Brian T. Thompson 2014-04-28 07:19:13
A recent attorney general opinion leaves open the possibility for same-sex benefits in the public sector. The recent U.S. Supreme Court cases of United States v. Windsor and Hollingsworth v. Perry have substantially transformed the legal rights of LGBT individuals at the federal level and in California, respectively. In Texas, the effect of these decisions will be much more muted, particularly because of the amendment to the Texas Constitution that currently prohibits marriage between same-sex couples.' Nevertheless, a recent opinion by Attorney General Greg Abbott regarding the effect of this amendment on the ability of municipalities and other public entities to provide benefits to the same-sex partners of their employees shows that Texas is not immune to legal battles in this fast-changing area ofthe law. Introduction In October 2012, the Pflugerville Independent School District announced plans to become the first Texas school district to offer benefits to same-sex and opposite sex domestic partners of its employees. The district joined several Texas political subdivisions in offering these benefits, including the cities of Austin, El Paso, Fort Worth, San Antonio, and Dallas. Despite vigorous protests from some community members, the Pflugerville school board voted 5-1 to keep the benefits plan.2 Pflugerville ISD’s decision ignited a firestorm of debate on the legality of Texas political subdivisions offering benefits to the same-sex partners of public employees in light of the Texas Constitution’s prohibition of same-sex marriage. In his recently issued Opinion GA-1003, Abbott concluded that Article 1, Section 32 of the Texas Constitution prohibits political subdivisions in Texas from creating domestic partnerships and offering public benefits based on this status.3 Article 1, Section 32, which was added to the Texas Constitution by referendum in 2005, states that “the state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” While the attorney general’s opinion is not binding in Texas courts,4 it caused at least one political subdivision, the Austin Independent School District, to initially retreat from its plans to offer benefits to the same-sex partners of its employees (continue reading for details on the plan that Austin ISD eventually implemented).5 But on closer examination, the attorney general’s opinion indicates that Texas political subdivisions may offer a narrowly tailored benefits plan to the same-sex partners of their employees without violating the constitution. This article reviews Opinion GA-1003 and opinions from Michigan, which has a provision similar to Article 1, Section 32, and suggests a framework for political subdivisions to follow in offering same-sex partner benefits to their employees. In conclusion, the article highlights the “plus one” plan created by Austin ISD, which should survive a challenge under Article 1, Section 32. A review of Attorney General Opinion GA-1003 The attorney general’s opinion was spurred by a 2012 request for an opinion regarding “whether the Texas Constitution precludes the ability of local political subdivisions from recognizing domestic partnerships by granting benefits previously only available to married couples.”6 In his request, the requestor noted that El Paso County, Travis County, the City of Fort Worth, the City of Austin, the City of San Antonio, and the City of El Paso constituted only a sample of the various Texas political subdivisions that offer some form of health insurance benefits to the domestic partners of their employees and that Pflugerville ISD had recently become the first Texas school district to offer such benefits.7 The requestor’s letter made clear his belief that such plans violated Article 1, Section 32. The language of Article 1, Section 32 dictates that in evaluating whether public employee benefits plans violate the provision, the ultimate question is whether the plans create or recognize a legal status identical or similar to marriage. In the attorney general’s opinion, Abbott divided his analysis of this question into two parts. First, he asked whether the political subdivisions had created or recognized a “legal status.” Then, he examined whether that status is “identical or similar to marriage.” This framework is consistent with that used by courts and attorneys general in other states with provisions similar to the Texas Constitution’s amendment.8 As to the first point, Abbott determined that political subdivisions had created or recognized a “legal status” by establishing “eligibility criteria and requiring affidavits and other legal documentation to demonstrate applicants’ eligibility to be considered domestic partners.”9 The attorney general noted that each of the political subdivisions offering same-sex benefits in Texas required applicants to “execute