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Ruling could eliminate benefits for partners of city employees

Tuesday, April 30, 2013 by Elizabeth Pagano

According to Attorney General Greg Abbott, the state constitution prohibits political subdivisions, such as cities, counties and school districts, from offering benefits to the domestic partners of their employees.


Abbott issued his opinion on the question yesterday, in response from a question from conservative Sen. Dan Patrick, R-Houston. Abbott said the Texas Constitution prevents local political subdivisions from recognizing domestic partnerships by granting benefits, such as health insurance, previously only available to married couples.


Specifically, he addresses language in the constitution that says the state, or a political subdivision of the state, “may not create or recognize any legal status identical or similar to marriage.”


According to Abbott’s opinion, domestic partner benefits are similar enough to marriages to be illegal under state law. The benefits run afoul of a 2005 constitutional amendment that was created to ban same-sex marriages in Texas.


What this means for the city of Austin remains to be seen. In an email, city spokesperson Reyne Telles told In Fact Daily that city staff would be reviewing the opinion in order to brief City Council on “potential implications, impact or consequences.”


“As a large employer, the City of Austin intends to uphold our commitment to attracting and maintaining quality employees. It is our belief that part of being a best managed city includes respecting diversity and inclusion,” wrote Telles.


The city has given health insurance to domestic partners since October of 2006. Voters approved the change to the charter by more than two-thirds when it was on the 2006 ballot. It was a reversal of a previous ban on health insurance for domestic partners of city employees which was also approved by voters in 1994.


In 2009, City Manager Marc Ott moved forward with extending those benefits in the event of the death (or termination) of a domestic partner.


Travis County has offered domestic partner benefits for about 16 years. The Austin Independent School District recently approved domestic partner insurance benefits, and is scheduled to begin the program in September of this year. The board of trustees of Pflugerville ISD approved offering benefits for partners of their employees last December.


“We did it because we believe in treating everyone equally…Our job is to take care of the Pflugerville family. And that’s how we see our employees: as family,” trustee Carol Fletcher told the Statesman last fall.


Former State Rep. Glen Maxey, who was the state’s first acknowledged gay legislator, told In Fact Daily that he wasn’t sure the AG opinion was “on point” with most of the programs that had been instituted.


Maxey explained that the city and county programs were Plus One programs that allow employees to put another person on their insurance, while steering clear of recognizing domestic partnerships.


“It might be their mother, brother or someone they live with, but I don’t think any of the programs are being defined as domestic partnerships or civil unions,” said Maxey.


Abbott’s opinion explains that health benefits alone do not constitute a legal status. Rather, it is the series of requirements that must be satisfied to quality as a domestic partner that are the real problem.


But the Pflugerville ISD may not be able to use the Plus One argument since the district’s policy makes it quite clear that those to be covered must provide proof that they are indeed domestic partners.


“The political subdivisions… have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees,” writes Abbott.


In closing, Abbott notes that cases that are currently before the U.S. Supreme Court, could limit the enforceability of that section of the Texas Constitution. Rulings on the Supreme Court cases are anticipated before their current term ends this June.


Though Abbott’s opinion is not a legal ruling, it is an opinion on how Texas courts would rule on the matter. As such, it carries considerable weight for municipalities that want to stay on the right side of the state’s lawyers.


“It is sad that City Council or a school district cannot recognize a civil partnership,” said Maxey.

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