From the Washington Post

Civil Union Laws Don't Ensure Benefits

Same-Sex N.J. Couples Find That Employers Can Get Around New Rules

by Anthony Faiola

Saturday, June 30, 2007

When New Jersey became the first state outside liberal New England to approve same-sex civil unions, Craig Ross and Richard Cash were among the hundreds of couples who hurried to get their licenses. With Cash unemployed and his private health insurance costing $480 a month, the couple hoped the new law would be their financial white knight -- compelling Ross's employer to give his partner the same spousal benefits as heterosexual married couples.

But more than four months after New Jersey's civil union law went into effect, Ross, 46 and Cash, 54, are among the many same-sex couples severely disillusioned with their prospects for legal equality. Citing federal regulations that allow many employers to effectively ignore state laws regarding corporate benefits, the Fortune 500 company where Ross has worked as a computer specialist for 21 years denied the couple's request for joint coverage.

"I feel beaten up and deflated," said Ross, who asked that his company's name be withheld out of concern for his job. "Everyone celebrated when this thing passed because we thought it would be equal to marriage, that the only thing different would be that we called it 'civil unions.' But civil unions aren't giving us the legal rights we hoped for."

Since the movement to win legal recognition for gay and lesbian couples began in earnest more than a decade ago, states have sought to use new designations -- including "civil union" and "domestic partnership" -- to define the legal status of same-sex couples. But some activists now fear that the problems in New Jersey may signal that the movement to win equal marital rights for same-sex couples nationwide will be harder fought than many had thought.

A recent study by Garden State Equality, New Jersey's leading gay advocacy group, indicated that as many as one in eight of the 1,092 same-sex couples who have registered for civil unions there have been denied all or part of the benefits they hoped to gain from the law. That is particularly significant because New Jersey, as the first state outside New England to approve civil unions, was seen as a bellwether in gauging how they would take root outside the bluest of the blue states.

"The supporters of this law hoped this measure would be implemented and enforced without any major difficulties or consequences," Rep. Joseph J. Roberts Jr., speaker of the New Jersey General Assembly, wrote in a letter to the state banking and insurance commission. "Regrettably, this apparently has not been the case."

Most vexing for gay couples in New Jersey is that they have little legal recourse. Smaller companies that buy private health insurance plans for their employees are compelled to offer them to same-sex couples under the state's civil union laws. But most legal experts agree that federal regulations give companies with self-funded insurance plans -- a group covering 55 percent of the country 105 million working-age employees -- the power to ignore state laws regarding corporate benefits.

And when companies choose to follow federal laws, they often cite the 1996 Defense of Marriage Act, which defines marriage as a union between a man and woman as a reason to deny coverage to same-sex couples. New Jersey officials estimate that almost 90 percent of the reports of noncompliance to date have been linked to companies covered by these federal laws.

"If a company believes it is covered by federal law, our answer when we are asked whether they have to provide coverage to civil union couples is "we don't know yet,' " said J. Frank Vespa-Papaleo, director of the New Jersey Division of Civil Rights. "It's a lawyer's answer that people don't want to hear, but we're talking about uncharted territory because the law is just not clear on this."

Experience has shown that further measures can persuade companies to provide benefits. California, for instance, passed a domestic partnership law in 1999. But after running into some resistance from corporations claiming to be protected by federal law, California passed follow-up legislation mandating that any company doing business with the state also guarantee domestic partnership coverage to same-sex couples.

That law compelled many large corporations such as Federal Express, which is not offering benefits to couples joined in civil unions in New Jersey, to do so in California, according to a company spokeswoman. In New Jersey, however, many couples have not been as lucky.

After Bruce Moskovitz, 54, and John Fellin, 59 -- who work at the same major pharmaceutical company in New Jersey -- registered their civil union on April 1, they were told by their employer that they could name each other as beneficiaries of their pensions. But while married spouses receive 50 percent of their deceased partner's corporate retirement pensions for life, the two men together for 24 years were informed that the their surviving partner would be granted similar payments for only 60 months.

The couple said they feel a gain in some areas -- next year they can file joint state tax returns, and they now have the power to make medical decisions if their partner becomes incapacitated. But they nevertheless feel disappointed.

"I'm not saying I don't feel we made some progress, but we've also set up a double standard at the same time," said Moskovitz, who also requested the name of his company be withheld. "The reality is that civil unions are not being treated as marriage -- they're clearly seen as something less."

The denial rate in New Jersey may turn around. In the only other two states with civil unions -- Connecticut and Vermont (New Hampshire is set to begin offering them in January) -- initial confusion about the bill also resulted in rough starts. But officials and activists in both states are quick to point out that while some couples continue to be denied benefits by companies citing federal laws, most have provided them because of the region's liberal corporate culture.

Although companies with self-funded insurance programs in Massachusetts also have the right to ignore the state's gay marriage law, activists and state officials call the withholding of benefits uncommon.

That is partly, they say, because companies denying coverage to same-sex married partners appear to present a more direct bias. "You're basically forcing a company to come out and say -- look, it's not because you're not married, it's because you're gay," said Mary Bonauto, civil rights attorney with Boston-based Gay and Lesbian Advocates and Defenders. "The discrimination becomes that much more obvious; it's a line companies aren't so eager to cross."

But advocates concede that the experience in liberal Massachusetts may not translate in other states. Some employers who initially declined to extend marriage benefits to gay couples there came under immediate and intense public pressure to comply.

For instance, shortly before gay marriage was approved there in 2004, an official with the International Brotherhood of Electrical Workers made a statement to reporters saying the 6,000-member union would not extend benefits to same-sex married couples. It immediately became headline news.

"We had news trucks parked outside all day, and there was a huge outcry. We had [Rep.] Barney Frank calling us along with everyone else. We were all over the television as the bad guys," said Richard Gambino, the union's trust fund administrator.

"Then our board met to actually discuss it, and we decided to go ahead and offer those benefits," he said. "Did we do it because of the pressure? People will think what they want to think. But I think we just did the right thing."