Image provided by: University of Oregon Libraries; Eugene, OR
About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Dec. 18, 1998)
m m news K udos to the C ourt Continued, from the cover HOSPITAL P am per yo ur cat or dog at T he ruling goes even further. It prohibits private employers from discriminating on the basis of sexual orientation in hiring, firing, promotions and pay. It does not, however, require them to provide health benefits. “W ith [the Dec. 9] release of the decision in Tanner vs. O H SU , the Oregon Court of Appeals became the first court in the nation to decide that government is constitutionally required to recognize domestic partnerships,” says Dave Fidanque, executive director of the American Civil Liberties Union of Oregon. "The Court of Appeals has also made it clear that current Oregon law prohibits any employ er— whether public or private— from discrimi nating in the workplace on the basis of sexual orientation. That makes Oregon the eleventh state to prohibit sexual orientation discrimina tion in employment and the first to do so on the basis of state law prohibiting gender discrimina tion.” He continues: “The importance of these... aspects of the decision carry well beyond the actual parties in this case. This decision com pletely changes the legal landscape of employ ment law in Oregon.... For the first time, an appellate court has said that discrimination based on sexual orientation is unconstitutional.” L pOOIgFRONT verative G rocer isa Chickadonz and Christine Tanner, par ents of Jacob and Katie, have created a life and family. “How long have you been together V' asks a reporter at a hastily convened news conference prompted by the ruling. Tanner offers an answer that many people in long-term unions — regardless of sexual orienta tion— can relate to: “Long enough to forget how long it’s been,” she says, evoking laughs from around the room. After activating her powers of recall, she adds, “Fifteen years.” Her partner, who sits a few feet away, smiles. On this day, the women look as mellow as their children. Mellow, or perhaps exhausted. After all, for nearly seven years they, along with four other lesbians— Barbara Limandri, Regenia Phillips, Terrie Lyons and Kathleen Grogan— have been mired in the swampy glop of the judicial system. In 1992, a lawsuit was brought by the group— two O H SU nursing professors and a pharmacy supervisor— who, joined by their respective partners, sued to obtain medical, den tal and life insurance benefits. Portland attorney Carl Kiss, who represents the plaintiffs, argued the state’s policy “basically created a benefits store offering great insurance coverage at bargain basement rates [but] a sign was [placed] in that store’s front window announcing that certain of its products would never be sold” to gay men and lesbians. “As a result, these three couples had to pay more elsewhere for replacement insurance, and the replacement coverage was often not as good as the coverage sold at the benefits store,” he added. He said the policy forced gay and lesbian employees to “drink at a separate water foun tain— and at a water fountain where they had to pay more for a smaller glass of water.” In August 1996, Multnomah County Circuit Judge Stephen L. Gallagher Jr. agreed and ruled that domestic partners of gay men and lesbians have a constitutional right to spousal health benefits. He wrote: "In all respects, each couple has Print and television journalists attended a news conference with the plaintiffs and their attorney after the ruling was announced Dec. 9 successfully maintained a loving, functional, cohesive family-type relationship 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 vol untarily exchanged the vows of marriage between themselves to achieve that legal status. O f this, the Court has no doubt." “As the judge found, each couple’s relation ship is identical to a marriage in all ways within their power to make,” Kiss said after Gallagher’s ruling. “But the state, which says, ‘W e’ll give you benefits if you get married,’ refuses to allow these couples the right to do so.” It’s a Catch-22, said Kiss, that the judge— and ultimately the Court of Appeals— refused to ignore. Gallagher ruled the state and O H SU illegally discriminated against their gay and les bian employees by offering insurance fringe ben efits to heterosexual employees’ spouses, but not to gay and lesbian employees’ domestic partners. He ordered the state and O H SU to make their insurance fringe benefits equally available to the domestic partners of their gay and lesbian employees. Gallagher also found the state’s benefits pol icy violated Oregon’s statute prohibiting employment discrimination and state constitu tional guarantees of equal privileges and immu nities. “The [Oregon] statute says not only that you can’t discriminate on the basis of sex, you also can’t discriminate on the basis of the sex of someone with whom the employee associates, in this case the female partners of the employees,” Kiss told Just Out following the 1996 ruling. He added that Gallagher’s decision, by impli cation, “would prohibit every Oregon employer from discriminating against [gay men and les bians] in any employment decision, including hiring, firing, promotion and pay.” O H SU wound up appealing the decision, but on Dec. 9, 1998, Kiss’s speculation became reality. Like Gallagher, the Court of Appeals found that “benefits are not made available on equal terms. They are made available on terms that, for gay and lesbian couples, are a legal impossibility.” Even more striking, the appellate court con cluded that gay men and lesbians comprise a dis tinct class and have “been and continue to be the subject of adverse social and political stereo typing and prejudice.” “ T ’m giddy,” admits Jean Harris, executive I director of Basic Rights Oregon, a gay and lesbian rights organization. “This feels really good.” She’s giddy for a good reason: For a quarter century, supporters of gay and lesbian rights have unsuccessfully lobbied the Oregon Legisla ture for, at minimum, protections against employment discrimination based on sexual ori entation. “T he Oregon Court of Appeals has accom plished with a single opinion what the Oregon legislative assembly has failed to accomplish during the past 25 years of trying,” says state Rep. George Eighmey, an openly gay lawmaker who leaves office in January due to term limits. “But,” he adds, “all the discussion and work have indeed paid off in that over the years we’ve been able to educate the lawyers who ultimate ly land on the Court of Appeals [about gay issues],” says Eighmey. It appears none of the parties in the case will appeal. However, some conservative state law makers are reportedly making noises about craft ing a voter referral designed to undo the ruling. Harris, meanwhile, says the public over whelmingly supports employment protections for gay men and lesbians. Given that, she says she’d “rather fight the right wing on job discrimination and health benefits” than any other gay-related issue. Katherine Tennyson of Right to Pride, which lobbies the Oregon Legislature on an array of gay rights and HIV-related issues, says she expects her group will have to fight hard against anti-gay forces this upcoming session, which opens in January. (Both the House and Senate are controlled by the GOP.) “W e have a new speaker [conservative Republican Lynn Snodgrass from Boring] who doesn’t seem willing to listen...and some law makers will be inclined to push their ‘special rights’ argument. They can point to this ruling and say, ‘See, gays are discriminated against but they still want more and more,’ ” she says. hat gay men and lesbians will likely now be getting is an opportunity to take their sexual orientation employment discrimination claims to court— a right they have by and large been denied in the past. And all state and local governments must provide spousal benefits to the domestic part ners of their employees; while the state and O H SU have already begun doing so, most cities and county governments have not. All this spells “a lot of work” says the A C L U ’s Fidanque, who notes the case has 30 days to clear an appeal, and legislative oppo nents lurk just around the comer. Not only that, the Oregon Bureau of Labor and Industries, the state agency that investigates discrimination claims, will need to come up with administrative rules to ccpe with the decision. “T he ACLU , along with groups like BRO and RTP, will be monitoring how this is all han dled,” Fidanque says, adding, “There’s plenty of flux tight now.” W