Domestic partner benefits delayed by legal confusion
Greensboro officials must wait for guidance from the state attorney general to navigate a maze of conflicting legal opinions before moving forward with a proposal to extend benefits to domestic partners of city employees.
The city’s Human Relations Commission recommended extending health, dental and other benefits to domestic partners last year. Members of the city council are waiting for Attorney General Roy Cooper to identify a definitive state policy in the wake of contradictory findings by city attorneys in Charlotte, Durham and other cities.
The municipalities of Durham, Chapel Hill and Carrboro already extend benefits to domestic partners, along with Orange and Durham counties. Carrboro became the first town in the state to offer domestic partner benefits in 1994, Chapel Hill followed suit a year later. The Durham City Council struggled with the issue for several months before members passed a resolution authorizing benefits in October 2002.
‘“While there is certainly the financial part of it, it’s really become part of having our relationships recognized,’” said Gary Palmer, former vice-chair of the Greensboro Human Relations Commission. ‘“This is more than just insurance.’”
Charlotte City Attorney Dewitt F. McCarley issued an opinion that the city lacks clear legislative authority to offer domestic partner benefits. In 1995, the Chapel Hill city attorney authored the resolution that formally extended benefits to registered couples.
Palmer characterized the Human Relations Commission’s support of such a measure as unanimous. Former City Manager Ed Kitchen gave his approval of the proposal, according to Human Relations Commission Chair Wayne Abraham.
Jo Peterson-Buie, a deputy city attorney, sent the first letter to Cooper asking for clarification in April 2004 but did not get a response. Cooper has failed to reply to follow-up letters sent in January and August of this year, she said.
No case law has yet determined whether cities can offer benefits to same-sex domestic partners, although a superior court judge granted summary judgment in a challenge to Chapel Hill’s policy. The plaintiffs in that case did not appeal to a higher court, which limits the usefulness of the decision. Until a court case settles the issue, municipalities must depend on the incompatible interpretations of city attorneys.
McCarley based his determination that same-sex couples were not eligible for benefits on the definition of dependent in North Carolina law. A state provision that authorizes cities to extend benefits to employee dependents does not define the term. So McCarley used the definition from the state tax code and child support decisions to exclude same-sex partners.
‘“When I first started looking into this I thought I could find a definite answer,’” Peterson-Buie said. ‘“But this really isn’t clear. Durham city does one thing and Durham County does something different.’”
State law does prohibit offering benefits to couples who are in violation of local law, according to a Durham County memo. Heterosexual cohabitation constitutes a Class 2 misdemeanor in North Carolina as fornication and adultery, according to a state statute. Same-sex partnerships are excluded from this law, making the extension of benefits to those couples less problematic, according to the opinion of Durham County Attorney SC Kitchen. The Durham County policy differs from other North Carolina municipalities because it is limited to same-sex couples.
Heterosexual couples who live together also have the legal option of marriage. That opportunity is not available for same-sex couples, which makes it more imperative to offer benefits, Palmer said.
Another concern voiced by Charlotte opponents of same-sex benefits was the cost of adding people to the city benefits rolls. Greensboro officials studied the potential impact, which Palmer said could be a 1 or 2 percent spending increase for same-sex couples only.
‘“The cost is projected to be pretty minimal,’” Abraham said. ‘“It basically allows someone to be added as a family member.’”
Palmer said that in many same-sex partnerships, both people have insurance through their jobs. ‘“There are not many stay-at-home partners,’” he added.
Members of the Greensboro Human Relations Commission strongly advocated the change because the benefits of the change would outweigh the costs, Palmer said. One presentation by Action Greensboro outlined steps the city could take to encourage the growth of the so-called creative class. One suggestion involved making Greensboro a more welcoming environment for members of diverse populations.
Palmer works as the assistant vice-president for community affairs at Replacements, Ltd., one of the local companies that offers benefits to same-sex partners. The company touts its diverse, welcoming work environment. Companies with policies welcoming to diverse groups have a competitive advantage in recruiting talented employees, Palmer said.
‘“Business-wise you want to be able to attract the best people,’” he said. ‘“So you want to create an environment where all people feel welcome.’”
The NC Family Policy Council opposes domestic partner benefits because they lower the bar for legitimizing relationships. What separates married couples from domestic partnerships is the level of commitment. Cohabitation, on the other hand, is generally regarded as a temporary situation, according to their policy paper.
One of the concerns cited by the NC Family Policy Council is that domestic partner benefits for same-sex couples often go along with benefits for heterosexual couples. That undermines marriage as an institution, instead of simply offering benefits to those couples who can not legally marry.
The group also contends that cohabitation of both same-sex and heterosexual couples is linked to high-risk behaviors that might drive up health insurance costs. Gay sex, their policy paper states, is inherently more dangerous than that of heterosexual couples. Among heterosexual unmarried partners, there is an increased instance of drug use and violence, according to the policy council.
‘“Issues like domestic violence are significantly higher in cohabiting households,’” said Jerry Royal, senior counsel for the NC Family Policy Council. ‘“Do we want to offer the same benefits to these relationships that we offer to a married couple?’”
Until Cooper returns a decision on domestic partner benefits, Greensboro officials will not hammer out the details of who will be eligible. Peterson-Buie said that there seem to be more decisions against offering such benefits than for it.
‘“To be honest with you, we do not feel it would be prudent to do anything without a decision,’” she said.
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