NH Judge Says Refusing Same-Sex Benefits Discriminatory

May 8, 2006 (PLANSPONSOR.com) - It is discriminatory to deny same-sex couples family health and bereavements benefits if it is illegal for them to be married, a New Hampshire judge ruled.

The ruling by Merrimack County Superior Court Judge Kathleen McGuire again begs the question of whether same sex couples – whose marriage is blocked by law – should receive the same family benefits as married employees, according to the Manchester Union Leader.

The newspaper reported that McGuire questions in her opinion whether the state can set qualifying criteria for same-sex benefits. “Nothing in this order prohibits the state from adopting reasonable administrative rules to establish criteria by which to determine whether a same-sex couple is in the type of committed relationship intended to qualify for the employment benefits sought by the petitioners,” she writes.

The Union Leader reported that McGuire’s decision will be appealed to the state’s Supreme Court, according to Senior Assistant Attorney Michael Brown. He said that the case law used by McGuire for the decision was based mostly on decisions by a Supreme Court decision in Alaska that said that the constitutional ban on gay marriage does not excuse benefit denial (See Alaskan Same-Sex Partners Due Benefits ) and one in New York. The decisions in the two state said as long as same-sex partners and unmarried couples are treated the same, then discrimination does not exist.

There have been some victories for groups contesting benefits denial for same-sex couples. A Michigan circuit court ruled in September 2005 that domestic partners of public employees are entitled to health benefits (See MI Gay Rights Group Wins Benefits Ruling ). In March, the Atlanta City Council gave a nod to measures that would allow participants of the city’s three pension funds to have registered domestic partners as beneficiaries (See Atlanta Lawmakers Approve Domestic Partner Pension Rights ).

The assistant attorney said his office also differs with McGuire’s legal analysis of state administrative rules and procedures, according to reports by the Union Leader. She ruled state law barring discrimination based on a person’s sexual orientation would replace provisions of administrative rules, the collective bargaining agreement and statutes governing state employee contract negotiations, the newspaper reported.

A spokesperson for New Hampshire Governor John Lynch told the newspaper that the governor backs domestic partner benefits and offering those benefits to state employees.

The case stems from a 2002 suit by two employees of the New Hampshire Technical College System against the state, claiming they were discriminated against when their partners were refused health benefits and they were denied bereavement leave. One of the attorneys for Gay & Lesbian Advocates and Defenders that worked on case said that “As long as same-sex partners are excluded from marriage, an employer cannot use marriage as requirement for benefits,” the Union Leader wrote.