From: gxgree@mail.wm.edu (Greenia George D) To: corwin+@cmu.edu Date: 12 May 94 11:32:34 Subject: Re: (Forwarded) Re: Legal Suits X-Mailer: Pegasus Mail v2.3 (R3). College of William and Mary Conference on EMPLOYEE BENEFITS FOR GAYS AND LESBIANS IN HIGHER EDUCATION IN VIRGINIA: LEGAL BACKGROUND Doug Steinberg, 1st year Law, Marshall-Wythe Law School March 23, 1994 The goal of the March 24, 1994 Conference on Employee Benefits for Gays and Lesbians in Higher Education in Virginia is to fully explore the problems and pluses in a proposed extension of health insurance benefits to the domestic partners and families of same sex employees of Virginia State colleges and universities. The purpose of this paper is to introduce the conference participants to a sampling of legal decisions concerning extending benefits by state employers to same sex partners. It will also highlight the Development Fund plan, in which an endowment could be created at William and Mary to help defray the insurance costs of domestic partners and families of gay and lesbian employees. COURT CASES A number of courts have decided cases involving expansion of insurance benefits to the partners of gay and lesbian state employees. While this paper does not attempt to survey the full breadth of 'same sex domestic partner' decisions, the cases included below illustrate some of the legal difficulties regarding this issue. A QUICK PRIMER ON 'GAY RIGHTS' (1) In general, most courts do not recognize gay men, lesbians and bisexuals as members of a "suspect class", although the Equal Protection Clause of the United States Constitution applies to all citizens and not simply to those who are members of a traditional "suspect class" such as or ethnic minorities. Yick Wo v. Hopkins, 118 U.S. 356 (1886) A claim by a member of a traditional "suspect class", such as alienage, race, national ancestry, and ethnic origin, is reviewed by the court under a strict scrutiny standard. A law that infringes upon a right of a member of a suspect class must be supported by a compelling state interest and that law narrowly drawn to achieve that interest in the least restrictive manner. Pyler v. Dore, 457 U.S. 202 (1982) If the legislation infringes on any citizen's ("suspect class" member's or "non- suspect class" member's) fundamental constitutional rights, the legislation is always reviewed at the strict scrutiny standard. City of Cleburn v. Cleburn Living Ctr., Inc., 473 U.S. 432 (1985) The review standard for legislation that effects members of a "non- suspect class" is much less stringent. The general rule is that the legislation is presumed valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221 (1981) (2). No court in the United States has decided that gay men, lesbians, and bisexuals constitute a "suspect class". High Tech Gays v. Defense Indus., 895 F.2d 563 (9th Cir. 1990); Ben- Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied sub nom. Ben-Shalom v. Stone, 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed.Cir. 1989), cert. denied 494 U.S. 1003 (1990) Therefore legislation that affects homosexuals and that is susceptible to a successful legal challenge either has to be so restrictive (abusive) that a court cannot find any rational relationship to a legitimate state interest, or has to infringe on a fundamental constitutional right and consequently be reviewed under the strict scrutiny standard. Two good examples of the different standards are the successful lawsuits that struck down anti-gay referendums in Colorado and Oregon. The Oregon referen- dums that labeled homosexuals as per se immoral were considered to be so onerous that they were struck down on a rational basis. The Colorado Amendment 2, which purported "no 'special rights' for homosexuals", was struck down because the court determined that it infringed on a fundamental right of any group to participate in the democratic system. Because is highly unlikely that any court will perceive a fundamen- tal constitutional right to health benefits, same sex couples that sue for them will be reviewed under the rational basis standard. It is probably safe to speculate that most state courts will decide that supporting the institution of marriage is a legitimate state goal. Therefore, only states that have laws forbidding discrimina- tion on the basis of sexual orientation are likely to provide the context for a successful law suit (3), a supposition that has proven true at least in Vermont, but not so far in Wisconsin. THE UNFRIENDLY DECISIONS Several courts have decided not to extend insurance benefits to the partners of gay and lesbian state employees. In the first case, Hinman v. Department of Personnel Administration, 167 Cal.App.3d 516, 213 Cal.Rptr. 410 (1985), the court decided to deny the extension of dental benefits to the partners of California's gay and lesbian state employees. In the state dental plan eligibility for dependant coverage was limited to the employee's spouse or dependant children. The court decided that the insurance plan distinguished between married employees and unmarried employees and that therefore the plan did not discriminate unfairly