Pushing the Envelope

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					Pushing the Envelope: Dillon’s Rule and Local Domestic Partnership Ordinances

Charles W. Gossett Department of Political Science California State Polytechnic University, Pomona 3801 W. Temple Avenue Pomona, CA 91768 cwgossett@csupomona.edu

Paper Presented at the Southern Political Science Association Meeting, January 7, 2005, in New Orleans, LA

Please do not cite without author’s permission. Contact author for copies of Tables 2 and 3 and full listing of court cases and other legal material consulted.

In 1990, Richard Briffault (1990a, 1990b) challenged what he saw as the prevailing academic presumption that local governments were relatively powerless entities because of their legal subordination to the state governments that created them (Frug 1980, Frug 1999). On the contrary, Briffault argued, municipal governments have a great deal of power to act to shape their local environments and, to a great extent, state legislatures and state courts (and even federal courts) defer to local government actions on many important issues. In establishing his case, he looked closely at local government activities in the areas of educational finance and exclusionary zoning, demonstrating a great deal of legislative and judicial deference to local decisions in these areas. Gordon Clark (1985) judges local autonomy on the basis of a local government’s (legal) ability to initiate policy actions and its (legal) immunity from state oversight. While some limits on the ability to initiate policy or the degree of immunity from state oversight may be clear in the law, the real limits are often only discovered by testing the limits through both the introduction of policies not clearly addressed in language of laws outlining a local government’s scope of authority and by challenging the right of state officials to interfere with the local government’s actions. In the American political and legal system, any individual can challenge the action of a local government through a lawsuit and by doing so one calls into play state or federal actors in the form of judges who effectively provide “oversight.” One might measure the degree of immunity from state oversight by how easy or difficult it is for a citizen to gain standing to challenge the local government, but the issue that becomes critical is whether or not the local government will be allowed to adopt and implement its actual policy choice. Mike Goldsmith (1995, 246) has noted that the “ability of local communities, through institutional and representative forms, to act for themselves unfettered by constraints from higher levels of government remains important as a normative objective.” After reviewing several analytical approaches to studying local autonomy, he focuses what Gurr and King (1987) call Type 1 and Type 2 constraints, where Type 1 constraints are economic and social factors and Type 2 constraints are legal and political. And while he uses these factors to compare nations on the relative degree of local autonomy in each country, he notes that the situation is “complicated” (244) in the case of the United States due to variations among states in terms of “home rule,” different state-imposed restrictions on local governments, and varying degrees of political power among different local officials vis a vis state and national officials. It is that “complication” that is of interest in this study and the variation among the states that will be documented. Also, it is useful to distinguish between the subfactors in each of these types for an intra-national study, though grouping them in terms of community influences (Type 1) and hierarchical influences (Type 2). Type 1 factors (economic and social) are particularly important in influencing the decision to adopt a policy – Can we afford the policy? Can we afford not to adopt the policy? Is the policy consistent with community values? Type 2 factors (political and legal), on the other hand, would seem to be more important once a decision has been made to adopt the policy – Will a higher political authority attempt to prevent our actions? Will courts find that we have the legal authority to act in this manner? It is this last question that is of primary interest in this study. For several years now, scholars have been examining what some call “morality politics” to determine whether or not certain issues or policy areas are sufficiently different from other

types of policy that they cannot conveniently be labeled in one of the more traditional political science categories of distributive, redistributive, or regulatory policies. (Lowi 1964; Meier 1994; Sharp 1999) Lowi, who developed this tripartite classification system primarily to analyze conflict over economic policies, admits that it may not “exhaust all the possibilities” (689) of policy types, and there is some disagreement over how well the types of issues characterized as “moral issues” fits the original categories. Meier (1994) sees the debate over moral issues as a subset of “redistributive” policies; in this case, redistributing community approval of particular sets of values. Tatalovich and Daynes (1988) suggest the term “social regulatory policy” adapting another of Lowi’s categories to characterize moral issues. But whether one views “morality politics” as a subset of either the redistributive or regulatory categories, the term itself has taken on a meaning of its own. Morality politics are characterized as involving issues with high public salience, downplaying economic aspects in favor of moral aspects of an issue, vehemence in the expression of opinions on the issue, and the involvement of specific sets of citizens and groups who are not often involved in other issue areas. (Sharpe 1999) The characteristics of policies that fall into the morality politics category generate different types of political interactions and reactions among members of the public, interest groups, and policy makers. Most of the studies by political scientists in this area have looked at the process of policy formulation and, to a lesser extent, implementation, in the legislative and executive branches of government. DOMESTIC PARTNERSHIP BENEFITS Taking a lead from both the local autonomy and morality politics literature, this study will examine an issue can be considered an example of morality politics – domestic partnership benefits for municipal employees – in the context of the debate over the relative power of local governments to exercise authority in an innovative manner. Since 1984, over 70 cities, counties, and school districts have adopted some form of domestic partnership benefits for employees who are in committed partnerships but who, for one reason or another, are not legally married. These couples are either opposite sex couples who have chosen not to marry or same sex couples who are legally forbidden to marry. Local jurisdictions have attempted to recognize these relationships by providing opportunities for public employees to register their relationships as domestic partnerships and to provide such partnerships with a number of employee benefits that are designed to benefit the family members of employees, principally health insurance. (Gossett 1994) Earlier work has examined the role that Dillon’s Rule has played during political debates when local governments attempt to adopt ordinances prohibiting discrimination on the basis of sexual orientation. (Gossett 1999) That work found that Dillon’s Rule is, in effect, a malleable tool that can be used in a variety of political contexts to support and oppose local government activities in uncharted policy domains. Michael Wood (2003) has also commented on the “propriety” of local governments adopting employment nondiscrimination acts based on sexual orientation. This paper seeks to extend that earlier work by looking at what happens when a local government’s authority to act in a new policy field is challenged in court as having violated the principles set forth in Dillon’s Rule. In addition, I hope to extend the analysis begun by Briffault by looking at a type of issue (moral) largely ignored in his work and to extend the work

of political scientists studying morality politics by looking at what happens when such policies are examined in the courts. As is characteristic of issues of morality politics, adoption of these programs frequently came after a long and contentious political struggle characterized by accusations against policy makers that the proposals were immoral and violated fundamental religious principles. (Sharp 1999, 3-4; Kass and Ryan 1997) A number of local governments that have considered such programs have failed to approve them (Borowski 1999). However, even when domestic partnership programs have been adopted, losing parties have often continued to oppose the programs by challenging them in court. Such challenges have had mixed success. This paper will examine the reasons why some challenges have failed and others have succeeded by looking at both the state legal environments in which the particular local government’s involved operate and the legal strategies employed by those who challenged and defended the laws. LEGAL PRINCIPLES The idea that local governments are “creatures” of their states is a well known principle to political scientists and lawyers, though this notion often comes as a surprise to citizens. (Syed 1960; Berman 1995a; Zimmerman 1995; Yeoman 1997) Whether a “municipal corporation” chartered by the state or a county established with or without a charter, all local governments ultimately exercise their authority (and even continue to exist) at the pleasure of their state legislatures. There is an active debate among scholars as to whether local governments are relatively powerless players in state-local relations (Frug 1980, 1999) or are they, in fact, far stronger than their technically subordinate legal position would suggest (Briffault 1990a, 1990b). Nevertheless, both sides agree that the statutory framework in which local governments operate potentially allow for complete control of their activities by the state as occasional state takeovers of municipal governments demonstrate (Berman 1995b). In the late 1800s, Judge John F. Dillon ruled that local governments had only the powers expressly delegated to them by the state legislature or those powers reasonably inferred from those expressly delegated and those powers essential to the purpose of the municipality existing in the first place. While there is still room for dispute over what may or may not be allowed in a particular city, the burden of proof essentially rests on the local government to demonstrate that it does have the authority to undertake any action being challenged. In the latter part of the 19th century, the “home rule” movement developed as a counter-approach to state supervision of local governments. Essentially reversing the premises on which Dillon’s Rule rested, home rule was based on the idea that municipal governments could have broad and unspecified authority to act with respect to local affairs unless some action were specifically prohibited. (Readler 1998, 786) Again, there was lots of room for disagreement. The local government’s task when challenged was to show that there was nothing in state law that prevented it from acting in the manner it had chosen. Home rule, when enshrined in the state constitution, sometimes also allows local governments to challenge the state’s actions when they impact on what are seen as stateconstitutionally-protected rights of municipalities and/or counties. And in a few states, local laws may at times take precedence over state laws so long as the issue at hand is deemed to be a local affair. (Cole 1991; Gillette 1997) While one might expect that challenges to local government actions would most often be initiated by the state which thinks a local government has gone “too far,” the principle of local

