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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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