against gay or lesbian employees. The court decided that the dental plan was reasonably related to the state's interest in promoting marriage. Wisconsin recently joined California in refusing to extend health insurance benefits to partners of gay and lesbian state employees. In Phillips v. Wisconsin Personnel Commission, 167 Wis.2d 205, 482 N.W.2d 121 (1992), the court decided that the gender provisions, sexual orientation provisions, and the marital status provisions of the Wisconsin Fair Employment Act were not violated by limiting health insurance benefits only to a employee's married spouse and dependant children. The court rejected Phillips' marital status claim by deciding that even though Phillips' relationship with her partner contained many similar attributes of a marriage, the relationship was not similarly situated in a legal sense to a marriage. The court rejected Phillips' sexual orientation claim, that the insurance plan discriminates against same sex couples who cannot marry, because the discriminatory effect resided in the marriage laws and not in the insurance policy that follows the marriage laws. Finally the court rejected Phillips' gender discrimination claim, that it is permissible for a man, but impermissible for a woman, to marry Phillips' partner, because the rule affects unmarried males and unmarried females equally. THE FRIENDLY DECISION In Grievance of: B.M., S.S., C.M. AND J.R., VT.L.R.B. 92-32 (1993), the Vermont Labor Relations Board decided that state health insurance plan violated the Fair Employment Practices Act, 21 VSA  495 et seq. (FEPA), which prohibits discrimination on the basis of sexual orientation. The grievant in the suit, employees of the University of Vermont, sued to extend coverage of the state health insurance plan to their gay and lesbian partners. The review board decided that the health insurance plan created a "disparate impact" against gay and lesbian employees and therefore violated FEPA. (4) No court in the United States has decided that gay men, lesbians, and bisexuals constitute a "suspect class". The review board decided that the inability of same sex couples to marry created a "disparate impact" between same sex and heterosexual couples. The review board ordered the Employer to cease and desist from a blanket refusal to provide medical and dental coverage to the same sex domestic partners of its gay and lesbian employees. It is important to note that both Wisconsin and Vermont have state laws that prohibit discrimination on the basis of sexual orienta- tion, but the courts came to very different conclusions concerning extension of insurance benefits. A case is now pending in the New Jersey in which gay and lesbian employees at Rutgers University are suing for an extension of the university's health plan on the basis of a state-wide executive order issued by former Governor Florio that prohibits discrimination on the basis of sexual orientation. A successful outcome of this case, along with the Vermont decision, may allow gay and lesbian state employees to extend health insurance benefits to their domestic partners in states that have passed laws prohibiting discrimination on the basis of sexual orientation. A LAW SUIT IN VIRGINIA Historically, the courts in Virginia have been very conservative. The state still retains a sodomy law and has not passed any legislation the prohibits discrimination on the basis of sexual orientation. A successful law suit to extend insurance coverage to include same sex domestic partners would be highly improbable without more friendly laws on the books. Fortunately several legal options are still available. If public funding does not represent a feasible avenue, there is always private funding. WHAT'S GOING ON HERE IN VIRGINIA WHERE WE STAND NOW The original proposal by Professor George Greenia of the College of William and Mary for extending the health insurance coverage at his institution to include same sex domestic partners requires that the couples provide proof of their partnership. The suggested proof was an affidavit of domestic partnership or spousal equivalency, like those in use at many other campuses, and substantiated by forms of documentary evidence, such as a co-signed mortgage, lease, shared guardianship of minors, joint insurance policies, vehicle registration, joint responsibility for bills, etc. These couples would also have to substantiate that the relationship was already of a full year's duration. This plan was approved almost unani- mously by the Faculty Senate of William and Mary, but rejected by the William and Mary administration. The faculty vote has also led to a considerable amount of press attention and homophobic posturing by a number of conservative Virginia politicians. PRESENTING THE GIFT FUND ENDOWMENT PLAN The latest proposal is the creation of an endowment at William and Mary to help defray health insurance costs for same sex couples that meet the domestic partnership standard of the original proposal. It is important that the money be derived from an endowment and not tapped from unspecified gifts to the College. Designated endowment monies can be spent