subordination to the state is most often enforced by private individuals challenging a local government action. This is not surprising since it is hard to imagine a central state agency monitoring and conducting a legal analysis of every ordinance or policy adopted by the hundreds of local governments that exist in each state. Rather, persons who are directly affected by a local government decision, often people who fought against the making of the decision in the first place, are ready to move the dispute from the local arena in which they lost to a different playing field where they may have a better chance of prevailing. To many citizens this is one of the best features of American democracy; to others it is the reason that some issues never seem to be settled once and for all. (Nice & Fredericksen 1995, 33-35) Though challengers to local government domestic partnership benefit ordinances raise a number of grounds for invalidating the local action, courts tend to focus their analysis on the issue of whether or not there was authority for the government to act in the manner it chose. The basic issue is whether or not the action taken was ultra vires, or “beyond the powers” of the particular local government in question. In states where the judicial logic of Dillon’s Rule is applicable, judges look for a specific grant of authority from the state legislature to the local government for the action taken. In states where cities and counties have some measure of home rule, the courts’ analyses tend to review this question from two perspectives – 1) does the action taken result in an impermissible conflict with a superseding state law; or 2) is the action taken in a field of activity which the state has, in some manner, reserved to itself and the local action is thereby preempted. Rarely are the answers clear cut so that there is always room for judicial interpretation. (Andersen 1980; Clark 1985) With respect to the issue of “conflict,” two principal types of conflict may be argued. The local law either permits something that state law prohibits or the local government prohibits something that the state government allows. Cases where the issue of conflict arises also require that the state law in question neither authorizes local deviation from the standard set by the state nor allows local government ordinances to supersede state laws on “purely local” matters. Although language is sometimes loosely used to suggest that when a conflict exists between state law and a local ordinance that the former preempts the latter, there is a distinction that can be made that will assist in understanding the cases in this study. When used here, preemption does not necessarily mean that there is a conflict between the two laws; in fact, the local and state laws may be nearly identical. (Readler 1998) In preemption cases, the argument is made that only the state may make laws on this particular subject. There are commonly four different ways in which preemption is established: 1) the state law specifically declares that only the state can legislate on the particular subject; 2) the legislative history behind the law indicates that the lawmakers intended that only the state should have authority to legislate on the particular subject; 3) state laws which have been passed governing the particular subject are either so comprehensive or so numerous that there is “obviously” an intent to limit legislation in this field to the state; or 4) the nature of the particular subject matter is such that statewide uniformity is required and exclusive state authority to legislate is the only reasonable way to handle the issue. (Weigel 1997) Arguments involving preemption tend to be much more complex than those involving conflict. First of all, there is often disagreement among the disputing parties as to what the “subject” is and which state laws are relevant to an investigation of possible preemption. Second, unlike the U.S. Congress which has available extensive documentation of legislative

deliberations, this is not the case with most state legislatures. Third, there is no standard agreement on just how “comprehensive” comprehensive laws must be so that they reach the point of concluding that the state intended to preempt local action. Finally, whether or not statewide uniformity on an issue is required is rarely agreed upon, with the existence of a legal challenge as evidence of such disagreement. Again, the domestic partnership cases examined here frequently raise one or more of these preemption arguments. In a speculative article about the legality of domestic partnership benefit ordinances in Michigan, written before any of the cases being considered were filed, Vada Berger (1991), predicts some of the grounds on which domestic partnership ordinances might be challenged. Though she conflates the issues of “conflict” and “preemption” in her discussion, she identifies many of the grounds subsequently used by challengers to these laws. While she explores possible conflicts and preemptions with respect to marriage laws and criminal statutes governing sexual behavior, she only tangentially discusses the one argument that has been critical in cases involving domestic partnership ordinances -- the local government’s ability to provide employees with health benefits. A more detailed analysis of the arguments made by plaintiffs, defendants, and the reasoning of the judges in these cases will reveal both how these legal principles have been applied and assist us in evaluating the debate between those arguing over the relative power of local governments vis a vis their state governments. SCOPE OF THE STUDY Seventeen cities, four counties, and two school districts in nineteen different states have been identified where the local governments were challenged in state courts on the issue of whether or not they had the authority to provide their employees with domestic partnership benefits. Cases in seventeen of the twenty-three jurisdictions will be analyzed in depth.i Of the remainder, one of the jurisdictions, Kansas City, MO, has not yet gone to trial. One case, in Albany, NY, was dismissed for failure to establish standing on the part of the plaintiff and never appealed. Cases in New Orleans, LA , and the Ann Arbor School District, MI, appear also to have been dismissed on the plaintiffs’ lack of standing, though both are now under appeal. And cases in two cities, Gainesville, FL and Cambridge, MA were each tried shortly after their respective state supreme courts ruled on similar cases from other jurisdictions; the decision in each case was consistent with the high court’s ruling on the similar case and neither was appealed. Table 1 includes all the cases that either set a precedent in their state or are currently active in the courts. Cases where the challenge to the domestic partnership ordinance did not focus on the authority of the local government to provide the benefits were not included, either. For example, in two cases, Oakland, CA and the Chicago, IL Board of Education case, the issue was discrimination against opposite sex couples because only same sex couples were eligible for the benefits. In Cleveland Heights, OH the case concerned the acceptance of petition signatures to hold a referendum on the domestic partnership benefits program and in Missoula, MT the issue concerned insufficient public notice before adopting the program. Perhaps the best known domestic partnership benefit case, that of San Francisco’s ordinance requiring contractors with the city to provide their employees with domestic partnership benefits or the equivalent, is not included in this study for two reasons. First, the case is being heard in federal court and,

Table 1: Cases Involving Challenges to Local Domestic Partnership Benefit Programs (Status as of January 6, 2005) STATUS Domestic Partnership Program Overturned -Final Atlanta, GA CITY CASE (date of last decision) McKinney, et al. v. City of Atlanta (March 14, 1995; GA Supreme Ct.overturned in 1997) Lilly v. City of Minneapolis (March 29, 1995; MN Supreme Ct. denied review) Connors, et al. v. City of Boston (July 8, 1999; MA Supreme Ct.) White v. Arlington County (April 21, 2000; VA Supreme Ct.) Morgan v. City of Atlanta (November 3, 1997: GA Supreme Ct.) LaWall v. Pima County (July 14, 1998; AZ Ct. of Ap., not appealed) Jacks v. City of Santa Barbara (Santa Barbara County Superior Ct., January 13, 1999; not appealed) Schaefer & Tader v.City of Denver (April 12, 1999; CO Supreme Ct. denied review) Crawford, et al. v. City of Chicago (October 6, 1999; IL Supreme Ct., denied review) Slattery, et al. v. City of New York (February 29, 2000; NY Ct. of Ap. denied review) Godley, et a.l v. Town of Chapel Hill and Town of Carrboro (May 16, 2000; Superior Ct., Orange Co., not appealed) Lowe v. Broward County (April 4, 2001; Florida Supreme Ct. denied review) Pritchard, et al. v. Madion Metropolitan School District (May 8, 2001, Wisconsin Supreme Ct., denied review)

