Leonard Link

New York Appellate Court Orders Recognition of Canadian Same-Sex Marriage

In a straightforward and matter-of-fact ruling of great potential significance, a unanimous five-judge panel of the New York Appellate Division, 4^th Department, an intermediate appellate court with jurisdiction of appeals from the western counties of New York State, ruled on February 1 that a lesbian couple who married in Canada in 2004 were entitled to legal recognition of that marriage by the employer of one of them, Monroe Community College (MCC).  Martinez v. Monroe County, 2008 Westlaw 275138, 2008 N.Y. Slip Op. 00909.  [The opinion was published in full text in the New York Law Journal on February 8, 2008.  According to a press release received on February 22, the County Executive has announced an appeal to the New York Court of Appeals.]

Plaintiff Patricia Martinez, an employee of MCC, and her partner, Lisa Ann Golden, were married on July 5, 2004, in the Province of Ontario, Canada, after the courts of that province determined that same-sex couples are entitled to marry. (The Canadian legislature passed a statute ratifying those decisions in 2005.)

Upon returning home, Martinez applied to MCC on July 7 for spousal health care benefits for Golden, and was turned down a few months later. It was not until 2006 that MCC extended benefits to Golden pursuant to a domestic partnership benefits plan. MCC still does not formally recognize the two women as married.

Martinez sued, claiming that failure to recognize her marriage violated the New York State Constitution’s equal protection requirement and the state Human Rights Law’s prohibition of sexual orientation discrimination in employment. Justice Harold L. Galloway of State Supreme Court in Monroe County granted the defendants’ motion for summary judgment, finding that the marriage was not entitled to recognition in New York State.

Writing for the unanimous panel, Justice Erin Peradotto explained, "For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the ‘positive law’ of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of ‘natural law.’ . . . Thus, if a marriage is valid in the place where it was entered, ‘it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute," citing Moore v. Hegeman, a New York Court of Appeals decision.

"We conclude that plaintiff’s marriage does not fall within either of the two exceptions to the marriage recognition rule," wrote Peradotto, pointing out that the New York legislature has not enacted any statute specifically forbidding the recognition of same-sex marriages performed elsewhere and thus the "positive law" exception does not apply.

"The natural law exception also is not applicable," wrote Peradotto. "That exception has generally been limited to marriages involving polygamy or incest or marriages ‘offensive to the public sense of morality to a degree regarded generally with abhorrence,’ and that cannot be said here." Actually, this matter-of-fact assertion may prove astonishing to those who argue against same-sex marriage on grounds of traditional religiously-based morality, but the court says nothing more directly on the point.

Instead, Peradotto takes on the other main stumbling block, the Court of Appeals’ 2006 decision in Hernandez v. Robles, which held that same-sex couples do not have a right to marry either by interpretation of the state’s Domestic Relations Law or pursuant to due process or equal protection rights under the state constitution.

Peradotto wrote that the Appellate Division panel rejected the contention that Hernandez provides a public policy basis for refusing to recognize a same-sex marriage contracted validly in another jurisdiction. "Hernandez does not articulate the public policy for which it is cited by defendants," she wrote, "but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York. The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act, to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state."

Peradotto noted that the legislature could move to prohibit recognition of such marriages, but until it does so, "such marriages are entitled to recognition in New York."

Moving to the next point in the case, Peradotto briefly stated the conclusion that because MCC would recognize a Canadian different-sex marriage but not a Canadian same-sex marriage, its policy violated the ban on sexual orientation discrimination in the Human Rights Law.

MCC argued that since it had begun providing benefits to domestic partners in 2006, the case was actually moot, but the court pointed out that Martinez and Golden were entitled to compensation for any injury incurred during 2004 and 2005 due to MCC’s failure to recognize their marriage. The court rejected the further argument that MCC should be held to enjoy governmental immunity from such a damage claim on the ground that denying recognition to the marriage was a "discretionary act." To the contrary, wrote Peradotto, it "instead was an erroneous legal determination with respect to the ministerial action that was required."

