Dunnum v. DETF, domestic partner benefits case dismissed

On Friday last week, a Dane County Circuit Court dismissed a case brought by five lesbian couples where one of the partners is or was an employee of the state, Dunnum v. Department of Employee Trust Funds.

The state extends sick leave, health insurance and family leave benefits for the dependents (defined to include a married spouse) of state employees. The plaintiffs claimed they were denied equal protection of law because those state benefits are not extended to the same-sex partners of state employees.

The case is particularly important because the statutory definition of “dependent” at question in this case would apply to municipalities and school boards, affecting their benefit packages and budgets.  The state legislature and 8 municipalities had earlier been denied intervenor status in this case.

On Friday, Judge David Flannagan based his ruling on a previous sexual-orientation discrimination decision, Phillips v. Wisconsin Personnel Commission (1992).  A State Court of Appeals held in Phillips that state statutes for employee benefits specifically referred to a married spouse, excluding both same-sex and opposite-sex, non-married partners and therefore did not discriminate based on sexual orientation but on whether an employee was married or not.

Judge Flannagan constrained himself to precedent in Dunnum, ruling that the Phillips precedent required him to dismiss the lesbian couples’ claim because the definition of “dependent” is based on marital status and not sexual orientation–unmarried individuals are treated equally.

However, the Judge freely expressed repeatedly in the 46-page decision his opinion that the lesbian couples should be given the benefts and that had the Phillips precedent not stood in his way, he would have ruled in favor of same-sex domestic partner benefits for state employees. That opinion is now case law and will most likely inform any future decision on domestic partner benefits in this state.

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