Same-sex benefits could lead to uncomfortable debate

Posted: Wednesday, November 15, 2006

Sen. Tom Wagoner, R-Kenai, said Monday he has a simple way for the Legislature to resolve the complex issues posed by a court ruling compelling the state to extend employee benefit programs to government workers in same-sex domestic relationships: He’d eliminate all benefit programs entirely.

In 2005, the Alaska Supreme Court ruled provisions of the Alaska Constitution leave no legal basis for denying same-sex domestic partners the spousal benefits afforded married heterosexuals. That was followed in June of this year by a high-court order that the state begin providing same-sex partners with benefits no later than Jan. 1.

Regulations to accomplish that have been drafted by the Alaska Departments of Law and Administration. Tuesday, state lawmakers were back at work in Juneau for a special session called by Gov. Frank Murkowski to consider the same-sex benefits issue.

While he said he doubted the Legislature would take such a radical step, he thinks doing away with all spousal benefit programs is a simple way past the problems presented by the court ruling.

“If I owned a company that had been told by the court to provide benefits to same-sex spouses, I’d take the benefits from current (heterosexual) spouses, put in an equivalent pay hike and leave it up to the employee what to do with that money,” Wagoner said. “It may be too simplistic for the Legislature. They don’t like to buy into anything that is too simplistic.”

Senate Majority Leader Gary Stevens, R-Kodiak, said lawmakers likely would adopt a resolution asking the court for a delay to allow the next Legislature to take up the matter of benefit regulation changes in the next session, which begins in January. He said the issues were too complex to be addressed in a short special session under the threat of a court order.

“We need time to study it,” he said.

Stevens said the court was correct in that every citizen has equal protection under the constitution. He also said the University of Alaska had a system that allowed for extending benefits to same-sex domestic partners. He said there were maybe 50 such people among the thousands working for the university. Stevens, a retired UA professor, said the school’s regulations were simple and clear and require a committed relationship.

Homosexual couples are precluded by law from marrying in Alaska by a 1998 amendment to the Alaska Constitution that reads: “To be valid or recognized in this State, a marriage may exist only between one man and one woman.” Because same-sex couples may never become eligible for spousal benefits, the high court said, the benefit programs treat them differently from public employees who are married.

After wrestling with the question whether it was reasonable to pay public employees committed to a domestic relationship with same-sex partners less, in terms of employee benefits, than their co-workers who were married, the court determined the state programs violated Article 1 of the Alaska Constitution, which guarantees employees equal rights, opportunities and protection under the law. The court ordered the programs changed.

Stevens and Wagoner acknowledged, however, that the Legislature’s concerns go beyond worries that some couple somewhere might enter a fraudulent living arrangement in order to tap the benefits system without actually being “committed” to a relationship.

Debate over how to comply with the court’s order, deliver benefits and avoid fraud is almost sure to spill over into discussion about what constitutes a committed relationship. If the constitution currently precludes “marriage” for homosexuals, what about establishing same-sex unions in some way that was not marriage, but legally equivalent for purposes of employee spousal benefits or other rights enjoyed by hetero couples, such as estate transfer when one partner dies?

Lawmakers may not be able to avoid those kinds of issues, the senators said.

“It will be in the debate no matter which way we go,” Wagoner said.

Stevens said he didn’t think the Legislature was prepared to deal with the marriage question.

“If it becomes part of the debate, the moral issue of homosexuality could lead us to no conclusion at all to the issue of health insurance (benefits),” he said.

He also wondered whether the Legislature could legally allow unmarried, same-sex couples to get spousal benefits, but deny them to unmarried, heterosexual couples.

“Those are also important questions,” he said. “It is very complex. I don’t know where we go.”

Another issue is the cost of adding domestic partners to the benefit systems, Stevens said. The state’s retirement system “is already broken,” he said. Its debt is estimated at around $8 billion.

Department of Administration Commissioner Scott Nordstrand said in an Oct. 27 letter to Gov. Frank Murkow-ski that “since retirement rights ... once given cannot be constitutionally rescinded” he was “deeply concerned” that the state could be required to add “a new and expensive retirement tier for thousands of state employees and (Public Employee Retirement System/Teachers Retirement System) retirees.”

Hal Spence can be reached at harold.spence@peninsulaclarion.com.



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