Ci r. 2006) .. ...... .. .................................................................................. ......... 20
Schalk v. Teledyne, Inc., 75 1 F. Supp. 1261 (W.o. Mich. 1990) ......................... .. ............................................... 26,27,28
iii

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 8 of 39 Pg ID 210 TABLE OF AUTHORITIES (CONT'D)
Pagels)
Stemler v. Cily ofFlorence , 126 F.3d 856 (6th Cit'. 1997) ................................................................ ................................... 18
TriHeallh, Inc. v. Bd. ojComm 'rs, Hamil/on Cn/y., Ohio, 430 F.3d 783 (6th CiT. 2005) ........................ .. ...... ........... .. ...................................................... 13
u.s. Dep 'f ojAgric. v. Moreno ,
41 3 U.S . 528 (1973) ............................................................................................... 18, 19, 20
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg 'I Transit Au/h ,
163 F.3d 341 (6th CiT. 1998) ........................................................... .. ........ ................................ 13
Var1111111 v. Brien,
763 N. W.2d 862 (Iowa 2009)........................................................................... .. .. ....... .. ........... 21
Vill. ofArlington Heigh!s v. Melro. HOlls. CO/p., 429 U.S. 252 (1977)) .............................................................................. .... ..... .... .... ....... ......... 18
W. Tenn. Chapler ofAssoc. Builders & Contractors, Inc. v. City ofMemphis , 138 F. Supp. 2d 1015 (W.D. Tenn . 2000) ............................................................................... 16
Washington v. Glucksberg, 52 1 U.S. 702 (1997) ............................ ...... .. .... ... ...... .. .......................................................... .. ... 25
Winter v. Naillra! Res. Del COllncil, Inc. , 555 U.S. 7 (2008) ..................................................................................................... 12,26,27
Will v. Dep " ofAir Force, 527 F.3d 806 (9th CiT. 2008) ................... .. ... ......... .. ................................................................ . 25
STATUTES
20 11 Mich. Legis. Servo P.A. 297 (West) .............................. .. ... .. ... .. ................................ 1, 14, 15
2011 P. A. 152 ................................................ ...... .. ...... ................................... ... ... .. .. .. ... .... .... ... .. .... 8
H.B. 4770, 96th Leg. (Mich. 20 11 ).. .. ... .......................................... ....................... ......................... 5
I.R.C. § 152 (2006)................................................. ....................................... .. ... .. .. .... ........... 5
Mich. Compo Laws § 750.158......................... ........................................ .. ................................... 22
Mich. Compo Laws §§ 18.1115(5), 18.1349 .. .. ................................. .. ............................................ 7
Mich. Compo Laws §§ 37.2 102(1),37.2202,3 7.2302,37.2402, 37.2502 (West 2012) .......... .. ... 23
Mich. Compo Laws §§ 750. 158, 750.159,750.338, 750.338a (West 2012) ................................ 22

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 9 of 39 Pg ID 211 TABLE OF AUTHORITI ES (CONT ' D) Pagers)
Mich. Compo Laws Ann . § 14 1.9 17 (West 2012) ................................................... .. ..................... . 8 Mich. CompoLaws Ann. § 700.2 103 (West 20 11 ) .......... ........................ ....................................... 5 Mich. CompoLaws Ann . §§ 141.91 3,14 1.911 (West 20 12) ................................. ................ ......... 7 Mich. COIlSt. art. I, § 25 .............,................ ............................. ................................................. .... 22 Mich. Const. art IX, § I0 ............................................................ ..................................... .... .......... 7 Mich. Const. art. IX, § 30 .. ............... .............................................................................................. 7
v

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INTRODUCTION Plaintiffs in thi s action are fi ve Michiganders who make thei r li ving serving the people of this State t1uough local govel1111lents, public school s, and a community college (Bassett , Ways, Jach, Bloss, and Miller (collectively. the "Public Employees")) and their committed life pal1ners (Kennedy, Breakey, Ramber, Ascheri, and Johnson (collectively, the " Domestic Partners")). In the past, each of the entities that emp loys the Public Employees voluntarily offered health insurance benefit s for the employees ' pal1ners as "other qualified adults," "other eli gible adults," " household members," or some similar designation . But in December 201 1, the Public Employee Domestic Partner Benefit Restriction Act (the "Act") became law. The Act imposes a discriminatory ban on partner health insurance coverage while leaving employers free to provide benefits not only to thei r heterosex ual employees' spouses but also to a broad swath of other related or unrelated indi viduals. 2011 Mich. Legis. Servo P.A. 297 (West) (codifi ed at Mich. Comp oLaws §§ 15.58 1- 15.585) (Ex. A) . The Domestic Partners, some of whom have serious medical conditions such as high blood pressure and glaucoma, have alread y lost their health insurance coverage or will lose their coverage when their partners' current contracts expire in the coming months, exposing them to severe financial and potential health consequences. Plaintiffs seek a preliminary injunction to halt the enforcement of this draconia n law that si ngles out their famili es for disparate and discriminatory treatment. The standards for injunctive relie f are readily met here. Plainti ffs are likel y to succeed on the merits of their equal protection and due process claims because, in targeting same-sex couples, the Act discriminates on the basis of sexual orientation and sex, directly and substantially burdens Plaintiffs' intimate relationships on the sole basis of Plaintiffs' famil y structures, furthers neither a compelling nor an important government interest, and has no rational basis. Plainti ffs face irreparable harm both because the Act violates their constituti onal ri ghts and because it undennines their financial and physical

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security and well-being. A balanci ng of the equities favo rs preventing seri ous harm to Plaintiffs at minimal expense to the State, and the publi c interest favors an inj unction stopping the enforcement of thi s unconstitutional law.
BACKGROUND I. RELEVANT LEGAL HISTORY
A. The Law Prior to the Act's Passage In 2005, then-Attomey General Mike Cox issued an opinion stating that article I , section 25 of the Michigan Constitution (the "marriage amendment"), which limited marriage to heterosex ual couples, made providing benefits to domestic partners unconstitutional when eligibility for benefits was "characterized by reference to the attributes ofa marriage." Mich. Atty. Gen. Op. 7 17 1 (Mar. 16, 2005) (Ex. F). Concemed about losing their partners' health insurance, gay and lesb ian public employees sought a declaration that the marriage amendment did not threaten their benefits. Nat '/ Pride at Work v. Granholm, No. Os-368-CZ. 2005 WL 3048040 (Mich. C ir. Ct. Sept. 27, 2005). After the trial court granted declaratory rel ief to the plaintiffs, Cox intervened and appealed. The Michigan Supreme Court subsequently held that when publi c employers make insurance coverage to their employees' same-sex domestic paltners contingent on attributes similar to those of marriage, employers violate the marriage amendmen t by recognizing domestic partnerships as "uni ons similar to marriage." National Pride at Work v. Governor, 748 N. W.2d 524, 534- 36 (Mich. 2008). B. The Public Employee Domestic Partner Benefit Restriction Act After the 2008 National Pride decision, many public employers in thi s State changed their benefits policies to confonn to the Michigan Supreme Court's holding, by dropping coverage criteria that pertained to attributes similar to marriage and instead providing benefits for "other qualified adults," "'other eligible adults," "household members," or some similar
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designation.I (See Exs. B- E (criteria used by Plaintiffs' empl oyers)). For example, employers' policies dropped all reference to the sex of the partners to avoid recognizing same-sex domestic partnerships as " unions simil ar to man-iage." Empl oyers continued to cover other qualified adults because, in theirjudglllent, the value of attracting and retaining qualifi ed employees outweighed the costs of the coverage. (See Dec!. of M.V. Lee Badgett ("Badgett Decl .") ~,-r 24, 28 , 32 (Ex. U) ("If prevented from offering benefits to same-sex partners of employees, most of Michi gan's public sector employers will be put at a competitive disadvantage that might result in higher labor costs."); DecL of Kenneth P. Collard ("Collard Decl.") , 20 (Ex. V- I) ("The City [of Kalamazoo] decided to adopt [domestic partner benefits1 in an effort to recruit and retain a di verse and qualified work force .... This philosophy has had a return on investment in the form of quality employees participating in the dom estic partner and Other Qualified Adult insurance plans who have saved the City literally millions of dollars throu gh the work they have done since the implementation of domestic partner benefits."); Decl. of David A. Comsa ("Comsa Decl.") ~ 17 (Ex. V-2) ("In order for ... [Allll Arbor Public Schools] to recruit and hire the most qualified employees for each position, it must be able to hire from, and consider, as broad a group of qualified individuals as possible, and must be able to provide competiti ve benefits as well as competitive pay to those individuals whom it would most like to hire.").
But some in Michigan did not want any same-sex partners to receive health benefits under any circumstances, regardless of whether the benefits plans conformed to National Pride. When Michigan's Civil Service Commi ssion ("Commi ssion") announced in January 20 11 that it would extend health insurance benefits to unrelated designees of state workers with whom the
For the sake of simplicity. this Memorandum refers to all such benefits as "other qualifi ed adult" benefits.
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workers had been li ving for at least twelve 1110nths, Rep. Pete Lund, who later co-sponsored the Act, called this decision "an absolute abomination ... that shifts people's hard earned dollars into the pockets of same-sex partners." Press Release, Michigan HOllse Repub licans, Lund Calls to Abolish Civil Service Commission (Jan. 27, 2011) (Ex. G-2). Rep. Dave Agema, the Act's lead sponsor, declared: "The people of this state, the Attorney General and the Michi gan Supreme Court have all decided in recent years that marriage is between one man and one woman and to extend health benefits to unions that do not fall into that category is disrespectful to the people." Press Release, Michigan HOllse Republicans, Agema Call s CSC Ruling "Utterly Irresponsibl e" (Jan. 26, 2011) (Ex. G-I). When the House failed to obtain a two-thirds majority to reverse the Comm ission' s decis ion in March 2011, Agema again accused the Commission of "act[ing] as if it is above the law and disregard[ing] the state constitution in its daily work" by "[e]xtending health benefits to the live-in partners and roonunates of state employees." Press Release, Michigan House Republicans, Agema "Appa ll ed" by Dems' No Votes (Mar. 23, 201 1) (Ex. G-3). In May 201 1, Attorney General Bill Schuette filed sui t in Michigan state court to enjoin the Commission's provision of benefits to other eligible adult individuals (OEAls), claiming that granting the benefits exceeded the State's authority. The co urt rejected Schuette's argument and ruled that the Commission was within its authority to offer benefits to OEAIs.
All YGell. Bill Schllelle v. Mich. Civil Servo Coml11 ·n, No. 11-538-CZ (Mich. Cif. C1. Oct. 6,
2011) (Ex. H)'
2 It is worth noting that the Attorney General (who is currently appealing the Michigan Circuit Court' s decision) did not claim that the Commission's OEAl benefits violated the marriage
amendment or the National Pride holding-justifications that the Act's sponsors use to
explain their passage of the Act.
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In June 20 11 , Agema introduced the Public Employee Domestic Partner Benefit Restriction Act. H.B. 4770, 96th Leg. (M ich. 20 11 ). As its name makes plain, the Act's si ngular objective is to prevent publi c employees' domestic partners from receiving health insurance.3 The relevant portion of the Act reads:
(1) A public employer shall not prov ide medical benefits or other fringe benefits for an individual currentl y residing in the same residence as a public employee, if the indi vidual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defi ned in the internal revenue code of 1986. (c) Otherwise el igib le to inherit from the employee under the laws of intestate succession in this state.
(2) A provision in a contract entered into after the effective date of this act that confli cts with the requirements of this act is void.
20 11 P.A. 297 (Ex. A) . The Act aims to slam the door on benefits for empl oyees' partners,
while leaving it wide open to benefits for employees' distant relatives (regardless of whether they live with the employee or depend on the employee for support) and even to unrelated people who meet the IRS's definition of "dependent." See Mich. Compo Laws Ann. § 700.2103 (West 201 1) (establishing intestate succession to descendants of decedent's grandparents, which
encompasses blood relatives as distant as first cousins several times removed, grandnieces and their offspring, etc.); I.R.C. § 152 (2006); see also Internal Revenue Service, Exemptions, Slandal'd Deductions. and Filing h?formation, No. 50 I, at 16 (20 11 ) (noting, as an example, that "an unrelated frie nd and her 3-year-old chi ld" can be a taxpayer's dependents under certai n
circumstances). Further demonstrating that the Act is irrationally aimed at domestic pal1ners, the Act applies on ly to adu lts who "resid[e] in the same residence as a public employee," such that
3 The House Fiscal Agency ' s analysis of the Act discussed the continued provision of domestic partner benefits after the marriage amendment and the National Pride case as the "Apparent Problem" solved by the Act. House Fiscal Agency, Prohibit Domestic Partners Benefits and Excludefrom Collective Bargaining 1-4 (Sept. 6, 2011) (Ex. I).
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emp loyers could legally offer benefits to unmarried partners of emp loyees so long as they do not li ve with the covered employees.
The bill was passed and signed into law by Defendant Snyder in December. Defendant Snyder issued a signing statement clarifying that the provisions of the bill "do not extend to uni versity employees or state employees under civil service," consistent with the limitations of the Michigan Constitution. Letter from Rick Snyder, Governor, to Michigan Bouse of Representati ves 2 (Dec. 22, 20 II) (Ex. J).
C. Fiscal Impact of tbe Act 1. Initial Figures
Some of the Act 's supporters have framed the Act as a cost·saving measure, see Press Release, Michigan House Republicans, House Votes Against Taxpayer·Funded Healthcare for Roommates (Sept. 15,201 J) (Ex. G-13), but the facts fai l to support this purported interest.4 Although initial estimates by the Office of the State Employer listed the savings as high as $8 milli on (Ex. 1 at 5 n.3) thi s number turned out to be inflated and was later revised to less than $893,000 by the Senate Fiscal Agency. Senate Fiscal Agency. Domestic Partner Benefits, HOllse Bills 4770 & 477J, at 2 (Oct. 18, 20 II) (Ex. K). Even that figure was inaccurate, because it pertained on ly to coverage of state employees- who, as Governor Snyder later acknowledged , are not covered by the Act. (Ex. J at 1- 2) Thus when the Legislature passed the Act, it had no in formation about the supposed cost savings of eliminating benefits to those employees actually
, While supporters of the Act claimed that such benefits were not affordable during a time of fi scal crisis (an assert ion belied by the Act's pennissive approach to benefits for "dependents" and othe r relatives), the State recently acknowledged that it had a $457 milli on budget surp lus in 20 11. See Monica Davey, SlIIpillS Swprises Michigan, but /s /1Safe 10 Spend Again?, N. Y. TtMES, Feb. 8, 20 12, http://www.nytimes.com12012/02/09/us/surplussurpri ses-miehigan- but-is-it-safe-to-spend-again.htm I.
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covered by the Act. (Ex. I at 6 ("Comprehensive data are not available, so estimates cannot be made fo r what the savings would be for other public employers defined in the bill (i.e. city,
village, township, county, political subdi vision, school district, community college, public university. etc."))).
2. Cost Savings to the State
In rea li ty, there is litt le to no evidence that the Act will save the State money. The State funds local units of government according to fonnula s unrelated to health care benefits, and local units of government have discretion to allocate those fund s. Put s imply, the amount of money the State w ill ex pend in a given fi scal year is exactly the same with the Act as without it.
State fund s are allocated to local units of government by formulas set by the Michigan Constitution and statutes.5 These formu las are based largely on population (for cities, villages, townships, and counties) or number of pupils (for schools).6 These calculations do not take into account the number of public employees employed by that unit of government, the number of public employees receiving health insurance benefits, or the number of insureds covered by the unit of government. As such, the type of insurance benefits local units of government choose to provide their empl oyees does not affect the amount of state funding that they recei ve.
, Under state law, the State must direct at least 48.97% orall spending to local governmental units. M ich. Canst. art . IX, § 30; MCL §§ 18.1115(5), 18.13 49; State Budget Office, Statemenf ofthe Proportion o/Tolal Slale Spel1dil1g/ro/ll Stale Sources Paid 10 Units of Local Governmenl (Legal Basi,), at 4 (20 II ) (Ex. L). 6 The State provides funds to citi es, villages, townsh ips, and counties through revenue-sharing
payments, a ll ocated largely by population. See Mich. Const. art. lX, § 10; Mich. Compo
Laws Ann . §§ 141.913, 14 1.9 11 (West 20 12). Public school di stri cts arefunded through the Schoo l Aid Fund, which is a llocated on a per-pupil fund ing formula. House Fi scal Agency, Background Briefing: School Aid 20-22 (2012) (Ex. M).
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Moreover, if local units of government are forced to stop offering "other qualified adult" benefits, the money they spent on those benefits will not be returned to the State. The state funding provided to local units of govenunent is generall y unrestricted, which means that these entities can spend state money in the ways they feel are 1110st appropriate for their specific comlllunities.7 Mich. Compo Laws Ann. § 141.9 17 (West 2012) (noting that revenue-sharing money is given to a city' s, village's, or township ' s general fund ); Ann Arbor Public Schools, Budget Transparency Reporting: Personnel Expenditures (2009) (Ex. N); (Coll ard Decl. ~ 26 (" [A]ny cost savings associated with an invo luntary termination ofOQA benefits resulting from Publi c Act 297 of201 1 would accrue to the City [of Kalamazoo] , not to the State."); Comsa Decl. ,. 23 ("[I]n the event that Ann Arbor Public Schools in the future is forced to cease making OEA benefits available to any of its employees, the small amount of reduced expenditures on benefits would accrue to the District, not to the state.")).
In other words, the Act offers no cost savings to the State. If anything, the Act is likely to diminish the state fisc. Many public employees pay state income tax on their employers' contributions to their p3l1ners' benefits; if employers can no longer offer these benefits, the State will lose this tax revenue. (Badgett Dec!. ,. 20) Also, to the extent that individuals affected by the Act lack access to other insurance, they will rely on Medicaid or other government-sponsored health care programs. (Badgett Decl. ~~ 22- 23)
7 In 20 11 , the Legislature enacted 20 11 P.A. 152, which placed some limitations on how much local entities can pay for employee health insurance benefits. Local units either can keep their benefits spending below a hard cap defined in the statute or can elect to pay only 80% of their employees' health benefits costs. 2011 P.A 152 (West 2012) §§ 3,4. Local units that do not comply with P.A 152 have a small portion of their state funding from state so urces reduced by ten percent. ld. § 9. Unlike the Act challenged here, P.A. 152 does not single out a specific group to be excluded from coverage. Further, local governments can actuall y vote to opt o ut of the restri ctions in P.A. 152. ld. § 8.
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3. Cost Savings to Local Units of Government The Act wi ll also result in only minimal, if any, cost savings to local un its of government, who dedicate only a small portion of their tol'al expenditures to emp loyee benefits. "Other quali fied adult" benefits comprise a tiny fraction of this small portion. As such, the cost savings from the Act to local units of government will be negligible at best. Yet the local units of government do not seek these negligible cost savi ngs-rather, they have detennined that providing these benefits is a worthwhil e ex penditure. Hea lth care expenses comprise only a small portion of local government units' expenditures. (Badgett Decl. ~ 15) For example, in 2010 the City of Kalamazoo spent $ 18,466,724 on total benefits fo r its 782 employees, which represented only 15% of the City's overall expenditures. Kenneth P. Co llard, Dollars and Sense: How City ofKalamazoo Spends YOllr Money 5, 7 (20 I I) (Ex. 0) Ann Arbor Public Schools spent only 9.84% of its 2009 general fu nd budget on employee health care benefits. Ann Arbor Public Schools, Budget Transparency Reporting: Personnel Expenditures (2009) (Ex. N) Onl y a tiny [Taction of public employees have enro lled "other quali fied adults" in emplo yer-sponsored benefit plans. For example, of the 689 employees of the City of Kalamazoo, only six have actually added an "other qualified adult" to their health plan. (Collard Decl. " 1, 6) Of approximately 1,800 fu ll -t ime Ann Arbor Public Schools employees, j ust thirty-three have enrolled "other eli gible adults." (Comsa Decl. ,.~ 2, 5) These numbers are consistent with broader evidence indicating that few employees use partner benefits. (Badgett Decl. , 15 (noting that only 0.3% to 1.5% of employees eligible to sign up an "other qualified adult" actually took advantage of the coverage)) Thus, any savings from eliminating these benefits would be a sliver of each local unit of government's total budget. (See Coll ard Decl. ,. 12 (cost to City of Kalamazoo of health insurance for other qualifi ed adults was 0.45% of total
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20 11 health insurance costs); Comsa Dec\. " 11 (cost to AIUl Arbor Public Schools of health insurance for other eligible adults is expected to be 1.2% of health insurance costs in 20 1120 12))
In addition, the Act may impose additi onal costs on employers. Localunils of governments offer "other qualified adult" benefits because they have decided that doing so is central to attracting and retaini ng the best and the brightest. (Co ll ard Decl. ,,20- 25; Comsa Dec!. ,~ 15-19) Not offering such benefits may increase employee attriti on, raising the cost to loca l emp loyers of attracting and retaining talented employees. (Badgett Decl .~' 24-33; Co llard Decl ." 23-25; Comsa Decl. ~, 18-19) The Act may even cause couples who rely on pal1ner bene fits to move out of state (Ways Dec!. ~ I I (Ex. T-3); Breakey Decl. 1 12 (Ex. T-4)), which furth er burdens local employers and depri ves the State of tax revenue. II. THE PLAINTIFFS
Plaintiffs are gay or lesbian public employees and their domestic partners. On average, the plaintiff couples have been in their loving. committed relationships for around 18 years.
(Bassett Dec!., 4 (Ex. T-I ), Kennedy Dec!. 1 3 (26 years) (Ex. T-2); Ways Decl., 3, Breakey
Decl. ~ 3 (2 1 years); l ach Decl. 1 4 (Ex. T-5), Ramber Dec!. ~ 3 (Ex. T-6) (17 years); Bloss Decl. , 4 (Ex. T-7), Ascheri Dec!. 13 (Ex. T-S)(IS years); Miller Dec!. 1 4 (Ex. T-9), lohnson Decl. ,. 3 (Ex. T-I 0) (8 years)) Pl aintiffs' relationships are fo unded on mutual pledges of emotional and fin ancial sUpp0l1: each couple is finan cially interdependent, and nearly all of the Plaintiffs have prov ided a durable power of attorney to their partners. (Bassett Decl. " 4-5; Kennedy
Decl. l' 3-4; Ways Decl. ~1 3, 5; Breakey Decl .'~ 3-4; lach Decl. ~~ 4-5; Ramber Decl. ~' 3-
4; Bloss Decl . ,,4-5; Ascheri Decl. '1 3, 5; Miller Decl ." 4-5; lohnson Decl . ~ 3-4) Three of the coupl es (Theresa Bassett and Carol Kennedy, Peter Ways and Joe Breakey, and JoLinda
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Jach and Barbara Ramber) are raising children together. (Bassett Dec!. ~ 6; Kennedy Decl. ~ 5; Ways Dec!., 4; Breakey Dec!. 1 5; Jach Dec!. , 6; Ramber Dec!., 4)
The Public Empl oyees receive health insurance through their j obs with a county, city, schoo l district, or community college in Michigan. (Bassett Decl. '17; Ways Dec!. ,. 7; Jach Dec!. , 8; Bloss Decl. , 7; Miller Decl. '1 6- 7) Each Publi c Employee has job duties and responsibilities that are equivalent to the duties and responsibilities of their heterosexual
coll eagues with comparable j obs. (Bassett Decl. ~ 2; Ways Decl. ~ 4; Jach Dec!. '12; Bloss Dec!.
~ 2; Miller Decl. ' 2) The Public Employees' employers allow them to ema il their partners as "other qual ifi ed adults" (or similar designation), umnarried adults who live with the empl oyee and are not related to the employee. (Exs. B- E) Their employers voluntarily offer this insurance coverage for a variety of reasons, including a desire to attract and retain talented workers and to promote equali ty within their workforces by allowing their gay and lesbian employees to obtain insurance for their pal1ners since they cannot otherwise do so through malTiage. (Collard Dec!. ~, 19-25; Comsa Ded. ~~ 15- 20) The Domestic Partners are - or were - enrolled in one of these plans as his or her so le health insurance. (Kennedy Decl. ' 7; Breakey Decl. ~ 7; Ramber Decl. , 6; Ascheri Decl. , 6; Johnson Decl.' 5)
Ifa n injunction is not granted, Plaintiffs will lose not only a valuable employment benefit but also the security and peace of mind that come with family health insurance coverage. The couples are now or wi ll be forced to allow the public employee's partner to go without coverage or to find individual health insurance for the partner that, in each case, will be signi fi cantly more costly and/or less comprehensive than the coverage under their pal1ners' plans. (Bassett Oecl.
,9; Kennedy Decl. , 9; Ways Decl. 1 9; Breakey Decl. , 9; Jach Decl. , II ; Ramber Decl. ' 9;
Bloss Decl. , 10; Ascheri Decl. ,9; Mi ller Decl. ' 9; Jolmson Decl. , 8) For example, Carol
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Kennedy, whose partner, Theresa Bassett, teaches middle school math in Ann Arbor, has a fami ly history of breast cancer. Indi vidual coverage comparable to her current plan would cost approximately $800 per month . (Bassett Dec!. '19; Kennedy Dec!. ~ 9)
Several of the Domestic Partners cannot afford a lapse of insurance coverage because they have conditions that req uire ongoing, uninterrupted care. For example, Barbara Ramberwhose partner loLinda Jach works for the City of Kalamazoo-suffered an eye injury and has developed glaucoma. (Jach Ded ~ 9; Ramber Ded ~ 7) Without medication, Barbara is in danger of going bl ind. When Kalamazoo's co llective bargaining agreement expires, the coupl e will either incur monthly out-of-pocket costs of about $135 per month for Barbara's medication or pay premiullls of as much as $540 per month for individual coverage. (Jach Oed ~ 11 ; Ramber Oecl. ,. 9) Gerardo Ascheri- whose partner Doak Bloss works for Ingham County- has high blood pressure and high cholestero l, which require ongoing medication and moni toring.
'1' (Bloss Dec!. 8-10; Ascheri Dec!. "7, 9) When Doak's contract expires on December 3 1,
20 12, the co uple will either incur monthl y out-of-pocket costs of $ 130 for Gerardo 's medication or pay monthl y premiums of approx imately $500 for an individual policy. (Bloss Decl. ~ 10; Ascheri Decl. ~ 9) Since December 3 1, 20 II , as a direct resul t of the Act, Michelle Johnson has gone witho ut hea lth insurance, even though she has medical conditi ons that must be monitored and may require surgery in the future. (Miller Dec!. " 6, 8; Johnson Dec!. " 5, 7)
ARGUMENT "A plaintiff seekin g a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in hi s favor, and that an injunction is in the public interest." Winter v. Nalural Res. Del Council, Inc., 555 U.S. 7,20 (2008); United Food & Commercial Workers
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Union. Local /099 v. Sw. Ohio Reg" Transil Auth., 163 F.3d 341 , 348 (6th Ci r. 1998). Plaintiffs

satisfy each of these requirements.

I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.

The Act clearly violates Plaintiffs' rights to equal protection by treatin g them differentl y

than similarl y situated families on the sole basis of their sexual orientation. In addition, the Act

violates the substanti ve due process rights of lesbian and gay employees by conditioning their

abi lity to receive famil y insurance coverage on foregoin g their ri ght to intimate association with

the ir same-sex domestic partners. See Lawrence v. Texas, 539 U.S. 558, 573-74 (2003)

("personal deci sions relating to ... famil y relati onships" are constitutionally protected from state

interference). As such, the Act cannot sUIv ive any level of scrutiny.

A. The Act Violates Plaintiffs' Rights to Equal Protection. The Eq ua l Protection Clause "commands that no State shall ' deny to any person within

its jurisdiction the equal protecti on of the laws,' which is essentially a direction that all persons

simi larly situated should be treated alike." City o/Cleburne, Tex. v. Cleb llrne Living Crr. , 473

U.S. 432, 439 {I 985)(c iting Plyler v. Doe, 457 U.S. 202, 21 6 ( 1982)); TriHeallh. Inc. v. Bd. oj

CO IIIIII ·rs. Hamilloll Cnly., Ohio, 430 F.3d 783, 788 (6th Cir. 2005). The Act targets gay and

lesbian famili es for diffe rential treatment without any legitimate justification and thus vio lates

the Equal Protection Clause.

1. The Act Intentionally Targets Gay and Lesbian Families for Differential Treatment on the Basis of Sexual Orientation.

The Public Employees do the same work, have the same qua lifi cations, and show the

same dedication as their heterosex ual colleagues, and are therefore entitled to equal

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compensati on. s Yet the Act intentionally burdens gay and lesbian public employees and their partners because of their sex ua l orientation.
The Act accomplishes thi s goal by creating-for the first time in Michigan-a di sfavored class to whom public employers cannot offer employee health care benefits. The title of the Act- Public Employee Domestic Partner Benefit Restri ction Act-demonstrates that the Act clearly distingu ishes between gay and lesbian couples (who cannot legally marry and so must remain domestic partners) and unmarri ed same-sex couples (who can attain favored status via marriage). Moreover, by explicitly incorporating the classifications in the marriage amendment and intestacy statute, the Ac t demonstrates its purpose of distinguishing between same-sex and opposite-sex families. Although the Act does not use the term "sexual orientation," it expressly incorporates statutes that draw classifications based on sexual orientation-and, as such, is di scrimi natory on its face. See. e.g., Johnson v. New York, 49 F.3d 75, 79 (2d Cir. 1995) (striking a classification as facially discriminatory because it incorporated another law that distingui shed on the basis of age); Erie Cl1ty. Retirees Ass 'n v. Cl1ty. ojErie, Pa. , 220 F.3d 193, 2 11 (3d Ci r. 2000) (determining that a cl ass ifi cation based on Medicare eligibi li ty was an agebased facial classification because onl y persons over sixty-five are el igible for Medicare).
Numerous courts have found that statutes restricting benefits on the basis of marriage intentionally classi fy on the bas is of sexual orientation when gays and lesbians cannot legally marry. Alaska Civil Liberlies Unio n v. Alaska, 122 P.3d 781 , 788- 89 (Alaska 2005) (applying Alaska Constitution) (restriction of benefits to "spouses" was facially discrimi natory because state's defi ni tion of "spouse" excl uded same-sex couples); BedJord v. New Hampshire Only.
, Michi gan courts recognize that " the tenn 'compensation' includes more than money and specifi ca lly includes frin ge benefits." AU y Gen. Bill Schuetle v. Mich Civil Serv. Comm 'n, No. 11-538-CZ, at 5 (Mich. Cir. Ct. Oct. 6, 2011) (Ex. H)(citations omitted)).
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Technical Call. Sys. , No. 04-E-229, 2006 WL 1217283, at *6 (N. H. Super. Ct. May 3, 2006) (applying New Hampshire law) (" [C]onditioning employment benefits upon marital status, where lesbians and gay men are not pennitted to marry, constitutes unlawful discrimination based on sexual orientation. "); Collins v. Brewer, 727 F. Supp. 2d 797, 803 (D. Ariz. 2010) ("' Because employees involved in same-sex partnerships do not have the same righLLa marry as their heterosexual counterparts, Section 0 has the effect of completely barring lesbians and gays
frol11 receiving family benefils[, burdening] State empl oyees with same-sex domestic pm1ners
more than State employees with opposite-sex domestic partners."), aff'd sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 201 1); Dragovich v. United States Dep 't ofthe TreasUlY, No. C 10-01564 CW, 2012 WL 253325, at *7 (N.D. Cal. Jan. 26, 2012) (law limiting benefit to married couples, when same-sex couples cannot marry, discriminates on the basis of sexual orientati on).
Consideration of what the Act does nol prohibit further demonstrates its intent to target gays and lesbians. Same-sex partners- who under existing law can neither marry their partners nor inherit from them under intestacy law---cannot access employer-provided benefits. However. public employers remain free to extend health care to a broad range of relatives and dependents. 2011 P.A.297. The narrowness of the burden imposed by the statute demonstrates that the Act was aimed at same-sex domestic partners. Because of its focus on burdening lesbians and gays, rational basis review of the Act must be conducted with closer scrutiny in contrast to the deference given other legislative classifications. Lawrence, 539 U.S. at 580 (O ' Connor, 1., concurring) ("When a law exhibits such a desire to harm a politically unpopular group. [the Supreme Court has] applied a more searching form of rational basis review to strike down such laws under the Equal Protection C lause.").
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2. The Act Has No Rational Basis. As the Supreme Court has pointed out, equal protection "requ ire[s] that a distinction made have some relevance to the purpose for whi ch the classification is made." Baxfrom v. Herold, 383 U.S. 107, III ( 1966). However, singling out gay and lesbian families for differential treatment has no rati onal relationship to the goals of saving costs or "enforcin g" the malTi age amendment and the National Pride decision.
a. The Act Does Not Cut the State' s Costs. The desire to cut costs does not provide a rational basis for the Act. The Act will save onl y a tiny fraction of local government employers' health insurance outlays and li tt le (if any) of this savi ngs would be recouped by the State. See Background, supra, at l. C.2-3. Any savings would also be offset by increased costs to the public employers and are unwanted by the employers themselves, as demonstrated by the fact that they chose to offer these benefits in the first place. Background, supra, at I. e.3 . While cost savings can be a legitimate state interest, such sl ight and hypothetical cost savings cannot salvage a discriminatory bill such as this. See Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 20 11) (statute stripping same-sex partners of benefits was properly enjoined as lacking rational basis, despite the state's asserted cost justification, where evidence showed that the cost of such benefits we re between 0.06% and 0.27% of the state's total spending on health care benefits). Even if the State could show some marginal savings, it may not "protect the public fisc by drawing an invidious distinction between its classes of citi zens." Mem 'I HOJp. v. Maricopa Cnly., 41 5 U.S. 250, 263 (1974). Therefore, these incidental cost savings cannot justify an otherwise discriminatory policy. W. Tenn. Chapter ofAssoc. Builders & Contractors, Inc. v. CilyojIvIemphis, 138 F. Supp. 2d 1015, 1028 (W.D. Tenn. 2000) {" [C]onsiderations of
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2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 26 of 39 Pg ID 228
the City's financial hea lth and admi ni strati ve etliciency cannot run roughshod over plaintiff's constitutional rights.").
b. T he Act Does Not "Enforce" Existing Law. According to the House Legislative Analysis and many statements by the Act's sponsors, article I, section 25 of the Michigan Constitution and the National Pride decision bar spending public funds on domestic partner benefits. (See Ex. I at 6 ("First and foremos t, [proponents of the Act] say any publ ic employer who extends health care insurance to same-sex or opposite-sex domestic partners is clearly breaking the law."); Background, Slipra, at 1. 8. This fundamentally misstates Michigan law. National Pride did not bar public employers from offering benefits to same-sex partners; the Michigan Supreme Court held unconstitutional only those plans that defined the relationship between the employee and the covered individual by the same-sex nature of the partnership and by reference to attributes similar to those of marriage. National Pride, 748 N. W.2d at 533-37. Putting aside the question of whether this holding is consistent with the Fourteenth Amendment, National Pride si mply does not say what the Act's proponents attri bute to it. Specificall y, National Pride does not impose an absolute bar on the provision of benefits to anyone other than a public employee's blood relative. In reality, the reference to the constitutional amendment and the National Pride case by the Act's proponents is shorthand for their plain intent to discriminate against gay and lesbian fam ili es. Not content with political and legal victories proh ibiting same-sex marriage in Michigan, these lawmakers wan ted to make sure that not a single state or local tax dollar could be used to benefit same-sex partners-a purpose that strikes at the heart of local employers' attempt to promote workplace equality and has nothing to do with protecting the definition of marriage as between one man and one woman. (Ex. 0 -2 (referring to partner benefits as "an absolute abomination ... that shifts people's hard earned dollars into the pockets of same-sex
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2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 27 of 39 Pg ID 229
paI1ners")) Rep. Agema's assertion that it " is di srespectful to the people" of Michigan to "extend health benefits to unions" other than those "between one man and one woman" (Ex. G1) lays bare the intent to go far beyond the regulation of marriage and cod ify discrimination against lesbian and gay public employees' fami lies based on soc ial disapprobation for homosexuality. This the Constituti on does not pemlit. Romer v. Evans, 517 U.S. 620, 635 (1 996).
3. The Act Was Motivated by Illegitimate Anti-Gay Animus. The Equal Protection Clause prohibits classifications based on the "bare . . . desire to harm a politically unpopu lar group." Uniled Stales Dep 'f ofAgric. v. Moreno, 41 3 U.S. 528, 534 (1973); Romer, 5 17 U.S. at 634; Stemler v. City ~fFlorence, 126 F.3d 856, 873-74 (6th CiT. 1997). Courts look to a number of facto rs as evidence of an invidious discriminatory purpose: ( I) the impact of the official action on a particular group, (2) the hi storical background of the challenged decision, especiall y if it reveals numerous actions being taken for discriminatory purposes, (3) the sequence of events that preceded the state action; (4) procedural or substantive departures from the government's normal procedural process; and (5) the legislative or administrative history. Moore v. Detroil Sch Reform Bd. , 293 F.3d 352, 369 (6th CiT. 2002) (citing ViII. ofArlington Heights v. Metro. HOl/s. Corp., 429 U.S. 252, 266 (1 977)). Here, these factors show that the Act was the result of a legislative desire to harm a politically unpopular group: • The burden of the Act falls directly and exclusively on employees with same-sex partners. The Act expressly allows benefits for a wide range of individuals outside the heterosexual nuclear fam ily, while only lesbian and gay fami lies are left wit h no ability to gain benefits. (Unmarried different-sex couples can man y to obtain benefits.) • The hi storical background and legislative history ofthe Act demonstrate animus. See Background, supra, at l.A- B. Following passage of the marriage amendment, opponents of gay rights sought and won an interpretation of the amendment to bar benefits contingent on the existence ofa same-sex domestic pali nership. But the Act's sponsors
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went fu rther, expressing d isgust and outrage that gay public employees were receiving
the same partner benefi ts as their married colleagues. (Ex. G·2 (quoting Rep. Lund (who
co·sponsored the Act) as saying it was "an abso lute abomination" to provide benefits to publi c employees' "same·sex paI1ners"». • The Act is a unique departure from the State's strong tradition of allowing municipalities to govern their own affairs (a concept known as " home rule"). Alco Universal Inc. v. City ofFfin/, 192 N.W.2d 247, 249 (M ich. 197 1) ("Michigan is a strong home rule state."). Never before has the legislature prevented a class of people fro m bargaining with local public employers (ind ividually or co llectively) for benefits. T he Act is an unprecedented expansion of state control over local public employers. Thus there is strong direct and circumstantial evidence that the Act has no rati onal basis, but instead is the product and expression of the legislature's anti· gay animus. United Stales Departmel1l ojAgriculture v. Moreno also presented a situation in whi ch government bene fits were conditioned on family structure and motivated by impermi ssi ble animus. 4 13 U.S. 528. There, the Supreme Court struck down a statute that barred individuals from receiving food stamps if they lived in a household with other unrelated indi viduals. The desire to harm a poli tically unpopular grouP. " hi ppies," could not constitute a legiti mate basis fo r upho lding the law. And although the government had a rational interest in preventing food stamp fraud, the "pract ical operation" of the amendment would allow the hippies all eged ly abusing the system to change their housing arrangements to retain eli gibility while categorically barring "onl y those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility." Id. at 538. Such a classi fi cation was "who ll y without a rational bas is." Id.
Simil arl y. in Diaz and Dragovich, laws that conditi oned access to benefi ts on family
structures were found to be moti vated by animus agai nst gays and lesbians. Both invo lved laws that excl uded unmarried people from access to benefits. These cases held that the "challenged
provision serve[d] no legitimate government interest and the enactment [was] tainted by animus
against a politically unpopular group." Dragovich, 20 12 WL 253325, a1 * 11; Diaz, 656 F.3d at
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1014-15 (law was motivated by "bare... desi re to hann"). The Diaz court added that barring healt h coverage for unmarried partners may actuall y " present a more compelling scenario" than Moreno because the plai ntiffs were barred from eligib il ity not by thei r fina ncial circumstances but by operation of law. 636 F.3d at 10 14.
The Act in question here is even more clearly unlawful than those at issue in Diaz and Dragovich since the classification here-the family structure of same-sex domestic partners, as compared not onl y to married heterosexua l couples (Diaz) or close fa mily members (Dragovich) but to a broad group of fami li al relationshi ps that are far less intimate-is even more attenuated from any legitimate purpose than the classifications in those cases. Plaintiffs thus have a high like lihood of showi ng that the Act was motivated by animus.
B. The Act Also Fails Under Heightened Scrutiny. Although the Act fa il s even rational basis review, the Act should be reviewed under heightened scrutiny for three independent reasons: (1) the Act discrimi nates against gays and lesbians, a suspect or quasi-suspect class that has been subject to widespread historical discri mination in Michigan and elsewhere; and (2) the Act discriminates on the basis of sex; and (3) the Act burdens lesbian and gay publi c employees' fundamenta l right of intimate association.
1. Gays and Lesbians Are a Suspect or a Quasi-Suspect Class. The Act warrants he ightened scrut iny because it targets gays and lesbians. Since gays and lesbians meet all fou r factors used to assess whether a class is suspect or quasi-suspect, laws discriminating against them should be subject to heightened scruti ny. The Sixth Circuit has previously stated thal gays and lesbians are not a suspect class, see Scarbrough v. Morgan en/y. Bd. ofEduc. , 470 FJd 250, 261 (6th Cir. 2006), but it did so relying on case law following Bowers v. Hardwick, 478 U.S. 186 (1986), before it was overru led by Lawrence v. Texas, 539 U.S. 558 (2003). In the wake of Lm1lrence, other courts have
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recognized that gays and lesbians are entitl ed to heightened scrutiny as a cl ass. See, e.g.. Kerrigan v. C01l1111'" ofPub. Health, 957 A.2d 407, 432-62 (Conn . 2008); Varnll m v. Brien, 763 N.W.2d 862, 889-97 (Iowa 2009). The U.S. Department of Justice, after carefull y examining the fac tors discussed below, concl uded last year that heightened scrutiny should apply to sex ual orientation class ificat ions. Lener from the Atty. Gen. to Congress on Litigation Invo lving the Defense of MalTi age Act (Feb. 23, 2011 ) (Ex. P). This Court should reach the same conclusion.9
The Supreme Court has identi fied fOllr fac tors used to determine whether a class is suspect or quasi-suspect so as to wan'ant heightened scrutiny: ( 1) whether the class has suffered a hi story of discrimination; (2) whether the cl ass's members are a minority or politically powerless; (3) whether the c lass exhibits distinguishing or immutable characteristics that defin e them as a discrete group; and/or (4) whether the characteri stic that defin es the class "bears no re lation to ability to perform or contribute to society[.]" Fronliero v. Richardson, 411 U.S. 677, 686 ( 1973) (plurality opi nion); Lyng v. Casliffo, 477 U.S. 635, 638 (1986); Clebllrne, 473 U.S. at 440-4 1. All four factors are met here.
First, there can be no dispute that gays and lesbians have historicall y experienced di scrimination, both nationwide and in Michi gan. See, e.g., High Tech Gays II. De! Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Ben-Shalom v. Marsh, 88 1 F.2d 45 4, 465 (7th Cir. 1989); Varnum, 763 N.W.2d at 889; Kerrigan, 957 A.2d at 432; Andersen v. King Cnty., 138 P.3d 963, 974 (Wash. 2006). Unt il the Supreme Court's 2003 decision in Lawrence, states were abl e to " demean [gays' and lesbians' ] ex istence or control their destiny by making
9 Because of the ex isting Sixth Circuit precedent, Pl aintiffs ask the Court to analyze the heightened scrutiny factors for purposes of requesting that the Court of Appeals revisit the question and conclude that sexual orientation classi fications are entitled to heightened scrutiny.
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lheir private sexual conduct a crime." Lawrence, 539 U.S. at 578.]0 Thi s history of discrimination agai nst gays and lesbians continues today in Michigan.
See generally Wi lliams Institute, Michigan-SexI/al Orientation and Gender Idenlity Lcn11 and Documentation oj Discriminalion2-4 (2009) (Ex. Q) (documenti ng discrimination against gays and lesbians in Michi gan in various areas). Michigan's consti tution deni es gay and lesbian couples legal recognition ofa marriage or similar union. Mich. Const. art. I, § 25. Michigan's civil rights statutes prov ide no remedy for sex ual orientati on-based harassment and di scrimination in the workplace. Barbour II. Dep'l o/Soc. Servs., 497 N. W.2d 2 16 (Mich. App. 1993). In 20 10, crimes targeting gays and lesbians constituted over fourteen percent of all reported Michigan hate crimes, the largest group after victims of anti-b lack and anti-white hate crimes. Michigan State Poli ce, 2010 Hate/Bias Crime Report (Ex. R). One recent study found that gays and lesbi ans have a twenty-seven percent likelihood of experiencing di scrimination in obtaining housing in Michigan. Pam Kisch and Pat Winston, eds., Sexual Orientation and HOI/sing Discrimination in Michigan (2006) (Ex. S).
Second, gays and lesbians lack "sufficient politi cal strength to bring a prompt end to the prej udi ce and discrimi nation [that they suffer] through traditional po litical means," Kerrigan , 957 A.2d at 444. See Lyng, 477 U.S . at 638. Thi s is true both at a nationa l level and within Michigan. For example, in Michigan, gays and lesbians have been thus far unable to secure prolection under Michigan's civi l rights act, wh ich prohibits discrim ination in housing,
10 Lawrence effective ly brought an end to a series of state laws criminali zing same-sex intimacy. including a Michigan statute that imposed lengthy prison sentences for consensual sex ual activity. See Mich. Compo Laws § 750.158 (2012). Although Lawrence precludes their enforcement, Michigan's laws criminalizing private, adult, consensual, noncommercia l
conduct have never been fonnally repealed. Id.; see also Mich. Camp. Laws §§ 750.158,
750.159, 750.338, 750.338a (West 2012).
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employment, public accommodations, or education based on height, we ight, and eight other characteristics. See Mich. Compo Laws §§ 37. 2 102( 1), 37.2202, 37.2302, 37.2402, 37.2502 (West 20 12); see also Golinski v. US Office ofPers. Mgll1l., No. C 10-00257, 2012 WL 569685, at * 14 (Feb. 22, 20 12) (reviewing recent developments nationwide and concludi ng that "the gay and lesbian community lacks meaningful political power").
Third, gays and lesbians have "obvious, immutable, or distingui shing characteristics that define them as a discrete group." L)lng, 477 U.S. at 638. Sex ual orientation is a distingui shing
characteristic that defines gays and lesbians as a discrete, socially visible group. See La'wrence,
539 U.S. at 568 (tracing emergence of sexual orientation as a discrete identity category in the late 19th century). Evidence also shows that sexual orientation is an immutable characteristic. See Golinski, 2012 WL 569685, at *12 ("[T]he consensus in the scientific community is that sexual orientati on is an immutabl e characteristic"); Am. Psychological Ass' n, Report ofthe American Psychological Association Task Force on Appropria/e Therapeutic Responses 10 Sexual Orienta/ion, at v (2009), available a/ http://www.apa.org/pillgbtlresourcesltherapeutic-response. pdf ("efforts to change sex ual orientation are unli kely to be successfu l and involve some ri sk of harm").]]
FOllrth, sex ual orientation "bears no relati on to [anyone's] abi li ty to perform or contribute to society." Frontiero, 411 U.S. at 686. The Public Employees, like thousands of other gay and lesbian Michiganders, have demonstrated this at their workplaces. "[S]exual
II Moreover, sex ual orientation is a core component of a person's identity that no person should be required to change to avoid discrimination. Peny v. SchwQrzenegger, 704 F. Supp. 2d 92 1, 964 (N.D. Cal. 2010) ("Sexual orientation is fundamental to a person's identity."), affd sllb nom. Pen y v. Brown, No. 10-16696, 2012 WL 372713 (9th Cir. Feb. 7, 2012); In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) ("[A] person' s sex ual orientation is so integral an aspect of one's identity [that] it is not appropriate to require a person to repudiate or change hi s or her sexual orientation in order to avoid discriminatory treatment.").
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orientation bears no relation to a person' s ability to participate in or contribute to society, a fact that many cOUl1s have acknowledged." Kerrigan , 957 A.2d at 434; Golinski, 20 12 WL 569685, at ' 12; Per/Y, 704 F. Supp. 2d at 1002.
2. Intermediate Scrutiny Applies Because The Act Discriminates On The Bas is of Sex.
The Act should al so be subjected to intelmediate scrutiny for the independent reason that it discriminates agai nst Plaintiffs based on each one's sex in relation to the sex of hi s or her life partner. By restricting the provision of benefits to married employees (as well as other arbitraril y-selected groups of persons as defined by intestacy and tax laws), who are necessarily opposite-sex partners, the State denies family coverage to the Domestic Partner Plaintiffs based 011 their sex , or from another perspective, based on the sex of the Public Employee Plaintiffs. See In re Brad Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (denying heallh benefits to man in same-sex relationship was "sex-based" given that he could qualify if he were a woman and could marry his partner); Baehr v. Lewin, 852 P.2d 44, 67-68 (Haw. 1993).
3. Strict Sc rutiny Applies Because the Act Burdens Fundamental Rights.
The Supreme Cou rt has recognized that the Due Process Clause provides a substantive right of intimate assoc iation, which means that " personal decisions relating to ... fami ly relationships" are constitutionally protected from state interference. Lawrence, 539 U.S. at 573;
Moore v. City ojE. Cleveland, 431 U.S. 494, 499 ( 1977) ("[WJhen the govenunenl intrudes on
choices concerning family living arrangements, [courts] must examine carefull y the importance of the governmental interests advanced and the extent to which they are served by the chall enged resolution."). To surv ive the heightened scrutiny applicable to such impingements, a court must find that important governmental interests are at stake, the law will significantly further those interests, and the law is necessary to further those interests. Wil1 v. Dep 'f ofAir Force , 527 F.3d
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2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 34 of 39 Pg ID 236
806,817 (9th Cir. 2008) (applyi ng the heightened scrutiny required by Lawrence); Cook v. Gales, 528 F.3d 42, 6i ( i st Cir. 2008) (same).
The Act directly and substanti ally interferes with Plaintiffs' family relationships by creating an arbitrary and discriminatory restriction on their abi lity to receive the family insurance coverage that their employers have willingly provided them-and does so on ly because the Public Employee Plaintiffs have formed fami ly relationships with persons they cannot marry in
Michigan. Once a municipality or other local entity has wi llingly offered partner benefits to its
unman'ied emp loyees (particularly its gay and lesbian employees, who cannot many), the State may not withho ld those benefits from public employees because of their exercise of their fundamenta l ri ght to intimate association and fam ily integrity. Pel'lY v. Sindermann, 408 U.S. 593,597 (1972) ("[E]ven though a person has no 'right' to a val uable government benefit ... [the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests."); Ark. Dep 't oj Human Servs. v. Cole, 20 II Ark. 145,20 II WL 1319217, at
*13· 14 (Ark. Apr. 7, 20 I I) (law restricting adoption and foster parenting to married persons
burdened plaintiffs' intimate association in violation of Arkansas Constitution). Thus, the Act unconstitutionally burden s Plaintiffs' family relationships.
4. The Act Fails Heightened Scrutiny. For the same reasons Plaintiffs are li kely to succeed even if the Act is subjected to rational basis review, they will succeed when heightened review is applied. The Act cannot survive strict scrutiny because the State calIDot show that it is nanowly tailored to achi eve a compelling government interest. See, e.g., Washington v. Glllcksberg, 521 U.S. 702, 72 1 (1997). Nor can the Act survive intennediate scrutiny, as the State cannot prove that it is substantially rel ated to any important governmental interest. See, e.g., Clark v. Jeler, 486 U.S. 456, 46 1-62 (1988) .
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II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE ACT IS ENFORCED. If the Court does not enjo in the Act's enforcement, Plaintiffs will suffer irreparable harm.
Winler, 555 U.S. at 20. "[W] hen reviewing a motion for a preliminary injunction, ifit is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated." Bonnell v. Lorenzo, 241 FJd 800, 809 (6th Cir. 200 I) (citing Elrod \I. Blirns, 427 U.S. 347, 373 (1976)). As di scussed above, the Act impairs Plaintiffs' constitutional equal protection and due process rights, and therefore, the irreparable harm requirement is easil y met.
Even if the Act did not infringe constitutional rights, Plaintiffs could still show irreparable hann. "An injury is irreparab le ifit cannot be undone through monetary remedies." Pelformance Un/fd. , Inc. v. Questar Publishers, Inc,. 52 F,3d 1373, 1382 (6th Cir. 1995). Monetary damages would not remedy the haml Plaintiffs will suffer if they are unable to obtain medical care. Plaintiffs Ramber and Ascheri have ciU'onic conditions that, ifleft untreated, wi ll
li kely lead to serious and potentially irreversible health consequences. (Jach Decl. 1 9; Ramber
Decl , ,. 7; Bloss Decl, , 8; Ascheri Decl, ~ 7) Plaintiffs will be forced to contend with the increased financial burden of obtaining altemative insurance coverage by enrolling in a high~ deductible plan or a plan with limited coverage, limiting their doctors' visits, switching to inferior medications or foregoing medications, or working more to pay for higher insurance costs. (Badgett Dec!. ~ 7; Bassett Dec!. , 9; Kennedy Decl. , 9; Ways Decl.' 9; Breakey Decl.
, 9; Jach Dec!. , II ; Ramber Dec!. 1 9; Bloss Decl . , 10; Ascheri Decl. , 9; Miller Decl. 1 9;
Johnson Decl, ~ 8) Courts routinely find such consequences to meet the requirement of irreparable harm. See. e.g.. Sclwlk v. Teledyne. Inc., 75 1 F. Supp. 1261 , 1268 (W.O. Mich. 1990) (company decision to shift premium payments to retirees, allegedly in violation of collective bargaining agreement, would impose irreparable haml in the form of "uncertainty {of]
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2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 36 of 39 Pg ID 238
how much money w ill be needed to cover medical ex penses" and " finan cial planning burden"). 'I1l·d. 948 F.2d 1290 (6th Cir. 1991 ); Collins, 727 F. Supp. 2d at 812-13, off'd, 656 F.3d 1008
(91h Cir. 20 II ). III. THE BALANCE OFTHE EQUITIES FAVORS ENTRY OF AN INJUNCTION.
Denying an injunction would harm Plaintiffs far more than granting an injunction would
harm the State. See Winter, 555 U.S. at 24 (co urts weigh the burden to the plaintiff of denyin g
preli mi nary re lief against the burden to the defendant of granting it). As d isc ussed above. the Act's ban on pm1ner coverage will make it much more difficult for Plaintiffs to access com parable insurance coverage. thereby impos ing significant financi al burdens on Plaintiffs and
threatening the health of the Domestic Partner Plainti ffs. Schalk, 75 1 F. Supp. at 1268 (balance o f harms favored plaintiffretirees' interest in keeping health benefits over defendant' s interest in saving money by shifti ng costs to the retirees); Golden v. Kelsey-Hayes Co. , 845 F. Supp. 4 10, 416 (E.D. Mich. 1994), offd. 73 F.3d 648 (61h C ir. 1996) (same).
In contrast, enforcing an unconstitutional law is not a valid state interest, so the State cannot legitimately claim that the balance ofhanns favors the denial of an injunction . Planned Parenthood Ass 'n ofCincinl1ati, Inc. v. City ofCincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (where "there is a likelihood that [a law] wi ll be found unconstitutional," it is "questionable w hether the [State] has any 'valid ' interest in enforcing [it]"). Moreover, the Act generates de minimis savings that, in any event, redound to other public emp loyers and not the State. IV. THE PUBLIC INTEREST FAVORS AN INJUNCTION.
As the S ixth Circuit has noted, "the public is cel1ainl y interested in the prevention of
enforcement of [laws] which may be unconstitutional." Id. at 1400; Martin-Mariel1a COIp. v. Bendix CO/p. , 690 F.2d 558, 568 (6th Cir. 1982). The public interest also favors a healthy
citizenry, which is promoted when public employers are pennitted to extend benefits as broadly
27

