Don Sherfick

Paging Micah Clark: Your Silence on the Michigan Domestic Benefits Decision is Deafening

Filed By Don Sherfick | May 18, 2008 11:15 AM | comments

Filed in: Fundie Watch, Marriage Equality, Politics

[NOTE: Gary Glenn of the American Family Association in Michigan, in a length comment, takes significant exception to claims that his organization itself engaged in the "bait and switch" tactics I refer to below. See my further commentary at the end of this article]

I may have missed something in the blogs or in the media, but so far I haven't run across anything from the office of Micah Clark, head of the Indiana chapter of the American Family Association, heralding the fairly recent decision of the Michigan Supreme Court to wipe out same-sex domestic partnership benefits at state institutions because of its "Marriage Protection" constitutional amendment. Not a peep so far from Curt Smith at the Indiana Family Institute's website, and Eric Miller of Advance America also seems missing in action on this one.

Could it have something to do with the fact that the American Family Association in Michigan, as well as other organizational first cousins of similar groups here, have again been caught pretty red-handed in "bait and switch" tactics? They say one thing to get the legislature and public to go along with an amendment, and then once it's on the books they go into court with flip-flopping that makes Mitt Romney look like the Rock of Gibraltar.

Take this for example:

Gary Glenn, President of the American Family Association of Michigan and a strong proponent of the Michigan amendment, was quoted in the October 24, 2004 Ann Arbor News as saying talk that benefits would be affected by the ballot initiative was "a scare tactic," and insisted that public employers could continue to offer domestic-partnership benefits if they want to." 

Allied groups parroted similar things in statewide ads prior to Michiganders going to the polls and approving the measure. Yet, you would never have known from the briefs that these folks filed in the Michigan Supreme Court. They insisted that the amendment precluded such same-sex domestic partnership benefits. Now a number of same-sex couples who've lost their benefits are out in the cold.

In Indiana, Clark, Smith, and Miller insisted that SJR-7, their own Indiana-version of "marriage protection" doublespeak, wouldn't touch such domestic partnership benefits. We should, of course, know better simply from the way they've fought adoption of such benefits at Southern Indiana University. Oh yes, they'll do a legal song and dance about how the words of SJR-7 were different from that in the Michigan amendment. They always do, and hope that nobody notices what they say in the briefs they file.

They may point to "subtle differences" between states, but they can't hide what's now become a not-so-subtle practice that Hoosiers ought well to take note of: bait and switch isn't limited to Michigan, where it's worked. It's coming again soon to a General Assembly near you.

That's why they're keeping quiet about the Michigan decision. Now that they can grab onto the intervening decision out from the California Supreme Court and use it as a scare tactic in Indiana (though even a first year law student knows the Indiana courts use totally different standards), they have their fingers crossed that maybe nobody will notice the "bait and switch" routine.

But they will find that some things just don't go back into the bottle that easily.

[As I indicated at the beginning of this item, Gary Glenn of Michigan's American Family Associate has taken significant exception to my citing his organization as being one of those in Michigan engaging in the "bait and switch" tactics I described. In fairness to his position I would ask you to consider the citations he lists. I am in the process of doing further research concerning his responses before making additional comments concerning his allegations.]

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Don Sherfick | May 19, 2008 10:49 PM

The more people make our legislators and the media aware of the "bait and switch" tactic, the better the chance that whatever the language Miller and Company put in a replacement proposal, there will be a lot more skepticism over credibility.

Yeah, while the Big 3 were quiet about Michigan, I see Eric Miller sure <a href="">jumped on the California bandwagon</a>.

Don Sherfick | May 24, 2008 1:21 PM

Gary: I did not see your initial response to my posting until nearly a day later. Thanks for you providing the many citations which you consider to disprove the assertion that I made, namely the quotation for the 2004 Ann Arbor News source, concerning prior positions taken by the Michigan American Family Association. I have noted your objections at the beginning and end of the revised post, and am currently in the process of checking them and other resource material. On first impression, assuming that you have not been selective in your own commentary (which I am not asserting without further information), it would appear that the AFA did not follow the same path that other organizations in Michigan did concerning pre-passage statements as to the amendments. Once I complete my further review, I will comment/post further.

Don, you'd have those guys in Michigan dead to rights...

If only what you report were true.

But it's not.

The campaign committee that opposed Michigan's Marriage Protection Amendment actually praised the American Family Association of Michigan for openly acknowledging -- before the 2004 election -- exactly how the amendment would impact public employee benefits.

June 2004 news release: "The Coalition for a Fair Michigan said today that they were happy to find common ground with the Michigan affiliate of the American Family Association, one of the lead proponents of the proposed constitutional amendment that would ban legal recognition of any relationships other than opposite-sex marriage. Last night, at a forum on the amendment...both sides agreed that the amendment would go much further than defining marriage by also eliminating any government-sanctioned domestic partnership benefits. 'I’m glad we could find common ground with the AFA, and I want to thank Gary Glenn for his willingness to be upfront on this point,' said Wendy Howell, Campaign Manager for CFM."