The court directed that the trial court issue an order declaring that the Martinez-Golden marriage is "entitled to recognition in New York."  [Revision added February 5:] According to New York state court principles of stare decisis, this 4th Department ruling has statewide effect for now, since there is no contradictory ruling from any other Department of the Appellate Division.  However, appeals on the same question are pending in the 2nd and 3rd Departments, and if they produce contrary results, the stage will be set for the Court of Appeals to create a finally binding statewide precedent.

Martinez is represented in the case by Rochester attorney Jeffrey Wicks, acting as a cooperating attorney for the New York Civil Liberties Union. New York State Attorney General Andrew Cuomo filed an amicus brief in support of Martinez’s claim for recognition of her marriage, consistent with the opinion of his office, first expressed under his predecessor, now-Governor Eliot Spitzer, that New York marriage recognition principles would extend to same-sex marriages lawfully contracted elsewhere.

1st Circuit Rebuffs Parents on School Curriculum Dispute

In a ruling issued earlier today, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit rejected a constitutional challenge by two sets of parents to the presence and presentation of books depicting same-sex families in the public schools in Lexington, Mass., with pre-notification and an opportunity to "opt-out".  Parker v. Hurley, No. 07-1528 (Jan. 31, 2008).    The parents, who claim to be "devout Judeo-Christians," according to the opinion for the court by Circuit Judge Lynch, claim that requiring their kindergarten and first-grade age children to attend classes where such books are present or read aloud by the teacher violates the parents' rights to free exercise of religion under the First Amendment and parental autonomy under the Due Process Clause of the 14th Amendment.

The court upheld a decision by U.S. District Judge Mark L. Wolf, who had dismissed the complaint for failure to state a claim.  As the court pointed out, there was no direct precedent supporting the parents' argument that they have a right to advance notice and opt-out in this situation.  According to the court, nothing the school was doing amounted to coercive indoctrination, and the school was doing nothing to prevent the parents from instructing their children to disapprove of homosexuality and same-sex couples parenting children.  However, it was a legitimate interest of the school to teach tolerance for diversity and, noting that the Massachusetts constitution has been construed to require the extention of marriage to same-sex couples, it was appropriate for the state to teach tolerance and respect for such couples in its public schools.

Basically, the court noted that precedents support the right of parents to decide to send their children to religious schools, but having selected the public schools, they have no right to dictate curricula to school authorities.  There is a state statute that requires advance notice and offers opt-outs for parents under certain circumstances involve sexuality instruction, but the court disclaimed any ruling on those state claims as, having found that the constitutional suit was appropriately dismissed, it was prudent to leave any state claims, which here would involve statutory interpretation, to the state courts.

"Public schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools' other constituents," Lynch commented.  "The balance the school struct here does not offend the Free Exercise or Due Process Clauses of the U.S. Constitution.  We do not suggest that the school's choice of books for young students has not deeply offended the plaintiffs' sincerely held religious beliefs.  If the school system has been insufficiently sensitive to religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state.  They are not entitled to a federal judicial remedy under the U.S. Constitution."

Quest for the Grail - Bar-Shai's Haydn Piano Sonatas

We are living in a golden age of Haydn performance.  This great 18th century composer, largely ignored a century ago, is now eagerly embraced by a wide range of performers, and we are discovering that his enormous catalogue of surviving music includes numerous masterpieces -- indeed, entire genres -- barely known by prior generations.  Josef Haydn's piano sonatas, in particular, have surfaced in a wide variety of distinguished performances.  A few months ago, the record reviews were overflowing with laudatory reviews for a 2-CD release of Haydn Sonatas on Hyperion performed by a great virtuoso of our time, Marc-Andre Hamelin.  The reviews were deserved.  The recording is a knock-out!

At about the same time, International Piano magazine (emanating from the UK) included a feature review of new recording of Haydn Sonatas by a young Israeli pianist, Iddo Bar-Shai, on the Mirare label, a small French independent label with somewhat spotty and selective distribution in the U.S.  This review suggested that the recording, Bar-Shai's first solo disc, was a mandatory acquisition for anybody interested in Haydn's keyboard music - which should be everybody interested in keyboard music!  This went directly on my want list, initiating months of frustrated searching.  The disc never surfaced at my favorite physical retail outlet, J&R Music in lower Manhattan, and all searches on the usual websites where I find classical CDs proved futile.  After repeated searching, I initiated a google search, exploring arcane overseas sources, and finally found that I could purchase this disc (for an exorbitant sum) on a website called CDMarket.eu.  When the package finally arrived, the return address was in Estonia, and the little cardboard shipping box was covered with exotic-looking postage stamps.