Minneapolis, MN

Boston, MA Arlington County, VA Domestic Partnership Program Upheld –Final

Atlanta, GA

Pima County, AZ

Santa Barbara, CA

Denver, CO

Chicago, IL

New York City, NY

Chapel Hill and Carrboro, NC

Broward County, FL

Madison, WI (School District)



CITY Vancouver, WA Montgomery County, MD

CASE (date of last decision) Heinsma v. City of Vancouver (August 23, 2001; WA Supreme Ct.) Tyma, et al. v. Montgomery County (June 14, 2002: MD Supreme Ct.) Pulsifer, et al. v. City of Portland (April 28, 2004; Superior Ct., Cumberland Co., not appealed) Devlin, et al. v. City of Philadelphia (Dec. 6, 2004; PA Supreme Ct.) Ralph, et al. v. City of New Orleans (May 16, 2004; Civil District Ct., Orleans Parish) Rohde, et al. v. Ann Arbor Public Schools (Dec. 2003 (?); Circuit Court, Washtenaw Co.) Buckner v. Kansas City

Portland, ME

Philadelphia, PA Domestic Partnership Program Suit Dismissed – On Appeal

New Orleans, LA

Ann Arbor, MI (School District) Domestic Partnership Program – Awaiting Trial Kansas City, MO

*Date is of last available opinion or the denial of a review by a higher court, whichever is most recent.

although there are some claims being made that San Francisco exceeded its authority by regulating contractors in this way, the principal claim is that the city’s action is preempted by the federal Employment and Retirement Income Security Act (ERISA). The issue of federal preemption was never in question in the cases selected for study. Second, the ordinance being challenged is not the ordinance under which San Francisco provides domestic partnership benefits for its municipal employees and thus it is distinguishable from the cases being studied here. There are, however, some excellent studies already available on this case (DeLeon 1999; Gibson 1999). A similar case is also underway in Portland, ME where Catholic Charities has filed suit. (Kesich 2004) Local governments that offer or have tried to offer domestic partnership benefit programs for their employees are not distributed randomly across the country. (See Table 2) In addition to the three states where the DP benefits program was overturned by the courts, eighteen states contain no local jurisdictions currently offering domestic partnership benefits. Of the 32 states where at least one jurisdiction has adopted a DP benefits program, lawsuits challenging the authority of the local government to adopt them were filed in 19 of them. Of the remaining 13 jurisdictions, lawsuits are unlikely to be filed in four states where either state law (Vermont, Hawaii, and New Jersey) or state court decisions (Oregon) clearly authorize the state itself to offer these benefits and implicitly, if not explicitly, allow local governments to do so as well. In the nine remaining states, whether or not a lawsuit is filed may simply be a matter of time. What is important to recognize is that a successful legal challenge against one city in a state is often enough to effectively close down similar programs in other cities in that state. This happened in Massachusetts where the city of Brookline voluntarily terminated its program after

Boston lost its appeal to the state Supreme Court and the city of Cambridge was unable to defend its DP program at trial. Likewise, a successful defense of a domestic partnership program often sets a precedent that “protects” domestic partnership programs in other jurisdictions within the same state. This occurred in the case of Gainesville, FL which was decided after the state Supreme Court declined to review a decision in a similar case favorable to Broward County. Of course, much of the work of attorneys is aimed at “distinguishing” cases from each other – what may be authorized for city governments is not authorized for county governments, a program that reimburses employees for expenses for domestic partners is different from a program that enrolls and subsidizes domestic partners in a manner similar to spouses, or what cities with home rule charters may do cities without such charters cannot. However, it is significant to note that of the sixteen states included in this study, only two had more than one case challenging the local government’s authority in this area after an initial court ruling on the subject. This may change in the future because campaigns have been successfully concluded or are planned to amend state constitutions to prevent the recognition of same-sex marriages. A number of these proposals include language that may specifically overrule decisions favorable to local government DP programs or language that could be so interpreted. For those cases included in the study, judicial decisions in the case were obtained from the LEXIS database whenever possible. Copies of briefs were sometimes available from the parties in the case, usually the city or county attorney’s office or, in several cases, the offices of the Lambda Legal Defense and Education Fund (LLDEF) which appeared representing intervening parties in several of the suits. Copies of judges’ orders were also obtained for cases where the final decision occurred at a judicial level that does not publish decisions through electronic databases. THE CASES In his book, Judges and the Cities, Gordon Clark (1985, 86) makes the point that “the politics and legalities of social discourse [through making public policy] are very much related” while at the same time, “law is more than politics transposed[; t]he political texture of an original dispute need not enter into the legal picture.” Other scholars have noted that the system of American government provides numerous forums in which governmental actions can be challenged, both with respect to the different parts of each governmental level – legislative, executive or judicial branches or by direct democracy (e.g., referenda) – or at different levels of government – local, state, or national. (Schattschneider 1960; Nice & Frederickson 1995; Haider-Markel & Meier 1996) In the cases under review here, opponents of domestic partnership benefits policies who have lost in the local legislative arena moved the conflict to the state judicial level (and occasionally, simultaneously, the state legislative levels) in an effort to have their policy preferences prevail. For the most part, these legal challenges were argued by attorneys affiliated with or financed by conservative public interest law organizations, most notably the American Center for Law and Justice (ACLJ), the Alliance Defense Fund (ADF), or the Northstar Legal Center (NSLC). City, county, and school district attorneys served as the defense lawyers, although occasionally outside counsel was hired to act on their behalf. Gay rights public interest law organizations, principally Lambda Legal Defense and Education Fund (LLDEF) and the American Civil Liberties Union (ACLU) often participated in the cases either through intervening on behalf of employees who could benefit from the DP program or in

organizing amici curiae briefs on behalf of the local government. Although, as noted by Clark, the emotional character of the political debate may get lost in a legal debate over relatively abstract principles, the public presentation of the cases in news reports and on websites sponsored by advocacy groups kept the focus on issues with high salience to the public. Thus before examining the legal elements of these cases, a brief synopsis of the political context of each will be provided. The cases in which final decisions have been reached were initiated between December 1993 (Minneapolis, MN) and August 2003 (Portland, ME). Each case was filed in the relevant state court and appealed within state court systems; none were filed in or appealed to a federal court. In Georgia there were two cases; the second case reviewed a rewritten version of the law following an initial defeat for the city in the first case. In all but one of the cases (AZ), the person or persons challenging the ordinance based their standing to file the suit on the fact that they were taxpayers and were supported, directly or indirectly, by conservative legal public interest groups; in Arizona, the case was filed by the County Attorney under a statute authorizing her to prevent illegal spending by the County Commissioners. Eight of the local governments (Atlanta, GA; Chapel Hill, NC; Denver, CO; Minneapolis, MN; Philadelphia, PA; Portland, ME; and Arlington County, VA; and the Madison, WI school district) were the first jurisdictions in their states to adopt such an ordinance. A brief description of each of the conflicts in each of the cities follows; they are presented in chronological order based on the date the lawsuit was first filed. Atlanta, Georgia. Atlanta went to the state Supreme Court twice to defend its efforts to provide domestic partnership benefits to municipal employees. Atlanta faced a difficult political struggle over adopting a DP benefits program; the City Council narrowly approved the measure, the Mayor vetoed it, gay activists demonstrated in the streets against the Mayor, the City Council made some minor modifications and passed the ordinance again by an even narrower margin, and then the Mayor signed. Almost immediately, however, a lawsuit seeking to overturn the law was filed by an Atlanta state legislator (in his individual capacity), a city council member and several other local residents with the assistance of attorneys from the Southeastern Legal Foundation (SELF) in Atlanta They actually challenged three separate laws – one a law prohibiting discrimination in city employment based on sexual orientation, one the law creating a registry for domestic partnerships, and one providing for health benefit coverage of the domestic partners of municipal employees. Simultaneously, McKinney used his position in the Georgia General Assembly to introduce legislation to prohibit cities from adopting domestic partnership ordinances, but the legislation never moved out of committee. The state Supreme Court supported the findings of the lower court that the first two laws were within the city’s powers to enact, but also found that the health benefits law was ultra vires because it was in conflict with the state’s definitions of “dependents” and “family.” (City of Atlanta v. McKinney, 1995). The city then rewrote the law in light of the Court’s opinion and, when the revised version was adopted, a citizen, again with the assistance of SELF attorneys, sued. While the lower court ruled against the city, that decision was overturned by the Georgia Supreme Court. (City of Atlanta v. Morgan, 1997) Later, the city had to use the courts to successfully force the elected State Insurance Commissioner to permit regulated insurance companies to offer health benefit