an affidavit swearing that they satisfy the political subdivision’s domestic partnership criteria” and “provide supporting documentation as necessary.”10 By doing so, the political subdivisions had created a legal status not otherwise recognized under Texas law.11 By providing benefits based on this legal status, the political subdivisions also had “recognized” such status for purposes of Article 1, Section 32.12 Having found that the benefits plans created or recognized a legal status, the attorney general then asked whether the legal status created by these plans is “identical or similar to marriage” by comparing the criteria for qualifying for the plan to the criteria for marriage under Texas law.13 In this comparison, Abbott observed that all the political subdivisions that had established domestic partnerships had used criteria “usually associated with marriage.” In particular, the plans required that applicants for a domestic partnership “attest that prior undissolved marriages, consanguinity, and age would not operate to preclude them from marrying under state law.”14 Therefore, he concluded that a court, using the ordinary definition of “similar,” would likely find that domestic partnerships are similar to marriage under Article 1, Section 32.15 Finding that the benefits plans both created a legal status and that the status was similar to marriage led the attorney general to determine that “Article 1, § 32 of the Texas Constitution prohibits political subdivisions from creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it.”16 Abbott sought to reconcile his conclusion with the legislative history of Article 1, Section 32. During the Legislature’s debate on the bill that eventually became the constitutional amendment, the bill’s author, former Rep. Warren Chisum, stated the following: This amendment to the constitution would not negate or set aside any contract that an employer wanted to make with his employees.... It does not change what a city may do. It just says that they won’t recognize anything that creates the same legal status identical to or similar to marriage. It does not stop them providing health benefits to same-sex partners. It is not intended to do that.17 The attorney general interpreted this statement to mean that Chisum did not believe that Article 1, Section 32 addressed whether the state or a political subdivision can provide health benefits to the unmarried partner of an employee as long as the state or subdivision did not create or recognize any legal status identical or similar to marriage.18 But, from Abbott’s perspective, in the case of the benefits plans under review, the political subdivisions had not just provided health benefits to the unmarried partners of their employees; rather, they had created and recognized the status of a domestic partnership similar to marriage.19 This suggests that the attorney general determined that Article 1, Section 32 does not wholly prohibit political subdivisions from instituting same-sex partner benefits plans. Instead, such plans must avoid creating a legal status upon which the provision of such benefits is dependent or the plans must ensure that the criteria for the status is not similar to the criteria for marriage. A recent case from Michigan, the state with the most developed jurisprudence on this issue, suggests that Article 1, Section 32 does not absolutely bar same-sex partner benefits plans. A review of Michigan law on same-sex benefits With language similar to the Texas Constitution, Michigan’s Constitution provides that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”20 In 2008, the Michigan Supreme Court held that this provision prohibited a benefits plan that would have included the same-sex partners of public employees in Nat’l Pride at Work v. Michigan.21 Using an analysis very similar to that used by Abbott, the Michigan court found that the criteria for the benefits plan—which, among other things, required the participants to be of a certain gender and not be closely related by blood—made the unions similar to marriage.22 The court further found that by attaching legal consequences to the relationship—by making the provision of benefits contingent on these criteria— the public employers were without a doubt recognizing such a relationship.23 The court went on to conclude that domestic partnerships were an “agreement” under the terms of the marriage amendment, and therefore, the amendment prohibited public employers from extending benefits to domestic partners.24 The Michigan court refused to rely on extrinsic evidence suggesting that the citizen group responsible for placing Michigan’s constitutional amendment on the ballot had stated that the language would not preclude public employers from extending benefits to their employees’ domestic partners.25 In the recent case of Attorney General v. Civil Service Comm’n, the Michigan Court of Appeals upheld what it called a “significantly different” plan allowing for same-sex partners of public employees to obtain benefits.26 Echoing the concluding thoughts of Abbott, the court first reasoned that the Michigan Constitution does not create an “absolute prohibition against same-sex domestic partners receiving benefits through their relationship with an employee so long as that receipt is not based on the employer’s recognition of that relationship as a ‘marriage or similar union.’ ”27 The appeals court reasoned that despite the holding in Nat’l Pride at Work, the Michigan Supreme Court did not hold that public employers could categorically not offer benefits to same-sex domestic partners. 28 The appeals court then examined the provisions of the particular benefits policy in question: Where the employee does not have a spouse eligible for enrollment in the [Plan], the Plan shall be amended to allow a participating employee to enroll one Other Eligible Adult Individual, as set forth below. To be eligible, the individual must meet the following criteria: 1) be at least 18 years of age; 2) not be a member of the employee’s immediate family as defined as employee’s spouse, children, parents, grandparents or foster parents, grandchildren, parents-in-law, brothers, sisters, aunts, uncles, or cousins; 3) has jointly shared the same regular and permanent residence for at least 12 continuous months, and continues to share a common residence with the employee other than as a tenant, boarder, renter, or employee. Dependents and children of an Other Eligible Adult Individual may enroll under the same conditions that apply to dependents and children of employees. In order to establish that the criteria have been met, the employer will require the employee and Other Eligible Adult Individual to sign an affidavit setting forth the facts which constitute compliance with those requirements.29 Noting that these criteria are completely gender neutral and allowed the public employee to share benefits with a wide variety of people, the appeals court concluded that the policy did not violate Michigan’s constitutional provision. 30 On May 1, 2013, the Michigan Supreme Court denied an application for leave to appeal the judgment in the case.31 A possible avenue for same-sex benefits for Texas public employers The type of benefits plan upheld by the Michigan appeals court in Civil Service Comm’n, sometimes referred to as a “plus one” plan, could be a template for public employers in Texas seeking to extend benefits to same-sex partners of their employees. First, unlike the benefits plans examined in Abbott’s opinion, the “plus one” plan does not require the creation of a domestic partnership in order to obtain benefits. Thus, it is arguable that a “plus one” plan would not create a “legal status” as the attorney general has interpreted that term under Article 1, Section 32. But, even assuming that the plan does create a legal status by, for example, a requirement that plan participants sign an affidavit showing their compliance with the eligibility criteria, the conditions are not similar to the criteria for a marriage in Texas. In his opinion, Abbott noted that all the political subdivisions that had established domestic partnerships used criteria “usually associated with marriage.” The Michigan “plus one” plan does not contain such criteria. In fact, a person could be eligible to obtain benefits even if he were prohibited from marrying the eligible system employee due to consanguinity, another marriage, or other reasons. And because the Michigan plan is entirely gender neutral, the bill would specifically allow for the non-married, opposite sex partner of a public employee to qualify for benefits. Furthermore, although the Michigan “plus one” plan includes a minimum age requirement of 18, 18 is recognized as the age of majority in Texas, and all contracts entered into with someone under this age are voidable by the minor.32 Finally, the obligation that the beneficiary share a common residence as the employee for a certain amount of time requires a showing of personal commitment yet is not required under the Texas marriage statute. Thus, even under the attorney general’s interpretation of Article I, Section 32, a benefits plan similar to the one in Civil Service Comm’n should pass constitutional muster. Austin ISD offers “plus one” plan Following this reasoning, Austin ISD announced in August 2013 that it would offer benefits to same-sex partners of school district employees under a plan similar to that discussed in Civil Service Comm’n.33 Under the Austin ISD plan, a district employee may elect a “qualified individual” to participate in the employee’s benefit plan.34 This “plus one” plan requires that: 1) the district employee has not otherwise elected