Who should reap the benefits?

The mayor and council members in Lexington-Fayette Urban County, Ky., are in a tug-of-war over whether to offer domestic partner benefits to city employees. Mayor Teresa Isaac initiated the battle in May by offering health care coverage to same-sex and opposite-sex couples beginning July 1.

Upset by her decision, the council voted in June for a three-month moratorium on the benefits. In July, the mayor vetoed the resolution, but the council overrode that veto, and last month it voted to deny the benefits. Isaac vetoed that decision, too, but the council once again voted to override her veto.

Currently, “the city does not offer domestic partner benefits and that’s pretty much where it is,” says Bruce Edwards, a spokesman for the mayor. In the meantime, nearly 20 government employees who work for the local government had signed up for the benefits.

Brave new world

Lexington is not the first local government to address domestic partner benefits. In fact, city and county officials across the country are grappling with the issue and running it through the legal, social and emotional gauntlets.

Currently, 36 counties and 91 cities offer some type of benefits to domestic partners, according to Human Rights Campaign (HRC), a Washington, D.C.-based advocacy group that tracks the issue. “[Local governments are offering domestic partner benefits] for the same reasons private employers are doing this, because it attracts good employees, it treats everyone fairly and it’s good for business,” said Kim Mills, HRC’s director of education.

Currently, 194 Fortune 500 companies provide domestic partner benefits, which is four times the number that offered those benefits in 1997, according to HRC. Of Fortune’s 100 “Best Companies to Work For,” 67 provide benefits for same-sex partners, according to the Washington, D.C.-based National Lesbian and Gay Journalists Association.

Likely, the increasing availability of domestic partner benefits is due to dramatic changes in lifestyles: during the 1990s, the number of unmarried couples living together jumped to 5.5 million, a 72 percent increase in a decade, according to the 2000 U.S. Census.

A 2003 benefits study by the Alexandria, Va.-based Society for Human Resource Management shows that 31 percent of 584 companies are offering domestic partner benefits to opposite-sex partners and 23 percent are offering them to same-sex partners. Overall, more than one-third of those surveyed offer some type of benefit to domestic partners (opposite sex, same sex or both).

Although the criteria for a domestic partnership varies from local government to local government, most say partners must live together in an exclusive relationship and share the necessities of life. Some local governments, such as Jackson County, Kan., are offering a civil-union registry. Same-sex and domestic partner couples can register, giving them some rights under local laws, such as visiting each other in the hospital. Some employers who offer domestic partner benefits use the registries as proof of a relationship, says HRC’s Mills. Nationwide, more than 60 local governments have such registries.

The scope of domestic partner benefits offered by local governments varies widely. Some communities offer only bereavement or sick leave, while others have extensive benefits, such as health insurance, family and medical leave, relocation assistance and tuition reimbursement. In some cases, either the employee pays for his or her partner, or the city or county pays (when it also pays for spouses). The employee must pay taxes on the benefits, however, because the IRS considers benefits awarded to an unmarried partner as taxable compensation.

Unsettling matters

Opposition to offering domestic partner benefits continues in city and county governments, however, and sometimes at a spirited level of debate, such as in Lexington-Fayette County. “[Mayor Isaac] just decided to do it,” says Al Mitchell, a Lexington council member who represents the sixth district of the city-county government. “We decided we didn’t like the way it was handled without any idea of the cost involved.” Edwards says, however, that the new benefits would not have “a significant financial impact on the city,” according to the three carriers providing the local government’s health insurance.

Mitchell, who has led the charge against the benefits, also says his constituents did not like the idea. “I got e-mails about [offering domestic partner benefits]. It was about 9-to-1 against it.” Mitchell says that residents who e-mailed him were troubled by the new benefits’ costs, but others wrote that “redefining marriage is not right.” “It’s about the sanctity of marriage,” Mitchell says.

In addition to denying the benefits, the council proposed that any changes to government employee health benefits must go through the council, Mitchell says, explaining that skyrocketing health care costs make it necessary. The proposal is still being debated. “The council and the mayor don’t always agree on every issue, and this [is] one of them,” he says.

