Courts weigh benefits for domestic partners

Thirty-nine states have constitutional amendments that ban same-sex marriage, and five more — Alabama, Idaho, South Carolina, South Dakota and Tennessee — are slated to vote on proposed amendments this year. In light of the Defense of Marriage Acts (DOMAs), several lawsuits have been filed against local and state governments that offer — or do not offer — health insurance and other benefits to their employees’ unmarried domestic partners.

DOMA proponents claim the amendments clearly prohibit governments from extending benefits to any dependent in a relationship that does not fit the state’s constitutional definition of marriage. Gay-rights advocates, including the New York-based American Civil Liberties Union (ACLU), disagree with the amendments, and both sides are meeting in courts across the country to hash out their differences.

Shortly after Alaska adopted a marriage amendment in 1998, the ACLU of Alaska filed suit on behalf of nine same-sex couples who had public employee tie-ins to Anchorage or the state. The suit claimed that the governments’ refusals to extend employment benefits to employees’ partners were discriminatory because those same benefits were offered to the married partners of city and state employees.

Although the ACLU lost in trial court, the state Supreme Court overturned that decision in October 2005. The court ruled that the benefit system is discriminatory because benefits are extended to employees’ married partners and because same-sex couples are constitutionally barred in the state from marrying. The reversal prompted new legislation, proposed in February, to change Alaska’s marriage amendment to say that marriage is the only union entitled to the “benefits, qualities and effects of a marriage.”

“In our view this measure simply writes discrimination into the constitution,” says Michael Macleod-Ball, executive director of the ACLU of Alaska. “We’re talking about how to craft a benefit program that’s non-discriminatory,” he says, adding that, in these difficult times, everyone should be doing all they can to get more people insured.

When Michigan passed a marriage amendment in 2004, health benefit coverage for state employees’ domestic partners was dropped when contracts were renewed that December. As a result, hundreds of state workers were affected, says Carrie Evans, state legislative director for the Washington-based Human Rights Campaign. A September 2005 trial court determined that healthcare benefits for spouses are benefits of employment, not marriage, but a court of appeals issued an injunction. “Hopefully the court of appeals will affirm that decision, but in the meantime, people who lost their health insurance still can’t have it back,” Evans says. “An oral argument date has not even been set.”

On the other side, the Scottsdale, Ariz.-based Alliance Defense Fund (ADF) has filed suits to block domestic partnership benefits in several cities and states. “In general, we see domestic partnership benefits as a backdoor way to weaken marriage,” says Chris Stovall, ADF senior legal council.

In September, the ADF filed suit against Salt Lake City Mayor Rocky Anderson, who issued an executive order to amend the city’s health insurance contracts to include domestic partners of unmarried city employees. Utah’s DOMA prohibits government from enacting any law that creates a legal status equivalent to marriage. “In that case, [Anderson’s] actions were a direct effort to create a legal status that mirrors marriage,” Stovall says, adding that Anderson’s actions violated the state constitution.

While the ADF opposes any legislation that creates a “counterfeit marriage” status, Stovall says the group favors reciprocal beneficiary agreement (RBA) legislation, which has been introduced in Colorado. Such legislation, he says, is designed to allow any two adults in a dependent relationship — two elderly siblings, a parent and an adult handicapped child, as well as same-sex couples — to be granted, in one document, many of the same benefits it takes several agreements to make, including health and death benefits.

But Evans says the idea of RBA, which was first introduced last year in Oregon, is only the latest tool of the right-wing movement to make gay rights organizations appear unreasonable in their efforts to win full domestic partnership rights, forcing them to explain the need for domestic partnership rights. While the RBA bill recently died in Colorado, the more comprehensive domestic partnership bill passed in one chamber of the state legislature and might go to the voters in November.

Annie Gentile is a Vernon, Conn.-based freelance writer.