December 15, 2003


New Castle County/Civil Division

The Honorable Colin R.J. Bonini
Senate, State of Delaware
Legislative Hall
Dover, DE 19901 D580C

RE: Merit Rule 2.1- Non-discrimination

Dear Senator Bonini:




By your letter of November 17, 2003, you have asked for an opinion whether, as a result of the addition of "sexual orientation" to the revised Merit Rule 2.1, it can be considered discrimination to not offer the option to provide health insurance coverage for a State employee's same sex partner. 

Under Merit Rule 2.1, discrimination on the basis of non-merit factors in any human resource action covered under the Merit System is prohibited. This rule (formerly Merit Rule 19.0100), which had previously specifically referenced race, national origin, sex, religion, age, and disability was recently revised, effective January 1, 2004, to specifically include sexual orientation as well. 

Governor Minner's Executive Order No. 10, issued on January 23, 2001, provides that discrimination in state employment on the basis of gender, race, color, religion, national origin, marital status, disability, sexual orientation or Vietnam Era veteran status is prohibited. Accordingly, the addition of "sexual orientation" to the Merit Rule reflected the directive of the Executive Order. 

The Merit System, found in 29 Del.C. Ch. 59, governs state employment and directs the promulgation of Merit Rules covering the classified system. However, the provision of heath care insurance is covered by 29 Del.C. Ch. 52. Pursuant to the authority vested in the State Employee Benefits Committee ("Committee") by 29 Del.C. §5210(4) and 29 Del.C. §9602(4), the Committee adopts eligibility and coverage rules for the State of Delaware Group Health Insurance Program, which is used to determine who may enroll. Rule 2.01 (a), covering "Dependents Eligible to Participate" includes an employee's legal spouse. Therefore, in order to qualify for spousal benefits, one must first be a legally recognized spouse. 

The definition of spouse, under Delaware law, is found at 13 Del.C. §101 and was amended in 1996 by 70 Del.Laws c. 375 to prohibit marriage between persons of the same gender and to provide that a marriage obtained or recognized outside the State between persons of the same gender shall not constitute a legal or valid marriage within the State. Therefore, an employer may deny spousal benefits to employees who seek such benefits for their non-marital partners. See, Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn.Ct.App. 1995)(inability of employee to extend employee health insurance benefits to domestic partner is result of Minnesota's marriage law restriction against same-sex marriages and is not result of claim of sexual orientation discrimination in employment); Beatty v. Truck Ins. Exchange, 8 Cal.Rptr.2d 593 ( Cal.App.3d 1992)(insurer's refusal to issue joint umbrella policies to homosexual couples under same terms as offered to married heterosexual couples not a violation of California statute which forbids discrimination on the basis of sexual orientation, as homosexuals are part of the larger class of unmarried persons). 

Nor does the denial of spousal benefits implicate the Equal Protection Clause. Under federal case law, sexual orientation has not been deemed a suspect or quasi-suspect classification requiring heightened scrutiny. Romer v. Evans, 517 U.S. 620, 631 (1996)("If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.") A subsequent federal appellate decision found that in so ruling, the Supreme Court "resolved that the deferential 'rational relationship' test, that declared the constitutional validity of a statute or ordinance if it rationally furthered any conceivable valid public interest, was the correct point of departure for the evaluation of laws which uniquely burdened the interests of homosexuals." Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997), cert denied, 525 U.S. 943 (1998). 

In Cape Shores Associates v. City of Lewes, 1999 WL 743674 (Del.Super.), aff'd, 748 A.2d 913 (Del. 2000), a Delaware court, citing to federal law, summarized the rational basis analysis as follows:

[R]ational-basis review in equal protection analysis "is not a 

license for courts to judge the wisdom, fairness, or logic of 

legislative choices." Nor does it authorize "the judiciary [to] 

sit as a superlegislature to judge the wisdom or desirability 

of legislative policy determinations made in areas that neither 

affect fundamental rights nor proceed along suspect lines." 

For these reasons, a classification neither involving fundamental

rights nor proceeding along suspect lines is accorded a 

strong presumption of validity. Such a classification cannot 

run afoul of the Equal Protection Clause if there is a rational 

relationship between the disparity of treatment and some 

legitimate governmental purpose. Further, a legislature that 

creates these categories need not "actually articulate at any 

time the purpose or rationale supporting its classifications." 

Instead, a classification "must be upheld against equal protection 

challenge if there is any reasonably conceivable state of facts that 

could provide a rational basis for the classifications."

Citing to Heller v. Doe, 509 U.S. 312, 319-20 (1993).

In Delaware, the rational basis test has been employed in constitutional challenges relating to economic benefits. The Supreme Court in Lowicki v. Unemployment Ins. Appeal Bd., 460 A.2d 535, 539 (Del. 1983) held: 

Economic legislation which does not contain a "suspect 

classification" or limit a "fundamental right" must be reviewed 

for equal protection violations under the rational basis test...

Under the rational basis test, legislation will be deemed 

constitutional if the legislative means are rationally related 

to a legitimate governmental objective or purpose. Moreover, 

such legislation carries with it a presumption of rationality that 

can be overcome only by a clear showing of arbitrariness and 

irrationality. [citations omitted].

As noted above, in order to qualify for spousal benefits, one must first be a legally recognized spouse, and under both State (13 Del.C. §101) and Federal (1 U.S.C. §7) law, a spouse must be a husband or wife of the opposite sex. In Delaware there is "a strong judicial tradition that supports a presumption in favor of the constitutionality of legislative enactments." State v. Baker, 720 A.2d 1139, 1144 (Del. 1998) and one who challenges the constitutionality of a statute has the burden of overcoming the presumption of its validity. Justice v. Gatchell, 325 A..2d 97, 102 (Del. 1974). 

While one may not predict with certainty how a Delaware court would rule on questions pertaining to entitlement to benefits for same sex partners, the case law cited above from jurisdictions which have addressed the issue suggest that a Delaware court would find the requirement of legal marriage to be rationally related to the provision of such benefits. Therefore, our opinion is that the Delaware courts would find that the State may lawfully deny spousal health insurance benefits to state employees who seek such benefits for their non-marital or same sex partners. 




Very truly yours,


Ilona M. Kirshon

Deputy Attorney General




APPROVED:







Malcolm S. Cobin

State Solicitor




cc: The Honorable M. Jane Brady

Attorney General




Philip Johnson

Opinion Coordinator