by Jordan Green
Winston-Salem prepares to join other North Carolina cities that provide same-sex, domestic-partner benefits, and some council members are willing to defy the state constitution, if necessary, by recognizing same-sex marriages performed out of the state.
Members of Winston-Salem City Council are talking about extending same-sex, domestic-partnership benefits to city employees, following the lead of Greensboro, Durham, Charlotte and other North Carolina cities.
While other cities quietly extended benefits to employees in same-sex partnerships without fanfare or controversy, council members in Winston-Salem are exploring the idea as politics in North Carolina have undergone a process of super-heated polarization. Likewise, Democrat-led cities have increasingly clashed with the Republican-controlled state government over a variety of issues.
Councilman Dan Besse, a progressive Democrat who represents the Southwest Ward, said he and other council members approached the city manager about making the change because of a sense that the time is ripe.
“I think public attitudes towards equal treatment for same-sex couples have been shifting substantially over the past few years towards greater acceptance,” Besse said. “That to me has signaled that raising this proposal is more likely than ever to be successful. I don’t personally like to pick fight I can’t win. It seemed to me that we were in a position to win.”
The city of Greensboro extended benefits to employees in same-sex partnerships in early 2007, before the debate over same-sex marriage became charged in North Carolina with the referendum to amend the state constitution in 2012. The city of Charlotte extended benefits in 2013, following approval of the marriage amendment by voters across the state.
[pullquote]’The only reason we’re offering this is because same-sex couples don’t have the right of marriage under the state constitution. It pretty much confirmed why we’re offering it.’ — Larry Cooper[/pullquote]Before extending benefits, the city of Greensboro sought advice from state Attorney General Roy Cooper. When the attorney general declined to take a position, the city went ahead and adopted the policy, which simply states that the city’s benefits package will not discriminate with regard to sexual orientation.
“We’ve not received any legal challenge,” said Larry Cooper, benefits manager for the city of Greensboro. “The main rationale and reason that it’s in place is because North Carolina does not recognize same-sex couples as being legally recognized in marriage. Because they don’t offer that alternative we offer that in our benefits package. Should same-sex marriage become legal in North Carolina this would probably go away because there wouldn’t be any distinction.”
Opponents of the 2012 marriage amendment argued, among other tacks, that passage would nullify local governments’ same-sex benefits programs. That did not turn out to be the case.
“It didn’t affect us,” Larry Cooper said. “The only reason we’re offering this is because same-sex couples don’t have the right of marriage under the state constitution. It pretty much confirmed why we’re offering it.”
Interest in extending domestic-partnership benefits in Charlotte and Winston-Salem represents a political cleaving between North Carolina’s cities and the rest of the state.
“We’re a great state, but the urban cores don’t reflect sometimes the views of the state,” Councilwoman Denise D. Adams, a Democrat who represents the North Ward in Winston-Salem, said. “We believe in what’s just and right.”
Besse said that the move is not just a matter of justice, but also competitiveness for Winston-Salem as other states advance LGBT rights.
“That means that we are looking at the potential of seeing a lot more of our city employees interested in taking advantage of partner benefits for same-sex couples,” he said. “There’s always turnover on staff. Particularly for some of the most skilled positions there are people applying from out of state. There are more folks who may be looking at Winston-Salem and feeling us out when we’re looking at a talent pool for top positions and feeling that we’re more competitive.”
Winston-Salem City Attorney Angela Carmon presented a draft policy to extend domestic-partnership benefits to same-sex employees to city council’s general government committee on July 15. She said her draft policy was taken “almost word for word” from one adopted by the city of Charlotte on Jan. 1, 2013. Benefits extended to employees who demonstrated eligibility include sick leave, family medical leave, funeral leave and survivor’s benefits, among other provisions.
To meet eligibility, employees would have to sign an affidavit affirming a number of criteria, including shared responsibility for one another’s common welfare and financial obligations and that they consider themselves to be a family.
Besse said he believes other cities’ policies are unfair because they force married same-sex couples to “jump through a set of hoops” to establish eligibility rather than simply present their marriage certificates, while also discriminating against non-married heterosexual couples.
“I believe that it’s possible to interpret the recent ‘Amendment One’ to the North Carolina Constitution in a manner that does not prohibit Winston-Salem and other local governments from taking note of these legally-binding contractual relationships as sufficient showing of a family-dependent status to establish eligibility for coverage under our personnel benefits policies,” Besse said.
“Candidly, it seems to me that any interpretation of ‘Amendment One’ which did require us to ignore those legal contracts would be struck down in court on challenge as contrary to the ‘full faith and credit’ clause of Article IV of the United States Constitution,” he added. “It’s pretty straightforward: The US Constitution trumps anything in the state constitution.”
Mary Jamis, a Mocksville resident who works in Winston-Salem and operates a business there, told the general government committee that she and her same-sex partnered filed their state taxes as a married couple, buttressing Besse’s argument that the city is unlikely to be challenged if it opts to recognize same sex marriages for the purpose of establishing dependent status to extend benefits.
“We were married together in New York City,” Jamis said. “We filed our federal taxes as was legal, but we also chose to challenge the state and filed our state taxes married filing jointly this year. We challenged the system. We sent our taxes by certified mail to the state. We sent a copy of our marriage license and a photo of our marriage so that we could draw attention to the fact that we were doing this, and we wanted to be recognized. We received our refund about two months later with no questions asked. So, I think to the point you’re making, the state is not challenging us in how we filed our return and I think that’s a really important point to make as we choose how to not write discrimination into these laws.”
Besse and his colleague, Councilwoman Molly Leight, a Democrat who represents the South Ward, said they believe the city needs to do right by employees in same-sex partnerships no matter whether doing so invites litigation.
“There comes a point at which fear of being sued interferes with your ability to provide fair treatment to your citizens,” Besse said. “We may have reached that point, and it’s time to move forward and do the right thing.”