2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 37 of 39 Pg ID 239 as they see fit and impaired when benefits are abruptly temlinated for partners of gay and lesbian public employees across the State. Schalk, 751 F. Supp. at 1268-69 (recognizing the public interest "in the preservation of a healthy popu lation"). The public interest is also served by givi ng local authorities autono my over the use of employment benefits to attract and retain the most qualified workforce, and to promote diversity within their own communities. The only possible public interests in favor of the Act are either not furthered by the Act (saving costs) or are ill egitimate (denying equal benefits to gay and lesbian Michiganders) and should be rejected for the reasons di scllssed above. Thus, the public interest weighs in favor of an injunction.
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CONCLUSION For the foregoing reasons, Plaintiffs respectfu ll y request that the enforcement of the Public Employee Domest ic Partner Benefit Restriction Act be enj oi ned.

Dated: March 7, 2012

Respectfu ll y submitted,

sf Michael 1. Steinberg
Michael J. Steinberg (P43085) Jay D. Kaplan (P38 197) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, Michi gan 28201 (313) 578-6814
John A. Knight (admission pending) American Civil Liberties Union Foundation 180N. Michigan, 2300 Chicago, lllinois 6060 1 (3 12) 20 1-9740
Amanda C. Goad (admission pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 (2 12) 549- 2627
Donna M. Welch, P.C. (admission pending) Brad ley H. We idenhammer (admission pending) Amy E. Crawford (adm ission pending) Kirk land & Ellis, LLP 300 North LaSalle Street Chicago, Illinois 60654 (3 12) 862-2000
Allorneys!or Plaintiffs Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller. and Michelle Johnson

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2:12-cv-10038-DML-MJH Doc # 18 Filed 03/07/12 Pg 39 of 39 Pg ID 241 CERTIFICATE OF SERVICE
I hereby cel1ify that on the 7th day of March, 20 12, a true copy of the fo regoing was delivered by e lectronic filing to:
Margaret A. Nelson (P30342) Mark E. Donnelly (P3928 1)
Attomeys fo r Defendant Michigan Department of Attorney General Public Employment, Elections & Tort Division
P.O. Box 30736 Lansing. MI 48909
(517)373-6434 Attorneys/or Dejelldalll sl Michael J. Steinberg Michael J. Steinberg (P43085) American Civi l Liberties Union Fund of Michigan 2966 Woodward A venue Detroit, Michigan 2820 I (313) 578-68 14 msteinberg@ac lumich.org
K&E 21972006,I

 
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Motion Hearing - August 7, 2012

1

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

2

SOUTHERN DIVISION

3 Theresa Bassett and Carol Kennedy,

Peter Ways and Joe Breakey,

4 JoLinda Jach and Barbara Ramber,

Doak Bloss and Gerardo Ascheri,

5 Denise Miller and Michelle

Johnson,

6

Plaintiff,

Case No. 12-10038

7

-v-

8 Richard Snyder, in his official capacity as Governor of the State
9 of Michigan,

10

Defendant.

____________________________________/

11

MOTION HEARING

12

BEFORE THE HONORABLE DAVID M. LAWSON

13

United States District Judge

Theodore Levin United States Courthouse

14

231 West Lafayette Boulevard

Detroit, Michigan

15

August 7, 2012

16 APPEARANCES:

17 FOR PLAINTIFFS: 18 19 20 21

AMANDA C. GOAD JOHN A. KNIGHT ACLU Foundation
and MICHAEL J. STEINBERG ACLU of Michigan
and AMY E. CRAWFORD Kirkland & Ellis, LLP

22 FOR THE DEFENDANT: MARGARET A. NELSON Michigan Department of Attorney General
23

24

25

To Obtain a Certified Transcript Contact:

Rene L. Twedt - www.transcriptorders.com

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1

TABLE OF CONTENTS

2 MATTER

PAGE

3 WITNESSES:

4 JoLINDA JACH Direct Examination by Mr. Knight........................ 8
5 Cross Examination by Ms. Nelson......................... 13 Redirect Examination by Mr. Knight...................... 15
6 BARBARA RAMBER
7 Direct Examination by Ms. Crawford...................... 17

8 MOTION TO DISMISS Argument by Ms. Nelson ................................. 25
9 Argument by Ms. Goad ................................... 35

10 MOTION FOR PRELIMINARY INJUNCTION Argument by Ms. Goad.................................... 45
11 Argument by Ms. Nelson.................................. 48 Further Argument by Ms. Goad ........................... 51
12

13 CERTIFICATE OF REPORTER................................. 57

14

15

16

17

18

19

20

21

22

23

24

25

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1 Detroit, Michigan

2 August 7, 2012

3 1:52 p.m.

4

*

*

*

5

THE CLERK: All rise. The United States District

6 Court for the Eastern District of Michigan is now in session.

7 The Honorable David M. Lawson presiding.

8

THE COURT: You may be seated.

9

THE CLERK: Now calling the case of Bassett v Snyder,

10 Case Number 12-10038.

11

THE COURT: All right. Good afternoon, Counsel. May

12 I have your appearances, please?

13

MR. KNIGHT: Good afternoon, your Honor. John Knight

14 for the Plaintiffs.

15

MS. CRAWFORD: Amy Crawford for the Plaintiffs.

16

MR. STEINBERG: Michael J. Steinberg for the

17 Plaintiffs.

18

MS. GOAD: Amanda C. Goad for the Plaintiffs.

19

THE COURT: Who is arguing?

20

MS. GOAD: Your Honor, I'll be arguing the motions.

21 My co-counsel will be introducing witnesses, if you will allow

22 that.

23

THE COURT: What do you have in terms of -- I'm

24 sorry. Let's get Ms. Nelson's appearance, please.

25

MS. NELSON: Thank you, your Honor. Assistant

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1 Attorney General Margaret A. Nelson on behalf of the Defendant

2 Governor Richard Snyder.

3

THE COURT: Thank you.

4

What do you have in terms of witnesses?

5

MR. KNIGHT: Your Honor, we have two witnesses,

6 JoLinda Jach and Barbara Ramber. We anticipated no more than

7 a half hour in testimony.

8

THE COURT: Is there anything that you need to offer

9 that can't be submitted by affidavit with respect to those

10 witnesses?

11

MR. KNIGHT: The reason for live testimony, your

12 Honor, was because the irreparable harm is an issue for the

13 Court, obviously, that we thought that live testimony, with

14 the ability to judge the credibility of witnesses, would be

15 useful to your Honor.

16

THE COURT: Ms. Nelson, do you have a view? Do you

17 want to cross examine?

18

MS. NELSON: Well, we discussed this briefly this

19 morning, your Honor, and I suggested I didn't believe that

20 there would be anything they could offer that hasn't already

21 been offered in their declarations and amended declarations

22 that have been filed. They are going to be speaking to, as I

23 was informed, their emotional distress caused by the loss of

24 the medical benefits and any economic damage. I don't know

25 that -- there isn't anything that hasn't already been set

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1 forth in their declarations. I don't see that that can be

2 developed. We chose not to take their depositions. I don't

3 know that I would have any substantial cross based on their

4 declarations.

5

THE COURT: I guess the reason I would suggest the

6 witnesses would be called would -- to give you -- would be to

7 give you an opportunity to cross examine, and you're telling

8 me you don't think that's necessary.

9

MS. NELSON: I appreciate that, your Honor, but as I

10 said, we made a decision not to take their depositions. We

11 could have.

12

I don't know that there is any enhancement or

13 anything that we could deal with through cross examination

14 that we can't deal with on argument. Our position is that

15 these are legal issues to begin with and these fact issues

16 that they have offered have no direct impact on that.

17

THE COURT: All right. I guess Mr. Knight's point is

18 that there is an element in the four part or four factor test,

19 I guess, for issuing a preliminary injunction and that's why

20 he wants to set that out.

21

Is there really a contest to the notion that if

22 somebody has medical benefits and a need for medical

23 treatment, and loses the ability to obtain that treatment,

24 that irreparable harm could result?

25

MS. NELSON: Well, your Honor, I disagree with how

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1 that issue has actually been stated here.

2

First of all, the Plaintiffs, in their declarations

3 and in their Complaint, have identified essentially their

4 irreparable harm as being the emotional stress they suffer

5 from the potential or ultimate loss of their benefits, in

6 addition to economic harm that they might incur in replacing

7 those benefits.

8

So unlike many other situations, they have all

9 declared that they are financially independent. All of the

10 partners who are not public employees are employed. They

11 have economic resources. They have all identified in their

12 declarations that they have searched alternative forms of

13 insurance that they can purchase, so that is available to

14 them.

15

And there is no one, at this point, who has

16 identified any immediate need for medical care that isn't

17 otherwise being provided to them, either that they are paying

18 for directly themselves or that they are -- still have

19 covered, because many of -- at least three of the Plaintiff

20 groups have coverage through the end of the year, is my

21 understanding, based on the facts that have been given to me.

22

So I can't stand here and say, your Honor, that we

23 don't dispute the fact that the emotional stress that they

24 have talked about and the financial stress that they have

25 talked about constitutes irreparable harm for purposes of

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1 meeting that factor for issuance of a preliminary injunction.

2

THE COURT: All right, Ms. Nelson. Thank you.

3

Mr. Knight, I'll let you call your witnesses.

4

There are two motions. There is a motion to dismiss

5 filed by the State and there is a motion for preliminary

6 injunction.

7

I think it's probably useful to dispense, not to be

8 pejorative, with the testimony first, at least get it out of

9 the way so that we can make a record on that, and then we will

10 hear the arguments.

11

You may call your first witness.

12

MR. KNIGHT: Plaintiffs call JoLinda Jach.

13

THE COURT: Ms. Jach, would you step forward, please?

14

Just step right up to the lectern. Raise your right

15 hand and be sworn.

16

*

*

*

17

JoLINDA JACH

18

was called as a witness, after having

19

been duly sworn to testify to the truth.

20

*

*

*

21

THE COURT: Would you have a seat right over here in

22 the witness box, please?

23

Mr. Knight, you can go ahead and rotate that, if you

24 like. There is a cord in the floor, though. Don't unplug it.

25

MR. KNIGHT: Okay.

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1

THE COURT: Ms. Jach, would you pull the microphone

2 up so that you can speak into it about maybe three or four

3 inches from your mouth. There you go.

4

And would you state your full name?

5

THE WITNESS: JoLinda Jach.

6

THE COURT: And would you spell your first name for

7 me?

8

THE WITNESS: J-o-L-i-n-d-a.

9

THE COURT: And Jack is J-a-c-k?

10

THE WITNESS: J-a-c-h.

11

THE COURT: J-a-c-h. Thank you.

12

Mr. Knight, go ahead.

13

DIRECT EXAMINATION

14 BY MR. KNIGHT:

15 Q. Ms. Jach, where do you live?

16 A. Kalamazoo.

17 Q. And where were you born, Ms. Jach?

18 A. In Paw Paw.

19 Q. How long have you lived in Michigan?

20 A. My entire life.

21 Q. How old are you now?

22 A. Forty-eight.

23 Q. Why are you involved as a Plaintiff in this lawsuit?

24 A. To try and secure some health benefits for my partner that

25 we may be losing at the end of the year.

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1 Q. Why did you understand you'll be losing your health

2 insurance? For Barbara, I should say.

3 A. As part of the House bill that Governor Snyder signed.

4 Q. And I'm sorry, you said -- when will Barbara lose her

5 insurance?

6 A. December 31st.

7 Q. And why will it be then?

8 A. I'm a non-bargaining unit employee with the City of

9 Kalamazoo, so we don't technically have a contract, but all of

10 our contracts, all of our benefits run January to December.

11 Q. What do you -- what do you do for work, Ms. Jach?

12 A. I'm a senior systems analyst.

13 Q. Where do you -- who do you work for?

14 A. The City of Kalamazoo.

15 Q. And how long have you worked for the City?

16 A. Twenty-four years.

17 Q. You mentioned your partner. What is your partner's name?

18 A. Barbara Ramber.

19 Q. And how long have you --

20

THE COURT: Barbara's last name?

21

THE WITNESS: Ramber.

22 BY MR. KNIGHT:

23 Q. How long have you and Barbara been together?

24 A. Seventeen years.

25 Q. Would you describe the nature of your relationship?

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1 A. We're in a loving, committed, monogamous relationship.

2 Q. If Michigan law permitted you to marry, would you?

3

MS. NELSON: Objection, your Honor. Relevance.

4

THE COURT: Overruled.

5 BY MR. KNIGHT:

6 Q. You may -- you may answer.

7 A. Yes, we would.

8 Q. Do you and Barbara have any children?

9 A. Yes, we do. We have an eleven-year-old son and an

10 eight-year-old daughter.

11 Q. You currently have held insurance through the City of

12 Kalamazoo, is that right?

13 A. That's correct.

14 Q. Does your plan cover anyone other than you?

15 A. It covers both of our children and Barbara currently.

16 Q. How is Barbara covered on your insurance?

17 A. As an other qualified adult.

18 Q. How long has Barbara been covered on your health

19 insurance?

20 A. Since 2000.

21 Q. Why did you decide to put Barbara on your insurance?

22 A. Initially, I had better health insurance benefits than she

23 did. And as we continued with our life, we wanted to start a

24 family. It gave us an opportunity to have a parent home with

25 our children.

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1 Q. And how did that give you an opportunity to have a parent 2 home with your children? 3 A. Barbara is currently working part-time. She works 4 part-time. Her schedule coincides with our children's school 5 schedule, so she is home when they are home. 6 Q. And how does that relate to her ability to have insurance? 7 A. It allows us to have that choice. She -- without 8 insurance, she would have to be uninsured or find full-time 9 employment that may cover her. 10 Q. Okay. And so you're saying that her part-time employment 11 does not allow her the same kind of insurance that you could 12 offer her? 13 A. That's correct. 14 Q. Why does Barbara need health insurance? 15 A. She has some serious medical issues. 16 Q. Does the City's health insurance coverage cover the cost 17 of Barbara's treatment for those conditions? 18 A. Yes, it does. 19 Q. When did you learn that Barbara would lose her health 20 insurance coverage? 21 A. Last December. 22 Q. Why -23 A. Near the end of the year. 24 Q. And why would she lose it then? 25 A. Because of the House bill that was signed.

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1 Q. What happened at that time to you and Barbara? 2 A. We had about seven days left of coverage for her, and on 3 December 31st of 2011 her benefits were terminated initially. 4 Q. And how did they get reinstated? 5 A. They were reinstated based on the fact that I had to sign, 6 in November, my -- any changes to my health insurance coverage 7 for the next year, so I had already signed a coverage contract 8 for the following year. 9 Q. How has the law that you have been talking about affected 10 you? 11 A. It's been very stressful. It has changed how we're 12 dealing with our finances. 13 Q. Anything else? 14 A. It has caused a great deal of stress for both myself and 15 Barbara and our children. 16 Q. Have you looked into alternative health care for Barbara? 17 A. Yes, we have. 18 Q. What did you find? 19 A. We found that it's extremely costly. Barbara is employed 20 part-time and in having to purchase insurance for her it 21 would -- it would basically be what she is earning. 22 Q. Have you considered any other options? 23 A. We have considered her looking for work where she might be 24 able to secure benefits for herself. We have also looked at 25 disability insurance, because of her health conditions.

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1 Q. Talking about looking for full-time employment, have there

2 been any road blocks to finding -- for her to find full-time

3 employment?

4 A. Yes. The work that she has done in the past, because of

5 some of the health concerns that she has, we're not sure she

6 would be capable of performing those jobs.

7 Q. How is it -- how has this planning affected the family

8 budget?

9 A. We have definitely looked at where we can cut back.

10 Potentially refinancing our house. Looking at other ways we

11 can cut our budget to afford insurance that would -- that would

12 be beneficial.

13 Q. Ms. Jach, how has this affected you personally?

14 A. Personally, it's been very stressful and I feel like we're

15 being singled out.

16 Q. What do you mean by being singled out?

17 A. Because of the relationship that I have with Barbara, that

18 this is specifically targeting our family and families like

19 ours.

20

MR. KNIGHT: Okay. I have no further questions, your

21 Honor.

22

THE COURT: Ms. Nelson.

23

CROSS EXAMINATION

24 BY MS. NELSON:

25 Q. Ms. Ramber, what did you and your partner do for medical

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1 insurance prior to 2000 when you secured it through the City of

2 Kalamazoo? I'm sorry, Ms. Jach.

3 A. Yes.

4 Q. I called you by the wrong name. I apologize.

5 A. Prior to Barbara being covered on my insurance, she was

6 covered through her employer.

7 Q. So she gave up her employer insurance to be covered under

8 yours?

9 A. She did not give up her employer insurance. It was in

10 addition to.

11 Q. So yours was initially supplemental --

12 A. Yes.

13 Q. -- is that correct?

14

And then what happened to her employer-provided

15 insurance?

16 A. She actually left that employment to work part-time.

17 Q. So it was a voluntary choice on her part and your part,

18 is that correct?

19 A. Yes, it was.

20 Q. Is Barbara able to COBRA benefits under the policy through

21 the City of Kalamazoo?

22 A. No, she is not.

23 Q. Can you tell me how many partners or OEA's -- let me put

24 it this way -- how many OEA's receive benefits through the

25 City of Kalamazoo's insurance coverage plan?

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1 A. I cannot. I don't have that information.

2 Q. Do you know how many are opposite-sex OEA's?

3 A. No, I don't.

4 Q. Do you know if there are any at all?

5 A. I don't know.

6 Q. All right. To your knowledge, are you and Barbara the

7 only OEA benefit recipients through the City of Kalamazoo?

8 A. I don't have that knowledge.

9

MS. NELSON: Okay. That's all I have. Thank you.

10

THE COURT: Anything else, Mr. Knight?

11

MR. KNIGHT: One.

12

THE COURT: Did you have further questions?

13

MR. KNIGHT: I do have one question, I think, your

14 Honor.

15

REDIRECT EXAMINATION

16 BY MR. KNIGHT:

17 Q. Ms. Jach, Ms. Nelson asked you about the voluntary

18 leaving, Barbara leaving her job. Why did she leave her job?

19 A. She left her job in order to be at home with our children

20 or at least to accommodate their schedule.

21

MR. KNIGHT: Okay.

22

THE COURT: Any follow-up, Ms. Nelson?

23

MS. NELSON: Nothing, your Honor.

24

THE COURT: Ms. Jach, thank you. You may stand down.

25

Did you say you had another witness, Mr. Knight?

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1

MR. KNIGHT: Yes, your Honor. Barbara Ramber is our

2 second witness.

3

THE COURT: Ms. Ramber, are you in the courtroom?

4

Are you Barbara Ramber? Ma'am, would you just come

5 up here, please?

6

Just stand right there. Raise your right hand to be

7 sworn.

8

*

*

*

9

BARBARA RAMBER

10

was called as a witness, after having

11

been duly sworn to testify to the truth.

12

*

*

*

13

THE COURT: You may have a seat right over here,

14 please, in the witness box.

15

Ma'am, would you adjust that microphone? Pull it up

16 so that it's about three, four inches from your mouth and

17 speak right into the tip of it. You can pull it right toward

18 you. There you go.

19

Now would you state your full name?

20

THE WITNESS: Barbara Jean Ramber.

21

THE COURT: And would you spell your last name?

22

THE WITNESS: R-a-m-b-e-r.

23

THE COURT: Thank you.

24

Mr. Knight, I take it you're not conducting the exam

25 on this witness?

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1

MR. KNIGHT: I am not. My counsel, co-counsel,

2 Amy Crawford is.

3

THE COURT: All right, Ms. Crawford. Go ahead.

4

MS. CRAWFORD: Thank you, your Honor.

5

DIRECT EXAMINATION

6 BY MS. CRAWFORD:

7 Q. Ms. Ramber, where do you live?

8 A. Kalamazoo, Michigan.

9 Q. And how long have you lived in Michigan?

10 A. Thirty years.

11 Q. Your partner is JoLinda Jach?

12 A. Yes.

13 Q. Why did you and your partner JoLinda join this lawsuit?

14 A. For a couple of reasons. One, it was important to put a

15 face to show that there are LGBT families that will be impacted

16 by this. And secondly, we needed to put our complete, total

17 support in trying to defeat that Act.

18 Q. Talk for a moment about your employment. Where do you

19 work?

20 A. I work for Kalamazoo Public Schools.

21 Q. And what do you do there?

22 A. I'm in food service.

23 Q. How much do you earn per year?

24 A. $10,000.

25 Q. Are you eligible for health benefits through your job?

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1 A. No, I am not. 2 Q. Why not? 3 A. I am a non-contractual employee. 4 Q. Can you purchase health care insurance through your job? 5 A. Yes, I can. 6 Q. And how much would that insurance coverage cost? 7 A. $564. 8 Q. So that would be in excess of $6,000 -- you mean 540 [sic] 9 per month? 10 A. Per month. 11 Q. And would that be in excess of $6,000 a year? 12 A. Yes. 13 Q. And you have testified that you earn about $10,000 per 14 year, right? 15 A. Correct. 16 Q. Let's talk about your medical issues. Could you please 17 give the Court a brief overview of the health issues for which 18 you currently receive medical treatment? 19 A. I suffered a severe blunt eye trauma in my left eye. I 20 have a cataract in my right eye. I have GERD. And I have 21 rheumatoid arthritis in both hands and wrists. 22 Q. Let's talk about your eye injury first. How did you 23 injure your eye? 24 A. I went to a semi-professional baseball game, and the 25 batter hit a foul ball, came off the bat and hit me directly

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1 in my left eye. 2 Q. What treatment did you have as a result of that injury? 3 A. I spent many hours in the emergency room. I had facial 4 surgery a few days afterwards. They removed the broken bones 5 and then installed three metal plates in my face. Within a 6 year after that I developed a traumatic cataract which I had 7 cataract surgery for. This has left me with glaucoma. 8 Q. And what type of medical care do you receive for your eye 9 now? 10 A. I see my eye specialist every four months, more if needed, 11 to check the pressure in my left eye. 12 Q. Do you take any medication for your eye condition? 13 A. Yes, I do. 14 Q. What do you take? 15 A. Timolol. 16 Q. What would be the risk if you stopped taking your 17 medication? 18 A. The pressure would build in the eye and I would lose sight 19 in my left eye. 20 Q. Has the injury affected your vision? 21 A. Yes. 22 Q. How? 23 A. My vision recedes. It's not constant. I have a 24 permanently dilated pupil which allows a lot of light in, 25 which creates a lot of tearing, which also contributes to the

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1 blurriness. And also, I see halos around all light sources, 2 artificial and natural. 3 Q. Do you have an understanding of what type of medical care 4 you may need in the future as a result of your eye condition? 5 A. This is a lifelong situation for me. I will be seeing my 6 specialist or a specialist for the rest of my life. 7 Q. Is there any risk of or any need for potential surgery in 8 the future? 9 A. Yes. I'm at lifetime risk for retinal detachment, which 10 would require surgery. Also, my eye was injured, so when the 11 intraocular implant, after the cataract was removed, after the 12 implant went in, it's -- my eye is missing some items that help 13 hold that in place, so I'm at risk for detachment of that, as 14 well. 15 Q. And what would happen if you didn't receive surgery? 16 A. I would lose sight in that eye. 17 Q. Now, you also mentioned that you had rheumatoid arthritis, 18 is that right? 19 A. That's correct. 20 Q. When were you diagnosed with that? 21 A. 2009. 22 Q. And what are your symptoms? 23 A. Joint swelling, inflammation and deformity. 24 Q. Does this affect your ability to work? 25 A. It certainly does. It affects my ability to lift, grasp,

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1 support much weight. 2 Q. Do you have an understanding of whether your arthritis is 3 likely to progress over time? 4 A. Yes, it will. 5 Q. And do you know what kind of treatment you may need in the 6 future? 7 A. Yes. Medication to try and slow it down. 8 Q. Now, you also mentioned that you have GERD, is that 9 correct? 10 A. Yes. 11 Q. Is that gastroesophageal reflux disease? 12 A. Yes. 13 Q. Can you explain what that is? 14 A. I had heartburn for many years, only it wasn't very 15 obvious to me, and it damaged my esophagus. 16 Q. Have you been diagnosed with any specific syndromes or 17 disorder related to the GERD? 18 A. I was tested for Barrett's esophagus and it looks -19 clinically, it looks like Barrett's, but it wasn't -- it didn't 20 biopsy out as Barrett's. 21 Q. What are your symptoms? 22 A. Difficulty swallowing. 23 Q. Are you taking any medication for that condition now? 24 A. Yes, I do. 25 Q. What is that?

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1 A. It's a protonic called Pantoprazole.

2 Q. Do you have an understanding of whether you may need

3 additional treatment in the future?

4 A. Yes. I will need continued endoscopes to check the

5 esophagus.

6 Q. To date, has all of your treatment for these medical

7 issues we have talked about been covered by the insurance

8 coverage that you have through your partner's job?

9 A. For the most part, except for co-pays.

10 Q. I want to talk to you about the Act that's at issue in

11 this lawsuit, okay?

12

Is it your understanding that the Public Employee

13 Domestic Partner Benefit Restriction Act will take away the

14 insurance coverage that you have through JoLinda's job with

15 the City of Kalamazoo?

16 A. Yes.

17 Q. When will you lose your coverage?

18 A. December 31st of this year.

19 Q. Has the Act had any impact on you and JoLinda emotionally?

20 A. Very much so. It's -- I'm scared to death about losing

21 the benefits. I'm -- my eyesight is -- the thought of losing

22 that is terrifying.

23 Q. If you were to go without insurance altogether, how might

24 that affect your health?

25 A. I would not be able to afford the care that I'm getting

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1 now, particularly with my eye specialist. They are very

2 costly.

3 Q. What are the financial risks to you and your family if you

4 were to forgo health insurance entirely?

5 A. When I went to the ballpark that day I didn't expect

6 to take a fastball in the eye, and so if something else

7 catastrophic were to happen, I -- that could just sink us.

8 That would be awful.

9 Q. Is it a realistic option for you to forgo medical

10 insurance entirely?

11 A. I don't see how, no.

12 Q. What do you anticipate the impact, then, would be of

13 having to seek alternative insurance?

14 A. I don't see how we would be able to afford the level of

15 coverage that we have now.

16 Q. How has this Act impacted you and your family?

17 A. It's been hard on everyone. My son does not understand

18 why his family is treated differently than other families.

19 Q. And how about how it's affected you and JoLinda?

20 A. Again, anxiety in trying to figure out, you know, what to

21 cut, how to cut, where to cut, what to do.

22

MS. CRAWFORD: No further questions, your Honor.

23

THE COURT: Ms. Nelson.

24

MS. NELSON: I have no questions, your Honor.

25

THE COURT: Thank you.

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1

Very well then, Ms. Ramber, you may stand down.

2

Mr. Knight, do you have any further witnesses?

3

MR. KNIGHT: I do not, your Honor.

4

THE COURT: Very well.

5

Ms. Nelson, do you want to address your motion to

6 dismiss?

7

MS. NELSON: I will, your Honor. We had discussed

8 earlier that we thought a better progression would be

9 Plaintiffs going forward, since they have the burden on the

10 preliminary injunction, and the issues overlap, but if the

11 Court prefer --

12

THE COURT: If I grant your motion, I believe that

13 that would make it moot, wouldn't it?

14

MS. NELSON: I understand that, yes.

15

THE COURT: Although, you know you're not going to

16 get a decision today on either one of them.

17

MS. NELSON: I understand that.

18

THE COURT: I'll be taking it under advisement and

19 getting you a decision in writing.

20

But I would rather hear from you first, and caution

21 you that I have -- I'm familiar with the issues and request

22 that you simply hit the highlights.

23

MS. NELSON: That's my plan.

24

THE COURT: Good.

25

MS. NELSON: Thank you.

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1

THE COURT: Thank you. You can rotate that, if

2 you -- maybe you can't.

3

MS. NELSON: I think I have got it.

4

THE COURT: That's our first lawyer agility test.

5

MS. NELSON: How did I do?

6

THE COURT: Well, I'll give you that decision in

7 writing, as well.

8

MS. NELSON: Like all the others, wisely written out.

9 Thank you, your Honor.

10

This is Defendant's motion to dismiss, and as the

11 Court has indicated, this -- the issues presented both on the

12 motion to dismiss and in respect to the motion for preliminary

13 injunction have been thoroughly briefed in cross briefs and

14 reply briefs.

15

Essentially, the Plaintiffs' claim and arguments

16 rest on four cornerstone arguments. Our position is, those

17 arguments lack foundation, factual and legal merit.

18

First, Plaintiffs argue with respect to the

19 appropriate level of scrutiny. The law very clearly

20 establishes the level of scrutiny to be applied to the equal

21 protection claim is rational basis. And I'm going to focus,

22 your Honor, on the equal protection claim, principally, rather

23 than the procedural and jurisdiction issues, which I think we

24 have briefed and the Court is cognizant of.

25

In addition, the due process claim, Plaintiffs didn't

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1 raise that in the context of their preliminary injunction

2 motion, and I believe those issues have been adequately

3 addressed, as well, and the rational basis test applies in

4 that context, as well.

5

But in connection with the equal protection argument,

6 Plaintiffs in effect are asking this Court to adopt a new

7 standard of review, which has not yet been reviewed and

8 approved by the Sixth Circuit, based on an interlocutory

9 appeal decision out of the Ninth Circuit; that being, the

10 Collins and Davis series of cases, in which the Ninth Circuit

11 applied perhaps not a fully or what we might consider

12 heightened scrutiny, but certainly an elevated level of

13 scrutiny involving the gay and lesbian plaintiffs in that

14 particular case, because of its analysis and application of

15 its interpretation of Moreno in that, and saying that because

16 they are an unpopular group, the Supreme Court recognized in

17 Moreno that some heightened level of review might be

18 appropriate.

19

Our position essentially is that that is a legally

20 deficient and incorrect decision as set forth by the dissent

21 in the en bank analysis of the case, and we have set that

22 forward in our arguments.

23

So the Sixth Circuit has clearly established that

24 sexual orientation is not a suspect classification and has

25 continuously rejected to -- rejected any heightened level

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1 of scrutiny to claims based on sexual orientation, most

2 recently in the Davis case that we have cited and have

3 attached for this Court's review, in that it's an unpublished

4 opinion. So the level of scrutiny involved in this case that

5 must applied is clearly rational basis.

6

The second cornerstone of their argument that fails

7 is Plaintiffs' assertion that they are similarly situated in

8 all relevant respects to married public employees as opposed

9 to single public employees.

10

Now, the basis for this argument is unclear, at least

11 in terms of the legal context, in my opinion, and hopefully in

12 the Court's, because the Plaintiffs very clearly, when you

13 apply the similarly-situated test developed by the United

14 States Supreme Court, are more closely associated with single

15 employees as opposed to married employees.

16

The Plaintiffs do not have a legally recognized

17 relationship under Michigan law. The existence of a

18 relationship similar to marriage, which the Plaintiffs spend

19 considerable amount of time in discussing and establishing

20 both through the allegations in their Complaint and the

21 fact submissions in support of their motion for preliminary

22 injunction, is not the basis upon which the health coverage

23 that's in dispute here is being provided.

24

So the existence of a relationship between the

25 Plaintiff employee the Plaintiff partner is not relevant to

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1 the determination for purposes of equal protection and the

2 rational basis review as to whether they are similarly

3 situated or not.

4

Similarly situated, they are similarly situated to

5 employees who have opposite-sex partners or no relationships

6 at all, such as roommates, friends or some sort of platonic

7 relationship, who will also clearly lose their benefits in the

8 same context as Ms. Jach and Ms. Ramber just discussed with

9 the Court.

10

And interestingly enough, your Honor, in the context

11 of the questions presented, that I presented to Ms. Jach, I

12 would -- I would point the Court to Plaintiffs' Exhibit V-1,

13 which is the declaration from the Human Resources Director

14 from the City of Kalamazoo, which indicates that currently

15 there are six participants who are OEA's in their benefits

16 coverage program, three of whom are the same-sex partners of

17 an employee, three who are not, who will also lose their

18 benefits in the same way that the Plaintiffs in this lawsuit

19 will lose theirs.

20

Additionally, the Plaintiffs argue that they are

21 different, or attempt to set themselves apart from those

22 opposite-sex partners or friends or roommates or whatever

23 the basis is upon which those benefits are provided, because

24 they contend that the opposite-sex partner can marry, whereas

25 they cannot. That is really a specious argument and a red

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1 herring for purposes of this analysis, because, again, the

2 basis under which these benefits are provided is not dependent

3 on the existence of a relationship, very clearly.

4

Second, not all opposite-sex partners would or want

5 to marry.

6

Third, opposite-sex individuals who may be receiving

7 benefits as an OEA could have a platonic relationship, as I

8 said before, could simply be a friend, could simply be a

9 roommate. They will lose their benefits. So marriage doesn't

10 solve that problem for them any more than it will solve the

11 problem for the Plaintiffs with respect to the loss of their

12 benefits.

13

There clearly is no discriminatory purpose with

14 respect to the elimination of these benefits between these

15 classifications of individuals as the Legislature has drawn

16 it, and no disparate impact based on the application of

17 Public Act 297, as the Plaintiffs are treated identically to

18 those opposite-sex individuals who have qualifying OEA, or

19 other eligible adult individuals, let me put it that way for

20 the record, who are currently receiving benefits.

21

The third cornerstone, faulty cornerstone of the

22 Plaintiffs' argument is that Public Act 297 is not rationally

23 related to any legitimate State interest.

24

Now, the State has argued essentially three

25 legitimate State interests. The first being cost savings,

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1 which Plaintiffs argue, based on the line of reasoning out of

2 the Ninth Circuit in the Collins/Diaz series of cases, that

3 any cost savings to the State are so de minimis as to have no

4 legitimate purpose. However, that requires this Court to

5 again apply a faulty analysis, the same faulty analysis the

6 Ninth Circuit applied, in that it requires you to recognize

7 that the equal protection analysis sets a floor, sets a

8 mathematical floor when analyzing this type of an economic

9 interest.

10

That's not the burden in terms of the economic -- of

11 the equal protection argument, and the State doesn't have to

12 establish that there is a specific or a certain amount of

13 economic benefit or cost savings that would occur.

14

If, in fact, it is a legitimate rationale or a

15 legitimate reason, and that is, cost savings, then no amount

16 of cost savings is determinative of whether or not it complies

17 with this equal protection analysis.

18

So the fact that the State currently may not receive

19 a direct benefit or cost savings is clearly irrelevant given

20 how the equal protection analysis is applied and the

21 presumptions that this Court must make with respect to this

22 statute. The Court must presume that this statute is

23 constitutional and must presume that the State has expressed

24 and demonstrated significant and substantial and legitimate

25 State interests and rationale in support of this statute.

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1

Second, this statute furthers the State's clear

2 policies with respect to marriage. Also a legitimate State

3 interest, also most recently recognized by the United States

4 Supreme Court as an interest that is clearly within the

5 traditional and historic police powers and authority of the

6 State. The State has an interest in protecting marriage and

7 marriage relationships and this statute moves in relation to

8 its -- the State's constitutional protection in Article I,

9 Section 25, to serve that purpose.

10

Third, and which the Plaintiffs completely ignore,

11 this statute isn't a stand-alone, singular legislative

12 enactment. This statute is part of a larger legislative

13 agenda and package intended and focused on restructuring

14 public employment, public -- the public employer and public

15 employee relationship. It's the employer's obligations and

16 the costs associated with operating that public employment.

17

As we have set out in our brief over the past two to

18 two and-a-half years, the Legislature and the Governor have

19 made -- have initiated and enacted substantial litigation

20 directed at the restructuring of public employment and the

21 costs associated with public employment, including benefits

22 provided to public employees, both at the local and at the

23 State level.

24

And this statute, when analyzed in the context of

25 these three legitimate purposes and legitimate interests, is

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1 rational and is directly related to those legitimate interests

2 and meets the basic test of constitutionality applicable under

3 this equal protection analysis.

4

Fourth, Plaintiffs allege and argue that Public

5 Act 297 is motivated by animus. And to support that argument

6 they first assert that because it has no legitimate -- it

7 provides no legitimate cost savings, it can have no legitimate

8 purpose, which is completely incorrect. Even if the Court

9 concludes that the stated purpose of cost savings may not

10 be -- may not exist, the Court can justify and find the

11 statute to be constitutional under any conceivable rational

12 basis, and the State has offered two additional that support

13 this statute.

14

Plaintiffs also argue that the structure of the

15 statute, the history that predated this statute, and

16 specifically, legislative comment outside of the actual

17 legislative forum, demonstrate a specific animus in adopting

18 this statute, all of which is unsupported here by this record

19 and by Plaintiffs' facts and argument.

20

The title and plain language of this statute clearly

21 demonstrates the intent here of the Legislature and of the

22 Governor in enacting this bill is to create and work -- take

23 an opportunity to, as I say, restructure public government and

24 the relationship between a public employer and its public

25 employees as part of a larger overall legislative initiative

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1 that has been undergone in this State for the past two years

2 to address both economic reality and the financial stability

3 issues of many of the public employers in this State, all of

4 which does have a significant impact on costs, the process,

5 the programs and the ability of the State to operate, to

6 secure monies, and to protect the public fisc, all of which

7 is completely ignored by the Plaintiffs, the Plaintiffs'

8 argument, but is clearly within the body of rationale and the

9 reasoning that this Court must consider in examining whether

10 or not this Public Act is motivated by animus.

11

Plaintiffs' reliance on legislative statements as

12 demonstrating animus, too, is clearly erroneous. As we have

13 argued in the brief, the Supreme Court and the Sixth Circuit

14 have repeatedly rejected resort to the individual statements

15 outside of the legislative context of legislators as

16 demonstrating or indicative of the overall legislative intent

17 and that's exactly what the Plaintiffs are doing here.

18

And most interestingly, your Honor, the vast

19 majority, if not all of the statements relied on and pointed

20 to by the Plaintiffs, don't even pertain to Public Act 297.

21 When you examine their Exhibits G-1 through G-11, all of which

22 are newspaper reports or press releases attributing statements

23 to individual legislators, all relate to the State's Civil

24 Service Commission's adoption of its other eligible adult

25 policy to provide benefits to other eligible adults and the

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1 Legislature's failure to override, or for lack of a better

2 word, veto that policy. They do not relate to Public Act 297.

3

And those statements that the Plaintiffs point to,

4 even if they show or have one in the context of 297, doesn't

5 state or support a finding of animus directed to anything

6 other than the domestic benefit or the provision of the

7 domestic benefit and its impact on Government budgets and the

8 ability to restore financial and fiscal stability to this

9 State.

10

They don't express an animus directed toward the

11 recipients of those benefits. They -- they express a dislike

12 for the benefit itself because of the impact that it has on

13 the fiscal stability and the costs associated with the

14 operation of government.

15

Analyzing the equal protection claim, then, in the

16 context of those four cornerstones and the failures of their

17 arguments and their facts to support any findings, reasonable

18 findings by this Court to conclude that the Public Act 297

19 lacks a rational basis or, in fact, is representative of a

20 discriminatory animus on the part of the Legislature and the

21 Government, this equal protection claim must fail.

22

Similarly, Plaintiffs' due process claim fails for

23 this principal reason: Plaintiffs' claim is premised not on

24 a denial of the benefit, but on an alleged impact on their

25 fundamental right to form and maintain intimate relations.

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1

There hasn't been any testimony here today, nor is

2 there any testimony in any of the declarations that have

3 presented -- been presented that Public Act 297 has impacted

4 any of the Plaintiffs' relationships.

5

THE COURT: I don't think I need any additional

6 argument on the due process argument.

7

MS. NELSON: Thank you, your Honor.

8

THE COURT: Or on the due process claim. I'm content

9 with the briefing on that.

10

MS. NELSON: Thank you.

11

With respect to the preliminary injunction motion,

12 would you -- would you like me to address those elements, the

13 other elements besides the likelihood of merits, the merits?

14

THE COURT: Well, I'm not going to let you do it

15 twice. If you want to do it now, you won't be able to

16 respond.

17

MS. NELSON: All right. Thank you, your Honor.

18

THE COURT: All right.

19

Ms. Goad, are you responding to the motion to

20 dismiss?

21

MS. GOAD: I am, your Honor.

22

THE COURT: You may proceed.

23

MS. GOAD: Thank you, your Honor.

24

Since Ms. Nelson started out speaking of the standard

25 of review under equal protection, I want to do the same.

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1

As articulated in our papers, Plaintiffs believe that

2 ultimately rational basis review may not be the appropriate

3 standard to apply to a sexual orientation classification, but

4 we recognize the law on the books in the Sixth Circuit, and

5 I'm totally content to focus today on rational basis review,

6 because the statute lacks any plausible justification even

7 under rational basis review.

8

Under Sixth Circuit case law, like Scarbrough and

9 the Davis case that Ms. Nelson just referenced, the Act is

10 unconstitutional if Plaintiffs can either establish that

11 it was motivated by animus or can negative every conceivable

12 rational basis. Here Plaintiffs have done both.

13

Even if the Court were to conclude that this Act

14 was not motivated by anti-gay hatred, the lack of a truly

15 legitimate rational basis dooms it.

16

Looking first at animus, it is no accident that this

17 law is causing harm to people like Barbara Ramber and JoLinda

18 Jach and the rest of these Plaintiff families. Your Honor, it

19 was not named the Roommate Restriction Act. Make no mistake,

20 this Act was intended to harm people, and particular ly to

21 harm gay and lesbian people. The animus involved is clear not

22 only from the name, not only from its reference to a marriage

23 classification, it is facially discriminatory for those

24 reasons.

