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ACLU Amicus Brief in Martin v. City of Gainesville
IN THE CIRCUIT COURT OF THE
EIGHTH JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY, FLORIDA
CASE NO.: 01-00-CA-1814
JACK W. MA RTIN,
Plaintiff,
Division "J"
vs.
CITY OF GAINESVILLE,
Defendant.
___________________
MEMORANDUM OF LAW OF AMICI CURIAE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
COME NOW, the Amici Curiae, the AMERICAN CIVIL LIBERTIES UNION LESBIAN AND GAY RIGHTS PROJECT, the AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA, and the HUMAN RIGHTS COUNCIL OF NORTH CENTRAL FLORIDA, by and through their undersigned ttorneys, and file this Memorandum of Law in opposition to the Plaintiff's Motion for Summary Judgment and say:
STATEMENT OF INTEREST
The AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nonprofit, nonpartisan corporation founded in 1920 for the purpose of maintaining and advancing civil liberties in the United States. It has over 300,000 members nationwide. The ACLU and its fifty-three state affiliates have participated in extensive litigation to combat discrimination grounded in sexual orientation. In 1986 the ACLU created a Lesbian and Gay Rights Project to direct this litigation.
The ACLU FOUNDATION OF FLORIDA is the state-level affiliate of the American Civil Liberties Union, and is dedicated to preserving and advancing civil liberties, including the right of equal protection against laws discriminating on the basis of marital status and sexual orientation.
Incorporated in 1993, the HUMAN RIGHTS COUNCIL OF NORTH CENTRAL FLORIDA (HRCNCF) is a non-profit educational corporation whose purpose is the promotion of social welfare and civic betterment through the dissemination of information regarding discrimination based on sexual orientation.
Collectively, the Amici submit this Memorandum of Law in support of the City of Gainesville's right to establish an employee benefits plan that provides equal benefits to all employees, regardless of sexual orientation or marital status.
INTRODUCTION
In April 2000, the City of Gainesville established a policy to provide health insurance benefits to the domestic partners of City employees. The Policy Related to Health Insurance Benefits to Domestic Partners of City Employees (the Domestic Partner Health Benefits Policy) provides that domestic partners of employees and the dependent children of those domestic partners are entitled to benefits under the City's Health Plan. In order to be eligible for domestic partner health insurance benefits, an employee must file an affidavit stating, among other things, that the employee and his or her domestic partner "share responsibility for a significant measure of each other's common welfare and financial obligations." Domestic Partner Health Benefits Policy, at 4. In enacting this policy, the City joined dozens of cities and counties across the country that provide domestic partner benefits to their employees.
Plaintiff argues that the City lacked the home rule authority to establish the Domestic Partner Health Benefits Policy. Specifically, he argues that the Policy creates a "relationship that is the equivalent of marriage" (Plaintiff's Memorandum at 13-14), and thus, conflicts with Florida's statutory prohibition against same-sex marriage (?741.212, Fla.Stat., the "Defense of Marriage Act" or "DOMA") and amounts to impermissible local regulation of domestic relations.
However, as discussed below, the City's Domestic Partner Health Benefits Policy does not conflict with the Defense of Marriage Act or otherwise encroach upon Florida's domestic relations law because it does not create a marital status or a relationship that is the equivalent of marriage. It does nothing more than provide certain health insurance benefits to City employees. To compare this single employment benefit to the host of rights and obligations created by marriage is absurd.
Moreover, in establishing its Domestic Partner Health Benefits Policy, the City acted pursuant to the express legislative authority to provide health insurance for its employees and the dependents of its employees. ?112.08(2)(a), Fla. Stat. By leaving the term "dependent" undefined, the state legislature left this matter to local discretion, and the City's inclusion of domestic partners - who share responsibility for one another's welfare and financial obligations - in its health plan is consistent with the ordinary meaning of the word.
