Courier News Online, December 17, 2007
By JARED KALTWASSER
STAFF WRITER

DUNELLEN -- Kenny Polnasek and Michael Kellison exchanged vows in a private ceremony 17 years ago, and since that time they've always considered themselves to be married, even though the state they lived in didn't consider that designation -- "marriage" -- to be legally valid.

But in October 2006, the state Supreme Court ordered the state Legislature to grant homosexual couples the same rights it extends to heterosexual married couples. The resulting legislation, a bill creating civil unions, took effect in February.

"I'm a Jersey boy, born and raised, and when it (civil unions) came here I was like, 'Yeah, let's do it,'" said Polnasek, who said he had been holding out for gay marriage up until that time.

So on Sept. 29, their 17th anniversary, Polnasek and Kellison exchanged vows again, this time at their civil union ceremony.

But even though the state now considers their union the equivalent of marriage, it didn't take long for Polnasek and Kellison to find out that a civil union license isn't necessarily a ticket to equality.

A change in status

The problems started when Polnasek, now retired after 33 years as a program analyst for Johnson & Johnson, most recently at its Skillman offices, tried to update his retirement benefits profile to reflect his change in status.

"About a month after our civil union, I went into the system, the Johnson & Johnson benefits system, and the very first place it takes you to is your status page," Polnasek said.

Until that time, Polnasek had been listed as single. He scrolled through the status list to find his options were "married" or "domestic partnership." Polnasek and Kellison don't have a domestic partnership -- a weaker precursor to civil unions -- so Polnasek clicked "married".

"The first thing it told me was 'Congratulations on your marriage,' and then 'What is the gender of your spouse?'," he said.

When Polnasek clicked "male," the program informed him that the company does not recognize civil unions. A phone call confirmed that stance, forcing Polnasek to list his relationship to his beneficiary, Kellison, as "other."

"It kind of hurt," he said. "I'm not single, and he's not my 'other.'"

Kellison had a similar experience at Somerset Medical Center, where he has worked as an X-ray technologist for nearly eight years.

Though Polnasek has medical coverage through Johnson & Johnson, the couple wanted him to be on Kellison's plan, because they said it would cost less and provide better coverage.

When the company's open insurance enrollment period began, Kellison started filling out the paperwork to add Polnasek to his coverage.

"It didn't have a place for partners or civil unions, so I checked off 'spouse' and wrote Kenny's name," Kellison said.

When he went to turn the form in, he was told, "I think they're going to have to talk to you. We're a privately insured institution, so we don't have to offer benefits to civil union partners," Kellison recalled.

That kind of response was not what Kellison and Polnasek expected when they signed up for their civil union.

"The problem is that nobody seems to have the perception that this is a law we need to obey," Kellison said. "They make it like a separate-but-equal status, and I think that's half the problem."

A list of complaints

Kellison and Polnasek are not alone.

Steven Goldstein, chairman of the Montclair-based gay rights group Garden State Equality, said 414 couples with civil unions have contacted his office with complaints about their employers or other institutions failing to recognize their civil unions.

As of Dec. 7, 2,181 New Jersey couples have received civil unions, according to the New Jersey Department of Health and Senior Services.

"The civil union law is a disaster that needs to be thrown out and replaced," Goldstein said.

Much of the problem stems from a disconnect between state and federal law.

Companies that contract out for employee benefits are subject to state law, but companies large enough to be self-insured are governed by federal law, Goldstein said.

And while New Jersey law now dictates that civil unions are equal to marriage, federal law defines marriage as strictly the union of a man and a woman, said Denise Keyser, a partner in the labor and employment group at the law firm of Ballard, Spahr, Andrews and Ingersoll LLP in Voorhees.

"Back when the Republicans controlled Congress and Bill Clinton was president, they passed and he signed the Defense of Marriage Act, or DOMA," she said. "And that makes it clear for federal law purposes that marriage can only be a marriage between a man and a woman."

For example, she said, the federal Family and Medical Leave Act doesn't apply to same-sex couples, even if they have a civil union, though the state's family leave act would.

