Resolution of an attorney fee question in the lawsuit that struck down the Arkansas ban on same-sex marriage hardly marked an ending to the issue. Untold numbers of questions remain to be resolved, — listing of parents on birth certificates; the status of marriage licenses issued in the week after Judge Chris Piazza’s order in 2014 but before the Arkansas Supreme Court halted the process; knotty family issues, and much more.
This being Arkansas, a state now controlled by Republicans who’ve made sexual orientation discrimination a religious right under state law, change won’t be easy. Never mind hat the U.S. Supreme Court has said that discrimination against married couples on account of their sexual orientation is unconstitutional.
The Arkansas Office of Personnel Management posts employment rules that are used as a guide for the thousands of state employees.
In the policy that covers family medical leave, the policy says:
The law allows individuals or family members with medical needs to take time off from work in order to receive medical care, to provide medical support to a family member or to provide care to a newborn child or adopted child.
But who is a family member? And, most important among the definitions given, who is a spouse?
Determined by applicable state law. It is clear from the legislative history that same-sex partners that are married and unmarried domestic partners do not qualify for family/medical leave to care for their partner.
I’m no lawyer. But I don’t think a rule that says one flavor of married couple is entitled to family leave while another flavor is not could pass constitutional muster. This policy could be easily changed. Will it? Or will the governor oppose it?
I’ve asked the Department of Finance Administration and will supply an answer when I have one.
UPDATE: After almost 24 hours, I got this terse response from the spokesman for the Department of Finance and Administration, Jake Bleed:
In response to your question, we are in the process of reviewing the family-leave policy to make any changes required by the recent federal court decision on same sex marriage.
I have reformulated the question and asked for a simple yes or no answer on whether a married person who asked for leave to be with a spouse today would be given that leave if married to someone of the same sex. I’ve also asked under FOI for any internal communications and guidance, if any, from the goverrnor or attorney general.
How hard, really, should it be to strike “same sex partners that are married” from the definition and honor the U.S. Constitution as guided by the U.S. Supreme Court? I hope the Hutchinson administration isn’t preparing to invoke a religious exemption. (I’m mildly joking, but you never know in this state.)
I have asked the governor directly if he supports family leave for same-sex spouses.
UPDATE II: I talked further with Jake Bleed after erupting with inquiries. An ongoing review aroused my fear of bad outcomes, given that this particular question seems relatively simple to solve. He elaborated:
“In the next week, we hope to have a new policy in place in compliance with the law that recognizes legal marriage.”
He notes that the state has many different agencies and many different elements of policy and law deal with marriage, in addition to family leave. Agreed. And some of it will be tricky to deal with, birth certificates to name one (a Health Department concern). But this one is readily fixable and I gather it will be. I’ve been promised a heads-up when changes are made.