Another Florida circuit court recently rejected identical arguments raised in a challenge to Broward County's domestic partnership ordinance. Lowe v. Broward County, Case No. 99-2775(09) (Circuit Court, 17th Jud. Cir., Broward County). In that case, the court held that Broward County's Domestic Partnership Act - which not only provided for health insurance and other benefits to county employees, but also established a domestic partner registry for all county residents and associated benefits - did not create a "marriage-like relationship" (Plaintiff's Memorandum, at 8), and that the County was within its home rule authority in enacting the Act. Courts across the country have addressed analogous challenges to domestic partner laws and have rejected them for the same reasons.
A. Florida's Home Rule Law Gives Cities Broad Authority to Legislate in Matters of Local Concern
Florida gives its municipalities broad authority to conduct the business of local government. The Florida Constitution expressly grants the authority to accomplish any municipal purpose not contrary to law:
Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law....Section 2, Art. VIII, Fla. Const. The legislative grant of authority further enhances the broad range of these home rule powers: ?166.021 Powers -...
(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation ?;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter?
The strength of Florida's home rule authority is perhaps best illustrated by comparing it to the opposite principle known as "Dillon's Rule", which is the standard for municipal authority in some other jurisdictions. Dillon's Rule has been defined in the following terms:
Rule used in construction of statutes delegating authority to local government:
[A] municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation - not simply convenient, but indispensable?
Black's Law Dictionary, 5th Ed., citing Merriam v. Moody's Executors, 25 Iowa 163, 170 (1868).
The contrast between Dillon's Rule and Florida home rule powers could not be more clear: municipalities in Dillon's Rule jurisdictions are limited to exercising only those powers which they are expressly allowed to have by the Legislature, while home rule states - like Florida - allow municipalities to exercise all powers necessary to promote the health, safety and welfare of their citizens with the exception of those powers reserved to the Legislature or limitations imposed by the U.S. and state Constitutions.
The provision of employee benefits is clearly a proper municipal purpose. The Legislature itself recognized this fact when it authorized municipalities to provide group insurance for employees and their dependents:
Every local governmental unit is authorized to provide and pay out of its available funds for all or part of the premium for life, health, accident, hospitalization, and legal expense, or annuity insurance, or all or any kinds of such insurance for the officers and employees of the local governmental unit and for ... the dependents of such officers and employees...
?112.08(2)(a), Fla. Stat. Gainesville's decision to extend health benefits to a broad class of employee dependents is authorized by law and well within its home rule powers.
B. The City's Policy of Providing Health Insurance Benefits to the Domestic Partners of its Employees does not Create a "Relationship that is the Equivalent of Marriage" and does not Conflict or Encroach upon Florida's Domestic Relations Laws.
Plaintiff contends that the City's Domestic Partner Health Benefits Policy conflicts with or encroaches upon state domestic relations law, including the Defense of Marriage Act, by creating a "relationship that is the equivalent of marriage". See, Plaintiff's Memorandum at 13-14. The Plaintiff also claims that the area of domestic relations law is of statewide concern and is preempted by the Legislature. While domestic relations law may well be a preempted subject, that fact has nothing to do with Gainesville's Domestic Partner Health Benefits Policy. It cannot be said that the benefits which Gainesville now offers to the domestic partners of its employees in any way creates a marriage or marriage-like relationship.
Under Florida law, a marriage is created by a formal ceremony, governed by statute, by which one man and one woman agree to a host of legal rights and obligations affecting all aspects of their lives and property. Some of the rights which are exclusive to the marriage relationship include: equal rights in property acquired during the marriage (?61.075 Fla. Stat.); the right to hold property as tenants by the entireties (?689.11, Fla. Stat.); the right to alimony upon dissolution of a marriage (?61.071, 61.08, Fla. Stat.); the right to an elective share in the estate of a deceased spouse (?732.102 Fla. Stat.); the right to enter into a gestational surrogacy agreement (?742.15(1), Fla. Stat.); distribution rights in homestead property (?732,401 Fla. Stat.; ?4(c), Art. 10, Fla. Const.); legitimacy of children born out of wedlock upon the marriage of the parents (?742.091 Fla. Stat.); and certain state and federal tax benefits.