And AFA-Michigan explained the amendment's impact in great detail in a Sept. 28, 2004 news release, five weeks before the election at which the amendment was overwhelmingly approved by voters.

Quoting from that AFA-Michigan news release:


Glenn said amendment opponents falsely claim it will prevent public employers from offering employee benefits to some employees, a charge routinely parroted by newspaper editorials and media commentators.

"Only problem is, it's false," Glenn said.

The amendment doesn't apply at all to private sector employers, he said, and under federal contract and labor law, voter approval of Proposal 2 will have no effect whatsoever on public employee benefits included in existing collective bargaining agreements. Plus, the amendment will not stop any employer in the future from offering benefits to anyone the employer chooses, he said, so long as it's not on the basis of formally recognizing homosexual relationships as equal or similar to marriage.

He noted three alternative benefits policies under which all individuals currently receiving public employee benefits could continue to do so after enactment of Proposal 2, each of which he said disproves amendment opponents' charges as false:

* A government employer could adopt an "anything goes" policy, allowing employees to add anyone they wish to their health care coverage -- a sick relative, a neighbor, or even their homosexual partner -- so long as the offer is available to all employees and not only to those involved in a homosexual relationship.

"Which begs the question, if a government employee isn't allowed to put her sick grandmother on her health insurance plan, why should employees involved in a homosexual relationship be singled out for special treatment as if they're equal or similar to marriage, when everyone knows as a matter of common sense they're not?" Glenn said.

* A government employer could simply provide that all children in an employee's household are eligible for employee benefits such as health insurance, regardless of their relationship to the employee.

* The simplest and most obvious alternative, Glenn said, would be for a government employer to adopt a policy which states that any individual eligible for benefits as of Nov. 1, 2004 will remain eligible for benefits perpetually thereafter. "Under that policy," Glenn said, "every single person currently receiving any kind of benefit would continue to do so, but it would not be on the basis of a government employer singling out homosexual relationships for the special treatment of being recognized as equal or similar to marriage."

(END of news release quote)


And now, three and a half years after that election, not only the Michigan Supreme Court and the news media, but even the ACLU and other opponents of the amendment, have admitted that how AFA-MI described the amendment's effects back in 2004 have been right all along.

Michigan's Supreme Court this month simply upheld an earlier Court of Appeals decision under which the unmarried "partners" of government employees have and will continue to receive benefits under broader eligibility criteria adopted in order to comply with Michigan's Marriage Protection Amendment.

The irony, especially in light of false characterizations such as yours, Don, is that under the broader criteria, more Michigan citizens -- not fewer -- are now eligible for coverage under government employees' health care plans.

Here's the truth, which you didn't report:

WASHINGTON BLADE ("gay" newspaper in D.C.): "Despite the ruling, state employers and major universities in the state are still claiming the right to provide benefits to the partners of ("gay") employees by instead extending coverage to adult dependents in employees households. Sean Kosofsky, director of policy for the Triangle Foundation, a Michigan gay advocacy group, said a number of employers redrew policies to offer benefits while complying with court decisions. 'We are hoping that all public employers that want to offer these benefits will do the same, including new employers,' he said."

DETROIT FREE PRESS: "The practical effect of the Michigan Supreme Court ruling on the marriage amendment's effect on same-sex benefits may be next to nothing... The silver lining, if there is one, is that public employers who provided same-sex health benefits have so far found a way around the amendment's strictures by offering benefits MORE WIDELY than just to same-sex or heterosexual couples; the University of Michigan, for example, now offers employees the chance to extend benefits to any nonrelated designee."

MICHIGAN INDEPENDENT (University of Michigan): "The decision should not affect the University's employee health care coverage. After the 2007 Court of Appeals decision, the University no longer offers benefits on the basis of same-sex domestic partner relationships; but had changed their policies so that employees' partners would REMAIN COVERED."

LANSING STATE JOURNAL: The "ruling Wednesday by Michigan's high court about same-sex benefits is likely to have little local effect. That's because months ago, many Lansing officials began rewording their domestic partner benefits packages."

ANN ARBOR NEWS: "When a Michigan Supreme Court ruling on Wednesday upheld a ban on governments and universities extending benefits to the gay partners of employees, the University of Michigan and city of Ann Arbor were already prepared. U-M and the city had previously altered their policies by taking out any mention of 'same-sex.' That revision should allow them to CONTINUE EXTENDING BENEFITS within the law, said officials with the ACLU, city of Ann Arbor and U-M. ...ACLU of Michigan Executive Director Kary Moss said her organization will work with municipalities on their policy language so it adheres with Wednesday's ruling and STILL OFFERS BENEFITS to unmarried couples."

ASSOCIATED PRESS: "Gay rights advocates...are confident that public-sector employers have successfully rewritten or will revise their benefit plans so same-sex partners can KEEP GETTING HEALTH CARE."

