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August 17, 2007

Governor: Order doesn't include partner benefits

High court ruling and earlier Columbus case may have paved the way for them

Columbus--Governor Ted Strickland’s office says his executive order prohibiting employment discrimination doesn’t include benefits for domestic partners, although an Ohio Supreme Court ruling last month may have allowed them.

Benefits like health and life insurance are not considered compensation “as defined in the executive order,” said Strickland’s spokesperson Keith Dailey. The benefits are extended to many state workers and, for married ones, their spouses.

The executive order, which Strickland signed May 17, bars discrimination against state employees on the basis of sexual orientation or gender identity.

The prohibition against discrimination includes “rate of compensation,” which Dailey said, “simply means the hourly rate at which someone is paid,” and “does not seek to extend domestic partner benefits in Ohio.”

“As the author of the order . . . the meaning and application of the order is determined by the governor,” Dailey said.

When Strickland signed the order, the Ohio Supreme Court had not yet ruled on the Carswell case, which said the state constitution’s marriage ban amendment doesn’t affect the domestic violence law.

The July 25 ruling also laid the foundation for how the court will interpret the second sentence of the amendment in future cases. The sentence bars government recognition of “legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”

The justices ruled 6 to 1 that the only thing this prohibits is the recognition of a “marriage substitute,” which it illustrated as civil unions.

A second legal battle was on appeal when Strickland signed the order: State Rep. Thomas Brinkman’s suit to stop Miami University’s same-sex domestic partner benefits.

Brinkman’s case is still on appeal, but on a legal technicality. Ohio State University law professor Marc Spindelman, who has written extensively on the marriage ban amendment, says Brinkman’s suit no longer matters because Carswell settled it.

According to Spindelman, who is gay, anything short of civil unions will be constitutional.

In an earlier challenge, domestic partner benefits for Cleveland Heights city employees were also upheld.

However, Strickland was concerned that the benefits might be ruled unconstitutional when he signed the order. He wanted to see what the courts did.

Strickland said at the time that if the amendment was judged by the courts to limit an employer’s ability to give domestic partner benefits--equal compensation to spousal benefits--it would be impossible for the state to do so.

If Carswell would have gone differently or if Brinkman had won, Strickland reasoned, there would be problems.

“I don’t want to engage myself in a lawsuit that would further divide and exacerbate the problem,” Strickland said in May.

“If the Miami case gives us clarity, we could push for it [benefits], if it’s possible,” Strickland said.

However, now that he has clarity and a green light from the courts, Strickland is being equally clear that he doesn’t intend the order to include benefits, even though, as Dailey concedes, the benefits have a monetary value.

City of Columbus was sued over this

If challenged, Strickland may not be on firm ground.

Though it is not binding on the governor at all, the city of Columbus dealt with the same issue and ruled in favor of partner benefits.

In 2002, Columbus’ Community Relations Commission ruled 9-3 that the city was in violation of its own non-discrimination law by not providing insurance benefits to the partner of James Hartman, a gay Health Department employee.

The 1994 Columbus ordinance has provisions similar to Strickland’s order saying it is an “unlawful discriminatory practice” to discriminate or limit a person’s “wages” or “employment conditions” on the basis of sexual orientation.

The commission hired Capital University law professor Shirley Mays to act as judge in Hartman’s case.

Mays wrote that because the benefits are compensation, and that married couples getting them were being paid more for the same work, the city “must allow coverage to domestic partners of homosexuals” or it was in violation of its own ordinance.

“The city has clearly stated its intention that no discrimination based upon sexual orientation should occur,” wrote Mays.

“Such discriminatory conduct undermines the effectiveness of employees discriminated against, prevents the state from attracting the best available talent to work on behalf of the people of Ohio, and offends the basic notions of human dignity,” says Strickland’s order.

Hartman’s complaint led to litigation between the city and the Community Relations Commission, which was settled under an agreement between the parties.

Subsequently, it also led to political battles lasting nearly a decade including the 1998 passage of the state’s first domestic partner benefits ordinance--and its repeal two weeks later.

The city is currently considering “household benefits,” extended to any member of a household designated by the employee.

Strickland has never clearly indicated whether or not he supports or opposes domestic partner benefits in principle.

Dailey said he would ask the governor and return with an answer soon.




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