In contrast, the Gainesville benefits package merely extends health insurance to additional dependents of City employees. The Gainesville Policy does almost nothing that a legal marriage accomplishes in this State. Thus, there is no conflict with or encroachment on DOMA or any state domestic relations law. Furthermore, because the Policy, unlike marriage, has no significance outside of the context of the City's provision of employee benefits, it poses no risk of "chaos or confusion" in other parts of the State, as Plaintiff suggests. See, Plaintiff's Memorandum at 10.
The primary thrust of Plaintiff's argument is that the Gainesville Domestic Partner Health Benefits Policy conflicts with Section 741.212, Fla.Stat. (the Florida Defense of Marriage Act) because it acknowledges a "marriage-like" relationship. However, the Defense of Marriage Act ("DOMA") says nothing about employee benefits; it does not define dependents; it does not address the extension of incentives to persons living with others of the same or opposite genders. It merely states that Florida will not recognize marriages in other jurisdictions between persons of the same sex. There is no need to construe such a plain and unambiguous law. Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.").
Notwithstanding the limited language of the state, the Plaintiff argues that the state Legislature passed DOMA with the specific intention of outlawing insurance benefits for domestic partners. See, Plaintiff's Memorandum at 2, 10. In the absence of tangible proof of this position, Plaintiff relies on the statement of his counsel that he assisted in the drafting of the DOMA and must therefore be presumed to know the Legislatures intent. Id. at 10.
The Florida Rules of Professional Conduct instruct lawyers to avoid circumstances where their personal credibility becomes confused with their advocacy. The wisdom of that Rule is well-reflected in this case, where the legislative history underlying DOMA does not bear out Plaintiff's claims.
There is not the slightest indication in that history that the Legislature was at all concerned about domestic partner benefits or the establishment of classes of dependents other than the traditional spouse and natural children. See, generally, Appendix, Tab I (House and Senate Histories and text of Bill, as amended). The Bill which led to the DOMA does not include even the faintest hint of an intent to preempt the area of employee benefits to the state:
SENATE SUMMARY
Provides that marriages between persons of the same sex are not recognized in this state. Prohibits the state, its agencies and its political subdivisions from giving effect to public acts, records, or proceedings of other jurisdictions regarding such a relationship or a claim arising from such a relationship.
Senate Summary to SB 272, Florida Legislature Senate Bills, Regular Session 1997, Vol. 2, Nos. 200-398; See, also, HB 147, Journal of the House of Representatives, Regular Session 1997, March 4, 1997, p. 57.
The course of the Bill through the Legislature also demonstrates the narrow scope and effect of the DOMA. The Bill was not substantially changed during enactment - the only amendment simply clarified that same-sex marriages would not be recognized regardless of where they were entered into. See, Committee Substitute (CS) to SB 272, Florida Legislature Senate Bills, Regular Session 1997, 308-1604-97, Vol. 2, Nos. 200-398. Nowhere do the words "dependents", "insurance", "benefits" or similar terms appear in this legislative history.
The legislative history of DOMA shows that the law was directed only to the definition of marriage. The Legislature's purpose was to prohibit recognition of same-sex marriages formed in other jurisdictions. This has nothing to do with benefits programs for employees and their dependents. There is no statement that benefits programs are preempted by the State and no suggestion that the law intended to define appropriate "dependents". Plaintiff's counsel may have intended for the DOMA to have broader effect, but the Legislature clearly did not share his views.
To support his argument that the Gainesville Domestic Partner Health Benefits Policy establishes a "marriage substitute", Plaintiff created a chart (see, Plaintiff's Memorandum at 11) which purports to list a number of similarities between the Gainesville Policy and the marital relationship. However, many of the features included in Plaintiff's chart appear nowhere in the City's Policy. Among those phantom provisions are:
1. The requirement of a fee to register the relationship;
2. Maintenance of a "registry" of relationships between partners;
3. The provision for "a divorce process along with a filing of the divorce and payment of a fee";
4. Forcing hospitals and prisons to recognize the relationship;
5. "Grant[ing] rights to make healthcare decisions even without executing a healthcare surrogate designation"
Plaintiff's statements in this regard are simply "made up" and should be rejected as substantially misleading.
