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This paper is a working paper.

Abstract

The article focuses on an issue that is shaping up to be the new front in the same-sex marriage wars: whether applying the terms of the more broadly-constructed amendments to public employers will bar them from offering domestic partner benefits to their gay and lesbian employees. The first part of the article offers an overview of domestic partner benefits plans and discusses the manner in which they are currently being threatened by the more broadly-constructed marriage amendments. The second part takes a close look at the litigation in National Pride at Work v. Michigan. This case represents the first time that a state court of last resort has agreed to consider the scope of a public employer’s authority to offer domestic partner benefits to its gay and lesbian employees when the marriage amendment in the state may preclude the employer from doing so. The litigation in National Pride at Work illustrates the interpretive difficulties that may arise when public employers in these states condition the receipt of partner benefits on the existence of the gay or lesbian relationship. In the last part of the article, I identify the primary concepts that are at stake in the relevant sections of these amendments – “recognition,” “status,” and “similarity to marriage” – and offer an analysis of these terms that will help courts in the event that they are called upon to interpret them. In the course of the analysis, I find that a public employer’s decision to premise the dispensation of partner benefits on the existence of the employee’s relationship violates the prohibition against recognizing a status for unmarried individuals. This fact notwithstanding, the crux of my analysis focuses on the similarity provision: if the status recognized by the state does not fall within the scope of the similarity prohibition laid out by the amendment, then the domestic partner benefits plan should be upheld.

Disciplines

Labor and Employment Law | Law and Politics | Public Law and Legal Theory

Date of this Version

May 2008

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