It’s not marriage by any other name

Posted on 19 Jul 2007 at 8:53pm
By News Analysis by Ann Rostow Contributing Writer

UPS’ decision to deny benefits to employee’s partner highlights problems with various civil union laws

In October of last year, the New Jersey Supreme Court ruled that same-sex couples should be entitled to all the rights and benefits afforded married couples in the Garden State.

The justices ordered the state legislature to either add gay couples to the marriage law or create an equivalent structure to cover gay unions. Not surprisingly, New Jersey lawmakers grabbed the less controversial remedy, passing a civil union bill that went into effect this year.

A “civil union,” says the New Jersey law, “means the legally recognized union of two eligible individuals of the same sex [who] shall receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage.”

Given that definition, why then did the normally gay friendly United Parcel Service (UPS) tell Gabriael Brazier that her civil union partner, Heather Aurand, was ineligible for the company’s benefit plan?

The answer illustrates the pitfalls of fashioning “marriage lite” schemes like the ones in New Jersey, Vermont, Connecticut and California, and like those soon to go into effect in Oregon and New Hampshire.

UPS is actually a pretty good outfit from the GLBT community’s point of view, with an 85 rating from the Human Rights Campaign.

The company instituted domestic partner benefits for all its non-union employees after discussions with staff in 2004.

Lisa Johnson, a group manager in the Corporate Procurement department in Atlanta, could not be more pleased with the insurance she earns for Laura, her partner of seven years, who stays at home to care for their two toddlers.

But Gabriael Brazier, by contrast, is a member of the Teamsters Union, and her benefits are governed by the national contract that is renegotiated every six years.

Under the current contract, expiring August of next year, employee benefits are restricted to a “legal spouse as defined by applicable state law.” Since New Jersey makes a distinction between “civil union partner” and “spouse,” the company makes a distinction as well.

In a letter to Brazier, a UPS plan administrator put it this way: “The New Jersey Legislature, in enacting the state’s Civil Union law, did not go as far as Massachusetts and afford same-sex couples the ability to marry. Had the New Jersey Legislature done that, you could have added Ms. Aurand as a spouse under the plan.

“In fact, the plan does allow same-sex spouses in Massachusetts to be enrolled as eligible dependents.”

There’s an argument to be made and Lambda Legal Defense is making the argument to UPS right now, that the company is not actually hamstrung by the Teamsters Union.

When Massachusetts legalized same-sex marriage, for example, the newly married same-sex partners fell automatically into the definition of “spouse” and were added to the benefits plan without reopening negotiations. Given the judicial and legal history of the New Jersey civil union law, UPS could just as easily have determined that a civil union partner would be considered a “legal spouse under applicable state law” and started adding union staff like Gabriael Brazier into the plan without any fuss.

Indeed, Mike Purdue, chairman of the supplemental bargaining unit for Teamsters Local 177 which covers New Jersey, says his local would have no problem with such an interpretation.

“There would be no resistance at all on our part,” Purdue says. “If [UPS] believes it’s the right thing to do, then let’s do it.”

In response, the UPS director of Global Media Services, Norman Black, says the situation is not that simple.

“We’ve got union employees in 49 states to whom we’re trying to extend domestic partner benefits,” said Black, who added that it’s not
clear whether UPS labor lawyers “would agree that we can make such a change easily with the blessing of one local leader.”

Black says UPS has already begun negotiations on the next national Teamsters contract and intends to pursue partner benefits for all union staff. The company recently added same-sex benefits to the pilots’ union contract, which was renegotiated last year.

But the larger issue is this: No matter how well a civil union bill is drafted, there will always be loopholes and gaps between “marriage lite” and the real thing.

If it’s not benefits for UPS Teamster members, it might be a car rental company that won’t treat registered domestic partners as a couple, or a funeral home that won’t treat a gay survivor as next of kin.

And in many cases, the inequity is due simply to the confusion that surrounds these evolving state laws.

One California man, who tried to rent a car from Enterprise for himself and his partner, was told to bring his partner to the office for independent processing even though the two were, by law, presumed to be treated as spouses.

Rodger Benjamins took the issue all the way up the Enterprise management ladder and emailed passages from the California Domestic Partnership Rights and Responsibilities Act to the company before the rental agents changed their policy. In truth, they were unaware of the law and its implications, but were happy to adjust once they learned the details.

Normally, however, the average citizen is not obligated to single-handedly explain and enforce state civil rights law in order to complete a routine business transaction.

Over the next months, the high courts of Connecticut and California will decide, not whether same-sex couples deserve marriage rights under their state constitutions, but whether the parallel rights and benefits now offered through Connecticut civil unions and California domestic partnerships are constitutionally sufficient.

Is separate ever equal? In the case of couples’ rights, we are learning through example after example that the answer is no.

This article appeared in the Dallas Voice print edition July 13, 2007

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