policies that provide coverage for domestic partners, despite the state Supreme Court’s ruling that such plans were legal. (Croft 1999) Minneapolis, Minnesota. In Minneapolis, a taxpayer challenged the local government’s practice of providing supplemental payments to employees for the health benefit expenses of domestic partners and certain other relatives. The Minnesota Supreme Court denied review from the appellate court’s decision that the city lacked authority to provide these benefits. (Lilly v. Minneapolis, 1995) Ironically, the City Council initially adopted the benefits on a 10-2 vote, with one abstention, because it had been found by the local human rights commission to be discriminating against lesbian and gay employees by not covering their domestic partners. (Anglin v. City of Minneapolis, 1992) Denver, Colorado. Shortly after winning a lawsuit in 1994 saying that its denial of sick leave to care for an ill partner did not violate the city’s sexual orientation anti-discrimination law (Ross v. Denver Dept. of Health and Hospitals 1994), the Denver Career Services Board amended its rules in 1995 to include the domestic partners of employees under its definition of “immediate family.” A year later, the Board recommended that the City Council adopt a proposal to extend health benefits to the same sex domestic partners of city employees. By a vote of 11-1, with no discussion and relatively little opposition, the “spousal equivalent” ordinance passed on September 16, 1996. (Campbell, 1996) One of the bill’s opponents, however, Paul Schaefer, along with Irene Tader, filed suit to block the ordinance from taking effect. By December, a Colorado District Court judge issued a summary judgment in favor of the city. Nearly two years later, the Colorado Court of Appeals affirmed the lower court’s finding; and a review of the decision was denied by the state Supreme Court. (Schaefer & Tader v. City & County of Denver) Chicago, Illinois. Following a raucous session of the City Council pitting primarily certain conservative African American ministers against gay rights supporters and the Mayor, a 32-18 vote approved a health benefits program for the same-sex domestic partners of city workers in March 1997. Just prior to the vote, the Illinois state Senate, at the urging of a state senator opposed to the proposed ordinance approved a bill requiring that if a city passed a domestic partnership ordinance providing health benefits, the law must cover both same sex and opposite sex partnerships, something the Mayor did not support (Strausberg 1997). Less than two months later, the leading opponent of the bill, Rev. Hiram Crawford, Sr. and several others brought suit to overturn the law. The Lambda Legal Defense and Education Fund (LLDEF) intervened on behalf of two city employees who were eligible for the coverage. Both the trial court and the state appellate court (March 31, 1999) upheld the ordinance. The Illinois Supreme Court declined to review the appellate court decision. (Crawford v. City of Chicago 1999) Pima County, Arizona. Following the lead of its principal city, Tucson, Pima County Supervisors, by a 3-2 vote, authorized the county to provide health benefits to the domestic partners of county employees in March 1997. The County Administrator then requested a legal opinion from the County Attorney on the legality of the policy; the County Attorney’s office reported that the policy exceeded the authority granted to the Board of Supervisors. (Roads 1997) The opinion closed with a list of options the Board could take, including a cooperative action

between the County Attorney and the Board to seek a declaratory judgment from the courts which would address the legality of the policy. Such a judgment was requested in July. (LaWall v. Pima County 1998) This approach effectively prevented any citizens from entering the case directly. LLDEF petitioned, and was permitted, to intervene on behalf of five employees who would be eligible for domestic partnership benefits once the policy was implemented. The court’s judgment was in favor of the Board of Supervisors’ policy (March 13, 1998). As a matter of state law, the decision was automatically forwarded to the Court of Appeals, the County Attorney did not file a petition for review, though an unhappy citizen did make an unsuccessful effort to intervene in order to force an appeal. The decision became final in July 1998. In 1999, a state representative introduced legislation to prohibit local governments and state colleges and universities from providing domestic partnership benefits, but the bill was killed in committee. Arlington County, Virginia. After a local state representative had tried unsuccessfully to amend Virginia state law to specifically allow local governments to include domestic partnership health benefits, if they so chose, the Arlington County Board unanimously decided that they could nevertheless offer such benefits through the self-insured portions of their county employee health plan. In contrast to most of the other cities in this study, the adoption of this program was done through language in the annual budget document and did not generate a large turnout of opponents and supporters. The legal opinion on which this action was based had been prepared by a private attorney at the behest of local lesbian and gay activists (Jones 1997). This was contradicted by a subsequent opinion of the Virginia State Attorney General (1997) which found the county lacked the necessary power. As Zimmerman (1995, 35) has pointed out, local governments ignore these opinions at their own peril. However, eight months after the effective date, three citizens with the assistance of the Northstar Legal Center, a conservative public interest law firm, filed suit to halt the program. In little more than a month, the trial court ruled that the health benefits plan “violates the Dillon Rule” and must be discontinued. The state Supreme Court took the case directly on appeal from the trial court and upheld the lower court’s decision. What is interesting about the high court’s decision is that one justice dissented from the majority opinion because it did not specifically find that the County had illegally created a new marital status, though he concurred with the majority that the DP program exceeded the city’s powers (Arlington County v. White, 2000). Santa Barbara, California. The city of Santa Barbara first created a domestic partnership registry in June 1997, six months later in January 1998 the city adopted negotiated labor agreements that provided access to health benefits for same-sex domestic partners of city employees, and six days later amended the agreements to cover opposite sex domestic partners, as well. In an effort to prevent the city from adopting a registry, Santa Barbara resident W. Rolland Jacks began circulating a petition calling for an initiative to nullify the city’s action. That effort failed. Following adoption of the health benefits provisions, Jacks filed suit to invalidate the program, with the assistance of the American Center for Law and Justice (ACLJ), a conservative public interest law firm based in Virginia (Jacks v. City of Santa Barbara filed in April 1998). LLDEF filed an amicus brief in this case. The Superior Court in Santa Barbara

County ruled in favor of the city in January 1999 and the decision was not appealed. (LLDEF 1999) Madison Metropolitan School District, Wisonsin. Although contract negotiations between the teachers’ union and the school board were contentious in 1997, both parties were in agreement that providing a DP health benefit program was a positive step. A more limited set of benefits, such as funeral and sick leave, had been available for domestic partners since 1991. It isn’t clear how many of the dissenters in the 6-3 vote ratifying the contract were based on objections to the DP program, although at least one subsequent election for a board seat was against a member who expressed disapproval of the program. (Norton 1998) A state representative introduced legislation to “cut off state funding for local governments that provide domestic partnership benefits,” but the legislation was not passed. (Callender, 1998) The wife of a controversial pastor in the Madison area became the lead plaintiff in a suit supported by the Alliance Defense Fund (Pritchard v. Madison Metropolitan School District). (Erickson 2000) Both the trial court and the appellate court (February 8, 2001) found that the school district, which qualifies as a “municipality” under state law, was within its rights to adopt, in the language used by the district, a “designated family member” benefits program. The Wisconsin Supreme Court denied review. New York City, New York. The history of the adoption and implementation of domestic partnership benefits in New York City is long and complex. However, in 1993, in the course of settling a law suit with gay and lesbian employees of the NYC Board of Education over the issue of health benefits for domestic partners, Mayor David Dinkins effectively expanded on earlier Executive Orders (Nos. 48 and 49) which established a registry and granting a number of nonhealth benefits for domestic partners. Lesbian and gay activists continued to press for a legislative enactment of these Executive Orders, however, and were successful in June 1998 with a City Council vote of 39-7. (McCool 1998) A few months later, with the assistance of the American Center for Law and Justice, several citizens filed a suit seeking to have the law invalidated (Slattery v. City of New York). The trial court’s finding that the ordinance was valid was upheld by the Appellate Division of the New York State court system and a further appeal was denied by state’s highest court. Philadelphia, Pennsylvania. Like New York City, there is a long and convoluted history to the granting of health benefits to the domestic partners of municipal workers. Bills granting domestic partnership benefits were introduced as early as 1991. Extension to some workers through labor contracts and an Executive Order from Mayor Ed Rendell covering non-union workers went into effect in 1996. In May 1998, and only after a long debate that ended a 10-6 vote, did the City Council adopt a health benefit ordinance for domestic partners (referred to as “life partners” in the ordinance) covering all city employees. (Burton 1998) The bill was one of three related bills – one exempted life partners from the city’s real estate transfer tax and the other prevented discrimination against life partners. A few months later, ten citizens organized by the Urban Family Council of Philadelphia filed suit (Devlin v. City of Philadelphia). After a long period of wrangling over whether or not the plaintiffs had standing, a trial court found that the city had not exceeded its authority and that all the laws were valid (October 5, 2000). On appeal, however, the appellate court completely reversed the lower court finding, for the first

