Kansas AG OK's Lawrence DP Ordinance

Kansas Attorney General Paul J. Morrison has issued an opinon letter to the City of Lawrence, which requested his advice as to whether a proposal to enact a domestic partnership registration ordinance for the city would be within its legislative powers, in light of the recently-enacted Kansas Marriage Amendment.  The bottom line: Morrison opined that the ordinance would be within the city's home rule powers and would not conflict with the amendment, although he advised removing some uncertainty about these conclusion by considering the addition of a residency requirement.  Attorney General Opinion No. 2007-9.

The proposed ordinance would create a domestic partnership registry, open to any cohabiting adult couple regardless of sex who are not closely enough related by blood to be prohibited from marrying under the state's incest law.  Residency would not be required, and would create "no legal rights, other than the right to have the registered domestic partnership included in the City's Domestic Partner Registry."  The bill also states that it is not to be "interpreted" or "construed to permit the recognition of a relationship that is otherwise prohibited by State law."

The Kansas marriage amendment is in two parts.  The first provides that a marriage "shall be constituted by one man and one woman only" and declares any other marriage to be "contrary to the public policy of this state" and "void."  The second part states: "No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage."

Given the peculiar wording of the second part, one would think the A.G.'s task here is an easy one, if the provision is read literally.  After all, were Lawrence, Kansas, to adopt this bill, it would not by its actions bestow any state recognition on the relationships that are registered, since it is purely local legislation.  But Morrison does not hang his hat on this technicality.  Rather, he focuses on the fact that the bill, by its terms, confirms no legal rights on the registrants other than to be listed in the registry, and notes that the avowed purpose of having the registry is to facilitate couples establishing their eligibility for domestic partnership benefits from those private sector employers who are willing to provide them but want to condition eligibility to those whose relationship is registered with some governmental body. 

The issue that consumes the larger part of the opinion is whether the city has legislative authority to do this, which involves an analysis of Kansas's home rule amendment, under which cities are empowered to adopt local laws "subject only to enactments of the legislature applicable uniformly to all cities."  The amendment also provides that the legislative powers of cities are to be "liberally construed for the purpose of giving to cities the largest measure of self-government."    Kansas case law provides that city ordinances should be allowed unless they create an "actual conflict" between the ordinance and a statute, or unless the legislature has preempted the field of subject matter to which the ordinance pertains.

This proposed ordinance does not conflict with any statute, but there was at least some argument that recognizing unmarried partners in any way might conflict with the state constitutional amendment.  Having decided that it did not so conflict, Morrison also had to consider whether the legislature has actually preempted local action in recognizing unmarried partners.

"Clearly," says Morrison, "the Marriage Amendment is a uniform law applicable throughout the State and, as such, preempts cities from enacting ordinances that purport to recognize non-marital relationship as being entitled to those statutory and common law rights and responsibilities accorded to the marital relationship.  However, as we have indicated previously, proposed Ordinance No. B does not attempt to accomplish this feat."  As a result, Morrison found no preemption here. 

He was bolstered in his conclusions by rulings of Pennsylvania and Ohio courts, which faced similar issues in cases involving local laws.  Philadelphia had amended its local civil rights ordinance to ban discrimination based on marital status, including discrimination against "life partners."  Pennsylvania law forbids same-sex marriage, but the Pennsylvania Supreme Court did not find this local action to be preempted.   More to the point, the Ohio Supreme Court upheld a local ordinance similar to the one proposed in Lawrence against a preemption and constitutional conflict attack, and in Florida the courts rejected a preemption assault on a Broward County ordinance that actually bestowed partnership benefits on unmarried partners of county employees.

The one point of concern, however, was the lack of a residency requirement.  Cities are authorized to legislate only with respect to "local affairs," and Morrison expressed some concern with the idea that couples from anywhere on earth could pay their fee and be listed in the Lawrence domestic partnership registry.  However, he noted that the proposed ordinance did not purport to authorize any specific extra-territorial effect to  such registration, so it was possible that Kansas courts would not object to this feature.  An Ohio court had reached such a conclusion in dealing with the a similar local enactment.  But absent any Kansas court rulings on the specific question, he suggested that the folks in Lawrence should consider adding a residency requirement, just in case, stating that if such a requirement was imposed, "we believe that the ordinance would pass muster under the Home Rule Amendment."

Morrison cautioned that he was providing an opinion, but that his opinion is not binding on the courts.  But this opinion gives the green light to proponents of the ordinance in Lawrence to proceed towards enactment.

Comments

[bella]

once was married and then got a divorce from my husband. yet we have still been together for 20 yrs. i am on ssi and disability. does the state of ks still see us as married as we do? COMMAN law marriage? if we do get married and still stay legally seperated will i lose my ssi and disability??

[Mike]

Thanks for this post. I live in Lawrence and we are eagerly looking forward to the passage of this ordinance; it will be the first of its kind in Kansas and will further enhance my town's reputation for being completely unlike the rest of thisbackwards state!