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UNC: Local governments can offer domestic partner benefits 

Voter approval of Amendment 1, which bars the state from recognizing same-sex marriages and civil unions, doesn't prohibit local governments from offering their employees domestic partner benefits. That's the conclusion of a bulletin issued last week by the University of North Carolina School of Government, which provides legal and policy guidance to local municipalities.

Prior to the May 8 referendum, the impact of Amendment 1 on such benefit plans was questioned by the campaigns for and against its passage. Amendment opponents argued that if it passed, the handful of local governments currently offering domestic partner benefit programs could be forced to drop them. Proponents of the amendment dismissed the opposition's argument as far-fetched, saying the amendment wasn't intended to change the law in North Carolina, only to cement the existing statute by writing it into the state constitution.

On that issue, the UNC brief sides with the amendment's proponents. "In my opinion," concludes Diane Juffras, author of the UNC report, "Amendment One does not take away the authority of local government employers to offer domestic partner benefits."

Juffras, an associate professor of public law and government at UNC who specializes in employment and discrimination issues, is not a judge. Her 34-page brief acknowledges that there will be no definitive answer on the issue unless it is litigated in the state courts.

Still, policy guidance from the School of Government is widely followed by local officials and, in particular, by city and municipal attorneys. In the absence of a court ruling, it takes on a quasi-official status.

In North Carolina, nine local governments offer benefits to the unmarried domestic partners of their employees, whether straight or gay, that mirror the benefits extended to an employee's spouse. Typically, health-insurance benefits cover—usually with a charge to the employee—a spouse or partner and the couple's children.

The nine municipal governments include Durham, Chapel Hill, Carrboro, Hillsborough, Greensboro and Asheville and the counties of Durham, Orange and Mecklenburg.

All have taken the position that they will retain their programs unless directed by their attorneys or a higher legal authority to eliminate them.

Neither Wake County nor any of its 12 municipal governments has a domestic partner benefits plan. That includes Raleigh, despite the fact that a majority of Raleigh City Council members have told the Indy they'd support them if the subject were raised. However, none of these council members has ever raised the issue. The Raleigh City Council did vote 6-2 to oppose Amendment 1.

Domestic partner benefit plans are most important to same-sex couples, who were already barred by law from marrying in North Carolina prior to the passage of Amendment 1 and are now legally and constitutionally forbidden from doing so.

Many private-sector employers in North Carolina, including most large companies, offer domestic partner benefits as a tool to recruit talent, straight and gay. The language of Amendment 1 was explicit that it was not intended to interfere with private contracts or employers.

In her brief, Juffras notes that prior to the passage of Amendment 1, no court in North Carolina was asked to rule on whether a local government's domestic partner benefits plan violated the statute against recognizing same-sex marriages and civil unions. That law, like the amendment, says the only "valid" union the state may recognize is the marriage of a man to a woman.

In a 2009 School of Government bulletin, Juffras advised local governments that their domestic partner plans were allowed under the statute. Three years later, her analysis is that Amendment 1 doesn't affect those agreements between governments and employees.

The "plain meaning" of the amendment is to define marriage, nothing else, Juffras writes. "There is no legal precedent in North Carolina or elsewhere for the proposition that a government employer's coverage of its employees' domestic partners under benefits plans ... constitutes legal recognition of any union" as the marriage law and Amendment 1 defined it.

Typically, Juffras notes, domestic partner plans require that two people be over 18, have lived together for a minimum period—usually six months—and certify that they are in a long-term, committed relationship. Employers also commonly require an affirmation that the partners are jointly responsible for each other's welfare, living expenses and household management. Some insist on evidence of financial interdependence, including wills, bank accounts and the like.

None of this is required for a man and a woman to be married in North Carolina, Juffras writes.

However, employers don't ask that domestic partners "consent to be married in the presence of and solemnization of the marriage by a religious officiate or magistrate"—which a marriage in North Carolina does require.

In addition to the obvious differences in the legal status, Juffras adds, there's another reason to be confident that domestic partner benefits would survive a court challenge: equal protection under the law. Any effort by the state to offer benefits to married employees but not to employees who legally cannot marry would likely be struck down in the courts as a violation of either the U.S. Constitution's equal-protection clause or a similar clause in the state constitution.

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