[updated 11:20 p.m.]
Good news! Kansas Attorney General Paul Morrison's opinion has just removed the last legal roadblock keeping Lawrence from creating a domestic partner registry.
This afternoon Morrison issued an opinion declaring that the registry is constitutional even with the 2005 passage of the same-sex marriage ban.
The only limit on the registry, Morrison said, is that it should be reserved for Lawrence residents. That's because of what Morrison considers to be the limits of a city's home-rule authority.
While I would personally prefer not to see any limits on the registry, I appreciate Morrison's opinion. I also appreciate that the limitation he wants is based on a technical issue such as home rule, and not on an attack on same-sex couples.
In my first quick read of the 17-page opinion, it looks to my non-legal-eagle eye like Morrison demolishes many of the arguments made against registries. Although Morrison notes that the Legislature could ban them, the attorney general makes the point that a registry doesn't threaten anyone by noting it is "simply a list of names."
As far as I'm concerned a domestic partner registry is nothing more and nothing less than a basic issue of fairness. It's about treating people the way we would want to be treated. It's about the Golden Rule. Working for fairness, by the way, is one reason why I'm involved with the Kansas Equality Coalition, which is working the pass the registry.
Here's AP's take on the opinion. AP writer John Hanna reminds us, rightly so, that the AG's opinion is non-binding. The story also talks about the proposed ban on registries. The ban is currently stalled in the Kansas House, which has recessed for three weeks. Outgoing City Commissioner Mike Rundle is quoted as saying that the Commission won't take up the proposal until after the two newly elected commissioners take office next week.
[end of update]
Some excerpts from the opinion follow. (The emphasis is mine. I've also broken some of this into shorter paragraphs to make for easier reading.)
It is our opinion that proposed Ordinance No. B does not conflict with the Marriage Amendment because the ordinance does not permit something forbidden by the Marriage Amendment. The latter prohibits the State from recognizing non-marital relationships as being entitled to the "rights or incidents of marriage." The proposed ordinance, by its terms, "creates no legal rights, other than the right to have the registered domestic partnership included in the City's Domestic Partner Registry."This right of registration is not one of the "rights or incidents of marriage" contemplated by the Marriage Amendment. As this proposed ordinance does not attempt to imbue non-marital relationships with those statutory and common law rights accorded to the marital relationship, we find no conflict with the Marriage Amendment.
Arguably, the registry proposed in the City of Lawrence's ordinance is simply a list of names of unmarried couples including same-sex couples. Some may register simply to make a statement that they are mutually committed to each other. Others may register in order to obtain employment benefits bestowed by private organizations that extend such benefits to the partners of their employees.
We readily acknowledge that the legal propriety of domestic partnership registries is an area unchartered in Kansas law and, consequently, a Kansas appellate court could arrive at a conclusion different from the opinion expressed herein.
We also note that our opinion is confined to the registry contemplated in proposed Ordinance No. B and does not address whether a city can extend health insurance and other employment-related benefits to the domestic partners of its employees.
Given the dearth of guidance by the Kansas appellate courts, we are persuaded by the appellate court decisions from the jurisdictions that have considered and rejected challenges to domestic partnership registries based on home rule considerations of preemption and conflict. Therefore, it is our opinion that proposed Ordinance No. B does not conflict with nor is it preempted by the Marriage Amendment or the statutes establishing the marital relationship. Should the Legislature wish to preclude cities from establishing such registries, it can do so by enacting uniform legislation that is preemptive in nature.
However, in determining whether the proposed ordinance is within the "local affairs" of the City of Lawrence, we recognize that the registry provides, arguably, a governmental nod to same-sex relationships by establishing a right of registration for couples meeting the requirements of the ordinance, regardless of residency.
To the extent that the registry is available to nonresidents of the City of Lawrence, it is our opinion that the ordinance extends beyond the purview of the City's "local affairs," and, as such, may be found to violate the Home Rule Amendment. Should the City of Lawrence impose a city residency requirement, we believe that the ordinance would pass muster under the Home Rule Amendment.