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(UPDATED) Abbott: Domestic Partner Benefits Unconstitutional

Opinion: Benefits create legal status similar to marriage

By Brandon Watson, 10:25AM, Tue. Apr. 30, 2013

(UPDATED) Abbott: Domestic Partner Benefits Unconstitutional

Texas Attorney General Greg Abbott released an opinion yesterday stating that Texas cities, counties, and school districts cannot offer benefits to domestic partners. According to Abbott, such benefits violate the 2005 Texas constitutional amendment that defines marriage as a union of one man and one woman.

Abbott argues that such benefits violate the constitution by creating a de facto legal status similar to marriage. "The political subdivisions have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees."

The opinion was in response to a request made by state Sen. Dan Patrick. In the wake of Pflugerville ISD becoming the first state district to offer benefits to same-sex couples, Patrick wrote that "the plain language and clear legislative intent is either being ignored by a growing number of local governmental entities or these entities don't believe this Texas Constitutional provision applies to their decisions." In a statement released yesterday, Patrick celebrated Abbott's opinion. “The voters of the State of Texas decided overwhelmingly that marriage is between one man and one woman in 2005. This opinion clearly outlines that cities, counties and school districts cannot subvert the will of Texans.”

The opinion could have implications for the city of Austin, Travis County, and Austin ISD - which signaled that domestic partner benefits would be offered to employees in September 2013 - but the opposition was quick to note that it is nonbinding, and city and county officials suggested they might maintain their current policies pending any court decision. ACLU of Texas Legal and Policy Director Rebecca L. Robertson noted that "the good news is that AG opinions do not have the force of law, so unless a Texas court issues a ruling on the subject, there shouldn’t be any legal impediment to government employers continuing to do the right thing for their employees.”

Although recent polling suggests that support for some sort of legal recognition of same-sex unions is rising, the Texas GOP has continued to make its opposition to gay marriage and civil partnerships a platform issue. The House is currently awaiting a vote on Rep. Drew Springer's HB 1568, which would strip funding and accreditation from school districts offering insurance benefits to domestic partners.

UPDATE: Austin ISD released a statement this morning regarding Abbott's opinion. "AISD is aware of yesterday's opinion by the attorney general's office. The district has been discussing adding domestic partnership insurance coverage as part of the budget process for next year. Given today's opinion, the district will seek further guidance and input from its legal counsel and employee groups to identify the appropriate next steps."

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