AP Story On SJR-7's Impact On DP Benefits

It's a start finally, but a weak one at that. I refer to an AP story today by Deanna Martin discussing the concern SJR-7 will invalidate domestic partner benefits at the state's public universities if it becomes a part of the Indiana Constitution. Martin writes:

Indiana University employee Cindy Stone and her partner, Donna Payne, were a couple for 20 years. The women loved each other, lived together and were considered by friends to be essentially, if not legally, married.

When Payne died of cancer in 1995, university policy provided Stone just two hours off work to attend the funeral of someone considered a friend.

More than a decade later, many public universities in Indiana offer domestic partner benefits, which give same-sex couples some of the perks married couples are offered, such as health insurance and funeral time off. But some worry a proposed constitutional amendment banning gay marriage would cut off those benefits.

"I have felt the discriminatory ways of the past," Stone said. "These benefits make a big difference. To lose them right now would be very hard."

The amendment's sponsor, Sen. Brandt Hershman, R-Wheatfield, said the language would not affect same-sex benefits offered by public and private employers.

"There's been a fair amount of rhetoric ratcheted up about this _ I think primarily for political purposes by those who oppose the amendment," Hershman said.

The issue has also arisen in other states with gay marriage bans.

A Michigan appeals court recently ruled that public employers cannot offer health benefits that treat same-sex relationships similar to marriage. Alaska courts went the other way, ruling that it was unconstitutional for public employers to deny domestic partner benefits.

More than 20 states have yet to determine how their bans apply to such benefits.

Indiana's proposed amendment includes a phrase that state law "may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups."

That means courts cannot force the government to provide same-sex benefits, but it does not prohibit the government, public employers or anyone else from voluntarily offering such benefits, said James Bopp Jr., a Terre Haute lawyer who supports the amendment.

An unfortunate aspect of this story is it suggests the only pitfall if SJR-7 is enacted is that a few dozen public university employees might lose their DP benefits. DP benefits are just one of many rights which could become off-limits for any unmarried couples, straight or gay. That list includes civil unions, inheritance rights, hospital visitation rights, cohabitation agreements and adoption rights, among others.

Bopp's argument that a government actor could still voluntarily offer the benefits is a red herring. If a court cannot interpret a state law as conferring any legal incident of marriage, how can it compel enforcement of a law passed by the legislature, an executive order, or in the case of the university DP benefits, a resolution approved by the school's Board of Trustees? Why anyone with any common sense would buy into Bopp's specious argument is a mystery to me. And why in God's name doesn't Martin mention Sen. Hershman tried to cut off funding to public universities if they offered DP benefits? Did the folks at IE fail to feed that little nugget to her to undercut his argument the amendment he now authors won't do the same?

The AP story does offer some hope Bauer might, at a minimum, entertain an amendment to SJR-7 to remove the second paragraph of the amendment which broadens its effect beyond limiting marriage to the union of one man and one woman. Martin writes, "House Speaker Patrick Bauer, D-South Bend, said last year that he would allow a vote on the proposed amendment." "He said last week that some companies and universities were concerned about whether the amendment would affect domestic partner benefits." "That's why we have hearings, and that's why we will test the validity of the concern," Bauer said.

I am also pleased that other folks in Indiana's legal community are starting to take notice of the points I've been making for months on this blog about SJR-7. Sam Hasler of Sam Hasler's Indiana Divorce & Family Law Blog picked up on my critique of Curt Smith's defense of SJR-7 in Sunday's Star. He is particularly worried about the shot-gun blast effect of the second paragraph on cohabition agreements, which Indiana law currently allows unmarried couples to enter into as long as sex is not the consideration for the agreement. Hasler writes:

Thanks to Gary Welsh at Advance Indiana on pointing out a debate in the Indianapolis Star between a proponent (Curt Smith) and an opponent (Chris Douglas) of SJR 7 (the bill to amend the state constitution to prevent gay marriages). I do not intend for this blog to become a forum for political debates or to air my political views. Mr. Welsh's post has a good critique of the politics behind this date. Personally, I oppose this proposal for the reasons outlined by Mr Douglas - it does enshrine bigotry - but I also find it worrisome as a lawyer. The proposal aims at gays and lesbians but the proposal is a shotgun blast. Mr. Welsh captures that shotgun blast in this passage:

...If the legislature enacted any law pertaining to civil unions, domestic partner benefits, inheritance rights, hospital visitation rights, etc. which would benefit same-sex couples in the same manner as such laws benefit married couples, an Indiana court would be bound by the plain language of the second paragraph of SJR-7, which would prohibit it from construing any law as conferring any legal incident of marriage to any unmarried couple or group....

The amendment does not limit itself just to obvious target of its bigotry. The amendment will touch on heterosexual who are unmarried but living together. I think it would also prevent any court from upholding any cohabitation greement. If this amendment passes, I think it will place cohabitation agreements in the position of granting legal rights incident to marriage to unmarried couples. If SJR 7 proceeds to an amendment of Indiana's Constitution, it certainly presents a policy argument for not allowing cohabitation agreements and may even terminate further cohabitation litigation. The cohabitation cases trace back to Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980). The Indiana Court of Appeals held that the parties were not trying to claim rights due to a common law marriage. In Putz v. Allie, the Indiana Court of Appeals in 2003 upheld an agreement between cohabitants entered into after their breakup over the argument that the agreement conferred property rights equivalent to marriage. Of course, being a lawyer, I can think of several counterarguments. Whether they will be effective is another story. That equivocation makes advising clients tricky, if not outright precarious. I would suggest that anyone considering a cohabitation agreement do so as soon as possible.