Full opinion text
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT WILKEN, District Judge. SUMMARY For more than twenty five years, the City and County of San Francisco has required City contractors, as a condition of doing business with the City, to pledge that they will not discriminate against their employees on the basis of sexual orientation. That policy is not challenged in this lawsuit and is not addressed by this order. In 1996 and 1997, the City took steps to make the nondiscrimination requirements more concrete, enacting an ordinance barring the City from contracting with companies whose employee benefit plans discriminate between employees with spouses and employees with domestic partners. These nondiscrimination requirements apply to the contractors’ activities throughout the United States. The issue before the Court is whether the City has reached beyond the limits of its power within the federal system of government 1) by applying these nondiscrimination requirements specifically to employee benefit plans, and 2) by attempting to regulate City contractors’ conduct throughout the United States. On both counts, the answer largely is yes. Congress has explicitly restricted local governments’ ability to regulate employee benefit plans. Moreover, the United States Constitution prevents local governments from regulating commerce that takes place entirely in other States. These two principles largely invalidate the Ordinance. The Court disposes of the legal challenges to the Ordinance as follows. First, the City properly exercised the power given it under the California Constitution to enact the Ordinance. Second, the Board of Supervisors did have the power under the San Francisco City Charter to enact the Ordinance as it applies to the San Francisco International Airport. Third, however, the Ordinance violates the United States Constitution because it impermissibly regulates out-of-State conduct that is not related to the purpose of a contract with the City. Fourth, the Ordinance is preempted by the Employee Retirement Income Security Act (ERISA) insofar as it affects ERISA plans providing ERISA-covered benefits and insofar as the Ordinance is applied to Airport contracts. ERISA-covered benefits include health and pension plans, family medical leave and bereavement leave, but do not include memberships and membership discounts, moving expenses, or free or discounted airline travel benefits. Fifth, the Ordinance as applied to Airport contracts is not preempted by the Airline Deregulation Act (the ADA) unless the burden of complying with the otherwise-valid portions of the Ordinance is so onerous that air carriers would practically be forced to stop using the Airport. Finally, the Ordinance is not preempted by the Railway Labor Act (the RLA), the federal law regulating labor relations in the air transportation industry. The Court construes the regulations implementing the Ordinance so as to avoid the only possible conflict with this law, and thus rejects this preemption argument. In sum, the Ordinance is unconstitutional as applied to out-of-State conduct that is unrelated to the purpose of a City contract. It is federally preempted as applied to Airport contracts insofar as it affects ERISA plans providing ERISA-covered benefits. With respect to other benefits, the Ordinance is also federally preempted if the burden of complying with the otherwise-valid portions of the Ordinance practically forces air carriers to stop using the Airport. PROCEDURAL BACKGROUND Plaintiffs move for summary judgment on all of their claims that the San Francisco Ordinance is invalid, except on their claim that it violates the dormant Commerce Clause because it imposes an undue burden on interstate commerce. (Docket # 60-1) Defendants oppose Plaintiffs’ motions for summary judgment and move for summary judgment on all of Plaintiffs’ claims, including their claim that the Ordinance violates the dormant Commerce Clause. (Docket # 63-1) Defendants also request that the Court deny or continue Plaintiffs’ motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(f) because Defendants have not had an adequate opportunity to depose Plaintiffs’ declarants or complete discovery. Plaintiffs oppose Defendants’ motions and their application for a Rule 56(f) continuance. The Court grants Plaintiffs’ motions for summary judgment in part, grants Defendants’ motions for summary judgment in part, and denies summary judgment as to the remaining issue. FACTUAL BACKGROUND I. The Parties Defendant City and County of San Francisco (the City) owns and operates San Francisco International Airport (the Airport), which is located in San Mateo, California, outside the City’s borders. As of the summer of 1997, sixty nine airlines operated at the Airport, including forty regularly-scheduled passenger airlines, seventeen cargo airlines, eight seasonal or charter airlines, and four commuter airlines. The San Francisco City Charter (the Charter) confers on Defendant Airport Commission power over the “construction, management, supervision, maintenance, extension, operation, use and control of all property [at the Airport], as well as the real, personal and financial assets which are under the Commission’s jurisdiction.” Charter § 4.115. The Charter confers on the City’s Board of Supervisors the power to set overall objectives for the Airport Commission to follow, and to prescribe “other powers and duties” for the Commission in addition to those specifically enumerated in the Charter. Charter § 4.102(1), (8). The Charter generally prohibits interference by members of the Board of Supervisors in the administration of City commissions, but this section specifically exempts legislation regarding administrative matters “other than specific contract and personnel decisions.” Charter § 2.114. Defendant Human Rights Commission (the HRC) of the City holds power under the Charter to “implement the provisions of ordinances prohibiting discrimination in all contracts and subsequent subcontracts, franchises, leases, concessions or other agreements for or on behalf of’ the City, which includes the power to promulgate implementing regulations. Charter § 4.107(6), (7). Plaintiff Air Transport Association (the ATA) is the principal trade organization for airlines based in the United States. One of its purposes is to advocate the industry’s positions before State and local governments and in the courts. As of the summer of 1997 sixteen members of ATA flew into the Airport, including United Airlines (United) and Federal Express. Plaintiff Airline Industrial Relations Conference (AIRCON) is another airline trade organization formed to exchange labor relations information and advocate for the industry in government, judicial and agency proceedings relating to labor relations. As of the summer of 1997, fifteen members of AIR-CON flew into the Airport, including United and Federal Express. II. The Ordinance and the Implementing Regulations Since 1972, the San Francisco Administrative Code has barred the City from contracting with companies that discriminate on the basis of sexual orientation. See' S.F.Admin.Code Chap. 12B. In series of legislative actions beginning in the fall of 1996 and extending through the spring of 1997, the City’s Board of Supervisors passed ordinances amending Chapter 12B. These amendments (collectively referred to hereinafter as the Ordinance) restrict the City from contracting with companies that do not provide benefits to their employees’ domestic partners to the same extent they provide benefits to employees’ spouses. Specifically, the Ordinance bars any company that discriminates in the provision of benefits “between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration.” S.F.Admin.Code § 12B.l(b). The Ordinance also requires that every City contract incorporate language whereby the prime contractor agrees that it will not discriminate in the provision of employee benefit during the term of the contract. Id. at § 12B.2(b). The Ordinance applies to any employee benefits, but it includes a non-exclusive illustrative list: “bereavement leave, family medical leave, health benefits, membership and membership discounts, moving expenses, pension and retirement benefits or travel benefits.” Id. at §§ 12B.l(b), 12B.2(b). The Ordinance provides that a potential contractor will not be deemed to discriminate in the provision of benefits in two situations. First, if a contractor’s actual cost of providing a certain benefit for the domestic partner of an employee exceeds that of providing the benefit to a spouse and the contractor provides the benefit on the condition that the employee pay the excess cost, the contractor is not deemed to discriminate. Id. The same rule applies if the cost of providing benefits for spouses exceeds that of providing benefits for domestic partners. Id. Second, if a contractor is unable to provide a certain benefit that it provides to employees’ spouses also to employees’ domestic partners or vice versa, despite taking reasonable measures to do so, but the contractor provides the affected employees with a cash equivalent of the benefit, the contractor is not deemed to discriminate. Id. The Ordinance’s nondiscrimination requirements apply to: (i) any of a contractor’s operations within San Francisco; (ii) a contractor’s operations on real property outside of San Francisco owned by the City or which the City has a right to occupy if the contractor’s presence at that location is connected to a contract or property contract with the City; (iii) where the work is being performed by a contractor for the City within the United States; and (iv) any of a contractor’s operations elsewhere in the United States. Id. at § 12B.l(d). (Hereinafter, subsection (i) will be referred to as San Francisco conduct, subsections (ii) and (iii) as contract-related conduct, and subsection (iv) as extraterritorial conduct.) The Ordinance includes a severability clause that provides that the Ordinance should be “construed so as not to conflict with applicable federal or state laws, rules or regulations” and so as not to