DETROIT FREE PRESS: "There is likely to be no immediate impact from the ruling because public employers in Michigan who had offered such benefits already had changed their policies to ensure their employees' partners WOULD REMAIN COVERED. ...Dozens of public employees' partners most likely will be able to continue to be eligible for health care under benefit changes that allow unmarried employees to cover a designated beneficiary."

Attorney Jay Kaplan of the Michigan ACLU, chief counsel for the homosexual plaintiffs in the case at issue, as reported by Lansing City Pulse: "'The Michigan Court of Appeals decision never said that public employers could not provide health care coverage to domestic partners of employees,' Kaplan wrote in an e-mail. He said that employers CAN PROVIDE HEALTH INSURANCE COVERAGE FOR DOMESTIC PARTNERS as long as they do not specifically recognize the domestic partner relationship by filing domestic partner benefit forms, for example when determining criteria for insurance eligibility."

Between the Lines, a homosexual activist newsweekly in Detroit, reported: "(ACLU-Michigan lawyer Jay) Kaplan says that even under the Appeals Court ruling, benefits CAN BE OFFERED, but they have to be done in a way which does not recognize same-sex partners or relationships."

Kalamazoo Alliance for Equality, a homosexual activist group, said in a news release: "The Michigan Court of Appeals did not say that health insurance coverage for domestic partners is illegal. The court said that public employers cannot use criteria that recognizes the domestic partner relationship.", a joint website by the ACLU and the homosexual activist Triangle Foundation: "Question: Have any employers ended their benefits for domestic partners in respond to the Michigan Court of Appeals decision? Answer: So far to the best of our knowledge, no public employer has terminated health insurance coverage for domestic partners of employees. It should be noted that as flawed as the Court of Appeals decision is, it did not say that domestic partners could not receive health insurance coverage. The Court held that a same-sex relationship could not be recognized for eligibility purposes for health insurance coverage. However, employers can use other criteria where the same-sex relationship is not recognized for health insurance coverage. We have been working with public employers, whose contracts may be ending to develop alternative criteria as a way to ENSURE CONTINUED COVERAGE, while our case is on appeal."

Bottom line, Don: no one in Michigan has lost any benefit, as AFA-Michigan truthfully said before, during, and after the Nov 2004 election, including in the Ann Arbor News story you quoted.

Which means, obviously, that Micah Clark of AFA-Indiana has been telling the truth too.

Don, you wrote that if what I posted is true -- which, of course, it is, or I wouldn't have posted it -- then...

" would appear that the AFA did not follow the same path that other organizations in Michigan did concerning pre-passage statements."

With all due respect, you apparently still don't get it.

ALL the pro-amendment groups said the amendment had nothing to do with taking away anyone's benefits, that the issue was instead what relationships state and local governments could legally recognize in Michigan -- for the purpose of offering benefits or for any other purpose.

Bottom line: over a year after the Michigan Court of Appeals ruling, which took immediate effect in early 2007, and which the state Supreme Court this month merely upheld, no one in Michigan has lost benefits.

Just as AFA-Michigan and EVERY OTHER pro-amendment group said before the November 2004 election.

What Michigan courts have ruled is that the pre-existing specifically and exclusively "same-sex domestic partner" benefits plans violated the state constitution.

Now, as even the ACLU and other opponents of the amendment have now belatedly admitted (they said exactly the opposite before the election and before the Ct of Appeals ruled)...

...and as proven by the newly expanded benefits policies instituted by public employers after the Ct of Appeals ruling...

...the courts' decisions have nothing whatsoever to do with whether unmarried partners can receive benefits under a broader offering that does not recognize such partnerships as equal or similar to a marriage as defined by state law (i.e., one man and one woman).

Exactly as AFA-Michigan described in our Sept. 28, 2004 news release (quoted more extensively in the previous post):

"A government employer could adopt an 'anything goes' policy, allowing employees to add anyone they wish to their health care coverage -- a sick relative, a neighbor, or even their homosexual partner -- so long as the offer is available to all employees and not only to those involved in a homosexual relationship."

Don Sherfick | May 30, 2008 12:52 PM

The statements that you have reported provide a detailed explanation of the AFA's position that is consistent with what it said in court after passage of the amendment. From what I can see the CFPM's pre-voting statements continued simply to deny that the amendment had anything to do with benefits, but just dealt with marriage. That, I submit, was misleading.

I still find it interesting that while in other instances Micah Clark of the Indina a AFA has been quick to say "I told you so" concerning other out of state decisions he feels vindicated about, he has chosen not to do so in this instance.

Presumably, Micah does not feel a need to respond to every falsehood, particularly one that's already been so thoroughly discredited. (Why should Micah waste his time and energy beating your dead horse?)

The issue is not whether AFA-Michigan or anyone else did or did not in your view accurately and precisely enough describe the anticipated impact of Michigan's marriage amendment.

The bottom line fact is that no one in Michigan has lost benefits.

Thus your entire premise is false. What anybody else did or didn't say about that reality is pretty much irrelevant to the larger point.