But David Buckel, senior counsel at Lambda Legal, a New York law firm that fights for equal treatment of gays, says employers who draw a draw a line between straight and gay employees are discriminating.

"If they're self-insured, they're so big they can make their own health insurance. Their argument is that they can make their own rules," Buckel said.

"They tend to say their hands are tied because of federal law, and that's just dead wrong," Buckel said. "Even if their argument is right, they can elect to do otherwise."

Goldstein believes that if New Jersey enacted a gay marriage law, self-insured companies wouldn't try to hide behind the federal law that governs employee benefits, known as the Employee Retirement and Income Security Act, or ERISA.

"Massachusetts is also governed by ERISA, and in Massachusetts gay couples can actually marry, that's the one state," he said. "Employers in Massachusetts are choosing not to invoke ERISA. ERISA is hardly a problem in Massachusetts."

But Keyser isn't so sure that would change anything.

"That would not change the issue, because the issue is that federal law defines marriage to be a union between a man and a woman, and so it doesn't matter what New Jersey defines marriage to be," she said.

Policy change

As the debate goes on, private companies continue to establish their own policies -- and change them.

Last week, Kellison's employer, Somerset Medical Center, announced it will change its policy on employee benefits. Starting Jan. 1, the hospital will extend benefits to the civil union partners of its employees.

"Somerset Medical Center is self-insured, therefore we are not legally required to extend health-care coverage that is self-insured to any of our employees," said Vicky Allen, assistant vice president for marketing and public relations at the hospital in an e-mail. "However, as a health-care provider, we feel that it is the right thing to do for all of our employees and will extend their benefits beyond our legal requirement to do so."

The hospital said that because it had recently underwent a change in its health-care insurance carrier, it was planning to start providing benefits to civil union partners in 2009.

"However, several employees had already expressed an interest in having civil union benefits for 2008," Allen said. "We began investigating our options with the new insurance carrier and did some benchmarking with other hospitals. We concluded that offering civil union benefits for 2008 was the right thing to do for our employees and for the medical center."

As for Johnson & Johnson, spokesman Bill Price said the company does not recognize civil unions, meaning it does not provide medical benefits to civil union partners. But he said that doesn't affect pension benefits, because a retiree can name anyone as his or her beneficiary, even if they must list that beneficiary as an "other".

"So whether it's civil union, domestic partner, or other, he's eligible to name anyone," Price said.

Price said he could not say whether the company would start allowing retirees to list their partners as civil union partners.

"Certainly, we continually look at whether there are needs to update our programs and classifications," he said.

In November, Polnasek and Kellison filed a formal complaint against Johnson & Johnson with the state Attorney General's Office. Lee Moore, a spokesman for the office, said he could not comment on the specific case because it is still under investigation. But he said four such complaints -- alleging discrimination based on civil union status involving employee benefits or pension plans -- have been filed with his office.

"Typically, if there is a finding of probable cause, eventually in any case there is an effort made to mediate some sort of resolution without a full-blown hearing," Moore said.

If mediation fails, Moore said, the cases are generally referred to an administrative law judge.

Keyser, who represents large and small companies in New Jersey, Delaware and Pennsylvania, said the enactment of the civil union law has not affected her practice much. She said the civil union law is a success from a business standpoint in that it does what it set out to do -- force entities subject to state law to recognize civil unions as equal to marriages.

But Buckel said nixing the idea of separate institutions for heterosexual and homosexual couples is the only way for the state to truly grant equality.

"I think its just plain bias that it comes down to, and the problem in New Jersey is that when the government itself creates a separate legal status to a minority group, it's sending a message -- if someone's biased, it's sending a message that its okay."

But while the government, the business community and society struggle to find a term for their relationship, and to decide what the legal implications of that term are, Kellison and Polnasek say that in their minds, the issue is cut and dry.

"We've been calling ourselves married for the last 17 years," Kellison said. "What's in a name isn't that important to us. It makes all the difference to corporations. To us, it's an equivalency thing. We want the government to say to us there are equal terms for all."