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Marriage amendment would threaten partner benefitsBrian T. Larson
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. The first sentence of the amendment would have no immediate effect. It would ban same sex-marriages, which are already unrecognized in Wisconsin. The second sentence, however, would bring potentially significant changes to Wisconsin law. Among other effects, it would create a cloud of legal uncertainty over domestic-partner benefits offered by employers. This is because domestic partnership could be considered a "legal status ... substantially similar to that of marriage." How real would be the legal threat to domestic partner benefits? Quite real, if the experience of other states is any indication. In 2004, Michigan passed an amendment prohibiting same-sex marriages and "similar unions" for same-sex couples. Afterward, the state's attorney general determined that a city's offer of benefits to same-sex domestic partners violated the amendment. A legal challenge followed, and the matter is working its way through Michigan courts. Similar litigation is ongoing in Ohio as a result of an amendment passed there. If the Wisconsin amendment passes, litigants will almost certainly bring the issue before Wisconsin courts. Our attorney general, Peg Lautenschlager, underscored this point in a statement released earlier this year. "Whether any particular type of domestic relationship, partnership or agreement between unmarried persons would be prohibited ... would be left to further legislative or judicial determination," she said. In court, employers seeking to maintain domestic partner benefits for their employees would promote the "total package" view of domestic partnership. They would compare marriage and domestic partnership as two complete packages laid side-by-side. A court following this approach could easily find domestic partnership substantially dissimilar to marriage, given the number of benefits missing from the domestic partnership package. Consider, for example, the array of benefits bestowed by the federal tax code upon marriage alone. Meanwhile, those opposing domestic partner benefits would argue the opposite, as litigants in the Michigan lawsuit have done. Individual benefits should be analyzed side-by-side. Whenever one is made available to a domestic partner, it should be compared to benefits available through marriage. If the domestic partner benefit is substantially similar to a marriage one, then recognition of the former should be refused. It is not clear how well this argument would hold up in Wisconsin court. As suggested by the Michigan and Ohio examples, the threat of a legal challenge to domestic partner benefits is greater for public sector employers. However, the issue could affect private companies as well, either because of a chilling effect or, potentially, through shareholder-initiated lawsuits. Close to half of the Fortune 500 companies currently offer benefits to domestic partners, as do more than 100 Wisconsin companies, including seven of the 20 largest private employers in the state. That helps to explain why industry groups have expressed concern. "[T]he language [of the amendment] may limit employers' ability to provide benefits to unmarried employees and their partners, regardless of whether the couple is heterosexual or of the same sex," concluded the Greater Madison Chamber of Commerce. The Chamber's reasoning echoed that of Downtown Madison Inc., which earlier had framed its opposition to the amendment in similar terms. It should be recognized that business groups and Wisconsin voters will consider numerous factors in evaluating the proposed ban on civil unions and same-sex marriage. The fact that the issue is commonly referred to as the "marriage amendment," however, suggests a focus on marriage in the public debate. The effect of the amendment in areas such as domestic partner benefits should not be overlooked. Brian T. Larson is an attorney at Stroud, Willink & Howard LLC, practicing estate planning and business law. madison.com ©2009 Capital Newspapers. All rights reserved. |
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