Saturday, June 02, 2007

Domestic Partner Benefits Deemed Unconstitutional

The quest for anything resembling equal rights in Kentucky was dealt a huge blow yesterday when the Attorney General's office ruled that the policies at our state's two flagship universities (the University of Kentucky and University of Louisville) that would have allowed unmarried domestic partners of university employees access to health care plans are unconstitutional. You can read the Lexington Herald Leader's article here and the Louisville Courier-Journal's article here.

Here are all of my previous posts on the subject:

More Fuel for the Culture War's Fire, posted on July 15, 2006

"I know Stan Lee, and you, sir, are no Stan Lee", posted on October 18, 2006


Update on Domestic Partner Benefits at Kentucky Universities, posted on January 1, 2007

While Attorney General Stumbo's declaration is a strong blow against the effort to both improve the quality of state universities by allowing them to have more competitive packages with which to attract highly coveted talent, and to in at least one small way recognize the equality of gays and lesbians, I seriously doubt that this is the final word on the subject. This may, however, make life a little more difficult for Jack Conway, the Democrat candidate for Attorney General. He is running against the infamous wingnut lambasted here more than once, Stan Lee, who has made is political career torching gays.

There are a few interesting points here, worth taking at least a second to consider. The first is that yesterday's decision does not expressly tie health benefits to marriage. While both UK and U of L's plans were declared unconstitutional, the Attorney General's office did say that if they changed their definition of "domestic partner" to include anyone who happens to be living with a university employee, then that might be constitutionally permissible. At issue in this case, then, is not the expanding of health care benefits to include non-married partners, but rather the definition of "domestic partner," which is seen as being enough like "marriage" to violate the politically-motivated and totally unnecessary 2004 amendment to our state's constitution banning "gay marriage" or any similarly recognized arrangement.

The second is that Stan Lee, now running as the Republican candidate for Attorney General, is still not above lying about the plans in question. Once again, Mr. Lee has mischaracterized the universities' policies, telling the Courier Journal, "[A]s elected officials, we have a duty to be good stewards. At a time when our college students are facing double-digit tuition increases, this could be a tremendous waste of resources." However, all either of these plans allowed anyone to do was to buy health coverage. There would have been no loss of state or university money, as any additional costs were to be paid for by the domestic partners buying into the plan.

Additionally, according to the Herald Leader, Lee - despite the fact that the Attorney General's office essentially has agreed with him - is still trying to use this as a political office, attacking Attorney General Stumbo, a Democrat, for moving too slowly. He's also antagonizing for a special legislative session to, in his own words (as quoted in the Herald Leader) "finish this issue once and for all."

Finally, Jack Conway, the Democrat candidate for Attorney General (and, I should add, prohibitive favorite to win the election) seems to be trying hard not to trip over this political landmine, telling the Herald Leader that he agrees with Stumbo's decision. It will be very hard for him to find a way to lose to a lunatic like Lee, but if this becomes a bigger issue, blinding people to Lee's incompetence, he just might.

'Gotta love politics in this backwards state!


Michael Westmoreland-White said...

From here the matter will go to the state supreme court, but they will probably rule the same way. I really think that since we passed that @$%!^% state constitutional amendment against same-sex marriage and "marriage like arrangements," in 2004 that the court will have little choice.

The only way we can change this, no matter how many progressives we elect to the legislature or governor's mansion, will be either repealing that amendment or having the U.S. Supreme Court rule that amendments like ours are violate the U.S. constitution. Don't hold your breath under the current Supreme Court!
It will be a very uphill battle--as we all knew the moment that !@$#% amendment was passed. Two couples in our church have recently gotten married--but without a state license, choosing to forgo the LEGAL benefits of marriage until gays and lesbians can also enjoy them!

Sandalstraps said...


I agree.

I especially agree with your characterization of "that !@$#% ammendment," which was passed while I was still in ministry. At the time I was serving as the youth pastor of a fairly conservative church. Our pastor, whom I detest, endorsed that !@#$% ammendment from the pulpit, with the sort of winks and coded language that used to (and sometimes still does) characterize our racial discourse. It was one of the most disgusting things I've ever witnessed in a church, and thankfully some of the congregation resented his telling them how God would vote.

At the time I was still sorting out my own opinions on the moral permissibility of same-sex relations, but I could still see that !@#$% ammendment for the political ruse it was. That bit of short-sided bigotry will haunt us for a long, long time.

Dennis M. Stutsman said...

It is possible that Kentucky Supreme Court could rule differently. The AG opinion recognizes the two different methods of analyzing whether a "status" is "substantially similar" to marriage, i.e., whether the broad package of rights and obligations is so comprehensive that it is tantamount to marriage (as argued by Kent Ostrander in the 2004 campaign) or alternatively, whether an individual legal status looks and sounds like something we associate with married people.

The AG rejected the first, which would have had the benefit of consistency with public opinion. Kent repeatedly told public audiences that what the amendment accomplished in sentence two was prohibit creative liberals from coming up with marriage by another name. It would have eliminated future piecemeal argument (and litigation) over whether domestic violence protection for unmarried couples "looks and sounds like a legal status married people historically had (after all we called it spouse abuse for too many years before realizing the dynamics of abusive relationships don't limit themselves to people who have marriage licenses).

Clearly, whatever people's individual religious views about the Biblical teachings about homosexuality are, there is room for reasoned difference, even among former proponents of this overbroad amendment (which has roots harkening to what we did during Jim Crow times, often through well meaning but uninformed people) to fix the AG's mistaken interpretation of the meaning of the Amendment.

The AG's opinion, by the way, is so similar to the "judicial activism" that conservatives are so accustomed to challenging. It essentially comes down to a particular status is substantially similar to marriage if it appears like or is "reminiscent of" whatever strikes the decision maker as "marriage like." Ironic, isn't it.