Benefits Advocates Criticize Decision
Durham
Herald-Sun, March 16, 2003
2828 Pickett Road, Durham, NC 27705
Fax: 919-419-6878, Email: letters@heraldsun.com
By Claudia Assis, The Herald-Sun, cassis@heraldsun.com
DURHAM—The nearly 200-year-old
state law Durham County evoked to block health benefits to employees’
domestic partners is a “smoke screen” for lack of political will, said
critics of the county’s position.
Employees for Domestic Partners Benefits has requested a
benefit policy similar to one adopted by the city, which began enrolling city
employees’ heterosexual and homosexual domestic partners in its health and
dental plans on Jan. 1.
But earlier this week, County Manager Mike Ruffin told
employees the county could not follow suit because it is against the law in
North Carolina for a man and woman to live together as a couple.
Since the county commissioners swear to uphold state
laws, County Attorney Chuck Kitchen has advised them they would be violating
their oath of office if they voted for domestic-partner benefits, Ruffin has
said.
The 1805 fornication and adultery law reads, “if any
man and woman, not being married to each other, shall lewdly and lasciviously
associate, bed and cohabit together, they shall be guilty of a Class 2
misdemeanor.”
According to the Administrative Office of the Courts,
eight charges based upon the fornication and adultery law were brought up in
North Carolina courts in 2002, resulting in five convictions.
It was not immediately clear Friday which counties the
convictions occurred in, or whether the 1805 statute had been the sole basis
for conviction.
But for Jo Wyrick, executive director of Equality NC, a
gay rights advocacy group, the county is hiding behind an antiquated law to
refuse to discuss the real issue, which she believes is discrimination against
unmarried same-sex and heterosexual couples.
“I don’t think the 1805 law is relevant in this
situation,” Wyrick said. “It is just a gag order . the legal argument is
really a thin smoke screen.”
Employees for Domestic Partners Benefits will hold a
press conference Thursday and bring in local lawyers who present a different
legal view from that of Durham County, said Nancy Blood, a Durham County
librarian and the group’s spokeswoman.
Attorney Sherri Zann Rosenthal, who is also an assistant
city attorney, said the focus of the news conference is on equity and how to
bring together more people from the community in support of benefits.
“We need to make sure the commissioners realize that
there is a different way of looking at things,” she said.
It is “quite a stretch” to use an 1805 law in order
to deny the benefit, Rosenthal added, emphasizing that she was speaking
personally, and not as a city employee.
Commissioners Chairwoman Ellen Reckhow said she
sympathized with the idea, but the commissioners needed to be cautious.
“[The statute] has taken the wind out of the sails in
terms of moving forward,” Reckhow said Thursday. “I feel that, at this
point, we need to probably abide by the advice of our county attorney . In
talking to individual commissioners, I’m not getting a sense that they want
to proceed.”
Commissioner Mary Jacobs said she would have to respect
the legal opinion, regardless of her own feelings about the issue.
Since Jan. 1, 14 city employees have requested benefits
for their domestic partners, said the city’s Human Resources Benefits
Manager Michael McGinnis.
Insurance providers Cigna and Wellpath did not charge
additional costs for including domestic partners in the city’s group
policies, he said.
The city of Durham became only the third municipality in
North Carolina to offer health and dental benefits to employees’ domestic
partners. Carrboro and Chapel Hill are the other two, and both cities have won
lawsuits challenging the benefits.
County Attorney Kitchen has told county commissioners
that counties are “linked in closer fashion to the state than city
governments,” Reckhow said.
“[Cities] have a little bit more latitude than we
have,” she said.
County employees have made similar requests over the past
few years, but have never made a formal recommendation to the commissioners.
Chapel Hill and Carrboro have extended domestic partner
benefits since the mid-1990s. In Chapel Hill, the policy was adopted in 1995,
and challenged the following year, Town Attorney Ralph Karpinos said.
The lawsuit was thrown out after plaintiffs wanted to
remain anonymous, but in 1999, about 10 Chapel Hill and Carrboro residents
filed another lawsuit, saying the towns had no legal authority to extend the
benefits, Karpinos said. But a Superior Court judge ruled in favor of the
towns and no appeals or other lawsuits have been filed since, he said.
The City of Durham was aware of the 1805 law, but it was
weighing more the challenges against the Chapel Hill and Carrboro domestic
partner policies, Assistant City Attorney Patrick Baker said.
From a legal viewpoint, it was up to the City Council
whether to grant it, he said.
“We just didn’t see anything that prohibited us from
offering the benefits . based on a case already tested in North Carolina and
upheld at the Superior Court level,” Baker said.
The city interpretation was that the law referred to
sexual acts between a single man and woman, and with its policy, the city is
not requiring employees to engage in any unlawful act, but just some evidence
that a committed relationship exists, Baker said.
To extend insurance coverage to their domestic partners,
city employees are required to sign affidavits and provide documentation that
the domestic-partner relationship has existed for at least six months.
Documents accepted include a health care power of
attorney, a joint mortgage or lease agreement and proof of other insurance
coverage, among others.
Durham’s largest employers, Duke University and Duke
University Health System, have offered benefits to same-sex partners since
July 1995. Unmarried heterosexual partners do not get those benefits because
marriage is an option for them, a spokesman has said.
Under a policy similar to the city’s, Duke employees
have to sign affidavits and show documents that prove shared financial
responsibilities.
IBM, which has about 1,350 employees in Research Triangle
Park, has offered domestic partner benefits to both heterosexual and same-sex
couples since 1996, a spokeswoman said. Of its 145,000 employees in the United
States, 600 requested domestic-partner benefits in 2002.
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