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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Sept. 20, 1996)
14 ▼ 20. 1006 ▼ just out local news Not without a fight he attorney general’s office is sending a terrible and unmistakable message to gay and lesbian people that, at least in the eyes of the State of Oregon, they The state decides to appeal a recent court order to provide and their families are less than equal citizens. That is tragic,” says Portland attorney health benefits to its employees 9 same-sex partners Carl Kiss, who represents three lesbian couples T who sued the State of Oregon and Oregon Health Sciences University to obtain fringe benefits au by Inga Sorensen tomatically granted to married heterosexuals. should demand clear and consistent leadership.” Multnomah County Circuit Judge Stephen L. should not waste its limited financial resources Peter Cogswell, a spokesman with the attor appealing a ruling that simply called for the equal Gallagher Jr. ruled on Aug. 8 that domestic part ney general’s office, defends the decision to ap treatment of its employees. ners of gay men and lesbians have a constitutional peal. Barry Pack, executive director of Right to right to spousal health benefits. “This ruling could have a substantial impact Privacy, a gay, lesbian and bisexual rights organi In his opinion, thought to be the first of its kind zation, says he and RTP board members, via on state policy, and we feel it makes sense that a in the nation, Gallagher held that the state and circuit court decision dictating public policy should OHSU illegally discriminate against their gay telephone and face-to-face meetings, implored be reviewed by the appellate court,” says Cogswell, the governor and attorney general to let the ruling and lesbian employees by offering insurance ben adding he has “no idea” how much it will cost the efits to heterosexual employees’ spouses, but not stand. state to appeal. to gay and lesbian employees’ domestic partners. “We believe there was a valid interpretation of Dan Kennedy, administrator of the State of Gallagher’s ruling that the attorney general could Gallagher found the state’s benefits policy Oregon’s Human Resources Division, recently have used to decide against an appeal,” he says. violates Oregon’s statute prohibiting employ told The New York Times that domestic partner ment discrimination and state constitutional guar Pack met with the governor recently as part of benefits could be provided for “minimal cost.” an ongoing roundtable between the chief execu- antees of equal privileges and immunities. He ordered the state and OHSU to make their insur ance benefits equally available to the domestic partners of their gay and lesbian employees. The ruling was prompted by a 1992 lawsuit brought by two OHSU nursing professors and a pharmacy supervisor who, joined by their part ners, sued to obtain medical, dental and life insur ance benefits. On Aug. 30, the state attorney general’s office announced it would appeal the ruling. Kiss says he and his clients are extremely disappointed by that decision, which Kiss estimates could keep the case entangled in the courts for at least another , ” year. “If the attorney general’s office had chosen not to appeal, gay and lesbian couples would have immediately been treated equally with respect to spousal benefits,” he says. “Now they will have to wait and continue to be subjected to unequal and discriminatory treatment by the state.” Kiss is also concerned the decision will have a chilling effect on potential anti-discrimination cases involving gay and lesbian citizens. “Gay people who feel they are being discrimi nated against may look at this situation—the time Attorney General Ted Kulongoski commitment, the struggle—and decide they just “It would have been very rare for us not to tive and gay and lesbian citizens. can’t subject themselves to such a time-consum appeal,” conti nues Cogswell, who previously told “This obviously came up,” says Pack. “The ing and emotionally costly experience. I hope it Just Out that while appeals are typical they are governor simply said he didn’t know what Ted doesn’t deter people, but it may.” “not automatic.” [Kulongoski] was going to do.” Kiss and his clients aren’t the only people Cogswell further said the attorney general alone Though Kulongoski and Kitzhaber have been upset about the appeal. Oregon state Rep. Gail had the ability to proceed with an appeal, but viewed as allies of gay and lesbian rights, Pack Shibley, the state’s first openly gay lawmaker, acknowledged a request from the governor was asks, somewhat rhetorically: “Do we settle for sent a letter to both the governor and Attorney “certainly something we would pay attention to.” ni ne out of 10, or should we demand 10 out of 10? General Ted Kulongoski urging them to not ap Last summer Gov. John Kitzhaber directed Our community has been attacked so much and peal Gallagher’s ruling. Kulongoski to submit an amicus brief to the experienced so much rampant discrimination that Shibley maintained it would send a negative nation’s high court outlining Oregon’s opposi we have to draw a line. I think our policymakers message to the public about the state’s commit tion to Amendment 2. have to be held accountable, and I believe we ment to equal rights. She also argued that the state T “If the attorney generals office had chosen not to appeal gay and lesbian couples would have immediately been treated equally with respect to spousal benefits says attorney Carl Kiss. “Now they will have to wait and continue to be subjected to unequal and discriminatory treatment by the state. ” Ironically, Gallagher noted in his opinion his review and re-review of materials submitted by counsel, including the recent Romer vs. Evans opinion, the U.S. Supreme Court ruling that deemed Colorado’s anti-gay Amendment 2 un constitutional. When asked about the apparent incongruity involving state officials’ actions relating to Amend ment 2 and the Gallagher ruling, Cogswell said: “It’s totally different. The Supreme Court essen tially found that Amendment 2 fenced a group of people out of the political process. Gays can still utilize the political process if they want to change the law with regard to marriage.” Following the state’s decision to appeal this case, Cogswell would only say that the attorney general “advised the governor of his decision to appeal.” Just Out called the governor’s office several times to ask whether Kitzhaber recommended the ruling be appealed. None of our calls were re turned by press time. "This isn’t a case of sexual orientation dis crimination,” argues Cogswell. “This has do with marital status. The fact that gays can’t get married is not the issue here. That’s a separate matter.” In his ruling, Gallagher stated that all of the couples “conducted themselves as members of a ‘family.’ Each couple has enjoyed a long-term and committed relationship identical to marriage, with the usual indices of such a union. In all respects, each couple has successfully maintained a loving, functional, cohesive family-type rela tionship which they wish to maintain until parted by death. But for state law prohibiting same-sex marriages, each couple would have at all times.. .gladly and voluntarily exchanged the vows of marriage between themselves to achieve that legal status. Of this, the Court has no doubt.” Despite the setback, Kiss is encouraging gay and lesbian couples seeking spousal benefits to obtain sworn affidavits pertaining to their com mitment to each other and “go through the regular channels” when applying for spousal benefits from an employer. In his ruling, Gallagher highlighted a number of criteria that could be used as sufficient conditions for domestic partnerships. Among the guidelines, the couples must be same sex; cannot be legally married; cannot be related by blood; would be married if the law permitted; must be 18 or older; should share financial accounts and be responsible for each other’s welfare; must have lived together continuously as a family; and have an exclusive, loving and close personal relationship. “Perhaps Gallagher’s ruling will prompt an employer to extend benefits,” says Kiss. “If not, getting affidavits and applying may lay the ground work for future liability.” Three states— New York, Massachusetts and Vermont—extend benefits to domestic partners and have done so without a court mandate. 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