August 6, 2009
Northeast city Rep. Carl Robinson hasn’t said much about City Council’s adoption of a policy to extend city medical benefits to unmarried couples living together, but he thinks the policy may violate six-year-old Texas law.
“I’m not sure, but then I’m not a smart guy,” Robinson said. “There are smarter people who get paid a lot more than I do here, and the question is, did they do their homework? Did anybody? I did mine.”
Robinson didn’t mention whether his religious beliefs conflict with the domestic partners policy, as many of the speakers did at Tuesday’s City Council meeting. He did express concerns about the council’s action, which he alone voted against last week, and the budgetary impact of extending health benefits to people who were previously not covered.
“Rep. (Beto) O’Rourke said it’s the right thing to do, but if you say ‘in accordance with the law,’ then it’s the wrong thing to do, and aren’t we supposed to abide by the law?” Robinson said.
The council last Thursday voted 6-1 to allow unmarried city employees living with someone in a same-sex or heterosexual relationship for more than six months to add their partner to the city’s health benefits plan. The council also required that the couple be able to meet three of six conditions of financial involvement with each other.
The city attorney’s office isn’t worried about the legal issue Robinson is raising. But County Attorney Jose Rodriguez said his office will give the law Robinson is citing a hard look before county Commissioners Court considers a similar benefits policy, if it does.
Robinson points first the Texas Legislature’s passage of Senate Bill 7 in 2003, which related to same-sex marriage and civil union between same or opposite sex individuals. (Download a copy of that bill below)
The bill declares that same-sex marriages and civil unions are contrary to state policy and are void in Texas, and it prohibits the extension of rights or benefits to those couples as if they were married.
In the law, civil union “means any relationship status other than marriage that (1) is intended as an alternative to marriage or applies primarily to cohabitating persons; and (2) grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage.”
However, SB 7 clearly states that it “applies to same-sex marriage or a civil union regardless of whether the marriage or civil union was entered into before, on, or after the effective date of this act.”
Given the fact that Texas has never approved same-sex marriages or civil unions, the language of the bill suggests that it was aimed at same-sex couples who were married or civilly united out of state.
The cities of Austin and Dallas have had similar policies offering medical benefits to employees with a domestic partner for several years.
Robinson thinks the city may also be running afoul of the constitutional amendment that Texas voters overwhelmingly approved in 2005 banning same-sex marriage and alternative legal arrangements of a similar nature, including civil unions.
Assistant City Attorney Bertha Ontiveros said the office looked at the legal issues months ago and determined that they pose no barrier to a broadened medical and health benefits policy.
“All we’re doing is changing the definition under the health plan of who qualifies as a dependent and is eligible for health benefits,” she said.
If the city attorney’s office had thought there was any problem, it would have informed City Council, Ontiveros said.
City Rep. Steve Ortega said the city attorney’s office did not advise the council of any legal conflicts with the new policy, and that he is not concerned about the issue.
“This has nothing to do with civil unions,” he said. “The state of Texas has never been a leader when it comes to civil rights, so I’m not surprised that this legislation is on the books.
“People can challenge it, just as civil rights legislation in the 1960s was challenged. I’m convinced that our position is legally correct and social correct.”
Although the council has approved the policy regarding health benefits for unmarried couples, Ortega said he expects to hear more about it from people at public hearings on the budget scheduled for Aug. 11 and 18.
The council will vote on the budget Aug. 25.
Rodriguez said the county’s Risk Pool Board on Wednesday considered whether to recommend a policy very similar to the city’s to county Commissioners Court, but he was unsure which way the board’s recommendation went.
His view of the situation, though, is identical to that of Ontiveros and the el Paso city attorney’s office.
“Our view is the county would not be conferring a benefit based on a same-sex marriage or a civil union, but what the county could be doing is determining who is who to extend health benefits to,” he said.