Plaintiff also claims to have found a "smoking gun" in a statement included in the "Affidavit of Certified Domestic Partner Relationship":
I understand that I would be well advised to consult an attorney regarding the possibility that the filing of the Affidavit may have certain legal consequences, including the fact that it may, in the event of termination of the Certified Domestic Partner Relationship, be regarded as a factor leading a court to treat the relationship as the equivalent of a marriage for the purpose of establishing and dividing community property, or for ordering payments of support.
See, Plaintiff's Memorandum at 13, 15. The weakness of this claim should be apparent for any number of reasons. Firstly, the source of this statement is non-authoritative. That is, the Affidavit is not a part of the policy adopted by the City Commission. Rather, it is merely an application form created by clerical personnel which does not have any independent legal effect.
Secondly, it is obvious that the quoted language is merely cautionary in nature; it creates no rights or benefits by itself, but merely warns of possible ramifications on a speculative basis.
Thirdly, the common law in Florida may well impose obligations on domestic partners as a matter of private contract. Florida does not recognize "palimony" claims arising from either same-sex or opposite-sex relationships. However, the Courts will enforce a private contract for support under basic contract principles. See, e.g., Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA 1997) (support agreement between same sex couple); Crossen v. Feldman, 673 So.2d 903 (Fla. 5th DCA 1996) (support agreement between unmarried heterosexual couple); See, also, Stevens v. Muse, 562 So.2d 852 (4th DCA 1990) (agreements between unmarried cohabitants were not unenforceable as violative of public policy). Thus, the language in the Affidavit can be seen as a reminder that ones domestic partner may well acquire contract rights as a consequence of the common law (but not as a result of the Policy).
The Plaintiff makes three other arguments based on statutes, neither of which presents any serious challenge to the Gainesville domestic partnership policy. Firstly, Plaintiff claims that Gainesville's Policy violates ?741.211, Fla. Stat. which abolished common law marriages. Plaintiff's argument fails for the same reason his claims regarding conflict with DOMA fail. The Policy does not create a marriage or anything resembling a marriage; it simply extends health care coverage to a slightly larger class of dependents.
The Plaintiff also insists that Gainesville cannot choose for itself what persons may constitute dependents for purposes of employee benefits. Plaintiff argues that ?112.08 of the Florida Statutes conflicts with the Gainesville Policy in its use of the word "dependents". See, Plaintiff's Memorandum at 16. Section 112.08 is the express grant of authority to municipalities to provide health insurance benefits for its employees and their dependents. Plaintiff apparently claims that, because the statute incorporates the word "dependents", cities are prohibited from defining the class of dependent persons. Of course, nothing could be further from the truth.
As previously discussed, Florida is a home rule state and local governments are free to legislate on matters of municipal concern absent express conflict or preemption. Here, there is no conflict and no preemption because the Legislature left the word "dependents" undefined in ?112.08. Indeed, Florida has employed numerous and varying definitions for "dependents" in other statutes without adopting any single definition for all purposes. Compare, ?768.18(1), ?121.021 (28), and ?627.5575, Fla. Stat. all of which define "dependents" differently.
Common sense dictates that the Legislature could have restricted the scope of dependents for benefits packages simply by defining the word statutorily as it has done in so many other instances. The most recent opportunity to do so was during the enactment of the DOMA when the issue of same-sex relationships was squarely before the Legislature. As shown above, however, the Legislature did not include a definition for "dependents" in DOMA and made no attempt to limit local government authority except with regard to the marital status itself.
Finally, Plaintiff argues that provision of employee benefits to unmarried dependents would violate the Florida criminal cohabitation statute, ?798,02, Fla. Stat. The continued validity of that archaic law may be an open question, but its relevance to the instant case can be easily answered. Simply put, the extension of employee benefits to unmarried couples has nothing to do with sexual relations. Those benefits are not dependent in any way on the sexual relationship of the participants.