Was it worth the frustration and effort?  Most definitely.  Bar-Shai's Haydn recording is exemplary. The young man plays with spirit, maturity, care, inspiration....  everything one could desire in Haydn.  Hamelin's recording (which includes all four of the sonatas on Bar-Shai's disk) is excellent in its way, Bar-Shai's excellent in a different way.  Hearing both of them emphasizes that the Haydn Sonatas lend themselves to a variety of approaches.  And Bar-Shai's disk includes a bonus, the great Andante & Variations in F Minor, Hob.XVII/6, to close the program.  This rivals in depth and pathos anything Mozart created for the keyboard, and brings the program to an inspired close.

The pianist, now 30, was still in his 20s when this program was recorded in January 2006.  Surprisingly, considering that none of the US or British websites where I usually shop had listed this disk as available, the program book includes fine notes in English, with an informative biographical sketch of the pianist, who has performed widely (including in the U.S.).  Which begs the question why Mirare has done nothing to make the disk more available, as I have seen others of their recordings at J&R and on U.S. websites.  One would have thought that after the stellar review in International Piano they would have taken steps to make it more available.  Such are the mysteries of marketing in the classical recording world...

Latin v. Hebrew - Contrasting Evenings of Vocal Music

It would be difficult to imagine a more pointed contrast - at least within the realm of serious concert music - between the two programs I heard this weekend.  On Saturday night, I attended a concert by the Vox Vocal Ensemble conducted by George Steel at the Church of St. Mary the Virgin in Times Square, part of their Early Music series, titled "Treasures from the Sarum Rite."  And on Sunday afternoon, I attended the annual Shabbat Shirah concert presented by Congregation Beth Simchat Torah, a "Musical Celebration of Israel at 60," consisting entirely of vocal music, almost all performed in Hebrew.  Multicultural weekend indeed, especially when one considers that the CBST concert incorporated musical traditions of many different lands from which Jews emigrated to Israel.

The Sarum Rite concert, as the name suggests, focused on the music characteristic of Catholic worship in England during the Tudor Period.  Early 16th century composers of sacred music in England were caught in the shifting tides, as Henry VIII disestablished the Catholic church, leading to formal ouster of the Sarum Rite liturgy and music, only to have it creep back into use during the reign of Henry's older daughter, Mary I (1553-58), and then fall back into disuse as younger daughter Elizabeth I re-established the primacy of the Church of England and Catholic observance went back underground.

Some composers weathered these changes better than others, the most successful probably being Thomas Tallis, a royal favorite through all seasons, and three of his spectacular works were included on the program: Candidi facti sunt, Ave praeclara maris stella, and Loquebantur variis linguis.  Quality tells - these were far and away the best pieces on the program.  The other composers represented were by no means light-weights, however, and I thought everything performed was on a very high level, including works by John Sheppard, Robert Wylkynson, John Taverner, and Christopher Tye.  Indeed, Tye's bedtime devotion, "In pace in idipsum," was spectacularly moving.  For an encore, the group presented Tallis's elaboration of the words Miserere mei. 

Steel has this group singing wonderfully well.  They alternate on the Miller Theatre Early Music series with the internationally famed Tallis Scholars from the U.K., but I sense no real competition between the two groups, which are equally skilled at what they do.  I wish Steel and his group had a recording outlet, for their work deserves to be preserved and disseminated.  The Tallis Scholars has a dedicated record label, Gimell Records, although they have not been particular active in issuing new recordings in recent years.  (Perhaps they are touring too much for that, or maybe it's just the less favorable climate for marketing early music CDs these days?)

