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Published in Print: May 30, 2001, as Court: District May Provide Benefits To Same-Sex Couples

Court: District May Provide Benefits To Same-Sex Couples

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A federal appeals court has upheld the Chicago school system's provision of health-insurance benefits for the same-sex domestic partners of its employees.

The challenge to the program came from a heterosexual employee who sought to force the district to expand the benefits to unmarried partners of the opposite sex.

Her legal appeal drew a sympathetic brief from a prominent gay advocacy group, but was rebuffed this month by a panel of three conservative judges on the U.S. Court of Appeals for the 7th Circuit, in Chicago. The judges appeared to view same-sex-only benefits as less harmful to the institution of marriage than a broader domestic-partner plan would be.

"The refusal to extend domestic-partner benefits to heterosexual cohabitators could be justified on the basis of the [national] policy favoring marriage," U.S. Circuit Judge Richard A. Posner wrote in a May 15 opinion.

The 432,000-student Chicago system adopted domestic-partner benefits in 1999, about two years after the Chicago city government launched a similar program. Under the district's plan, applicants for domestic-partner status must be unmarried and unrelated and meet at least two of the following conditions: They must have lived together for at least a year; they must jointly own their home or other specified property; or the domestic partner must be the primary beneficiary of the school employee's will.

The district limited the benefit, however, to same-sex partnerships, later justifying the decision in part on its desire to hire homosexuals as teachers to offer positive role models for gay students. So far, nine out of the district's 45,000 employees have signed up for the benefits.

14th Amendment Issue

Judge Posner, considered a leading conservative intellectual within the federal judiciary, signaled his personal discomfort with the district's policy.

"It was not that long ago when homosexual teachers were almost universally considered a public menace likely to seduce or recruit their students into homosexuality," the judge wrote in the unanimous ruling for the court. But "it is not for a federal court," he wrote, "to decide whether a local government agency's policy of tolerating or even endorsing homosexuality is sound."

The district's policy was challenged by Milagros Irizarry, who has worked for 13 years as an administrative assistant at Lincoln Park High School in the city. She has lived for 23 years with her male partner, with whom she has two children.

Ms. Irizarry sued the Chicago district in federal court in 1999, arguing that the policy violated her 14th Amendment rights of equal protection and due process of law. A federal district judge threw her case out.

On appeal to the 7th Circuit, she gained an unexpected ally: The Lambda Legal Defense and Education Fund, a New York City-based gay-rights organization, filed a brief urging the appeals court to require the district to expand its benefits program to heterosexual partners.

"We certainly applaud the school board's efforts to encourage and attract qualified gay and lesbian job candidates," said Heather C. Sawyer, a senior staff lawyer in the fund's Chicago office. "But there is no rational reason its goals can't be accomplished by a program that includes individuals who fit the criteria, but have partners of the opposite sex."

Judge Posner, however, characterized Lambda as wanting "to knock marriage off its perch" by seeking policies that treat unmarried and married heterosexual couples as equals.

He said the district had offered several rational reasons for limiting the benefit to same-sex couples, including cost considerations, and had met the legal burden for upholding its policy.

Richard P. Campbell, Ms. Irizarry's lawyer, said the ruling would not be appealed. Instead, his client plans to focus on a separate challenge to the board's policy that she filed with the Chicago Human Rights Commission.

Only a handful of school districts nationwide are believed to offer any form of domestic-partner benefits. In February, a Wisconsin state appeals court upheld the 25,000-student Madison district's policy of offering health benefits to partners of the same or opposite sex.

Jordan W. Lorence, the general counsel of the Northstar Legal Center in Fairfax, Va., said most local governments adopting such benefits are doing so to "make a statement about diversity."

The conservative legal organization has backed lawsuits challenging cities' domestic-partner programs, but it has not yet challenged any school district policies.

"School districts should be careful before jumping on this kind of bandwagon," he said. "They could be acting like change agents in a way that is not their proper role."

Vol. 20, Issue 38, Page 7

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