Court: State Domestic Partner Omission From Bereavement Policy Not Unconstitutional

July 14, 2003 ( - The failure to cover domestic partners in a state of Indiana funeral leave policy is not a violation of the state constitution.

>The funeral leave policy, that grants paid leave for the death of a close relative of an employee’s spouse but not of a domestic partner, was found to be within the parameters of the state constitution by Judge James Kirsch of the Indiana Court of Appeals.   Even though the court found the state’s justifications “unpersuasive,” since the privilege is equally available to all members of the class of married employees, there thus no violation was found by the court, according to Washington-based legal publisher BNA.

>This came after the plaintiff, Jana Cornell, argued that the funeral leave policy violates the privileges and immunities clause of the Indiana constitution as applied to same-sex couples because they are prohibited by law from marrying their domestic partners. The state defended the funeral leave policy by arguing that it promotes marriage and procreation and that it would be administratively difficult to determine who qualified for leave if the policy included same-sex domestic partners.

“We find these justifications unpersuasive in light of the fact that … many of the largest employers in this country and this state, including its two largest universities, now provide benefits to same-sex domestic partners,” the court wrote. “Moreover, an examination of the policy itself undermines the State’s assertion because it allows for leave time upon the death of a member of an employee’s household, without regard for whether the two were legally related,” the court added.

“Instead, the policy exists to strengthen family relationships, and families are different today than they once were,” the court said. He added that interracial marriages once were prohibited but now “are commonplace.” Also, “while society formerly regarded childrearing as exclusively the province of couples consisting of one man and one woman, that too has now changed.”

“Curiously, however, Cornell concedes that the policy is rationally related to marriage,” the court found. “Therefore, based on Cornell’s framing of the issue, we are not faced with the close question of whether, in this age of changing family relationships, the policy’s distinction based on marital status is rational, but whether the privilege is equally available to all persons similarly situated.”

Committed Relationship

>Cornell, who works for the Indiana Family and Social Services Administration, sued after she was denied funeral leave when her domestic partner’s father died. She alleged that the leave policy violated the privileges and immunities clause of the state constitution, which provides that the state legislature “shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

>She stated that she is a lesbian in a committed five-year relationship with a woman whom she would marry if same-sex marriage were not prohibited by state law. When the father of Cornell’s domestic partner died in 1999, Cornell requested three days of funeral leave. Her immediate supervisor approved the request, but the state personnel department later denied it. Cornell had to use vacation days instead.

>The funeral leave policy provides: “The appointing authority may allow leave with pay, not to exceed the employee’s next three (3) regularly scheduled work days, in the event of the death of any relative specified in this section. … Such leave may be granted upon the death of a husband, wife, father, mother, son, daughter, brother, sister, grandparent, grandchild, or the spouse of any of these, or a person living in the same household with the employee. For a married employee, these members of the spouse’s family are included.”

>After Cornell sued, the Marion County Superior Court dismissed the case, agreeing with the state that she failed to exhaust administrative remedies. However, the appeals court reversed and remanded the case. The trial court later granted summary judgment to the state, finding that the funeral leave policy does not violate the privileges and immunities clause because it treats all unmarried people the same.

The case isCornell v. Hamilton,Ind. Ct. App., No. 49A02-0208-CV-635, 7/8/03.