A retired Tiverton teacher married in Massachusetts last year has asked for health coverage for her spouse.

01:00 AM EST on Sunday, January 2, 2005

BY ALEX KUFFNER
Journal Staff Writer

In what could be the first case of its kind in Rhode Island, the Tiverton School Committee has asked a Newport County Superior Court judge to decide the legality of a retired employee's request to extend health coverage to her same-sex spouse.

The School Committee requested clarification from the courts after Cheryl McCullough, who worked as a health teacher and guidance counselor at Tiverton High School for 27 years, applied for health insurance for Joyce Boivin, whom she married in their home state of Massachusetts nearly seven months ago.

Unsure whether Rhode Island recognizes same-sex marriages, committee members voted in October to seek declaratory judgment. Judge Stephen Fortunato could make a ruling by the end of this month.

To obtain the judgment, the school board filed papers with the court saying it had "taken the position that defendant Boivin is not entitled to health care benefits from the Tiverton School Department as the 'spouse' of defendant McCullough."

Lawyers for both sides say it's the first case of its kind that's been filed in Rhode Island since Massachusetts legalized gay marriages last year, becoming the only state that has done so.

Stephen Robinson, the lawyer representing the School Committee, said Fortunato's decision could set a precedent in Rhode Island, where state law is silent on the issue of same-sex unions.

"The School Committee wants the direction of the court to see if legally they can recognize same-sex marriage," he said. "When we filed this, we could find nothing in Rhode Island similar to this. There is no legal precedent."

However, Lynette Labinger, a lawyer for the Rhode Island Affiliate of the American Civil Liberties Union who is representing McCullough and Boivin, said the implications of the court ruling may not be so far-reaching.

"Nobody is disputing the validity of the marriage," she said. "The only issue as far as we're concerned is the agreement between the School Department and the union, which recognizes a marriage as long as it's valid in the state it's entered in."

McCullough, 60, and Boivin, a 54-year-old real estate agent, have been a couple for 26 years and live together in Swansea. They were married there June 10, a month after Massachusetts legalized same-sex marriage.

Five days after their wedding, McCullough, who retired in 1996, asked the Tiverton School Department to cover Boivin under a family health-insurance plan offered by Blue Cross & Blue Shield of Rhode Island.

"I think it's something they do for all married couples," said McCullough when she was reached at home Friday. "But I knew there would be some discussion."

After Supt. William J. Rearick decided that it wasn't a routine matter, it eventually went before the School Committee.

At a meeting behind closed doors in October, the committee deliberated about what to do, according to Chairwoman Denise deMedeiros.

She said she and one other committee member were in favor of extending health benefits to Boivin while the other members were unsure what to do. Nobody spoke against McCullough's request, she said.

"I could see why we should grant this, because they're legally married in Massachusetts," she said.

But Robinson told the committee that state law doesn't specify whether gay marriages are recognized in Rhode Island and advised its members to go to court.

Although lawmakers submitted legislation last year to legalize same-sex marriage, and to prohibit it by defining marriage as the union of a man and a woman, none of those bills passed.

In May, Attorney General Patrick C. Lynch said Rhode Island should honor legally obtained same-sex marriages, but he said it would ultimately be up to legislators or the courts to decide the issue.

"This office's review of Rhode Island law suggests that Rhode Island would recognize any marriage validly performed in another state unless doing so would run contrary to the strong public policy of this state," he wrote in a May 17 statement. "Public policy can be determined by statute, legal precedent, and common law."

Before filing the case for the School Committee and Rearick, Robinson said he personally asked Lynch whether Rhode Island has a policy on gay marriage. He said he was told it doesn't.

Robinson filed the court papers in October.

"Because the State of Rhode Island has no clear policy as to the validity of any marriage or civil union between individuals of the same sex, the plaintiffs have taken the position that defendant Boivin is not entitled to health-care benefits from the Tiverton School Department as the 'spouse' of defendant McCullough," the complaint states.

It goes on to say that a "compelling public interest" exists to resolve the case because a decision could affect other legal matters involving same-sex marriages, including inheritance, alimony and property settlement.

McCullough contacted the ACLU in August, and Labinger took the case when it went to court.

Last month, she and John E. DeCubellis Jr., an attorney for the National Education Association/Rhode Island, submitted a response on behalf of McCullough and Boivin. The Gay & Lesbian Advocates & Defenders, a Boston-based group, is also advising the couple.

They say the matter is governed by the terms of the agreement between the School Department and the NEA and ask the court to grant health coverage to Boivin.

"It all goes back to who Tiverton and the NEA defined as being covered," Labinger said Friday. "We look at this as 'what does the document say?' "

McCullough is entitled to receive health benefits from the School Department until she is 65. She pays 50 percent of her insurance costs.

Last month, the School Committee agreed to add Boivin to a family health plan with McCullough starting yesterday as long as the couple pays all of the extra costs. The increase in monthly fees for Boivin amount to about $500 a month, according to deMedeiros.

If Fortunato rules against the School Committee, Boivin and McCullough will be reimbursed, she said.

Lawyers for the two sides were set to file legal briefs by Wednesday, but they asked for an extension until Jan. 21.

McCullough said she wants the matter to be decided soon.

"We're just hoping for a quick resolution," she said. "Then we can get on with everything."