Civil Union Partners Treated as Second-Class Citizens

February 21, 2008

by Charles Toutant
New Jersey Law Journal

New Jersey's year-old Civil Union Act has failed so far to convey to registered same-sex couples the rights and privileges of marriage, a state commission reported on Monday.

The Civil Union Review Commission, the panel charged with gauging the Act's success in fulfilling its equal-protection mandate, recounted testimony of repeated instances of employers denying ERISA-plan health benefits to civil-union partners of their employees.

In its First Interim Report, the panel found that civil-union status is not clear to the general public, creating a second-class status and complicating interaction with hospitals and other institutions.

Testimony also indicated that the law has a disparate impact on people of color and exposes registrants who are members of the U.S. military to the Don't Ask, Don't Tell policy.

And the law may place marital status in question when one of the spouses undergoes a sex-change operation, the commission said.

Gov. Jon Corzine, reacting to the report, said it does raise significant concerns about whether the law has effectively granted same-sex couples the same rights and benefits of every other family in the state.

The commission did not recommend changes to the act, which took effect Feb. 19, 2007, saying only that it would continue with its evaluation and review s until the issuance of a final report, which is due in early 2010.

The commission is the built-in monitor on whether the act fulfills the mandate of Lewis v. Harris, 188 N.J. 415 (2006), in which the Supreme Court directed the Legislature to enact a statutory scheme sufficient to give same-sex couples rights equal to married people. The Court left it to lawmakers to decide whether to legalize same-sex marriage or to create a parallel scheme with all the rights and privileges of marriage without using that term. The Legislature chose the latter course and became the third state to enact civil unions.

The Civil Union Act requires the 13-member commission to study all aspects of law's implementation, operation and effectiveness, including the effect on same-sex couples, their children and other family members, and to determine whether additional protections are needed.

The statute calls for the commission to meet regularly for two more years and to issue reports every six months, culminating in a final report.

The interim report is a distillation of three public hearings held in the north, central and southern parts of the state in September and October of 2007.

Health-benefits denial — the number-one complaint heard from the testimony — is usually by employers with self-insured health plans regulated by the Employment Retirement Income Security Act, which does not compel coverage for same-sex partners.

[C]ompanies covered by ERISA, which comprise an estimated 50 percent of all companies in New Jersey, have an option, rather than a requirement, to offer equal benefits under the state's Civil Union Act, the report says.

Commission Secretary Stephen Hyland says of the employers' reluctance, It's a valid legal excuse but it's really a cover, because ERISA doesn't prevent them from providing benefits to civil union spouses.

Employers are also within their rights under the federal Defense of Marriage Act, which gives them legal protection should they choose to limit marital benefits to couples consisting of one man and one woman, the report says.

But the ERISA exemption is more the loophole, the panel said. They noted that Vermont, which seven years ago enacted the civil union law on which New Jersey's is premised, some employers still deny health coverage to same-sex couples. But in Massachusetts, which allows same-sex marriage, employers have been more willing to provide health coverage, the commission said. It acknowledged the evidence was mostly anecdotal.

Civil union partners without health coverage face a double-edged sword, since both partners' assets may be exposed to bills for one partner's catastrophic illness, the testimony suggested.

Couples in civil unions also testified to unequal treatment and confusion in dealing with hospitals and other institutions, such as banks and the state Motor Vehicle Commission.

Other testimony suggested that the law is having a disparate impact on minorities. Black and Hispanic same-sex couples tend to have less money than their white counterparts and so are less able to hire lawyers to draw up healthcare proxies and powers of attorney, the report says.

The panel heard testimony from Leslie Farber, chair of the State Bar Association's Gay, Lesbian, Bisexual and Transgender Rights Section, that the Civil Union Act creates a dilemma for people who are in a heterosexual marriage before undergoing gender reassignment surgery. Farber, a Montclair solo, said a client who recently made the transition from male to female was married to a woman for 20 years. She wishes to stay married but is concerned that she now is at risk of having her once valid marriage downgraded to a civil union, Farber said, observing that the problem wouldn't exist if same-sex marriage were lawful.

Steven Goldstein, vice-chair of the Civil Union Commission and also chair of Garden State Equality — an advocacy group for same-sex marriage — said the dichotomy in treatment shows that the word marriage has massive persuasive weight - marriage is the only currency of commitment the real world accepts.

Laurence Reich, who advises employers on ERISA matters, says the Civil Union Act seemed to have been enacted either in ignorance or intentional disregard of federal law.

Unlike the Domestic Partnership Act, which included language requiring insurance plans executed in New Jersey to provide benefits for registered partners, the Civil Union Act purports to mandate coverage of same-sex couples only in general terms. Their appeal is to moral suasion, says Reich of McElroy, Deutsch, Mulvaney & Carpenter in Newark. But they cannot force the employer, if the employer, for whatever reason, doesn't want to cover same-sex couples in a self-insurance plan.

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