coverage under the plan for a “spouse” as that term is defined under Texas law; 2) the qualified individual has resided in the same household as the district employee for at least the past 12 months and intends to reside there indefinitely; 3) the qualified individual is not a renter, boarder, tenant, or employee of the AISD employee; 4) the qualified individual is not related to the AISD employee as a grandparent, parent, aunt, uncle, cousin, sibling, niece, nephew, or child (whether connected by birth, adoption, foster relationship, or statutory or common law marriage); and 5) the qualified individual is directly dependent upon, or interdependent with, the AISD employee.35 The residency and dependency requirements must be proven by specific documents, such as a copy of the qualified individual’s driver’s license, showing that the individual lives at the same residential address as the employee.36 Like the Michigan “plus one” plan, eligibility for benefits under the Austin ISD plan is not contingent on criteria usually associated with marriage under Texas law. Therefore, it should survive any legal challenge under the Texas Constitution. Conclusion Neither the Texas attorney general’s opinion nor the Michigan decisions discussed above are binding in Texas courts. Nevertheless, as Texas political subdivisions seek to remain competitive employers by expanding employee benefits plans, they should consider the quickly developing law in this area. In particular, their plans may be challenged under the prohibition set out in Article I, Section 32 of the Texas Constitution. Regardless of the importance of the attorney general’s opinion, a benefits plan that requires no creation of a domestic partnership or similar status and that contains no criteria similar to the criteria for marriage under Texas law, like the one created by Austin ISD, should not violate this constitutional provision. NOTES 1. During the drafting of this article, Texas’s ban on same sex marriage was held to be in violation of the 14th Amendment to the U.S. Constitution’s guarantees of equal protection and due process. De Leon v. Perry, No. SA-13-CA-00982-OLG (W.D. Tex., Feb. 26, 2014). Because District Judge Orlando L. Garcia stayed his ruling until it can be heard on appeal, this article does not address the effect of that ruling. 2. Melissa B. Taboada, Pflugerville school board votes to keep benefits for domestic partners, Austin American-Statesman, Dec. 13, 2012, available at http://www.statesman. com/news/news/pflugerville-school-board-votes-to-keep-benefits-f/nTWbr/. 3. Tex. Att’y Gen. Op. No. GA-1003 (2013). 4. See, e.g., Cavender v. Houston Distributing Co., Inc., 176 S.W.3d 71, 73 n. 1 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). 5. Melissa B. Taboada and Benjamin Wermund, AISD balks at same-sex benefits, Austin American-Statesman, June 28, 2013, at A1. 6. RQ-1097-GA (Nov. 2, 2012). 7. Id. 8. See, e.g., Nat’l Pride at Work v. Michigan, 748 N.W. 2d 524, 543 (Mich. 2008); Op. Ky. Att’y Gen. No. 07-004, 2007 WL 1652597 (2007); Op. Idaho Att’y Gen. 08-21508 (2008). 9. Tex. Att’y Gen. Op. No. GA-1003 (2013). 10. Id. 11. Id. 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. 20. Mich. Const. 1963, art. 1, § 25. 21. 748 N.W. 2d 524, 543 (Mich. 2008). 22. Id. at 536 (finding that the domestic partnership and marriage relationships were in fact “the only relationships in Michigan defined in terms of both gender and a lack of a close blood connection”). 23. Id. at 537. 24. Id. 25. Id. at 540. 26. No. 306685, 2013 WL 85805 (Jan. 8, 2013) (per curiam), appeal denied 829 N.W.2d 867 (Mich. May 1, 2013). 27. Id. at *1 (emphasis in original). 28. Id. 29. Id. at *1-2. 30. Id. at *2. 31. 829 N.W.2d 867 (Mich. May 1, 2013). 32. See Texas Fam. Code § 101.003 (minor means a person under 18 years of age); Dairyland County Mut. Ins. Co. of Texas v. Roman, 498 S.W.2d 154, 158 (Tex. 1973) (contract entered into with minor voidable by minor). 33. Benjamin Wermund, AISD to offer benefits to same-sex partners, Austin American-Statesman, Aug. 21, 2013, available at http://www.mystatesman.com/news/news/local-education/aisd-to-offer-benefits-to-same-sex-partners/nZYYQ/. 34. Austin Independent School District—Announcements, Enrollment for Qualifying Individuals Begins Oct. 1, Sept. 13, 2013, available at http://www.austinisd.org/announcements/enrollment-qualifying-individuals-begins-oct-1. 35. Id. 36. Id. BRIAN T. THOMPSON is of counsel to the Austin firm of Hopper Mikeska, where he focuses his practice on litigation. He is a graduate of Louisiana State University and the University of Texas School of Law and currently serves on the board of directors of Equality Texas. Before joining Hopper Mikeska, Thompson was a partner with the Austin-based firm of McGinnis, Lochridge, and Kilgore.
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