In December 2009, the Mecklenburg County Board of Commissioners approved a motion to allow domestic partner benefits. Prior to the vote, an extensive report was prepared by the County, which included a legal opinion from the county attorney. That legal opinion referenced an article in the November 2009 Public Employment Law Bulletin which analyzed whether local government could offer domestic partner benefits. The County attorney, referring to the article, said: “The conclusion that she reaches, with which we agree, is that although there is no North Carolina case-law on point, and the statutes do not specifically authorize local government employers to offer domestic partner benefits to their employees and domestic partners, whether of the same or different gender, the General Statutes that give local governments the authority to develop policies that will foster hiring and retention of a capable and diligent work force appear to provide cities and counties the authority to offer domestic partner benefits as a recruiting and retention tool”.
The County then adopted a policy that extended “benefits to same-gender domestic partners”, which it defined as “two individuals of the same-sex who have reached the age of majority and live together in a long-term relationship of indefinite duration, with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent” and who are “not married to anyone else, do not have another domestic partner, are legally prohibited from marrying each other in the state of N.C., and are not related by blood more closely than would bar their marriage in this state”. Employees seeking Domestic Partner benefit coverage are required to complete an Affidavit of Domestic Partnership, including verification of the existence of the partnership for one year, and supply evidence of joint financial documents, joint mortgage or lease, or other similar verification in the affidavit.
According to the County’s 2009 report, six towns or municipalities already provided domestic partnership benefits: County of Durham, County of Orange, Town of Chapel Hill, Town of Carrboro, City of Greensboro and City of Durham. Mecklenburg County followed the lead of Greensboro and Durham County, offering domestic partnership benefits only to same-sex committed couples. The other four governing bodies offered the benefits to both same-sex and opposite sex partners.
The legal analysis in the Public Employment Law Bulletin referred to by the County attorney had an important discussion, as relates to the Amendment One debate. The author referred to case-law which held that providing benefits did not create a marriage-like relationship, but then referred to a Michigan Supreme Court case that found otherwise, which the author distinguished because “the court’s conclusion clearly follows from the language of the state’s constitution”.
The author explained the distinction in the Michigan case further, by saying: “In 2004, Michigan voters approved a so-called marriage amendment to the state constitution that stated that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose” (emphasis added). In a divided decision, the Michigan Supreme Court held that the question of whether health insurance benefits are a benefit of marriage need not be decided because the language of the amendment made clear that same-sex domestic partnerships could not be given legal recognition for any purpose, including the purpose of allowing public employers to provide domestic partner health insurance benefits”.
And then the author said this: “Neither the North Carolina Constitution nor the General Statutes contain any provisions comparable to that of the Michigan marriage amendment. There is, therefore, no strong reason to think that the North Carolina courts would hold any differently than those courts in other states that have held that offering domestic partner benefits does not create a marriage-like relationship”.
The analysis of the law by this author is well-reasoned, and can be accessed through the link below.
So what will be different if Amendment One passes?
If the Amendment passes, NC will have a constitutional provision that is even more restrictive that the provision in Michigan, which the Michigan Supreme Court used to conclude that domestic partner benefits could not be given by public employers. Specifically, the only “domestic legal union” that will be valid or recognizable by the state of NC will be that of a marriage between a man and a woman. It will be extremely difficult then to make a winning legal argument that domestic partner benefits may be offered by a local government, whether for same-sex or opposite sex couples.
Speaking of opposite sex couples, let’s take the Town of Chapel Hill, for example. It offers domestic partner benefits to same-sex and opposite sex partners, provided they live together in a long-term relationship, with an exclusive commitment in which they share the “necessities of life and are financially interdependent”. They cannot be married to anyone else or have another domestic partner. And, like Mecklenburg County, they must provide documentation “demonstrating established financial and legal ties, such as joint mortgage, health care power of attorney, beneficiary of will or insurance policies, or other similar financial and/or legal relationships”.
And yet, just like the same-sex couples who receive benefits from Mecklenburg County, the unmarried opposite sex couples who receive benefits from the Town of Chapel Hill will be in a domestic partnership arrangement that the constitution will not recognize, if Amendment One passes.
Children of domestic partners can be covered now, but if domestic partners can no longer be covered due to Amendment One, then the children will lose out too.
As for private employers, there is that second sentence to the proposed amendment allowing private parties to enter into contracts and not prohibiting courts from “adjudicating” their rights under those contracts. The intent of the second sentence may well have been to allow private employers to offer domestic partner benefits, but if so, better language could have been used, and uncertainty will linger.
At the end of the day, Amendment One will cause harm to same-sex and opposite sex couples in the area of employee health insurance, leave and other benefits, particularly those benefits provided by cities and counties.
We have a one day open enrollment period on May 8th to vote to continue these benefits for others. Let’s sign them up for more of the same with a vote against Amendment One.