The point to be made is that Gainesville's employee benefits policies are neither radical not overbroad. Inclusion of domestic partners as dependents is consistent with the plain meaning of the term "dependent". To be eligible under the Gainesville Policy, employees must show that they and their domestic partners "share responsibility for a significant measure of each other's common welfare and financial obligations." Compare, Lowe v. Broward County at 11 (citing dictionary definitions of "dependent", e.g., "one who looks to another for support in whole or in part."); See, also, Lumberman's Mutual Cas. Co. v. Acosta, 452 So.2d 1060, 1063 (Fla. 3d DCA 1984) (common definition of "dependent" is one who is "financially dependent" on another). Gainesville's benefits package is consistent with the law and well within the home rule powers granted by the Florida Constitution.
C. The Arguments Raised by Plaintiff in this Case Have Been Raised and Rejected in Other Cases Across the Country
In footnote one above, Amici list some of the many jurisdictions which have extended benefits to domestic partners of their employees. A number of these have been subject to litigation and almost all of them have been upheld by the courts. The case of most interest to this Court should be Lowe v. Broward County, Case No.: 99-2775(09) (Fla. 17th Jud. Cir. 1999) in which a Florida court recently upheld a domestic partnership ordinance which was substantially broader than the one enacted by Gainesville. Each of the arguments raised by Plaintiff in this case was also addressed by the Court in Lowe. After considering those arguments, the Circuit Judge reached the following conclusion:
The [Broward County Domestic Partnership Act] grants certain limited benefits to domestic partners who meet the requirements of the ordinance. Many of these benefits are already available to domestic partners without resort to the DPA.... While these benefits may also be available to couples in a marital relationship, the extension of these limited benefits does not, in the Court's opinion, have the effect of giving recognition to a new marital relationship, as asserted by the Plaintiff. Accordingly, the Court finds that the County, in adopting the subject ordinance, has not impermissibly encroached upon an area exclusively reserved to the state, and that the DPA is a valid local ordinance....
Lowe at 16. Similarly, there is no reason for this Court to depart from the well-reasoned decision of its sister court.
Those few cases which have stricken domestic partnership laws have not based the decision on conflict with local variants of DOMA or other domestic relations legislation. Rather, the isolated cases which have overturned the laws have done so either because the Legislature had already defined the class of "dependents" by statute or because the states followed Dillon's Rule of restricted local powers. Plaintiff cites one case in each category.
Arlington County v. White, 528 S.E.2d 706 (VA. 2000) is cited for the proposition that local government exceeded its "implied authority" by defining dependents eligible for coverage more broadly than the state statute. The state legislature had apparently authorized local governments to provide health benefit programs but had not granted any particular authority to define the class of covered dependents.
As noted above, states like Virginia which follow Dillon's Rule cannot be compared to states which recognize broad home rule powers for municipalities. The Florida Constitution, and ?166.021 of the Florida Statutes, confer the broadest possible powers on local governments and do not require any further express legislative grant to authorize local action. The Arlington case has as much to do with Gainesville's policies as proverbial apples have to do with oranges.
The second foreign case relied on by Plaintiff is equally inapplicable to the question presented here. In Lily v. City of Minneapolis, 527 N.W.2d 107 (Minn. App. 1995) a state statute specifically defined the word "dependent" to mean a "spouse and minor child under the age of 25 years actually dependent upon the employee". Id. at 110-11. Furthermore, the enabling legislation limited the authority of local government by restricting benefits to employees, officers and their dependents only. Common sense dictates that a local government cannot redefine the word "dependents" when the Legislature has done so expressly and has specifically prohibited any variance from that definition. The distinction to be made between Lilly and the case at bar is obvious: Florida has not specifically defined the class of "dependents" nor has it expressly precluded local governments from choosing their own components of that class.
The Court's attention is more appropriately directed to cases involving home rule states like Florida which have considered similar domestic partner benefits programs. Decisions upholding domestic partner policies in such states are numerous.
