Job Benefits for Gay Partners Targeted

 

Alaskan voters were the first in the nation to amend their state Constitution to define marriage as a union between a man and a woman to keep gay and lesbian couples from marrying.

Nearly eight years later, Alaskan lawmakers now want to amend their Constitution a second time to prohibit gay couples not only from marrying but also from winning any other marriage-like rights, such as employee partnership benefits.

The debate over partnership benefits, playing out in a handful of states, marks a second front in the battle over gay marriage. States first confronted the issue of defining marriage to exclude gay couples, but now courts and legislatures are wrestling with whether to go further and bar spousal benefits for gay workers.

In Wisconsin, where several gay state university employees are suing the state to receive health coverage for their partners, a constitutional amendment is on the November ballot intended to ban same-sex marriage and nullify the court challenge for partnership benefits. Conservative lawmakers in Alaska are trying to get a similar amendment on the November ballot to overturn a recent state Supreme Court decision that will make Alaska the 13th state to offer employee benefits to gay public workers when it goes into effect in October.

Opponents of gay rights say blocking public employers from offering partnership benefits to gay workers was what they intended to do in the first place with the amendments defining marriage. But gay and lesbian couples say the marriage bans have made it crucial for them to get benefits from their state employers, as they will never gain access to such benefits through marriage in those states.

The Alaska Legislature is considering an amendment that would overturn a unanimous October 2005 state Supreme Court ruling that granted government employees in same-sex relationships all the rights and benefits extended to married state workers. The proposed amendment, introduced on behalf of Gov. Frank Murkowski (R), must be approved by two-thirds of the Legislature to go to a statewide vote in November.

A sponsor of the amendment, Alaska House Majority Leader John Coghill (R), said that Alaskans thought they had settled the issue when they overwhelmingly approved adding a definition of marriage to the state Constitution in 1998. "The Supreme Court is equating same-sex couples to the state of marriage," Coghill said. "But 70 percent of Alaskan voters have said they're not equal, and the Legislature has said they're not equal. The court has a fundamental disagreement with the people of Alaska, and this amendment will re-establish the will of the people."

Alaska's proposed amendment is based on similar broadly written same-sex marriage bans that have been adopted by 11 of the 19 states that define marriage in their constitutions: Arkansas, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma and Utah. These amendments go beyond defining marriage and also seek to block recognition of civil unions or other partnerships that imitate marriage.

In Alaska, for example, the new amendment states that all "rights, benefits, obligations, qualities, or effects of marriage shall be extended or assigned" only to married, heterosexual couples.

Conservative lawmakers in Wisconsin also are seeking to block gay state employees from winning the right to employee partnership benefits.

That state's Legislature last month approved sending a constitutional amendment to a statewide vote in November that says "a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." At least a dozen other state legislatures currently are considering constitutional same-sex marriage bans, and six more states will hold statewide votes on same-sex marriage bans this year: Alabama in June, and Idaho, South Carolina, South Dakota, Tennessee and Virginia in November (see Stateline.org's Same-sex Marriage Backgrounder ). The amendments in Idaho, South Carolina, South Dakota and Virginia include broader language similar to Wisconsin's proposal.

The Wisconsin amendment passed partly in response to a lawsuit filed by several gay state university employees seeking health insurance for their partners. The Legislature also has retained the services of a conservative evangelical law firm, the Arizona-based Alliance Defense Fund (ADF), in an attempt to intervene in the workers' lawsuit.

The first legal test on whether these amendments can be used to block employers from offering spousal benefits to gay workers may come in state courts in Michigan and Ohio, which currently are considering the first legal challenges based on the broadly written same-sex marriage bans.

A Michigan trial court judge ruled last September that the state's 2004 constitutional same-sex marriage ban does not prohibit government employers from offering partnership benefits to gay employees, overturning an opinion by state Attorney General Mike Cox (R) ordering government employers to halt the practice. But public employers in the state have been forced to stop offering partnership benefits to gay workers while the ruling is appealed.

In Ohio, state Rep. Tom Brinkman Jr. (R) filed a lawsuit against Miami University of Ohio in November 2005 for offering partnership benefits to gay employees, saying it violates the state's constitutional same-sex marriage ban. That case is pending in trial court.

"The problem is these amendments purport to go beyond just preserving marriage, but they're very ambiguous about what else they're intended to take away," said Ken Cho, a senior attorney for the American Civil Liberties Union who represented the same-sex plaintiffs in Alaska.

For example, a man in Ohio last year attempted to have his domestic abuse conviction overturned on the basis that the domestic abuse statutes treated him and his girlfriend as a married couple, even though they weren't. His case was thrown out by a trial court judge who said the state's marriage amendment was too vague to be applied in this case.

The attorney representing Wisconsin's Legislature, Glen Lavy, senior vice president of ADF's Marriage Litigation Center, said that it was clearly the intent of state lawmakers and voters who approved these bans to stop employers or anyone else from treating gay couples like married couples.

Lavy said if Alaska and Wisconsin adopt the broadly written amendments, "I have no doubt" they would nullify any court decisions to grant employee partnership benefits to state workers.

Unlike marriage — which is off-limits to gay couples in every state but Massachusetts — employee benefits are becoming more widely available to same-sex partners in several states. Many large private employers offer domestic partnership benefits to gay employees, and it is not clear how the state marriage amendments would affect these benefits. In addition, nearly 300 private and public colleges, including three out of four of the nation's top research universities, offer health benefits to their gay employees' domestic partners, according to the Human Rights Campaign (HRC), the nation's largest gay rights organization

The Alaska high court ruling, in October 2005, came in response to a lawsuit filed by nine state and municipal employers in 1999. In its ruling, the court pointed to the state's same-sex marriage ban in citing the need for gay workers to be granted partnership benefits in the workplace.

When the ruling goes into effect in October, Alaska will become the 13 th state to offer spousal benefits to gay couples. Montana's Supreme Court issued a similar ruling in 2004, ordering the state university system to provide health insurance to the partners of gay employees.

In 11 of those states (California, Connecticut, Illinois, Iowa, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington), lawmakers or government officials decided to offer the benefits without being challenged in court.

Employee benefits such as retirement, health insurance and survivor benefits are among the most tangible rights and protections of marriage that same-sex couples are seeking, said HRC state legislative director Carrie Evans.

"When you're talking about sick leave to take care of a loved family member facing a medical crisis, sexual orientation shouldn't matter," she said.

 
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