time in any of these cases, that the city had attempted to create a new marital status (August 29, 2002). However, two years later, the Supreme Court of Pennsylvania overturned the appeals court with respect to the provision of a DP benefit program from employees, though it sustained the appeals court finding that real estate transfer tax exemption and the protection of life partners from discrimination were beyond the city’s power. Boston, Massachusetts. Boston, the third large East coast city to be sued in 1998 also had a long history of trying to adopt domestic partnership benefits for city employees. Some might argue by comparison to the history in Boston, the New York City and Philadelphia legislative journeys were relatively straightforward. By a 7-5 vote, in 1993, the Boston City Council adopted an ordinance that gave some rights to the domestic partners of all Bostonians and called for the provision of health benefits to domestic partners of city workers. Mayor Ray Flynn vetoed the ordinance, but simultaneously adopted an Executive Order granting city employees certain benefits other than health insurance and indicated that he would begin to negotiate with health benefit carriers about health benefits. His concern was that the Council’s version of the law was in conflict with the state law governing employee compensation and he was trying to find a way around it. A “pilot project” was established that required some persons to pay a higher premium for covering domestic partners, but there was a continuing desire by gay activists and some Council members to treat domestic partners and legal spouses equally. In 1996, with the Council ready to pass such legislation again, Mayor Thomas Menino switched strategy and used a provision of Massachusetts law to send the bill forward to the state legislature asking for authority to adopt the ordinance. The legislature in turn sent it to the state Supreme Judicial Court to ask if the language of the bill was unconstitutionally vague, but the court said no, the city could define “domestic partner” any way it chose. (Cassidy, 1998) The Speaker of the House resisted bringing the bill authorizing the city to adopt the ordinance to a vote until he was assured that it did not discriminate against heterosexual unmarried couples. The legislature then passed the bill and sent it to Acting Governor Paul Cellucci who vetoed the bill because it allowed unmarried heterosexuals to be covered. In frustration, the Mayor issued an Executive Order providing the coverage in August 1998. The Governor announced he was considering proposing legislation to limit any municipality to providing domestic partnership benefits only for same sex partners. (Robertson 1998) In November 1998, a lawsuit was filed by a number of Boston residents who were represented by attorneys from the American Center for Law and Justice. On July 8, 1999, the Supreme Judicial Court affirmed a lower court’s finding that the city did not have authority to provide benefits to domestic partners of employees under existing state laws. Shortly afterwards, other Massachusetts cities with DP benefit programs ended them. The city of Cambridge had to be taken to court by the ACLJ and forced to dismantle its program (Catavalo v. City of Cambridge 2000) Broward County, Florida. At the same time they were filing suit against Arlington County, the Northstar Legal Center was filing a suit in Broward County, Florida, to prevent implementation of its newly adopted domestic partnership health benefits ordinance. Adopted on a 6-1 vote of the Board of Commissioners in January 1999, the suit to stop the ordinance was filed by the most vocal opponent of the bill in public hearings prior to adoption, Lawrence Lowe (Lowe v. Broward County. In response to the lawsuit, the Commissioners amended the ordinance to state

specifically that law is not intended to conflict with any other federal, state, or local ordinances and clarified that they were not creating a new marital status. (Kelley 1999) The Circuit Court judge ruled that the ordinance was a valid exercise of the county’s authority. Lowe appealed that decision, but the appellate court upheld the findings of the lower court with one exception; it invalidated a provision that placed domestic partners in a priority listing of persons eligible to make health care decisions for an incapacitated person who had not legally designated power or attorney to anyone (September 20, 2000). The Florida Supreme Court denied review to the case. In 2001, a lawsuit was filed against a similar DP benefits program established in Gainesville, FL. The plaintiff was represented by a Florida-based conservative public interest legal group, Liberty Counsel. Although the judge dismissed the suit on the plaintiff’s lack of standing, he indicated that all of the substantive issues had be dealt with by the Appeals Court in Lowe. The case was appealed but the dismissal was sustained by the Appeals Court.. (Martin v. City of Gainesville 2000, 2001) Vancouver, Washington. In the third lawsuit filed in the first two months of 1999, clients represented by the Northstar Legal Center attacked a municipal DP health benefits program in Vancouver, Washington (Heinsma v. Vancouver). Vancouver implemented the domestic benefits administratively without a formal vote of the City Council, though the City Manager understood that he was acting with the support of a majority of the council members. (Hewitt 1998) While discussing the possibility of adopting domestic partnership benefits, a state legislator introduced a bill that would prevent such benefits from being offered to public employees, but the bill died without being debated. (Wolf 1998) The city prevailed at the trial court where the judge specifically denied that Dillon’s Rule was controlling in this case; the Northstar Legal Center attorney who had just won using this argument in the White v. Arlington County case was the plaintiff’s attorney in this case, as well. The Washington Supreme Court accepted the case directly on appeal and, in an 8-1 ruling, also found for the city (August 23, 2001). Chapel Hill and Carrboro, North Carolina. In an unusual suit naming two separate cities that acted independently of each other in adopting DP health benefits programs for city employees, a group of four Carrboro residents and eight Chapel Hill residents filed a single complaint (Godley v. Town of Carrboro and Town of Chapel Hill). In 1994, both cities unanimously adopted domestic partner registries and began offering some limited benefits like sick leave to care for partners and imposing obligations like filing financial conflict of interest forms for partners. Both jurisdictions put off the question of providing health benefits until 1995. Chapel Hill, despite an advisory opinion from the City Attorney that providing such benefits would likely be ruled invalid by North Carolina courts, chose to enact an ordinance providing such benefits. Carrboro, on the other hand, had the City Manager simply negotiate such coverage with the health benefit providers and began offering the benefit (with the full knowledge of the Town Council, however). Shortly after Chapel Hill acted, a suit was filed seeking to nullify the ordinance, but because the plaintiff, referred to in the press as “Publius Heterodoxus,” refused to reveal his (or perhaps her) identity, the judge dismissed the case. (Gronberg 1998) The same attorney, representing a conservative public interest law group, the North Carolina Foundation for Individual Rights, and funded by the Alliance Defense Fund, subsequently found plaintiffs willing to be named and filed suit in June 1999. The trial court judge made summary judgment

