The focus of this issue is the Idaho Constitution, and whether or not Moscow can violate the Idaho State Constitution with impunity. This issue is not a debate about marriage policy in Idaho – that debate took place in 2006 and was settled at the ballot box.
This debate is about something pretty simple: do cities have to follow the Constitution? And should a city be allowed to spend money in ways that violate the Constitution?
As reported in yesterday’s edition of the Moscow-Pullman Daily News.
The Moscow City Council Administrative Committee heard the same message from many angles at its Monday meeting: Look deeper into the issues of offering insurance benefits to employees' domestic partners.
Committee members debated whether to rescind, keep or alter the resolution extending benefits through the city's Regence Blue Shield of Idaho plan. They settled on sending the issue forward to the whole council next week with no direct recommendation. In the meantime, the resolution stands and benefits are available, although no one has signed up for them.
•WHAT HAPPENED: The Moscow Administrative Committee decided to forward a discussion about insurance benefits for employees' domestic partners to the full City Council.
•WHAT IT MEANS: As it stands, employees can apply for health benefits for their same- and opposite-sex domestic partners through Regence Blue Shield of Idaho. The council could uphold, rescind or alter the resolution enabling employees to access those benefits.
•WHAT HAPPENS NEXT: The council will discuss the issue at its 7 p.m. Monday meeting.
•WHY YOU SHOULD CARE: An Idaho Attorney General's Office opinion states the benefits could be unconstitutional, putting the city in legal jeopardy if the council upholds the resolution. City Attorney Randy Fife and other lawyers argue otherwise.
A Feb. 4 opinion from the Idaho Attorney General's Office stated an Idaho court would likely find the benefits conflict with an amendment to the Idaho Constitution declaring marriage between a man and a woman as the only domestic legal union recognized in the state.
The amendment was approved by voters in 2006.
Deputy Attorney General Mitch Toryanski concluded that Moscow's decision to extend benefits to domestic partners "constitutes recognition of a domestic legal union other than marriage."
City Attorney Randy Fife has argued otherwise.
Fife said he agrees the Idaho Supreme Court likely would turn down the benefits plan, but that is different from agreeing it's unconstitutional. There has been no interpretation of the breadth of the marriage amendment.
"It's my own opinion that this is not unconstitutional, that if a court just looked at the law itself and not beyond the law, or not beyond the language, that this is likely to be upheld," Fife said.
Of course, Fife’s personal interpretation disagrees with the Idaho Attorney General’s Office, the UI attorneys, and the wording of the Idaho Constitution itself.
And Fife himself admitted that the Idaho State Supreme Court would likely rule that Moscow’s law is unconstitutional.
So why dig in our heels to keep an illegal law on the books? Because we’re Moscow.
University of Idaho College of Law Associate Dean Liz Brandt also refuted Toryanski's conclusion in a letter to Councilman Tom Lamar. She argued that there is "no presumptive connection between health insurance and marriage," and an employee and partner who received the benefits would not receive other legal benefits of marriage.
Brant wrote that the marriage amendment itself does not limit the state or cities from recognizing "unmarried relationships so long as such relationships are not elevated to such an extent that the recognition could be similar to marriage."
The committee also received a letter from the Moscow Human Rights Commission urging it to uphold the resolution.
Commission member and Moscow lawyer Tim Gresback spoke in support of the resolution, but added that the committee did not need to rush on a final decision. He said local lawyers would be willing to review the issue for free in the meantime.
"Before this type of controversy would percolate through the legal system, it has to be ripe," he said. "There has to be a case or controversy. In other words, somebody challenging this in court."
Gresback said that would not likely happen until someone applied for the benefits.
Patti McKinney, the city's Employee Advisory Committee chairwoman, spoke to the committee about the EAC's ambivalence on the benefits issue. The EAC discussed the issue in December, before it had all the details and before the council voted on it
McKinney said many employees did not support the benefits in December, but may change their minds as they learn more.
She said employees' primary concern is that their own health insurance costs do not increase.
"Rather than offer more or the same benefits to other people, we would rather the city take care of its current employees and their dependents and spouses," she said.
City Supervisor Gary Riedner said more people on the city's insurance rolls could increase costs to the city, but not to current employees.
Jay Lewis, Moscow facilities maintenance supervisor, said after the meeting he still has some concerns about extending benefits to domestic partners. For example, he wants to know how the city would find out if domestic partners split up, and how it would affect their benefits.
"I think the employees are looking at it as kind of a dollars-and-cents issue," he said.
The only person at the meeting who spoke strongly against extending the benefits was Moscow resident Dale Courtney. He encouraged the committee to examine the benefits plan from the side of the law that could come down against it.
"I think we would find ourselves very quickly in a lawsuit from somebody who's very disgruntled" if the resolution stands, Courtney said.
To be precise: I told them that since Moscow’s current law is unconstitutional, it should be rescinded and reexamined from the position of being on the side of the law as opposed to on the side of breaking the law.
Committee members Lamar, Bill Lambert and Dan Carscallen agreed they would like to hear more from lawyers, the Human Rights Commission and the EAC.
"The more information you've got, the better decision I think you can make," Carscallen said.
Riedner cautioned the committee that getting more public input wouldn't answer whether the council is comfortable with upholding the resolution.
"The answer to your question is legally do you desire to defend this, or desire to rescind it?" he said.