by Bob Geary
When there's a thorny legal question staring them in the face, local officials in North Carolina look to the UNC School of Government for guidance. It's not that UNC is the last word; the courts are. But it helps, when you're considering whether something's a good idea, to know that the experts at UNC are of the opinion that at least it's allowed by law.
In that vein, the 34-page brief written by Diane Juffras, Associate Professor of Public Law and Government at the School of Government and a specialist in the areas of employment and employment discrimination law, will be influential for local governments wrestling, after the passage of Amendment One, with the question of whether they're still permitted to offer employee benefits to the domestic partners — gay or straight — of their employees.
The answer, Juffras argues, is yes:
In my opinion, Amendment One does not take away the authority of North Carolina local government employers to offer domestic partner benefits.
First, Amendment One has plain meaning on its face: (1) the state can allow only a man and a woman to enter into a marriage, (2) marriage is the only legal status that the state can grant an opposite-sex couple, and (3) the state cannot grant any legal status whatsoever to relationships between same-sex couples.
With this plain meaning, Amendment One merely puts into the constitution the North Carolina statuory law on marriage and civil unions between same-sex couples as it existed on May 8, 2012, and therefore effects no change on the ability of North Carolina local governments to offer their employees domestic partner benefits.
Second, there is no legal precedent in North Carolina or elsewhere for the proposition that a government employer’s coverage of its employees’ domestic partners under benefits plans makes valid or constitutes legal recognition of any union or confers rights and responsibilities to any union under the law. To extend benefits is not to “recognize” any kind of union.
Third, there appears to be a good chance that a court would find the denial of domestic partner benefits a violation of either the federal or the North Carolina equal protection clauses.
I believe nine local governments offer such benefits, including Durham and Durham County, Chapel Hill, Carrboro and Hillsborough. I've read that Charlotte was ready to join the list if officials there were assured that doing so would be legal following Amendment One. Juffrus' opinion may clinch it for Charlotte.
Juffras' bulletin is here in pdf form: