The City of Papillion stands alone among Sarpy County’s four largest governments in deciding that the Nebraska constitution prevents it from granting health benefits to the spouses of same-sex couples.
Sarpy County and the cities of Bellevue and La Vista have decided not to challenge a Blue Cross Blue Shield policy that grants medical benefits to same-sex couples regardless of the state in which the couple resides.
If an employee can produce a marriage certificate from a state where same-sex marriage is legal, BCBS will offer benefits even if the couple resides in a state where same-sex marriage is not recognized.
Nebraska is among 33 states that have forbidden same-sex marriage, either by statute or constitutional amendment. The conflict between state law, which does not recognize such marriages, and Blue Cross policy, which does, presents a dilemma to area governments.
Mike Williams, the insurance agent for Bellevue and Sarpy County, said insurance companies across the spectrum are adopting policies similar to BCBS’s new rule.
Insurance companies follow federal law as defined by the Employee Retirement Income Security Act of 1974, Williams said, which governs benefits programs for American workers.
“If ERISA recognizes it then all the insurance companies will too, because they follow federal law,” he said.
But Papillion City Administrator Dan Hoins sees a conflict between BCBS policy and Nebraska’s ban on same-sex marriage as enshrined in the state constitution by a voter referendum.
Hoins said the city believes private companies are subject to state law and that state law does not recognize same-sex marriage.
Consequently, the city will not grant benefits to the spouses of same-sex marriages.
“If state law changes tomorrow, so will we,” he said.
Hoins said the Blue Cross Blue Shield policy exceeds the requirements of federal law as established in June when the U.S. Supreme Court overturned a section of the federal Defense of Marriage Act.
The court’s ruling prevented the federal government from withholding federal benefits from same sex spouses but left states free to refuse to recognize such unions.
Given the room granted to states, and given the constitutional provision that forbids same-sex marriage in Nebraska, Hoins said the city might not have the authority to accept the BCBS policy.
“I’m not so sure we could legally do it,” he said. “It’s very clear that cities of the first class only have the authority granted to them by the Legislature. I would want some further legal opinion about whether we can do something the state says we can’t do, because that’s never been the case with anything else we’ve done.”
Sarpy County Attorney Lee Polikov acknowledged the constitutional question, but he said the problem could be overcome by regarding health benefits as a contractual obligation between the county and the employee.
“It’s a really good question that different people might have a different answer to,” he said. “I don’t have the answer to that, but I think they probably could do it through the right of contract without violating the constitution.”
Having already accepted the Blue Cross policy the board would have to vote to remove same-sex coverage, he said.
“I don’t anticipate them doing that, but it’s up to them,” he said. “You don’t have to go to the point of recognizing the marriage, you’re just allowing people to participate in health insurance, which is a contract.”
Mitch Beaumont, spokesman for the City of La Vista, said the city will not challenge the BCBS policy.
“Yes, we use Blue Cross Blue Shield of Nebraska, and yes, as of Jan. 1, the Blue Cross policy applies to La Vista’s coverage,” he said in an email.
The fate of same-sex health benefits in Sarpy County’s two smallest municipalities still remains to be seen.
Jeff Kooistra, Gretna city administrator, said in an email that Gretna is still weighing the issue.
“Gretna has its insurance through BCBS, but I have not looked into their determination on this issue,” Kooistra said. “I know that state and federal statutes are a consideration.”
Springfield City Clerk Kathleen Gottsch said Springfield will accept the policy of Assurant, its health insurance carrier.
“According to Assurant’s Employer Guide, ‘Eligible dependents include the insured employee’s lawful spouse,’” she said.
The city will accept whatever Assurant deems to be a “lawful spouse,” she said.