## Facts

- Oregon Health Sciences University (OHSU), a public employer, offered group health insurance to employees and “eligible family members,” including legal spouses and dependent children, as defined by the public employee benefits board.
- Same-sex domestic partners categorically did not qualify as eligible family members because Oregon law did not permit same-sex couples to marry.
- Three lesbian OHSU employees and their domestic partners sought dependent coverage and were denied because the partners were not legal spouses.
- Plaintiffs alleged they were similarly situated to employees in opposite-sex relationships who could marry and thereby obtain spousal coverage.
- Plaintiffs sued, asserting violations of ORS 659.030(1)(b) (employment discrimination in terms or privileges of employment) and Article I, section 20 of the Oregon Constitution (privileges and immunities).
- After a bench trial, the circuit court found for plaintiffs on both claims and entered an injunction barring the state from denying group insurance benefits to unmarried domestic partners of homosexual employees.
- Defendants appealed the statutory and constitutional rulings.

## Issues

1. Whether denying dependent health-insurance benefits to same-sex domestic partners constitutes unlawful discrimination in the “terms, conditions or privileges of employment” under ORS 659.030(1)(b).
2. Whether limiting spousal health-insurance benefits to married couples, when same-sex couples were legally barred from marrying, violates Article I, section 20 of the Oregon Constitution.

## Decision

- The Oregon Court of Appeals affirmed the judgment and injunction.
- The court held that restricting dependent coverage to legal spouses, in the context of a legal ban on same-sex marriage, violated Article I, section 20 by granting a state-conferred privilege on terms not equally available to the affected class.
- The court also upheld the ruling that the benefits policy violated ORS 659.030(1)(b) as discrimination in employment benefits tied to sexual orientation/sex of the employee’s partner.

## Legal Principles

- Article I, section 20 prohibits the state from granting privileges or immunities to one citizen or class of citizens on terms not equally available to all citizens.
- A facially neutral eligibility criterion can violate Article I, section 20 when it operates as an exclusionary device against a distinct class that cannot satisfy the criterion because of state law.
- Under Article I, section 20 analysis, unequal access to a state benefit for a particular class must be justified by legitimate, non-arbitrary reasons related to the purposes of the benefit; exclusion lacking such justification is unconstitutional.
- Employer-provided health insurance is a “term, condition or privilege of employment” within ORS 659.030(1)(b).
- Denying employment benefits to employees based on the sex of their chosen partner, where marriage is legally unavailable to them, can constitute actionable discrimination under ORS 659.030(1)(b).

## Conclusion

The court affirmed an injunction requiring equal access to public-employee group insurance benefits for same-sex domestic partners, holding that a spousal-only benefits rule—where same-sex couples could not marry—violated Oregon’s privileges-and-immunities clause and state employment discrimination law.


Tanner v. Or. Health Scis. Univ., 157 Or. App. 502, 971 P.2d 435 (1998)