25

But even if it were not, plenty of other evidence

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1 on this record would indicate the presence of intentional

2 discrimination from the statements of legislators

3 contemporaneous to the passage of this Act, which are relevant

4 under Arlington Heights and City of Parma, a number of other

5 cases. But the bizarre line drawing in the Act itself, the

6 way that people who live together cannot retain benefits,

7 people who live next door to one another can; a partner of

8 20 years with no other form of support is denied benefits, a

9 cousin or an uncle who is independently wealthy is allowed to

10 keep benefits.

11

Further, the Act's place within a long history of

12 sometimes bitter controversy over gay and lesbian family

13 benefits in Michigan.

14

Of course, the effects of the statute are also

15 discriminatory, just as they were intended, to exclude almost

16 all same-sex partners from access to benefits.

17

THE COURT: Is effects a relevant consideration?

18

MS. GOAD: It is, your Honor. Under, for example,

19 Arlington Heights, it is one of several appropriate factors

20 to consider in determining intent.

21

THE COURT: All right. But this is a -- is a

22 challenge, a facial challenge to the statute, correct?

23

MS. GOAD: It's both.

24

THE COURT: Not an as-applied challenge.

25

MS. GOAD: Your Honor, we do believe that this is a

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1 facially discriminatory statute, and that the things I just

2 listed in the record illustrate that the entire thing should

3 be struck down as unconstitutional, however, we would argue

4 in the alternative that it's unconstitutional as applied to

5 same-sex committed couples, given their particular status as

6 similarly situated to heterosexual married couples who are

7 able to retain benefits.

8

THE COURT: Well, since there has been no effort to

9 certify a class, then the relief would be limited to the named

10 Plaintiffs, if that were the rationale, is that correct?

11

MS. GOAD: Your Honor, that is not our understanding

12 under Sixth Circuit equal protection case law. We have reason

13 to believe that there are a number of other affected families

14 both at Plaintiffs' same employers and at approximately six

15 or seven other employers around the State that offer the

16 same type of benefit programs. It is our understanding that

17 even if the statute were found unconstitutional as applied

18 to same-sex couples, that that relief, the appropriate

19 scope of an injunction or declaration would cover all

20 similarly-situated families.

21

THE COURT: Did you brief that?

22

MS. GOAD: We did, your Honor, although if this is a

23 topic of particular interest to the Court, we can pursue it

24 further, if you would be interested in supplemental briefing.

25

THE COURT: Not particularly. I'm just wondering

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1 where you are taking the argument, because I thought the main

2 thrust was really a facial challenge to the statute.

3

MS. GOAD: That is correct, your Honor. And of

4 course, there are a number of Supreme Court cases in which

5 statutes were found unconstitutional facially without

6 applying the Salerno test of demonstrating that they are

7 unconstitutional in every possible factual scenario. That's

8 the same type of situation we have here, analogous to Adarand

9 or Romer or Seattle School District.

10

This Act singles out the family relationships of gay

11 and lesbian employees and denies them and only them family

12 health insurance benefits.

13

Heterosexual couples can marry to maintain coverage.

14 Same-sex couples, of course, do not have that option in

15 Michigan.

16

Ms. Nelson just rearticulated the State's arguments

17 that this Act purportedly furthers State interests in cost

18 savings, averting financial insolvency and protecting

19 traditional marriage, however, once we explore the relation

20 between each of those purported justifications and the object

21 to be obtained -- excuse me -- between the classification that

22 was adopted and each of those purported justifications, as

23 Romer suggests, that relation is lacking in each case, and

24 thus, the Act has no actual rational basis.

25

First looking at cost, we have submitted affidavits

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1 from Dr. Lee Badgett, as an expert economist, and an extensive

2 factual record establishing that this law does not reduce

3 expenditures for the State of Michigan.

4

Ms. Nelson also appeared to just concede there is no

5 evidence that it saves costs.

6

To the extent it is removing a small, targeted group

7 of people --

8

THE COURT: I didn't hear that concession. I

9 understood her argument to be that, even if it didn't, the

10 other two prongs of her support would be sufficient to

11 establish a rational basis. I didn't understand her to say

12 that there is no cost savings.

13

In fact, what I understood her to say is that there

14 was no constitutional floor by -- established by equal

15 protection jurisprudence, but rather, if there is any cost

16 savings at all, the amount is irrelevant in order to find a

17 rational basis. Isn't that what you understand her to say?

18

MS. GOAD: I believe that was part of it, your Honor,

19 and I'm very happy to address that.

20

THE COURT: All right.

21

MS. GOAD: First of all, it's an attenuated

22 justification, because the State is attempting to take credit

23 for cost savings that were actually incurred by localities,

24 school districts, colleges, et cetera. And those employers

25 have stated very clearly they don't want to accrue that type

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1 of purported savings. They have chosen to undertake OQA

2 benefits programs, other qualified adults, for some

3 combination of fairness and equity reasons, or because of

4 the economic benefits that these programs bring in terms of

5 recruiting and retaining the best talent.

6

Significantly, the State has already acted through

7 neutral and nondiscriminatory means, as Ms. Nelson alluded

8 to, to control the costs of local employee benefit programs.

9 They have set caps on per capita spending through things like

10 Public Act 152 of last year, and that generic, universally

11 applicable approach, actually saving costs without targeting

12 any particular embattled minorities, contrasts sharply with

13 the Domestic Partner Benefit Restriction Act and its narrow

14 focus on denying coverage to a small subset of families.

15

There is also a significant constitutional problem

16 with trying to defend a statute based on defense of the public

17 fisc in a context where the only benefit to the public fisc is

18 arbitrary exclusion of a minority. The State is not entitled

19 to protect the public fisc by drawing an invidious distinction

20 between its classes of citizens, as the Supreme Court said in

21 Maricopa County.

22

The Arizona decision which was also previously

23 mentioned, Collins v Brewer, determined that an Arizona

24 statute barring domestic partner benefits for State employees

25 lacked a rational basis, even though that statute did result

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1 in a small direct cost savings to the State of Arizona. That

2 was inadequate to the District of Arizona and the Ninth

3 Circuit. And here, where cost savings appear to be negative,

4 the rational basis is even more clearly not present.

5

This classification and its purported cost savings

6 are analogous to those of the food stamp amendments in the

7 Moreno case. This Act is engaging in absurd line drawing.

8 And the way that its subsections effectively allow employers,

9 if they choose, to maintain coverage for so many people, while

10 cutting it off only for same-sex domestic partners, make the

11 State's cost justification implausible.

12

Turning next to protecting marriage, the people hurt

13 by this law are same-sex couples. They are not permitted to

14 marry in Michigan, under the 2004 amendment and the statutes

15 on the books then and now. Taking away these people's health

16 insurance could not possibly motivate them to get married.

17 That option is already off the table.

18

Rather than furthering traditional marriage, which

19 the State has not actually established any reason that

20 traditional marriage needs to be protected through something

21 like this, the Act is penalizing people for whom marriage was

22 already not an option, which is an attenuated, implausible

23 rationale.

24

Finally, the State has offered fiscal integrity or

25 prevention of insolvency as a basis, but that also is an

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1 incoherent one. All of these benefit programs were offered

2 voluntarily by public employers within the State.

3

For support, I would turn to the amicus brief of the

4 City of Ann Arbor which has articulated a number of reasons

5 why that City, for example, found it appropriate to offer the

6 benefits programs, and why choice of compensation programs

7 should be in the purview of local government officials.

8

As Dr. Badgett's declaration confirms, as well

9 as the other amicus brief from the business community in

10 Michigan, the type of benefits at issue here tend to be a

11 good investment. And more importantly, the State has not

12 made any showing that any employer actually offering an

13 OQA program was suffering from financial instability. This

14 is a red herring, as well as an attenuated rationale analogous

15 to what was rejected in Cleveland Living Center.

16

Because the statute reflects intentional

17 discrimination against gays and lesbians and lacks any

18 plausible legitimate justification, it's unconstitutional

19 under equal protection.

20

And I want to turn briefly back to what Defendant

21 had to say about similarly situated individuals. Each of

22 the Plaintiff couples have been in a committed, loving

23 relationship for a least eight years, in some cases more than

24 twenty. They are similarly situated in every relevant respect

25 to their co-workers and the spouses of those co-workers who

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44

1 retain eligibility for coverage. They work in parallel jobs.

2 They otherwise receive equal compensation. And the State has

3 not made any showing of a meaningful or relevant distinction.

4

There is also a question raised by the State as to

5 the discriminatory purpose of the statute, and I would again

6 recommend the five factor analysis in Village of Arlington

7 Heights to articulate what Plaintiffs believe is a clear

8 record of discriminatory intent here between the long history

9 of political controversy over same-sex benefits, the

10 statements of legislators, some of which were sparked directly

11 by the State's Civil Service Commission decision to offer a

12 similar program of benefits to State employees, other eligible

13 adult individuals, but they are still relevant to establishing

14 the intent of those same legislators in voting on this Act a

15 matter of weeks or months later.

16

Further, the classifications drawn in the statute

17 speak for themselves. The way that so many people are able

18 to retain access to coverage, while a small minority are

19 excluded, it's implausible to have ever thought this would

20 be an effective cost savings measure, an effective fiscal

21 integrity measure, or an effective means of protecting

22 marriage.

23

And I think I understood the Court to be satisfied

24 with the briefing on substantive due process, in which case I

25 won't take up more time with it.

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45

1

THE COURT: All right. I think, Ms. Goad, that is --

2 your argument is responsive, of course, to the State's motion

3 to dismiss, but also addresses one of the components of the

4 preliminary injunction test, which is the likelihood of

5 success on the merits, and I think I would ask you to then

6 address the preliminary injunction motion and focus on the

7 other three, and then I'll hear from Ms. Nelson on that and

8 give you a chance to respond.

9

MS. GOAD: Absolutely, your Honor.

10

Again, hitting only the highlights.

11

THE COURT: You were the one that was to argue that

12 motion, right?

13

MS. GOAD: Yes, your Honor.

14

THE COURT: All right.

15

MS. GOAD: Let me speak first to the harm aspect of

16 the preliminary injunction standard. By taking away benefits,

17 this law is actively and presently harming gay and lesbian

18 people, including Plaintiff Michelle Johnson, who has already

19 lost her health insurance, as well as the two other Plaintiffs

20 who will lose their coverage on dates certain later this year,

21 as you heard from Barbara Ramber today.

22

THE COURT: Well, the State's argument is one, as I

23 understand it, that economic harm cannot really furnish proof

24 of irreparable harm, and if anybody wants coverage they can

25 just go buy it. That is what I understand the State's

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46

1 position to be. Do you want to address that?

2

MS. GOAD: Absolutely, your Honor.

3

First of all, Plaintiffs are alleging constitutional

4 injury, and that alone constitutes irreparable harm under

5 Bonnell and a number of other cases.

6

THE COURT: Oh, you mean simply the denial of equal

7 protection.

8

MS. GOAD: The denial of a constitutional right, yes.

9 But beyond that, there is a long line of cases holding that

10 denial of health insurance or even denial of affordable health

11 insurance in situations where premiums or co-pays suddenly

12 rise to a level families involved cannot pay constitutes

13 irreparable harm. That was the holding of the Sixth Circuit

14 in Wood versus Detroit Diesel. That case cites a number of

15 others, including Yolton and Golden.

16

And as articulated there, the loss of health

17 insurance or the loss of meaningful access to health

18 insurance, where it's too expensive for the family to attain,

19 like Ms. Jach and Ms. Ramber spoke to, that situation forces

20 families to choose between life's basic necessities. And

21 given that necessity of making a choice in the moment between

22 whether to cover a health need or cover some other family

23 need, that is an irreparable injury because the choice can

24 never be undone.

25

Further, Plaintiffs have articulated both today and

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47

1 in their declarations, in addition to financial harm and

2 financial stress, there's emotional stress imposed by this

3 Act both after and before the denial of coverage; that, also,

4 we would argue is irreparable harm.

5

And further, given that we're talking about health

6 insurance, if a family has to choose to forgo health care,

7 whether because health insurance was unavailable or the type

8 of health insurance attained, as many of the Plaintiffs'

9 families have testified, if they are only able to access a

10 high deductible plan or a plan that excludes their preexisting

11 conditions, in any of those scenarios, if they have to forgo

12 treatment, the medical harms may well be irreparable.

13

So we have already spoken to likelihood of success on

14 the merits. I can briefly address the remaining two factors

15 of the preliminary injunction standard.

16

The balance of the equities here clearly tilts in

17 favor of enjoining the Act, given the harms this law is

18 causing to people like the Plaintiffs in contrast to the lack

19 of any demonstrated harm to the State from ceasing enforcement

20 as addressed in discussing their purported rational bases.

21

Finally, an injunction here serves the public

22 interest as shown by statements on the record from several

23 of the Plaintiffs' employers that they would much prefer

24 to continue offering OQA benefits for a number of reasons,

25 given the State's inability to show that its interests are

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1 meaningfully furthered by having this Act in place, and also

2 given the case law establishing that the public has an

3 interest in ending an unconstitutional State action.

4

So for all of these reasons, Plaintiffs respectfully

5 ask for preliminary injunction against any further enforcement

6 of this law which intentionally discriminates against an

7 already embattled minority.

8

THE COURT: Thank you, Ms. Goad.

9

Any response, Ms. Nelson?

10

MS. NELSON: Yes, your Honor.

11

The Court is correct with respect to the additional

12 argument on the irreparable harm, that what we're talking

13 about here is economic injury and nothing more, and that does

14 not address irreparability, and even in the context of the

15 Detroit Diesel case, because it is clear here from this

16 testimony that, first of all, the benefits will not be lost

17 until December 31st with respect to Ms. Jach and her partner,

18 Ms. Ramber.

19

Essentially, the only Plaintiffs who have lost

20 benefits are Ms. Miller and Ms. Johnson, who work for

21 Kalamazoo Valley Community College. They -- Ms. Johnson

22 was covered only for a brief period from August 1st until

23 December 31st under a pilot program, and the Community College

24 determined not to continue the pilot program as early as

25 October 1, when they engaged in collective bargaining, and

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49

1 did not include that as a matter of bargaining for their

2 contract.

3

That's set forth in the testimony of Ms. Bohnet,

4 which is Plaintiffs' Exhibit 2-B, and Ms. -- Ms. Schlack, I

5 think is how it's pronounced, which is Plaintiffs' Exhibit

6 2-A. And we also cite to that in our brief.

7

From the standpoint of the alleged economic injury,

8 in that the insurance is unaffordable, and therefore, that

9 creates an irreparable harm because it can never be remedied,

10 neither Ms. Jach nor Ms. Ramber indicated they could not

11 afford to buy health insurance. They might not have been able

12 to buy a level of insurance or the Cadillac coverage that is

13 being provided to them by the City of Kalamazoo, but there

14 are many other individuals who are impacted by this statute

15 who are in the identical situation who are not same-sex

16 partners, who are opposite-sex partners, or have other

17 relationships that we have already discussed and identified

18 for the Court that have received or are impacted in the same

19 way as the Plaintiffs in this case.

20

In addition, there are any number of individuals in

21 today's society who are unable to purchase insurance of any

22 amount, unlike the Plaintiffs who testified here today. This

23 Court, I believe, would have to conclude that as a matter of

24 law the denial of health coverage by a public employer or by

25 virtually any employer constitutes irreparable harm, and that

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1 clearly, clearly cannot and should not be the case, because

2 then the Court would, in effect, be recognizing a fundamental

3 right to the provision of health coverage, which clearly is

4 not supported either under the due process analysis or the

5 equal protection analysis presented by the Plaintiffs here.

6

Additionally, your Honor, with respect to the balance

7 of equities, the motivation of public employers for purposes

8 of providing these benefits is clearly irrelevant to this

9 analysis. Public employers are creatures of the State. The

10 State governs and gives them what authority it wants them to

11 have or develops and the State can change that authority.

12 It's not bound in any way to leave in place any particular

13 authority, any particular financing, any particular program

14 that it extends to these local units of Government.

15

Now, the fact that the Plaintiffs are motivated --

16 or I'm sorry -- the Plaintiffs' employers are motivated by a

17 sense of needing to provide these to their employees to keep

18 them, to keep good employees, that's certainly understandable,

19 or to motivate others to be able to attract quality employees,

20 that's certainly understandable, too, but that isn't different

21 than any other employer in the State of Michigan, whether

22 public or private or at any level of public employment in

23 terms of the benefits that might be provided. And it

24 certainly isn't sufficient to tip the balance of interests

25 here in the Plaintiffs' favor as opposed to the preservation

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51

1 of financial -- of monies in today's situation and status with

2 many of these public employers.

3

For example, the City, or the Ann Arbor Public

4 Schools are having difficulty with their budgets and what --

5 if they aren't spending money on providing benefits to other

6 eligible adults, whether same sex or opposite sex or whatever

7 the relationship, that money can be spent somewhere else. And

8 that's clearly the point here and that's the balance. That's

9 the point of the fulcrum that we're talking about, and those

10 are the savings and those are the interests that the State has

11 which clearly outweigh the issuance or the balance of harms to

12 the Plaintiffs here, and clearly fail to support Plaintiffs'

13 analysis, the issuance of a preliminary injunction, where

14 Plaintiffs won't even be losing their benefits until

15 December 31st. And this is August 7th.

16

And I understand it's going to take some time for

17 the Court to render a decision and issue an opinion in this

18 case, but certainly the time frame that we have here does not,

19 at this point, at this point, justify the issuance of a

20 preliminary injunction based on the facts and the records

21 extant.

22

THE COURT: Thank you.

23

Any follow-up, Ms. Goad?

24

MS. GOAD: Yes, your Honor.

25

Looking first to the question of timing and imminence

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52

1 of irreparable harm, as I have explained before, the Plaintiff

2 families and other similarly-situated families are already

3 enduring both the constitutional injury threat, as well as

4 the financial and emotional stress, and in some cases are

5 having to rearrange their family lives in order to address the

6 impending loss of affordable health coverage. Barbara Ramber

7 and JoLinda Jach spoke to that.

8

I also wanted to mention, your Honor, we attempted

9 to submit supplemental declarations last week from another

10 example of an affected couple, having just heard from them

11 quite recently. This is a couple, Kelli and Stacey Weller,

12 one of whom is a teacher at the West Bloomfield School

13 District. The teachers contract is up at the end of August,

14 so Kelly Weller is scheduled to lose her benefits when that

15 contract renews at the end of August.

16

THE COURT: They are not named Plaintiffs, is that

17 correct?

18

MS. GOAD: That is correct, your Honor. But that

19 goes to my previous point about the appropriate scope of

20 relief extending to all similarly-situated families.

21

The District Court in the Collins v Brewer case,

22 which, as I have noted, there are differences and this is in

23 some ways an easier case, but some of the central issues were

24 the same, and that injunction was entered in the summer, in

25 advance of an anticipated loss of coverage at the end of the

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53

1 year.

2

Given the fulsome report that we have presented, it

3 would not seem appropriate to delay entry of injunctive relief

4 simply because the date for which some named Plaintiffs will

5 be losing coverage has not yet arrived. And Michelle Johnson

6 having already lost coverage, of course, further goes to the

7 appropriate timing.

8

On the point about some other people lacking health

9 insurance and some people being able to afford other health

10 insurance options, Plaintiffs respectfully submit that that

11 is irrelevant. The issue here is discriminatory denial of

12 benefits where employers have voluntarily made them available.

13

Plaintiffs are not seeking to compel any other

14 employer to create an OQA program, only to secure the

15 continued existence of those that public employers have

16 chosen to establish.

17

And Defendant's argument addressed the notion that

18 programs had been extended by the State to other public

19 employers, which is not the case. Programs were entirely

20 within the purview of local employers. The existence of such

21 a program or the existence of any family benefits program for

22 employees is not something the State controls. It's not

23 something that goes into the State's formula for funding

24 localities.

25

More general, neutral, appropriate formulas for

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54

1 controlling the costs do go into things like the Economic

2 Vitality Incentive Program, but that's conceptually different

3 from discriminatory denial of benefits to the few.

4

Finally, on the question of the public interest and

5 whether it's relevant that the public employers of these

6 Plaintiffs have stepped up to articulate their reasons, I

7 would submit that the feelings of the Deputy Superintendent

8 of Ann Arbor Public Schools, the City Manager of Kalamazoo,

9 the Controller of Ingham County, and the President of

10 Kalamazoo Valley Community College are relevant to assessing

11 the public interest. But the public interest is always harmed

12 where unconstitutional State action is being allowed to

13 continue. So that's our primary basis for arguing that the

14 public interest favors an injunction.

15

Further, the State has not been able to articulate

16 any meaningful harm it is incurring from the existence of this

17 Act -- excuse me -- from the injunction of this Act, thus,

18 they have made no showing that a public interest would not

19 favor the injunction.

20

THE COURT: Anything further?

21

Ms. Goad, I say, anything further?

22

MS. GOAD: No, sir.

23

THE COURT: Yes.

24

MS. NELSON: Your Honor, would you care for briefing

25 on the injunction, on the scope of the injunction issue?

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55

1 Because I believe Kowalski versus Tesmer resolved that issue

2 for the Court.

3

THE COURT: No, I don't need any additional briefing.

4

MS. NELSON: Thank you.

5

THE COURT: Mr. Knight, did you have something else?

6

MR. KNIGHT: I'm sorry. I just was going to offer to

7 do that, if you would like briefing on this issue of the scope

8 of the injunction.

9

I think Ms. Goad said earlier that we had addressed

10 it. I don't think we fully addressed that issue in the brief.

11 It is true that the Diaz case actually issued a broader

12 injunction than Ms. Goad has talked about, but we could

13 certainly brief that issue if your Honor would like us to.

14

THE COURT: Well, you know, I'm -- I'm not certain

15 as to the direction I'm going with this case yet, but it seems

16 to me that if your arguments are not persuasive with respect

17 to a facial challenge, the as-applied challenge, I don't know

18 that it would help you that much under the circumstances, so

19 as far as the scope of the injunction is concerned, I don't

20 think I need additional briefing from you on that point.

21

MR. KNIGHT: There is case law and we do have --

22 we have researched this issue. There is case law for

23 as-applied challenges where the relief was broader than just

24 the Plaintiffs; that is, if there was a class of people who

25 were affected in the same way because of an unconstitutional

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56

1 statute, the courts have, in many other cases, they have ruled

2 that it's unconstitutional as applied to all people of that

3 sort.

4

THE COURT: Right. I get the sense that both

5 sides have something else to say on this, so under those

6 circumstances, I will permit you each to file simultaneous

7 supplemental briefs not to exceed five pages on the scope of

8 the relief.

9

MR. KNIGHT: Okay. Thank you, your Honor.

10

THE COURT: And you can do that by the 21st.

11

MR. KNIGHT: That's fine.

12

THE COURT: All right. Other than that, then, the

13 matter is submitted. I will get you a written decision.

14

Thank you for your arguments, Counsel.

15

MS. GOAD: Thank you, your Honor.

16

THE COURT: Recess court.

17

MS. NELSON: Thank you, your Honor.

18

THE CLERK: All rise. Court is now in recess.

19

(Proceedings adjourned at 3:06 p.m.)

20

*

*

*

21

22

23

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57

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2

CERTIFICATE OF COURT REPORTER

3

As an official court reporter for the United States

4

District Court, appointed pursuant to provisions of

5

Title 28, United States Code, Section 753, I do hereby

6

certify the foregoing is a correct transcript of the

7

proceedings in the above-entitled cause on the date

8

hereinbefore set forth.

9

10

s/ Rene L. Twedt

RENE L. TWEDT, CSR, RMR, CRR

11

Federal Official Court Reporter

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Bassett v Snyder - 12-10038

 
 2:12-cv-10038-DML-MJH Doc # 68 Filed 08/21/12 Pg 1 of 4 Pg ID 2912

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI DENISE MILLER and MICHELLE JOHNSON,

No. 2:12-cv-10038 HON. DAVID M. LAWSON

Plaintiffs, v

MAG. MICHAEL J. HLUCHANIUK

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan,

Defendant.

DEFENDANT’S SUPPLEMENTAL BRIEF SCOPE OF INJUNCTIVE RELIEF
Generally, neither a preliminary nor permanent injunction may grant relief to third parties or enjoin non-parties not controlled by or in privity with a name defendant. Tesmer v. Granholm, 333 F.3d 683, 701-702 (6th Cir. 2003); Sharpe v. Cureton, 319 F.3d 259, 273-274 (6th Cir. 2003); Warshak v. U.S., 532 F.3d 521, 531 (6th Cir. 2008). The cited cases have adopted the reasoning and analysis of three significant cases with respect to this issue. First, declaratory judgment is effective as to only the plaintiffs who obtained it. Thus, neither “declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” Doran v Salem Inn, Inc., 422 U.S. 922, 931; 95 S. Ct. 2561; 45 L.Ed. 2d 648 (1975). Second, when a class has not been certified, only the interests of the named plaintiff are of concern – a wrong

2:12-cv-10038-DML-MJH Doc # 68 Filed 08/21/12 Pg 2 of 4 Pg ID 2913
done to plaintiff in the past does not authorize prospective class-wide relief unless a class has been certified. McKenzie v. Chicago, 118 F.3d 552, 555 (7th Cir. 1997). Third, a declaratory judgment finding a state statute unconstitutional is binding only upon parties named in the action. YWCA of Princeton v. Kugler, 463 F.2d 203, 204 (3rd Cir. 1972).
Applying these general principles here compels the conclusion that a preliminary injunction, should one issue, may only benefit the named plaintiffs. In other words, the statute itself should not be preliminarily enjoined – that would effectively grant the relief sought in the complaint. Nor should benefits be restored to unnamed third parties through injunction. This would require enjoining unnamed parties and providing benefits to unnamed third-parties. Thus, if issued, a preliminary injunction should be limited to enjoining application of the challenged statute to the Plaintiffs only. Sharpe, 319 F.3d at 273; 532 F.3d at 531. Accord: Lee v. City of Columbus, Ohio, 2008 U.S. Dist. LEXIS 82078, *12-14 (6th Cir. 2008). (Attachment 1.) The limited scope of such a preliminary injunction comports with the applicable law; provides relief to the named Plaintiffs; and avoids unnecessarily enjoining the governmental units that provide the health coverage benefits to OEAs – each governmental unit may determine to voluntarily cease providing such benefits as opposed to the compelled cessation challenged here and an injunction directed to them would improperly prohibit such a choice.
A permanent injunction requires similar limitations. A declaratory judgment finding a state statute unconstitutional is binding only upon parties named in the action. Tesmer, 333 F.3d at 701 citing Doran, 463 422 U.S. at 931 and YWCA of
2

2:12-cv-10038-DML-MJH Doc # 68 Filed 08/21/12 Pg 3 of 4 Pg ID 2914
Princeton 463 F.3d at 204. “Thus under Doran, and authority from sister circuits, we hold that the declaration and injunction applies only insofar as it states the rights of the named attorney-plaintiffs.” Tesmer, Id. Again, “class-wide” relief is completely unnecessary to provide the named plaintiffs the relief to which they are entitled as prevailing parties. Sharpe, 319 F.3d at 273. Indeed, as with a preliminary injunction, such sweeping permanent relief would prevent a local government from voluntarily ceasing OEA benefits, an action Plaintiffs do not challenge.
While an injunction should be narrowly tailored to give only the relief to which named plaintiffs are entitled, particularly when, as here, no class action has been certified, at least one exception to this general rule has been recognized – if such breadth is necessary to give prevailing parties the relief to which they are entitled. Lee, 2008 U.S. Dist. LEXIS 82078 *14, *15 (citing Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)). As in the cited cases, this litigation does not present a case where broad relief is appropriate or required in either a preliminary or permanent injunction. It is possible to grant effective relief to the individually named Plaintiffs without covering those within a possible class. “It is not necessary to demand a change in how non-parties are treated in order to change how the named moving parties are treated.” Lee, Id. at * 15. Additionally, should the Court issue the requested declaratory judgment finding 2011 PA 297 unconstitutional, a permanent injunction enjoining Defendant’s enforcement of the statute provides sufficient and adequate relief. It also provides the local
3

2:12-cv-10038-DML-MJH Doc # 68 Filed 08/21/12 Pg 4 of 4 Pg ID 2915

governments the appropriate freedom and opportunity to voluntarily cease OEA

benefits should that be their individual decision, an action that is not challenged by

Plaintiffs.

Respectfully submitted,

BILL SCHUETTE Attorney General

Dated: August 21, 2012

s/ Margaret A. Nelson Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Attorney for Defendant Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

S:\PEET_Assignment_Control\Cases\Open\2012\Bassett, T - USDC-ED 2012-0001512-A\Supp Brief.doc
CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such.
s/Margaret A. Nelson______________________ Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Attorney for Defendant Michigan Department of Attorney General Public Employment, Elections & Tort Div P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Primary E-mail: nelsonm9@michigan.gov (P30342)

4

 
 2:12-cv-10038-DML-MJH Doc # 69 Filed 08/21/12 Pg 1 of 6 Pg ID 2929

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT et al.,

Plaintiffs,
vs.
RICHARD SNYDER, in his official capacity as Governor of the State of Michigan,

Case No. 2:12-cv-10038
Hon. David M. Lawson Mag. Michael J. Hluchaniuk

Defendant. ____________________________________
PLAINTIFFS’ SUPPLEMENTAL BRIEF ON THE APPROPRIATE SCOPE OF INJUNCTIVE RELIEF
The Public Employee Domestic Partner Benefit Restriction Act of 2011 (the “Act”)

violates the equal protection and due process rights of gay and lesbian Michigan public

employees and their same-sex domestic partners. The Court may strike the Act in its entirety

because it was motivated by an impermissible purpose and creates an invidious classification that

cannot meaningfully be severed. But even if the Court finds that the Act is unconstitutional only

as applied to Plaintiffs, the Court’s order enjoining its enforcement against Plaintiffs should

extend to other gay and lesbian public employees whose employers have chosen to make benefits available to them and their partners to prevent continued unconstitutional state action.1

ARGUMENT

I. The Court Can and Should Strike the Act in Its Entirety.

The Sixth Circuit has cited two paradigm examples of when it is appropriate to “take [a]

law off the books completely”: when the law draws an invidious classification and when it serves

1 Plaintiffs’ Amended Complaint and Motion for Preliminary Injunction, assert that the Act is unconstitutional both on its face and as applied to Plaintiffs and other similarly situated gay and lesbian couples. (See Am. Compl. (Dkt. No. 9) ¶¶ 76, 103, 110, 116, 123, 127; Mot. Prelim. Inj. (Dkt. No. 18) 5, 14–20)

1

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an unconstitutional purpose. See Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009). The Act suffers from both deficiencies. By explicitly incorporating a marriage classification that excludes same-sex domestic partners, the Act creates an invidious classification and serves an unconstitutional purpose that renders the law facially invalid. (See Mot. Prelim. Inj. 14–15) Discriminatory laws are facially invalid, even though they may apply to persons who are not members of the burdened group. E.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) (denying food stamps to households of unrelated persons could affect “hippies” but seriously burdened poor people).2
Moreover, the Act’s purposeful discrimination against same-sex domestic partners cannot “meaningfully be severed.” See Connection Distrib., 557 F.3d at 335. Courts “may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884 (1997). Here, the Act limits eligibility for family benefits to public employees’ spouses, IRS dependents, and relatives by blood or adoption. 2011 P.A. 297 (West 2012). To remedy the constitutional defect, the Court could either invalidate the entire Act or invalidate its use to prohibit benefits for same-sex domestic partners. However, since no specific provision of the Act deals with its application to same-sex domestic partners, an injunction limited to this application would require the Court to draft a limiting construction. “[W]hile a federal court may enjoin the operation of some provisions of a statute and leave others to operate, it cannot itself draft a new limiting condition, thus reframing the statute.” Id. at 1127–28; see also Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397
2 “[A]ny equal protection case . . . hinges on whether the statute uses an improper classification, apart from how it classifies the individual litigant.” Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 260 (1994). See also 13A Charles A. Wright et al., Federal Practice and Procedure § 3531.9-4 (3d ed. 2012) (“[E]qual protection carries with it a personal right not to be subject to discriminatory regulation.”)
2

2:12-cv-10038-DML-MJH Doc # 69 Filed 08/21/12 Pg 3 of 6 Pg ID 2931
(1988) (“[W]e will not rewrite a state law to conform it to constitutional requirements.”). Such redrafting requires the Court to make “policy choices usually made by the state legislature.” Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991). Complete invalidation avoids intrusion into the state’s legislative function and restores the status quo in which Michigan public entities may operate Other Qualified Adult benefits programs.3 Because the Act is premised on an impermissible classification, serves an unconstitutional purpose, and has a constitutional infirmity that cannot be severed without intruding into state and local governments’ legislative and policy-making functions, the Court can and should strike it entirely.
II. In the Alternative, the Court Should Enjoin the Act’s Enforcement Against All Gay and Lesbian Public Employees and Their Same-Sex Domestic Partners Whose Employers Have Chosen to Make Benefits Available to Them.
If the Court holds that the Act is unconstitutional only as applied to Plaintiffs, it should enjoin the Act’s application to all Michigan gay and lesbian public employees and their same-sex domestic partners whose employers have chosen to provide them health insurance benefits. In a civil rights case seeking equitable relief from an unconstitutional law, “[a]ny declaratory or injunctive relief will accrue to the benefit of others similarly situated.” Curry v. Dempsey, 520 F. Supp. 70, 75 (W.D. Mich. 1981) (emphasis added), rev’d on other grounds, 701 F.2d 580 (6th Cir. 1983); Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 130 (6th Cir. 1971) (noting that, even in non-class suits alleging class discrimination, courts should “protect the interests” of those similarly situated); Potts v. Flax, 313 F.2d 284, 289–90 (5th Cir. 1963) (holding that once a court finds unconstitutional discrimination, it “must order that it be discontinued,” and such an order applies to all similar individuals); 7A Wright et al., supra, § 1771 (noting that in cases such as this, “the requested relief generally will benefit not only the claimant but all other persons 3 Michigan public employers offering Other Qualified Adult benefits do not inquire whether
beneficiaries are employees’ same-sex domestic partners. (See Exs. B–E to Mot. Prelim. Inj.)
3

2:12-cv-10038-DML-MJH Doc # 69 Filed 08/21/12 Pg 4 of 6 Pg ID 2932
subject to the practice or the rule under attack”). Otherwise, the Court “would . . . contribute actively to the [prohibited] class discrimination,” which is impermissible. Potts, 313 F.2d at 289.
In Collins v. Brewer, individual plaintiffs challenged a law similar to the Act and obtained an injunction barring the Arizona governor from enforcing the law “to eliminate family insurance eligibility for lesbian and gay State employees, and their domestic partners and domestic partners’ children.” 727 F. Supp. 2d 797, 815 (D. Ariz. 2010). The court ordered that “Defendants are required to make available family health insurance coverage for lesbian and gay State employees, including plaintiffs. . . . to the same extent such benefits are made available to married State employees.” Id. (emphasis added). A Ninth Circuit panel affirmed the injunction as ordered, Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), and the Ninth Circuit denied Defendant’s petition for reconsideration and en banc review, 676 F.3d 823 (9th Cir. 2012).
Plaintiffs did not bring this case as a class action because injunctive relief on behalf of the five named couples will address the constitutional harm imposed by the Act on all similarly situated gay and lesbian public employees and their same-sex domestic partners. In fact, courts often deny class certification in such circumstances because “a class action is not necessary inasmuch as all the class members will benefit from any injunction issued on behalf of a single plaintiff.” 7A Wright et al., supra, § 1785.2; Craft v. Memphis Light, Gas, & Water Div., 534 F.2d 684, 686 (6th Cir. 1976) (affirming denial of class certification where “[n]o useful purpose would be served by permitting this case to proceed as a class action” because the relief would be class-wide in any event) (quoting Ihrke v. N. States Power Co., 459 F.2d 566, 572 (8th Cir. 1972)), aff’d 436 U.S. 1 (1978); see also Barton v. Saunders, 1991 WL 24651, at *3 (S.D. Ohio Jan. 14, 1991) (following Craft); Green v. Williams, 94 F.R.D. 238, 242 (E.D. Tenn. 1980) (same).
4

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III.

Kowalski Is Inapposite to the Question of the Appropriate Scope of Relief.

During the August 7, 2012 hearing in this case, Defendant’s attorney suggested that

Kowalski v. Tesmer, 543 U.S. 125 (2004), restricts the scope of injunction the Court may issue.

(Mot. Hearing Tr. at 54–55 (Ex. 1)) However, Kowalski is a standing case and merely holds that

“a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to

relief on the legal rights or interests of third parties.’” Kowalski, 543 U.S. at 129 (quoting Warth

v. Seldin, 422 U.S. 490, 499 (1975)). Plaintiffs here assert their own legal rights, not the legal

rights of third parties, and they plainly have standing. Kowalski says nothing about the proper

scope of injunctive relief and provides no counterweight to the authority Plaintiffs cite above.

CONCLUSION

The Court may and should enjoin enforcement of the Act or, alternatively, enjoin the

Act’s application to all gay and lesbian public employees and their committed same-sex partners

whose employers have chosen to extend benefits to them.

Dated: August 21, 2012

Respectfully submitted,

Michael J. Steinberg (P43085) Jay D. Kaplan (P38197) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, Michigan 28201 (313) 578-6814
John A. Knight American Civil Liberties Union Foundation 180 N. Michigan, 2300 Chicago, Illinois 60601 (312) 201-9740

s/ Amy E. Crawford Amanda C. Goad American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2627
Donna M. Welch, P.C. (admission pending) Bradley H. Weidenhammer (admission pending) Amy E. Crawford Kirkland & Ellis, LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000

Attorneys for Plaintiffs Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller, and Michelle Johnson

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2:12-cv-10038-DML-MJH Doc # 69 Filed 08/21/12 Pg 6 of 6 Pg ID 2934

CERTIFICATE OF SERVICE I hereby certify that on the 21st day of August, 2012, I caused Plaintiffs’ Supplemental
Brief on the Appropriate Scope of Injunctive Relief to be delivered by electronic filing to the
following counsel:
Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Michigan Department of Attorney General Public Employment, Elections & Tort Division
P.O. Box 30736 Lansing, MI 48909
(517) 373-6434 Attorneys for Defendant

Dated: August 21, 2012

/s/ Amy E. Crawford

 
 Bassett v. Snyder, 951 F.Supp.2d 939 (2013)

951 F.Supp.2d 939 United States District Court,
E.D. Michigan, Southern Division.
Theresa BASSETT, Carol Kennedy, Peter Ways, Joe Breakey, JoLinda Jach, Barbara Ramber,
Doak Bloss, Gerardo Ascheri, Michelle Johnson, and Denise Miller, Plaintiffs, v.
Governor Richard SNYDER, Defendant.
Case No. 12–10038. |
June 28, 2013.
Synopsis Background: Five same-sex couples in long-term relationships, one domestic partner in each of which was Michigan public employee, challenged constitutionality of that state’s “Public Act 297” prohibiting public employers from providing medical assistance and other fringe benefits to any person cohabiting with public employee unless that person was legally married to employee, or was legal dependent, or eligible to inherit under state’s intestacy laws, alleging that Act violated their rights under Equal Protection and Due Process Clauses. Plaintiffs moved for preliminary injunction to prevent law’s enforcement. Governor opposed preliminary injunction and filed motion to dismiss.

claim;
other relevant factors plainly militated in favor of preliminary injunction; and
proper scope of remedy was to enjoin wholesale enforcement of law.
Defendant’s motion granted in part and denied in part; plaintiff’s motion granted.
West Codenotes
Validity Called into Doubt M.C.L.A. §§ 15.581, 15.582, 15.583, 15.584, 15.585.
Attorneys and Law Firms
*945 Amanda C. Goad, American Civil Liberties Union Foundation, New York, NY, Amy E. Crawford, Bradley H. Weidenhammer, Donna M. Welch, Kirkland & Ellis LLP, John A. Knight, American Civil Liberties Union Foundation LGBT & Aids Project, Chicago, IL, Jay Kaplan, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, for Plaintiffs.
Margaret A. Nelson, Mark E. Donnelly, Michigan Department of Attorney General, Lansing, MI, for Defendant.

Holdings: The District Court, David M. Lawson, J., held that:
plaintiffs had constitutional and prudential standing to assert their claims;
claims in amended complaint were ripe for adjudication;
Burford abstention was manifestly improper;
plaintiffs failed to state viable substantive due process claim;
plaintiffs stated plausible claim that law violated Equal Protection Clause when rational basis for benefits limitations was fairly analyzed;
plaintiffs had shown likelihood of succeeding on that 1

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION
DAVID M. LAWSON, District Judge.
The plaintiffs in this case are five same-sex couples who allege that Michigan Public *946 Act 297 (2011) is unconstitutional because it violates their rights under the Equal Protection and Due Process Clauses. Public Act 297 prohibits public employers from providing medical and other fringe benefits to any person cohabitating with a public employee unless that person is legally married to the employee, or is a legal dependent, or eligible to inherit

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
under the State’s intestacy laws. The plaintiffs allege that the primary purpose of the law is to prohibit public employers from furnishing benefits to the same-sex partners of their employees, and therefore the Act denies their right to equal protection because it contains a discriminatory classification on the basis of sex and sexual orientation and is not rationally related to a legitimate state interest. The plaintiffs also argue that the act impermissibly burdens their fundamental right to intimate association and therefore violates their substantive due process rights. Many of the plaintiffs who are in relationships with public employees but not so employed themselves have lost their medical benefits, and the rest will do so shortly. They have moved for a preliminary injunction to prevent enforcement of the law.
The defendant—Michigan’s Governor—opposes the preliminary injunction and has filed a motion to dismiss, arguing that the Court should abstain from exercising jurisdiction, the plaintiffs lack standing, the plaintiffs’ claims are not ripe, and the plaintiffs have failed to plead either an equal protection or a substantive due process claim upon which relief can be granted. The Court heard oral argument on both motions on August 7, 2012. Thereafter, the Court allowed the parties to file supplemental briefs concerning the scope of the remedies available. The Court now finds that the plaintiffs have standing to assert their constitutional claims, the claims are ripe, and abstention is not appropriate. The Court also finds that the plaintiffs have not stated a viable substantive due process claim.
The equal protection claim is another matter. The plaintiffs argue that although Public Act 297 does not mention same-sex unions or describe same-sex partner benefits by name, the intended purpose of the law is to discriminate against same-sex couples on the basis of their sexual orientation without actually saying so. The defendant contends that the Act has no such purpose; instead, the intention behind passage of the law was to save money by restricting the scope of public employee benefits. The Court finds that the plaintiffs have stated a plausible claim that the law violates the Equal Protection Clause when the rational basis for the benefits limitations is fairly analyzed, and they have shown a likelihood of succeeding on that claim. The other relevant factors plainly militate in favor of a preliminary injunction barring enforcement of the law. Therefore, the Court will grant in part and deny in part the defendant’s motion to dismiss, and grant the plaintiffs’ motion for a preliminary injunction.
2

I.
A.
The plaintiffs in this case are five same-sex couples who have lived together in long-term relationships, residing in various Michigan communities. One domestic partner of each of the couples works for a public employer, such as a county, city, or school district. Those public employers provide fringe benefits, such as medical coverage, and historically have extended coverage to the domestic partners of the plaintiff-couples under the various collective bargaining agreements between the governmental units and their employees. Each of the public-employee plaintiffs is a skilled employee whose job duties are *947 equivalent to the duties of their heterosexual colleagues. They each have enjoyed a longterm, committed, and financially interdependent relationship with their respective domestic partner and would marry if Michigan law permitted same-sex couples to marry.
According to the complaint, before 2004, a number of Michigan public employers voluntarily provided health insurance benefits to same-sex domestic partners. In 2004, the Michigan constitution was amended to include article I, section 25, which 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.” Mich. Const. Art. 1, § 25 [hereinafter “the marriage amendment”]. In 2005, then Michigan attorney general Michael Cox issued an opinion on the City of Kalamazoo’s domestic partner benefits allowance. Cox opined that although the provision of benefits to same-sex domestic partners was not itself unlawful, state and local governments could not provide those benefits on the basis of a relationship “characterized by reference to the attributes of a marriage.” Constitutionality of City Providing Same–Sex Domestic Partnership Benefits, Mich. Att’y Gen. Op. 7171 (Mar. 16, 2005), available at http://www.ag.state.mi.us/opinion/datafiles/2000 s/op10247.htm (last visited May 31, 2013).
In 2006, a union group, various public employees, and their domestic partners filed a lawsuit seeking a declaratory ruling that the marriage amendment did not prohibit public employers from offering benefits to samesex domestic partners. The Michigan Court of Appeals found that the plans instituted by government agencies

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
offering same-sex domestic partner benefits established eligibility criteria similar to marriage. National Pride At Work, Inc. v. Governor of Michigan, 274 Mich.App. 147, 164, 732 N.W.2d 139, 151 (2007). The court held that extending benefits to same sex domestic partners on that basis violated the marriage amendment’s ban on recognizing a “similar union,” but that “[t]he amendment as written does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship.” Id. at 165, 172, 732 N.W.2d at 151, 155.
The Michigan Supreme Court affirmed the court of appeals’ decision. National Pride At Work, Inc. v. Governor of Michigan, 481 Mich. 56, 748 N.W.2d 524 (2008). The court reasoned that the requirements of the benefit plans at issue that partners be of a certain sex—the same sex as their partner—and not be closely related by blood were so similar to the requirements for marriage as to constitute a “similar union” that could not be recognized by public employers. Id. at 86–87, 748 N.W.2d at 543.
As a result of those holdings, some public employers, including the publicly-employed plaintiffs’ employers, revised their employee benefits plans. The City of Kalamazoo, the Ann Arbor Public Schools, and Ingham County all adopted benefit plans that permit employees to designate a person with whom he or she lives and, with the exception of the City of Kalamazoo, shares finances as an “Other Qualified Adult” (OQA), entitled to receive benefits. Those plans also require that the OQA not be eligible to inherit from the employee, be related to the employee by blood in a degree of closeness that would prohibit marriage in Michigan, and not otherwise be eligible for benefits from the public employer. The OQA could be of either sex. Other public employers that do not have employees involved in this suit but *948 provide a similar program include the City of Ann Arbor, Washtenaw and Eaton Counties, the school districts of Birmingham and Farmington, and Kalamazoo Valley and Lansing Community Colleges.
In January 2011, the Michigan Civil Service Commission, which is granted plenary power to regulate compensation for state employees by the Michigan constitution, announced that it had decided to extend health care benefits to certain adult co-residents of state employees. Some state legislators issued press releases condemning that decision, characterizing it as an extension of health benefits to same-sex partners of state employees. On June 16, 2011, Representatives David Agema and Peter Lund, among others, introduced House Bill No. 4770, the Public Employee Domestic Partner Benefit Restriction Act. HB–
3

4770, As Passed House, September 15, 2011, available at

http://www.legislature.

mi.gov/documents/2011–

2012/billengrossed/House/htm/2011–HEBH–4770.htm

(last visited May 31, 2013). The Bill passed both houses

of the Michigan Legislature and was signed by the

defendant on December 22, 2011. It became effective on

the same date. The governor’s signing statement states

that the law does not extend to university employees or

state employees under civil service. The Act reads, in

relevant part:

Sec. 3. (1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following:

(a) Married to the employee.

(b) A dependent of the employee, as defined in the internal revenue code of 1986.

(c) Otherwise eligible to inherit from the employee under the laws of intestate succession in this state.

(2) A provision in a contract entered into after the effective date of this act that conflicts with the requirements of this act is void.

Sec. 4. If a collective bargaining agreement or other contract that is inconsistent with section 3 is in effect for a public employee on the effective date of this act, section 3 does not apply to that group of employees until the collective bargaining agreement or other contract expires or is amended, extended, or renewed.