Turning to the CBST concert, one has the immediate contrast of talented, enthusiastic amateurs as opposed to a professional group, so things were a bit less polished.  The CBST concert specially featured the participation of Debbie Friedman, a composer-singer whose music is probably regularly heard and loved by more people than any other contemporary composer of Jewish liturgical music.  Indeed, as the program notes pointed out, in many American Jewish congregations, Friedman's music is so well-established as part of the liturgy that most of the congregation probably considers it "traditional" rather than recently composed music.  Friedman has the rare gift of being able to find that combination of words and music that brings out a feeling of spirituality in those who participate in singing it.  Certainly, some of my most moving moments when involved with CBST have centered around her music, including years ago singing her Mishaberach during the stroll downtown with the CBST contingent in the Gay Pride March, when this song is customarily sung immediately after the "moment of silence" when the entire march comes to a halt to remember those lost to AIDS and in the struggle for LGBT rights.

Several of Friedman's pieces were on the program yesterday, and she was present to perform them with the assistance of the CBST Chorus and Cantor David Berger.  Truth  be told, I find her singing less engaging than her composing.  She has a sweet, clear voice, but not quite so powerful as was needed occasionally for this format, and her intonation was a bit suspect at times.  On the other hand, to hear the composer participate in her own songs was a treat, for the tone, the inflections, and the little liberties with the published form of the music, provided particular inspiration and insight. 

The program was carefully constructed to showcase a variety of Israeli composers, to blend liturgical and secular music (including one particularly secular setting of liturgical music, a version of the Yom Kippur chant Un-taneh Tokef by Yair Rosenblum), and placed in an order to make a coherent narrative, knit together by the narration of CBST's Associate Rabbi Ayelet Cohen.  Intrumental back-up came from The Seeds of the Sun, a four-piece ensemble with a jazz orientation, and pianist Beth Robin. The presiding musical director was CBST Music Director Joyce Rosenzweig, a leading figure in Jewish music with her academic affiliation at HUC and her active presence in the concert hall and synagogue music world.  Whether at the piano or conducting the choir, Rosenzweig puts her energetic stamp on everything that is performed.

The length of the program - nearly two hours without an intermission - was a bit ill-judged in my view, especially as the seating was on hard-wood pews in a synagogue setting at Congregation Shaare Zedek, rather than the padded seats found in modern concert halls.  (By contrast, the Vox Vocal Ensemble, presenting a slightly shorter program, gave its audience some relief with a generous intermission.)  The program book included verses and translations for all the music performed, and the audience was encourage to join in singing familiar melodies, which conduced to a more participatory atmosphere than past Shabbat Shirah concerts by CBST.  Ultimately the program was a successful launch for a year of celebration of the sixth decade of the modern state of Israel, although Rabbi Cohen's narration pointedly brought out the mixed feelings that one may have about the nature of that history and the continuing contention over Israel's co-existence with its neighbors and those who assert claims to its territory and sovereignty.   The program was also designed to reflect that, including songs of the peace-protest movement and songs mourning the losses incident to the continuing state of warfare.  Despite being called a "celebration," this was not a program of unalloyed joy and triumphalism, and properly so.

Federal Court Recognizes HIV Confidentiality Claim Under ADA

U.S. District Judge Aleta A. Trauger of Tennessee ruled on January 14 that the Ford Motor Credit Company may have violated the Americans With Disabilities Act (ADA) when a supervisor who learned that an employee was HIV-positive spread the word to other workers without the employee’s permission. Trauger’s January 14 decision in EEOC v. Ford Motor Credit Company, 2008 Westlaw 152780 (M.D. Tenn.), denied a motion to dismiss the "John Doe" plaintiff’s claim that Ford had violated the medical confidentiality provisions of the Act.

Doe began working for Ford in 2000, and was diagnosed with HIV in 2002. His primary care physician enrolled him in a study at Vanderbilt Comprehensive Care Center, which required him to report to the Center on weekdays to have blood drawn. Doe’s participation in the study paid for his HIV medications. Doe did not want anybody in the workplace to know about his HIV infection.

Doe was concerned about telling his supervisor the reason why he would need to be absent from work, because he believed she was a gossip who could not be trusted to keep such information confidential. Instead, he approached a higher level manager to ask for a scheduling accommodation so he could participate in the study. The manager insisted on being told the nature of Doe’s "medical condition." Doe expressed reluctance due to confidentiality concerns, but after being assured the information would be confidential, Doe disclosed his HIV status to the manager. The manager immediately referred him to an occupational health nurse, an independent contractor retained by Ford to administer benefits and receive confidential medical information of this type to be held apart from workplace records.

