With same-sex marriage now available, state to end benefits for domestic partners

www.baltimoresun.com/features/gay-lesbian/bs-md-domestic-benefits-20130502,0,2314573.story

baltimoresun.com

With same-sex marriage now available, state to end benefits for domestic partners

State says change is needed to avoid lawsuits

By Michael Dresser and Carrie Wells, The Baltimore Sun

8:06 AM EDT, May 3, 2013

The O'Malley administration has notified state employees in same-sex relationships that they won't be able to include domestic partners in their health insurance anymore.

If they want coverage, they'll have to get married.

The policy change is the result of the new Maryland law allowing same-sex marriage, which took effect Jan. 1. The thinking is that offering health coverage to an unmarried same-sex partner doesn't make sense anymore, officials said, particularly since an unmarried heterosexual partner doesn't have the same right.

But the move by the administration — which introduced domestic partner benefits in 2009 and championed marriage equality last year — has drawn polite dissent from some of the administration's staunchest allies.

"It's really not the most equitable thing to be doing right now," said Carrie Evans, executive director of the gay and lesbian rights group Equality Maryland.

But the administration — backed by at least one prominent lesbian lawmaker — contends the decision is a matter of simple fairness.

A spokeswoman for Gov. Martin O'Malley said he extended domestic partnership status to same-sex couples, but not unmarried straight couples, precisely because people of the same gender were not permitted to marry.

Now that same-sex couples can marry, spokeswoman Raquel Guillory said, that reason no longer exists.

If Maryland continued to offer same-sex couples two paths to benefits and opposite-sex couples only one, Guillory said, the state could face lawsuits. The administration has received legal advice that trying to maintain the status quo could open the state to a challenge from a straight couple under the equal protection clause of the Constitution.

State workers who currently have their domestic partners covered have been told they will lose that eligibility as of next Jan. 1 — unless, Guillory said, they marry.

She added that the date could be subject to change.

Employees in same-sex relationships who don't now have the domestic partner coverage will not be allowed to apply for it, she said.

According to the state, the decision affects relatively few of its employees — fewer than 300, including retirees. But it illustrates the types of adjustments Maryland and other states that allow same-sex marriage must make to bring laws and policies in line with the new reality.

Not every state that recognizes same-sex marriage is taking the same tack.

In Washington state, where voters approved same-sex marriage the same day Marylanders did, domestic partners of state employees will continue to get health benefits. Lisa Harper, a spokeswoman for Washington Gov. Jay Inslee, said the state will automatically consider those employees married — for benefits purposes — starting in June.

Spokeswomen for two human resources professional associations say the private sector appears to be taking a wait-and-see approach as definitions of marriage change.

When Melissa Sharp of the organization World of Work asked private firms if they were changing their health benefits for domestic partners in states with same-sex marriage, they all said no. Kate Kennedy of the Society for Human Resources Management said she was unaware of any changes stemming from new marriage laws.

Evans, of Equality Maryland, said she doesn't see the O'Malley administration's action as hostile but as premature. She said officials didn't consult her group before promulgating the policy — but she wishes they had.

"We would like to see domestic partnership benefits on the books for same-sex couples until there's a level playing field with regard to marriage," she said.

While Maryland extends marriage rights and workplace discrimination protections to gays and lesbians, Evans said, the federal government and most other states are not as accommodating.

A major barrier to equality for gays and lesbians, Evans said, is the federal Defense of Marriage Act. That Clinton-era law defines marriage as the union of one man and one woman for the purpose of federal tax status and U.S. government benefits. It also said states do not have to recognize same-sex marriages sanctioned by other states.

DOMA, as the law is known, is now before the Supreme Court, and some believe it could be struck down by the time the high court ends its term in June.

But even if DOMA falls, Evans said, there are other reasons Maryland should keep domestic partner benefits.

"In other states, we are not truly equal yet," she said.

Evans, a lawyer, said 29 states have no laws preventing employers from discriminating against workers on the basis of sexual orientation. For people whose professional careers require them to move to more conservative states, she said, getting married under Maryland law could be risky.

"If I'm taking a new job in Kansas and I'm filling out a W-4 and I have to put marital status, I'm going to have to put 'married.' " She said. "That's going to trigger: 'Who is your spouse?' "

Differences in divorce laws from state to state also present a challenge, Evans said. Same-sex partners who wed here and move to another state could find themselves trapped in a failed marriage unless they move back to Maryland, which grants divorce to in-state residents only.

As long as such inequalities exist, she said, it is unlikely the courts would uphold a challenge to the state's existing domestic partner rules.

Evans said she's not saying gays and lesbians should be able to claim domestic partner status forever.

"There is absolutely going to be a time when we can do away with domestic partner benefits," she said.

But Del. Maggie McIntosh, an openly gay member of the General Assembly, said the time is now. McIntosh, a Baltimore Democrat who chairs a powerful House committee, said the administration is doing the right thing.

"In Maryland, we have a level playing field," she said. "Because we fought for equality, we got equality, we should now be embracing equality."

McIntosh, who married earlier this year under the new law, said she doubts many same-sex couples in domestic partnerships will rush to the courthouse just because of the policy change.

"Marrying somebody for their health insurance is a little bit of the wrong motivation," she said.