Last edited: January 03, 2005

Benefits Advocates Criticize Decision

Durham Herald-Sun, March 16, 2003
2828 Pickett Road, Durham, NC 27705
Fax: 919-419-6878, Email:

By Claudia Assis, The Herald-Sun,

DURHAM—The nearly 200-year-old state law Durham County evoked to block health benefits to employees’ domestic partners is a “smoke screen” for lack of political will, said critics of the county’s position.

Employees for Domestic Partners Benefits has requested a benefit policy similar to one adopted by the city, which began enrolling city employees’ heterosexual and homosexual domestic partners in its health and dental plans on Jan. 1.

But earlier this week, County Manager Mike Ruffin told employees the county could not follow suit because it is against the law in North Carolina for a man and woman to live together as a couple.

Since the county commissioners swear to uphold state laws, County Attorney Chuck Kitchen has advised them they would be violating their oath of office if they voted for domestic-partner benefits, Ruffin has said.

The 1805 fornication and adultery law reads, “if any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor.”

According to the Administrative Office of the Courts, eight charges based upon the fornication and adultery law were brought up in North Carolina courts in 2002, resulting in five convictions.

It was not immediately clear Friday which counties the convictions occurred in, or whether the 1805 statute had been the sole basis for conviction.

But for Jo Wyrick, executive director of Equality NC, a gay rights advocacy group, the county is hiding behind an antiquated law to refuse to discuss the real issue, which she believes is discrimination against unmarried same-sex and heterosexual couples.

“I don’t think the 1805 law is relevant in this situation,” Wyrick said. “It is just a gag order . the legal argument is really a thin smoke screen.”

Employees for Domestic Partners Benefits will hold a press conference Thursday and bring in local lawyers who present a different legal view from that of Durham County, said Nancy Blood, a Durham County librarian and the group’s spokeswoman.

Attorney Sherri Zann Rosenthal, who is also an assistant city attorney, said the focus of the news conference is on equity and how to bring together more people from the community in support of benefits.

“We need to make sure the commissioners realize that there is a different way of looking at things,” she said.

It is “quite a stretch” to use an 1805 law in order to deny the benefit, Rosenthal added, emphasizing that she was speaking personally, and not as a city employee.

Commissioners Chairwoman Ellen Reckhow said she sympathized with the idea, but the commissioners needed to be cautious.

“[The statute] has taken the wind out of the sails in terms of moving forward,” Reckhow said Thursday. “I feel that, at this point, we need to probably abide by the advice of our county attorney . In talking to individual commissioners, I’m not getting a sense that they want to proceed.”

Commissioner Mary Jacobs said she would have to respect the legal opinion, regardless of her own feelings about the issue.

Since Jan. 1, 14 city employees have requested benefits for their domestic partners, said the city’s Human Resources Benefits Manager Michael McGinnis.

Insurance providers Cigna and Wellpath did not charge additional costs for including domestic partners in the city’s group policies, he said.

The city of Durham became only the third municipality in North Carolina to offer health and dental benefits to employees’ domestic partners. Carrboro and Chapel Hill are the other two, and both cities have won lawsuits challenging the benefits.

County Attorney Kitchen has told county commissioners that counties are “linked in closer fashion to the state than city governments,” Reckhow said.

“[Cities] have a little bit more latitude than we have,” she said.

County employees have made similar requests over the past few years, but have never made a formal recommendation to the commissioners.

Chapel Hill and Carrboro have extended domestic partner benefits since the mid-1990s. In Chapel Hill, the policy was adopted in 1995, and challenged the following year, Town Attorney Ralph Karpinos said.

The lawsuit was thrown out after plaintiffs wanted to remain anonymous, but in 1999, about 10 Chapel Hill and Carrboro residents filed another lawsuit, saying the towns had no legal authority to extend the benefits, Karpinos said. But a Superior Court judge ruled in favor of the towns and no appeals or other lawsuits have been filed since, he said.

The City of Durham was aware of the 1805 law, but it was weighing more the challenges against the Chapel Hill and Carrboro domestic partner policies, Assistant City Attorney Patrick Baker said.

From a legal viewpoint, it was up to the City Council whether to grant it, he said.

“We just didn’t see anything that prohibited us from offering the benefits . based on a case already tested in North Carolina and upheld at the Superior Court level,” Baker said.

The city interpretation was that the law referred to sexual acts between a single man and woman, and with its policy, the city is not requiring employees to engage in any unlawful act, but just some evidence that a committed relationship exists, Baker said.

To extend insurance coverage to their domestic partners, city employees are required to sign affidavits and provide documentation that the domestic-partner relationship has existed for at least six months.

Documents accepted include a health care power of attorney, a joint mortgage or lease agreement and proof of other insurance coverage, among others.

Durham’s largest employers, Duke University and Duke University Health System, have offered benefits to same-sex partners since July 1995. Unmarried heterosexual partners do not get those benefits because marriage is an option for them, a spokesman has said.

Under a policy similar to the city’s, Duke employees have to sign affidavits and show documents that prove shared financial responsibilities.

IBM, which has about 1,350 employees in Research Triangle Park, has offered domestic partner benefits to both heterosexual and same-sex couples since 1996, a spokeswoman said. Of its 145,000 employees in the United States, 600 requested domestic-partner benefits in 2002.

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