The nurse advised Doe that he was not required to reveal the nature of his medical condition to supervisors or managers at Ford, and that all information should be channeled though her.

Several weeks later, the manager called Doe into his office, saying that Doe’s supervisor was giving the manager "a hard time" because he would not tell her why Doe was getting time off from work. Doe insisted he did not want to confide in this supervisor, and the manager acquiesced, but a few weeks later called in Doe again and insisted that the supervisor be told. Doe again expressed his fears about confidentiality, and pointed out that the nurse had counseled him that he was not required to reveal this information to his supervisor.

But the manager would not take no for an answer, telephoned the supervisor and asked her to come to his office. When she arrived, the manager told her that the information she was getting was confidential and not to be shared with anyone, and the supervisor said that she understood. Then the manager told her, in Doe’s presence, that Doe had HIV. Subsequently, the supervisor told Doe she would maintain a file with his medical excuses in her desk, and Doe complied with her request to give her the excuses, even though the nurse had told him this was not required. At a later point, the supervisor was informed she was not supposed to maintain such files in her desk, and she returned the file to Doe.

The supervisor lived up to Doe’s fears, telling two other employees about Doe’s medical condition, and one of them spread the information further. According to Judge Trauger’s opinion, "Mr. Doe suffered shame, embarrassment, and depression as a result of this disclosure" as word got around. "He took a leave of absence shortly after finding out about it, during which he sought medical treatment. When he returned form the leave of absence, the defendant laid him off, but he was subsequently rehired." Doe complained to the human resources department about the unauthorized disclosure of his medical information. They initially refused to take action against the supervisor, but after Doe protested, a new investigation determined that she had violated company policy and she was fired.

Doe filed a charge with the Equal Employment Opportunity Commission, which decided the case had merit and filed the lawsuit on Doe’s behalf. Doe then intervened as an individual plaintiff in the EEOC’s lawsuit, in order to add state law claims and seek damages. The state law claims were dismissed by agreement of the parties and Ford moved for summary judgment on the ADA claim, which Judge Trauger denied.

The main point of contention in the case was whether the fact that Doe was HIV-positive was the kind of medical information protected under the ADA confidentiality provisions. The ADA allows employers to require medical examinations and inquiries of employees that are job-related, and requires that the information obtained as a result be kept in medical files and treated as confidential. The statute does authorize disclosures to managers or supervisors as necessary to deal with work restrictions and accommodations for an employee’s medical condition.

Ford argued that the information in question was not obtained as a result of a medical examination or inquiry by the employer, but rather was offered voluntarily by Doe in order to get a scheduling accommodation. Trauger rejected this argument, finding that Doe was entitled to medical leave under the Family and Medical Leave Act, and that by insisting that he reveal the nature of his medical condition, the manager was conditioning his right to the leave on disclosure, making this into an inquiry by the employer. Trauger also pointed out that under Ford’s policy for medical leaves, Doe was required to disclose the nature of his medical condition to his supervisor in order to qualify for leave. Consequently, Ford could not credibly argue that this was a totally voluntary disclosure.

Ford also tried to make the rather nonsensical argument that the manager’s inquiry to Doe about his medical condition was not "job-related," since it did not relate to the ability of Doe to perform his job functions, and therefore was not covered by the ADA. "It is quite clear that the plaintiff-intervenor’s request for a schedule accommodation was related to his job," wrote Trauger, who asserted that because the manager "conditioned that leave on Mr. Doe’s response to his inquiry, that inquiry was also job-related." Trauger also noted that were the inquiry not job-related, it would have violated the ADA, which prohibited non-job-related inquiries about an employee’s medical condition.

Ford also argued that Doe could not maintain his ADA suit because he suffered no tangible injury, but Trauger found that Doe’s allegations sufficed to meet that requirement, stating that the "shame, embarrassment, and depression" he claimed to suffer "are tangible injuries." "Neither the defendant nor the court has identified any case in which the ‘tangible injury’ rule was applied to bar emotional or non-economic damages for claims arising from violations" of the confidentiality requirements of the ADA, she continued, noting that the 6^th Circuit Court of Appeals, which would hear any appeal in this case, had "upheld compensatory damages for emotional harm under different subsections of the ADA." Since Ford was not denying that Doe had suffered shame, embarrassment and depression as a result of the unauthorized disclosures, and that he had to take a medical leave of absence to deal with these problems, Trauger found that Does allegation "more than satisfies the plaintiff’s burden on summary judgment to demonstrate a tangible injury."

