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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