for the cities “as a matter of law” (May 16, 2000) with no further explanation. The case was not appealed. Montgomery County, Maryland. In late 1999, the Montgomery County Council, on a 6-3 vote, agreed to provide a DP health benefits program for employees who had same-sex domestic partners only. Several citizens’ groups, including the Women’s Christian Temperance Union, protested and began an unsuccessful petition drive for a referendum on the ordinance. (Wilson 2000; McCaffrey 2000). Using attorneys from the American Center for Law and Justice, several citizens and county employees filed suit to block the DP benefits program (Tyma v. Montgomery County). The trial court judge found, in summary judgment, for the County. The high court took the case on direct appeal and found that the lower court had correctly granted summary judgment, rejecting all of the plaintiffs’ arguments (June 14, 2002). Portland, Maine. In 1999, the city of Portland became the first in Maine to provide DP benefits to its employees, though it was quickly followed by several others at the beginning of 2000. (Coit 1999; Shanahan 1999) The city made changes in its self-insured health plan to accommodate domestic partners of city employees. In 2001, however, the city passed an ordinance formally establishing a registry for domestic partners and extended it in 2002 by requiring certain city contractors to offer domestic partnership health benefits to their employees as a condition for receiving the contract. One response came from the Christian Civic League of Maine which started a petition drive for a state-wide initiative overturning all municipal DP benefit programs. (Weinstein 2002) In 2003, Catholic Charities filed suit in federal district court alleging an abridgment of religious freedom over the contractor provisions of the law and a few months later, eleven citizens, with assistance from the American Center for Law and Justice filed suit in state court against the ordinance overall (Pulsifer v. Portland). While the federal case had mixed results because Catholic Charities reorganized its health plan under federal guidelines (Kesich 2004), the case in state court directly attacking the city’s DP registry and benefits programs ended in summary judgment for the city (April 27, 2004). The plaintiffs did not appeal primarily because, as the judge pointed out in the decision, the state of Maine had itself begun to adopt a number of domestic partnership benefit programs for both its employees and for citizens at large. ARGUMENTS IN DOMESTIC PARTNERSHIP CASES Although expressed in a variety of ways, the legal arguments raised by plaintiffs all boil down to a claim that the local government exceeded its state-granted authority when it adopted an ordinance or program providing health benefits to domestic partners of employees and the children of those domestic partners. Most, but not all, challenge the act on several different grounds, though the arguments fall into two broad categories – 1) the local government is improperly attempting to establish a marital relationship called “domestic partnership,” and/or 2) the state has already established the limits specifying to whom local governments may provide health benefits and domestic partners are not included. Marriage Arguments.

Plaintiffs. Clearly, the arguments that claim local governments cannot create a new “marital status” carry the most emotional weight. As noted in describing the cases earlier, many of the plaintiffs are the persons who opposed adoption of domestic partnership programs in the first place. News reports of the council meetings where domestic partnership ordinances were discussed or adopted are filled with quotes that focus on the moral and religious reasons opponents sought their defeat. Abstract questions of relative state government and local government spheres of authority concerning employee benefits are generally, though not completely, absent. Ironically, one can well imagine that the opponents of domestic partnership programs would become strong advocates of local authority if the local government were seeking to adopt a policy more to their liking, e.g., allowing landlords to discriminate against domestic partners in rental housing. The legal arguments about marriage take several forms, but the generic language of any dispute involving the extent of local authority is well utilized. Some plaintiffs argue that the field of marital relations is wholly occupied by state laws and there is no room for local regulation and that marriage is neither a matter of “local concern” nor a “municipal affair.” And if marital relations are solely the state’s responsibility, then so are non-marital relationships. Others argue that there must be uniform state regulation in this subject area, because the confusion would be too hard to handle. Plaintiff’s attorneys in Jacks v. Santa Barbara argue that people who register as domestic partners in one jurisdiction would be disadvantaged because they might travel to another jurisdiction (within the state) that did not recognize the relationship or which did not provide the benefits they expected based on the experience with the jurisdiction in which they first registered. Citing state laws that indicate that only the state can define marriage, set laws governing marital rights, and determine grounds and procedures for divorcing is also not unusual in an effort to establish state supremacy over local government action when it comes to interpersonal relationships. Conflict with other state laws is also charged in the portions of complaints based on what is seen as the local government’s attempt to create a new marital status. First, arguments are made that domestic partnership programs that include opposite sex partners are, in effect, reestablishing common law marriages that have been outlawed. These arguments are especially important when the domestic partnership program includes coverage for unmarried opposite sex and same sex couples. Second, in cases argued prior to the U.S. Supreme Court decision in Lawrence v. Texas (2003), an argument was that recognizing domestic partners condoned or encouraged violation of various state laws against certain sexual acts such as fornication and sodomy. In recent years, a number of states have passed their own versions of the federal Defense of Marriage Act which specifically states that marriage is only permitted when the partners are of opposite sexes. Some, like the law in Florida, go further and specify that neither the state nor local governments may give legal recognition to “relationships between persons of the same sex which are treated as marriages.” Domestic partnership benefit programs, in the plaintiff’s eyes, are clearly in conflict with these laws. Even more recently, several states have passed state constitutional amendments defining marriage and prohibiting the “benefits of marriage from being offered to other types of couples or families. However, none of these amendments were in place in the states in this study at the time of any of the lawsuits discussed.

A final set of arguments states that the domestic partnership act violates the state’s public policy favoring marriage. In some states there is specific language in one or more laws saying that the state laws should be interpreted as favoring or encouraging marriage. In other cases, the state’s position is implied by a variety of benefits that are provided to married couples and not to unmarried couples (e.g., protection of rights in a divorce, but not in a “palimony” suit). Local Governments. Local governments, of course, respond to each of these arguments, but the responses in this case are relatively uniform, namely, domestic partnerships are not marriages, common law or otherwise, and thus the arguments of the plaintiffs are irrelevant. Some defendant municipalities demonstrate how differently married couples are treated with respect to other benefit programs and by the state, hoping to show that domestic partnerships are clearly a relationship inferior to marriage which also supports an argument that the state’s public policy preferring marriage remains intact. Others point out the differences in requirements for becoming married and ending a marriage compared to entering and leaving a domestic partnership. Local governments also defend themselves against charges of conflict with criminal statutes in much the same way -- claiming that they are not relevant to the issue of domestic partnership. When a plaintiff charges violations of fornication and sodomy laws, defendants point out that nothing in the domestic partnership eligibility criteria require partners to violate the state’s criminal laws, though some gay rights advocates find this argument a bit disingenuous (Feldblum 1999). In cases where state laws prohibit cohabitation, the argument is a bit trickier since the eligibility requirements for domestic partnerships in most jurisdictions require a joint residency and by registering the partners are basically holding themselves out as a couple. (Gossett 1994) In response, local governments generally argue that those laws are neither enforced nor enforceable today, even if they might remain on the books. Furthermore, cohabitation laws would only apply to opposite-sex domestic partners since there are no laws prohibiting two persons of the same sex sharing accommodations. Thus, with respect to arguments about whether or not state marriage laws preempt local laws recognizing domestic partnerships, there is a classic disagreement over defining the problem with plaintiffs claiming that domestic partnerships are “sham marriages” while defendants claim they have nothing at all to do with marriage. The courts are asked to resolve this dispute. Employee Benefit Arguments. Plaintiffs. The second broad set of arguments against municipalities or counties adopting domestic partnership benefit programs involve claims that state laws limit the local governments’ options in the area of employee benefits. The critical question is whether or not the local government can itself define the term “dependent” for its own employee benefit programs or whether the state has defined that term in a way that supersedes (and prohibits) any local government effort to cover domestic partnerships for health benefit purposes. The argument over this particular point tends to be very technical and to lack the emotional punch that the arguments involving the issue of regulating marriage. In all of the states where domestic partnership ordinances have been challenged, the authority of a local government to provide employee benefits to its employees and their dependents derives from a state law. This may not be the case in other states (Weigel 1998) One key difference among the states where local governments provide benefits under the authority of

