Tiverton relies on an earlier opinion by the attorney general that Rhode Island should recognize same-sex marriages between Massachusetts residents as legitimate.

01:00 AM EST on Friday, February 11, 2005

BY MICHAEL P. McKINNEY
Journal Staff Writer

A decision by the Tiverton School Committee this week may signal that Rhode Island is beginning to recognize the legitimacy of same-sex marriages among Massachusetts couples by affording them the same benefits as heterosexual couples.

The School Committee still has to work out some legal details, but it decided to extend the health-care benefits of retired teacher Cheryl McCullough to her spouse, Joyce Boivin. The couple, who live in Swansea, were married last June in Massachusetts.

According to information from the state general treasurer's office, the board may be the first to use as a guideline an opinion last October by Attorney General Patrick C. Lynch that affirmed the rights of two retired Portsmouth teachers who live in Massachusetts to seek survivor's benefits for their respective same-sex spouses.

"The attorney general sent a pretty clear message that same-sex marriages of other states are not barred by public policy in Rhode Island," Stephen Robinson, lawyer for the Tiverton School Department, said last night.

The two retired Portsmouth teachers, who are not married to each other, were wed after same-sex marriage became legal in Massachusetts last spring.

Lynch's Oct. 19 advisory opinion dealt specifically with retired Portsmouth teachers Sandra Reynolds and Catherine Grana, in response to an inquiry by state General Treasurer Paul J. Tavares in September as to whether their spouses qualified for benefits.

"While it is impossible to predict how a Rhode Island court might ultimately interpret the scope" of the applicable state laws, Lynch's opinion says, the "plain language" of one section, read in conjunction with another, "suggests that a Massachusetts resident who is party to a same-sex marriage validly performed in Massachusetts would be eligible to receive spouse's benefits so long as he or she met the other statutory requirements."

Marisol Garcia, spokeswoman for the state treasurer, said the cases of the two Portsmouth teachers and the one in Tiverton were the only requests to come forward since Massachusetts legalized same-sex marriage.

In Tiverton, the School Committee last year sought a Superior Court clarification after McCullough, who worked for 27 years as a health teacher and guidance counselor at Tiverton High School before retiring in 1997, applied for health insurance for Boivin within days of their marriage. School officials made clear they did not oppose her request, but, rather, wanted legal guidance on how to proceed.

But the National Education Association, Rhode Island, which represents McCullough, filed a grievance. On Tuesday night, John DeCubellis, the general counsel for the teachers' union, argued that Boivin was entitled to spousal benefits and there was no need for the two sides to be in court over the issue.

"The bottom line is there was an advisory opinion issued under a very similar set of circumstances by the attorney general's department," said DeCubellis. "And it was our position that it was similar to the circumstances that exist in this matter, and therefore in this case was helpful to the School Committee."

Schools Supt. William J. Rearick said the School Committee agreed with the argument. He said the attorney general's opinion in October, which followed an earlier one that had seemed vague on the issue, made the School Committee "feel comfortable with their decision."

The two sides plan to ask the court to drop the case. Among details to be worked out is an agreement that all parties in the case take on their own legal expenses rather than ask the school district to pick them up.

Under the terms of her retirement package, McCullough had to pay half the $4,408 annual cost of health benefits for an individual, Rearick said. If Boivin were added in a family plan, McCullough would pay half of an annual $11,150.

DeCubellis said he sees the Tiverton case as having a narrow focus. "It is by no means a landmark case, nor has it ever been," he said. "It's never been about recognition of gay or lesbian marriages. It's always been about specifically a contractual issue."

Robinson, the lawyer for the School Committee, said he didn't think the Tiverton case itself was significant, but "I think it's much more significant the direction the attorney general has taken."

James Smith, chief of the attorney general's civil division, said yesterday that while the attorney general's office was aware of the Tiverton case, the office had not reviewed its specifics and was not involved in it. Smith said "we stand by what we wrote" as it pertained to questions about the Portsmouth instances.