"According to an attorney general's opinion, the state's two largest public universities have domestic partner benefits that fly in the face of a 2004 amendment to the state constitution. The same opinion, however, also maps out a way for the University of Kentucky and the University of Louisville to circumvent the referendum against same sex marriage that won statewide approval with 75 percent of the vote.
The remedy, as described in the opinion by Attorney General Greg Stumbo's office, asserts: "Kentucky's public universities are free to make contracts extending health insurance benefits to as broad or as narrow a group of persons as they desire, so long as the classifications made (and other aspects of the contract) do not contravene any statute, regulation or constitutional provision." The statement worries critics of the plan who see UK opening the flood gates and extending benefits to people who simply co-habitate with employees.
"I don't think it would be fiscally responsible for universities to do that, particularly in light of these annual double digit tuition increases," said Lexington Rep. Stan Lee, the Republican nominee for attorney general and one of two members of the Kentucky House who sought the opinion from the attorney general's office.
But that's just one of a number of options UK and U of L could consider, according to UK spokesman Jay Blanton. Blanton declined to comment on what avenues his university might consider in answer to the non-binding opinion that could carry weight in the courts if it goes though litigation.
"The opinion took a few months, obviously, to put together, and we're going to take more than a few days to review it," Blanton said, but he reiterated UK's desire to offer competitive wages and benefits in its attempt to achieve top 20 status.
Louisville Democrat Rep. Tom Burch, the other opinion seeker, said he is all for UK's effort to extend health benefits. However, as chairman of the House Health and Welfare Committee, he sought Stumbo's opinion because he wanted more legal standing before allowing his committee to pass the measure that would have explicitly blocked Kentucky's public universities from providing domestic partner benefits.
"I figured if we had a clear decision on it, one way or the other, then it would be a more opportune time to deal with that issue. It was strictly to clear the air on that, (because it) might be wrong just to cave into a minority group out there that was raising Cain about it," Burch told Business Lexington.
While the bill was in front of his committee, Burch said, he got more calls from people urging its passage than anything else he could remember, but said when he returned constituent calls, their information on the bill was lacking.
"I called these people back and talked to them about it," Burch said. 'They said, 'What are you talking about? I don't know anything about that bill; my preacher asked me to call.'" "Talk about an uninformed public," Burch continued, "and believe me, the preachers don't know anything either ... Let them stick to what Jesus said: 'Give to Caesar those things that are Caesar's and to God those things that are God's.'"
"Everybody should have health insurance, and we should be encouraging people to get health insurance," he added.
In 1998 when the legislature passed a ban on same-sex marriage — a lesser version of the 2004 constitutional amendment — Stumbo, then House Majority Leader, worked much of the session to keep the matter from being voted on, according to news reports from the time. A move by Stumbo to shift the bill from the House Judiciary Committee to Burch's Health and Welfare — where it would have likely died — was rebuffed by a 67-20 vote of the whole House, according to an article on planetout.com.
Nine years later, Stumbo as well as Burch stands behind the opinion on constitutional grounds, stating UK's wording creates a "legal status identical or substantially similar to that of marriage for unmarried individuals." Both men quickly note there are ways around the current law.
"Now, can the universities accomplish what they want to accomplish by allowing someone who's employed to choose someone else to be covered under their policy," Stumbo said in an interview. "Yes, there's a way to do that without violating a statute, and we point that out to them."
Lee, currently the House's minority whip and hoping to succeed the vacating Attorney General Stumbo, said: "If I'm in the general assembly and the universities are offering domestic partner benefits, then yes, I would file legislation (to block it)." Such action could, if successful, render moot any remedy universities might choose to get around the 2004 amendment.