confer powers or duties on the City that exceed the limitations on municipal authority imposed by federal law. Id. at § 12B.6. The clause provides that if a court holds any part of the Ordinance invalid, the remainder of the Ordinance should remain in effect. Id. The Ordinance states that the City’s intent in requiring the contractual nondiscrimination guarantees is to “equalize to the maximum extent legally permitted” the totál compensation provided to similarly-situated employees with spousés and employees with domestic partners. Id. at § 12B.2(b). Defendants state that the City’s goal in passing the Ordinance is to add a concrete requirement to its condition that contractors not discriminate on the basis of sexual orientation. The contractual nondiscrimination guarantees are enforced as follows: A contractor is deemed to have breached the nondiscrimination provision upon a finding by the Director of the HRC that the contractor willfully violated the provision. Id. at § 12B.2(g)(l). This finding may be appealed to the full HRC and may be further challenged in court. Id. at § 12B.2(g)(3)-(7). If a contractor is found to have discriminated, the City may impose a $50 penalty for each day of discrimination against each person affected, and may suspend or terminate the contract, in whole or in part, retaining all moneys due or to become due under the contract. Id. at § 12B.2(h). A breach of the nondiscrimination guarantee also is grounds for deeming the contractor an “irresponsible bidder,” which bars the contractor from getting City contracts for up to two years or until it comes into compliance. Id. at § 12B.2(i). Defendant HRC has promulgated regulations implementing the Ordinance. See id. at § 12B.2(g)(9) (authorizing HRC to promulgate implementing regulations); HRC Rules of Procedure for the Nondiscrimination in Contracts: Equal Benefits Provisions of Chapter 12B of the San Francisco Administrative Code, dated May 8, 1997 (hereinafter, HRC Rules of Procedure). These rules, as relevant here, provide that no contractor will be deemed out of compliance with the Ordinance until the contractor’s current collective bargaining agreement has expired, provided that the agreement governs the benefits, that the contractor takes all reasonable steps in the meantime to end discrimination, including asking the union to reopen the contract, and that the contractor provides cash equivalents. Id. at § II.D(l). The rules explicitly permit contractors to avoid discrimination by providing benefits to neither employees’ spouses nor employees’ domestic partners. Id. at § II.D(3)(e). DISCUSSION I. Summary Judgment Standard Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir.1987). II. Standing The Court only has jurisdiction to decide issues that Plaintiffs have standing to raise in federal court. Plaintiffs argue that they have standing to raise these claims on behalf of their members. An association has standing to bring such claims when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The first and second requirements are easily satisfied here. Therefore, Plaintiffs’ standing turns on whether the participation of individual members is necessary to resolve any issues in this ease. For most of Plaintiffs’ claims, the participation of individual members is not required and the Court can rule on the claims in this Order. Regarding one aspect of ADA preemption, the participation of individual carriers might be required. Because the parties have not briefed this particular issue, however, the Court does not decide it in this Order. See CONCLUSION, infra. Therefore, Plaintiff associations have standing to litigate all of the issues decided in the present Order. III. State Constitutional and City Charter Restrictions on the City’s Authority to Enact the Ordinance Plaintiffs contest whether the City has the authority under the California Constitution or the San Francisco City Charter to legislate with respect to Airport contracts. A. State Constitution Plaintiffs argue that the City lacked the power under the California Constitution to enact the Ordinance because the Ordinance is impermissibly extraterritorial and because it is preempted by conflicting State laws. Municipalities ordinarily derive their power to regulate from their police power over their physical territory. The California Constitution provides that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinance and regulations not in conflict with general laws.” Cal. Const, art. XI, § 7. The Ninth Circuit has specifically recognized, however, that the City has proprietary power over the San Francisco International Airport, even though the Airport lies outside its boundaries, and that this power includes the ability to enter into commercial relationships. Air Cal. Inc. v. City and County of San Francisco, 865 F.2d 1112, 1117 (9th Cir.1989). Because the Ordinance reaches beyond the boundaries of San Francisco only by placing conditions on who may enter into Airport-related contracts with the City, it falls within the City’s proprietary powers. Although