Wednesday, August 26, 2009

City of El Paso adopts plan to extend health insurance benefits to same-sex partners of city employees: Will ADF file another lawsuit?

08/26/09 / Gay Marriage Watch:

El Paso's city council has approved extension of health insurance benefits to same-sex partners of city employees. "The city estimates only a few dozen employees will be affected by the policy change."

The Alliance Defense Fund represents plaintiffs seeking to overturn domestic registries in Wisconsin and Cleveland. Like Wisconsin and Ohio, Texas has a super-DOMA amendment that bans same-sex marriage and recognition of same-sex relationships that resemble marriage:
Texas Constitution Art. 1, §32:

(a) Marriage in this state shall consist only of the union of one man and one woman

(b) This state or a political subdivision of this state may not create or recognize any legal status identical or simlar to marriage. [bold added]

The city council addressed whether the council's proposal would violate the state's super-DOMA amendment. A council member said that she would seek clarification from the city attorney. Laura Gordon, of the city attorney's office, told the council,

The constitutional amendment only talks about defining marriage. This does not define marriage or a relationship, the city can chose to extend benefits to anybody it likes.

Some citizens at the council meeting are bound to have a different opinion. They include Larry Brown, a local pastor, who urged the council to vote against "sexual immorality." Another participant compared "homosexuality to pedophilia." The Alliance Defense Fund (ADF) will have little difficulty engaging plaintiffs in El Paso to sue the city over its program if plaintiffs seeks its assistance.

The definition of a "domestic partner" might affect the odds of a lawsuit's success. The City's definition makes its program vulnerable to the same kind of legal challenge that ADF has pursued in Wisconsin and Cleveland:

An individual who lives in the same household and shares the common resources of life in a close, personal, intimate relationship with a City employee if, under Texas law, the individual would not be prevented from marrying the employee on account of age, consanguinity or prior undissolved marriage to another. A domestic partner may be of the same or opposite gender as the employee. The City of El Paso Health Benefit Plan shall establish the appropriate forms and determine the appropriate documentation that may be presented to establish the relationship. (El Paso Office of Management and Budget, FY2010 City Manager's Proposed Budget)

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