by the College as private money. Money donated apart from a specified endowment must be spent as though it were public funds and subject to the same guidelines. For example, a general gift to the science department to purchase computers would have to be approved by the Board of Visitors and the science department could only purchase computers listed the state procurement contract. On the other hand, a gift that creates an endowment would allow our hypothetical professor to purchase her computer at any retailer of her choosing. The endowment fund option would allow everyone to avoid objections to the use of public funds and demonstrate the resolve of the community to carry out this initiative. The establishment of an endowment plan  allows the College to fulfill the mandate of the Faculty Senate  sends an unequivocal message of support through the dona- tions by faculty, staff, students, alumni, and the general public Of course any proposed gift may be rejected. William and Mary has rejected gifts in the past that violated established academic principals of the College. Recent events may also effect the future of the proposed endowment fund. PROBLEMS ON THE HORIZON Two recent events may have an impact on the proposed endowment plan. The Sharon Bottoms case that was recently argued at the Virginia Court of Appeals may have a impact on the legitimacy of same sex domestic partnerships in Virginia. Although a child custody case between a lesbian mother and another relative, a friendly decision by the court may significantly lessen the influence of the sodomy law in considering same sex domestic partnerships. A decision is still pending on the case and may be appealed to the Virginia Supreme Court. In late February, the Virginia House of Delegates introduced an amendment to the state budget that directly impact this issue. Introduced by Vance Wilkins (R-Amherst) apparently as a political ploy to embarrass progressive legislators, the amendment read: Notwithstanding any provision of any administrative rule or policy adopted by any board of visitors or other governing body of public institution of higher education, and except as may be necessary to comply with the federal Comprehensive Omnibus Budget Reconciliation Act of 1986, PL 99-272 (COBRA), extension of health insurance medi- cal/hospitalization benefits or ancillary benefits either directly or indirectly, other than to an employee, retired employee, his or her legally recognized spouse, child or minor dependent is hereby prohibited. This amendment was stripped from the Virginia state budget in Conference Committee before the budget was forward to Governor Allen. Even had it passed its application to specified endowment funds of educational institutions was uncertain. (5) It does leave in its wake a legacy of intimidation that may negatively influence even sympathetic administrators in higher education. CONCLUSION The endowment fund is at least a nominal step in the right direction. Even a small donation, one or two dollars, is a demonstration of support for equality of treatment, support not just for gays and lesbians but for all people that face discrim- ination in this country. NOTES 1. Please note that the writer of this paper is a second year law student, who has not yet passed the Bar. The legal conclusions presented in this paper should not be equated with those of a practicing attorney. 2. There is also an intermediate review standard between strict scrutiny and rational basis review, called quasi-suspect class. This review standard has been implemented in cases involving discrimination on the basis of gender and illegitimacy. Mississip- pi Univ. for Woman v. Hogan, 458 U.S. 718 (1982) and Lalli v. Lalli, 439 U.S. 259 (1978) 3. The federal government has passed its first bill, funding to alleviate the effects of the recent earthquake California, that prohibits discrimination on the basis of sexual orientation. Although only applicable to the earthquake money, it represents a small step in the right direction. 4. The "disparate impact" theory was developed by the Supreme Court in Griggs v. Duke Power., 401 U.S. 424 (1971). The Court decided that labor practices by an employer which cause a barrier to employment which were not related to job performance and were not consistent with a business necessity, must be removed if they operate invidiously to discriminate on the basis or race or other impermissible classification, Id., at 431. The Griggs decision allow claimants under the civil rights act to demonstrate a bias by using statistical information without having to prove a biased intent on behalf of the employer. In other words, one may look to the effect of a business practice instead of the reasons behind it. Although the review board did not say that gays and lesbians constituted a protected class, the use of "disparate impact' theory in the decision appears to place gays and lesbian under some sort of identifiable class under FEPA. 5. The legal question involved is one of statutory interpreta- tion: do the words "extend health insurance benefits" apply to pri- vately donated moneies that defray health insurance cost?