Plaintiffs clearly anticipate that the Ordinance will have extraterritorial effects, for example, by inducing an airline to offer domestic partner benefits nationwide, these possible effects do not establish that the City has acted beyond its powers under the California Constitution. Plaintiffs also argue that the Ordinance is preempted by conflicting State law because it does not address strictly “municipal affairs.” Local regulations are generally subject to preemption by State law. The California Constitution creates an exception, however, for charter city provisions addressing “municipal affairs.” Cal. Const, art. XI § 5 (City charter provisions “with respect to municipal affairs shall supersede all laws inconsistent therewith,” but “in respect to other matters they shall be subject to general laws.”). The California Supreme Court has “rejected] a static and compartmentalized description of ‘municipal affairs’ in favor of a more dialectical one ... [in which] the counterpoint of ‘statewide concern’ [is] the conceptual limitation on the scope of ‘municipal affairs.’” California Federal Savings & Loan v. Los Angeles, 54 Cal.3d 1, 13, 283 Cal.Rptr. 569, 812 P.2d 916 (1991). If [a reviewing court] is persuaded that the subject of the state statute is one of statewide concern and ... the statute is reasonably related to its resolution, then the conflicting city charter measure ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited ... from addressing the statewide dimension by its own tailored enactments. Id. at 17, 283 Cal.Rptr. 569, 812 P.2d 916. The court’s duty is to “ ‘allocate the governmental powers in the most sensible and appropriate fashion as between local and state legislative bodies,’” id. (citation omitted), considering the particular factual circumstances in the case before it, id. at 18, 283 Cal.Rptr. 569, 812 P.2d 916, and being careful not to destroy municipal home rule. Id. Where possible, courts should avoid making this difficult choice “by carefully ensuring that the purported conflict [between the local and state regulations] is in fact a genuine one, unresolvable short of choosing between one enactment and the other.” Id. at 17, 283 Cal.Rptr. 569, 812 P.2d 916. Plaintiffs claim that the Ordinance conflicts with a Statewide policy of managing airports in a manner that secures the benefits of commerce and tourism for the people of California. Cal.Pub.Utü.Code § 21690.5(e) (“Legislative findings and declarations”). There is no “genuine” and “unresolvable” conflict between this sweeping policy statement and the Ordinance. Plaintiffs offer no evidence that the State interprets this policy in a way that would preclude the Ordinance, nor any evidence that the State has implemented this policy through “tailored enactments” that conflict with the Ordinance. Plaintiffs also argue that if the Ordinance survives ADA preemption as it applies to free airline passes for domestic partners, it will conflict with a State law that also purports to regulate the provision of free passes by the airlines and which they argue would also survive ADA preemption. See Cal.Pub.Utü.Code § 522. Although the Court concludes below that the travel benefits provision of the Ordinance is not preempted by the ADA as related to price, the State statute nevertheless may be preempted on this basis because it directly regulates who may use the carriers’ services at no price. See Section V.C.3.b, infra. Even if it were not preempted, however, the statute does not irresolvably conflict with the Ordinance. The statute permits provision of free passes to employees’ family members. Without evidence that the State considers it a matter of Statewide concern that family members be uniformly interpreted to exclude domestic partners, the Court cannot conclude that a genuine conflict exists. Defendants, therefore, are entitled to prevail on summary adjudication of Plaintiffs’ claim that the Ordinance is invalid under the California Constitution. B. City Charter Plaintiffs also argue that the Ordinance is invalid insofar as it applies to Airport-related contracts, because under the San Francisco City Charter the Board of Supervisors may not interfere with contracting decisions by the Airport Commission. Defendants respond that the Ordinance is valid under charter provisions adopted in 1995 that give the Board of Supervisors the power to overall objectives for commissions through legislation. The powers and duties of San Francisco commissions are defined in Article IV of the City Charter. The Airport Commission is specifically given “charge of the construction, management, supervision, maintenance, extension, operation, use and control all property ... [and] assets which are under the Commission’s jurisdiction.” Charter § 4.115. Ml commissions are required to devise plans, programs and policies “consistent with the overall objectives of the City and County, as established by the Mayor and by the Board of Supervisors through the adoption of City legislation.” Charter § 4.102(1). Section 2.114 of the Charter generally