2011 Mich. Pub. Acts 297; Mich. Comp. Laws §§ 15.583–.584.

B.
According to the complaint and the affidavits filed in support of the motion for preliminary injunction, the five same-sex couples who are the plaintiffs in this case have been involved in long-standing, committed relationships. Theresa Bassett and Carol Kennedy celebrated their twenty-sixth anniversary in November 2012. They had a commitment ceremony in Michigan in 1990, registered as domestic partners in Ann Arbor the same year, and were legally married in California in 2008. They are raising six children between the ages of six and twenty. Bassett is a

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
middle school teacher at Slauson Middle School in Ann Arbor with duties similar to heterosexual teachers; Kennedy is self-employed and runs a day care from the couple’s home. Kennedy does not have access to an employer-provided health care plan; she is currently covered under Bassett’s insurance as an “Other Eligible Adult.”
Peter Ways and Joe Breaky have been partners for twenty-one years. They held a commitment ceremony in 1998 and affirm that they would marry if Michigan law permitted it. The couple is raising a nine-year-old daughter. Ways has worked as a *949 teacher in the Ann Arbor Public Schools for eleven years and has duties similar to heterosexual teachers; Breaky is a social worker who operates his private practice from the couple’s home. Breaky does not have access to employer-provided health care; he is currently covered under Ways’s insurance as an “Other Eligible Adult.”
JoLinda Jach and Barbara Ramber have been partners for seventeen years. They held a commitment ceremony in 1997 and aver that they would marry if Michigan law permitted it. The couple is raising two children. Jach has worked as a systems analyst for the City of Kalamazoo for twenty-four years and has duties similar to heterosexual senior systems analysts; Ramber works parttime in the food service division of Kalamazoo Public Schools. Ramber does not have access to health insurance as a part-time employee, and she lost coverage under Jach’s insurance on December 31, 2012.
Doak Bloss and Gerardo Ascheri have been partners for eighteen years and state that they would marry if Michigan law permitted it. Bloss is the Health Equity and Social Justice Coordinator for Ingham County and has responsibilities similar to the heterosexual Environmental Justice Coordinator for the county; Ascheri teaches piano from the couple’s home. Ascheri does not have access to employer-provided health insurance; he lost coverage under Bloss’s insurance on December 31, 2012.
Denise Miller and Michelle Johnson have been partners for eight years. They held a commitment ceremony in 2004. Miller teaches at Kalamazoo Valley Community College and has duties similar to heterosexual teachers; Johnson is the Executive Director of a nonprofit organization. Johnson does not have access to employerprovided health insurance. She was previously covered by Miller’s plan but lost her benefits after Public Act 297 passed.
4

C.
The plaintiffs filed their initial complaint on January 5, 2012. The complaint contained three counts: an equal protection claim based on sexual orientation and sex, a substantive due process claim, and a “claim” for declaratory and injunctive relief. The plaintiffs filed an amended complaint on February 17, 2012 with the same claims and additional plaintiffs.
The defendant did not file an answer to the amended complaint initially; instead, the defendant filed a motion to dismiss, followed a few days later by an amended motion to dismiss. The defendant filed an answer to the amended complaint on March 22, 2012.
The plaintiffs filed a motion for a preliminary injunction, which the defendant opposes. The motion and response are supported by factual affidavits. The Court held a hearing at which some of the plaintiffs testified on August 7, 2012. Both parties filed supplemental briefs addressing appropriate remedies on August 21, 2012.
II.
The motion to dismiss and the motion for preliminary injunction raise many overlapping legal issues. The motion to dismiss, however, includes a challenge to subject matter jurisdiction, which, of course, the Court must address at the outset.
A.
The defendant contends that the plaintiffs lack standing to assert their claims, and therefore the Court does not have subject matter jurisdiction over a live controversy. Standing is required in order to confer subject matter jurisdiction *950 upon federal courts under Article III of the Constitution. It is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Supreme Court has stated that the standing requirement “limits federal court jurisdiction to actual controversies so that the judicial process is not transformed into ‘a vehicle for the vindication of the value interests of concerned bystanders.’ ” Coal Operators & Assocs., Inc. v. Babbitt,

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
291 F.3d 912, 915–16 (6th Cir.2002) (quoting Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).
There are three constitutional requirements for standing. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir.2007). “To establish Article III standing, a litigant must show (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) that the injury will likely be redressed by a favorable decision.” Barnes v. City of Cincinnati, 401 F.3d 729, 739 (6th Cir.2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In addition, a plaintiff must also satisfy three prudential standing requirements. See City of Cleveland, 508 F.3d at 835. First, a plaintiff must “assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. 2197 (citations omitted). Second, “a plaintiff’s claim must be more than a ‘generalized grievance’ that is pervasively shared by a large class of citizens.” Coal Operators, 291 F.3d at 916 (quoting Valley Forge, 454 U.S. at 474–75, 102 S.Ct. 752). Third, in statutory cases, the plaintiff’s claim must fall within the “zone of interests” regulated by the statute in question. Ibid. “These additional restrictions enforce the principle that, ‘as a prudential matter, the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.’ ” Ibid. (quoting Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 576 (6th Cir.1991)).
The defendant argues that the plaintiffs do not satisfy the constitutional standing requirements because, except for plaintiffs Miller and Johnson, none of them have lost medical benefits and they have not pleaded facts establishing an injury that is concrete, objective, and palpable. The defendant also contends that the plaintiffs cannot show a causal relationship between Public Act 297 and any harm they have suffered. Because the plaintiffs cannot show an injury or causation, the defendant reasons, they also cannot demonstrate that a favorable decision is likely to redress their injury. The defendant argues that the plaintiffs cannot satisfy the prudential requirement because they are attempting to assert claims on behalf of their respective partners. The Court will discuss each of these arguments.
5

1.
It is the plaintiffs’ obligation to allege an injury that he or she has suffered that is “(a) concrete and particularized and (b) actual or imminent, as opposed to conjectural or hypothetical.” Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir.2004). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss, [the Court] ‘presumes that general allegations embrace those specific facts that are necessary to support the claim.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. National *951 Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). In Lujan v. Defenders of Wildlife, the Supreme Court explained that such an injury, if it had not already occurred, must be “imminent,” that is, likely to occur immediately. Id. at 564, 112 S.Ct. 2130.
The plaintiffs among them have shown both actual and imminent injuries. Carol Kennedy has alleged that she does not have access to an employer-provided health care plan except through her partner, Theresa Bassett. She will lose her health insurance when Bassett’s union contract with the Ann Arbor Public Schools ends if Public Act 297 remains in effect. Kennedy has a family history of breast cancer and finding replacement insurance will be expensive. Likewise, Joe Breaky does not have access to employer-provided health care, and he will lose insurance when Peter Ways’s contract with Ann Arbor Public Schools expires if Public Act 297 remains in effect. Breaky says that replacement insurance for him will cost between $8,000 and $10,000 per year. Barbara Ramber does not have access to health insurance as a part-time employee. She lost health care coverage through her partner, JoLinda Jach, on December 31, 2012 because of Public Act 297. Ramber has serious problems with her left eye that require daily medication and has been diagnosed with rheumatoid arthritis and gastroesophageal reflux disease, which requires medication and may require a series of endoscopy procedures; alternative health coverage would be difficult to obtain and purchasing coverage from her employer would cost more than half of Ramber’s monthly take-home pay. Gerardo Ascheri does not have access to employer-provided health insurance; he lost his health care coverage through Doak Bloss on December 31, 2012 because of Public Act 297. Ascheri alleges that he has high blood pressure and high cholesterol, for which he takes medication. Michelle Johnson previously was covered by Denise Miller’s health care plan, but she lost her benefits after Public Act 297 passed. Johnson has non-malignant uterine fibroid tumors that may require surgery, fibrous breast tissue that requires yearly monitoring, and a family history of

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
aneurysm that requires that she have regular scans.
In addition to establishing a present actual injury, the plaintiffs have shown imminent injury—“that the threatened injury is certainly impending.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation omitted). Although some of the plaintiffs have not yet lost their health care coverage, that fate is inevitable, as illustrated by some of the co-plaintiffs. As the Sixth Circuit has noted, “[i]mminence is a function of probability,” and the relevant inquiry is whether a future injury is likely to occur, not when it will occur. Thomas More Law Center v. Obama, 651 F.3d 529, 536 (6th Cir.2011), abrogated with respect to other principles by National Federation of Independent Business v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012).
In Thomas More Law Center, the Sixth Circuit considered a challenge to the standing of plaintiffs seeking to overturn the Affordable Care Act. In that case, the Court determined that the plaintiffs had alleged an imminent future injury because they would be required to purchase health care coverage as of the effective date of the Act, which was three and a half years after the complaint was filed. Id. at 538. A similar rationale applies here. The plaintiffs have alleged that they will lose health coverage when their partners’ contracts expire or are renegotiated; Public Act 297 states as much. “The Act itself *952 proves they will [lose health coverage] when the time comes,” ibid., that is, when the publicly-employed partners’ contracts expire or are renegotiated. As to the publicly-employed partner plaintiffs, the complaint alleges that family health insurance coverage is part of the compensation extended to public employees, including the publicly-employed plaintiffs, and that the publiclyemployed plaintiffs have lost or will lose family health insurance coverage for their domestic partners. Am. Compl. ¶¶ 1, 2, 9. A reduction in compensation is sufficient to establish an injury for the purpose of standing. See Williams v. Boeing Co., 517 F.3d 1120, 1127 (9th Cir.2008) (finding allegations that discrimination had led to reduced pay for African– Americans sufficient to establish an injury for standing purposes); American Federation of Government Employees, Local 2119 v. Cohen, 171 F.3d 460, 466 (7th Cir.1999) (finding that a loss of job benefits, including lower pay and retirement benefits, was a concrete and particularized injury for constitutional standing purposes). The plaintiffs have plausibly alleged that they are the “objects” of Public Act 297, which prohibits local governments from offering them domestic partner health insurance, and that they have suffered a concrete and particularized injury.
6

2.
The defendant’s argument that the plaintiffs cannot show a causal relationship is based on the notion that they have not pleaded facts suggesting that their impending loss of benefits is related to Public Act 297. The defendant points out, for instance, that the plaintiffs cannot say when they might lose benefits, and that they could lose benefits because the publicly-employed partners lose their jobs or the partners separate.
The first argument has no traction. The plaintiffs’ complaint alleges that Public Act 297 prohibits local governments from providing the domestic partner benefits that the plaintiffs have obtained, that under the terms of the Act coverage is terminated when the contracts or collective bargaining agreements in place when the Act took effect expire, and that the non-publicly employed plaintiffs will lose their benefits if the Act remains effective. Am. Compl. ¶¶ 9, 82. It is difficult to imagine what other facts the plaintiffs might plead to demonstrate that the termination of their benefits is related to the enforcement of Public Act 297. The defendant’s argument that the plaintiffs have not pleaded facts demonstrating that Public Act 297 is related to the termination of their benefits is perplexing, as it is admittedly the purpose of the Act to terminate the benefits that the plaintiffs currently receive. Moreover, the amended complaint alleges that one plaintiff has lost benefits; the plaintiffs have presented affidavits from two other plaintiffs stating that they would lose their benefits on December 31, 2012, which date has passed.
As for the second argument, although it is certainly possible that the plaintiff couples could separate or the publicly-employed plaintiffs could lose their jobs before losing health insurance benefits, those anything-canhappen scenarios do not undermine the alleged causal relationship between the defendant’s conduct and the harm alleged. In Thomas More Law Center, the Sixth Circuit considered arguments that the plaintiffs did not have standing to challenge the Affordable Care Act’s mandatory insurance provision, which does not come into effect until 2014, because the plaintiffs might die, their incomes might fall, or “a disaster could befall them” that would make them eligible for a hardship exception. Thomas More Law Center, 651 F.3d at 537. The Sixth Circuit, noting that the Supreme Court has *953 allowed plaintiffs to challenge laws prior to their effective dates,

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
found that these events were “hardly probable and not the kind of future developments that enter into the imminence inquiry.” Ibid. Similarly, here, it is “hardly probable” that the plaintiffs will end their long-term relationships or lose their jobs before losing benefits—especially those plaintiffs who have already lost benefits. The defendant has presented no reason to believe that those contingencies are likely to occur; the invocation of remote possibilities is insufficient to strip the plaintiffs of standing.

protection and due process, and the injuries they have identified are directly tied to the alleged violation of these rights by Public Act 297. They are asserting a violation of their own rights.
The plaintiffs have standing to bring the claims set forth in the amended complaint.

3.
Finally, the defendant argues that, to the extent that any individual plaintiff has standing, that plaintiff cannot assert claims on behalf of his or her partner. The defendant argues that the plaintiffs do not meet the prudential standing requirement that plaintiffs must assert their own legal rights and interests, rather than the rights of third parties. Those general propositions certainly are true, but the authorities the defendant cites to apply them to the plaintiffs in this case are readily distinguished.
The defendant mainly relies on Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), in which the Supreme Court held that attorneys could not bring claims on behalf of hypothetical future clients who might be denied appellate counsel. Id. at 134, 125 S.Ct. 564. The Court held that the lawyers did not satisfy the first prudential standing requirement because, unlike the plaintiffs here, they explicitly sought to enforce the rights of third parties. In other cases in which this concern has been implicated, the plaintiffs have either explicitly sought to assert the rights of third parties or identified injuries that were not caused by the alleged violation. See Boland v. Holder, 682 F.3d 531, 536–37 (6th Cir.2012) (finding that attorney could not advance a claim based on the rights of hypothetical future defendants to a fair trial); Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 208–09 (6th Cir.2011) (en banc) (finding that teachers could not assert students’ rights under the Establishment Clause, that the plaintiffs’ injuries were not caused by the Establishment Clause violation, but that plaintiffs had municipal taxpayer standing to challenge the violation); Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F.Supp.2d 655, 662–63 (E.D.Mich.2007) (finding that a corporation providing supplemental educational services could not assert rights of students). Here, in contrast, the plaintiffs are asserting their own Fourteenth Amendment rights to equal
7

B.
The defendant also argues that the plaintiffs’ claims are not ripe, reprising his standing argument that the plaintiffs’ claims based on Public Act 297 depend on the cessation of benefits, and because no concrete injury occurs before that time, any claimed injury is speculative or uncertain. The same result obtains. See Thomas More Law Center, 651 F.3d at 537 (observing that “where the only Article III question concerns the imminence of the plaintiffs’ injury, standing analysis parallels ripeness analysis” (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978))). “Indeed if a defendant’s ‘ripeness arguments concern only’ the ‘requirement that the injury be imminent rather than conjectural or hypothetical’ *954 then ‘it follows that our analysis of [the defendant’s] standing challenge applies equally and interchangeably to its ripeness challenge.’ ” Id. at 537–38 (quoting Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2d Cir.2006)).
In this case, the plaintiffs whose benefits have not been terminated already will lose them when the publiclyemployed plaintiffs’ contracts expire or are renegotiated. See Thomas More Law Center, 651 F.3d at 538 (stating that plaintiffs had standing in part because “the plaintiffs need not do anything to become subject to the Act”). The defendant’s ripeness argument, like his standing argument, fails. The claims in the amended complaint are ripe for adjudication.
C.
The defendant believes that the Court should abstain from exercising jurisdiction over the plaintiffs’ claims under the rule in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), insisting that a decision in

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
this case would enmesh the federal court in difficult questions of state law and disrupt a coherent state policy. The Court disagrees.
Abstention is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l., Ltd., 556 F.3d 459, 467 (6th Cir.2009) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). As the Supreme Court taught in Burford, abstention may be appropriate in some cases as a matter of comity, especially in cases where equitable relief is sought. See Ada–Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc., 720 F.2d 897, 903 (6th Cir.1983). And the Court later explained that the purpose of Burford abstention is to “protect[ ] complex state administrative processes from undue federal interference.” New Orleans Public Serv., Inc. [NOPSI] v. Council of City of New Orleans, 491 U.S. 350, 362, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). But Burford abstention is appropriate only if (1) timely and adequate state court review is available and (2) the case involves difficult questions of state law or federal court resolution disrupts state efforts to establish a comprehensive policy. Id. at 361, 109 S.Ct. 2506. The “adequate state review” must be centralized in a forum with special competence in the particular subject matter. Ada–Cascade Watch, 720 F.2d at 903.
When faced with a request to abstain under Burford, a district court must “weigh the federal interests in retaining jurisdiction over the dispute against the state’s interests in independent action to uniformly address a matter of state concern, and ... abstain when the balance tips in favor of the latter.” Webb v. B.C. Rogers Poultry, Inc., 174 F.3d 697, 700 (5th Cir.1999). That balance “only rarely favors abstention.” Id. (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)). Abstention is not required merely because a “potential for conflict with state regulatory law or policy” exists; instead, it is appropriate only where there is “undue federal interference” with “complex state administrative processes.” NOPSI, 491 U.S. at 362, 109 S.Ct. 2506 (internal quotes omitted).
For several reasons, Burford abstention is manifestly improper in this case. First, acting on the plaintiffs’ Fourteenth Amendment claims would in no way interfere with “complex state administrative processes.” NOPSI, 491 U.S. at 362, 109 S.Ct. 2506. The defendant does not *955 even address this requirement in his brief and does not identify any state administrative agency with particular competence over the subject matter. See Rouse
8

v. DaimlerChrysler Corp., 300 F.3d 711, 716 (6th Cir.2002) (finding Burford abstention inapplicable where there was “no state administrative agency involved in the dispute”); see also Saginaw Housing Comm’n v. Bannum, Inc., 576 F.3d 620, 626–27 (6th Cir.2009).
Second, the plaintiffs have presented only federal law questions and do not raise any questions of state law, let alone any “difficult questions of state law.” NOPSI, 491 U.S. at 361, 109 S.Ct. 2506 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Where plaintiffs raise federal constitutional claims, Burford abstention is discouraged. Habich v. City of Dearborn, 331 F.3d 524, 533 (6th Cir.2003) (stating that “the case against Burford is even stronger” where the question is “whether a state action violated constitutional limits”).
Third, the defendant has identified no “policy problems of substantial public import whose importance transcends the result in the case at bar.” NOPSI, 491 U.S. at 361, 109 S.Ct. 2506 (quoting Colorado River Water Conservation Dist., 424 U.S. at 814, 96 S.Ct. 1236). The only policy issue that the defendant has identified is the desire to save money. But a desire to save money cannot possibly be sufficiently important to require the Court to abstain from deciding the constitutional issues raised by the plaintiffs. If it were, states could effectively insulate themselves from constitutional review by the federal courts of virtually any law by citing budgetary concerns. The defendant also argues that the plaintiffs are seeking to use a decision of this Court as a “sword ... to impose limitations on Michigan’s marriage amendment ... [and] to impact the broader public by requiring all public employers to provide domestic partner benefits.” Def.’s Am. Mot. to Dismiss at 9. Accepting that argument requires the Court to speculate as to the plaintiffs’ future litigation strategy, which serves no useful purpose here. It is enough to observe that nothing in the present complaint challenges Michigan’s marriage amendment or suggests that all public employers are required to provide domestic partner benefits. Although it is true that domestic relations law generally is a matter of state concern, the plaintiffs’ suit does not seek to overturn any aspect of Michigan’s domestic relations law. See Rouse, 300 F.3d at 716 (finding that abstention was inappropriate where plaintiff brought suit to determine whether a domestic relations order created obligations under ERISA).
Fourth, federal review in this case would not be significantly “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, 424 U.S at 814, 96 S.Ct. 1236. It is true that a finding that invalidates Public Act

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
297 could result in local governments addressing domestic partner benefits inconsistently, as they did before Public Act 297 was enacted. However, Burford does not concern itself with that sort of disruption. See NOPSI, 491 U.S. at 362–63, 109 S.Ct. 2506. “[T]here is ... no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” Id. at 363, 109 S.Ct. 2506 (quoting Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)). The plaintiffs are requesting that this Court determine whether Public Act 297 violates the Constitution, an inquiry that does not “unduly intrude into the processes of state government or undermine the State’s ability to maintain desired uniformity.” Ibid. *956 Abstention from adjudicating these questions is not appropriate.
III.
The defendant argues, correctly the Court believes, that the plaintiffs have not pleaded a substantive due process violation in their amended complaint. The defendant insists that the plaintiff’s due process claim fails because there is no fundamental right to public-employer-provided health insurance for domestic partners of public employees and the failure to provide such health insurance does not burden the plaintiffs’ fundamental right to form and sustain intimate family relationships.
The right to substantive due process prohibits the government from infringing on “fundamental rights” without sufficient justification. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). “To state a cognizable substantive due process claim, the plaintiff must allege ‘conduct intended to injure in some way unjustifiable by any government interest’ and that is ‘conscience-shocking’ in nature.” Mitchell v. McNeil, 487 F.3d 374, 377 (6th Cir.2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “What seems to be required is an intentional infliction of injury ... or some other governmental action that is ‘arbitrary in the constitutional sense.’ ” Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir.1997) (quoting Lewellen v. Metro. Gov’t of Nashville & Davidson County, 34 F.3d 345, 351 (6th Cir.1994)). However, substantive due process protects only against state action that is not otherwise proscribed by the plain text of other constitutional amendments. See Ciminillo v. Streicher, 434 F.3d 461, 465 (6th Cir.2006) (reasoning that
9

“[a]lleged conduct that does not implicate a constitutional right protected by another amendment will be analyzed under the substantive due process component of the Fourteenth Amendment”). Where a plaintiff has recourse to an “explicit textual source of constitutional protection,” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), a more general claim of substantive due process is not available. See Lewis, 523 U.S. at 842, 118 S.Ct. 1708.
It is certainly the case that there is no fundamental right to public-employer-provided health insurance for the domestic partners of public employees. As the defendant notes, there is no fundamental right to public employment; accordingly, there cannot be a fundamental right to fringe benefits granted as compensation for public employees. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). No substantive due process violation can be predicated on the denial of such benefits. The defendant also accurately states that although a property interest in a benefit may give rise to a procedural due process claim, the plaintiffs have not pleaded such a claim in their complaint. Ibid.
However, the plaintiffs respond that their substantive due process claim is not focused on that fundamental right; instead, they contend that Public Act 297 impermissibly burdens their fundamental right to intimate association.
“The Constitution protects ... [the] freedom of intimate association, a privacy interest derived from the Due Process Clause of the Fourteenth Amendment but also related to the First Amendment.” Anderson v. City of La Vergne, 371 F.3d 879, 881 (6th Cir.2004) (citing Roberts v. United States Jaycees, 468 U.S. 609, 617–18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). What qualifies as protected “intimate association” is very broad, and certainly covers *957 the plaintiffs’ relationships. As the Sixth Circuit has explained, “the right to ‘intimate association’ is not limited to familial relationships but includes relationships characterized by ‘relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.’ ” Beecham v. Henderson County, Tennessee, 422 F.3d 372, 375 (6th Cir.2005) (quoting Roberts, 468 U.S. at 620, 104 S.Ct. 3244). “Intimate associations” have been found in dating relationships, Anderson, 371 F.3d at 881–82, and personal friendships, Akers v. McGinnis, 352 F.3d 1030, 1039–40 (6th Cir.2003).
The state must offer heightened justification for laws interfering with intimate associations. “A ‘direct and substantial interference’ with intimate associations is

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
subject to strict scrutiny, while lesser interferences are subject to rational basis review.” Anderson, 371 F.3d at 882 (quoting Akers, 352 F.3d at 1035).
There can be no doubt that the plaintiffs’ relationships, which are long-term, committed partnerships, certainly fall into the category of intimate associations protected by the Due Process Clause. Beecham, 422 F.3d at 376. The defendant does not contest that point, recognizing that the plaintiffs have a “fundamental right to form and sustain intimate family relationships.” Def.’s Mot. to Dismiss at 17. But the defendant argues that Public Act 297 does not impermissibly burden that fundamental right. The Court agrees.
First, Public Act 297 does not present a direct and substantial interference with the plaintiffs’ right to intimate family relationships because it does not prohibit the plaintiffs from forming those relationships or criminalize them. See Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (finding that a Texas statute criminalizing consensual sodomy violated the right to intimate association under the Due Process Clause). The plaintiffs argue that governmental action need not require the dissolution of the plaintiffs’ relationship in order to burden their constitutional rights. They cite Adkins v. Bd. of Educ. of Magoffin Cnty., 982 F.2d 952, 956 (6th Cir.1993), in which the Sixth Circuit held that “it is not necessary that the governmental act require the abandonment or dissolution of a marriage relationship as the price for retaining public employment. The right of association is violated if the action constitutes an undue intrusion by the state into the marriage relationship.” Ibid. (internal quotation omitted). They also argue that once a local government has freely chosen to offer partner benefits to unmarried employees, the State cannot withhold those benefits based on the plaintiffs’ exercise of their fundamental right to intimate association and family integrity. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). However, Public Act 297 does not interfere with the plaintiffs’ ability to form intimate relationships. They were in committed relationships before the public employers extended the medical benefits, and there is no reason to believe that the plaintiffs’ relationships are likely to dissolve now that those benefits have been withdrawn. Put simply, although Public Act 297 may create a financial and psychological burden on the plaintiffs, it does not place a constitutionally impermissible burden on their relationships as such. See Collins v. Brewer, 727 F.Supp.2d 797, 808 (D.Ariz.2010).
The plaintiffs’ citation to Adkins does not help their case. That case and the cases following it involved plaintiffs
10

who were terminated from public employment because of their marriages. Adkins, 982 F.2d at 954; Gaspers v. Ohio Dept. of *958 Youth Services, 648 F.3d 400, 413 (6th Cir.2011); Sowards v. Loudon Cnty., Tenn., 203 F.3d 426, 432 (6th Cir.2000). In those cases, the Sixth Circuit found that the plaintiffs’ fundamental right to marry would be burdened if the plaintiffs’ allegations were proven, because had the plaintiffs not been married, they would not have lost their jobs. Adkins, 982 F.2d at 956; Gaspers, 648 F.3d at 413–14; Sowards, 203 F.3d at 433. In contrast, here, the plaintiffs’ committed relationships can hardly be said to have caused their loss of benefits—the plaintiffs would not have been extended other qualified adult benefits in the first place had the plaintiffs not been involved in their relationships, and were the plaintiffs no longer to be in their relationships, they would not have been permitted to retain those benefits. The plaintiffs’ citation to Perry is also inapposite for a similar reason: in that case, a plaintiff was terminated, allegedly in retaliation for exercising his First Amendment rights. No similar retaliation is involved here. Perry, 408 U.S. at 597–98, 92 S.Ct. 2694.
Second, as the defendant argues, the state does not have an obligation to affirmatively assist the plaintiffs in pursuing their liberty interest in intimate association, and therefore the failure to do so does not constitute interference with that interest. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (holding that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right” (internal quotation marks omitted)). Although Ysursa is a First Amendment case, the principle is not limited to the First Amendment context. See Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (citing cases involving First Amendment claims and claims involving failure to subsidize abortions); see also Collins, 727 F.Supp.2d at 808. The plaintiffs argue that Ysursa is inapposite because it is premised in part on the fact that the state’s ban on payroll deductions applied to all organizations regardless of viewpoint. However, that argument is better addressed to the plaintiffs’ equal protection claim, discussed below.
The plaintiffs have failed to plead a substantive due process claim upon which relief can be granted. The Court will grant the defendant’s motion to dismiss that claim.

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
IV.
The plaintiffs allege in their amended complaint that Public Act 297 violates the Equal Protection Clause because it denies them employment benefits that their public employers confer on similarly-situated spouses and blood relatives. The defendant argues that the plaintiffs have failed to state an equal protection claim for three reasons. First, the defendant argues that the plaintiffs are not similarly situated to married couples. Second, the defendant argues that Public Act 297 is rationally related to the state’s interest in reducing government costs and therefore that the plaintiffs’ claim must be dismissed. Third, the defendant argues that the plaintiffs have failed to establish that Public Act 297 is based on discriminatory animus. Before addressing these arguments, the Court first must determine the appropriate standard of review to apply to the plaintiffs’ equal protection claim.
A.
The plaintiffs present two arguments for heightened scrutiny of Public Act 297 under the Equal Protection Clause of the Fourteenth Amendment. First, the plaintiffs argue that gays and lesbians are a suspect or quasi-suspect class that is entitled to heightened scrutiny. Second, the *959 plaintiffs argue that Public Act 297 discriminates on the basis of sex and therefore intermediate scrutiny applies. Based on current Sixth Circuit law, the plaintiffs swim upstream with these arguments. The cultural views of same-sex relationships—indeed, same-sex marriage— are evolving rapidly, see United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2689, 186 L.Ed.2d 808 (2013) (observing that “New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons”), trending toward acceptance of the plaintiffs’ position. However, current Sixth Circuit law stands as an obstacle to both of the grounds the plaintiffs offer as a rationale for examining the state law against a standard other than its rational basis. See Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir.2012) (stating that “this court has not recognized sexual orientation as a suspect classification” and applying rational basis review); Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006) (stating that “homosexuality is not a suspect class in this circuit”).
11

Both sides accept the general proposition that the Equal Protection Clause of the Fourteenth Amendment “ ‘prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.’ ” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir.2012) (quoting TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir.2005)). This analysis begins with defining an “identifiable group.” Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (stating that typical plaintiffs “generally allege that they have been arbitrarily classified as members of an ‘identifiable group’ ” (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979))). “When the identifiable group has been recognized as a suspect or quasi-suspect class, courts examine the classification under a heightened level of scrutiny.” Davis, 679 F.3d at 438 (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 290–91, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.) (treating race as a suspect classification); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (treating gender as a quasi-suspect classification)). But “[w]hen the identifiable group has not been recognized as a suspect or quasisuspect class, courts examine the classification under rational basis review.” Ibid. (citing Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (addressing discrimination based on age)).
1.
In determining whether a class is suspect or quasisuspect, courts examine whether the class historically has been subjected to discrimination, whether members of the group “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group,” and whether the group is “a minority or politically powerless.” Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Courts also consider whether the characteristic that defines the class “bears [any] relation to ability to perform or contribute to society.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting *960 Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion)).
Gays and lesbians as a group would seem to satisfy each

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
of these factors. First, gays and lesbians have suffered, and continue to suffer, widespread discrimination, not only in the private sector, but also by all levels of government. The State of Michigan has constitutionalized discrimination against gays and lesbians in its marriage amendment. Mich. Const. Art. 1 § 25. In addition, the State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation. Barbour v. Dep’t of Soc. Services, 198 Mich.App. 183, 185, 497 N.W.2d 216, 217–18 (1993). The plaintiffs have presented evidence that gay men and lesbians face discrimination in Michigan, that crimes targeting gays and lesbians constituted 14% of all reported hate crimes in Michigan in 2010, and that gays and lesbians have a 27% chance of experiencing discrimination in obtaining housing in Michigan. Pls.’ Mot. for Prelim. Inj. Ex. Q at 2–4, Ex. R, Ex. S at 9.
Second, gays and lesbians “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Lyng, 477 U.S. at 638, 106 S.Ct. 2727. Homosexual persons constitute a discrete, socially visible group defined by the distinguishing characteristic of their sexual orientation. Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 175, 957 A.2d 407, 432 (2008). Further, the great weight of medical and scientific authority demonstrates that sexual orientation is an immutable characteristic. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 966 (N.D.Cal.2010) (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”); Golinski v. Office of Personnel Management, 824 F.Supp.2d 968, 986 (N.D.Cal.2012) (“[T]he consensus in the scientific community is that sexual orientation is an immutable characteristic”). Even if sexual orientation were not immutable, sexual orientation is an integral part of personal identity. Kerrigan, 289 Conn. at 185–86, 957 A.2d at 438.
Third, gays and lesbians constitute a minority that lacks significant political power. There can be no dispute that gays and lesbians constitute a minority of the population in the United States. The fact that gays and lesbians lack significant political power in Michigan is amply demonstrated by the fact that there are no laws prohibiting discrimination on the basis of sexual orientation and that a voter referendum recently resulted in the enactment of a constitutional amendment that bars all recognition of same-sex marriage. On a national level, gays and lesbians make up only a tiny minority of state lawmakers; thirty states have passed constitutional amendments barring same sex marriage; and federal law—until June 26, 2013—barred the recognition of same-sex marriage. See
12

Golinski, 824 F.Supp.2d at 988; 1 U.S.C. § 7; Crary,

David, Associated Press, Gay Legislators Having Impact

in

Marriage

Debates,

available

at

www.huffingtonpost.com/2011/03/06/gay-legislators-

having-im_n_832117.html (last visited June 27, 2013)

(“Of America’s 7,382 state legislators, only 85 are openly

gay or lesbian.”).

Fourth, there can be no doubt that one’s sexual orientation bears no relationship to one’s ability to perform or contribute to society. Numerous courts have so found, and the defendant has not attempted to argue otherwise. See Golinski, 824 F.Supp.2d at 986; Kerrigan, 289 Conn. at 181, 957 A.2d at 435; Varnum v. Brien, 763 N.W.2d 862, 890–92 (Iowa 2009) (collecting cases).

*961 The Sixth Circuit’s pronouncements on the question are worthy of reexamination. The latest case, Davis v. Prison Health Services, relies on Scarbrough v. Morgan County as the authority for the idea that sexual orientation is not a recognized suspect classification. Davis, 679 F.3d at 438. Scarbrough, in turn, cited Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292–94 (6th Cir.1997), for its holding that “homosexuality is not a suspect class in this circuit.” Scarbrough, 470 F.3d at 261. And the Equality Foundation court based its holding squarely on Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Equality Foundation, 128 F.3d at 292–93. Bowers, of course, was overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The tarnished provenance of Davis and the cases upon which it relies provides ample reasons to revisit the question of whether sexual orientation is a suspect classification under equal protection jurisprudence. At present, however, that is not the law of the circuit, and it cannot govern the decision here.

2.
The plaintiffs also argue that intermediate scrutiny applies because Public Act 297 discriminates on the basis of the plaintiffs’ sex in relation to that of their partners. The plaintiffs have not cited any case adopting that rational in the context of a federal equal protection claim. The cases that the plaintiffs cite are distinguishable. In In re Levenson, 560 F.3d 1145 (9th Cir.2009), the court suggested that denying benefits to a federal employee’s same-sex spouse was a violation of the benefit plan’s bar on sex discrimination because the benefits would not have

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
been denied had the couple been of opposite sexes. Id. at 1147. That pronouncement was dictum, however, because the court ultimately found that because the plan also prohibited discrimination on the basis of sexual orientation, it was not necessary to determine whether the plaintiff had experienced sex or sexual orientation discrimination in order to find a violation of the benefits plan. Ibid. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), the Hawaii Supreme Court found that the state’s civil marriage laws, which barred same-sex marriage, regulated access to marriage on the basis of sex. Baehr, 74 Haw. at 572, 852 P.2d at 64. That case, however, was decided on the basis of the Hawaiian constitution, which the court distinguished from the United States Constitution. Id. at 562, 852 P.2d at 59–60.
Further, the rationale for considering sex a quasi-suspect classification does not support extending heightened scrutiny based on sexual orientation. In finding that classifications based upon sex are inherently suspect, the Supreme Court relied on the history and pervasiveness of discrimination against women and women’s relative lack of political power. Frontiero, 411 U.S. at 684–86, 93 S.Ct. 1764. Sex is considered a quasi-suspect classification, in large part, because “[r]ather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women.” City of Cleburne, 473 U.S. at 441, 105 S.Ct. 3249. This stereotyping concern does not come into play when the relevant classification is based on one’s sex compared to the sex of one’s partner.
Sixth Circuit precedents require that the standard against which Public Act 297 must be measured in the plaintiffs’ equal protection challenge is rational basis review.

F.3d 474, 484 (6th Cir.1999) (internal quotation marks and citation omitted). In the words of the Supreme Court, the classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The State may make classifications, provided they are “not unreasonable, arbitrary or capricious.” Molina–Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 659 (6th Cir.2008) (quoting Gilday v. Bd. of Elections of Hamilton Cnty., Ohio 472 F.2d 214, 217 (6th Cir.1972)). A plaintiff may also show that a government action lacks a rational basis “by demonstrating that the challenged government action was motivated by animus or ill-will.” Scarbrough, 470 F.3d at 261 (quoting Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir.2005)). In United States v. Windsor, the Supreme Court held that the Defense of Marriage Act (DOMA) violated equal protection guarantees found in the Fifth Amendment. In invalidating the law, the Court held that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Windsor, 133 S.Ct. at 2693 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534–35, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Similarly, the Sixth Circuit repeatedly has held that “ ‘the desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.’ ” Davis, 679 F.3d at 438 (quoting Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir.1997)).
The defendant offer three reasons why the plaintiffs have not pleaded a valid equal protection claim.

*962 B.
Generally speaking, “[l]aws that do not involve suspect classifications and do not implicate fundamental rights or liberty interests ... will be upheld if they are ‘rationally related to a legitimate state interest.’ ” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir.2002) (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir.2000)). “On rational basis review, a classification bears a strong presumption of validity and a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Alexander v. Merit Sys. Prot. Bd., 165
13

1.
The defendant’s first argument posits that the plaintiffs have not identified a valid comparitor class because they are not similarly situated to married couples, who are eligible for benefits under Public Act 297. In support of this argument, the defendant cites United States v. Green, 654 F.3d 637, 651 (6th Cir.2011), but that case is inapposite. As Green makes clear, the “similarly-situated” requirement applies to “class-of-one” equal protection claims, in which a plaintiff does not assert that he or she is a member of a class. Ibid.; see also Paeth v. Worth Tp., 705 F.Supp.2d 753, 768 (E.D.Mich.2010). However, the

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
plaintiffs in this case are not asserting a class-of-one claim. Instead, the plaintiffs are asserting a class-based sexual orientation claim. The Sixth Circuit has held that “[a] claim alleging discrimination on the basis of sexual orientation ... should not be characterized as a class-ofone claim,” but rather as a “traditional, class-based discrimination claim.” Davis, 679 F.3d at 441–42. Because the plaintiffs’ claims must be characterized as a “traditional, class-based discrimination *963 claim,” the similarly-situated requirement simply does not apply.
Moreover, Public Act 297 creates a classification based on sexual orientation. Although the act does not use the term “sexual orientation,” it both explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples. The Act incorporates the definitions in the Michigan marriage amendment and the intestacy statute. Both of those laws distinguish between opposite-sex couples, who are permitted to marry and can inherit under intestacy, and same-sex couples, who cannot. In Johnson v. New York, 49 F.3d 75 (2d Cir.1995), and Erie Cnty. Retirees Ass’n v. Cnty. of Erie, Pa., 220 F.3d 193 (3d Cir.2000), the Second and Third Circuits found that employment policies facially discriminated on the basis of age, even where the policies themselves did not mention age, because they incorporated other policies with explicit age restrictions. Johnson, 49 F.3d at 79; Erie, 220 F.3d at 211. The same can be said for Public Act 297 concerning sexual orientation.
The defendant’s attempt to distinguish those cases by noting that they dealt with federal anti-discrimination statutes rather than the Equal Protection Clause is unpersuasive. He has not presented any argument as to why the basic reasoning undergirding those decisions does not apply in the constitutional context. The defendant also asserts that unlike the policies at issue in those cases, the marriage amendment and intestacy statute are not facially discriminatory. That assertion cannot be reconciled with the text of the marriage amendment, which specifically defines marriage to exclude same-sex couples. That provision obviously distinguishes between opposite-sex couples, who may marry, and same-sex couples, who may not. And although it is true, as the defendant argues, that Michigan’s intestacy statutes do not prevent gay and lesbian persons from inheriting, they do prevent gay and lesbian persons from inheriting from their partners, as only spouses, descendants, and paternal and maternal relatives are covered by intestacy. See Mich. Comp. Laws §§ 700.2102, .2103.
Several courts have found that statutes restricting benefits
14

on the basis of marriage intentionally classify on the basis of sexual orientation where gays and lesbians cannot legally marry. Dragovich v. United States Dep’t of the Treasury, 848 F.Supp.2d 1091, 1100 (N.D.Cal.2012); Collins v. Brewer, 727 F.Supp.2d 797, 803 (D.Ariz.2010), aff’d sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir.2011); Alaska Civil Liberties Union v. State, 122 P.3d 781, 788 (Alaska 2005); Bedford v. N.H. Cmty. Technical Coll. Sys., Nos. 04–E–229, 04–E–230, 2006 WL 1217283, at *6 (N.H.Super.Ct. May 3, 2006). The Arizona law invalidated in Collins is illustrative. Arizona does not recognize same-sex marriage, but Arizona state law permitted spouses and domestic partners of state employees to obtain health insurance benefits. In 2009, Arizona passed a law limiting state employee health insurance benefits to the employee’s spouse and children. The Collins court reasoned that in contrast to unmarried heterosexual employees, who could marry to take advantage of state health care benefits, unmarried homosexual employees effectively were barred completely from obtaining benefits. Similarly, Public Act 297 makes health benefits available only “on terms that are a legal impossibility for gay and lesbian couples.” Collins, 727 F.Supp.2d at 803.
The defendant responds that because under Michigan constitutional law, the benefits previously provided to the plaintiffs were not furnished on the basis of a *964 relationship similar to marriage, Public Act 297 cannot implicate same-sex or opposite-sex relationships. That argument misses the mark. The question is not whether the benefit schemes of the local governments that employed the plaintiff turned on the nature of the plaintiff’s relationship. The question is whether, in permitting benefits to be extended only to married couples while barring same-sex couples from marrying, Public Act 297 creates a classification on the basis of sexual orientation. The details of local government benefit schemes prior to the enactment of Public Act 297 have no relevance to that question.
The defendant also argues that the plaintiffs’ position would require state and local governments to provide benefits on the basis of a relationship similar to marriage in contravention of Michigan’s constitution. That, too, is incorrect. Invalidation of Public Act 297 causes the statutory landscape simply to revert to its pre-Public Act 297 condition. As the defendant himself recognizes, those benefit schemes did not depend on the existence of a marriage-like relationship. Therefore, it is not only possible for local governments to provide domestic partner benefits in a manner consistent with the Michigan constitution (and for some local governments to choose not to do so), it is eminently likely that is precisely what

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
would occur.
Next, the defendant argues that because domestic relations is an area of traditional state concern, the Court should not interfere. But the national government may enact and interpret laws “that bear on marital rights.” Windsor, 133 S.Ct. at 2690 (citing Hillman v. Maretta, 569 U.S. ––––, 133 S.Ct. 1943, 186 L.Ed.2d 43 (2013); Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981); and Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950)). Moreover, domestic relations laws are not insulated from federal constitutional scrutiny merely because they are the traditional province of the states. See Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (observing that the State of Virginia could not argue “that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment”). And the injunction the plaintiffs seek affects only Public Act 297, which is not a part of Michigan’s domestic relations law. The defendant also suggests that federal law, including the Defense of Marriage Act, has less influence in Michigan because Michigan does not recognize same-sex marriage. That argument is ill-founded, as this case does not involve the Defense of Marriage Act or any other federal statute and there is no law supporting the suggestion that federal constitutional requirements apply with less force in states that do not recognize same-sex marriage.
Finally, the defendant argues that the Court should reject the plaintiffs’ arguments based on the canon of constitutional avoidance. “If a statute is susceptible of ‘two ... plausible constructions,’ one of which ‘would raise a multitude of constitutional problems, the other should prevail.’ ” United States v. Erpenbeck, 682 F.3d 472, 475 (6th Cir.2012) (quoting Clark v. Martinez, 543 U.S. 371, 380–81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005)). However, the defendant has not suggested any viable interpretation of Public Act 297 that would permit the Court to avoid a constitutional decision. Moreover, to the extent that the defendant is suggesting that the Court must avoid interpreting or ruling on Public Act 297 to avoid creating a substantial conflict with Michigan’s constitution, the argument is inapposite. No state constitutional issues have been presented.
*965 The unavoidable conclusion is that Public Act 297 contains a discriminatory classification on the basis of sexual orientation.
15

2.
The State may discriminate among non-suspect classes if has a rational basis to do so. Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir.2002) (stating that “[l]aws that do not involve suspect classifications and do not implicate fundamental rights or liberty interests ... will be upheld if they are ‘rationally related to a legitimate state interest’ ” (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir.2000))). “On rational basis review, a classification bears a strong presumption of validity and a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Alexander v. Merit Sys. Prot. Bd., 165 F.3d 474, 484 (6th Cir.1999) (internal quotation marks and citation omitted). The State need “only [show] that the regulation bear[s] some rational relation to a legitimate state interest.” Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir.2002) (citing Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)).
The defendant presents two state interests that he argues Public Act 297 advances. First, the defendant argues that Public Act 297 promotes the policy goal of furthering “traditional marriage.” But the defendant himself has written off serious consideration of that argument, stating that “it strains credulity to believe that a couple would marry simply to obtain health benefits, or would acquiesce to participation in a relationship they might not otherwise choose in order to qualify for the benefit.” Def.’s Am. Mot. to Dismiss at 24. Nor has the defendant presented any argument how Public Act 297 actually furthers “traditional marriage.” Assuming that the state has a legitimate interest in furthering “traditional marriage,” Public Act 297 is not rationally related to that policy goal.
The second argument is that Public Act 297 is rationally related to the State’s legitimate interest in reducing the costs of employee benefits that municipalities must pay, and therefore no equal protection violation can be derived from the amended complaint. However, the plaintiffs have pleaded facts that plausibly demonstrate that cannot be true. The amended complaint alleges that Public Act 297 will result in only negligible cost savings to the state, which will be offset by a loss of tax revenue and increased healthcare costs, including increased use of publicly-funded health care. Am. Compl. ¶¶ 86, 90, 93, 94. Similar allegations have been found to be sufficient to survive a motion to dismiss. Collins, 727 F.Supp.2d at 805.
The plaintiffs also contend that the cost justification is a sham, and they have offered evidence that establishes a likelihood of success on that point. First, the plaintiffs

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
have presented evidence that the State did not have any accurate information about the costs savings that would result from Public Act 297. Similar evidence has been found sufficient both to survive a motion to dismiss and to demonstrate a likelihood of success on the merits of a nearly identical equal protection claim. Collins, 727 F.Supp.2d at 811–12. In affirming that decision, the Ninth Circuit highlighted the fact that the district court was provided with an expert analysis of the law on the state’s finances but did not have any evidence as to the number of same-sex domestic partners participating in the health plan or as to the costs of such participation. Diaz, 656 F.3d at 1013.
In this case, there were several legislative analyses that analyzed the fiscal impact of the bill, but each discussed the potential cost savings that would result *966 from no longer providing other eligible adult benefits to State employees; none analyze the fiscal impact in terms of local government employees, to which Public Act 297 is directed. Def.’s Mot. to Dismiss Ex. 1A–D. Early estimates by the Office of the State Employer placed the potential yearly cost savings (based on coverage of state employees only) at $8 million, but that figure is suspect. It later was revised downwards by the Senate Fiscal Agency to $893,000. Def.’s Mot. to Dismiss Ex. 1A, 1B.
Second, there is evidence that the type of benefits furnished by local governments will not impact the amount of funding that the state provides those governments. In Michigan, state funds are allocated to local governments on the basis of formulas set by the Michigan constitution and by statute. Mich. Const. Art. IX, sec. 30 (1963); Mich. Comp. Laws §§ 18.1115(5), 18.1349. Local governments receive funds based on a formula that depends heavily on population; school districts receive funds on a per-pupil basis. Mich. Const. Art. IX, sec. 10 (1963); Mich. Comp. Laws §§ 141.913, 141.911; Pl.’s Mot. for Prelim. Inj. Ex. M. Although local governments are generally unrestricted in the use of state funds, the state legislature has placed limitations on how much local entities can pay for employee health insurance benefits. Mich. Comp. Laws §§ 141.917, 15.561 et seq. Local governments must either keep their health insurance benefits payments under a hard cap set by a formula in the statute or pay 80% or less of the total costs of the medical benefits they offer; failure to do so results in a reduction in state funds. Mich. Comp. Laws §§ 15.563, .564, .569. However, local governments may exempt themselves from the Act by a two-thirds vote of their governing bodies. Mich. Comp. Laws § 15.568. In responses to interrogatories, the defendant admitted that the amount of funding Michigan provides to local government units does not depend on whether the unit
16

provides benefits to other insured adults or on the number of individuals to whom the units provide insurance. Pls.’ Mot. for Leave to File [dkt. # 47] Ex. 3.C.
The plaintiff also has offered evidence that in 2010, the City of Kalamazoo spent approximately 15% of its budget on benefits for its employees; the estimated cost of providing insurance for one domestic partner in 2012 was $6,104.76. Pl.’s Mot. for Prelim. Inj. Ex. O at 5, 7; Pls.’ Mot. for Prelim. Inj. Ex. V–1, Collard Aff. at ¶ 13. Ann Arbor Public Schools spent 9.84% of its 2009 general fund budget on employee health care benefits. Pls.’ Mot. for Prelim. Inj. Ex. N. Approximately 1.2% of Ann Arbor Public Schools’ health insurance costs in the 2011–2012 plan year, or $204,336, were due to coverage of other eligible adults. Pls.’ Mot. for Prelim. Inj. Ex. V–2, Comsa Aff. at ¶ 11. In Ingham county, the total projected cost for providing other eligible adult benefits in 2012 is $16,157, or .002% of total expenditures on health care. Pls.’ Mot. for Leave to File [dkt. # 47] Ex. 1, Lannoye Aff. at ¶ 13. Officials from the City of Kalamazoo, the Ann Arbor Public Schools, Ingham County, and Kalamazoo Valley Community College have stated that any cost savings resulting from Public Act 297 would remain with their local government unit. Pls.’ Mot. for Prelim. Inj. Ex. V–1, Collard Aff. at ¶ 26, Ex. V–2, Comsa Aff. at ¶ 23, Pls.’ Mot. for Leave [dkt. # 47] Ex. 1, Lannoye Aff. at ¶ 28, Ex. 2.A, Schlack Dep. at 36.
Third, the plaintiffs have offered evidence that cost savings to local governments will be de minimus, and that the failure to provide such benefits actually may impose additional costs on local governments. For instance, of the 194 employees of the City of Kalamazoo eligible, *967 six added an OQA to their plan. Pl.s’ Mot. for Prelim. Inj. Ex. V–1, Collard Aff. at ¶ 6. Of approximately 1,800 fulltime Ann Arbor Public Schools employees, thirty-three employees enrolled OQAs. Pl.’s Mot. for Prelim. Inj. Ex. V–2, Cosma Aff. at ¶¶ 2, 5. Of the 832 Ingham County employees eligible to participate, three had enrolled OQAs as on January 1, 2012. Pl.’s Mot. for Leave [dkt. # 47] Ex. 1, Lannoye Aff. at ¶ 7. Only one individual signed up for household member benefits at Kalamazoo Valley Community College. Pl.’s Mot. for Leave [dkt. # 47] Ex. 2.A, Schlack Dep. at 41.
The plaintiffs have presented an affidavit from an economist, Dr. M.V. Lee Badgett at the University of Massachusetts, predicting the economic and fiscal effects of Public Act 297. He states that between .3% and 1.5% of employees eligible to enroll an OQA actually did so and that the resulting increase in health care costs ranged from .3% to .7%. Pl.’s Mot. for Prelim. Inj. Ex. U, Badgett Aff. ¶ 15. He also states that the administrative

