Marital status

When Mayor Menino extended city health benefits to unmarried partners, Catholic activists took the issue to court. So far, they're winning.

Cityscape by Sarah McNaught

Forty-three-year-old Caroline Shaw is an entrepreneur who's run a small business out of her home for the past several years. The biggest obstacle to owning her own business, she says, is the outrageous cost of health insurance. So on November 1, when an executive order signed in August by Boston mayor Tom Menino extended family insurance coverage to "domestic partners" of city employees, Shaw thought her troubles were over. Her partner of six years -- a Boston police officer -- added Shaw to her health-insurance plan.

"I have a hypertension disorder and my prescriptions ran as high as $80 a month," says Shaw. "My partner has two kids, so I could be added to her family plan for no additional cost to the city."

But Shaw may not have her new coverage for long. On December 11, Suffolk Superior Court judge Charles M. Grabau issued a preliminary injunction barring the city from offering benefits to the partners of unmarried city employees. (He then stayed the injunction until the case moves to the appeals court, as early as next week. The two sides now disagree on whether the injunction will take effect as soon as the case reaches the higher court, or not until a ruling is issued.) In a 14-page finding, Grabau said the state's home-rule law, which grants city governments the ability to amend existing state laws by appealing to the state legislature, does not give the mayor the authority to override the state insurance law that specifies who can receive benefits through local governments. According to Grabau's finding, such benefits are limited to government employees and their "spouses and children."

The issue wound up in court as the result of a suit filed by 10 members of the Catholic Action League, an anti-defamation and religious-rights organization, on the grounds that Menino's action contradicts state insurance law.

But Menino defends his executive order, saying that his decision to make benefits available to all couples who've registered as domestic partners, regardless of marital status or sexual identity, was well within his rights as mayor. He says that the insurance law lists spouses as qualified recipients but does not limit benefits to them. Currently, 109 city employees -- 70 percent of whom are heterosexual -- have signed up for domestic-partner benefits.

The mayor had two options, says Jennifer Levi, an attorney for the Gay and Lesbian Advocates and Defenders (GLAD), an organization that is working alongside the city on this matter. He could have tried to change the definition of spouse under Massachusetts state laws, or he could have issued an executive order to include individuals who aren't specifically referred to in the state law.

"The city's effort to provide benefits to individuals who aren't named in the state law doesn't conflict with state statute because the state doesn't mention domestic partners," explains Levi. "No one is suggesting that the mayor provided these benefits under state law. He extended these benefits under an executive order that is completely separate from state law."

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The campaign for domestic-partner benefits in Boston began in 1991, when then-city councilor David Scondras brought a proposal before the council. The proposal passed, but then-mayor Ray Flynn shot it down. The issue resurfaced in 1993, when Menino became mayor. Mark Walsh, a former member of Menino's administration, was asked to review the law to see whether the city could provide the benefits without amending state statutes. "We found that under the existing insurance law there was an established standard for who could receive benefits, but that standard was not limited to married spouses," recalls Walsh. In other words, the city was obligated to extend benefits to employees' spouses but also had a right to provide benefits for other categories of people.

But according to Gary Sandison, a policy adviser to the mayor, Menino backed away from the idea because lawyers for the city determined that the bill needed the approval of the state legislature, which would have required changing the definition of spouse in the state law (see "Cityscape," January 12, 1996). In March 1996, city councilor Tom Keane proposed a home-rule petition that would change the language of the existing statute only as it applies to the city. The petition was passed unanimously by the council but sat in the legislature for two years before it was finally approved in July of this year. Governor Paul Cellucci vetoed the petition, but Menino signed his executive order in August, and the city's domestic-partner policy took effect on November 1.

Asked why the mayor issued the order despite the veto, Sandison explains, "The mayor went ahead because he was frustrated. He believed he followed all the proper channels and still the petition was vetoed. We knew the decision would be challenged, but the mayor has the authority to issue an executive order that doesn't contradict the existing law, and that's what he did."

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But Vincent McCarthy, attorney for the American Center for Law and Justice, which is representing the plaintiffs, says the executive order does violate the law. McCarthy, whose organization is "devoted to reaffirming family values and preventing programs that undermine those values," cites the 1998 case of Wilcox vs. Trautz, in which the Supreme Judicial Court reiterated that common-law marriage is not recognized by the state of Massachusetts. Menino's action, McCarthy argues, amounts to a recognition of common-law marriage. McCarthy also cites in his complaint state laws that list fornication, sodomy, and lascivious acts as criminal.

"State law could not be more clear in its public policy against marital relationships for unmarried parties," says McCarthy.

McCarthy's organization has successfully sued San Francisco and Santa Barbara on the issue of domestic-partner benefits and is awaiting a decision on a September suit against New York City. But this is the center's first case in Massachusetts, even though cities such as Springfield and Cambridge already have similar laws.

"No one ever requested our assistance in Cambridge" the way the Catholic Action League members did in Boston, says McCarthy. "We don't comb the nation looking for these cases."

Indeed, the city of Cambridge is pleased with the results of its decision to extend health benefits to domestic partners, which was unanimously passed by the city council in 1993. Currently, 23 city employees are receiving benefits for their unmarried partners.

"We haven't had any problems with the employees or the system," says Michael Gardner, director of personnel for the city of Cambridge. "And the cost is relatively modest."

Right now, the Boston city employees who filed for domestic-partner insurance are still getting their benefits. In response to the court decision, mayoral aide Sandison released a statement declaring that "the city does not have to change any procedures until the appellate court rules."

Attorneys for the plaintiffs, however, challenge the continued distribution of health benefits. "As soon as the judge's finding is docketed, the injunction goes into effect," McCarthy contends. "I think that the mayor is just trying to be popular by publicly denying that he has to stop these benefits."

If he is correct, people like Shaw may have to go back to paying for their own non-group health insurance. "These people say they are trying to preserve family values. Well, their work is having a bad effect on my family," says Shaw. "They aren't helping us. They are damaging my family by forcing us to spend money that could be better used to benefit our family and our children."

Sarah McNaught can be reached at smcnaught[a]phx.com.