Advisory opinion says government entities that offer health insurance to employees’ partners are violating state’s ban on same-sex marriage


Texas Attorney General Greg Abbott

JOHN WRIGHT  |  Senior Editor

Republican Texas Attorney General Greg Abbott issued an opinion Monday, April 29, saying domestic partner benefits offered by local government entities in Texas violate the state’s constitutional amendment banning same-sex marriage.

Abbott’s opinion, which is nonbinding, was issued in a response to a request last year from anti-gay Sen. Dan Patrick, R-Houston.

Patrick requested the opinion after Pflugerville ISD, north of Austin, became the first school district in the state to agree to offer DP benefits.

The constitutional amendment, approved by voters in 2005, bars the state or any political subdivision of the state from creating or recognizing “any legal status identical or similar to marriage.”

Pflugerville’s decision to offer DP benefits also prompted a Republican state lawmaker to introduce a bill that would cut funding for school districts that offer DP benefits. The bill — HB 1568 by Drew Springer of Muenster — is awaiting a vote in the House.

While Pflugerville was the first school district to offer DP benefits, several other local government entities do so, including the cities of Austin, Dallas, El Paso, Fort Worth and San Antonio; as well as

Dallas County and Parkland hospital. Most offer DP benefits to both same-sex and opposite-sex domestic partners.

Ken Upton, Dallas-based senior staff attorney for the LGBT civil rights group Lambda Legal, said Abbott’s opinion is hardly surprising. Abbott has also used the marriage amendment to try to prevent same-sex couples legally married in other states from obtaining divorces in Texas.

“He didn’t do anything we didn’t expect,” Upton said. “The truth is, it’s just an opinion.”

Upton said if a local government that offers DP benefits decides to rescind them based on the AG’s opinion, employees losing benefits for their partners likely would sue. On the flip side, a disgruntled anti-gay taxpayer could try to sue if money is being used to offer DP benefits.

“Maybe the next step will be some litigation,” Upton said. “I’m sure some of these right-wing groups will be more than ready to sue. The sad thing is, it’s just going to make the state less competitive.

“It’s unfortunate, but it’s not surprising he did this,” Upton said.

Openly gay Fort Worth City Councilman Joel Burns agreed.

“I am disappointed in Greg Abbott,” Burns said in a statement. “However,  I am not surprised that once again he is more interested in dividing Texans for political gain than bringing them together to make Texas stronger and more prosperous.

“He continues to pursue faulty legal strategies and disrespect local control at the expense of taxpayers,” Burns said. “Here in Fort Worth we value every citizen which makes every family stronger.”

Rebecca L. Robertson, legal and policy director for the American Civil Liberties Union of Texas, emphasized that Abbott’s opinion is just that — an opinion — and said her group strongly disagrees with him.

“Contrary to the AG’s reasoning, giving an employee the ability to purchase insurance coverage for his or her family does not create a legal relationship even remotely similar to marriage,” Robertson said. “The good news is that AG opinions do not have the force the law, so unless a Texas court issues a ruling on the subject, there shouldn’t be any legal impediment to government employers continuing to do the right thing for their employees.”

Equality Texas issued a statement Tuesday saying it believes Abbott’s opinion would still allow DP benefits, but they must be restructured and cannot be called DP benefits.

“It means cities, counties and school districts seeking to remain competitive with private business can offer employee benefit programs that provide health and other benefits to unmarried household members if the eligibility criteria are properly structured,” Equality Texas said. “However, eligibility should not use the term ‘domestic partner,’ or be based upon proving the existence of a ‘domestic partnership,’ or use criteria usually associated with marriage (like current marital status, or related by a certain degree of consanguinity). It means political subdivisions can offer employee benefit programs to unmarried household members if their eligibility criteria don’t look like marriage, or create something that resembles marriage.”

This article appeared in the Dallas Voice print edition May 3, 2013.