state law is that some laws use the general term “dependent” while others specify “spouse and dependent children” as eligible for benefit coverage. Some states go even further and define what is meant by “dependent children.” In the latter cases, as in Minnesota, the plaintiffs simply point out the inconsistency between the definition in state law and the class of people eligible for the local program. In the former cases, which occur in most of the states, the plaintiff attempts to make the case that even though there is no definition of “dependent” in the law authorizing municipalities to provide health benefits for an employee’s dependents, there are many other laws where the term dependent is defined and in most states, until recently, none of those definitions include “domestic partners” so it is unreasonable for the local government to expand the definition to include such a category since it is not used anywhere else in state law. Most of the other laws cited for comparison purposes limit the definition of dependent to a spouse, children, and a person who receives more than fifty percent of his/her financial needs from the employee. In a few of the cases, the argument is made that the issue of local government employee benefits either is treated by the state as, or should be treated by the state as, an issue of statewide concern. Here the argument is that uniformity is required to prevent unequal treatment among employees of different jurisdictions within the state. Such uniformity is sometimes deemed desirable to prevent “bidding wars” among local governments for qualified employees. Local Governments. Local government defendants counter these arguments in a number of ways. In cases where the law is specific in identifying eligible dependents, the argument is made that the state law should be treated as a floor, not a ceiling. This means that while local governments must offer benefits for the categories of spouse and dependent children, the fact that the law does not specifically prohibit offering benefits to others should be interpreted as allowing the benefits to be offered if the city or county so chooses. In cases where the term “dependent” is not defined at all, local governments make the argument that they must develop a local definition of the term or else there is no way they can implement the law and, again, since domestic partners are not specifically excluded, it is their option about whether or not to include that category. This argument is sometimes supplemented by claims that the purpose of the state law is to ensure that local governments can be competitive employers and that, in many of these places, private employers are offering domestic partnership benefit coverage and in order to remain competitive, so must the local government. In some cases, local governments are able to identify state laws and court decisions that define “dependent” broadly to include persons who receive some financial support, though not necessarily half of their financial needs. Probate laws are often cited to support this position. If a variety of definitions exist in state law, the local governments argue, there should be no presumption that the most restrictive one should be applied to the law governing employee benefits. In fact, it is argued, the state’s interest in seeing that its citizens are well cared for should lead to adopting the most expansive definition available. One defendant argued that expanding the number of persons covered increased the purchasing power of the city and could result in lower costs for everyone, thus following state mandates to ensure efficient use of local tax dollars. Arguments that local government employee benefits are a matter of statewide concern are often countered by reiterating the argument that local governments operate in different competitive markets for employees and must develop different employment packages to attract a

competent workforce. Also, salaries are not uniform across local governments so it is unclear why such uniformity should be required in the area of health benefits. In most states, over the years, many differences among local government benefit programs have developed and been allowed to exist, largely because no has ever raised the question of uniformity in a lawsuit until now, thus insisting on uniformity now is not appropriate. Thus, with respect to arguments about whether or not state laws preempt local government attempts to define “dependents” to include domestic partnership, the issue is one of local autonomy and authority to innovate under state law. Unlike the marriage arguments, where local governments concede that they have no authority to engage in regulation of marriage, when it comes to defining eligibility for employee benefits that are paid for primarily with local tax dollars, they directly challenge the effort to limit their freedom to act. JUDICIAL RESPONSES TO THE ARGUMENTS Judges in sixteen states have ruled on these disputes, accepting and rejecting some of the arguments described above. In all but Atlanta v. Morgan and Devlin v. Philadelphia, whenever more than one court heard a case, the decision of the lower court was sustained which suggests some consistency in an understanding of the powers of local governments. Grouping the decisions by judicial outcome will facilitate an understanding of how judges have seen these cases. A summary of this analysis can be found in Table 3. Domestic Partnerships Overturned. Four final decisions (Minneapolis, Atlanta (McKinney), Boston, and Arlington County) required local governments to abandon their programs providing health benefits for domestic partners. In both Minneapolis and Boston, the judges found that the state law specifically defined the term “dependent” in a way that did not include domestic partners. In these states, the law not only referred to “spouse and dependent children” but included provisions for older children who may be full time students or mentally or physically incapable of caring for themselves. In these cases, the judges said that the state had shown a specific interest in regulating this matter either because, at the request of local governments, the definition had been amended (Minnesota) or that there was an expressed legislative intent to keep cities from competing with each other, with counties, or with the state by offering greater benefits to their employees (Massachusetts). Judges pointed out, in both of these cases, that the municipalities had implicitly acknowledged that employee benefits were a matter of state regulation. In Minneapolis’ case, the court cites a phrase in the City Council resolution authorizing supplemental payments for domestic partners’ health benefit costs that says the city would “seek an affirmative inclusion of the term ‘domestic partners’ in state legislation on health care benefits” which seems to concede the state authority in this area. As described above, Boston had previously gone to the state legislature for authority to adopt a domestic partnership ordinance and only after the governor vetoed the legislation authorizing the city to provide the benefits did the Mayor issue an executive order. In neither case, though both cities were their state’s largest municipalities and both possessed “home rule” authority, did the courts find that they could avoid preemption by the state law. The Boston decision, however, did leave open the possibility that the city may have another option for funding domestic partnership benefits, the very method that was overturned in the Minneapolis case, in fact. The court states “We express no view on whether the mayor could

authorize the city to pay for nongroup health insurance benefits for registered domestic partners of city employees.” (Connors v. Boston, p. 19) In the McKinney case in Atlanta, three laws were being challenged. The sexual orientation nondiscrimination ordinance and the domestic partnership registry were found to be acceptable exercises of local government authority. The effort to provide health benefits to domestic partners was not allowed because of the way the city attempted to achieve this. With an eye toward avoiding a conflict with state marriage laws, the ordinance stated that “The City of Atlanta recognizes domestic partners as a family relationship and not a marital relation” and that benefits shall be available for a domestic partner “as for a spouse to the extent that the extension of such benefits does not conflict with existing laws of the State of Georgia.” In this case, the court found that the critical issue was the city’s efforts to define domestic partners as a “family relationship.” The relevant law did not define dependents, but the court noted that other laws did, none of which included domestic partners. However, the critical sentence in the decision, as shall become clear in Morgan, states “We conclude that the city exceeded its power to provide benefits to employee and their dependents by recognizing domestic partners as ‘a family relationship’ and providing employee benefits to them ‘in a comparable manner...as for a spouse.’”(Atlanta v. McKinney, 10) The decision in the Arlington County case turned on the question of whether or not the DP benefits program was “a reasonable method of implementing its implied authority” under state benefit statutes and found that it was not. (Arlington County v. White, 10) Two arguments were particularly persuasive to the court. One was that the Attorney’s General opinion, requested by a supportive state legislator before Arlington County acted, had said that local governments did not have authority, under Dillon’s Rule, to include domestic partners in health benefit plans. And secondly, the county’s definition of the term “domestic partner” focused on “financial interdependence” and not “financial dependence.” One thing critical to note in all of these cases is that none of the majority opinions turn on the issue of whether or not the local governments were inappropriately interfering with the definition of marriage or marital relationships. The Boston, Atlanta (McKinney), and Arlington County decisions include statements that the court does not see any conflict between state marriage laws and the creation of domestic partnerships while the Minneapolis decisions are silent on the question. In both the Atlanta (McKinney) and Arlington County cases, a dissenting high court justice criticized the majority for ignoring what they saw as an obvious conflict between the local domestic partnership ordinances and state laws governing marital and family relationships. Domestic Partnerships Sustained. In four cases, Atlanta (Morgan), Montgomery County, Philadelphia, and Vancouver, the state high court sustained the authority of local governments to provide health benefits for domestic partners of municipal employees. In five cases – Broward County, Chicago, Denver the Madison School District, and New York City – the high court refused to review lower court decisions upholding the DP benefit programs. Challenges to ordinances in Carrboro and Chapel Hill, NC; Pima County, AZ; Portland, ME; and Santa Barbara, CA were not appealed from trial court decisions favorable to the local governments. The courts in these cases supported their decisions in a number of ways.