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
costs associated with providing other qualifying adult benefits are small, one-time costs. Id. ¶¶ 10–12. The increases in health care costs are small and proportionate. Id. ¶¶ 15–16. Dr. Badgett predicts that any state savings resulting from Public Act 297 will be small, and observes that some of those benefits are paid out of local funds. Id. ¶¶ 17–23. He also averred that the State will lose revenue from offsetting income tax payments, not all qualified adults will be prevented from receiving benefits under the act, and eliminating insurance coverage for other qualified adults could lead to additional costs to Medicaid and other government-sponsored health programs and to an increase in uncompensated care. Id. ¶¶ 17–22. Finally, Dr. Badgett posits that Public Act 297 could increase employment costs to local governments by preventing them from competing effectively with other employers for the bestqualified employees. Id. ¶ 24.
The defendant argues that the plaintiffs’ evidence does not demonstrate a likelihood of success on the merits, because to determine that the economic benefits of the Act are too minimal to demonstrate that its classifications are rationally related to a legitimate state interest would be to engage in judicial line-drawing that oversteps highly deferential rational basis review. The Court disagrees. Aside from saying so, the defendant has offered little to support its cost-savings rationale. The weakness of the defendant’s proffered explanations indicates that Public Act 297 was nothing more than an attempt to bar samesex couples from receiving partner benefits from public employers. The defendant’s justifications “come close to striking [the Court] with ‘the force of a five-week-old, unrefrigerated dead fish.’ ” Craigmiles, 312 F.3d at 225 (quoting United States v. Searan, 259 F.3d 434, 447 (6th Cir.2001)). That evidence does not satisfy rational basis review. Ibid.
Moreover, although “a state has a valid interest in preserving the fiscal integrity of its programs” and “may legitimately attempt to limit its expenditures ... a state may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). “[R]ational basis review is not a rubber stamp of all legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate the Equal Protection Clause.” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.2000). The Supreme Court has held that although “a State has a valid interest in preserving the *968 fiscal integrity of its programs,” the State may not attempt to “limit its expenditures ... by invidious distinctions between classes of its citizens.”
17

Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (quoting Shapiro, 394 U.S. at 633, 89 S.Ct. 1322). Legislation curtailing benefits that is aimed at an unpopular group calls for closer examination. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (stating that “a bare ... desire to harm a politically unpopular group” is not a legitimate state interest). And although the Sixth Circuit has not addressed the issue, the First and Ninth Circuits have held that cost savings alone are insufficient to justify an otherwise discriminatory statute. Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 11, 14 (1st Cir.2012); Diaz, 656 F.3d at 1013–14. The plaintiffs have shown that the defendant’s justifications for the discrimination wrought by Public Act 297 are so insubstantial that animus against same-sex couples remains as the only genuine justification.
3.
A plaintiff may also show that a government action lacks a rational basis “by demonstrating that the challenged government action was motivated by animus or ill-will.” Scarbrough, 470 F.3d at 261. The Sixth Circuit repeatedly has held that “ ‘the desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.’ ” Davis, 679 F.3d at 438 (quoting Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir.1997)). The defendant argues that the plaintiffs have failed to establish that Public Act 297 is based on discriminatory animus. The record suggests otherwise.
The historical background and legislative history of the Act demonstrate that it was motivated by animus against gay men and lesbians. The history of debate over domestic partner benefits illustrates the tension between some local governments’ desire to provide benefits to same sex couples in a manner consistent with the Michigan constitution and a desire by opponents of samesex benefits to block them. Local governments began to offer the other-eligible-adult benefit in their present form—that is, open to partners who are of either the same or opposite sex—after the Michigan Supreme Court held that conditioning benefits on the sex of the employee’s partner violated the Michigan constitution. See National Pride at Work, Inc. v. Granholm, 481 Mich. 56, 71–75, 748 N.W.2d 524, 535–37 (2008). It is therefore apparent that eligible adult benefits represent local governments’

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
attempt to provide health insurance benefits to same-sex couples on a basis that is consistent with the Michigan constitution. Public Act 297 seeks to block further attempts by local governments to provide benefits to same-sex couples in a manner consistent with the Michigan constitution by setting up requirements that same-sex couples cannot meet. That history demonstrates a concerted attempt to block same-sex partners from accessing benefits that is consistent with a desire to effectuate animus against gay men and lesbians.
The plaintiffs fortify their position with statements from the sponsors of the legislation suggesting that Public Act 297 targets same-sex partners and was motivated by animus. Representative Peter Lund, a sponsor of Public Act 297, stated in reaction to the Michigan Civil Service Commission’s decision to offer other eligible adult benefits that “[i]t is an absolute abomination to hear a state agency has the gall to *969 make such a costly and polarizing political move while people and their government are pinching pennies just to make ends meet ... this [is a] clearly political move that shifts people’s hard earned dollars into the pockets of same-sex partners.” Pls.’ Mot. for Prelim. Inj. Ex. G–2. The lead sponsor of the act, Representative David Agema, stated that “[t]he people of this state, the Attorney General and the Michigan Supreme Court have all decided in recent years that marriage is between one man and one woman and to extend health benefits to unions that do not fall into that category is disrespectful to the people. For a state organization such as the CSC to blithely ignore these mandates is reprehensible.” Pls.’ Mot. for Prelim. Inj. Ex. G–1. After the Michigan legislature attempted, and failed, to overturn the commission’s decision in March and April 2011, further press releases were issued by Republican lawmakers. See Pls.’ Mot. for Prelim. Inj. Ex. G–4, Press Release by Representative Ken Yonker (“This is a strike in the face to the people of Michigan.... To disregard what the people have decided at the ballot box, and to disregard the boundaries of marriage makes a mockery of the moral fabric that has made America what it is today.... This was the worst thing to happen since we’ve been here and it’s disgusting.”); Ex. G–5, Press Release by Representative Tom Hooker (“I think Michigan residents have made it pretty clear time and again what they want with regard to benefits for unmarried and same sex partners ... For the Democrats to uphold the CSC decision today goes exactly contrary to what the people in this state have voted for, and even what our state Supreme Court has said on the issue and I’m shocked.”).
Citing Isle Royale Boaters Assoc. v. Norton, 330 F.3d 777, 784 (6th Cir.2003), the defendant argues that statements by Michigan’s legislators are not a reliable
18

indication of their true motivation. However true that caution might be, the defendant’s argument on this point is not quite correct. In Isle Royale, the Sixth Circuit observed that it is “wary of relying on individual legislator’s statements” to divine legislative intent and declined to rely on them in that case. Isle Royale Boaters Assoc., 330 F.3d at 784–85. This is not precisely the same thing as stating that statements of legislators are insufficient as a matter of law to support a finding of discriminatory animus. The former is a question of statutory construction; the second is a question of legislative purpose.
Instead, the Court takes guidance from the Supreme Court’s decision invalidating DOMA, which determined legislative purpose by looking to the “history of ... enactment” and the statute’s “own text.” Windsor, 133 S.Ct. at 2693 (“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”). Looking to the history and text of Public Act 297, it is hard to argue with a straight face that the primary purpose—indeed, perhaps the sole purpose—of the statute is other than to deny health benefits to the same-sex partners of public employees. But that “can never be a legitimate governmental purpose.” Davis, 679 F.3d at 438 (quoting Stemler, 126 F.3d at 873–74).
The plaintiffs have stated a viable and likely successful equal protection claim. They have provided strong evidence that the discriminatory classification established by Public Act 297 is not rationally related to a legitimate governmental purpose.
*970 V.
When deciding a motion for preliminary injunction under Federal Rule of Civil Procedure 65, the Court must consider four factors: (1) the likelihood of the party’s success on the merits of the claim; (2) whether the injunction will save the party from irreparable injury; (3) the probability that granting the injunction will substantially harm others; and (4) whether the public interest will be served by the injunction. Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th Cir.2004). “[T]he four factors are not prerequisites to be met, but rather must be balanced as part of a decision to grant or deny injunctive

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
relief.” Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir.1995). The Court need not make specific findings regarding each of the four factors if fewer factors are dispositive of the issue. See Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir.1997). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.2000). The plaintiff has the burden of proof, and that burden is the same irrespective of whether the relief sought is mandatory or prohibitive. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341, 348 (6th Cir.1998).
A.
For the reasons stated above, the Court finds that the plaintiffs have demonstrated a likelihood of success on the merits of their equal protection claim.
B.
The second factor also favors the plaintiffs. The plaintiffs probably will be able to prove that Public Act 297 denies them the equal protection of the laws. “[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.2001) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)).
Moreover, the potential risk to the plaintiffs’ health resulting from the loss of medical insurance qualifies as irreparable harm. Although a plaintiff’s harm is not irreparable if it is fully compensable by money damages, Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992), the plaintiffs have presented facts suggesting that plaintiffs Ramber and Ascheri have chronic conditions that could lead to serious complications if left untreated and that these plaintiffs are unable to afford insurance coverage that would permit them to continue treatment. Plaintiff Ramber has serious problems with her left eye that require daily medication and has been diagnosed with rheumatoid arthritis and gastroesophageal
19

reflux disease, which requires medication and may require a series of endoscopy procedures; alternative health coverage would be difficult to obtain and purchasing coverage from her employer would cost more than half of Ramber’s monthly take-home pay. Pls.’ Mot. for Prelim. Inj. Ex. T–5, Jach Dec. ¶¶ 9, 11; Ex. T–6, Ramber Dec. ¶¶ 7, 9; Amend. Ex. [Dkt. # 70]. Plaintiffs Ascheri and Johnson also have conditions that require regular medication or monitoring, and plaintiff Johnson has stated that she and her partner cannot afford replacement insurance. Pls.’ Mot. for Prelim. Inj. Ex. T–7, Bloss Dec. ¶ 8; Ex. T–8, Ascheri Dec. ¶ 7; Ex. T–9, Miller Dec. ¶¶ 8– 10; Ex. T–10, Johnson Dec. ¶¶ 7–9. The potential medical consequences and the financial uncertainty *971 caused by Public Act 297 are sufficient to demonstrate irreparable harm. Schalk v. Teledyne, Inc., 751 F.Supp. 1261, 1268 (W.D.Mich.1990). This factor favors granting the preliminary injunction.
C.
The balance of equities clearly favors the plaintiffs. Because “there is a likelihood that [the statute] will be found unconstitutional ..., [it is] questionable whether [the state] has any ‘valid’ interest in enforcing” it. Planned Parenthood Assoc. of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir.1987). Meanwhile, Public Act 297 places significant financial, emotional, and medical burdens on the plaintiffs that outweigh any slight increase in cost to the State. Schalk, 751 F.Supp. at 1268 (“I am unconvinced that this harm [increased monthly costs] outweighs that of a retiree forced to go without medical care, or forced to choose between the basic necessities of life in order to pay his or her medical deductibles and co-pays or life insurance.”).
D.
The public interest also favors granting an injunction. The public has an interest in ensuring that only constitutional laws are enforced. Planned Parenthood, 822 F.2d at 1400. In addition, the public has an interest “in the preservation of a healthy population.” Schalk, 751 F.Supp. at 1268. That interest is furthered when public employers are permitted to extend health insurance benefits and harmed when individuals are abruptly

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
terminated from health insurance coverage. As the plaintiffs observe, the public interest is also served by giving local authorities the autonomy to structure their benefit plans to attract and retain the most qualified possible workforce.
VI.
There remains a question as to the scope of the remedy at this stage of the proceedings. The defendant has raised two concerns over breadth of an injunction, the first of which need not detain the Court. The defendant appears to be concerned that the Court might issue an injunction ordering local governments to provide benefits to other eligible adults. But the Court does not read either the plaintiffs’ amended complaint or their motion for a preliminary injunction to request such relief. Instead, the plaintiffs seek a declaration that the Act violates the Fourteenth Amendment and preliminary and permanent injunctions enjoining the defendant from enforcing the Act. The defendant appears to be laboring under a misapprehension as to the relief requested by the plaintiffs; the plaintiffs do not seek to require local governments to provide benefits, instead, they seek to enjoin the state from prohibiting public employers from offering benefits. The significant difference between these two propositions seems to have escaped the defendant, which in turn renders the defendant’s argument slightly confused. Indeed, the parties appear to agree on the main point: if the Court finds that the statute is facially unconstitutional, the Court may issue a judgment so stating and enter a permanent injunction barring the defendant from enforcing the statute.
The second question is whether preliminary injunctive relief should be confined to the plaintiffs in this case. The defendant argues that a preliminary injunction should benefit only the named plaintiffs because enjoining enforcement of the statute itself would effectively grant the relief sought in the complaint and would involve enjoining third parties.
The defendant relies mainly on Sharpe v. Cureton, 319 F.3d 259 (6th Cir.2003). In that case, the named plaintiffs were *972 firefighters who proved at trial that the mayor of Knoxville unlawfully discriminated against them for supporting an opponent in a political election. The trial court permanently enjoined the mayor not only from discriminating against the plaintiffs, but also against any city employee. The court of appeals held that the scope of
20

the injunction was too broad and “unnecessary to provide the named plaintiffs the relief to which they [were] entitled as prevailing parties.” Id. at 273. The court explained that “[w]hile district courts are not categorically prohibited from granting injunctive relief benefitting an entire class in an individual suit, such broad relief is rarely justified because injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Ibid. (emphasis in original); see also Warshak v. United States, 532 F.3d 521, 531 (6th Cir.2008) (citing Sharpe for this principle).
Washington v. Reno, 35 F.3d 1093 (6th Cir.1994), suggests that the test for determining whether to apply class-wide relief in a case involving individual plaintiffs is the same regardless of whether the injunction is preliminary or permanent. That case involved the federal Bureau of Prisons’ use of the proceeds of the Commissary Fund, a trust of which federal inmates are the sole beneficiaries, to install and operate a direct dial system in place of a collect call system. The plaintiffs were individual federal prison inmates. The district court issued a preliminary injunction enjoining, among other things, the use of proceeds from the Commissary Fund to pay for the implementation of a direct dial system. The injunction was nationwide in scope rather than limited to the individual plaintiffs. The Sixth Circuit acknowledged that “ ‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’ ” Id. at 1103 (citing Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Nevertheless, the court upheld a nationwide injunction because it found that “the appropriate relief to be granted to the plaintiffs on their Commissary Fund claim necessarily implicate [d] nationwide relief.” Id. at 1104. The court reasoned that “[t]he named plaintiffs’ gains in obtaining an injunction prohibiting further invasions of the trust for the primary purpose of installing security equipment would be illusory indeed if the defendants were banned from funding security measures through the Commissary Fund at the Lexington facility only, but could finance those same measures at other institutions through invasions of Fund accounts.” Ibid.
The Court believes that it is necessary to enjoin the wholesale enforcement of the Act in order to provide complete relief to the plaintiffs. The nature of the relief sought does not impact any conduct by the defendant directed specifically toward the plaintiffs. Rather, the plaintiffs seek to prevent the defendant from interfering with their employers’ voluntary action. Public Act 297 itself bars public employers from paying partner benefits; it is not enforced against the individual plaintiffs. An injunction, therefore, will necessarily bar the defendant

Bassett v. Snyder, 951 F.Supp.2d 939 (2013)
from enforcing the Act against public employers, rather than against the individual plaintiffs. These circumstances parallel those in Bresgal v. Brock, 843 F.2d 1163 (9th Cir.1987), where the district court imposed an injunction directing the Secretary of Labor to integrate forestry workers into its enforcement of the Migrant and Seasonal Agricultural Workers Protection Act. That Act required registration of labor contractors with the Department of Labor and disclosure of employment conditions to workers; it also imposed health and safety *973 standards. Bresgal, 843 F.2d at 1165, 1169. The Secretary appealed, arguing that the injunction was overbroad, would affect more than the named plaintiffs, and would “require the national adoption of the court’s interpretation of the Act.” Id. at 1169. The court observed that “[c]lass-wide relief may be appropriate even in an individual action.” Id. at 1171 (citations omitted). It was appropriate in that case, the court held, because “it is labor contractors,” not the individual plaintiffs, “who are most directly affected by the injunction against the Secretary.” Ibid. Because the plaintiffs’ harm was the result of the statute’s effect on third-party conduct, it was impractical to attempt to isolate only those contractors who dealt with the plaintiffs and limit the injunction’s application. The court held that the district court properly ordered what turned out to be nationwide relief. Ibid.
The plaintiffs here are similarly situated to the plaintiffs in Bresgal. To provide effective relief, the injunction must prohibit the defendant from enforcing Public Act 297, which applies to public employers. An injunction applicable only to the named plaintiffs would be impractical and difficult to enforce. The injunction will not mandate any public employer to do anything; it simply returns the employer-employee relationship to its status before Public Act 297 was enacted.
End of Document

VII.
The Court concludes that the plaintiffs have standing to bring their challenge to the state statute, their claims are ripe, and abstention is not appropriate. The Court also finds that the plaintiffs have not stated a claim for which relief can be granted based on the deprivation of their right to substantive due process. However, they have stated a viable claim based on the Equal Protection Clause on which they are likely to succeed. Other factors favor issuance of a preliminary injunction.
Accordingly, it is ORDERED that the defendant’s motion to dismiss and amended motion to dismiss [dkt. # 15, 18] are GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that the Second Claim for Relief in the amended complaint is DISMISSED WITH PREJUDICE.
It is further ORDERED that the plaintiffs’ motion for preliminary injunction [dkt. # 18] is GRANTED.
It is further ORDERED that the defendant, his officers, agents, servants, employees, and attorneys, and all those in active concert and participation with him who receive actual notice of this order are RESTRAINED AND ENJOINED from enforcing Michigan Public Act 297 (2011) during the pendency of this action or until further order of the Court. The Court finds that no security is required because no costs or damages that could result from the defendant being wrongfully enjoined have been shown.
All Citations
951 F.Supp.2d 939

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 2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 1 of 30 Pg ID 3115

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

THERESA BASSETT and CAROL
KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and
BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI DENISE
MILLER and MICHELLE JOHNSON,

No. 2:12-cv-10038 HON. DAVID M. LAWSON

Plaintiffs, v

MAG. MICHAEL J. HLUCHANIUK

RICHARD SNYDER, in his official capacity as Governor of the State of
Michigan,

Defendant.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant Governor Rick Snyder moves this Court for summary judgment of Plaintiffs’ pursuant to Fed. R. Civ. P 56. No genuine issue of material fact relevant to a determination of Plaintiffs’ equal protection claim exists and the claim otherwise fails as a matter of law entitling Defendant to judgment. The filing of summary judgment motions and the fact the case would not be resolved without a decision from the Court was discussed

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 2 of 30 Pg ID 3116
at the September 5, 2013 Status Conference with the Court and satisfies L.R. 7.1(a).
Governor Rick Snyder asks that the Court grant this motion for the reasons more fully set out in the accompanying Brief and enter its judgment for Defendant dismissing this complaint with prejudice.
Defense counsel sought concurrence in this motion pursuant to L.R. 7.1(a) on February 14, 2014. Concurrence was denied.

Dated: February 14, 2014

Respectfully submitted,
Bill Schuette Attorney General
/s/ Margaret A. Nelson Margaret A. Nelson (P30342) Michael F. Murphy (P29213) Rock A. Wood (P41181) Assistant Attorneys General Attorneys for Defendant Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Nelsonm9@michigan.gov [P30342]

2

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 3 of 30 Pg ID 3117

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

THERESA BASSETT and CAROL
KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and
BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI DENISE
MILLER and MICHELLE JOHNSON,

No. 2:12-cv-10038 HON. DAVID M. LAWSON

Plaintiffs, v

MAG. MICHAEL J. HLUCHANIUK

RICHARD SNYDER, in his official capacity as Governor of the State of
Michigan,

Defendant.

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 4 of 30 Pg ID 3118
CONCISE STATEMENT OF ISSUES PRESENTED 1. Public Act 297 of 2011 does not infringe on any
constitutionally guaranteed right, or discriminate against Plaintiffs because of their sexual orientation, and is rationally related to legitimate, state interests. The statute, therefore, does not violate federal equal protection guarantees.
ii

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 5 of 30 Pg ID 3119
INTRODUCTION Public Act 297 is designed to further Michigan’s Marriage Amendment (“union of one man and one woman”) and to ensure fiscal responsibility in government, by limiting health insurance to the spouses of employees, and to either their dependents or their family members. By limiting benefits that are traditionally associated with marriage, the Act seeks to protect the unique status of marriage in law. It ensures that such benefits only extend to spouses, dependents, and family. If extended beyond its confines, marriage loses its central place. The Act does not target anyone, applying to all non-marital relationships. The real gravamen of the claim here is a challenge to the constitutionality of Michigan’s definition of marriage, which is being litigated in DeBoer v. Snyder (No. 12-cv-10285). The point is demonstrated by the fact that the justifications supporting the statute remain equally valid even if Michigan’s marriage law was constitutionally required to include same-sex unions. Public Act 297 would still protect marriage’s unique status under Michigan’s law, recognizing that only spouses, dependents, and family members should
1

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 6 of 30 Pg ID 3120
receive the benefits of marriage. It would continue to further fiscal
responsibility.
STATEMENT OF FACTS Public Act 297 of 2011 was signed into law by Governor Snyder,
on December 22, 2011. Public Act 297 provides, in pertinent part, that:
Sec. 3. (1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defined in the internal revenue code of 1986. (c) Otherwise eligible to inherit from the employee under the laws of intestate succession in this state. Sec. 4. If a collective bargaining agreement or other contract that is inconsistent with section 3 is in effect for a public employee on the effective date of this act, section 3 does not apply to that group of employees until the collective bargaining agreement or other contract expires or is amended, extended, or renewed. Mich. Comp. Laws §15.584. Recognizing that these benefits might be
provided through a negotiated contract, the law does not apply to any
existing collective bargaining agreement until it “expires or is amended,
extended, or renewed.” (Id.) At this same time, Michigan’s Public
Employment Relations Act was amended to make the provision of
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benefits in conflict with Public Act 297 a prohibited subject of collective bargaining. Mich. Comp. Laws §423.215.
The enacted law was different in a significant way from the one first introduced. The definition of “public employer,” which included the State’s public universities and would have applied the provision to them, was deleted. By removing the definition, the Legislature precluded application of Public Act 297 to “these institutions of higher learning.” Governor Snyder acknowledged and appreciated the Legislature’s actions in his Public Act 297 “signing” letter. (Motion Ex. 1 – December 22, 2011 letter, p. 1) The Governor also acknowledged the newly enacted law did not apply to the classified state civil service under the authority of Michigan’s Civil Service Commission, which has “responsibility for setting rates of compensation and regulating all conditions of employment in the classified service.” (Id. at p. 2.)
Indeed, the Civil Service Commission had already enacted what the law identifies as “domestic partner benefits.” Mich. Comp. Laws §15.581. At its January 26, 2011, meeting the Commission approved collectively bargained contract provisions negotiated between the Office of State Employer and representatives of four state employee unions
3

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 8 of 30 Pg ID 3122
providing these “domestic partner benefits” to members of the respective bargaining units. The Commission also adopted Resolution 11-01 authorizing the extension of these benefits to non-exclusively represented employees. (Motion Ex. 2, Commission Minutes, pp 2-5.) Covered state classified service employees who do not have an eligible spouse may enroll one qualified, unrelated adult, and that adult’s dependents, in the State Health Plan. (Motion Ex. 2, 11-01Resolution.) These provisions were effective with the new fiscal year, October 1, 2011. (Ex. 2, pp. 2-5; Ex. 3 A, p. 2.)
The Legislature may act timely to reject or reduce increases in “compensation” approved by the State’s Civil Service Commission. Mich. Const. 1963, art. XI, sec. 5, cl. 7. Here, the Legislature initiated action to reject the Commission’s Other Eligible Adult (“OEAI”) policy and approved contract provisions for state classified service employees, but failed to muster the necessary votes. (Motion Ex. 1, p. 2.)
Public Act 297 was enacted and signed into law approximately eleven months after the Civil Service Commission’s approval of this benefit for state classified service employees. Over the course of Public Act 297’s legislative process, the analysis of the law’s fiscal impact
4

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 9 of 30 Pg ID 3123
indicated it would “result in an indeterminate amount of savings for the State and local units of government. (Motion Ex 3 A, p. 2.) During the Legislature’s consideration of Public Act 297, the only costs available for analysis related principally to state employment. Those overall cost estimates ranged upwards from $893,000. (Motion Ex. 3 A, p. 2; 3 B, pp. 2, 3; 3 C, p. 2) A September 6, 2011 legislative analysis, though, also referenced costs at the University of Michigan—the number of recipients being 618; with costs ranging from $7,000 to $10,000 per person. (Motion Ex. 3 D, p. 6.) Using these exemplars, the analysis concluded when the “costs of all of the domestic partner benefits that are now offered by public employers is tallied, and the benefits are eliminated, then the cost-savings will be much, much higher.” (Id.)
A January 2, 2014 Report entitled Governments Offering Benefits, from the Partners Task Force for Gay & Lesbian Couples identifies eight Michigan local government units that offer “domestic partner” benefits. These units are: City of Ann Arbor; Ann Arbor Public School District; Detroit; East Lansing; Ingham County; Kalamazoo; Washtenaw County; Wayne County. (Motion Ex. 4, p. 12.) Three of these local government units provide benefits to the Plaintiff employees
5

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 10 of 30 Pg ID 3124
and their domestic partners—Ann Arbor Public Schools, Ingham County and the City of Kalamazoo. (R. 9, First Amended Complaint, ¶¶ 15, 19, 22, 26, 29, 34, 37, 41, ID 63-67.) A fourth public employer, Kalamazoo Valley Community College (KVCC), not identified in this Report, also provides “domestic partner” benefits to one Plaintiff couple here. (Id. at ¶¶ 45, 50, ID ## 68-69.) (Note: Each employer program refers to either “other qualified adult” or “other eligible adult” or “household member.” For purposes of this Brief, Defendant will refer to “other qualified adult” or OQA.)
While the program criteria for each of these employers varies, they all have certain similar eligibility requirements including; 1) the employee and OQA must have resided together for a specified period of time; the employee and OQA are not married to another party; the employee and OQA are not blood relatives, or not eligible to inherit from the other under Michigan’s laws of intestate succession. (Motion Ex. 9A-D.) Under these programs the City of Kalamazoo currently insures 5 OQAs at a total cost (health and dental) of $24,678; Ingham County currently insures 5 OQAs—two are of the same sex as the employees, three are opposite sex adults or dependents—at a current
6

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 11 of 30 Pg ID 3125
cost of $22,163; KVCC provides health, dental and vision coverage and enrolled 1 OQA in its pilot program; Ann Arbor Public Schools currently insures 20—10 are of the same sex and 10 are opposite sex adults or dependents. (Motion Ex. 5 City of Kalamazoo Dep Transcript, pp. 9, 10 and Dep Ex. 1; Ex. 6 Ingham County Dep Transcript, pp. 22-23; Ex. 7 KVCC Dep Transcript, p. 21, 32, 40; Ex. 8 City of Ann Arbor Dep Transcript, pp. 21-22, 37-38 and Dep Ex. 1)
The Plaintiffs identify themselves as same-sex couples who have been in committed relationships for between 8 and 25 years, and generally held themselves out as “domestic partners” (R. 9, First Amended Complaint, ¶¶ 8, 16, 23, 30, 38, and 46, ID ## 62, 63, 65-67). Plaintiffs Bassett, Ways, Jach, Bloss, and Miller are public employees whose employers provide OQA benefits. (R. 9, First Amended Complaint, ¶¶ 15, 19, 22, 26, 29, 34, 37, 41, 45, 50, ID ## 63-69.) Plaintiffs Kennedy, Breakey, Ramber, Ascheri, and Johnson are the respective same-sex partners of the public employee Plaintiffs. (Id.) Each of the Plaintiffs’ partners health insurance is provided by Plaintiff employees’ public employers under an OQA program. These benefits are extended either by a policy adopted by the public employer or
7

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 12 of 30 Pg ID 3126
through a collective bargaining agreement. (Motion Ex. 6 pp. 12, 38; Ex. 7, pp. 38-39; Ex. 9 A-D.)
Plaintiffs assert that prior to 2004 “a number” of public employers provided family health benefits to same-sex domestic partners. (Id. at, ¶ 61, ID # 71.) In 2004, the Michigan Constitution was amended by the People to add a “Marriage amendment” that provides 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.” Mich. Const. 1963, art. 1 §25. (Id. at, ¶ 62, ID # 71.)
The Michigan Supreme Court affirmed that art. 1, §25 prohibits public employers from providing benefits to same-sex domestic partners that relied on the existence of a relationship similar to marriage as eligibility criteria. National Pride at Work v. Granholm, 748 N.W. 2d 524, 537 (Mich. 2008). (Id. at, ¶ 65, ID # 72.)
In light of the National Pride decision, “some” public employers revised their health insurance policies to provide benefits that did not violate art. 1, §25. (Id. at, ¶ 66, ID #72.) The City of Kalamazoo, Ingham County and Ann Arbor Public Schools were among those who
8

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 13 of 30 Pg ID 3127
revised their eligibility criteria to conform to the National Pride decision. (Motion Exs. 9A-9C.)
Plaintiffs complaint raised constitutional challenges to Public Act 297 based on violations of equal protection on the basis of “sexual orientation and sex,” and substantive due process. (R. 9 First Amended Compliant, ¶¶ 107-117, 119-123, ID ## 83-87.) Plaintiffs’ substantive due process claims have been dismissed. (R. 75, Opinion and Order, p. 51, ID # 3087.) The Court also issued a preliminary injunction enjoining the enforcement of Public Act 297 during the pendency of this case. (Id.)
ARGUMENT I. Public Act 297 does not discriminate on the basis of sexual
orientation or sex and is otherwise rationally related to legitimate state interests. It does not violate federal guarantees of equal protection. The Equal Protection Clause commands no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Yet, “equal protection is not a license for courts to judge the wisdom, fairness or logic of legislative choices.” TriHealth, Inc. v. Board of Com’rs, Hamilton County, Ohio, 430 F.3d 783, 790-791
9

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 14 of 30 Pg ID 3128
(6th Cir. 2005) (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313314 (1993). Rather, the clause prevents states from making distinctions that (1) burden a fundamental right; (2) target a suspect class; or (3) intentionally treat individuals differently from others similarly situated without any rational basis. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
A law that neither implicates a fundamental right nor targets a suspect class is accorded rational basis review. San Antonio Dendep. School Dist. v. Rodriguez, 411 U.S. 1, 29; 93 S. Ct. 1278; 36 L. Ed. 2d 16 (1973). Thus, the law need only be “rationally related to legitimate government interests,” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007) (internal quotation marks and citation omitted), and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” Beach Commc’ns, Inc., 508 U.S. at 313. A law that burdens a fundamental right or targets a suspect class is generally “subject to strict scrutiny, and will be upheld only when [it] [is] narrowly tailored to a compelling governmental interest.” Does v.
10

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 15 of 30 Pg ID 3129
Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (internal quotation marks omitted).
A. Public Act 297 does not burden a fundamental right. Public Act 297 prohibits certain public employers from providing medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee unless the individual is married to the employee, a dependent of the employee or eligible to inherit from the employee under the intestacy laws of Michigan. Mich. Comp. Laws § 15.583. As this Court acknowledged in dismissing Plaintiffs’ substantive due process claims, Public Act 297 does not impermissibly burden any fundamental right—including the right to form and maintain intimate family relationships. (R. 75, Opinion and Order, p. 20, ID #3056.)
B. Public Act 297 does not target a suspect class. No court has recognized “domestic partners” as a suspect class for the purpose of equal protection analysis. The Sixth Circuit Court of Appeals has further declined to recognize sexual orientation as a suspect classification. Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir. 2012) (citing Scarbough, 470 F.3d at 261.)
11

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 16 of 30 Pg ID 3130
Nor does Public Act 297 classify on the basis of sexual orientation or sex. The Act draws lines between “individuals living in the same residence” who have a legally recognized relationship and those that do not. It prohibits all benefits whether between same-sex partners or opposite sex partners, whether the partners are in a committed relationship or are platonic partners sharing expenses. The fact samesex partners in a committed relationship may not qualify for benefits under a program conforming to Public Act 297 because they cannot currently marry under Michigan law, is irrelevant to this analysis contrary to Plaintiffs’ allegations and argument. The partner of a public employee in a same-sex platonic relationship cannot marry his or her partner either to retain these benefits.
Plaintiffs’ charge that Public Act 297 discriminates on the basis of sexual orientation because Michigan prohibits marriage between samesex couples is in reality nothing more than the proverbial red herring. Michigan’s “marriage amendment” is currently being challenged on equal protection grounds and the trial is scheduled to begin February 25, 2014. DeBoer, et al v Snyder, 12-cv-10285 (E.D. MI). If art. 1, § 25 is declared unconstitutional and enjoined, Plaintiffs’ equal protection
12

2:12-cv-10038-DML-MJH Doc # 84 Filed 02/14/14 Pg 17 of 30 Pg ID 3131
claim premised on Michigan’s bar to same-sex marriages fails because they will be legally able to marry. If art. 1, § 25 is upheld, Plaintiffs’ claim here also fails because the marriage bar is constitutional and related to legitimate state interests.
C. Plaintiffs are not treated differently than similarly situated individuals.
Prohibiting the State from denying equal protection of the laws is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)(citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Although the Court disagrees this element of the equal protection analysis applies here, “the basis for any equal protection claim is that government has treated similarly situated individuals differently.” Braun v. Ann Arbor Charter Township, 519 F.3d 564, 575 (6th Cir. 2008) (emphasis added) (citing Silver v. Franklin Township Bd. of Zoning Appeals, 966 F.2d 10331, 1036 (6th Cir. 1992)). (R. 75, Opinion and Order, pp. 31, 31, ID ##3067, 3068).1
1 Defendant recognizes the Court has decided this issue in the context of the Motion to Dismiss. It is reiterated here to assure it is preserved and to avoid any future “waiver” argument.
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“Similarly situated” in this context means the individuals being compared are “identical in all relevant respects or directly comparable . . . in all material respects.” Radvansky, 395 F.3d at 312; TriHealth, 430 F.3d at 790. Unmarried employees, whether opposite-sex or samesex, are not similarly situated to married employees in all material respects.
The fact that unmarried opposite-sex domestic partners may change their status by marrying and qualify for benefits while same-sex domestic partners cannot, is irrelevant to this analysis. At the time the domestic partner is excluded from benefits by Public Act 297, he or she is not married to the same-or opposite-sex public employee.
D. Public Act 297 is rationally related to legitimate state interests.
Generally, legislation is presumed valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Cleburne, 483 U.S. at 440 (citations omitted). When social or economic legislation is at issue, like here, the Equal Protection Clause allows the State wide latitude, “the Constitution presumes that even improvident decisions will eventually be rectified by
14

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the democratic processes.” Id. (citing United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174 (1980)). Thus, social or economic legislation does not violate equal protection merely because the classification made is imperfect or in practice “results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 501, 502 (1970) (citing Lindsley v. Natural Carbonic Gas Co., 330 U.S. 61, 78 (1911)).
This general rule gives way only when the challenged statute uses suspect classifications. Public Act 297 does not classify on the basis of sexual orientation but rather on the basis of a domestic partnership— defined as an individual currently residing in the same residence as a public employee. In any event, a classification based on sexual orientation would not require heightened scrutiny. Davis, 679 F.3d at 438. Thus, rational basis review applies. Public Act 297 is rationally related to legitimate state interests.
1. Public Act 297 demonstrates a preference for marriage and familial relationships recognized by state law furthering legitimate state interests.
Public Act 297 permits a public employer to provide health and other fringe benefits to an employee currently residing in the same residence as a public employee when (1) married to the employee; (2) a
15

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dependent of the employee; or (3) eligible to inherit under the State’s intestacy laws. This preference for marriage and other familial relationships recognized under state law is related to legitimate state interests.
Public Act 297 recognizes and the supports Michigan’s constitution and laws directed at developing and maintaining familial relationship, social, and economic support. As explained by the Michigan Supreme Court in interpreting Michigan’s constitution, a local government cannot recognize a domestic partnership that is similar to marriage for any purpose, which includes “for the purpose of providing health-insurance benefits.” National Pride, 748 N.W.2d at 539 n. 18. The point of the Michigan Marriage Amendment and Public Act 297 is to ensure that the benefits of marriage are not distributed to other similar relationships, thereby protecting marriage’s unique status in law. The listed classes in Public Act 297 relate to marriage and family.
There are social and economic benefits to the State resulting from marriage including reducing welfare payments, increasing tax revenue and reducing costs incurred by the state related to criminal justice, child protection and health care. (Motion Ex. 10, Price Expert Report –
16

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Economic Impacts of Michigan’s Public Employee Domestic Partner Benefit Restriction Act of 2011, ¶¶ 9, 10, 13, 20, 22, 23.) Dr. Price opines that marriage promotes economic and social stability. It reduces costs to the State related to providing care as a substitute for the family unit. It promotes the stability of the family unit, child development, and can change adult behavior. Id. These matters are all legitimate state purposes.
2. Public Act 297 eliminates local government programs that are irrational and unfair.
The local governmental policies addressed by Public Act 297 included anomalies, by preventing married couples from sharing their benefits with persons other than their spouses and preventing employees from sharing their benefits with blood relatives. In other words, according to the local governmental policies, an employee can provide health benefits to his fraternity brother, but not his biological brother. If a spouse has his or her own health benefits, these policies preclude the employee from sharing his or her benefits with an adult child, for example, or anyone else. Even though the constitutionality of the policy was upheld, nonetheless these exclusions in the State Civil
17

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Service Commission’s policy were recently described as “absurd,” “unfair,” even “ridiculous.” Attorney General v. Civil Service Comm’n., 2013 WL 85805 (Mich. App. 2013) (Attached as Motion Ex. 11.)
Eliminating policies that disfavor familial relationships and are “absurd”, “unfair,” even “ridiculous” is rational and related to legitimate state interests in promoting fair and reasonable local government policies.
3. Public Act 297 is rationally related to the State’s overall goal of reducing the costs of government and promoting financially sound local government units.
When viewed in light of the overall legislative scheme developed over the past 3 years, Public Act 297 is a logical and cohesive part of the effort to reduce costs and to address the fiscal insecurity of local governments that has increased exponentially over the past five years. It is not singular and does not target same-sex couples. Indeed, several legislative enactments have addressed public employee employment and retirement benefits:
 2011 PA 4, Mich. Comp. Laws § 141.1501, et. seq.2 the Local Government and School District Fiscal Accountability Act,
2 Public Act 4 was rejected by referendum November 5, 2012. It has been replaced by 2012 PA 436, Mich. Comp. Laws. § 141.1541 et. seq.
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expanded the powers, duties, and responsibilities of Emergency Managers appointed to restore the fiscal integrity and accountability of a financially distressed local government or school district–including the authority to rescind or modify collectively bargained labor agreements, or compensation and fringe benefits paid to employees;
 2011 P.A. 9, Mich. Comp. Laws § 423.215, added sections (7), (8) and (9) to allow for the rejection, modification, or termination of collective bargaining with the appointment of an emergency manager for or entry into a consent agreement the public employer and suspending the duty to collective bargain for the period of a consent agreement.
 2011 PA 264, Mich. Comp. Laws § 38.1, et. seq., requires state employees who opt to remain in the State’s defined benefits retirement plan to contribute 4% of their annual salary until retirement and requires certain retirement health-care funding elections by other state employees;
 2010 PA 185, Mich. Comp. Laws § 38.35, required state employees to contribute 3% of their annual salary to the cost of retirement health care benefits;
 2010 PA 135, Mich. Comp. Laws § 38.1343e, required public school employees to contribute 3% of their annual salary to the cost of retirement health-care benefits;3
 2011 PA 152, Mich. Comp. Laws § 15.561, imposes caps on public employer contributions to publicly funded health insurance for public employees.
3 This statute and Mich. Comp. Laws § 38.35 were ultimately struck down by the Michigan Supreme Court. However they have been replaced by subsequent legislation related to school and state employee retirement contributions.
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 2011 PA 63, introduced the Economic Vitality Incentive Program, which provides for increased revenues to each city, village or township that fulfills requirements in each of three categories, Accountability and Transparency; Consolidation of Services; and Employee Compensation.
These varied statutes demonstrate Public Act 297 is but a smaller piece of a larger effort to restore fiscal responsibility, reduce public spending and redefine the obligations of the public employer and public employee in light of current financial, economic, and business realities. These are significant matters of public concern and importance that transcend the results in this case. They relate directly to the State’s authority over its local governments. Bivens v. Grand Rapids, 505 N.W. 2d 239, 241, 242 (Mich. 1993). Indeed, state law generally controls over local enactments and policy. Taunt v. General Retirement System, 233 F.3d 899, 906 (6th Cir. 2000) (citing Rental Property Owners Ass’n. of Kent Co. v. City of Grand Rapids, 566 N. W. 2d 514, 519 (Mich. 1997)).
These purposes are reasonable, rational, and related to legitimate state interests and responsibilities. United States v. Windsor, ___ U.S. ___; 133 S. Ct. 2675, 2693; 186 L. Ed. 2d 808 (2013).
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E. Public Act 297 was not motivated by animus or ill-will. In support of their claim that the enactment of Public Act 297 was motivated by animus, Plaintiffs’ point to press releases issued by 9 of the 90 legislators, who voted in favor of the act. (R. 18-8, Exs. G-1 to G13, Page ID # 273-98).4 To the extent such releases are a probative part of this particular Act’s “legislative history,” which is questionable, the releases do not reveal discriminatory animus on the part of the Michigan Legislature towards gays and lesbians. First, only one of the 13 releases was issued in context of enacting Public Act 297. The remaining 12 were issued by legislators directly in response to either the Civil Service Commission’s January 2011 decision to extend health benefits to a broad group of individuals, including same-sex or opposite-sex domestic partners of state employees, their dependents, and to essentially anyone who shared costs with a state employee, other than family, (R. 18-8, Exs. G-1 and G-2, Page ID # 27376), or to the Michigan House of Representatives’ failure to approve a
4 The legislative history for Public Act 297 may be found at, www.legislature.mi.gov/(S(g4a4ye55x4vaqd45p1aypd45))/mileg.aspx?pa ge=getObject&objectName=2011-HB-4770.
21

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joint resolution that would have rejected the Commission’s decision. (R. 18-8, Exs. G-3 to G-12, Page ID # 277-96). Mich. Const., art. XI, § 5.
These press statements made by individual legislators before Public Act 297 had even been introduced are thus too remote to reasonably be considered probative of the “legislative history” of Public Act 297. Moreover, the statements of just 9 legislators cannot reasonably be considered sufficient to impute animus on the part of the 81 other legislators who voted for the Act, or of the Governor, who signed the Act into law. But even if that were not the case, the press releases reveal no animus towards gays or lesbians.
“Animus is defined as ‘ill will, antagonism, or hostility usually controlled but deep-seated and sometimes virulent.’ Similarly, ill will is defined as an ‘unfriendly feeling: animosity, hostility.’ ” Loesel v City of Frankenmuth, 692 F.3d 452, 466 (6th Cir. 2012), quoting Webster’s Third New International Dictionary, Unabridged (2002). None of the press releases evidence deep-seated hostility or animosity towards gays and lesbians based on their sexual orientation.
A careful review of the releases shows that these legislators were primarily angered by the Civil Service Commission’s decision to expand
22

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state health benefits at a time the State’s budget was experiencing fiscal crisis. For example, one release provides that “ ‘[a]t a time when we are making every effort to cut spending and govern with greater accountability, it is utterly irresponsible for the Civil Service Commission to enact this policy[.]’ ” (R. 18-8, Ex. G-1, Page ID # 27374). All of the releases contain similar statements expressing concern over the costs of expanding state benefits.
Five of the releases also express the view of the particular legislator that the expansion of benefits violated Michigan’s marriage amendment and the ruling of the Michigan Supreme Court. For example, one release provides:
“The people of this state, the Attorney General and the Michigan Supreme Court have all decided in recent years that marriage is between one man and one woman and to extend health benefits to unions that do not fall into that category is disrespectful to the people. For a state organization such as the Civil Service Commission] to blithely ignore these mandates is reprehensible.” (R. 18-8, Ex. G-1, Page ID # 273-74.) Four other releases contain similar expressions. See (R. 18-8, Exs. G-2 to G-5, Page ID # 276-82). The one press release actually issued in connection with Public Act 297, contains similar expressions:
23

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“It is not the responsibility of taxpayers to support the roommates and unmarried partners of public employees . . . . Providing benefits in this way is not the role of the state, especially when tax dollars are in short supply and there are critical programs being affected by the decrease in revenue. . . . This is a fiscal issue. We are doing all we can to respect the will of the people and not place an unnecessary economic burden on our residents while so many are struggling to make ends meet.”
(R. 18-8, Ex. G-13, Page ID # 297-98.)
These expressed concerns over costs and the possibility that the
Civil Service Commission’s actions violated the Michigan Constitution
plainly do not show “animus” – hostility or antagonism – towards gays
and lesbians based on their sexual orientation. On the whole, the press
releases do not reveal a “legislative history” of the kind the Supreme
Court recently found so troubling in Windsor, 133 S. Ct. at 2693-2695
(holding that federal Defense of Marriage Act was enacted for
discriminatory purpose and violated Fifth Amendment).5
Nor does it matter that the fiscal concerns expressed by the
various legislators were not subsequently borne out. Being wrong did
not subsequently render their statements hostile. See, e.g. Windsor,
5 Of the 13 press releases, only one expresses views that might give pause, (R. 18-8, Ex. G-4, Page ID # 279-80), but certainly the voice of the one cannot be imputed to the other 89 legislators.
24

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133 S. Ct. at 2708 (Scalia, J., dissenting) (“errors may be made in good faith, errors though they are”). Similarly, it need hardly be said that individuals may hold deep-seated personal views completely inapposite of the other, and yet bear no animosity, no hatred towards each other. Here, to the extent several legislators expressed views supporting traditional marriage, such expressions are not per se discriminatory or hostile. (Id.) (Scalia, J., dissenting) (“to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements”). Plaintiffs in this case have fallen far short of proving that Public Act 297 was motivated by animus or ill-will. Scarborough, 470 F.3d at 261.
CONCLUSION AND RELIEF REQUESTED Defendant Governor Rick Snyder asks this Court to grant this motion for summary judgment, dismiss this complaint with prejudice, and enter its judgment for Defendant.
25

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Respectfully submitted,
Bill Schuette Attorney General

Dated: February 14, 2014

/s/ Margaret A. Nelson
Margaret A. Nelson (P30342) Michael F. Murphy (P29213)
Rock A. Wood (P41181) Assistant Attorneys General
Attorneys for Defendant Public Employment, Elections &
Tort Division P.O. Box 30736
Lansing, MI 48909 (517) 373-6434
Nelsonm9@michigan.gov [P30342]

CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on February 14, 2014, I electronically filed

the above document(s) with the Clerk of the Court using the ECF

System, which will provide electronic copies to counsel of record.

[Tracer Line]

/s/ Margaret A. Nelson Assistant Attorney General
Attorneys for Defendant Public Employment, Elections &
Tort Division P.O. Box 30736
Lansing, MI 48909 (517) 373-6434
Nelsonm9@michigan.gov [P30342]

26

 
 2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 1 of 49 Pg ID 3588

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER, and MICHELLE JOHNSON,

Case No. 2:12-cv-10038-DML-MJH

Plaintiffs, vs.

