Exploring the Impact of the Marriage Amendments : Can Public Employers Offer Domestic Partner Benefits to Their Gay and Lesbian Employees?

Over the course of the past decade, the question of same-sex marriage has been one of the most contentious issues affecting this country. Starting in 1998, forty-five states prohibited the creation or recognition of same-sex marriage, and thirty states solidified their positions through the passage of state constitutional amendments. Eighteen of these amendments extended their prohibitions even farther by refusing to create or recognize civil unions, domestic partnerships, or any other alternative to traditional marriage that was patterned after marriage. It is this last group of amendments that poses a potentially intractable problem: Is the language employed by these amendments so ambiguous and broad that it might prevent public entities from providing domestic partner benefits to their gay and lesbian employees? Public institutions around the country - especially institutions of higher learning - have struggled with this issue. If the law in their states prevents them from offering domestic partner benefits, how can they compete effectively for talented gay and lesbian employees and retain the ones they already have? Furthermore, how should courts interpret public employee benefits-related challenges to these amendments? This paper proposes that courts interpret the broad and ambiguous provisions in these amendments narrowly, relying on text and the surrounding historical circumstances to identify the most clearly discernible voter intent. Doing so should yield the result that the purpose of these amendments was simply to prohibit the extension of the right to marry and the creation of parallel marriage regimes; invalidating partner benefits packages offered to gay and lesbian public employees would be an unintended consequence of those amendments and therefore, should not be enforced