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Court Finds Arlington's Benefits Policy Illegal
County Covers Unwed Partners

By Patricia Davis
Washington Post Staff Writer
Friday, March 5, 1999; Page B01

An Arlington judge ruled yesterday that the county's policy of providing health insurance benefits to its unmarried workers' domestic partners is prohibited under state law, a decision that drew praise from conservative and anti-tax activists and criticism from gay rights groups.

"What the county is attempting to do, noble as it might be, is illegal," Circuit Court Judge Benjamin N.A. Kendrick said.

Arlington two years ago became the first jurisdiction in Virginia to adopt such a policy. But Kendrick, ruling on a lawsuit filed by three county residents, said Virginia law does not give local governments the authority to define "dependent" as including both married and unmarried partners.

In making his ruling, Kendrick said he was addressing a legal question, not a moral or ethical one. He added that he hopes the county will appeal his decision so the issue can be addressed by the Virginia Supreme Court, and he agreed to stay his ruling until county officials decide whether to appeal.

Although Arlington's policy covers both same-sex and heterosexual unmarried couples, the case has drawn particular attention from gay rights groups, who decried Kendrick's ruling yesterday.

"The decision continues to illustrate the inequity in our society when it comes to the relationships of gay and lesbian people," said Kim Mills, spokeswoman for Human Rights Campaign, the largest national political organization of gay men and lesbians. "This is certainly out of step with what private industry is doing. We're seeing an increasing number of private employers instituting domestic partner benefits. They're simply equal pay for equal work."

More than 100 local governments nationwide, including Baltimore and Takoma Park, have policies similar to Arlington's, according to gay rights activists.

But Virginia, unlike Maryland and most other states, is governed by the so-called Dillon Rule, which says that local governments "have only those powers that are expressly granted . . . or implied" by the state legislature.

Assistant County Attorney Peter H. Maier argued at yesterday's court hearing that the Virginia legislature did not define those dependents eligible for health benefits, leaving it up to the county to do so "reasonably."

"The county is not creating a new marital status," Maier said. "We're not creating same-sex marriages."

But Jordan Lorence, the plaintiffs' attorney, disagreed, saying that the county had in effect created a "marriage-like" relationship by its new rule. He noted that Virginia does not recognize common-law marriages or same-sex marriages. Lorence also argued that Arlington had circumvented the Dillon Rule.

Kendrick agreed that the Dillon Rule was at the heart of the case. Two years ago, then-Attorney General Richard Cullen raised a similar objection to Arlington's action.

One of the plaintiffs in the lawsuit, Wendell Brown, 51, said he sued the county because he thought the County Board's decision to extend health benefits to unmarried partners was detrimental to the family as an institution.

"I was concerned that the county was trying to redefine marriage," Brown said after the hearing. "I care deeply about protecting marriage, which I understand is one man and one woman. This is not a gay rights' issue. This is a family issue."

Arlington's policy defines an employee's domestic partner as someone who has lived with the employee for at least one year and is not related. It also says the employee and partner must be involved in a "mutually exclusive relationship of support and commitment."

The number of dependents receiving benefits rose by 24 after Arlington's new rule took effect on July 1, 1997, but county officials said they did not know how many of those 24 were unmarried partners. If all of them were adults, the additional cost to the county would be just over $100,000 a year, they estimated.

County Board member Jay Fisette (D), who attended yesterday's hearing but was not on the board when the policy was adopted, said the county decided to include domestic partners in health insurance coverage both out of fairness to employees in same-sex relationships and to attract and retain top-quality job candidates.

Fisette said he has been in a same-sex relationship for 16 years but did not apply for the benefits because he and his partner had no financial need to do so.

He said the residents' lawsuit was backed by "right-wing organizations that want to impose their narrow definition of the family. Communities should be the ones to make the decisions."

But Tom Brooke, a spokesman for the Arlington Republican Party, said the all-Democratic County Board is to blame for approving the policy without public hearings and without consulting state officials. Leaders of the Arlington County Taxpayers Association also have criticized the board for not holding hearings.

"It's the typical Arlington way," Brooke said. "It's a behind-closed-door deal, and it blew up in their faces."

© Copyright 1999 The Washington Post Company

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