Hon. David M. Lawson Mag. Michael J. Hluchaniuk

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan,

Defendant. _______________________________/

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Plaintiffs Theresa Bassett, Carol Kennedy, Peter Ways, Joe Breakey,

JoLinda Jach, Barbara Ramber, Doak Bloss, Gerardo Ascheri, Denise Miller, and

Michelle Johnson, by counsel, hereby submit this Motion for Summary Judgment

pursuant to Federal Rule of Civil Procedure 56.

In compliance with Local Rule 7.1(a), on February 14, 2014, Plaintiffs’

counsel conferred with Defendant’s counsel. Plaintiffs’ counsel explained the

nature of Plaintiffs’ motion and its legal basis, but Defendant did not concur in the

relief sought.

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 2 of 49 Pg ID 3589

Dated: February 17, 2014
Michael J. Steinberg (P43085) Jay D. Kaplan (P38197) Kary L. Moss (P49759) Attorneys for Plaintiffs American Civil Liberties Union Fund
of Michigan 2966 Woodward Ave. Detroit, MI 28201 (313) 578-6814 msteinberg@aclumich.org kaplan@aclumich.org kmoss@aclumich.org
Amanda C. Goad Attorney for Plaintiffs American Civil Liberties Union
Foundation 1313 West 8th Street Los Angeles, CA 90017 (213) 977-9500 agoad@aclu.org

Respectfully submitted, /s/ John A. Knight
John A. Knight Attorney for Plaintiffs American Civil Liberties Union
Foundation 180 N. Michigan Ave., Ste. 2300 Chicago, IL 60601 (312) 201-9740 jaknight@aclu.org
Donna M. Welch, P.C. (admission pending) Bradley H. Weidenhammer (admission pending) Amy E. Crawford Attorneys for Plaintiffs Kirkland & Ellis, LLP 300 North LaSalle St. Chicago, IL 60654 (312) 862-2000 dwelch@kirkland.com bweidenhammer@kirkland.com amy.crawford@kirkland.com

2

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 3 of 49 Pg ID 3590

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER, and MICHELLE JOHNSON,

Case No. 2:12-cv-10038-DML-MJH

Plaintiffs, vs.

Hon. David M. Lawson Mag. Michael J. Hluchaniuk

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan,

Defendant. _______________________________/

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 4 of 49 Pg ID 3591
TABLE OF CONTENTS STATEMENT OF ISSUES PRESENTED............................................iv CONTROLLING OR MOST APPROPRIATE AUTHORITIES ..........v-vi TABLE OF AUTHORITIES ................................................................vii-xi INTRODUCTION ................................................................................1 UNDISPUTED FACTS ........................................................................2 I. PASSAGE OF THE ACT AND ITS ECONOMIC IMPACT .....2
A. The History and Passage of the Act ..................................2 B. The Financial Impact of the Act........................................6
1. Initial Figures..........................................................6 2. Cost Savings to the State.........................................7 3. Cost Savings to Local Units of Government ...........10 II. THE LAW’S IMPACT ON THE PLAINTIFFS .........................12 ARGUMENT........................................................................................15 I. PLAINTIFFS HAVE SUCCEEDED ON THE MERITS ............16 A. The Act Violates Plaintiffs’ Rights to Equal Protection ....16 1. The Act Intentionally Targets Gay and Lesbian
Families for Differential Treatment on the Basis of Sexual Orientation ..............................................16 2. The Act Has No Rational Basis...............................18 a. The Act Does Not Cut the State’s Costs........18
ii

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b. The Act Does Not Promote “Traditional Marriage” or “Enforce” Existing Law...........22
3. The Act Was Motivated by An Impermissible Purpose to Discriminate ..........................................23
B. The Act Also Fails Under Heightened Scrutiny ................27 1. Gays and Lesbians Are a Suspect or a Quasi-Suspect Class................................................27 2. The Act Fails Heightened Scrutiny .........................32
II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE ACT IS ENFORCED .........................................................32
III. THE BALANCE OF THE EQUITIES FAVORS ENTRY OF AN INJUNCTION ......................................................................34
IV. THE PUBLIC INTEREST FAVORS AN INJUNCTION ...........34 CONCLUSION ....................................................................................35
iii

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STATEMENT OF ISSUES PRESENTED 1. Whether the undisputed material facts show that 2011 P.A. 297 (“the Act”)
intentionally discriminates against lesbian and gay public employees and their domestic partners because of their sexual orientation. 2. Whether the Act violates Plaintiffs’ rights to equal protections in that it has no rational relationship to a legitimate governmental interest, including the purported goals of costs savings, promoting traditional marriage, or enforcing the marriage amendment and the Nat’l Pride at Work v. Governor, 748 N.W.2d 524 (Mich. 2008) decision. 3. Whether the Act violates Plaintiffs’ rights to equal protection in that it was motivated by an impermissible purpose to discriminate against gays and lesbians. 4. Whether gays and lesbians are a suspect or a quasi-suspect class. 5. Whether the Act fails strict or intermediate scrutiny. 6. Whether the Act must be permanently enjoined, because without an injunction Plaintiffs will suffer irreparable harm and the balance of equities and the public interest favor entry of an injunction.
iv

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 7 of 49 Pg ID 3594
CONTROLLING OR MOST APPROPRIATE AUTHORITIES
Court Rules:
Fed. R. Civ. P. 56
Cases:
Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005)
Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013)
Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001)
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010)
Dragovich v. United States Dep’t of the Treasury, 848 F. Supp. 2d 1091 (N.D. Cal. 2012)
Erie Cnty. Retirees Ass’n v. Cnty. of Eria, Pa., 220 F.3d 193 (3d Cir. 2000)
Johnson v. New York, 49 F.3d 75 (2d Cir. 1995)
Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250 (1974)
Moore v. Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002)
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390 (6th Cir. 1987)
Schalk v. Teledyne, Inc., 751 F. Supp. 1261 (W.D. Mich. 1990) v

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 8 of 49 Pg ID 3595
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)
Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997)
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)
United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)
W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015 (W.D. Tenn. 2000)
United States v. Windsor, 113 S. Ct. 2675 (2013)
vi

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 9 of 49 Pg ID 3596
TABLE OF AUTHORITIES
Court Rules:
Fed. R. Civ. P. 56(a) .............................................................................................15
Cases:
Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005)........................................................................17
Alco Universal Inc. v. City of Flint, 192 N.W.2d 247 (Mich. 1971) ....................................................................25
Att’y Gen. Bill Schuette v. Mich. Civil Serv. Comm’n, No. 11-538 (Mich. Cir. Ct. Oct. 6, 2011) ......................................................4
Barbour v. Dep’t of Soc. Servs., 497 N.W.2d 216 (Mich. App. 1993) ...........................................................30
Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013) ...............................................passim
Baxtrom v. Herold, 383 U.S. 107 (1966)....................................................................................19
Bedford v. New Hampshire Cmty. Technical Coll. Sys., No. 04-E-229, 2006 WL 1217283 (N.H. Super. Ct. May 3, 2006) ..............18
Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001)................................................................. 32-33
Bowers v. Hardwick, 478 U.S. 186 (1986)....................................................................................28
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).........................................................................16, 28-29
Clark v. Jeter, 486 U.S. 456 (1988)....................................................................................32 vii

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 10 of 49 Pg ID 3597
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010), aff’d, 656 F.3d 1008 (9th Cir. 2011) .....................................................18, 33
Davis v. Prison Health Serv., 679 F.3d 433 (6th Cir. 2012).......................................................................27
Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), cert. denied, 133 S. Ct. 2884 (2013)...........................................18, 21, 26-27
Dragovich v. United States Dep’t of the Treasury, 848 F. Supp. 2d 1091 (N.D. Cal. 2012)............................................18, 26-27
Elrod v. Burns, 427 U.S. 347 (1976).............................................................................. 32-33
Erie Cnty. Retirees Ass’n v. Cnty. of Eria, Pa., 220 F.3d 193 (3d Cir. 2000)........................................................................17
Frontiero v. Richardson, 411 U.S. 677 (1973).........................................................................28-29, 32
Golden v. Kelsey-Hayes Co., 845 F. Supp. 410 (E.D. Mich. 1994), aff’d, 73 F.3d 648 (6th Cir. 1996) ...............................................................34
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012)............................................. 28, 31, 32
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ..........................................................................28
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990).......................................................................29
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ......................................................................28, 31
viii

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 11 of 49 Pg ID 3598
Johnson v. New York, 49 F.3d 75 (2d Cir. 1995)............................................................................17
Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012).......................................................................15
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008)....................................................... 28, 29, 30, 32
Lawrence v. Texas, 539 U.S. 558 (2003).................................................................. 19, 28, 29, 31
Lyng v. Castillo, 477 U.S. 635 (1986)...................................................................28-29, 30, 31
Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558 (6th Cir. 1982)................................................................. 34-35
Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250 (1974)....................................................................................21
Moore v. Detroit Sch. Reform Bd., 293 F.3d 352 (6th Cir. 2002).......................................................................24
Nat’l Pride at Work v. Governor, 748 N.W.2d 524 (Mich. 2008) .......................................................... 2, 19, 22
Obergefell v. Wymyslo, No. 1:13-cv-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013) ................28
Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012)....................................................28, 29
Perry v. Brown, 725 F.3d. 1140 (9th Cir. 2013)....................................................................28
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)............................................ 28, 31, 32
ix

2:12-cv-10038-DML-MJH Doc # 88 Filed 02/17/14 Pg 12 of 49 Pg ID 3599
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390 (6th Cir. 1987).....................................................................34
Plyler v. Doe, 457 U.S. 202 (1982)....................................................................................16
Romer v. Evans, 517 U.S. 620 (1996).............................................................................. 23-24
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006).......................................................................28
Schalk v. Teledyne, Inc., 751 F. Supp. 1261 (W.D. Mich. 1990), aff’d, 948 F.2d 1290 (6th Cir. 1991) ................................................33, 34-35
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014).......................................................................28
Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997)................................................................. 23-24
TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783 (6th Cir. 2005).......................................................................16
United States v. Windsor, 133 S. Ct. 2675 (2013).....................................................................21, 23-24
United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)................................................................... 23-24, 25-26
Vance v. Bradley, 440 U.S. 93 (1979)......................................................................................19
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)................................................................28, 29
Vill. of Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252 (1977)....................................................................................24 x

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W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015 (W.D. Tenn. 2000) ............................................. 21-22
Washington v. Glucksberg, 521 U.S. 702 (1997)....................................................................................32
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012).................................................................passim
Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 20 (2008)..................................................................................32
Statutes and Ordinances: 2011 P.A. 152 .........................................................................................................8 2011 P.A. 297 ................................................................................................ passim I.R.C. § 152 (2006) .................................................................................................5 M.C.L. § 15.583....................................................................................................18 M.C.L. §§ 18.1115(5), 18.1349...............................................................................7 M.C.L. §§ 37.2102(1), 37.2202, 37.2302, 37.2402, 37.2502........................... 30-31 M.C.L. §§ 141.913, 141.911 ...................................................................................7 M.C.L. § 141.917....................................................................................................8 M.C.L. § 700.2103..................................................................................................5 M.C.L. §§ 750.158, 750.159, 750.338, 750.338a ..................................................29 Mich. Const. Art. 1, § 25...................................................................................2, 30 Mich. Const. Art. IX, § 10 ......................................................................................7 Mich. Const. Art. IX, § 30 ......................................................................................7
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INTRODUCTION Plaintiffs are local government, public school, and community college employees (Bassett, Ways, Jach, Bloss, and Miller (collectively, the “Public Employees”)) and their committed life partners (Kennedy, Breakey, Ramber, Ascheri, and Johnson (collectively, the “Domestic Partners”)). The government bodies that employ the Public Employees offer health insurance benefits for “other qualified adults” or some similar designation, which Public Employees have been able to provide to their Domestic Partners. However, in December 2011, the Public Employee Domestic Partner Benefit Restriction Act (the “Act”) became law. The Act imposes a discriminatory ban on partner health insurance coverage while leaving employers free to provide benefits not only to their heterosexual employees’ spouses but also to a broad swath of other related or unrelated individuals. 2011 P.A. 297 (codified at M.C.L. §§ 15.581-15.585) (Ex. A). Many of the Domestic Partners, some of whom have serious medical conditions such as high blood pressure and glaucoma, lost their health insurance coverage because of the Act, exposing them to potentially severe financial and health consequences. Plaintiffs filed suit on January 5, 2012 and in March they moved to preliminarily enjoin the enforcement of the Act. Defendant moved to dismiss Plaintiffs’ complaint. On June 28, 2013, this Court denied Defendant’s motion to dismiss Plaintiffs’ equal protection claim, granted Plaintiffs’ motion for a
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preliminary injunction, and enjoined the enforcement of the Act. Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013) (Docket No. 75). Now Plaintiffs move for summary judgment and ask this Court to enter a permanent injunction against the enforcement of the Act.
UNDISPUTED FACTS I. PASSAGE OF THE ACT AND ITS ECONOMIC IMPACT
A. The History and Passage of the Act After Michigan passed an anti-gay marriage amendment in 2004, Mich. Const. Art. 1, § 25 (the “marriage amendment”), Attorney General Mike Cox issued an opinion stating that providing benefits to domestic partners violated the marriage amendment when eligibility for benefits was “characterized by reference to the attributes of marriage.” Mich. Atty. Gen. Op. 7171 (Mar. 16, 2005) (Ex. F). Subsequently, in Nat’l Pride at Work v. Governor, 748 N.W.2d 524, 534-36 (Mich. 2008), the Michigan Supreme Court ruled that existing government plans for providing health insurance coverage to same-sex domestic partners on the basis of attributes similar to those of marriage—such as the sex of the partners—violated the marriage amendment. Id. Many Michigan public employers changed their benefits policies to conform to the National Pride decision, by dropping coverage criteria that pertained to attributes similar to marriage and instead provided benefits for “other qualified
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adults,” “other eligible adults,” “household members,” or some similar designation.1 (See Exs. B-E (criteria used by Plaintiffs’ employers)). For example, employers ended the policies’ limitation to same-sex domestic partners by dropping all reference to the sex of the partners.
However, some Michigan lawmakers did not want same-sex partners to receive health benefits even if they were provided pursuant to benefits plans that conformed to National Pride. When Michigan’s Civil Service Commission (“Commission”) announced in January 2011 that it would extend health insurance benefits to unrelated designees of State workers with whom the workers had been living for at least twelve months, Rep. Pete Lund, who later co-sponsored the Act, disparaged this decision as “an absolute abomination . . . that shifts people’s hard earned dollars into the pockets of same-sex partners.” Press Release, Michigan House Republicans, Lund Calls to Abolish Civil Service Commission (Jan. 27, 2011) (Ex. G-2).2 Representative Dave Agema, the Act’s lead sponsor, declared: “The people of this state, the Attorney General and the Michigan Supreme Court have all decided in recent years that marriage is between one man and one woman
1 For the sake of simplicity, this brief refers to all such benefits as “other qualified adult” or OQA benefits. 2 Defendant has stipulated that Exhibits G-1 to G-13 are true, correct and authentic copies of the originals issued by the legislators and limits his objection to their admissibility to “relevance and prejudice.” (Ex. 19 ¶¶ 2-14). They are relevant to show the legislature’s discriminatory animus towards gays and lesbians. Bassett, 951 F. Supp. 2d at 96.
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and to extend health benefits to unions that do not fall into that category is disrespectful to the people.” Press Release, Michigan House Republicans, Agema Calls CSC Ruling “Utterly Irresponsible” (Jan. 26, 2011) (Ex. G-1). When the House failed to obtain a two-thirds majority to reverse the Commission’s decision in March 2011, Agema again accused the Commission of “act[ing] as if it is above the law and disregard[ing] the state constitution in its daily work” by “[e]xtending health benefits to the live-in partners and roommates of state employees.” Press Release, Michigan House Republicans, Agema “Appalled” by Dems’ No Votes (Mar. 23, 2011) (Ex. G-3). In May 2011, Attorney General Bill Schuette filed suit in Michigan state court to enjoin the Commission’s provision of benefits to other eligible adult individuals (OEAIs), claiming that granting the benefits exceeded the State’s authority.3
In June 2011, Agema introduced the Public Employee Domestic Partner Benefit Restriction Act. H.B. 4770, 96th Leg. (Mich. 2011). As its name makes plain, the Act’s only objective is to prevent public employees’ domestic partners from receiving health insurance.4 The relevant portion of the Act reads:
3 The court rejected Schuette’s argument and ruled that the Commission was within its authority to offer benefits to OEAIs. Att’y Gen. Bill Schuette v. Mich. Civil Serv. Comm’n, No. 11-538 (Mich. Cir. Ct. Oct. 6, 2011) (Ex. H), aff’d, slip op., No. 306685 (Ct. App. Jan. 8, 2013), 2013 WL 85805, appeal denied, 493 Mich. 974 (2013). 4 The House Fiscal Agency’s analysis of the Act discussed the continued provision of domestic partner benefits after the marriage amendment and the National Pride
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(1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defined in the internal revenue code of 1986. (c) Otherwise eligible to inherit from the employee under the laws of intestate succession in this state.
(2) A provision in a contract entered into after the effective date of this act that conflicts with the requirements of this act is void.
2011 P.A. 297 (Ex. A). The Act aims to slam the door on benefits for employees’
partners while leaving it wide open to benefits for employees’ distant relatives
(regardless of whether they live with the employee or depend on the employee for
support) and even to unrelated people who meet the IRS’s definition of
“dependent.” See M.C.L. § 700.2103 (establishing intestate succession to
descendants of decedent’s grandparents, which encompasses blood relatives as
distant as first cousins several times removed, grandnieces and their offspring,
etc.); I.R.C. § 152 (2006); see also Internal Revenue Service, Exemptions,
Standard Deductions, and Filing Information, No. 501, at 16 (2011) (noting, as an
example, that “an unrelated friend and her 3-year-old child” can be a taxpayer’s
dependents under certain circumstances). Further demonstrating that the Act is
irrationally aimed at domestic partners, the Act applies only to adults who “resid[e]
in the same residence as a public employee,” such that employers could legally
case as the “Apparent Problem” solved by the Act. House Fiscal Agency, Prohibit Domestic Partners Benefits and Exclude from Collective Bargaining 1-4 (Sept. 6, 2011) (Ex. I) (Ex. 19 ¶ 15).
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offer benefits to unmarried partners of employees so long as they do not live with the covered employees.
The Act was signed into law by Defendant in December 2011. Defendant issued a signing statement clarifying that the provisions of the bill “do not extend to university employees or state employees under civil service,” consistent with the limitations of the Michigan Constitution. (Ex. J at 2) (Ex. 19 ¶ 16).
B. The Financial Impact of the Act 1. Initial Figures
The legislature passed the Act based on false and inflated estimates and with no information about its actual financial impact. The Office of the State Employer (“OSE”) provided an initial estimate of how much the Act would save the State, but it assessed the cost of coverage only to State employees, who are not covered by the Act. (Ex. J. at 1-2). And the initial estimate the OSE provided—savings as high as $8 million (Ex. I at 5 n.3) (Ex. 19 ¶ 15)—turned out to be inflated and was later revised to less than $893,000 by the Senate Fiscal Agency. (Ex. K at 2) (Ex. 19 ¶ 17). Thus when the Legislature passed the Act, it had no information about the supposed cost savings of eliminating benefits to those employees actually covered by the Act. (Ex. I at 6 (“Comprehensive data are not available, so estimates cannot be made for what the savings would be for other public employers defined in the bill (i.e. city, village, township, county, political subdivision, school district,
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community college, public university, etc.)”); Ex. 3.A at 1-6, Ex. 3.G at 1-2; Ex.
3.J at Bates No. SOM 1076).
2. Cost Savings to the State The Act will not save the State money. The State funds local units of
government according to formulas unrelated to health care benefits, and local units
of government have discretion to allocate those funds. Put simply, the amount of
money the State will expend in a given fiscal year is exactly the same with the Act
as without it. (Ex. 7 at 2 (admitting that “[n]o impact on the State or its budge[t]
have resulted from the preliminary injunction being entered in this case.”)).
State funds are allocated to local units of government by formulas set by the Michigan Constitution and statutes.5 These formulas are based largely on
population (for cities, villages, townships, and counties) or number of pupils (for schools).6 These calculations do not take into account the number of public
employees employed by that unit of government, the number of public employees
receiving health insurance benefits, or the number of insureds covered by the unit
5 Under state law, the State must direct at least 48.97% of all spending to local governmental units. Mich. Const. Art. IX, § 30; M.C.L. §§ 18.1115(5), 18.1349; State Budget Office, Statement of the Proportion of Total State Spending from State Sources Paid to Units of Local Government (Legal Basis), at 4 (2011) (Ex. L) (Ex. 19 ¶ 18). 6 The State provides funds to cities, villages, townships, and counties through revenue-sharing payments, allocated largely by population. See Mich. Const. Art. IX, § 10; M.C.L. §§ 141.913, 141.911. Public school districts are funded through the School Aid Fund, which is allocated on a per-pupil funding formula. House Fiscal Agency, Background Briefing: School Aid 9-10, 22-28 (2014) (Ex. 10).
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of government. As such, the type of insurance benefits local units of government
choose to provide their employees does not affect the amount of state funding that
they receive, as Defendant admits. (Ex. 3.F at 3-11).
Moreover, if local units of government are forced to stop offering “other
qualified adult” (“OWA”) benefits, the money they spent on those benefits will not
be returned to the State. The state funding provided to local units of government is
generally unrestricted, which means that these entities can spend state money in the ways they feel are most appropriate for their specific communities.7 M.C.L. §
141.917 (noting that revenue-sharing money is given to a city’s, village’s, or
township’s general fund); (Dolehanty Decl. ¶ 30 (“Any cost savings associated
with an involuntary termination of OQA benefits to the five employees resulting
from [the Act] would accrue to [Ingham] County or potentially to the federal
government, not to the state.”) (Ex. 11)); Comsa Dep. at 40-41 (“[T]he source of
the funds to pay for [OQA benefits] would be our general funds.”) (Ex. 13);
Skrobola Dep. at 35 (Ex. 16); Ex. 3.A at 1-7, 11; Ex. 3.I at 19, 21; Ex. 8 at 53).
7 In 2011, the Legislature enacted 2011 P.A. 152, which placed some limitations on how much local entities can pay for employee health insurance benefits. Local units either can keep their benefits spending below a hard cap defined in the statute or can elect to pay only 80% of their employees’ health benefits costs. 2011 P.A. 152 §§ 3, 4. Local units that do not comply with P.A. 152 have a small portion of their state funding from state sources reduced by ten percent. Id. § 9. Unlike the Act challenged here, P.A. 152 does not single out a specific group to be excluded from coverage. Further, local governments can actually vote to opt out of the restrictions in P.A. 152. Id. § 8.
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If anything, the Act is likely to diminish the state fisc. Many public employees pay state income tax on their employers’ contributions to their partners’ benefits; if employers can no longer offer these benefits, the State will lose this tax revenue. (Badgett Decl. and Report at 9-10 (Ex. 9); Ex. 15 at 22; Ex. 11 ¶ 16). Also, to the extent that individuals affected by the Act lack access to other insurance, they will rely on Medicaid or other government-sponsored health care programs. (Badgett Report at 10-11 (Ex. 9).
The testimony of Defendant’s expert, Dr. Price, provides no factual support for a claim of cost savings to the State. He asserts that “[r]estricting partner health benefits to married couples creates an additional incentive for couples to marry and this decision to marry produces economic benefits for the state of Michigan.” (Price Report ¶¶ 1, 9, 42 (Ex. 14, dep. ex. 1)). He agrees that the relevant comparison for purpose of evaluating the economic impact of the Act are marriage versus cohabitation, (Price Dep. at 134, 137-39 (Ex. 14)), but admits that he has no empirical basis to assert that marriage generates any positive outcomes versus cohabitation. (Price Dep. at 124, 126, 139, 157-58, 160-61, 207, 230-31, 239, 24849 (Ex. 14)). Further, he has no empirical basis to assert that the marriages allegedly caused by the Act would generate the same outcomes as marriage generally. (Ex. 14 at 162-68, 170, 172, 203, 205). Finally, he analyzed only hypothetical benefits of the Act, not costs, in violation of his own stated
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methodology. (Ex. 14 at 33, 34, 37, 39, 42, 105-07, 206-07, 210, 217-18, 220). See also Pls’ M. to Exclude Test. of Dr. Joseph Price. Moreover, all of the economic benefits that Dr. Price asserts result from denying OQA benefits to different-sex domestic partners. Different-sex domestic partners only began to receive health insurance coverage as a consequence of the State’s efforts to deny legal protections to same-sex couples and health insurance coverage to the same-sex domestic partners of public employees. (Ex. 15 at 11-12; Ex. 1 ¶¶ 4-5; Wilkerson Decl. ¶ 12 (Ex. 12)).
3. Cost Savings to Local Units of Government The Act will also result in only minimal, if any, cost savings to local units of government, who dedicate only a portion of their total expenditures to employee health care benefits. Ann Arbor Public Schools, for example, spent only 10.04% of its 2012-13 general fund budget on employee health care benefits. (Ex. 13, Comsa dep. ex. 6; Ex. 13 at 28-29). Moreover, OQA benefits comprise only a tiny fraction of these employers’ spending for health care, since only a tiny fraction of public employees have enrolled OQAs in employer-sponsored benefit plans. For example, of the 689 employees of the City of Kalamazoo, only six had added an OQA to their health plan as of late 2011 (Ex. V-1 ¶¶ 1, 7) and the number of OQAs had not changed as of February 2014 (Ex. 15 at 31-32). Of approximately 1,800 full-time Ann Arbor
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Public Schools employees, 33 had enrolled “other eligible adults” as of January 2012 (Ex. V-2 ¶¶ 2, 5) while only twenty were enrolled in February 2014. (Ex. 13 at 21-22, 24 and Comsa dep. ex. 2). (See also Ex. 1 ¶¶ 7, 8 (three OQAs out of 832 eligible Ingham County employees in 2012); Ex. 11 at ¶¶ 7, 8 (five of 798 in Ingham County in 2014); Ex. 2.B at 17, 20-21, Ex. 2.C ¶¶ 3, 13 (one OQA of 402 employees eligible to participate in group health insurance at Kalamazoo Valley Community College in 2012)). These numbers are consistent with broader evidence indicating that few employees use partner benefits. (Badgett Report at 8 (Ex. 9) (noting that only 0.3% to 1.8% of employees eligible to sign up an “other qualified adult” actually took advantage of the coverage)). Thus, any savings from eliminating these benefits would be a sliver of each local unit of government’s total budget. (See also Ex. V-1 ¶ 12 (City of Kalamazoo costs for OQA benefits was 0.45% of total 2011 health insurance costs); Ex. 16 at 20-21 and Skrobola dep. ex. 1 (estimated Kalamazoo OQA costs went down between 2011 and 2012); Ex. V-2 ¶ 11 (Ann Arbor Public Schools’ costs for other eligible adults (“OEA”) coverage were expected to be 1.2% of health insurance costs in 2011-2012); Ex. 13 at 32 and Comsa dep. ex. 2 (costs for OEA coverage dropped for 2013 from two previous calendar years); Ex. 11 at ¶ 13 (projected cost of Ingham County 2014 OQA coverage ($22,163) represents .2% of the 2014 approximate health insurance costs
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($10,035,000)8). In addition, the Act may impose additional costs on employers. Local units
of governments offer OQA benefits because they have decided that doing so is central to attracting and retaining the best and the brightest. (Ex. V-1 ¶¶ 20-25; Ex. 15 at 25-29 (Jerome Post chose City of Kalamazoo job over private sector job offers because of availability of benefits for same-sex domestic partners); Ex. 15 at 54-57; V-2 ¶¶ 15-19; Ex. 13 at 17-21; Ex. 1 ¶¶ 23-27; Ex. 12 ¶¶ 16-19). Not offering such benefits may increase employee attrition, raising the cost to local employers of attracting and retaining talented employees. (Badgett Report at 12-15 (Ex. 9); Ex. V-1 ¶¶ 23-25; Ex. V-2 ¶¶ 18-19; Ex. 15 at 56-57; Ex. 1 ¶ 25; Ex. 12 ¶ 17). The Act may even cause couples who rely on partner benefits to move out of state (Ways Decl. ¶ 11 (Ex. 18.C); Breakey Decl. ¶ 12 (Ex. 18.D)), which further burdens local employers and deprives the State of tax revenue.
As such, the cost savings from the Act to local units of government will be negligible at best. Yet the local units of government do not seek these negligible cost savings—rather, they have determined that providing these benefits is a worthwhile expenditure. II. THE LAW’S IMPACT ON THE PLAINTIFFS
Plaintiffs are gay or lesbian public employees and their domestic partners.
8 The declaration incorrectly states that the percentage is .002%. 12

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On average, the plaintiff couples have been in their loving, committed relationships for close to 20 years.9 Plaintiffs’ relationships are founded on mutual pledges of emotional and financial support: each couple is financially interdependent, and nearly all of the Plaintiffs have provided a durable power of attorney to their partners.10 Three of the couples (Theresa Bassett and Carol Kennedy, Peter Ways and Joe Breakey, and JoLinda Jach and Barbara Ramber) are raising children together.11
The Public Employees receive health insurance through their jobs with a county, city, school district, or community college in Michigan.12 Each Public Employee has job duties and responsibilities that are equivalent to the duties and responsibilities of their heterosexual colleagues with comparable jobs.13 The Public Employees’ employers allow them to enroll their partners as OQAs (or similar designation). (Exs. B-E). Each of the Domestic Partners is—or was—enrolled in
9 (Bassett Decl. ¶ 4 (Ex. 18.A), Kennedy Decl. ¶ 3 (Ex. 18.B) (27 years); Ways Decl. ¶ 3 (Ex. 18.C), Breakey Decl. ¶ 3 (Ex. 18.D) (22 years); Jach Decl. ¶ 4 (Ex. 18.E), Ramber Decl. ¶ 3 (Ex. 18.F) (19 years); Bloss Decl. ¶ 4 (Ex. 18.G), Ascheri Decl. ¶ 3 (Ex. 18.H) (20 years); Miller Decl. ¶ 4 (Ex. 18.I), Johnson Decl. ¶ 3 (Ex. 18.J) (10 years)). 10 (Ex. 18.A ¶¶ 4-5; Ex. 18.B ¶¶ 3-4; Ex. 18.C ¶¶ 3, 5; Ex. 18.D ¶¶ 3-4; Ex. 18.E ¶¶ 4-5; Ex. 18.F ¶¶ 3-4; Ex. 18.G ¶¶ 4-5; Ex. 18.H ¶¶ 3, 5; Ex. 18.I ¶¶ 4-5; Ex. 18.J ¶¶ 3-4). 11 (Ex. 18.A ¶ 6; Ex. 18.B ¶ 5; Ex. 18.C ¶ 4; Ex. 18.D ¶ 5; Ex. 18.E ¶ 6; Ex. 18.F ¶ 4). 12 (Ex. 18.A ¶ 7; Ex. 18.C ¶ 7; Ex. 18.E ¶ 9; Ex. 18.G ¶ 7; Ex. 18.I ¶¶ 6-7). 13 (Ex. 18.A ¶ 2; Ex. 18.C ¶ 4; Ex. 18.E ¶ 2; Ex. 18.G ¶ 2; Ex. 18.I ¶ 2).
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one of these plans as his or her sole health insurance.14 If a permanent injunction is not granted, Plaintiffs will lose not only a
valuable employment benefit but also the security and peace of mind that come with family health insurance coverage. The couples will be forced to allow the Domestic Partners to go without coverage or to find individual health insurance for the partner that, in each case, will be significantly more costly and/or less comprehensive than the coverage under their partners’ plans.15 For example, between the time Barbara’s coverage with the City of Kalamazoo ended on December 31, 2012 and was restored because of the preliminary injunction on August, 1, 2013, the couple paid $1,798 in premiums for individual coverage for Barbara that had higher deductibles ($5,000 compared to $200 for in network care), larger medication and office visit co-pays, and no dental coverage. In contrast, after the injunction was entered, JoLinda could cover Barbara on her City of Kalamazoo family medical plan without an increase in the monthly premium and could provide her dental care coverage for $6 a month.16 During the ten months between the time Gerardo’s OQA coverage ended on December 31, 2012 and was restored on November 1, 2013, Doak and Gerardo paid $4,595 in premiums for an individual policy for Gerardo and $993 in out-of-pocket costs for 14 (Ex. 18.B ¶¶ 7, 8; Ex. 18.D ¶¶ 6, 7; Ex. 18.F ¶ 6; Ex. 18.H ¶ 6; Ex. 18.J ¶ 5). 15 (Ex. 18.A ¶ 9; Ex. 18.B ¶ 9; Ex. 18.C ¶ 9; Ex. 18.D ¶ 9; Ex. 18.E ¶ 11; Ex. 18.F ¶ 8; Ex. 18.G ¶ 10; Ex. 18.H ¶ 8; Ex. 18.I ¶ 9; Ex. 18.J ¶ 8). 16 (Ex. 18.E ¶¶ 8, 9, 11; Ex. 18.F ¶¶ 6, 8).
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his medication, deductibles, and dental care as compared to the $1830 in premiums he would have paid for OQA coverage that included dental care.17
Several of the Domestic Partners cannot afford a lapse of insurance coverage because they have conditions that require ongoing, uninterrupted care. For example, Barbara Ramber—whose partner JoLinda Jach works for the City of Kalamazoo—suffered an eye injury and has developed glaucoma.18 Without medication, Barbara is in danger of going blind.19 Gerardo Ascheri—whose partner Doak Bloss works for Ingham County—has high blood pressure and high cholesterol, which require ongoing medication and monitoring.20
ARGUMENT Plaintiffs are entitled to summary judgment on their claim for permanent injunctive relief because “there is no genuine dispute as to any material fact” and Plaintiffs are “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This Court previously concluded that Plaintiffs had shown a likelihood of success on the merits; here, the uncontested facts show Plaintiffs’ actual success on their claim that the Act violates their Constitutional rights to equal protection. See Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012) (“In general, [t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with 17 (Ex. 18.G ¶¶ 7, 10; Ex. 18.H ¶ 8). 18 (Ex. 18.E ¶ 10; Ex. 18.F ¶ 7). 19 (Ex. 6 at 19-20). 20 (Ex. 18.G ¶ 9; Ex. 18.H ¶ 7).
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the exception that [for a preliminary injunction] the plaintiff must show a likelihood of success on the merits rather than actual success.”) (inner quotation marks and citations omitted). I. PLAINTIFFS HAVE SUCCEEDED ON THE MERITS.
The Act violates Plaintiffs’ rights to equal protection by treating them differently than similarly situated families on the sole basis of their sexual orientation.
A. The Act Violates Plaintiffs’ Rights to Equal Protection. The Equal Protection Clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)); TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 788 (6th Cir. 2005). The Act targets gay and lesbian families for differential treatment without any legitimate justification and thus violates the Equal Protection Clause.
1. The Act Intentionally Targets Gay and Lesbian Families for Differential Treatment on the Basis of Sexual Orientation.
The Public Employees do the same work, have the same qualifications, and show the same dedication as their heterosexual colleagues, and are therefore entitled to equal compensation. Yet the Act intentionally burdens gay and lesbian
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public employees and their partners because of their sexual orientation. The Act “creates a classification based on sexual orientation” because it
“both explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples.” Bassett, 951 F. Supp. 2d at 963. It “incorporates the definitions in the Michigan marriage amendment and the intestacy statute,” which “distinguish between opposite-sex couples, who are permitted to marry and can inherit under intestacy, and same-sex couples, who cannot.” Id. It is therefore discriminatory on its face. See, e.g., Johnson v. New York, 49 F.3d 75, 79 (2d Cir. 1995) (striking a classification as facially discriminatory because it incorporated another law that distinguished on the basis of age); Erie Cnty. Retirees Ass’n v. Cnty. of Erie, Pa., 220 F.3d 193, 211 (3d Cir. 2000) (determining that a classification based on Medicare eligibility was an age-based facial classification because only persons over sixty-five are eligible for Medicare).
Numerous courts (including this Court) have found that statutes restricting benefits on the basis of marriage intentionally classify on the basis of sexual orientation when gays and lesbians are explicitly excluded from marriage. Alaska Civil Liberties Union v. Alaska, 122 P.3d 781, 788-89 (Alaska 2005) (applying Alaska Constitution) (restriction of benefits to “spouses” was facially discriminatory because state’s definition of “spouse” excluded same-sex couples);
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Bedford v. New Hampshire Cmty. Technical Coll. Sys., No. 04-E-229, 2006 WL 1217283, at *6 (N.H. Super. Ct. May 3, 2006) (applying New Hampshire law); Collins v. Brewer, 727 F. Supp. 2d 797, 803 (D. Ariz. 2010) (“Because employees involved in same-sex partnerships do not have the same right to marry as their heterosexual counterparts, Section O has the effect of completely barring lesbians and gays from receiving family benefits[, burdening] State employees with samesex domestic partners more than State employees with opposite-sex domestic partners.”), aff’d sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), cert. denied, 133 S. Ct. 2884 (2013); Dragovich v. U.S. Dep’t of the Treasury, 848 F. Supp. 2d 1091, 1100 (N.D. Cal. 2012) (law limiting benefit to married couples, when same-sex couples cannot marry, discriminates on the basis of sexual orientation).
The Act’s intentional targeting of gays and lesbians is further underscored by considering what the Act does not prohibit. Same-sex partners—who under existing law can neither marry their partners nor inherit from them under intestacy law—cannot access employer-provided benefits. However, public employers remain free to extend health care to a broad range of other relatives and dependents. M.C.L. § 15.583. The narrowness of the burden imposed by the statute demonstrates that the Act was aimed at same-sex domestic partners. Because the Act focuses on burdening lesbians and gays, rational basis review must be
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conducted with closer scrutiny than the deference given other legislative classifications. Vance v. Bradley, 440 U.S. 93, 97 (1979) (rational-basis review is deferential “absent some reason to infer antipathy”); Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular group, [the Supreme Court has] applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”).
2. The Act Has No Rational Basis. As the Supreme Court has pointed out, equal protection “require[s] that a distinction made have some relevance to the purpose for which the classification is made.” Baxtrom v. Herold, 383 U.S. 107, 111 (1966). However, singling out gay and lesbian families for differential treatment has no rational relationship to the purported goals of saving costs, promoting traditional marriage, or “enforcing” the marriage amendment and the National Pride decision.
a. The Act Does Not Cut the State’s Costs. The desire to cut costs does not provide a rational basis for the Act. First, the cost justification is fake, since the legislature considered only exaggerated figures for state employee health insurance coverage rather than evaluating the costs for local employees. See Undisputed Facts (“Facts”), supra, I.B.1. Second, the decisions of local governments to provide OQA benefits will have no impact
19

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on the amount of money the State provides those local governments whereas banning OQA benefits will put an end to the tax revenue the State receives on the value of those benefits and may increase the State’s costs for governmentsponsored health care programs. See Facts, supra, I.B.2. Finally, the Act will save only a tiny fraction of local government employers’ health insurance outlays and none of these savings would be recouped by the State. Any savings to local governments will be offset by increased costs to the public employers and are unwanted by the employers themselves, as demonstrated by the fact that they chose to offer these benefits in the first place. See Facts, supra, at I.C.2-3.
Defendant’s expert has opined that the Act will save State money by encouraging different-sex OQAs to marry, but then admits that he only looked at studies and data comparing married couples to single persons and that he has no empirical basis to assert that moving people from cohabitation to marriage saves the State money. (Ex.14 at 124, 126, 139, 157-58, 160-61, 207, 230-31, 239, 24849). Second, Dr. Price admits that he has no factual support for his claim that the marriages that purportedly result from the Act will result in cost savings for the State. (Ex. 14 at 162-68, 170, 172, 203, 205). Third, Dr. Price admits that he analyzed only hypothetical benefits of the Act without addressing costs, (Ex. 14 at 33, 34, 37, 39, 42, 105-07, 206-07, 210, 217-18, 220), and that he has no basis for his assertion that the benefits he claims will result from incentivizing marriage will
20

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outweigh the costs from the Act. (Ex. 14 at 218-19). Finally, these hypothetical cost savings from the Act’s impact on unmarried different-sex couples fail to justify the injury the Act causes to same-sex domestic partners. (Id. at 223-25). The history of the Act makes it impossible to credit a state interest derived solely from the law’s theoretical impact on different-sex couples where disadvantaging samesex domestic partners “was more than an incidental effect of” the Act but “was its essence.” United States v. Windsor, 133 S. Ct. 2675, 2693 (2013).
While cost savings can be a legitimate state interest, such slight and hypothetical cost savings cannot salvage a discriminatory bill such as this. See Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011) (statute stripping same-sex partners of benefits was properly enjoined as lacking rational basis, despite the state’s asserted cost justification, where evidence showed that the cost of such benefits were between 0.06% and 0.27% of the state’s total spending on health care benefits). Even if the State could show some marginal savings, it may not “protect the public fisc by drawing an invidious distinction between its classes of citizens.” Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250, 263 (1974). Therefore, these incidental cost savings cannot justify an otherwise discriminatory policy. W. Tenn. Chapter of Assoc. Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015, 1028 (W.D. Tenn. 2000) (“[C]onsiderations of the City’s financial health and administrative efficiency cannot run roughshod over plaintiff’s constitutional
21

