DURHAM — Durham and Orange county officials don’t think Amendment One, if it passes Tuesday, will end their county benefits for same-sex couples.
“I would like to emphasize, however, that this is based on fresh ground,” Assistant Durham County Attorney Kathy Everett-Perry said Monday. “It hasn’t been litigated, domestic union hasn’t been defined by the courts, but our interpretation is that it should not affect what we are currently doing.”
The proposed constitutional amendment seeks to restrict marriage to one man and one woman and ban other forms of legal domestic unions. The amendment wouldn’t impact Durham County’s domestic-partner benefits because the county’s qualifications for the benefits differ from the legal definition of domestic partnerships and civil unions, according to a memorandum Everett-Perry wrote on the issue.
Nine local government across the state, including Durham, Orange and Mecklenburg counties, along with the cities of Durham, Chapel Hill and Asheville, offer domestic-partner benefits to employees.
Benefits wording may be issue
Those policies are worded differently, however, and legal challenges might ultimately determine how the amendment would impact each government’s benefits, attorneys from the county and the city of Durham said.
Since 2003, Durham County has offered domestic-partner benefits only to same-sex employees. About 10 county employees out of a workforce of about 1,800 use the benefits.
The Durham County policy excluded opposite-sex couples due to a concern about a state law that makes it a misdemeanor for an unmarried man and woman to cohabit, Everett-Perry’s memo states.
To qualify for the county benefits, same-sex couples have to have shared a residence for at least six months and be responsible for one another’s common welfare.
A legal definition of the term “domestic union” has yet to be decided, the memo states, but definitions of domestic partnership and a civil union have included terms such as “long-term relationship of indefinite duration” and “exclusive mutual commitment.”
“The wording of the county’s benefit offering is unique in that it basically covers two unmarried individuals who live together for the requisite time and are financially interdependent,” the memo states. “Therefore, there is a strong argument that the passage of the proposed amendment will have no effect on the county’s domestic-partner benefits.”
The city of Durham’s domestic-partner benefits are available to same-sex or opposite-sex couples who have been in a “committed relationship for mutual support and benefit” for at least six months, city policy states. About 22 of the city’s 2,384 employees receive the domestic-partner benefits.
City Attorney Patrick Baker said the passing of the amendment wouldn’t immediately affect the city’s domestic-partner policy; the expected court challenges that follow would decide if and how the city could respond, he said.
Orange County is waiting to see how the vote goes before it explores the issue in detail, County Attorney John Roberts said.
Orange County offers domestic-partner benefits to same- and opposite-sex couples in an exclusive relationship, he said. Five of the county’s 829 workers receive them,
“If it passes we will examine our ordinance to see if it needs to be amended,” Roberts said. “I don’t anticipate that Orange will stop offering domestic-partner benefits.”
On Monday, Durham commissioners also passed a resolution reaffirming their commitment to providing benefits to same-sex couples.
The unanimous vote came after speakers, including two county employees, expressed concern about the future of domestic-partner benefits after Tuesday’s referendum. .
Last month, commissioners tabled a resolution that would have put them on record against Amendment One, after the Durham County Republican Party questioned whether the resolution would violate a state law that prevents counties from using public funds to endorse or oppose a referendum, election or a candidate.
Four of the five Durham commissioners have said they oppose Amendment One. Pam Karriker, who is not running for re-election, said Monday, “I am for the amendment, however, I have no desire or intent to take anyone’s benefits away.”