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Judge says lesbian plaintiffs9partnerships are
“identical to marriage99
66 I ’m available when you are! ”
Office
274-1500
by Inga Sorensen
each couple would have at all times., .gladly and
isa Chickadonz and Christine Tanner
voluntarily exchanged the vows of marriage be
have “enjoyed a long-term and com
tween themselves to achieve that legal status. Of
mitted relationship identical to mar
this, the Court has no doubt.”
riage,” therefore the lesbian couple
“As the judge found, each couple’s relation
should not be denied spousal health
ship is identical to a marriage in all ways within
benefits automatically granted to heterosexual
their power to make,” says Kiss. “But the state,
married couples. So says Multnomah County
which says, ‘We’ll give you benefits if you get
Circuit Judge Stephen L. Gallagher Jr., who re
married,’ refuses to allow these couples the right
cently ruled that domestic partners of gay men
to do so.”
and lesbians have a constitutional right to spousal
It’s a Catch-22, says Kiss, that the judge re
health benefits.
fused to ignore.
In his Aug. 8 opinion, thought to be the first of
“This is really a path-paving ruling. It is the first
its kind in the nation, Gallagher held that the State
court decision that I’m aware of in which a judge
of Oregon and Oregon Health Sciences University
has ordered a government employer to provide
illegally discriminate against their gay and lesbian
fringe benefits to the domestic partners of lesbian '
employees by offering insurance fringe benefits to
and gay employees,” says Jon Davidson of the
heterosexual employees’ spouses, but not to gay
Lambda Legal Defense and Education Fund, a
and lesbian employees’ domestic partners.
national gay and lesbian legal organization.
He ordered the state and OHSU to make their
Davidson says similar cases have been brought
insurance fringe benefits equally available to the
in the past, but have been unsuccessful or settled
domestic partners of their gay and lesbian em
out of court. Cities such as Philadelphia and San
ployees.
Francisco have offered health benefits to domes
The ruling was prompted by a 1992 lawsuit
tic partners of lesbian and gay city employees, but
brought by two OHSU nursing professors and a
no court order was involved and the benefits did
pharmacy supervisor who, joined by their respec
not extend to state employees. Three states—
tive partners, sued to obtain medical, dental and
New York, Massachusetts and Vermont— extend
life insurance benefits.
benefits to domestic partners, but again, have
Gallagher found the state’s benefits policy
done so without a court mandate.
violates Oregon’s statute prohibiting employ
Kiss and others say the experience of the
ment discrimination and state constitutional guar
growing number of public and private employers
antees of equal privileges and immunities.
who offer dom estic
“The [Oregon] stat
partnership benefits
ute says not only that
“It is beyond debate that
coverage
“shows that no
you can’t discriminate
invidious and virulent dis
material additional ex
on the basis of sex, you
pense
or administrative
also can’t discriminate
crimination
has
been
and
is
inconvenience results.”
on the basis of the sex of
‘The judge showed
someone with whom the
directed toward and suffered
that he was very
employee associates, in
by
the
lesbian
and
gay
men
thoughtful and respect
this case the female part
ful of these families,”
ners of the employees,” communities in this state and
says
Davidson. “He also
says Portland attorney
made it clear that these
Carl Kiss, who repre elsewhere, ” Gallagher writes.
couples
would get ben
sents the three lesbian
efits if they could marry, but were prohibited by
couples. He believes Gallagher’s decision, by
the state from doing so.”
implication, “would prohibit every Oregon em
In his opinion, Gallagher noted his review and
ployer from discriminating against [gay men and
re-review of materials submitted by counsel, in
lesbians] in any employment decision, including
cluding the recent Romer vs. Evans opinion, a
hiring, firing, promotion and pay.”
U. S. Supreme Court ruling that deemed Colorado’s
“It is beyond debate that invidious and viru
anti-gay Amendment 2 unconstitutional.
lent discrimination has been and is directed to
Davidson says the ongoing public dialogue
ward and suffered by the lesbian and gay men
surrounding gay and lesbian issues probably
communities in this state, and elsewhere,”
helped inform the judge’s ruling, as well as the
Gallagher writes.
Romer vs. Evans ruling.
“So pernicious and pervasive has this odious
“I think that ruling signaled to a number of
activity become that it is incumbent upon the
lower court judges that they should be more
judiciary to scrutinize, carefully and thoroughly,
receptive to hearing claims of discrimination by
legislation and administrative rules which osten
gays and lesbians,” he says.
sibly are facially balanced or neutral, and hence
The state attorney general has 30 days from
appear to comport with constitutional mandates,
the date the ruling was issued to decide whether to
but which, in fact and in practical effect, merely
appeal the case. Peter Cogswell, a spokesman
disguise the very discriminatory practices consti
with the attorney general’s office, says the case is
tutional considerations proscribe,” he adds. “Con
under review. While he says appeals are typical,
stitutional law may mandate, like it or not, that
he adds they are “not automatic.”
customs change along with an evolving social
order.”
Cogswell further says the attorney general
alone “has the ability” to proceed with an appeal,
Gallagher stated that all of the couples “con
but acknowledges a request from the governor “is
ducted themselves as members of a ‘family.’...
certainly something we would pay attention to.”
[E]ach couple has enjoyed a long-term and com
Gov. John Kitzhaber asked Attorney General
mitted relationship identical to marriage, with the
Ted Kulongoski to submit an amicus brief to the
usual indices of such a union. In all respects, each
nation’s high court outlining Oregon’s opposi
couple has successfully maintained a loving, func
tion to Amendment 2. Both men are considered
tional, cohesive family-type relationship which
allies of the gay and lesbian community. The
they wish to maintain until parted by death. But
for state law prohibiting same-sex marriages,
governor was not available for comment.
L
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