AG’s opinion prompts lawsuit to halt coverage for same-sex partners in El Paso County, but Equality Texas maintains there’s a simple fix

Smith.Chuck

Chuck Smith

ANNA WAUGH  |  News Editor

LGBT advocates are encouraging governmental entities in Texas that offer domestic partner health benefits to revamp the language of their plans so they can continue offering them without interruption or legal action.

Texas Attorney General Greg Abbott issued an opinion last week, stating that governmental bodies that give health benefits to unmarried partners violate the state’s 2005 constitutional amendment that prohibits recognition of any status “identical or similar to marriage.”

Following the opinion, El Paso activist Carl Starr filed a lawsuit against El Paso County Judge Veronica Escobar.
In response, the El Paso County Commissioners Court this week decided to revise its health plan to remove language that could hinder the lone employee who’s enrolled in DP benefits from receiving them.

Starr’s suit seeks a permanent injunction to prevent the county from offering the benefits, but he asked the commissioners this week to consider suspending the employee’s benefits until after the U.S. Supreme Court rules in two key marriage equality cases in late June.

Several governmental entities in the state offer partner health benefits, including the cities of Dallas, Fort Worth, San Antonio, Austin, along with Travis, El Paso and Dallas counties.

Equality Texas Executive Director Chuck Smith said many cities are already considering following El Paso County’s example. He said the ruling, which isn’t legally binding, helps offer the benefits if policies remove “domestic partner” and replace it with “qualified individual.”

“I think any entity would be prudent to look at language in their plan and amend it,” he said.

Dallas County Judge Clay Jenkins said the Commissioners Court here has requested a briefing from the district attorney’s office on the issue. Jenkins said the county’s voucher plan for domestic partners, which commissioners passed last fall, is still considered a valuable asset by the court’s Democratic supermajority.

“I don’t think the attorney general will change their minds on what’s best for Dallas County,” Jenkins said. “But in light of [the opinion], we’ll set out to achieve the goals and see if any modifications need to occur.”

Julia McDuff, a spokeswoman for the county’s Human Resources department, said no one has signed up for the benefits, which went into effect Jan. 1.

Dallas city officials haven’t started reviewing the city’s health plan either, said Assistant Dallas City Attorney Donna Lowe of the employee benefits section.

Dallas Mayor Mike Rawlings said the city will “stand firm” in support of its DP benefits program, which has been in effect since 2004.

“This is not his business. This is our business,” Rawlings said of Abbott. “The city has jurisdiction over this. I feel very comfortable with the stance we have on this, and it’s the right thing to do for our LGBT employees and the right thing to do for the city of Dallas.

This is our jurisdiction, and I feel very strongly about it.”

Meanwhile, in Fort Worth, spokesman Bill Begley said the city’s legal department is reviewing Abbott’s opinion and its benefits policy.

“At this point, we really don’t know what this means,” Begley said. “We have no plan to make any changes to our domestic partner plan at this time.”

Smith cited Michigan’s health benefits fight, which ended last week when the state’s Supreme Court declined to hear an appeal of a ruling that found the state can offer DP benefits. The plan that offered health benefits to unmarried partners of state employees had previously been found unconstitutional because of the Michigan’s marriage amendment. But the reworded health plan, offering the same benefits, was upheld.

“It is still possible to cover these employees, but it has to be structured differently,” Smith said.

The request for Abbott’s opinion from anti-gay state Sen. Dan Patrick, R-Houston, also resulted in HB 1568 by Rep. Drew Springer, R-Muenster, which originally aimed to cut state funding for school districts that have elected to offer the benefits.

A substitute bill passed out of committee in late April that would have allowed the attorney general to defund and close school districts that offer DP benefits without an appeals process.

But the bill didn’t make in onto the last House calendar this week, and therefore will not go to the floor for a vote.

“It’s dead,” Smith said. “This is a victory.”

The bill could come up again this session if it’s attached to another bill, but Smith said Equality Texas would watch changes to bills to ensure that doesn’t happen.

Anti-gay Texas Values President Jonathan Saenz previously told Dallas Voice he expected HB 1568 to pass both chambers and be signed into law. The group filed a brief last year requesting Abbott to find entities in violation of the Texas Constitution if they offer the benefits. Saenz said Abbott’s opinion “now makes it clear” that offering the benefits is illegal.

Advocates are unsure what the effect the opinion will have on the Dallas Area Rapid Transit’s Board of Directors, which has postponed a decision on DP benefits until the Supreme Court rulings in June.

Rafael McDonnell of Resource Center Dallas said he’s addressed the fact that the opinion is not legally binding with DART board members. He noted that changing the wording to include just a qualified individual would be similar to an option DART’s administrative committee once considered.

“I don’t think it really changes the playing field,” McDonnell said, adding that he’s not sure the benefits will be implemented later. “I’m not sure where their heads are on this.”

The Dallas City Council will reappoint five of the city’s seven DART board appointees in the next few weeks. Only one current member, Claude Williams, wasn’t recommended for reappointment. Williams has taken the lead on LGBT issues at DART in the past and requested the committee take up the health benefits.

McDonnell said he’s not sure the votes are on the board to pass the benefits unless every Dallas appointee supports the measure, adding that it would be difficult to do without Williams because advocates have worked so closely with him on the issue.

This article appeared in the Dallas Voice print edition May 10, 2013.