Domestic partner benefits violate same-sex ban, attorney general rules

The Texas Constitution bans the city of Austin, Travis County and area school districts from offering domestic partner benefits to employees in same-sex relationships, according to a legal opinion released Monday by Attorney General Greg Abbott.

Domestic partnerships, as recognized by the local governments, are close enough to the definition of marriage to violate a constitutional amendment banning same-sex unions that 76 percent of Texas voters approved in 2005, the opinion stated.

“By creating domestic partnerships and offering health benefits based on them, the political subdivisions have created and recognized something not established by Texas law,” the opinion said.

Lawyers for Austin and Travis County have begun researching the opinion to help political leaders determine if it should be followed. Attorney general opinions attempt to determine how Texas courts would rule on a legal matter, but only the courts have the definitive say on constitutional questions.

Failure to follow Abbott’s opinion, however, could invite lawsuits over the benefits.

The issue bubbled up late last year after the Pflugerville Independent School District announced it would offer domestic partner benefits to unmarried employees, including same-sex couples. The Austin school district later indicated it intended to offer a similar benefits package next school year.

State Sen. Dan Patrick, R-Houston, asked Abbott to study the issue, noting that “it is clear to me” that the benefits — also offered by San Antonio, Fort Worth and El Paso — violated the constitutional amendment banning recognition of same-sex unions in Texas.

Patrick praised the opinion Monday. “The voters of the state of Texas decided overwhelmingly that marriage is between one man and one woman in 2005,” he said. “This opinion clearly outlines that cities, counties and school districts cannot subvert the will of Texans.”

Lawyers for Travis County, which has offered domestic partner benefits for 16 years, will discuss the opinion with county commissioners at next week’s meeting, Judge Sam Biscoe said.

“If something we’re doing is illegal, we would change it immediately,” Biscoe said. But the county does not have to acquiesce to Abbott’s opinion if its attorneys disagree with the arguments, he added.

The Austin City Council will receive a similar briefing from its lawyers at its May 9 meeting, but city attorney Karen Kennard said late Monday that Austin does not intend to change its benefits package “at this time.”

“With all due respect to the attorney general, we believe his opinion on this question is not correct,” Kennard told council members in a memo.

City Manager Marc Ott will send a note to city employees Tuesday that “underscores our commitment to our current group health benefits program, which we believe allows the city to attract and retain the very best employees,” Kennard said.

Pflugerville school officials declined to comment on the opinion.

The benefits to be offered by Austin schools will be part of discussions with employee associations and will not be finalized until August, when the district budget is completed, spokesman Alex Sanchez said.

“We will continue to have those conversations. We will absolutely take that (opinion) into consideration and be able to bring it to the table when we have those conversations,” Sanchez said.

In his opinion, Abbott noted that state law prohibits county officials from issuing marriage licenses to people who are currently married, couples who are closely related or if one applicant is under 18, except in limited circumstances. Domestic partner benefits are offered based on similar criteria, he said.

“The domestic partnership status resembles marriage in these respects,” Abbott wrote. “Applying the ordinary definition of ‘similar,’ a court is likely to conclude that the domestic partnership legal status … is ‘similar to marriage’ and therefore barred by the Texas Constitution.”

Abbott acknowledged that two pending cases at the U.S. Supreme Court could change the legal landscape, rendering the state constitutional ban unenforceable.

The cases involve California’s ban on same-sex marriage, which was struck down by an appeals court, and a section of the federal Defense of Marriage Act, a 1996 law that denies federal benefits to same-sex couples. Rulings are expected by the end of June.

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