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Hawaii joins states allowing same-sex civil unions

February 18th, 2011  |  Sheryl Allenson

Same-sex couples made further inroads to receiving benefits commensurate to opposite-sex married couples when Hawaii’s legislature joined six other states Wednesday, approving same-sex civil unions. Hawaii’s governor Neil Abercrombie is expected to sign S.B. 232, “Relating to Civil Unions” by February 26, 2011. Five other states, plus the District of Columbia, permit same-sex marriage. Once the legislation becomes law, same-sex couples in Hawaii will be afforded the same rights, benefits and protections provided to married couples under state law.

Hawaii followed closely behind Illinois in passing the bill.  On January 31, 2011, Illinois Governor Pat Quinn signed S.B. 1716, the “Illinois Religious Freedom Protection and Civil Union Act.” Under that new law, both heterosexual and same-sex couples will be allowed to enter into a civil union. Once the new law takes effect, couples in Illinois will enjoy rights such as pension benefits, parental and adoption rights, automatic hospital visitation rights and the ability to make emergency medical decisions for partners; ability to share a room in a nursing home; adoption and parental rights; inheritance rights; and the right to dispose of a partner’s remains. While the Illinois law goes into effect June 1, 2011, the Hawaiian law is expected to take effect January 1, 2012.  Meanwhile, in Washington State, two legislators introduced legislation on Valentine’s Day to expand the domestic partnership rights already present in the state to allow for same-sex marriage.

Among other rights, accessibility to family healthcare coverage is often at stake when a state considers legislation that promotes marriage equality. While employers can—and  some do—provide family medical benefits for gay and lesbian couples, without the protection of law many employees are left to fend for themselves, in an attempt to try to obtain family healthcare benefits. Even where employees are lucky enough to have an employer who does provide benefits, they are still at a disadvantage over their heterosexual peers in states without equality laws, because those benefits may be subject to state tax on the value of the benefits.  Furthermore, in states where no protection is available, employees may find themselves subject to discrimination in the face of benefit cuts. For example, the Ninth Circuit recently heard oral arguments in the case of Collins v Brewer after the State of Arizona brought an appeal of a district court ruling entering an injunction to stop the state from enforcing a statute that would terminate access to family healthcare benefits for gay and lesbian state workers, while allowing heterosexual workers to maintain benefits (Collins v Brewer, July 23, 2010, Sedwick, J).  While the district court dismissed the state employees’ due process claim, it found that the employees properly stated a claim for equal protection. Thus, the court enjoined the state from enforcing a section of a state statute, requiring them to maintain family health coverage for gay and lesbian employees who “demonstrate[ed] sufficient indicia of commitment and interdependence.”

The Arizona state law at issue dealt with authorized funds for health and accident insurance for state employees. In August, 2009, the state legislature transmitted a bill that amended that state law, known as Sec. O. It provided that  “[f]or the purposes of this section, beginning October 1, 2009, ‘dependent’ means a spouse under the laws of this state, a child who is under nineteen years of age or a child who is under twenty-three years of age and who is a full-time student.” Sec. O eliminates family coverage for non-spouse domestic partners, whether they are of the same or different sex. While heterosexual domestic partners may continue to receive subsidized family health coverage by getting married,  same-sex couples are precluded from obtaining coverage because the amendment limits coverage to “spouses” under the laws of the state, and in Arizona, same sex marriage is both constitutionally prohibited, and may not be recognized if entered into in another state. Thus, the district court found that, contrary to the state’s argument, the state statute disproportionally burdens same-sex domestic partners. While not discriminatory on its face, as applied Sec. O, “unquestionably imposes different treatment on the basis of sexual orientation,” and “makes benefits available on terms that are a legal impossibility for gay and lesbian couples.”

Applying similar reasoning, a New York Appellate Division Court recently ruled that it was not discriminatory to allow same-sex domestic partners access to benefits, but not heterosexual domestic partners. Contrary to the findings of the Westchester County Human Rights Commission, the court held that a New York school district did not unlawfully discriminate against a teacher based on her sexual orientation and marital status when it denied domestic partner health care benefits to her opposite-sex partner (Matter of Putnam/N Westchester Bd of Coop Educ Serv v Westchester County Human Rights Comm’n, February 8, 2011, Skelos, P) While the employee failed to demonstrate even a prima face case of discrimination based on marital status, she did meet that burden with respect to her claim of discrimination based upon sexual orientation, the court held.  While there was an inference of discrimination because health care benefits were in fact granted to same-sex domestic partners and denied to her and her opposite-sex domestic partner the school district stated a legitimate, nondiscriminatory reason for extending domestic partner benefits only to same sex couples. Specifically, the district argued that the unlike opposite-sex couples, same-sex domestic partners are not entitled to become lawfully married in the state and, thus, could not obtain spousal benefits. In fact, the district’s domestic partner policy expressly states that it may be rescinded in the event that same-sex marriage becomes legal in the member’s state of residence.

While employee rights are threatened in other arenas, gay and lesbian employees can be hopeful that their rights to family healthcare are brighter, as Hawaii joins the growing arena of states to approve civil unions. Until other states do so as well, hopefully the Ninth Circuit will find rule in favor of parity of benefits between same-sex and heterosexual couples, as it decides Collins v. Brewer.