OutRight

Lambda Strikes Out Again
Why it’s a bad idea to fight to include unmarried heterosexual couples in domestic partner legislation
by Dale Carpenter

In a recent column, I criticized the Lambda Legal Defense and Education Fund for arguing in court that the Chicago public school system’s same-sex-only health benefits program is unconstitutional. Now Lambda, in a response by senior attorney Pat Logue, has denied it argued any such thing. Lambda’s response misrepresents the dangerous arguments the group made. Perhaps worse, Lambda also discounts the special advantages of marriage as an institution, undermining the case for gay marriage itself. Since Lambda is the most important gay legal organization in the country, it is critical the group reconsider its direction on the issues of same-sex benefits and marriage.

Here’s some background. Two years ago, the Chicago public schools offered health benefits to the same-sex domestic partners of its employees. The program did not include unmarried opposite-sex partners. Milagros Irizarry, a heterosexual employee, charged the policy discriminated against her and the boyfriend she’d chosen not to marry.

When a federal judge upheld Chicago’s program, Lambda (which was not even part of the lawsuit) filed a special brief urging the appellate court to reverse that decision. Yet Lamda now denies it ever actually argued the Chicago policy is unconstitutional. At best, this denial is disingenuous.

The applicable constitutional principle is simple: When government policy treats one group of citizens differently from another, it must have at least a rational justification for doing so. Otherwise, the policy violates the requirement that everyone should get the "equal protection" of the laws.

Lambda argued the Chicago schools had failed to meet that constitutional mandate. I quote verbatim from page 14 of the Lambda brief: "Using the proper equal protection lens, it is apparent that the Board [of Education of the City of Chicago] has not justified its different treatment of employees like Irizarry."

The Lambda brief went on to criticize each reason given by the Chicago schools for excluding opposite-sex partners, including the fact that straight couples may get married and thus qualify for more extensive benefits than gay couples ever could. Even now Lambda insists the Chicago schools somehow "discriminate" in favor of gay couples.

Lambda’s brief suggested the schools’ rationale for the program is a pretext for "animus or mere negative attitudes" against unmarried straight couples and "cannot provide a rational basis for the Board’s actions and cast doubt on other justifications that may be offered" by the schools. Sounds like Lambda thinks the same-sex-only policy is unconstitutional.

I suppose Lambda could argue the Chicago schools should be made to think up more justifications for this gay-friendly policy in yet more litigation. But what explanation could possibly satisfy Lambda if the obvious one–that the overall package available to employees already favors straight couples–doesn’t do the trick?

Lambda’s brief then proposed a "remedy"–force the Chicago schools to include unmarried straight couples in the program–for a constitutional problem Lambda now claims did not necessarily exist. More on the effect of that remedy below.

There is additional dispiriting news in Lambda’s response. Without support or logic, Lambda dismisses as "garbage research" the overwhelming evidence that married couples are, on average, happier and healthier than are single people or unmarried couples. There is room for debate about why this is so, but there is no serious debate that it is so.

Instead of disputing the comparative benefits of marriage, Lambda should cite those advantages as powerful reasons why denying marriage to gays is so cruel. After all, gays should have access to the same superior life prospects straight people have access to. But then to make this argument Lambda would have to accept the singular importance of marriage, which its post-modern ideology can’t stomach.

If I and other gay critics have misunderstood Lambda’s views, the group can end the confusion by answering this question: Does Lambda believe that a public employer’s same-sex-only domestic partners’ program is unconstitutional?

If the answer is "no," I apologize in advance and only ask the group to insist on more careful brief-writing by its attorneys in the future. An apology will also be due Lambda from the unanimous appellate judges who found it "surprising" a gay-rights group would oppose a gay-rights measure.

If the answer is "yes," I have one further question: Does Lambda also believe that a private employer’s same-sex-only domestic partners’ program violates federal or state antidiscrimination law (as some have argued)?

A lot rides on the answers to these questions, including health coverage for thousands of gay couples across the country. Cities like Philadelphia, New Orleans, and Baltimore, and three of the eight states that presently offer their employees domestic partners benefits (California, Connecticut, and Washington), exclude most opposite-sex couples. So do countless private employers in the U.S., including six of the seven Top Ten Fortune 500 companies that offer such benefits.

If Lambda succeeds in convincing courts these policies violate the law, employers will have to choose between offering the benefits to everybody and offering them to nobody. Many employers, concerned about rising health-care costs, will offer them to nobody. That will leave gay couples with nothing while married couples continue to get health coverage. Lambda has been oddly silent on this consequence.

I do not believe Lambda is deliberately trying to hurt gay couples. Quite the opposite is true: The group has a proud history of pushing for gay equality. But the potential repercussions of Lambda’s litigation strategy are no less harmful for being unintended.

We have the right to know what Lambda is arguing in court on our behalf. We’re waiting to hear.