Trauger’s refusal to grant summary judgment to Ford will probably lead to a settlement of the case, since it is unlikely Ford will want a jury to decide how much Doe should get for Ford’s failure to preserve the confidentiality of his medical information.

New Orleans Court Rejects Challenge to Partnership Registry and Benefits

Louisiana District Court Judge Nadine M. Ramsey granted a motion by the city government of New Orleans for summary judgment in a pending challenge to the city’s domestic partnership registry ordinance and the provision of health benefits to domestic partners of city employees.  Judge Ramsey’s January 15 ruling in _Ralph v. City of New Orleans_ will undoubtedly be appealed through the state’s court system.

The lawsuit was filed by the Alliance Defense Fund, an anti-gay litigation organization, on behalf of a group of New Orleans residents in 2003, reacting somewhat belatedly to legislative developments of the 1990s.  The city decided to amend its health insurance program to extend benefits to domestic partners of its employees in 1997, and the city council enacted an ordinance creating the partnership registry in 1999.   After the lawsuit was filed, state voters approved an amendment to Louisiana’s constitution that in addition to forbidding same-sex marriages in the state also provides, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

As originally filed, the lawsuit contended that the partner registry ordinance violated a state constitutional prohibition against local governments passing laws "governing private or civil relationships," and that the legislative authority of the city did not extend to providing domestic partnership benefits for its employees.  After the marriage amendment was passed, the plaintiffs added the argument that providing any legal recognition or benefits for domestic partners violated the amendment.

The long delay in reaching a first decision on the merits of the case was due to an attempt by the city to get the case thrown out on technical grounds.  The city filed a motion to dismiss the case, claiming that the complaint did not state a valid legal claim and that the plaintiffs did not have standing to challenge the city policies.  A local judge granted the city’s motion, and was sustained by a divided court of appeals panel, but the state’s supreme court issued a decision in 2006, finding that city taxpayers do have standing to challenge any unlawful spending of taxpayer money.  Since the city conceded that some individuals were receiving domestic partnership benefits, and the city was contributing to the cost out of general tax revenue, that settled the question of standing to challenge the benefits.  The supreme court also opined that the question of the registry was sufficiently intertwined with the question of benefits to allow the lawsuit to continue on both issues.

In her brief opinion issued on January 15, Judge Ramsey ruled against the plaintiffs on all three legal theories.

First, she disagreed with the plaintiffs that the New Orleans policies constituted an attempt to “govern” private or civil relationships.  Quoting the registry ordinance, she pointed out that it “simply ‘establishes a mechanism for the public expression and documentation of the commitment reflected by the domestic partnership.’” The city did not seek to “govern” such relationships in any way.

Secondly, she observed that the city council has broad legislative authority under its home rule powers.  Under its municipal charter, “the City is permitted to pass any ordinance so long as it is not violative of the Louisiana Constitution,” she observed.  “This Court can find no authority to suggest that the extension of health care benefits to domestic partners of City employees is in any way in violation of the Louisiana Constitution.”  Indeed, she noted, a state statute specifically authorizes municipalities to “contract for any type of insurance protection for itself or its officers and employees,” which she interpreted to mean that “the City, as an employer, has the discretion to choose which benefits it will provide to its employees.”

Finally, Judge Ramsey saw no merit to the claim that the anti-marriage amendment had any application to this issue.  “The extension of health care benefits does not afford a legal status ‘identical or substantially similar to that of marriage,’” she wrote, “nor does it in any way trample on any purported public policy favoring marriage over unmarried cohabitation.  The City’s decision to extend health care benefits to the domestic partners of City employees simply provides health insurance to a greater number of persons, without regard to marital status.”

Since Alliance Defense Fund is paying for the case, an appeal seems assured.  When the suit was filed, the city invited Lambda Legal to intervene to represent the interests of individuals who are receiving health benefits under the city policy, and Lambda was afforded full participation in the case.