The Fairness Ordinance, which was enacted in Lexington-Fayette County in 1999 and was designed to protect residents from sexual orientation discrimination, serves as the basis for Isaac’s domestic partner benefits offer. “We disagree on what the Fairness Ordinance is,” Mitchell says.

The mayor suspects that the Fairness Ordinance will provide an employee with the “legal grounds to sue the city,” Edwards says, and the city may not have to wait too long to find out. Brian Morris, a self-employed horticulturist and domestic partner of Lexington community corrections officer Gary Johnson, told the local newspaper that he was considering taking legal action.

Not every decision to add domestic partner benefits is contentious. For example, Broward County, Fla., began offering domestic partner benefits several years ago without much of a tussle from its residents or county commissioners.

“It was actually initiated by our board,” says Jim Acton, director of human resources for the county. “The typical outcry is that it’s going to be so much more expensive. Our insurance carrier said it’s a blip.”

Acton says the other complaint frequently voiced “is that [we’re] signing up higher-risk couples from a health perspective. When [we] actually look at the folks taking advantage of it, most are opposite-sex couples. It’s not been a big deal.”

Challenges follow change

Some decisions to offer benefits to domestic partners have been met with legal challenges. In November 1999, the Montgomery County, Md., Council approved a bill offering health, leave and survivor benefits, and more, to domestic partners of its gay employees and retired gay employees, effective in March 2000. However, a group of Montgomery County employees and residents attempted to overturn the policy and gathered signatures on a petition to have the issue placed on the ballot in 2000. That effort failed, and opponents filed a lawsuit in Montgomery County Circuit Court.

The Virginia Beach, Va.-based American Center for Law and Justice (ACLJ) argued on behalf of the plaintiffs that the county’s Employee Benefits Equity Act of 1999 exceeded the county’s authority to enact local laws. The Maryland Court of Appeals, however, unanimously ruled in 2002 that Montgomery County’s gay employees are eligible to receive health and other benefits for their domestic partners.

Similarly, the ACLJ challenged New York’s authority to enact its 1998 domestic partner benefit ordinance and argued that the domestic partner law interfered with state marriage statutes. In 1999, the Appellate Division of the New York Supreme Court found no reason to overturn the city ordinance. “Given these actions by the state, plaintiffs’ claim that it is against state and/or public policy for the city to provide health care and other benefits to the domestic partners of its employees…is untenable,” the court wrote.

In 1996, Boston’s city council passed a bill offering domestic partner benefits to its employees. The measure was then passed on to Mayor Thomas Menino for his approval. Instead of voting “yes” or “no,” the mayor chose to put the measure in the form of a home-rule petition — a matter for the state legislature to decide. The state legislature passed the bill, but Governor Paul Cellucci vetoed it, saying it extended benefits to opposite sex couples, which undermined marriage.

The governor’s action prompted Menino to issue an executive order in 1998 to offer domestic partner benefits. The ACLJ filed suit against the measure, and, in December 1998, a Suffolk Superior Court judge struck down Boston’s domestic partnership plan, ruling Menino violated two state laws when he used executive powers to extend the benefits.

In July 1999, the Massachusetts Supreme Judicial Court ruled unmarried partners of municipal employees may not receive health benefits and that the executive order issued by Menino was “inconsistent” with a state law that prohibits partner benefits for the unmarried partners of public employees.

Issues to consider

According to The Segal Co., a New York-based benefits and human resources consultant, before determining whether to offer domestic partner benefits, city and county officials must consider certain questions: Should heterosexual couples be covered as well as gay and lesbian couples? Must the couple be together a minimum number of years? Must the couple live together? Must they share expenses? Must they be financially responsible for each other? How does a couple terminate their domestic partnership? How will an employer identify the employee’s domestic partner — by registration?

“Most employers [expect domestic partners] to be at least 18 years old, share a residence [and] demonstrate shared financial responsibilities,” Mills says. “You could bring in a shared electric bill or mortgage [to prove domestic partnership status].”

However, Mills says that most employers do not require the same proof for married couples. “[Employers] pretty much assume [job candidates] won’t commit fraud. I’ve been hearing though that [now] more employers are [wanting proof, such as] marriage certificates.”

Mary Ann Barton is a freelance writer based in Arlington, Va.