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rights.”). b. The Act Does Not Promote “Traditional Marriage” or “Enforce” Existing Law.
To the extent that the Defendant is arguing that the Act promotes “traditional marriage,” he has already abandoned that argument. (Def.’s Am. Mot. To Dismiss, Docket No. 17, at 24 (“[I]t strains credulity to believe that a couple would marry simply to obtain health benefits, or would acquiesce to participation in a relationship they might not otherwise choose in order to qualify for the benefit.”)). Additionally, promotion of “traditional marriage” fails to explain the burden the Act places on same-sex domestic partners who are unable to marry in Michigan. Instead, it references a history of discrimination against the relationships of samesex couples of which the Act is the most recent chapter. Moreover, contrary to what the Act’s sponsors claimed, offering OQA benefits to domestic partners does not violate the marriage amendment or National Pride. (See Ex. I at 6; Facts, supra, at I.B). National Pride did not bar public employers from offering benefits to same-sex partners; the Michigan Supreme Court held unconstitutional only those plans that defined the relationship between the employee and the covered individual by the same-sex nature of the partnership and by reference to attributes similar to those of marriage. National Pride, 748 N.W.2d at 533-37. Putting aside the question of whether this holding is consistent with the Fourteenth Amendment, National Pride simply does not impose an absolute bar on the provision of benefits
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to anyone other than a public employee’s spouse, blood relatives, or IRS dependents.
In reality, the reference to the marriage amendment and the National Pride case by the Act’s proponents is shorthand for their plain intent to discriminate against gay and lesbian families. Not content with prohibiting same-sex marriage in Michigan, these lawmakers wanted to make sure that not a single state or local tax dollar could be used to benefit same-sex partners—a purpose that strikes at the heart of local employers’ attempt to promote workplace equality and has nothing to do with protecting the definition of marriage as between one man and one woman. (Ex. G-2 (referring to partner benefits as “an absolute abomination . . . that shifts people’s hard earned dollars into the pockets of same-sex partners”)). Rep. Agema’s assertion that it “is disrespectful to the people” of Michigan to “extend health benefits to unions” other than those “between one man and one woman” (Ex. G-1) lays bare the intent to codify discrimination against lesbian and gay public employees’ families based on social disapprobation for homosexuality. This the Constitution does not permit. Romer v. Evans, 517 U.S. 620, 635 (1996).
3. The Act Was Motivated by An Impermissible Purpose to Discriminate.
The Equal Protection Clause prohibits legislative classifications whose primary purpose and effect is to harm an identifiable group. Windsor, 133 S. Ct. at 2693; United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (equal
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protection prohibits classifications based on the “bare . . . desire to harm a politically unpopular group.”); Romer, 517 U.S. at 634; Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997). In Windsor, the Court determined the purpose of a statute by considering its “history of . . . enactment” and the statute’s own text. 133. S. Ct. at 2693-94. And a law whose primary purpose and effect is to harm an identifiable group is unconstitutional, even if it incidentally serves a neutral governmental interest. Id. at 2694 (“[DOMA’s] principal purpose [was] to impose inequality, not for other reasons like governmental efficiency[,]” and “no legitimate purpose overcomes the purpose and effect to disparage and injure” same-sex couples and their families). The Sixth Circuit has directed courts to look to a number of factors to determine whether a statute has an invidious discriminatory purpose: (1) the impact of the official action on a particular group, (2) the historical background of the challenged decision, especially if it reveals numerous actions being taken for discriminatory purposes, (3) the sequence of events that preceded the state action; (4) procedural or substantive departures from the government’s normal procedural process; and (5) the legislative or administrative history. Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 369 (6th Cir. 2002) (citing Vill. of Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252, 266 (1977)).
Here, these factors show that the Act was the result of a legislative desire to
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harm a politically unpopular group:
 The burden of the Act falls directly and exclusively on employees with same-sex partners. The Act expressly allows benefits for a wide range of individuals outside the heterosexual nuclear family, while only lesbian and gay families are left with no ability to gain benefits. (Unmarried differentsex couples can marry to obtain benefits.)
 The historical background and legislative history of the Act demonstrate animus. See Background, supra, at I.A. Following passage of the marriage amendment, opponents of gay rights sought and won an interpretation of the amendment to bar benefits contingent on the existence of a same-sex domestic partnership. But the Act’s sponsors went further, expressing disgust and outrage that gay public employees were receiving the same partner benefits as their married colleagues. (Ex. G-2 (quoting Rep. Lund (who co-sponsored the Act) as saying it was “an absolute abomination” to provide benefits to public employees’ “same-sex partners”)).
 The Act is a unique departure from the State’s strong tradition of allowing municipalities to govern their own affairs (a concept known as “home rule”). Alco Universal Inc. v. City of Flint, 192 N.W.2d 247, 249 (Mich. 1971) (“Michigan is a strong home rule state.”). Never before has the legislature prevented a class of people from bargaining with local public employers (individually or collectively) for benefits. The Act is an unprecedented expansion of state control over local public employers. (Ex. 3.F at 1, 2).
Thus there is strong direct and circumstantial evidence that the Act has no rational
basis, but instead is the product and expression of the legislature’s purpose to harm
lesbians and gays.
United States Dep’t of Agric. v. Moreno also presented a situation in which
government benefits were conditioned on family structure and motivated by
impermissible purposed to discriminate. 413 U.S. 528. There, the Supreme Court
struck down a statute that barred individuals from receiving food stamps if they
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lived in a household with other unrelated individuals. The desire to harm a politically unpopular group, “hippies,” could not constitute a legitimate basis for upholding the law. And although the government had a rational interest in preventing food stamp fraud, the “practical operation” of the amendment would allow the hippies allegedly abusing the system to change their housing arrangements to retain eligibility while categorically barring “only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility.” Id. at 538. Such a classification was “wholly without a rational basis.” Id.
Similarly, in Diaz and Dragovich, laws that conditioned access to benefits on family structures were found to be motivated by a desire to harm gays and lesbians. Both involved laws that excluded unmarried people from access to benefits. These cases held that the “challenged provision serve[d] no legitimate government interest and the enactment [was] tainted by animus against a politically unpopular group.” Dragovich, 848 F. Supp. 2d at 1103-04; Diaz, 656 F.3d at 101415 (law was motivated by “bare . . . desire to harm”). The Diaz court added that barring health coverage for unmarried partners may actually “present a more compelling scenario” than Moreno because the plaintiffs were barred from eligibility not by their financial circumstances but by operation of law. 656 F.3d at 1014.
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The Act in question here is even more clearly unlawful than those at issue in Diaz and Dragovich since the classification here—the family structure of same-sex domestic partners, as compared not only to married heterosexual couples (Diaz) or close family members (Dragovich) but to a broad group of familial relationships that are far less intimate—is even more attenuated from any legitimate purpose than the classifications in those cases. The uncontested facts show that the Act was motivated by an impermissible purpose to disadvantage lesbians and gays.
B. The Act Also Fails Under Heightened Scrutiny. Although the Act fails even rational basis review, the Act should be reviewed under heightened scrutiny because the Act discriminates against gays and lesbians, a suspect or quasi-suspect class that has been subject to widespread historical discrimination in Michigan and elsewhere.
1. Gays and Lesbians Are a Suspect or a Quasi-Suspect Class. This Court has already concluded that “[g]ays and lesbians as a group would seem to satisfy each of the[ ] factors” used to assess whether a class is suspect or quasi-suspect and that “[t]he tarnished provenance of Davis [v. Prison Health Serv., 679 F.3d 433 (6th Cir. 2012)] and the cases upon which it relies provides ample reasons to revisit the question of whether sexual orientation is a suspect classification” but that rational basis is the current standard applicable in the Sixth Circuit. Bassett, 951 F. Supp. 2d at 961. Plaintiffs reassert their argument for
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heightened scrutiny to preserve it for appeal. The Sixth Circuit’s ruling in Davis that gays and lesbians are not a suspect
class relied on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006), which in turn relied on other case law following Bowers v. Hardwick, 478 U.S. 186 (1986), before it was overruled by Lawrence, 539 U.S. at 580. In the wake of Lawrence and Windsor, two federal courts of appeals, four state supreme courts, and numerous federal district courts have recognized that gays and lesbians are entitled to heightened scrutiny as a class. See, e.g., SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014); Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012); Griego v. Oliver, 316 P.3d 865, 880-84 (N.M. 2013); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008); Obergefell v. Wymyslo, No. 1:13-cv501, 2013 WL 6726688, *14-*18 (S.D. Ohio Dec. 23, 2013); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown, 725 F.3d. 1140 (9th Cir. 2013).
The Supreme Court has identified four factors used to determine whether a class is suspect or quasi-suspect so as to warrant heightened scrutiny: (1) whether
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the class has suffered a history of discrimination; (2) whether the class’s members are a minority or politically powerless; (3) whether the class exhibits distinguishing or immutable characteristics that define them as a discrete group; and/or (4) whether the characteristic that defines the class “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion); Lyng v. Castillo, 477 U.S. 635, 638 (1986); Cleburne, 473 U.S. at 440-41. All four factors are met here.
First, there can be no dispute that gays and lesbians have historically experienced discrimination, both nationwide and in Michigan. See, e.g., Windsor, 699 F.3d at 182; Pedersen, 881 F. Supp. 2d at 318; High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Varnum, 763 N.W.2d at 889; Kerrigan, 957 A.2d at 432. Until the Supreme Court’s 2003 decision in Lawrence, states were able to “demean [gays’ and lesbians’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 578.21
This history of discrimination against gays and lesbians continues today in Michigan. See generally Williams Institute, Michigan—Sexual Orientation and 21 Lawrence effectively brought an end to a series of state laws criminalizing samesex intimacy, including a Michigan statute that imposed lengthy prison sentences for consensual sexual activity. See M.C.L. § 750.158. Although Lawrence precludes their enforcement, Michigan’s laws criminalizing private, adult, consensual, noncommercial conduct have never been formally repealed. Id.; see also M.C.L. §§ 750.158, 750.159, 750.338, 750.338a .
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Gender Identity Law and Documentation of Discrimination 2-4 (2009) (Ex. Q) (documenting discrimination against gays and lesbians in Michigan in various areas). Michigan's constitution denies gay and lesbian couples legal recognition of a marriage or similar union. Mich. Const. Art. I, § 25. Michigan’s civil rights statutes provide no remedy for sexual orientation-based harassment and discrimination in the workplace. Barbour v. Dep’t of Soc. Servs., 497 N.W.2d 216 (Mich. App. 1993). In 2012, crimes targeting gays, lesbians and bisexuals constituted twelve percent of all reported Michigan hate crimes. Michigan State Police, 2012 Hate/Bias Crime Report (Ex. 17). One recent study found that gays and lesbians have a twenty-seven percent likelihood of experiencing discrimination in obtaining housing in Michigan. Pam Kisch and Pat Winston, eds., Sexual Orientation and Housing Discrimination in Michigan (2006) (Ex. S).
Second, although lack of political power is not essential for recognition as a suspect or quasi-suspect class, Windsor, 699 F.3d at 181, gays and lesbians lack “the strength to politically protect themselves from wrongful discrimination.” Id. at 184; Kerrigan, 957 A.2d at 444. See Lyng, 477 U.S. at 638. This is true both at a national level and within Michigan. For example, in Michigan, gays and lesbians have been thus far unable to secure protection under Michigan’s civil rights act, which prohibits discrimination in housing, employment, public accommodations, or education based on height, weight, and eight other characteristics. See M.C.L.
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§§ 37.2102(1), 37.2202, 37.2302, 37.2402, 37.2502; see also Golinski, 824 F. Supp. 2d at 989 (reviewing recent developments nationwide and concluding that “the gay and lesbian community lacks meaningful political power”).
Third, gays and lesbians have “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Lyng, 477 U.S. at 638. Sexual orientation is a distinguishing characteristic that defines gays and lesbians as a discrete, socially visible group. See Lawrence, 539 U.S. at 568 (tracing emergence of sexual orientation as a discrete identity category in the late 19th century). Immutability is not required for a characteristic to garner heightened scrutiny, Windsor, 699 F.3d at 813 n.4, but evidence shows that sexual orientation is in fact immutable. See Golinski, 824 F. Supp. 2d at 986 (“[T]he consensus in the scientific community is that sexual orientation is an immutable characteristic”); Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (“efforts to change sexual orientation are unlikely to be successful and involve some risk of harm”).22
22 Moreover, sexual orientation is a core component of a person’s identity that no person should be required to change to avoid discrimination. Perry, 704 F. Supp. 2d at 964 (“Sexual orientation is fundamental to a person’s identity.”); In re Marriage Cases, 183 P.3d at 442 (“[A] person’s sexual orientation is so integral an aspect of one’s identity [that] it is not appropriate to require a person to repudiate
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Fourth, sexual orientation “bears no relation to [anyone’s] ability to perform or contribute to society.” Frontiero, 411 U.S. at 686. “[H]omosexuality is not” a “characteristic[ ] . . . that may arguably inhibit an individual’s ability to contribute to society[.]” Windsor, 699 F.3d at 681; Kerrigan, 957 A.2d at 434; Golinski, 824 F. Supp. 2d. at 986; Perry, 704 F. Supp. 2d at 1002.
2. The Act Fails Heightened Scrutiny. For the same reasons the Act fails rational basis review, it is plainly unconstitutional under a heightened level of scrutiny. The Act cannot survive strict scrutiny because the State cannot show that it is narrowly tailored to achieve a compelling government interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Nor can the Act survive intermediate scrutiny, as the State cannot prove that it is substantially related to any important governmental interest. See, e.g., Clark v. Jeter, 486 U.S. 456, 461-62 (1988). II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE ACT IS ENFORCED. If the Court does not enjoin the Act’s enforcement, Plaintiffs will suffer irreparable harm. Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 20 (2008). “[I]f . . . a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.
or change his or her sexual orientation in order to avoid discriminatory treatment.”).
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2001) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). The Act impairs Plaintiffs’ equal protection rights, and therefore, the irreparable harm requirement is easily met. “Moreover, the potential risk to the plaintiffs’ health resulting from the loss of medical insurance qualifies as irreparable harm.” Bassett, 951 F. Supp. 2d at 970; Schalk v. Teledyne, Inc., 751 F. Supp. 1261, 1268 (W.D. Mich. 1990) (company decision to shift premium payments to retirees, allegedly in violation of collective bargaining agreement, would impose irreparable harm in the form of “uncertainty [of] how much money will be needed to cover medical expenses” and “financial planning burden”), aff’d, 948 F.2d 1290 (6th Cir. 1991); Collins, 727 F. Supp. 2d at 812-13, aff’d, 656 F.3d 1008 (9th Cir. 2011).
Monetary damages would not remedy the harm Plaintiffs will suffer if they are unable to obtain medical care. Plaintiffs Ramber and Ascheri have chronic conditions that, if left untreated, will likely lead to serious and potentially irreversible health consequences. See Facts, supra, II at notes 18-20. Plaintiffs will be forced to contend with the increased financial burden of obtaining alternative insurance coverage by enrolling in a high-deductible plan or a plan with limited coverage, limiting their doctors’ visits, switching to inferior medications or foregoing medications, or working more to pay for higher insurance costs. See Facts, supra., II at notes 15-17.
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III. THE BALANCE OF THE EQUITIES FAVORS ENTRY OF AN INJUNCTION. First, because the evidence shows that the Act is unconstitutional, the State
cannot legitimately claim that the balance of harms favors the denial of an injunction. Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (where “there is a likelihood that [a law] will be found unconstitutional,” it is “questionable whether the [State] has any ‘valid’ interest in enforcing [it]”). Second, the Act generates de minimis savings that, in any event, redound to other public employers and not the State, while denying an injunction would “place[ ] significant financial, emotional, and medical burdens on the plaintiffs that outweigh any slight increase in cost to the State.” Bassett, 951 F. Supp. 2d at 971; Schalk, 751 F. Supp. at 1268 (balance of harms favored plaintiff retirees’ interest in keeping health benefits over defendant’s interest in saving money by shifting costs to the retirees); Golden v. Kelsey-Hayes Co., 845 F. Supp. 410, 416 (E.D. Mich. 1994) (same), aff’d, 73 F.3d 648 (6th Cir. 1996). IV. THE PUBLIC INTEREST FAVORS AN INJUNCTION.
Finally, “the public interest favors granting an injunction[,]” since “the public has an interest in ensuring that only constitutional laws are enforced.” Bassett, 951 F. Supp. 2d at 971 (citing Planned Parenthood, 822 F.2d at 1400; Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982); and since “[t]he public has an interest ‘in the preservation of a healthy population.’”
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Bassett, 951 F. Supp. 2d at 971 (quoting Schalk, 751 F. Supp. at 1268). The public interest is also served by giving local authorities autonomy over the use of employment benefits to attract and retain the most qualified workforce, and to promote diversity within their own communities.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant Plaintiffs’ summary judgment and enjoin the enforcement of the Public Employee Domestic Partner Benefit Restriction Act.

Dated: February 17, 2014

Respectfully submitted, /s/ John A. Knight

Michael J. Steinberg (P43085) Jay D. Kaplan (P38197) Kary L. Moss (P49759) Attorneys for Plaintiffs American Civil Liberties Union Fund
of Michigan 2966 Woodward Ave. Detroit, MI 28201 (313) 578-6814 msteinberg@aclumich.org kaplan@aclumich.org kmoss@aclumich.org

John A. Knight Attorney for Plaintiffs American Civil Liberties Union
Foundation 180 N. Michigan Ave., Ste. 2300 Chicago, IL 60601 (312) 201-9740 jaknight@aclu.org

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CERTIFICATE OF SERVICE I hereby certify that on February 17, 2014, I electronically filed the foregoing PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
/s/ John A. Knight John A. Knight Attorney for Plaintiffs American Civil Liberties Union
Foundation 180 N. Michigan Ave., Ste. 2300 Chicago, IL 60601 (312) 201-9740 jaknight@aclu.org
36

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT, CAROL KENNEDY, PETER WAYS, JOE BREAKEY, JOLINDA JACH, BARBARA RAMBER, DOAK BLOSS, GERARDO ASCHERI, MICHELLE JOHNSON, and DENISE MILLER,

Plaintiffs, v.

Case Number 12-10038 Honorable David M. Lawson

GOVERNOR RICHARD SNYDER,

Defendant. __________________________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND GRANTING PERMANENT INJUNCTION

On December 22, 2011, defendant Richard Snyder, Michigan’s governor, signed into law

the Public Employee Domestic Partner Benefit Restriction Act, Public Act 297 (2011), which

prohibited local units of government from continuing to furnish health care and other fringe benefits

to the domestic partners of their employees. The plaintiffs, five same-sex couples with one partner

employed by a local municipality or school district that provided such fringe benefits to same-sex

domestic partners, filed the present action to declare that Act 297 violates the Federal Constitution

and to enjoin its enforcement. After a hearing and extensive briefing, I issued a preliminary

injunction on June 28, 2013 preventing the defendant from enforcing Act 297. The State of

Michigan did not appeal that order, and the injunction remains in effect.

The parties now have filed cross motions for summary judgment. The plaintiffs argue that

Act 297 is nothing more than a mean-spirited attempt to deny health care benefits to the same-sex

domestic partners of public employees on the basis of their sexual preference, and therefore the law

violates the Equal Protection Clause of the Fourteenth Amendment. Governor Snyder argues that the law is rationally related to legitimate governmental purposes, and therefore satisfies the deferential standard of review that allows such classification. When issuing the preliminary injunction, I found that the “primary purpose” of Act 297 was “to deny health benefits to the same-sex partners of public employees,” and that “‘can never be a legitimate governmental purpose.’” Bassett v. Snyder, 951 F. Supp. 2d 939, 969 (E.D. Mich. 2013) (quoting Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir. 2012)). The defendant has failed to argue convincingly otherwise here. Therefore, I will grant the plaintiffs’ motion for summary judgment, deny the defendant’s motion for summary judgment, and enter a permanent injunction prohibiting the enforcement of Public Act 297.
I. 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, holding 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. DeBoer v. Snyder, --- F.3d ----, 2014 WL 5748990, at *11 (6th Cir. Nov. 4, 2014). But 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
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marriage as a means of encouraging biologically complimentary couples to stay together and raise the offspring they produce. DeBoer, 2014 WL 5748990, at *11. 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. See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973). 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.’” DeBoer, 2014 WL 5748990, at *10 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). The latter amounts to a classification based “on an irrational prejudice,” which cannot be sustained. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985). And when that occurs, courts play a vital role in our constitutional system to protect individual rights. Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 486 (1982) (explaining that the judiciary has a “special role in safeguarding the interests of [minority] groups that are ‘relegated to such a position of political powerlessness as to command extraordinary protection from the majority political process’” (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973))).
The facts of the case and the circumstances of the plaintiffs were discussed in detail in the preliminary injunction opinion and order. See Bassett, 951 F. Supp. 2d at 946-49, 951. It is enough to say here that each of the plaintiffs is either an employee of a Michigan city, county, or school district or the domestic partner of such an employee. The plaintiff-couples have been in long-term, committed relationships, but cannot marry because Michigan law forbids it. Each of the nonemployee partners enjoyed health care coverage provided by the local unit of government as a
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benefit furnished to the municipal employee. And each of the non-employee partners suffers from
medical conditions that require or will require medical treatment.
Public Act 297 would forbid local governmental units from providing health care benefits
to the non-employee partners unless they are married to a public employee, a relative, or a legal
dependant. The Act states:
Sec. 3. (1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defined in the internal revenue code of 1986. (c) Otherwise eligible to inherit from the employee under the laws of intestate succession in this state. (2) A provision in a contract entered into after the effective date of this act that conflicts with the requirements of this act is void.
Sec. 4. If a collective bargaining agreement or other contract that is inconsistent with section 3 is in effect for a public employee on the effective date of this act, section 3 does not apply to that group of employees until the collective bargaining agreement or other contract expires or is amended, extended, or renewed.
2011 Mich. Pub. Acts 297; Mich. Comp. Laws §§ 15.583-.584.
The events that led to this legislation, discussed in the earlier opinion, bear repeating, as they
shed light on the reasons behind the restrictive statutes. Act 297 was one of the dominos that fell
some time after Michigan’s voters amended their state constitution in 2004 to ban same-sex
marriage, declaring that “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.” Mich. Const. Art. 1, § 25.
At the time, the City of Kalamazoo had allowed same-sex partners of city employees to receive
health care and other benefits as the partner of a municipal worker. But in 2005, then-Michigan
attorney general Michael Cox issued an opinion on the lawfulness of the City of Kalamazoo’s
domestic partner benefits allowance in light of the marriage amendment. He said that state and local
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governments could not provide those benefits on the basis of a relationship “characterized by reference to the attributes of a marriage.” Constitutionality of City Providing Same–Sex Domestic Partnership Benefits, Mich. Att’y Gen. Op. 7171 (Mar. 16, 2005), available at http://www.ag.state. mi.us/opinion/datafiles/2000s/op10247.htm (last visited November 10, 2014).
That opinion led to litigation filed in 2006 by a labor union, various public employees, and their domestic partners who sued seeking a declaratory ruling that the marriage amendment did not prohibit public employers from offering benefits to same-sex domestic partners. However, the Michigan Court of Appeals held that local governments’ plans that offered same-sex domestic partner benefits used eligibility criteria similar to marriage and were invalid under the state constitution’s marriage amendment. National Pride At Work, Inc. v. Governor of Michigan, 274 Mich. App. 147, 164, 732 N.W.2d 139, 151 (2007). But the court also believed that “[t]he amendment as written does not preclude the extension of employment benefits to unmarried partners on a basis unrelated to recognition of their agreed-upon relationship.” Id. at 165, 172, 732 N.W.2d at 151, 155. The Michigan Supreme Court affirmed the court of appeals’ decision. National Pride At Work, Inc. v. Governor of Michigan, 481 Mich. 56, 748 N.W.2d 524 (2008).
As a result of those holdings, some public employers revised their employee benefit plans. The City of Kalamazoo, the Ann Arbor Public Schools, and Ingham County introduced the status of “Other Qualified Adult” (OQA) into their plans. The plans allow the employees to designate a person with whom he or she lives and shares finances to receive benefits. Under those plans, an OQA must not be eligible to inherit from the employee, be related to the employee by blood in a degree of closeness that would prohibit marriage in Michigan, and not otherwise be eligible for benefits from the public employer. The OQA could be of either sex. The City of Ann Arbor,
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Washtenaw and Eaton Counties, the school districts of Birmingham and Farmington, and Kalamazoo Valley and Lansing Community Colleges also modified their plans to allow OQA benefits.
The Michigan Civil Service Commission extended health care benefits to certain adult coresidents of state employees in January 2011. That decision prompted negative responses from several Michigan legislators. Representative Peter Lund, who later co-sponsored the Public Employee Domestic Partner Benefit Restriction Act, characterized the decision as “an absolute abomination . . . that shifts people’s hard earned dollars into the pockets of same-sex partners.” Press Release, Michigan House Republicans, Lund Calls to Abolish Civil Service Commission (Jan. 27, 2011), dkt. #18-8 at 4. The Michigan House of Representatives, which could have reversed the Civil Service Commission’s decision, refused to do so. Representative Ken Yonker reacted by issuing a press release condemning the decision as “disgusting” and one that “makes a mockery of the moral fabric that has made America what it is today.” Press Release, Representative Ken Yonker, Yonker to House Democrats: This is Disgusting (April 19, 2011), dkt. #18-8 at 8. In May 2011, Michigan attorney general Bill Schuette filed suit in Michigan state court to enjoin the Commission’s action, claiming that granting benefits to other eligible adult individuals (OEAIs) exceeded the State’s authority. The Michigan court rejected Schuette’s argument. Att’y Gen. Bill Schuette v. Mich. Civil Serv. Comm’n, No. 11-538 (Mich. Cir. Ct. Oct. 6, 2011).
On June 16, 2011, Representatives David Agema and Peter Lund, among others, introduced House Bill No. 4770, the Public Employee Domestic Partner Benefit Restriction Act. HB–4770, As Passed House, September 15, 2011, available at http://www.legislature.mi.gov/documents/ 2011–2012/billengrossed/House/htm/2011-HEBH-4770.htm (last visited November 10, 2014). The Bill passed both houses of the Michigan Legislature and was signed by the defendant on December
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22, 2011. It became effective on the same date. The governor’s signing statement says that the law does not extend to university employees or state employees under civil service.
The law had a significant financial impact on the plaintiffs in the more than seven months that it was in effect before I granted the plaintiffs’ motion for a preliminary injunction. For example, on December 31, 2012, plaintiff Barbara Ramber lost her health care benefits from her partner JoLinda Jach’s health insurance plan because the City of Kalamazoo could no longer extend health care benefits to the domestic partners of its public employees. Between December 31, 2012 and August 1, 2013, the date her health insurance was restored, the couple paid $1,798 in premiums for individual coverage for Ramber. The policy had higher deductibles ($5,000 compared to $200 for in network care), provided no dental coverage, and contained larger medication and office visit copays than she received under her partner’s plan before the passage of the Act. Additionally, Gerardo Ascheri and Doak Bloss paid $4,595 in premiums for health care coverage for Gerardo and $993 in out-of-pocket costs for his medication, deductibles, and dental care compared to the $1,830 in premiums he would have paid for OQA coverage that included dental care. Some of the other plaintiffs were spared the financial burdens of their chronic medical conditions when the injunction issued. The law has not been enforced after the preliminary injunction was entered. The State did not appeal the injunction.
Earlier this year, Governor Snyder filed a motion for summary judgment, seeking dismissal of the lawsuit. The plaintiffs responded in kind with a motion of their own, asking that the injunction be made permanent. The defendant also moved to stay the case after another judge in this district declared Michigan’s marriage amendment unconstitutional. The defendant argued that if the present plaintiffs could marry as a result of that decision, their need for relief from Act 297
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would become moot. However, the State appealed the marriage amendment decision and obtained a stay of that ruling. And, as noted above, the State prevailed in its defense of traditional marriage. See DeBoer, 2014 WL 5748990, at *27. The present case is ready for decision.
II. The fact that the parties have filed cross motions for summary judgment does not automatically justify the conclusion that there are no facts in dispute. Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003) (“The fact that the parties have filed cross-motions for summary judgment does not mean, of course, that summary judgment for one side or the other is necessarily appropriate.”). Instead, the Court must apply the well-recognized summary judgment standards when deciding such cross motions: when this Court considers cross motions for summary judgment, it “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A trial is required only when “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The parties have not seriously contested the basic facts of the case. Where the material facts are mostly settled, and the question before the court is purely a legal one, the summary judgment procedure is well suited for resolution of the case. See Cincom Sys., Inc. v. Novelis Corp., 581 F.3d 431, 435 (6th Cir. 2009).
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The Court previously dismissed the plaintiffs’ claims that Act 297 violates various aspects of the Due Process Clause. The remaining question, which is addressed by the parties in their motions, is whether the Act violates the Equal Protection Clause. All persons in the United States are entitled to “the equal protection of the laws.” U.S. Const. amend. XIV. The Equal Protection Clause of the Fourteenth Amendment “‘prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.’” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir. 2012) (quoting TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005)).
A. Level of scrutiny In the opinion granting the preliminary injunction, I discussed the appropriate level of scrutiny to which Act 297 should be subjected, concluding that Sixth Circuit precedent required application of the lowest level, that is, rational basis review. Bassett, 951 F. Supp. 2d at 961 (citing Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir. 2012)). I discussed Davis’s pedigree, tracing it to Bowers v. Hardwick, 478 U.S. 186 (1986), which was overruled by Lawrence v. Texas, 539 U.S. 558 (2003). And I suggested that the Sixth Circuit should reexamine its precedent prescribing the appropriate level of scrutiny that ought to be used when examining laws that discriminate on the basis of sexual orientation, although it now appears that the appetite for that exercise is not voracious. See DeBoer, 2014 WL 5748990, at *18. Nonetheless, other courts have done so, since “[t]he Supreme Court has never decided explicitly whether heightened scrutiny should apply to sexual orientation discrimination.” Wolf v. Walker, 986 F. Supp. 2d 982 (W.D.
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Wisc. 2014) (citing Lee v. Orr, 13-cv-8719, 2013 WL 6490577, at *2 n.1 (N.D. Ill. Dec. 10, 2013), aff’d, Baskin v. Bogan, 766 F. 3d 648 (7th Cir. 2014)).
The Supreme Court’s most recent case discussing the equal protection clause and sexual orientation, United States v. Windsor, --- U.S. ---, 133 S. Ct. 2675 (2013), does not even discuss the standard of review when it invalidated section 3 of the Defense of Marriage Act (DOMA). 133 S. Ct. at 2706 (Scalia, J., dissenting) (“The opinion does not resolve and does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.”). But after that decision, several courts in this Circuit have applied heightened scrutiny to such classifications. See Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 986-87 (S.D. Ohio 2013) (finding that the Sixth Circuit “no longer” has “sound precedential authority for the proposition that restrictions on gay and lesbian individuals are subject to rational basis analysis” and suggesting that “lower courts, without controlling post-Lawrence [v. Texas, 536 U.S. 558 (2003)] precedent on the [standard of review to apply]” should “apply the criteria mandated by the Supreme Court to determine whether sexual orientation classifications should receive heightened scrutiny.”), rev’d sub nom DeBoer v. Snyder, --- F.3d ----, 2014 WL 5748990, at *11 (6th Cir. Nov. 4, 2014); see also Love v. Beshear, 989 F. Supp. 2d 536, 545 (W.D. Ky. 2014) (concluding that gays and lesbians are a quasi-suspect class and classifications based on sexual orientation are subject to intermediate scrutiny); Henry v. Himes, 1:14-CV-129, --- F. Supp. 2d. --- 2014 WL 1418395, at *14 (S.D. Ohio Apr. 14, 2014) (“[C]lassifications based on sexual orientation must pass muster under heightened scrutiny to survive constitutional challenge.”), rev’d sub nom DeBoer v. Snyder, --- F.3d ---, 2014 WL 5748990, at *11 (6th Cir. Nov. 4, 2014). Other courts outside the Sixth Circuit have reached the same
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conclusion. See Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“[H]omosexuals compose a class that is subject to heightened scrutiny.”); Wolf, 986 F. Supp. 2d at 1014 (“[S]exual orientation discrimination is subject to heightened scrutiny.”): Hamby v. Parnell, 3:14-CV-00089-TMB, --- F. Supp. 3d --- 2014 WL 5089399, at *4 (D. Alaska Oct. 12, 2014) (applying heightened scrutiny to Alaska’s ban on same-sex marriage); Majors v. Jeanes, 2:14CV-00518 JWS, --- F. Supp. 3d --- 2014 WL 4541173, at *2 (D. Ariz. Sept. 12, 2014) (“[D]iscrimination based on sexual orientation must be evaluated using a heightened standard of review.”); Whitewood v. Wolf, 992 F. Supp. 2d 410, 430 (M.D. Pa. 2014) (“[G]ay and lesbian persons compose a class that is subject to heightened scrutiny.”); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 333 (D. Conn. 2012) (“Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.”); Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009) (applying intermediate scrutiny to Iowa’s same-sex marriage statute); see also Baskin v. Bogan, 766 F.3d 648, 656 (7th Cir. 2014) (“The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny.”).
And in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), the Ninth Circuit concluded that Windsor actually “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” Id. at 481 (emphasis added). Although the court of appeals acknowledged that Windsor did not expressly announce the level of scrutiny it applied, the court held that “[i]n its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review.”
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Ibid. The Ninth Circuit reached this conclusion for four reasons: (1) the Supreme Court focused on the actual purpose and effect of the law rather than conceivable justifications as is typically required under rational basis review; (2) the Court required the government to justify the disparate treatment the law imposed on gay and lesbian couples; (3) the Court considered the harm that the law caused same-sex couples; and (4) the Court refused to afford the law a presumption of validity and instead balanced the government’s interest against the harm to gay and lesbian couples.
Nonetheless, Davis v. Prison Health Services, tarnished provenance and all, still stands as circuit precedent for applying rational basis review to laws that discriminate on the basis of sexual orientation, and the Court will apply it here. But even that standard has subtle variants.
Ordinarily, laws subjected to rational basis review enjoy a strong presumption of validity. See Heller v. Doe, 509 U.S. 312, 319 (1993). And generally speaking, “[l]aws that do not involve suspect classifications and do not implicate fundamental rights or liberty interests . . . will be upheld if they are ‘rationally related to a legitimate state interest.’” Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 368 (6th Cir. 2002) (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000)). When testing legislation against this deferential standard, “courtroom factfinding” must be avoided; and the law “may be based on rational speculation unsupported by evidence or empirical data.” Alexander v. Merit Sys. Prot. Bd. 165 F.3d 474, 484 (6th Cir. 1999) (internal quotation marks and citation omitted). In the words of the Supreme Court, the classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
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But when “[a] protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible,” Massachusetts v. U.S. Dept. of Health & Servs., 682 F.3d 1, 10 (1st Cir. 2012), a different, “more searching form of rational basis review [goes to work] to strike down such laws under the Equal Protection Clause.” Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring). This makes good sense and aligns with the judicial function in our form of government. Although majority rule is a bedrock principle of democratic governments, California Democratic Party v. Jones, 530 U.S. 567, 584 (2000) (observing the “democratic principle that — except where constitutional imperatives intervene — the majority rules”), republicanism — the idea that people have certain unalienable rights that cannot be squelched by the majority — is the guiding political philosophy that animates the Constitution, see Lathrop v. Donohue, 367 U.S. 820, 883 (1961) (“Although in political democracy the rule of the majority is necessary, the American system of democracy is based upon the recognition of the imperative necessity of limitations upon the will of the majority.”). Courts play a vital role in protecting against “the tyranny of shifting majorities.” See I.N.S. v. Chadha, 462 U.S. 919, 961 (1983) (Powell, J., concurring) (quoting The Federalist No. 48, p. 336 (J. Cooke ed. 1961)).
The Supreme Court has long recognized that despite democracy’s virtues, “prejudice against discrete and insular minorities” has, at times, “curtail[ed] the operation of those political processes ordinarily . . . relied upon to protect minorities.” United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938). And the Court has emphasized that “[t]he concept of equal justice under law requires the State to govern impartially. The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.”
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Lehr v. Robertson, 463 U.S. 248, 265 (1983) (internal citation omitted). Therefore, “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Romer v. Evans, 517 U.S. 620, 633 (1996); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973) (holding that a law intended “to harm a politically unpopular group cannot constitute a legitimate governmental interest”); see also Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir. 1997) (“It is a venerable rule under the Equal Protection Clause that the state may not choose to enforce even facially neutral laws differently against different portions of the citizenry solely out of an arbitrary desire to discriminate against one group.”).
In cases where governmental animus is found, the Supreme Court has “depart[ed] from th[e] well-trod path” of accepting any conceivable justification for a discriminatory law and “t[aken] up equal-protection challenges to government action that distinguished between people on the basis of characteristics that the Court had not deemed suspect or quasi-suspect.” Bishop v. Smith, 760 F.3d 1070, 1097-98 (10th Cir. 2014) (Holmes, J., concurring) (citing Romer (law classifying on the basis of sexual orientation); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 436-37 (1985) (law classifying on the basis of intellectual disability); Moreno (law classifying between households where the members were related to one another and households where they were not)).
When a law discriminates against a non-suspect group because of that group’s characteristics, the State’s motives are called into question and the standard of review is “less deferential than the traditional rational basis standard.” Am. Exp. Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 692 (6th Cir. 2011) (citing Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759-60 (2011) (noting that the level of scrutiny applied by the Court in Cleburne,
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Moreno, and Romer “depart[s] from the usual deference associated with rational basis review,” and “commentators have correctly discerned a new rational basis with bite standard in such cases” (emphasis added))). That standard — rational basis with bite, as it has been called — is appropriate here, if Act 297 found its way into law because of animus toward same-sex partners.
B. Animus The concept of animus focuses on legislative motivation. Am. Exp. Travel Related Servs., 641 F.3d at 692 & n.2 (noting that ‘[i]n each of the [animus cases], the Supreme Court or this Court concluded that the legislation at issue was in fact intended to further an improper government objective” (emphasis added)). “Those motives could be viewed as falling somewhere on a continuum of hostility toward a particular group.” Bishop, 760 F.3d at 1099 (Holmes, J., concurring). On the extreme end of the continuum, legislators may pass a law based on “a desire to harm a politically unpopular group.” Moreno, 413 U.S. at 534. However, an impermissible motive does not always reflect “malicious ill will.” Obergefell, 962 F. Supp. 2d at 992 (citing Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring)). It can also take the form of “negative attitudes,” “fear,” “irrational prejudice,” or “some instinctive mechanism to guard against people who appear to be different in some respect from ourselves.” Ibid. (citing City of Cleburne, 473 U.S. at 450 and Garrett, 531 U.S. at 374 (Kennedy, J., concurring)). “In this sense, animus may be present where the lawmaking authority is motivated solely by the urge to call one group ‘other’” or “to separate those persons from the rest of the community.” Bishop, 760 F.3d at 1100 (Holmes, J., concurring). The “dominant theme” in those cases “is to end otherness, [and] not to create new others.” DeBoer v. Snyder, 2014 WL 5748990, at *15.
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“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 266 (1977). To assess whether animus motivated particular legislation, courts start with “certain basic questions. What class is harmed by the legislation, and has it been subjected to a ‘tradition of disfavor’ by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment?” City of Cleburne, 473 U.S. at 453 (Stevens, J., concurring) (footnotes omitted). Drilling down, one court, helpfully, suggested that animus exists if a law is structurally aberrational. Structural aberration occurs when the law (1) “impose[s] wideranging and novel deprivations upon the disfavored group;” or (2) “stray[s] from the historical territory of the lawmaking sovereign to eliminate privileges that a group would otherwise receive.” Bishop, 760 F.3d at 1100 (Holmes, J., concurring). The Sixth Circuit has identified a similar but expanded list of factors that can be used to detect whether state action was motivated by a discriminatory purpose: (1) the impact of the official action on the group challenging the classification; (2) the historical background of the challenged decision, especially if it reveals numerous actions being taken for discriminatory purposes, (3) the sequence of events that preceded the state action, (4) procedural or substantive departures from the government’s normal procedural process, and (5) the legislative or administrative history. Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 369 (6th Cir. 2002) (citing Village of Arlington Heights, 429 U.S. at 266-68).
1. Deprivations imposed on a disfavored group To begin, Public Act 297, as its title suggests, was enacted to impose “[r]estrictions” on the health care and other “[b]enefit[s]” of “[p]ublic [e]mployee[’s] [d]omestic [p]artner[s].” And, true
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to its name, the detrimental impact of Act 297 falls most heavily on gay and lesbian partners and families with OQA benefits. If Public Act 297 is allowed to continue in effect, it is undisputed that the plaintiffs will face significant financial hardships. As Kenneth P. Collard, the City Manager for the City of Kalamazoo notes: the loss of OQA benefits “is, in effect, a loss of income for these employees’ families. . . .” Collard Dec., dkt. #21-13, at ¶ 23. Joe Breakey estimates that purchasing a comparable health insurance plan would cost his family between $8,000 and $10,000 each year. Breakey Dec., dkt. #21-11 at 16 ¶ 9. Barbara Ramber estimates that purchasing insurance from the Kalamazoo Public Schools would cost $540 per month – more than half of her monthly take-home pay and more than her family can afford. Ramber Dec., dkt. #21-11, at 25 ¶ 9. Gerardo Ascheri estimates that alternative coverage would cost $500 per month in premiums, almost $400 more than his family pays for his health insurance now. Ascheri Dec., dkt. #21-11, at 32 ¶ 9, Bloss Dec., dkt. #21-11, at 29 ¶ 10.
This financial burden falls directly and exclusively on public employees with same-sex partners. Although the law also impacts unmarried heterosexual couples, those couples could choose to marry if they wished to retain their current family health benefits, and avoid the deprivation imposed by the law. As we have recently learned, gay couples cannot marry within the four states of this circuit, including Michigan, under current law. This the defendant cannot deny.
One need not look very far to learn that gays and lesbians are a disfavored group. In 2012, twelve percent of all reported hate crimes in Michigan targeted gays and lesbians. Michigan State Police, 2012 Hate/Bias Crime Report. Gays and lesbians in Michigan have a 27 percent chance of experiencing discrimination in obtaining housing. Pam Kisch and Pat Winston, eds., Sexual Orientation and Housing Discrimination in Michigan (2006). The State of Michigan provides no
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protection against harassment or employment discrimination on the basis of sexual orientation. Barbour v. Dep’t of Soc. Services, 198 Mich. App. 183, 185, 497 N.W.2d 216, 217–18 (1993). And the Michigan Legislature has not repealed its sodomy or gross indecency statutes, despite the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), nearly twelve years ago. See Williams Institute, Michigan—Sexual Orientation and Gender Identity Law and Documentation of Discrimination 16 (2009).
Many courts have acknowledged this unfortunate fact. See DeBoer, 2014 WL 5748990, at *18 (“We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens.”); De Leon v. Perry, 975 F. Supp. 2d 632, 651 (W.D. Tex. 2014) (“Plaintiffs have established that homosexuals have been subjected to a long history of discrimination.”); Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 175, 957 A.2d 407, 432 (2008) (“Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.”); Parker v. Hurley, 474 F. Supp. 2d 261, 264 (D. Mass. 2007) (“Our history . . . includes instances of individual and official discrimination against gays and lesbians, among others.”); High Tech Gays v. Def. Indus. Sec. Clearance, 895 F.2d 563, 573 (9th Cir. 1990) (“homosexuals have suffered a history of discrimination.”). “Until quite recently,” gays and lesbians, “had, as [gays and lesbians], no rights.” Baskin v. Bogan, 766 F.3d 648, 665 (7th Cir. 2014). The federal government categorically discriminated against gays and lesbians in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress intended the phrase
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‘psychopathic personality’ to include homosexuals.”). And the Immigration and Nationality Act of 1952 labeled gay and lesbian people as mentally ill. Ibid. “In 1953, President Eisenhower issued an executive order banning the employment of homosexuals and requiring that private contractors currently employing gay individuals search out and terminate them.” Whitewood v. Wolf, 992 F. Supp. 2d 410, 427 (M.D. Pa. 2014) (internal citations omitted). “Although the ban on hiring gay employees was lifted in 1975, federal agencies were free to discriminate against homosexuals in employment matters until President Clinton forbade the practice in 1998.” Ibid. “Beginning in World War II, the military developed systematic policies to exclude personnel on the basis of homosexuality, and, following the war, the Veterans Administration denied GI benefits to service members who had been discharged because of their sexuality.” Ibid. The history of sexualpreference-based discrimination runs deep.
In light of the reactions to the Michigan Civil Service Commission’s furnishing benefits to the same-sex partners of public employees, noted earlier, 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.
The defendant says that the law has other purposes that are legitimate, which, he insists, courts cannot look behind or even question. And perhaps he would be right if the applicable test is grounded on traditional rational basis review, where “legislative choices may rest on ‘rational speculation unsupported by evidence or empirical data.’” DeBoer, 2014 WL 5748990, at *10 (quoting Beach Commc’ns, 508 U.S. at 315). But because the Supreme Court’s animus cases require an assessment of motive, courts must look behind the stated justifications to see whether they actually relate to a legitimate governmental purpose.
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The defendant cites three such purposes: (1) Act 297 demonstrates a preference for marriage and ensures that the benefits of marriage are not distributed to people that are not married; (2) it eliminates policies that disfavor familial relationships; and (3) it promotes the State’s fiscal goals of reducing the costs to government and promoting financially sound local government units. I will examine these one at a time.
a. Preference for marriage It is curious that the defendant claims to promote marriage by enacting restrictions that fall most heavily on a discrete group that cannot marry under law. The defendant, in essence, justifies discriminating against a group by noting that the law promotes the interests of the group’s counterpart. That is no justification at all. Discrimination against one group cannot be justified merely because the legislature prefers another group. See Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 882 n.10 (1985). As Justice Scalia said bluntly: “‘preserving the traditional institution of marriage’ is just a kinder way of describing the [s]tate’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting). However, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Lawrence, 539 U.S. at 577 (internal quotation marks omitted). As the Supreme Court has held, “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). A classification may not be “drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633 (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring)). Rather, the classification must advance a state interest that is separate from the classification itself. Ibid.
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In the same vein, the defendant contends that Public Act 297 augments laws that maintain family relationships. That is true only if one adopts a very narrow definition of family. Certainly, many married couples enjoy relationships characterized by love, affection, and commitment. But as the Sixth Circuit recently acknowledged, “[g]ay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.” DeBoer v. Snyder, 2014 WL 5748990, at *10.
Each of the plaintiffs in this case has enjoyed a long-term, committed, and financially interdependent relationship; several are raising children together. Public Act 297 does not maintain those family relationships; it aims to destroy them. The Act humiliates the plaintiffs’ families and the “tens of thousands of children now being raised by same-sex couples.” United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). “The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Ibid. The Constitution prevents the State of Michigan “from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns.” Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 506 (1977). The defendant asks too much when it exhorts the Court to believe that the legislature thought Act 297 would create a preference for “familial relationships recognized by state law” by encouraging heterosexual couples to marry. The defendant admitted as much in his motion to dismiss, stating that “it strains credulity to believe that a couple would marry simply to obtain health benefits, or would acquiesce to participating in a relationship they might not otherwise choose in order to qualify for the benefit.”
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Def.’s Am. Mot. to Dismiss at 24. And although the defendant has submitted evidence that traditional marriage may benefit the State, he has not presented any credible argument as to how Public Act 297 actually furthers traditional marriage.
Public Act 297 sends a message to committed gay and lesbian partners that the State of Michigan is willing to invest in the health of married heterosexual couples, but is unwilling to invest (or allow local governments to invest) in the health of similarly-situated same-sex partners who cannot marry. How does that promote traditional marriage? Several of the plaintiffs, who are covered by their partners’ health insurance, have health conditions that require ongoing monitoring and care, including arthritis, glaucoma, high blood pressure, and fibroid tumors. How does prohibiting local governments from furnishing health insurance to those partners benefit the State in any way? And how does this justification amount to anything more than a desire to impose a deprivation upon a disfavored group? The defendant has not answered these questions in a way that dampens the inference of animus.
b. Elimination of policies disfavoring familial relationships The defendant says that Public Act 297 eliminates local government programs that are irrational and unfair to traditional families. The reasoning behind this justification is largely theoretical, and, when viewed in the context of the local government’s actual OQA plans, flawed. According to the defendant, the benefit plans Act 297 would eradicate are unfair to traditional families because they would allow an unmarried public employee to share his benefits with anyone he designates, but a married employee could only share her benefits with her spouse. The defendant believes that such a system creates an “anomaly” that is “unfair” and “absurd,” and somehow it disfavors family relationships.
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It is not apparent how the benefit plans targeted by Act 297 disfavor families, traditional or otherwise. The defendant seems to think that the benefit programs allow public employees to share their health care with resident strangers. But the defendant mischaracterizes the OQA programs. Almost all of the programs contain stringent criteria for designating an OQA, including that the applicant must establish long-term cohabitation and financial interdependence before qualifying for benefits. See, e.g., Ingham County OQA Criteria, dkt. #18-5; Ann Arbor OQA Criteria, dkt. #88-4; City of Kalamazoo OQA Critieria, dkt. #18-3. The defendant counters that such arrangements resemble too closely traditional families and conventional marriage, and a statute that prohibits such programs therefore is justified by the State’s policy against same-sex unions. But once again, this argument rests on the unspoken premise that same-sex domestic partners do not constitute families. They do.
The defendant asserts that Michigan’s public policy, as reflected in its marriage amendment, is to recognize only traditional marriage relationships, so that Public Act 297’s preventing local governments from extending fringe benefits to same-sex partners is rational. That justification can be “rational” only if the State could promote a favored group by imposing a deprivation upon a disfavored “other” one. That justification, however, runs afoul of the Equal Protection Clause. Public Act 297 effectively singles out one type of family formation — same-sex domestic partners — and bars employers from providing benefits to them. Although public “employees and their families are not constitutionally entitled to health benefits, . . . when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.” Diaz v. Brewer, 656 F.3d 1008, 1013 (9th Cir. 2011). The
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defendant’s articulation of this justification for the law supports rather than discourages a finding of animus.
c. Costs savings The defendant contends that economics justify the legislation, and therefore there is a rational basis for it. There is little evidence that the desire to save the State money ever motivated the law initially, and the defendant does not suggest that its argument is anything more than post hoc reasoning. The defendant is correct when he argues that the justification for the law does not have to be correct in hindsight. Am. Exp. Travel Related Servs., 641 F.3d at 690 (noting that under traditional rational basis review, “if a statute can be upheld under any plausible justification offered by the state, or even hypothesized by the court, it survives rational-basis scrutiny”). However, the defendant’s rationalization based on saving money is nothing more than a Potemkin Village; there is no substance backing up its reasoning. First, there was no analysis of the potential fiscal impact on local governments, the population Public Act 297 impacts. House Fiscal Agency, Legislative Analysis, dkt. #88-10, at 7. Moreover, the state legislature’s fiscal analysis of Public Act 297 is based on inaccurate information about any cost savings that would result. The Office of the State Employer (“OSE”) provided an initial estimate that the Act would save the State $8 million. House Fiscal Agency, Legislative Analysis, dkt. #88-10, at 6. But that analysis was based on potential cost savings that would result from no longer providing OQA benefits to state employees, and was later revised downwards by the Senate Fiscal Agency to $893,000. Senate Fiscal Agency, dkt. #88-12, at 2. The district court in Arizona found similar evidence sufficient to grant a motion for a preliminary injunction in a nearly identical equal protection claim. Collins v. Brewer, 727 F. Supp. 2d 797, 811-12 (D. Ariz. 2010),
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aff’d sub nom Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011). In affirming that decision, the Ninth Circuit highlighted the fact that the district court was provided with an expert analysis of the law on the state’s finances but did not have any evidence as to the number of same-sex domestic partners participating in the health plan or the costs of such participation. Diaz, 656 F.3d at 1013. The defendant’s evidence here is similarly deficient.
Second, the Act does not impact the amount of funding that the State provides to local governments. The Michigan constitution and state statutes allocate state funds to local governments based on various formulas. Mich. Const. Art. IX, sec. 30 (1963); Mich. Comp. Laws §§ 18.1115(5), 18.1349. The funds that local governments receive from the State is largely contingent on the population of the city, township, or village; the funds that school districts receive is largely per pupil. Mich. Const. Art. IX, sec. 10 (1963); Mich. Comp. Laws §§ 141.913, 141.911. The State’s funding formula does not take into account the number of public employees, the number of public employees receiving health insurance benefits, or the number of people insured. Thus, whether a local government provides OQA benefits does not affect the amount of state funding that local governments receive.
Nor will the money that local governments would have spent on OQA benefits be returned to the State if Public Act 297 survives. Before the enactment of Public Act 297, local governments paid for the benefits out of their general funds. Comsa Dep., dkt. #88-27, at 22:7-8. Funds that the State provides to local governments is generally unrestricted. Mich. Comp. Laws § 141.917. Several local governments submitted declarations that they voluntarily provided OQA benefits to recruit and retain employees and reflect community values, among other reasons. Comsa Decl. Dkt. #88-27 at 28; Dolehanty Decl., dkt. #88-25 at 2; Wilkerson Decl., dkt. #88-26, at 2. Timothy J.
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Dolehanty, the Controller for Ingham County, declared that “[e]nding OQA benefits for Ingham County employees would not impact the amount of State money the County receives . . ., [and] [a]ny cost savings associated with an involuntary termination of OQA benefits . . . would accrue to the County or potentially to the federal government, not the state.” Dolehanty Decl., dkt. #88-25, at 9 ¶30. David A. Comsa, the Deputy Superintendent for Human Resources and General Counsel for Ann Arbor Public Schools, explained that if “Ann Arbor Public Schools in the future is forced to cease making [OQA] benefits available to any of its employees, the small amount of reduced expenditures on benefits would accrue to the District not to the State.” Comsa Decl. Dkt. #88-27 at ¶23. The State admitted in responses to interrogatories that “[n]o impact on the State or its budge[t] have resulted from the preliminary injunction entered in this case.” Defendant’s Answers to Plaintiffs Third Set of Interrogatories, dkt. #21, at 2. Thus, there is no genuine dispute that Public Act 297 has had no impact on the State’s fiscal health.
Third, the Act may actually cost the State money. Many public employees pay state income tax on their employers’ contributions to their partners’ benefits; if employers can no longer offer these benefits, the State will lose this tax revenue. Badgett Rep., dkt. #88-23 at 12-13. Moreover, individuals affected by the Act who cannot afford to purchase insurance independently may rely on Medicaid or other government-sponsored health care programs. Id. at 14.
The defendant’s expert, Dr. Joseph Price, could not identify any direct cost savings to the State of Michigan caused by Public Act 297. Dr. Price suggested that “[r]estricting partner health benefits to married couples creates an additional incentive for couples to marry and this decision to marry produces economic benefits for the state of Michigan.” Price Report, dkt. #91-3, ¶ 42. But Dr. Price admitted at his deposition that he has no empirical basis to say that marriage results in any
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increase to household income compared to cohabitation, Price Dep. at 248:23-249:7; no empirical foundation to conclude that State tax revenue would increase if cohabiting couples married, id. at 249:15-19; and no empirical grounds to opine that marriage creates positive health outcomes versus cohabitation, id. at 160:24-161:4. Dr. Price concluded in his report that “the most direct impact of marriage is on the costs involved with the criminal justice system.” Price Report ¶ 23. But Dr. Price admitted at his deposition that he could not cite any data to support the proposition that crime would decrease if cohabiting couples married. Price Dep. at 124:5-8; 126:1-7; 124:18-22. In fact, Dr. Price admitted that he did not compare cohabiting and married couples for any purpose whatsoever. Id. at 239:3-17. A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the [defendant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Rank speculation will not suffice.
Fourth, although the State has an interest in the fiscal health of its cities and townships, it is uncontested that any cost savings to local governments wrought by Act 297 would be minimal. For instance, of the 689 employees of the City of Kalamazoo, only six added an OQA to their plan as of late 2011, Kenneth P. Collard Dep., dkt. #88-16, at ¶ 6, and the number of OQAs had not changed as of February 2014, Post. Dep., dkt #88-29 at 22:22-23:5. Of approximately 1,800 fulltime employees for the Ann Arbor Public Schools, thirty-three had enrolled OQAs as of January 2012, dkt. #21-13, at ¶¶ 2, 5, and only twenty were enrolled in February 2014. Camsa Dep., dkt. #88-27 at 10, 12. And of the 798 Ingham County employees eligible to participate in 2014 and 402 Kalamazoo Valley Community College employees eligible in 2012, only five and one had enrolled OQAs, respectively. Dolehanty Decl, dkt. #88-25, at ¶¶ 7-8; KVCC’s Response to Plaintiffs’ RPD,
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dkt. #38, ¶¶ 3, 13. These numbers are consistent with evidence indicating that few employees enroll OQAs. Badgett Report, dkt. #88-23, at 8. Furthermore, the cost of providing OQA benefits is only a small fraction of local government’s health care costs. The City of Kalamazoo’s costs for OQA benefits was .45% of total 2011 health insurance costs, Collard Dec., dkt. #21-13, at ¶ 12, Ann Arbor Public School’s estimated costs represented 1.2% of 2011-2012 health insurance costs, Comsa Dec., dkt. #21-13, at ¶ 11, and Ingham County’s projected costs represented only .002% of the County’s projected 2014 health insurance costs, Dolenhanty Dec., dkt. #88-25, at ¶ 13.
Fifth, there is some evidence that eliminating OQA benefits will increase costs to local governments. Local governments voluntarily created OQA programs to attract and retain the highest quality workers. Collard Dec., dkt. #21-13 at ¶¶ 20-25; Comsa Dec., dkt. #21-13 at ¶¶ 15-19, Post Dep., dkt. #88-29 at 16-17, Comsa Dep, dkt. #88-17 at 7-10. For example, the City of Kalamazoo adopted its plan to compete with private sector employers that offered such benefits. Collard Dec., dkt. #21-13, at ¶¶ 20-23. The City Manager for the City of Kalamazoo declared that the OQA policies “have saved the City literally millions of dollars.” Id. at ¶ 20. Jerome Post, the human resources and labor relations director for the City of Kalamazoo, testified that he accepted his position with the City of Kalamazoo over employment in the private sector because it offered OQA benefits. Post Dep., dkt. #88-29 at 19:15-20:10. Before the passage of Public Act 297, several local governments expressed concern that failing to provide OQA benefits would undermine those successes. For example, in November 2011, Ingham County passed a resolution stating “if this legislation were signed into law, Ingham County would be construed to be a less desirable employer to potential employees.” Lannoye Dec., dkt. #88-17, at ¶23. Dr. Badgett concluded that failing to offer benefits may increase employee attrition and raise the cost to local employers of recruiting and
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retaining talented employees. Badgett Report, dkt. #88-23, at 16-19. Her conclusions are supported by a 2007 survey of corporate employees, which showed that 41 percent of gay and lesbian people that left their job “would have been very likely to have stayed if their employer offered to pay them more fairly . . . [B]etter benefits was the top concern of gay and lesbian professionals and managers.” Id. at 17. Some employees have even contemplated moving out of the State of Michigan because of the passage of Public Act 297. Ways Decl., dkt. #21-11, at ¶ 11, Breakey Dec., dkt. #21-11 at ¶ 12, Bloss Dec., dkt. #21-11, at ¶ 11. There is no genuine dispute that cost savings justify the Act. They do not.
As noted earlier, the State did not have to be correct in its estimate that Act 297 would save it money, if indeed it held that view at the time. But the lack of substance behind this stated justification does little to dispel the “suspicion that bigotry rather than legitimate policy is afoot.” DeBoer, 2014 WL 5748990, at *19. Although “a state has a valid interest in preserving the fiscal integrity of its programs” and “may legitimately attempt to limit its expenditures . . . a State may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, 394 U.S. 618, 633 (196), overruled in part on other grounds by Edelman v. Jordan, 394 U.S. 618, 634 (1969). And, although the Sixth Circuit has not addressed the issue, the First and Ninth Circuits have held that cost savings alone are insufficient to justify an otherwise discriminatory statute. Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 11, 14 (1st Cir. 2012); Diaz, 656 F.3d at 1013-14.
2. Departures from the government’s normal procedural process Another badge of animus can be found when a legislature “stray[s] from [its] historical territory” to enact a law that “eliminate[s] privileges that a group would otherwise receive.” Bishop,
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760 F.3d at 1100 (Holmes, J., concurring). Such is the case here. When enacting Public Act 297, the legislature took the unusual step of telling local governments that they could not offer employee fringe benefits to a specific class of people who had been receiving them up to then. The defendant insists that Act 297 is a logical and cohesive part of the effort to reduce costs and address the fiscal insecurity of local governments, referencing other legislation that was intended to fortify the fiscal stability of local governments. As examples, the defendant points to laws authorizing the appointment of emergency financial managers, mandating contributions by public employees to their retirement plans, and capping public employer contributions to publically-funded health insurance. Those laws, all of a piece, are different from Act 297, in that they do not single out a class of public employees for different treatment, nor do they purport to dictate value judgments traditionally left to local governmental units.
Public Act 297 is a substantial departure from Michigan’s strong tradition of home rule. See Detroit Police Officers Ass’n v. City of Detroit, 391 Mich. 44, 66, 214 N.W.2d 803, 814 (1974) (“Michigan is a strong home rule state with basic local authority.”); see also Mich. Comp. Laws § 117.4j(3) (committing to cities “all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants”). It is true that cities are political subdivisions of the State, but Michigan’s current constitution “continues the grant of broad power and authority to home rule cities.” Adams Outdoor Adver., Inc. v. City of Holland, 234 Mich. App. 681, 687, 600 N.W.2d 339, 342 (1999) (citing Mich. Const. art. 7, § 22 (1963)). Indeed, the defendant admitted that he was unaware of any law other than Public Act 297 that “placed any limits on the categories
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of Insured to whom local governmental units could provide health insurance benefits.” See Requests for Admission No. 1 and 2, dkt. #88-19 at 209.
Public Act 297 departs from Michigan’s “history and tradition” of strong home rule for local units of government, and amounts to a “‘discrimination[] of an unusual character.’” See Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633). It is a structural aberration, which leads to the conclusion that the law was motivated by animus, passed to harm same-sex couples in which one partner was employed by a local government.
C. As one court succinctly stated, “once animus is detected, the inquiry is over: the law is unconstitutional.” Bishop, 760 F.3d at 1103 (Holmes, J., concurring). The reason is straightforward: even under the deferential and forgiving rational basis standard of review, the law must have a legitimate purpose. See Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000) (declaring that “rational basis review is not a rubber stamp of all legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate the Equal Protection Clause”). A law is irrational if its purpose is to target a disadvantaged group. Romer, 517 U.S. at 632 (“[T]he amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”); Cleburne, 473 U.S. at 448 (“[M]ere negative attitudes, or fear, . . . are not permissible bases for [a statutory classification].”); Moreno, 413 U.S. at 534 (“[The] amendment was intended to prevent socalled ‘hippies’ and ‘hippie communes’ from participating in the food stamp program,” and such “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”). 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
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government. The defendant has not identified any other credible justification for the law. The Supreme Court has explained that “[t]he 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.” Windsor, 133 S. Ct. at 2693 (quoting Moreno, 413 U.S. at 534-35). Public Act 297, the Public Employee Domestic Partner Benefit Restriction Act, therefore violates the Equal Protection Clause and is unconstitutional.
D. Permanent injunction It is well settled that if the plaintiffs establish a constitutional violation after prevailing on the merits, the plaintiffs are entitled to a permanent injunction upon a showing of (1) a continuing irreparable injury if the court fails to issue the injunction, and (2) the lack of an adequate remedy at law. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998). Both of those requirements are easily met here. The defendant does not dispute that the plaintiffs will suffer irreparable harm if Public Act 297 is enforced or that the plaintiffs do not have an adequate remedy at law. “[I]f it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (citing Elrod v. Burns, 472 U.S. 347, 373 (1976)). “Moreover, the potential risk to the plaintiffs’ health resulting from the loss of medical insurance qualifies as irreparable harm.” Bassett, 951 F. Supp. 2d at 970. However, the defendant argues that a permanent injunction is inappropriate because a declaration of unconstitutionality is sufficient. “Rule 57 of the Federal Rules of Civil Procedure permits declaratory relief although another adequate remedy exists.” Katzenbach v. McClung, 379 U.S. 294, 296 (1964). A declaratory
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judgment is particularly appropriate if only part of a law is found unconstitutional. It has been characterized as “a much milder form of relief than an injunction.” Steffel v. Thompson, 415 U.S. 452, 471 (1974). The defendant has failed to demonstrate “why a much milder form of relief” is appropriate. The case does not involve a criminal statute or anticipatory litigation. Nor is a declaratory judgment sufficient to encourage the State to enforce the Act differently or to persuade the State to repeal or modify the Act. Although a declaratory judgment “may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt.” Ibid. A permanent injunction is appropriate because nothing in Public Act 297 is salvageable. This is not the place for a light touch.
The defendant also cites cases that address standing. In one, City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court found that the plaintiff lacked standing to seek injunctive relief preventing the Los Angeles Police Department (L.A.P.D.) from using a choking-hold during arrests because the threat of injury in the future was too speculative to confer standing for injunctive relief. Id. at 105. In another, Grendell v. Ohio Supreme Court, 252 F.3d 828 (6th Cir. 2001), the Sixth Circuit held that the plaintiff failed to establish a sufficient injury in fact to seek injunctive relief against the Ohio Supreme Court and four justices preventing the imposition of certain sanctions on the ground that the rule was facially unconstitutional. The court of appeals found that the threat of Grendell’s future injury depends on a string of actions that was highly speculative. Id. at 833.
Unlike Lyons and Grendell, the threat of future harm does not depend on the occurrence of speculative events. As I explained in the opinion granting the preliminary injunction, Bassett, 951 F. Supp. 2d at 970-71, if Public Act 297 is enforced, the plaintiffs will face continuing irreparable
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harm from the loss of medical benefits. The plaintiffs have satisfied the requirements for a permanent injunction.
III. The Public Employee Domestic Partner Benefit Restriction Act, Public Act 297 (2011), violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it unlawfully discriminates against the same-sex partners of public employees without a legitimate basis for doing so. Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt. #88] is DENIED, and the plaintiff’s motion for summary judgment [dkt. #88] is GRANTED. It is further ORDERED that Public Act 297 (2011), Michigan Compiled Laws §§ 15.583.584 is declared to violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and therefore is repugnant to the Constitution. It is further ORDERED that the defendant and all those in active concert and participation with him who receive actual notice of this order are RESTRAINED AND ENJOINED from enforcing Public Act 297 (2011), Michigan Compiled Laws §§ 15.583-.584.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: November 12, 2014
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PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on November 12, 2014.
s/Susan Pinkowski SUSAN PINKOWSKI
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 2:12-cv-10038-DML-MJH Doc # 105 Filed 11/12/14 Pg 1 of 2 Pg ID 4868

