In denying benefits
firm says
civil union not
marriage's equal
BY ROBERT SCHWANEBERG,
nj.com from the Web. July 8, 2007
A company that provides health care
coverage to married gay couples in Massachusetts has denied the same benefits to
a couple who entered a civil union in New Jersey.
United Parcel Service's decision to deny coverage to a Toms River couple boils
down to a single word: New Jersey law does not call them "spouses."
"We were supposed to be treated equally. We should be treated equally,"
said Heather Aurand, who was denied health care coverage by UPS, which employs
Aurand's civil union partner, Gabriael "Nickie" Brazier.
In its letter denying coverage, UPS said it does provide health benefits to its
employees' spouses, including spouses of the same sex who are married in
Massachusetts. But it said New Jersey's decision to recognize same-sex
relationships as civil unions rather than marriages tied its hands.
Gay rights activists called it the starkest proof to date that New Jersey's
civil union law has failed to deliver on its promise to provide all the benefits
of marriage, but by a different name.
"The Legislature said: You folks aren't worthy of marriage. That has
an impact," said David Buckel, a lawyer with the gay rights organization Lambda
Legal. "If the New Jersey Legislature would just take back the invitation
to discriminate, UPS would do the right thing."
"This is a problem the Legislature created," added Steven Goldstein, chairman of
the gay rights group Garden State Equality. "Civil unions are never in our
lifetime going to be respected by employers like marriage."
Garden State Equality has received 176 complaints from couples who said their
civil unions were not honored, Goldstein said, adding that it has created great
disillusionment within the gay community.
In its letter, UPS said the New Jersey Legislature, in enacting the state's
civil union law, "did not go as far as Massachusetts and afford same-sex couples
the ability to marry. Had the New Jersey Legislature done that, you could
have added Ms. Aurand as a spouse under the plan."
The letter concluded that "New Jersey law does not treat civil unions the same
as marriages."
"I'm shocked," said Assemblyman Wilfredo Caraballo (D-Essex), who sponsored the
civil union law. "We made it clear through the language and the intent
that when it came to issues like this, we fully expected civil-unioned couples
would be covered."
Tom Prol, a trustee of the New Jersey State Bar Association, said UPS's position
was "a misinterpretation, clearly, of the civil union law." He noted that
law states: "Civil union couples shall have all of the same benefits ...
as are granted to spouses in a marriage."
But benefit plans offered by many employers, including UPS, are governed by
federal law, which recognizes only the union of a man and a woman as a marriage.
Those companies are allowed, although not required, to deny benefits to partners
in other relationships.
In its letter, UPS said the health plan it negotiated for its workers provides
benefits only to "a spouse as defined under applicable state law." It
added that the company "cannot unilaterally change plan provisions outside of
the collective-bargaining process." A message left at UPS headquarters in
Atlanta seeking further comment from the company's lawyer was not returned.
Aurand and Brazier said they were hopeful when Gov. Jon Corzine, while signing
the civil union law in December, declared: "Through our actions today, we
will provide equal rights for same-sex couples."
"That's what we believed," said Brazier, 37, a driver for UPS for six years.
She and Aurand, 36, met seven years ago in Pennsylvania and bought their house
in Toms River in 2001.
"We plan on staying together the rest of our lives," said Aurand, who became a
stay-at-home mom after their son Zachary was born in 2004. They formed
their civil union on Feb. 21, days after the new law took effect and the week
before the birth of their twins, Joshua and Riley.
Brazier, who knew UPS provided health benefits to same-sex spouses in
Massachusetts, expected it would extend them to Aurand. But the company
said no.
"It was devastating. We were for certain we would get coverage," Aurand
said. "Financially it puts a burden on us. We have to pay a couple
of hundred dollars a month that we could be using for other things."
Other same-sex couples have encountered the same problem because of the conflict
between state law and the federal Defense Of Marriage Act, which does not
recognize same-sex unions.
Buckel said the case of Brazier and Aurand is a new wrinkle, as they were turned
down not because they are of the same sex, but because of the label New Jersey
gave to their relationship.
"We were surprised. We've never seen one like this before," Buckel said.
"It's probably going to be happening more and more."
Already, Tom Walton of East Brunswick, a driver for UPS for 14 years, said he
was verbally rejected when he sought health coverage for his civil union
partner, Mermon Davis. He said he has not gotten a formal explanation.
"It's upsetting," Walton said. "We were told this law was going to give us
the same benefits as everybody else, even though they weren't calling it
marriage. It just goes to show when something is separate, it's never
equal."
Walton, 42, said he and Davis, 44, have been together 15 years and had their
civil union ceremony over the Memorial Day weekend.
Buckel said the next step will be "to try to persuade UPS to change its mind,"
adding that Lambda Legal also will be talking to lawmakers about changing the
law to allow couples of the same sex to marry.
Goldstein added, "We've heard from many legislators that this is something they
want to deal with in 2008."
As for the civil union law, he said, "They know it's a disaster. In the
real world, civil unions are to marriage what artificial sweetener is to sugar.
It's not the same thing and it leaves a bad aftertaste."
Robert Schwaneberg may be reached at rschwaneberg@starledger.com
or (609) 989-0324.
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