Court grapples with domestic partner benefits

The Associated Press
Wednesday November 15, 2000

SAN FRANCISCO — A federal appeals court considered Tuesday whether cities such as San Francisco can demand that city contractors offer health and other benefits to domestic partners of unmarried workers. 

A three-judge panel of the 9th U.S. Circuit Court of Appeals did not indicate how it would rule during 90 minutes of oral arguments in two closely watched cases. But the cases, brought by the airline industry and an Ohio contractor, barely focused on gay and lesbian issues. 

Instead, they centered on intricate legal points such as regulation of interstate commerce and federal pre-emption. The issue boiled down to whether San Francisco, or the federal government, has the authority to tell companies what benefits they must offer to employees. 

The suits were sparked after an ordinance adopted by the San Francisco Board of Supervisors was implemented in 1997. It required companies that contract with the city to provide unmarried couples with the same benefits they grant to married couples. 

The ordinance affected the 28 airline carriers at San Francisco International Airport, who lease land from the city, and an untold number of contractors that perform a hodgepodge of work for the city. 

Last year, a federal judge sided largely against a suit brought by the airline industry challenging the nation’s first such ordinance. Following U.S. District Court Judge Claudia Wilken’s ruling, the cities of Seattle and Los Angeles adopted similar measures. 

More are expected to follow if the court upholds San Francisco’s ordinance, said Jennifer C. Pizer, managing attorney for the Lambda Legal Defense and Education Fund Inc. 

“Everybody’s watching this,” said Pizer, who noted that hundreds of companies across the nation offer domestic partner benefits. 

Wilken ruled that the airlines must provide the same fare discounts, family leave and bereavement leave to domestic partners as to married couples working in San Francisco. 

The judge excluded health and pension benefits, saying the federal government has jurisdiction for the airline industry.  

After an appeals court declined to block Wilken’s decision, several airlines began offering the same benefits to domestic partners as they do to married couples. They include United Airlines, U.S. Air, Federal Express and American Airlines. 

Wilken also dismissed a suit brought by electronics firm S.D. Myers of Tallmadge, Ohio, which was disqualified from a San Francisco project because it did not afford the same benefits to its domestic partner employees as it did to married ones. 

Lawyers for that firm, funded in part by televangelist Pat Robertson’s American Center for Law and Justice, stayed away from the hot-button gay rights issue. 

The company’s lawyer, Kevin Theriot, said San Francisco’s ordinance impacts interstate commerce and therefore should be nullified.  

He said the company should not have to offer the domestic-partner benefits to any of its 370-member work force in Ohio because it wants to contract work in San Francisco. 

“It has nothing to do with the performance of the contract,” he said to the three judges. 

But in a statement, Jay Sekulow, American Center for Law and Justice chief counsel, said the ordinance “undermines the institution of marriage and conflicts with the moral values of most Americans.” 

In the airlines case, Brendan Dolan, who represented the Air Transport Association of America, a consortium of airlines, said the federal government can only dictate how airlines should function. 

“An ordinance which sets a lease or permit term ... is pre-empted,” Dolan told the judges. 

Judge Johnnie Rawlinson noted that the U.S. Supreme Court has recently expanded states rights and asked, “Is your view consistent with an emerging view of pre-emption?” 

Dennis Aftergut, chief assistant city attorney for San Francisco, dismissed Dolan’s contention and said the ordinance in question is similar to cities’ rights to limit airlines’ noise and congestion. 

“We have an interest in distancing ourselves from discrimination,” Aftergut told the judges in one of the few courtroom comments addressing morality. 

The panel did not say when it would rule. 

The cases are Air Transport Association of America vs. San Francisco, C97-01763CW, and S.D. Myers vs. San Francisco, 97-04463CW.