The charge that the DP benefits program conflicted with state laws on marriage or public policies favoring marriage was raised in all but two of these cases (i.e., Atlanta (Morgan) and Pima County). In all but one of the remaining cases the court rejected this argument; in the Madison School District case, the judges said “it is not the role of this court to weigh the social and political policy implications” of the decision to offer a DP benefits program. (Pritchard, 17) In dismissing the marriage arguments, many of the cases point out the number of differences between the legal status and legal rights of married partners when compared to domestic partners. In particular, the court in the New York City case (Slattery, 6-14) enumerates many of these differences and concludes that “as compared to marital relationships, domestic partnerships are marked by their lack of formalization, lack of legal protections, and by the significantly fewer rights that are extended to the domestic partners (14).” The New York court then cites the Colorado court in finding that domestic partners “qualifies as a separate and distinct group of people who are not eligible to contract a state sanctioned marriage to receive health and dental insurance benefits from the City (14-15).” The Pennsylvania court characterized Philadelphia’s “life partner” as “yet another ‘unmarried status’” along with single, divorced, and widowed. (Devlin, 21) The public policy argument is based on the idea that the state favors marriage because it gives so many rights and privileges to married couples that are not provided to unmarried couples. DP benefit programs, it is argued, discourage people from getting married by allowing them to get some of the same benefits that married people receive. This argument is most powerful when the DP program includes opposite sex as well as same sex partners, since the former do have an option to marry. But as with arguments that DP programs directly conflict with marriage laws, these courts have found that the limited nature of DP benefit programs is insufficiently broad to endanger the state’s public policy favoring marriage. After disposing of the marriage arguments, the courts turn to the arguments concerning employee benefit programs. In each of these cases, including the cases where the DP benefits program was overturned, the courts found that the local governments had the authority to provide health benefits to employees, their spouses and their dependents. The question, however, concerned whether or not the state law allowed each jurisdiction to innovate in its definition of the term “dependent” so that it could include domestic partners of employees. Depending on the specific law in a particular state, the argument took one (or more) of three different forms – state law on employee benefits specifically preempted the local jurisdictions from coming up with their own categories for benefits eligibility, the term “dependent” used by the local jurisdiction conflicted with the term’s definition in state law, and/or the issue of local government employee benefits was a matter of statewide concern and local governments could not be allowed to go their own way. In each state, there was at least one state law that authorized local governments to offer health benefits to employees and their spouses and dependents. These laws came in varying degrees of specificity, but none of them explicitly authorized inclusion of domestic partners as dependents. When the courts upheld the DP benefits program against these arguments, they tended to find that the state law did not preclude local governments from expanding on the definition of dependent if they so chose. In some cases, such as Chicago, the court noted that unlike the Lilly case in Minneapolis where the legislature could preempt the city’s authority by

implication, in Illinois such preemption had to be explicit and the legislature had not forbidden cities from adopting DP benefit programs. (Crawford, 24) Similar arguments arose over whether or not there was a conflict between the state law’s definition of “dependents” and that of the local government. Though the Atlanta trial court found the city’s new domestic partnership ordinance still inconsistent with state law, the state’s high court in the Morgan decision finds that “the City followed our holding in McKinney and carefully avoided the constitutional flaw in its previous benefits ordinance by eliminating... [in the] definition of ‘dependent’ any language recognizing any new family relationship similar to marriage.” (Atlanta v. Morgan, p. 5) This time the Georgia Supreme Court turns to dictionary definitions of “dependent” as well as definitions found in other state laws and find that the way the city defines domestic partner – as “one who relies on another for financial support” regardless of the specific amount of that support – meets the “ordinary meaning” of the term. Other states, including Washington and Colorado also turned to the dictionary for assistance in finding that the “ordinary” meaning of the term “dependent” did not exclude the definition of domestic partner as developed by the local government. With respect to the argument that the matter of local government employee benefits was one of statewide concern, an issue that was important to the courts in the cases involving Boston and Minneapolis, the judges confronted with those arguments here consistently found that, to the contrary, DP benefits was a classic matter of local concern. Judges often emphasized the economic argument that the local government had an obligation to run an efficient and effective operation and if they determined that they needed to offer DP benefits in order to attract the best employees, that was their decision to make. There might be political disagreement with this decision, but such a disagreement needed to be resolved politically, not by the courts. In general, decisions upholding local domestic partnership laws emphasized the importance of local autonomy, the need to construe local authority “liberally.” The found that courts should only restrict local actions when there was an express intent on the part of the state to prohibit the adoption of DP benefit programs and found that providing employee benefits is clearly a local matter. DISCUSSION What does the experience of local governments called to court to defend domestic partnership ordinances contribute to the debate over whether or not local governments are “powerless” or “powerful” actors? Frug (1999, 51) has argued “the immunization of city decision making from state control is possible only if courts have a strong sense that the local values being advanced outweigh the state’s determination to protect the individual interests involved.” Unlike Frug, Briffault was more inclined to believe that the courts were willing to give local governments space to act independently. The evidence from these cases involving domestic partnership benefit programs for local government employees seems to support Briffault. The cases in which domestic partnership benefit programs were overturned involved states with either very specific authorizing statutes (Minnesota and Massachusetts) or strong adherence to Dillon’s Rule (Virginia). In all three cases, each local government indicated some doubt about its authority prior to or concurrent with taking action to adopting domestic partnership benefits. Only the McKinney case in Atlanta turned on judges choosing to read a possibly ambiguous law in a way that limited the city’s discretion to act, though even in that case,

the court found in favor of the city on two important related programs – the nondiscrimination ordinance and the domestic partner registry – and laid groundwork for the city to amend its law in a manner that would allow them to rule in its favor in Morgan. In all of the remaining cases, the courts found that local governments had the authority to act in this highly controversial area. Judges sided with local governments in finding that domestic partnerships were not attempts to create a new type of marital status. Likewise, judges found that in the absence of clear state-level instructions on how to define “dependents” for employee benefit purposes, local governments had a great deal of leeway in defining that term for themselves. Evidence discussed here suggests that courts are willing to give cities room to experiment with issues that contain elements of “morality politics.” In 13 of the 16 states that have reached decisions on the question of local authority to offer domestic partnership benefits, the courts have sided with the local governments. As Clark (1985, 108) has noted, there is a tendency for political issues to lose their “texture” once they are transformed into legal arguments. That certainly seems to be the case with issues of “morality.” Highly contentious political debates became transformed into technical arguments over precedent and the application of legal principles. For the most part, judges downplayed the arguments concerning domestic partnership’s threats to traditional marriage and focused on the issue of defining dependents for employee benefit purposes. However, as noted earlier, just because an issue has been “lost” at one level or in one part of government, in the United States one (or a group) can always seek other venues for achieving policy goals. In this case, we can see examples where “losing” sides have sought other ways of getting their preferred policy positions adopted. For example, in Massachusetts, the legal battle moved from one over domestic partnership ordinances to a successful effort to permit same sex marriages (Goodridge v. Dept. of Public Health 2003). In Minneapolis, the city has adopted an ordinance requiring that city contractors provide domestic partnership benefits to their employees even though the city government is not allowed to provide benefits to its own employees. (Bayse 2004) On the other side of the issue, a number of states have seen the adoption of state laws and state constitutional amendments that may be effective in overturning the judicial decisions favorable to domestic partnership programs. All three jurisdictions with pending cases against their DP programs (New Orleans, LA; Kansas City, MO; and Ann Arbor, MI, schools) are in states that, in 2004, passed state constitutional amendments against the recognition of same-sex marriages and, depending on eventual court interpretations, against government recognition of domestic partnerships. A similar state constitutional amendment was passed in Georgia which could have the effect of overturning previously defended DP benefit programs and the one passed in Ohio may provide the basis for a legal challenge to public DP benefit programs there.


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ENDNOTES The seventeen local governments examined result in a total of seventeen court cases in only sixteen states because in Atlanta, GA, two separate cases were filed at different times against two different versions of the domestic partnership ordinance and in NC, the programs in two separate jurisdictions, Carrboro and Chapel Hill, were combined into a single case.


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