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA BASSETT, CAROL KENNEDY, PETER WAYS, JOE BREAKEY, JOLINDA JACH, BARBARA RAMBER, DOAK BLOSS, GERARDO ASCHERI, MICHELLE JOHNSON, and DENISE MILLER,

Plaintiffs, v.

Case Number 12-10038 Honorable David M. Lawson

GOVERNOR RICHARD SNYDER,

Defendant. __________________________________________/

JUDGMENT

In accordance with the Opinion and Order entered on this date,

It is ORDERED AND ADJUDGED that the defendant and his representatives, officers,

agents, servants, employees, and attorneys, and anyone in active concert or participation with him

shall be and hereby are enjoined from enforcing Public Employee Domestic Partner Benefit

Restriction Act, Public Act 297 (2011), Michigan Compiled Laws §§ 15.583-.584.

It is further ORDERED AND ADJUDGED that the remaining portions of the plaintiffs’

complaint are DISMISSED WITH PREJUDICE.

s/David M. Lawson DAVID M. LAWSON United States District Judge

Dated: November 12, 2014

2:12-cv-10038-DML-MJH Doc # 105 Filed 11/12/14 Pg 2 of 2 Pg ID 4869
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on November 12, 2014.
s/Susan Pinkowski SUSAN PINKOWSKI
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 Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 1 of 15

U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12−cv−10038−DML−MJH

CLOSED

Bassett et al v. Snyder Assigned to: District Judge David M. Lawson Referred to: Magistrate Judge Michael J. Hluchaniuk Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/05/2012 Date Terminated: 11/12/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Theresa Bassett

represented by Amanda C. Goad American Civil Liberties Union Foundation 1313 West 8th Street Los Angeles, CA 90017 213−977−5244 Fax: 213−977−5273 Email: agoad@aclu.org ATTORNEY TO BE NOTICED

Amy E. Crawford Kirkland & Ellis LLP 300 N. LaSalle Chicago, IL 60654 312−862−2000 Fax: 312−862−2200 Email: acrawford@kirkland.com ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer Kirkland and Ellis LLP 300 North LaSalle Chicago, IL 60654 312−862−2000 Fax: 312−862−2200 Email: bweidenhammer@kirkland.com ATTORNEY TO BE NOTICED

Donna M. Welch Kirkland & Ellis LLP 300 North LaSalle Drive Chicago, IL 60654 312−862−2000 Fax: 312−862−2200 Email: dwelch@kirkland.com ATTORNEY TO BE NOTICED

Jay Kaplan American Civil Liberties of Michigan 2966 Woodward Ave. Detroit, MI 48201 313−578−6800 Fax: 313−578−6811 Email: kaplan@aclumich.org ATTORNEY TO BE NOTICED

John A. Knight American Civil Liberties Union Foundation LGBT & AIDS Project 180 N. Michigan Ave.

Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 2 of 15

Suite 2300 Chicago, IL 60601 312−201−9740 Fax: 312−288−5225 Email: jknight@aclu−il.org ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Plaintiff Carol Kennedy

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Peter Ways

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address)

Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 3 of 15

ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joe Breakey

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jolinda Jach

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

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Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barbara Ramber

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Doak Bloss

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

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Gerardo Ascheri

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michelle Johnson

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address) ATTORNEY TO BE NOTICED

Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED

Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED

Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Denise Miller

represented by Amanda C. Goad (See above for address) ATTORNEY TO BE NOTICED

Amy E. Crawford (See above for address)

Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 6 of 15
ATTORNEY TO BE NOTICED
Bradley H. Weidenhammer (See above for address) ATTORNEY TO BE NOTICED
Donna M. Welch (See above for address) ATTORNEY TO BE NOTICED
Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED
John A. Knight (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Governor Richard Snyder

represented by Margaret A. Nelson Michigan Department of Attorney General Public Employment, Elections and Tort P.O. Box 30736 Lansing, MI 48909 517−373−6434 Email: nelsonm9@michigan.gov ATTORNEY TO BE NOTICED
Mark E. Donnelly Michigan Department of Attorney General Tort Defense Division P.O. Box 30736 Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: donnellym@michigan.gov ATTORNEY TO BE NOTICED
Michael F. Murphy MI Dept of Attorney General State Operations Division P.O. Box 30754 Lansing, MI 48909 517−373−1162 Email: murphym2@michigan.gov ATTORNEY TO BE NOTICED
Rock A. Wood MI Department of Attorney General State Operations Division 525 W Ottawa St PO Box 30754 Lansing, MI 48909 517−373−1162 Fax: 517−373−2060 Email: WoodR5@michigan.gov ATTORNEY TO BE NOTICED

Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 7 of 15

Amicus City of Ann Arbor City Attorney's Office 301 E. Huron St. P.O. Box 8647 Ann Arbor, MI 48107−8647 734.794.6180 Amicus Louis Padnos Iron and Metal Company
Amicus Cengage Learning Holdings II, L.P.

represented by Abraham Singer Kitch Drutchas Wagner Valitutti & Sherbrook One Woodward Avenue Suite 2400 Detroit, MI 48226 (313) 965−7445 Email: Abraham.Singer@kitch.com TERMINATED: 02/21/2013 ATTORNEY TO BE NOTICED
Andrea E. Hayden Pepper Hamilton 4000 Town Center Suite 1800 Southfield, MI 48075 248−359−7300 Fax: 248−359−7700 Email: haydena@pepperlaw.com ATTORNEY TO BE NOTICED
represented by Abraham Singer (See above for address) TERMINATED: 02/21/2013 ATTORNEY TO BE NOTICED
Andrea E. Hayden (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/05/2012
01/09/2012 01/09/2012
01/09/2012 01/11/2012

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Plaintiffs. Plaintiff requests summons issued. Receipt No: 0645−3323908 − Fee: &#036 350. County of 1st Plaintiff: Washtenaw − County Where Action Arose: Washtenaw − County of 1st Defendant: Washtenaw. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Steinberg, Michael) (Entered: 01/05/2012)
2 SUMMONS Issued for *Richard Snyder* (KKra) (Entered: 01/09/2012)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 01/09/2012)
3 NOTICE of Appearance by Amanda C. Goad − NOT SWORN on behalf of All Plaintiffs. (Goad − NOT SWORN, Amanda) (Entered: 01/09/2012)
4 NOTICE of Appearance by John A. Knight − NOT SWORN on behalf of All Plaintiffs. (Knight − NOT SWORN, John) (Entered: 01/11/2012)

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01/16/2012 01/20/2012 01/20/2012 02/03/2012
02/17/2012 02/22/2012 02/22/2012 02/22/2012 02/29/2012 02/29/2012 03/02/2012
03/02/2012 03/05/2012 03/07/2012
03/07/2012 03/07/2012 03/08/2012

5 CERTIFICATE of Service/Summons Returned Executed. All Defendants. (Steinberg, Michael) (Entered: 01/16/2012)
6 NOTICE of Appearance by Mark E. Donnelly on behalf of Richard Snyder. (Donnelly, Mark) (Entered: 01/20/2012)
7 NOTICE of Appearance by Margaret A. Nelson on behalf of Richard Snyder. (Nelson, Margaret) (Entered: 01/20/2012)
8 ORDER to Extend Time to file an answer or other responsive pleading to 1 Complaint filed by Doak Bloss, Joe Breakey, Theresa Bassett, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Peter Ways. Response due by 3/2/2012 Signed by District Judge David M. Lawson. (DTof) (Entered: 02/03/2012)
9 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Steinberg, Michael) (Entered: 02/17/2012)
10 ATTORNEY APPEARANCE: Amy E. Crawford − NOT SWORN appearing on behalf of All Plaintiffs (Crawford − NOT SWORN, Amy) (Entered: 02/22/2012)
11 ATTORNEY APPEARANCE: Donna M. Welch appearing on behalf of All Plaintiffs (Welch, Donna) (Entered: 02/22/2012)
12 ATTORNEY APPEARANCE: Bradley H. Weidenhammer − NOT SWORN appearing on behalf of All Plaintiffs (Weidenhammer − NOT SWORN, Bradley) (Entered: 02/22/2012)
13 NOTICE TO APPEAR: Status Conference set for 3/8/2012 02:00 PM before District Judge David M. Lawson (DTof) (Entered: 02/29/2012)
14 NOTICE TO APPEAR: Scheduling Conference set for 3/8/2012 02:00 PM before District Judge David M. Lawson **See notice for further information, conference is a status and scheduling conference** (DTof) (Entered: 02/29/2012)
15 MOTION to Dismiss and Brief in Support by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1A−D −legislative analyses of PA 297, # 3 Exhibit 2 − Ann Arbor News article, # 4 Exhibit 3 − Detroit News article) (Nelson, Margaret) (Entered: 03/02/2012)
16 MOTION for Leave to File Excess Pages by Richard Snyder. (Nelson, Margaret) Modified on 3/5/2012 (DTyl). [EX PARTE MOTION TO EXCEED PAGE LIMIT] (Entered: 03/02/2012)
17 Amended MOTION to Dismiss with Brief in support by Richard Snyder. (Nelson, Margaret) Modified on 3/6/2012 (DTyl). [CORRECTED MOTION TO DISMISS] (Entered: 03/05/2012)
18 MOTION for Preliminary Injunction by Gerardo Ascheri, Theresa Bassett, Doak Bloss, Joe Breakey, Jolinda Jach, Michelle Johnson, Carol Kennedy, Denise Miller, Barbara Ramber, Peter Ways. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Benefit Restriction Act, # 3 Exhibit B − Kalamazoo Criteria, # 4 Exhibit C − AAPS Fact Sheet, # 5 Exhibit D − Ingham Cty Criteria, # 6 Exhibit E − KVCC Household Member Program, # 7 Exhibit F − AG Op No. 7171, # 8 Exhibit G−1 through 13 − Articles, # 9 Exhibit H − Schuette v. MCSC) (Steinberg, Michael) Modified on 3/8/2012 (DTyl). [EXHIBITS CONTINUED IN DOCKET ENTRY # 21] (Entered: 03/07/2012)
19 DECLARATION by Jay D. Kaplan re 18 MOTION for Preliminary Injunction filed by All Plaintiffs (Steinberg, Michael) (Entered: 03/07/2012)
20 MOTION for Leave to File Excess Pages by All Plaintiffs. (Steinberg, Michael) (Entered: 03/07/2012)
21 EXHIBIT re 18 MOTION for Preliminary Injunction by All Plaintiffs (Attachments: # 1 Exhibit J − Snyder Letter, # 2 Exhibit K − Senate Analysis, # 3 Exhibit L − Budget Office Report, # 4 Exhibit M − House Briefer, # 5 Exhibit N − AAPS Personnel Expenditures, # 6 Exhibit O − Dollars and Sense, # 7 Exhibit P − USAG Letter, # 8 Exhibit Q − Williams Inst Memo, # 9 Exhibit R − Mich Crime Report, # 10 Exhibit S − Crime Report, # 11 Exhibit T−1 through T10, Declarations, # 12 Exhibit U −

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03/08/2012 03/08/2012 03/08/2012 03/08/2012 03/08/2012 03/09/2012
03/12/2012 03/22/2012 03/27/2012 03/30/2012 03/30/2012
04/02/2012
04/10/2012 05/04/2012
05/04/2012 05/25/2012

Badgett Declaration, # 13 Exhibit V−1 through V−2B, Declarations, AAPS Fact Sheet, Resolution) (Steinberg, Michael) (Entered: 03/08/2012)
22 CERTIFICATE OF SERVICE re 19 Declaration, 20 MOTION for Leave to File Excess Pages by All Plaintiffs (Steinberg, Michael) (Entered: 03/08/2012)
23 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael)[FILING ERROR: DOCUMENT IS AN APPEARACNCE FOR JAY KAPLAN] Modified on 3/8/2012 (DPer). (Entered: 03/08/2012)
24 NOTICE of Appearance by Jay Kaplan on behalf of All Plaintiffs. (Kaplan, Jay) (Entered: 03/08/2012)
25 ORDER granting 16 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (DTof) (Entered: 03/08/2012)
Minute Entry − Scheduling/Status Conference held on 3/8/2012 before District Judge David M. Lawson. (DTof) (Entered: 03/08/2012)
26 PRELIMINARY CASE MANAGEMENT AND SCHEDULING ORDER:( Discovery related to the motions in this case due by 5/15/2012), Set Motion and R&R Deadlines/Hearings as to 15 MOTION to Dismiss and Brief in Support, 17 Amended MOTION to Dismiss with Brief in support, 18 MOTION for Preliminary Injunction :( Responses due by 5/29/2012, Replies due by 6/12/2012, Motion Hearing set for 6/29/2012 02:30 PM before District Judge David M. Lawson) Signed by District Judge David M. Lawson. (Refer to image for additional dates) (DTof) (Entered: 03/09/2012)
27 ORDER granting 20 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (DTof) (Entered: 03/12/2012)
28 ANSWER to Amended Complaint with Affirmative Defenses by Richard Snyder. (Nelson, Margaret) (Entered: 03/22/2012)
29 MOTION to Reschedule Hearing Date by All Plaintiffs. (Attachments: # 1 Declaration of John A. Knight in Support of Motion) (Goad − NOT SWORN, Amanda) (Entered: 03/27/2012)
30 ORDER granting 29 Motion to Reschedule Motion Hearing. Signed by District Judge David M. Lawson. (DTof) (Entered: 03/30/2012)
31 NOTICE of hearing on 15 MOTION to Dismiss and Brief in Support, 17 Amended MOTION to Dismiss with Brief in support, 18 MOTION for Preliminary Injunction. Motion Hearing RESET for 8/7/2012 01:30 PM before District Judge David M. Lawson (DTof) (Entered: 03/30/2012)
32 MOTION for Leave to File an Amicus Curiae Brief in support of Plaintiffs' case and their Motion for Preliminary Injunction on behalf of Michigan Pride At Work, The Service Employees International Union−Lavender Caucus, Communication Workers Of America−Committee On Equity And Civil Rights, Labor Council For Latin American Advancement−Lansing And The Sugar Law Center For Economic And Social Justice. (DWor) (Entered: 04/04/2012)
33 STIPULATED ORDER Setting Time to Respond to Discovery. Signed by District Judge David M. Lawson. (DTof) (Entered: 04/10/2012)
34 STIPULATED ORDER Amending Preliminary Case Management Order ( Discovery due by 5/29/2012), Set Motion and R&R Deadlines/Hearings as to 15 MOTION to Dismiss and Brief in Support, 17 Amended MOTION to Dismiss with Brief in support, 18 MOTION for Preliminary Injunction :( Responses due by 6/12/2012, Replies due by 7/3/2012) Signed by District Judge David M. Lawson. (DTof) (Entered: 05/04/2012)
35 ORDER granting 32 Motion for Leave to File Amicus Curiae Brief. Signed by District Judge David M. Lawson. (DTof) (Entered: 05/04/2012)
36 MOTION Motion to Compel by All Plaintiffs. (Crawford − NOT SWORN, Amy) (Entered: 05/25/2012)

Case: 2:12-cv-10038-DML-MJH As of: 11/15/2015 07:29 PM EST 10 of 15

05/25/2012 06/08/2012
06/08/2012 06/08/2012 06/11/2012 06/12/2012 06/12/2012 06/12/2012 06/12/2012 06/13/2012 06/13/2012 06/13/2012 06/15/2012 06/18/2012 06/18/2012 06/18/2012

37 DECLARATION by Amy E. Crawford re 36 MOTION Motion to Compel filed by All Plaintiffs (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2) (Crawford − NOT SWORN, Amy) (Entered: 05/25/2012)
38 MOTION for Leave to File by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2.A, # 3 Exhibit Ex. 2.B, # 4 Exhibit Ex. 2.C − 2.L, # 5 Exhibit Ex. 3.A, # 6 Exhibit Ex. 3.B Part 1, # 7 Exhibit Ex. 3.B Part 2, # 8 Exhibit Ex. 3.B Part 3, # 9 Exhibit Ex. 3.B Part 4, # 10 Exhibit Ex. 3.B Part 5, # 11 Exhibit Ex. 3.B Part 6, # 12 Exhibit Ex. 3.B Part 7, # 13 Exhibit Ex. 3.B Part 8, # 14 Exhibit Ex. 3.B Part 9, # 15 Exhibit Ex. 3.B Part 10, # 16 Exhibit Ex. 3.B Part 11, # 17 Exhibit Ex. 3.B Part 12, # 18 Exhibit Ex. 3.B Part 13, # 19 Exhibit Ex. 3.B Part 14, # 20 Exhibit Ex. 3.B Part 15, # 21 Exhibit Ex. 3.B Part 16, # 22 Exhibit Ex. 3.B Part 17, # 23 Exhibit Ex. 3.C, # 24 Exhibit Ex. 3.D, # 25 Exhibit Ex. 3.E, # 26 Exhibit Ex. 3.F, # 27 Exhibit Ex. 3.G) (Crawford − NOT SWORN, Amy) Modified on 6/11/2012 (DTyl). [EX.2.B IS DUPLICATE OF EX.2.A AND ATTORNEY TO FILE EX. 2.B] (Entered: 06/08/2012)
39 DECLARATION by A. Crawford re 38 MOTION for Leave to File filed by All Plaintiffs (Crawford − NOT SWORN, Amy) (Entered: 06/08/2012)
40 RESPONSE to 36 MOTION Motion to Compel filed by Richard Snyder. (Donnelly, Mark) (Entered: 06/08/2012)
41 EXHIBIT re 38 MOTION for Leave to File by All Plaintiffs (Crawford − NOT SWORN, Amy) (Entered: 06/11/2012)
42 DECLARATION by Theresa Bassett and Carol Kennedy re 21 Exhibit,, Amended Declarations filed by All Plaintiffs (Crawford − NOT SWORN, Amy) (Entered: 06/12/2012)
43 RESPONSE to 18 MOTION for Preliminary Injunction with Certificate of Service filed by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, et al.) (Nelson, Margaret) (Entered: 06/12/2012)
44 MOTION for Leave to File Excess Pages by All Plaintiffs. (Crawford − NOT SWORN, Amy) (Entered: 06/12/2012)
45 RESPONSE to 17 Amended MOTION to Dismiss with Brief in support filed by All Plaintiffs. (Crawford − NOT SWORN, Amy) (Entered: 06/12/2012)
46 NOTICE by All Plaintiffs of withdrawal of 38 MOTION for Leave to File Additional Materials in Support of their Motion for Preliminary Injunction. (Crawford − NOT SWORN, Amy) (Entered: 06/13/2012)
47 MOTION for Leave to File Additional Materials in Support of Their Motion for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Crawford − NOT SWORN, Amy) (Entered: 06/13/2012)
48 DECLARATION by Amy Crawford re 47 MOTION for Leave to File Additional Materials in Support of Their Motion for Preliminary Injunction filed by All Plaintiffs (Crawford − NOT SWORN, Amy) (Entered: 06/13/2012)
49 REPLY to Response re 36 MOTION Motion to Compel a Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibits 1 and 2) (Crawford − NOT SWORN, Amy) (Entered: 06/15/2012)
50 ORDER granting 44 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (DTof) (Entered: 06/18/2012)
51 ORDER granting 47 Motion for Leave to File. Signed by District Judge David M. Lawson. (DTof) (Entered: 06/18/2012)
52 ORDER REFERRING MOTION for hearing and determination to Magistrate Judge Michael J. Hluchaniuk: 36 MOTION Motion to Compel filed by Doak Bloss, Joe Breakey, Theresa Bassett, Denise Miller, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Michelle Johnson, Peter Ways. Signed by District Judge David M. Lawson. (DTof) (Entered: 06/18/2012)

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06/27/2012 07/06/2012 07/06/2012 07/06/2012 07/06/2012 07/13/2012 07/16/2012 07/18/2012 07/19/2012
07/20/2012 07/23/2012 07/30/2012 07/31/2012

53 ORDER Setting Hearing on 36 MOTION to Compel : Resolved/Unresolved Issues due by 8/16/2012. Telephonic Motion Hearing set for 8/23/2012 11:00 AM before Magistrate Judge Michael J. Hluchaniuk. Signed by Magistrate Judge Michael J. Hluchaniuk. (THal) (Entered: 06/27/2012)
54 REPLY to Response re 18 MOTION for Preliminary Injunction with Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Knight, John) (Entered: 07/06/2012)
55 AFFIDAVIT of John Knight re 54 Reply to Response to Motion for Preliminary Injunction filed by All Plaintiffs. (Knight, John) (Entered: 07/06/2012)
56 STIPULATED ORDER Extending Time to Reply and Page Limits. Set Motion and R&R Deadlines/Hearings as to 15 MOTION to Dismiss and Brief in Support, 17 Amended MOTION to Dismiss with Brief in support, 18 MOTION for Preliminary Injunction :( Replies due by 7/6/2012) − Signed by District Judge David M. Lawson. (DTof) (Entered: 07/06/2012)
57 REPLY to Response re 15 MOTION to Dismiss and Brief in Support filed by Richard Snyder. (Nelson, Margaret) (Entered: 07/06/2012)
58 Amicus Curiae BRIEF by City of Ann Arbor (Postema, Stephen) Modified on 7/20/2012 (DTof).[DOCUMENT READS MOTION TO FILE AMICUS CURIAE BRIEF] (Entered: 07/13/2012)
Set/Reset Deadlines as to 36 MOTION Motion to Compel. Telephonic Motion Hearing reset for 7/18/2012 03:00 PM before Magistrate Judge Michael J. Hluchaniuk. (THal) (Entered: 07/16/2012)
Minute Entry − Telephonic Motion Hearing held on 7/18/2012 re 36 MOTION to Compel filed by Doak Bloss, Joe Breakey, Theresa Bassett, Denise Miller, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Michelle Johnson, Peter Ways before Magistrate Judge Michael J. Hluchaniuk. Disposition: Taken under advisement. (Tape #FTR − Flint) (THal) (Entered: 07/19/2012)
59 MOTION Leave to file Amicus Curiae Brief re 18 MOTION for Preliminary Injunction by Louis Padnos Iron and Metal Company, Cengage Learning Holdings II, L.P.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Center for American Progress 2007 Study, # 3 Exhibit B − The Williams Institute October 2011 Study, # 4 Exhibit C − EBRI 2009 Fact Sheet re Domestic Partner Benefits, # 5 Exhibit D − Hewitt Survey (2000), # 6 Exhibit E − Hewitt Survey (2005), # 7 Exhibit F − Michigan DP Benefits Fact Sheet, # 8 Exhibit G − Corporate Statements for the United States Senate, # 9 Exhibit H − More U.S. Employers Seen Adding Benefits for Domestic Partners, # 10 Exhibit I − NCSL State Employment Health Benefits Report, # 11 Exhibit J − AASCU article re Domestic Partner Benefits, # 12 Exhibit K − Universities Veto Bill Banning Partner Benefits, # 13 Exhibit L − Louisville Mayor Statement, # 14 Exhibit M − Capitol News Service article, # 15 Exhibit N − Special Message from Governor Snyder, # 16 Exhibit O − Testimony of Professor Peter Hammer, # 17 Exhibit P − Majority of Students at Odds with State Policies, # 18 Exhibit Q − The Williams Institute Memo re Financial Effects of Domestic Partner Benefits on State of Arizona) (Singer, Abraham) (Entered: 07/19/2012)
60 ORDER granting 58 Motion for Leave to File; granting 59 Motion for leave to file and Deeming Amicus Curiae Briefs Filed − Signed by District Judge David M. Lawson. (DTof) (Entered: 07/20/2012)
61 ORDER denying 36 Motion to compel. Signed by Magistrate Judge Michael Hluchaniuk. (Chubb, D) (Entered: 07/23/2012)
62 EXHIBIT Corrected Exhibit 1 re 47 MOTION for Leave to File Additional Materials in Support of Their Motion for Preliminary Injunction by All Plaintiffs (Crawford, Amy) (Entered: 07/30/2012)
63 Second MOTION File Additional Materials in Support of Their Motion for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit) (Crawford, Amy) (Entered: 07/31/2012)

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07/31/2012 08/06/2012 08/07/2012 08/07/2012
08/13/2012
08/21/2012 08/21/2012 09/07/2012 02/04/2013 02/19/2013 02/21/2013 02/22/2013 06/28/2013 07/22/2013 09/05/2013 09/27/2013

64 DECLARATION by Amy E. Crawford re 63 Second MOTION File Additional Materials in Support of Their Motion for Preliminary Injunction filed by All Plaintiffs (Crawford, Amy) (Entered: 07/31/2012)
65 ORDER denying 63 Motion to file additional materials. Signed by District Judge David M. Lawson. (DTof) (Entered: 08/06/2012)
66 NOTICE of Appearance by Andrea E. Hayden on behalf of Cengage Learning Holdings II, L.P., Louis Padnos Iron and Metal Company. (Hayden, Andrea) (Entered: 08/07/2012)
Minute Entry − Motion Hearing held on 8/7/2012 re 15 MOTION to Dismiss filed by Richard Snyder, 17 Amended MOTION to Dismiss filed by Richard Snyder 18 MOTION for Preliminary Injunction filed by Doak Bloss, Joe Breakey, Theresa Bassett, Denise Miller, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Michelle Johnson, Peter Ways before District Judge David M. Lawson. Disposition: Taken under advisement.(Court Reporter Rene Twedt) (DTof) (Entered: 08/07/2012)
67 TRANSCRIPT of Motion Hearing held on 08/07/2012. (Court Reporter: Rene L Twedt) (Number of Pages: 57) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 9/4/2012. Redacted Transcript Deadline set for 9/13/2012. Release of Transcript Restriction set for 11/13/2012. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 08/13/2012)
68 SUPPLEMENTAL BRIEF re 15 MOTION to Dismiss and Brief in Support, 43 Response to Motion, filed by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Lee v USDC Ohio) (Nelson, Margaret) (Entered: 08/21/2012)
69 SUPPLEMENTAL BRIEF re 18 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1 − Hearing Transcript Excerpt) (Crawford, Amy) (Entered: 08/21/2012)
70 AMENDED 21 Exhibit,, 18 MOTION for Preliminary Injunction by All Plaintiffs Declarations (Crawford, Amy) (Entered: 09/07/2012)
71 Third MOTION to file additional materials re 18 MOTION for Preliminary Injunction by All Plaintiffs. (Steinberg, Michael) (Entered: 02/04/2013)
72 RESPONSE to 71 Third MOTION to file additional materials re 18 MOTION for Preliminary Injunction filed by Richard Snyder. (Nelson, Margaret) (Entered: 02/19/2013)
73 NOTICE of Withdrawal of Attorney Abraham Singer by Cengage Learning Holdings II, L.P., Louis Padnos Iron and Metal Company. (Singer, Abraham) (Entered: 02/21/2013)
74 ORDER denying 71 Motion to File Additional Materials. Signed by District Judge David M. Lawson. (DTof) (Entered: 02/22/2013)
75 OPINION and ORDER Granting in part and denying in part 15 Motion to Dismiss; Granting in part and denying in part 17 Amended Motion to Dismiss; Granting 18 Motion for Preliminary Injunction. Signed by District Judge David M. Lawson. (SJa) (Entered: 06/28/2013)
76 NOTICE TO APPEAR: Status Conference set for 9/5/2013 11:00 AM before District Judge David M. Lawson (SJa) (Entered: 07/22/2013)
Minute Entry for proceedings held before District Judge David M. Lawson: Status Conference held on 9/5/2013 Disposition: New dates set. (SJa) (Entered: 09/05/2013)
77 AMENDED Preliminary Case Management and Scheduling Order. (Plaintiff Expert Disclosures Exchanged by 11/15/13, Defendant Expert Disclosures Exchanged by 12/16/13, Discovery Cutoff due by 1/31/14, Dispositive Motion Cut−off set for 2/17/2014, Motions Challenging Experts due by 2/17/2014, Motion Hearing set for

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4/15/2014 03:00 PM before District Judge David M. Lawson), Signed by District Judge David M. Lawson. (SJa) (Entered: 09/27/2013)
78 NOTICE of Appearance by Michael F. Murphy on behalf of All Defendants. (Murphy, Michael) (Entered: 01/21/2014)
79 NOTICE of Appearance by Rock A. Wood on behalf of Richard Snyder. (Wood, Rock) (Entered: 01/23/2014)
80 NOTICE of Change of Address/Contact Information by Jay Kaplan on behalf of All Plaintiffs. (Kaplan, Jay) (Entered: 01/23/2014)
81 STIPULATION Regarding Authenticity and Admissibility of Documents by All Plaintiffs (Kaplan, Jay) (Entered: 01/23/2014)
82 STIPULATION to extend time by All Defendants (Nelson, Margaret) (Entered: 02/03/2014)
83 ORDER AMENDING SCHEDULING. See image for deadlines. Signed by District Judge David M. Lawson. (SPin) (Entered: 02/05/2014)
84 MOTION for Summary Judgment with Brief in Support by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 1 − December 22, 2011 ltr, # 3 2 − Commission Minutes, # 4 3 − PA 297 process, # 5 4 −Governments Offering Benefits, # 6 5 − Dep of Skrobola, # 7 6 − Dep of Dolehanty, # 8 7 − Dep of Schlack, # 9 8− Dep of Comsa, # 10 9 − Eligible Adult Benefits, # 11 10 − Price Expert Report, # 12 11 − AG v Civil Serv Comm) (Nelson, Margaret) (Entered: 02/14/2014)
85 MOTION in Limine with Brief in Support by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Dep of Badgett, # 3 Exhibit B − Report and Expert, # 4 Exhibit C − Data Chart) (Nelson, Margaret) (Entered: 02/14/2014)
86 MOTION in Limine to Exclude Testimony of Joseph Price by All Plaintiffs. (Attachments: # 1 Exhibit MCLA 15 581 − 15 585, # 2 Exhibit J. Price Report, # 3 Exhibit J. Price Deposition Excerpts) (Crawford, Amy) (Entered: 02/17/2014)
87 MOTION for Leave to File Excess Pages in support of plaintiffs' motion for summary judgment by All Plaintiffs. (Knight, John) (Entered: 02/17/2014)
88 MOTION for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Public Employee Domestic Partner Benefit Restriction Act, # 3 Exhibit B − Kalamazoo, Other Qualified Adult Criteria, # 4 Exhibit C − Ann Arbor Public Schools, Other Eligible Adult Benefits Fact Sheet, # 5 Exhibit D − Ingham County, Other Qualified Adult Criteria, # 6 Exhibit E − Kalamazoo Valley Community College, Household Member Program, # 7 Exhibit F − Attorney General Opinion No. 7171, # 8 Exhibit G (Group) − House Press Releases, # 9 Exhibit H − Schuette v. Mich. Civil Serv. Commn, # 10 Exhibit I − House Fiscal Agency Legislative Analysis, # 11 Exhibit J − Letter from Rick Snyder, Governor, to Michigan House of Representatives, # 12 Exhibit K − Senate Fiscal Agency Bill Analysis, # 13 Exhibit L − State Budget Office, State Spending from State Sources Paid to Units of Local Government, # 14 Exhibit Q − Williams Institute Memorandum, # 15 Exhibit S − Sexual Orientation and Housing Discrimination in Michigan, # 16 Exhibit V (Group) − Collard and Comsa Declarations, # 17 Exhibit 1 − 7/27/12 Corrected Declaration of Mary Lannoye in Support of Plaintiffs Motion for Preliminary Injunction, # 18 Exhibit 2 (Group) − Bohnet and Schlack Deposition and Documents, # 19 Exhibit 3 (Group) − Discovery Answers, # 20 Exhibit 6 − 8/7/12 Preliminary Injunction Hearing Transcript Excerpts, # 21 Exhibit 7 − 1/31/14 Defendants Answers to Plaintiffs Third Set of Interrogatories, # 22 Exhibit 8 − 1/22/14 Defendants Responses to Plaintiffs Second Set of Requests for Admissions, # 23 Exhibit 9 − 2/16/14 Supplemental Declaration and Expert Report of M.V. Lee Badgett, # 24 Exhibit 10 − 2014 House Fiscal Agency, Background Briefing: School Aid, # 25 Exhibit 11 − 1/27/14 Declaration of Timothy J. Dolehanty, # 26 Exhibit 12 − 2/12/14 Declaration of Robyn Wilkerson, # 27 Exhibit 13 − 2/13/14 David Comsa Deposition Excerpts and Exhibits, # 28 Exhibit 14 − 2/3/14 Joseph Price Deposition Excerpts and Exhibit, # 29 Exhibit 15 − 2/6/14 Jerome Post Deposition Excerpts, # 30 Exhibit 16 − 2/6/14 Thomas Skrobola Deposition Excerpts and Exhibit, # 31 Exhibit 17 − Michigan Incident Crime Reporting, 2012 Hate/Bias Crime Report, # 32 Exhibit 18 (Group) −

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Plaintiffs' Declarations, # 33 Exhibit 19 − 1/23/14 Plaintiffs and Defendants Stipulation Regarding Authenticity and Admissibility of Documents) (Knight, John) (Entered: 02/17/2014)
89 EXHIBIT 13 (CORRECTED) re 88 MOTION for Summary Judgment by All Plaintiffs (Attachments: # 1 Exhibit 13 − 2/13/14 David Comsa Deposition Excerpts and Deposition Exhibits 2, 3 and 6) (Knight, John) (Entered: 02/18/2014)
90 NOTICE OF HEARING on 85 MOTION in Limine with Brief in Support, 86 MOTION in Limine to Exclude Testimony of Joseph Price, 88 MOTION for Summary Judgment , 84 MOTION for Summary Judgment with Brief in Support. Motion Hearing set for 4/15/2014 03:30 PM before District Judge David M. Lawson (SJa) (Entered: 02/24/2014)
91 RESPONSE to 86 MOTION in Limine to Exclude Testimony of Joseph Price filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Murphy, Michael) (Entered: 03/03/2014)
92 RESPONSE to 85 MOTION in Limine with Brief in Support filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Badgett Transcript, # 3 Exhibit B − Badgett Declaration, # 4 Exhibit C − Badgett Expert Report, # 5 Exhibit D − Responses to Badgett Subpoena, # 6 Exhibit E − Index of Selected Badgett Docs, # 7 Exhibit F − Q&A re Ann Arbor OEI Data, # 8 Exhibit G − Badgett Notes, # 9 Exhibit H − December 2011 Emails, # 10 Exhibit I − Eastern Mich U. Report, # 11 Exhibit J − FOIA Response, # 12 Exhibit K − Price Deposition Excerpts) (Knight, John) (Entered: 03/03/2014)
93 ORDER Granting 87 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (SJa) (Entered: 03/06/2014)
94 REPLY to Response re 85 MOTION in Limine with Brief in Support filed by All Defendants. (Murphy, Michael) (Entered: 03/10/2014)
95 RESPONSE to 88 MOTION for Summary Judgment filed by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 12 − Excerpts of Joseph Price) (Nelson, Margaret) (Entered: 03/10/2014)
96 REPLY to Response re 86 MOTION in Limine to Exclude Testimony of Joseph Price filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Deposition Excerpts) (Crawford, Amy) (Entered: 03/10/2014)
97 RESPONSE to 84 MOTION for Summary Judgment with Brief in Support filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4) (Crawford, Amy) (Entered: 03/10/2014)
98 REPLY to Response re 84 MOTION for Summary Judgment with Brief in Support filed by Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 13 − Order Granting Temporary Stay) (Nelson, Margaret) (Entered: 03/24/2014)
99 REPLY to Response re 88 MOTION for Summary Judgment filed by All Plaintiffs. (Knight, John) (Entered: 03/24/2014)
100 MOTION to Stay by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Murphy, Michael) (Entered: 04/11/2014)
101 RESPONSE to 100 MOTION to Stay filed by All Plaintiffs. (Crawford, Amy) (Entered: 04/14/2014)
Reset Motion Hearing Time: The Motion Hearings set for 4/15/2014 at 3:30 PM have been reset to 3:00 PM before District Judge David M. Lawson. (SPin) (Entered: 04/15/2014)
Minute Entry for proceedings held before District Judge David M. Lawson: Motion Hearing held on 4/15/2014 re 85 MOTION in Limine with Brief in Support filed by Richard Snyder, 84 MOTION for Summary Judgment with Brief in Support filed by Richard Snyder, 86 MOTION in Limine to Exclude Testimony of Joseph Price filed by Doak Bloss, Joe Breakey, Theresa Bassett, Denise Miller, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Michelle Johnson, Peter Ways, 88 MOTION

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for Summary Judgment filed by Doak Bloss, Joe Breakey, Theresa Bassett, Denise Miller, Gerardo Ascheri, Barbara Ramber, Carol Kennedy, Jolinda Jach, Michelle Johnson, Peter Ways Disposition: ALL MOTIONS TAKEN UNDER ADVISEMENT. (Court Reporter Rene Twedt) (SJa) (Entered: 04/16/2014)
102 ORDER Denying Defendant's 100 Motion to Hold Case in Abeyance. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/10/2014)
103 OPINION AND ORDER Denying Without Prejudice 85 Motion in Limine and 86 Motion in Limine. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/12/2014)
104 OPINION and ORDER Granting Plaintiffs' 88 Motion for Summary Judgment, Denying Defendant's 84 Motion for Summary Judgment, and Granting Permanent Injunction. Signed by District Judge David M. Lawson. (JOwe) (Entered: 11/12/2014)
105 JUDGMENT Signed by District Judge David M. Lawson. (JOwe) (Entered: 11/12/2014)
106 STIPULATION for Extension of Time for Plaintiffs to Move for Attorneys' Fees and Costs by All Plaintiffs (Knight, John) (Entered: 12/01/2014)
107 STIPULATED ORDER Extending Time for Plaintiffs to Move for Attorneys' Fees and Costs. Signed by District Judge David M. Lawson. (SPin) (Entered: 12/02/2014)
108 STIPULATION FOR EXTENSION OF TIME FOR PLAINTIFFS TO MOVE FOR ATTORNEYS' FEES AND COSTS by All Plaintiffs (Knight, John) (Entered: 02/04/2015)
109 ORDER EXTENDING TIME FOR PLAINTIFF TO MOVE FOR ATTORNEYS' FEES AND COSTS. Signed by District Judge David M. Lawson. (SPin) (Entered: 02/10/2015)
110 STIPULATION to Dismissal of Plaintiffs' Claim for Attorney Fees and Costs With Prejudice by All Parties. (SPin) (Entered: 02/25/2015)