For example in Slattery v. Giuliani, 686 N.Y.S.2d 683 (N.Y. Sup.Ct. 1999), the Court found that New York City's Domestic Partnership Law neither impinged on state "Domestic Relations Law", nor violated the related public policy against common law marriage. Surveying the several distinctions between domestic partnership and marriage, the Court concluded that "as compared to marital relationships, domestic partnerships are marked by their lack of formalization, lack of legal protections, and by the significantly fewer rights that are extended to the domestic partners". Id. at 688.
Similarly, in Crawford v. City of Chicago, 710 N.E.2d 91 (Ill. App. 1 Dist. 1999), the court upheld a domestic partnership ordinance, repeatedly emphasizing that it "does not create [a] marital relationship or status, but simply defines the type of insurance of which City employees can avail themselves." Id. at 99. It concluded that the ordinance's insurance provisions "do not infringe upon the [legislature's] prerogative to define and regulate the institution of marriage. Id.; See, also, Schaefer v. City & County of Denver, 973 P.2d 717, 721 (Colo. App. 1998), cert den. (April 12, 1999) (health benefits ordinance for domestic partners "does not adversely impact the integrity and importance of the institution of marriage."); S.D. Myers, Inc. v. City and County of San Francisco, 1999 U.S. Dist. Lexis 8748 at *44 (N.D. Cal. 1999) (domestic partner ordinance "does not establish or even address the marital union of domestic partners.").
In City of Atlanta v. Morgan, 492 S.E.2d 193 (Ga. 1997), the Georgia Supreme Court was faced with exactly the same argument concerning the definition of "dependents" that Plaintiff asserts in this case. The Atlanta domestic partners law defined "dependents" in terms analogous to those adopted by Gainesville. Id. at 195. The Georgia Supreme Court noted that, as in the case with Florida, there were a number of statutory definitions of "dependent" as well as definitions created by case law. After reviewing some of these definitions, the Court concluded that the definition of "dependents" adopted by Atlanta was consistent with the ordinary understanding of that term and did not conflict with any statutes. Id. The Georgia Supreme Court further noted that municipalities were granted home rule authority in that state and the exercise of the City's authority in this instance was consistent with its powers. Id. at 195-96. Exactly the same conclusion should be reached in this case.
CONCLUSION
Florida delegates extensive home rule authority to local governments, including municipalities such as Gainesville. The expansion of employee benefits to include health insurance benefits for defined domestic partners is entirely consistent with Gainesville's home rule powers. Furthermore, it is evident that the State Legislature has not preempted this field by passage of the Defense of Marriage Act or in any other way. This is so because the limited benefits granted by Gainesville simply do not equate to the bundle of rights and obligations which occasion a statutory marriage. Gainesville's domestic partnership law is progressive but is by no means novel; similar laws have been repeatedly upheld across the country. This Court should therefore uphold the Gainesville Domestic Partner Health Benefits Policy and deny Plaintiff's Motion for Summary Judgment.
Respectfully submitted,
GARY S. EDINGER, Esquire
Florida Bar No. 0606812
305 N.E. 1st Street
Gainesville, Florida
32601
(352) 338-4440 (Fax)
337-0696
Cooperating Attorney for
the ACLU
Foundation of Florida, Inc.
LESLIE COOPER, Esquire
MATTHEW COLES, Esquire
ACLU Foundation
125 Broad Street
New York, N.Y. 10004
(212) 549-2584
Attorneys for Amici Curiae
I HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum was furnished to MATHEW D. STAVER, Esquire and ERIK STANLEY, Liberty Counsel, 210 East Palmetto Avenue, Longwood, Florida 32750, by U.S. Mail; and to DEBORAH S. BABB, Esquire, Office of the City Attorney, 200 East University Avenue, Suite 425, Gainesville, Florida 32602-1110, by Hand-Delivery this day of September, 2000.
GARY S. EDINGER, Esquire
Florida Bar No. 0606812