prohibits interference by members of the Board of Supervisors in the administration of City commissions, but this section specifically exempts legislation regarding administrative matters “other than specific contract and personnel decisions.” The Ordinance modifies twenty-five-year-old City-wide policy of contracting only with companies that do not discriminate on the basis of sexual orientation in their personnel policies. This legislation sets an “overall objective” for the City, and the City Charter requires the Airport Commission to pursue a consistent policy as it exercises its powers to manage the operations of the Airport. The Ordinance does not refer to a specific contract, and so is not barred by section 2.114 of the charter. Plaintiffs rely on Air Cal, Inc. v. City and County of San Francisco, 865 F.2d 1112 (9th Cir.1989), to argue that the Board of Supervisors lacks the power to dictate conditions of Airport-related contracts. In Air Cal, the Ninth Circuit concluded that under the then-current City Charter, San Francisco had delegated all of its proprietary powers over the Airport to the Airport Commission. Id. at 1118. The Ninth Circuit relied on section 2.401, which then, as now, prohibited interference by members of the Board of Supervisors with administrative matters of the commissions. Id. at 1119. As of 1995, however, section 2.401 specifically empowers the Board to pass legislation on administrative matters other than specific contract or personnel decisions. Id. Therefore, the Ninth Circuit’s conclusion in 1989 that the Board of Supervisors lacked the power to pass ordinances affecting contract administration at the Airport does not govern this case. Defendants, therefore, are entitled to prevail on summary adjudication of Plaintiffs’ claim that the Ordinance is invalid as an improper exercise of legislative power under the San Francisco City Charter. IV. Constitutional Challenges Plaintiffs claim that the Ordinance is invalid under the United States Constitution as an attempt by the City to regulate conduct performed beyond its borders. Plaintiffs cite eases that rely on three separate bases for striking down State action as impermissibly extraterritorial: the Due Process Clause of the Fourteenth Amendment, principles of State sovereignty and comity, and the dormant Commerce Clause. Defendants dispute that the Ordinance is impermissibly extraterritorial and also argue that it does not violate the dormant Commerce Clause by imposing undue burdens on interstate commerce. The Court concludes that the Ordinance violates the dormant Commerce Clause to the extent that it impermissibly regulates extraterritorial commerce; therefore, the Court need not consider Plaintiffs’ due process extraterritoriality arguments. The Court concludes, however, that the Ordinance does not otherwise violate the dormant Commerce Clause by imposing undue burdens on interstate commerce. A. Applicability of the Dormant Commerce Clause The Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, empowers Congress to “regulate Commerce with foreign Nations, and among the several States.” The Supreme Court has interpreted the clause not only to grant legislative power to Congress, but also impliedly to limit the power of State and local governments to enact laws affecting foreign and interstate commerce. See Healy v. Beer Institute, 491 U.S. 324, 326 n. 1, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989). The implied limitation on State and local powers is referred to as the dormant Commerce Clause. Defendants argue that the dormant Commerce Clause is not relevant to this case because it restricts State action only in the absence of Congressional authorization of such action. “When Congress has struck the balance it deems appropriate, the courts are no longer needed to prevent States from burdening commerce, and it matters not that the courts would invalidate the state tax or regulation under the Commerce Clause in the absence of congressional action. Courts are final arbiters under the Commerce Clause only when Congress has not acted.” Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 154-55, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (citation omitted). Defendants cite five cases in which courts rejected dormant Commerce Clause arguments because Congress had acted in the relevant field of regulation, but in each of these cases Congress had specifically authorized the challenged State action. See id. 455 U.S. at 155 (challenged tax had been approved by federal officials); see also, Northeast Bancorp, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 472 U.S. 159, 174, 105 S.Ct. 2545, 86 L.Ed.2d 112 (1985) (challenged State laws authorized in federal statute); W. & S. Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 653, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981) (same); Panhandle E. Pipe Line Co. v. Public Serv. Comm’n, 332 U.S. 507, 520-21, 68 S.Ct. 190, 92 L.Ed. 128 (1947) (same). Defendants argue that by enacting the proprietary powers exception to ADA preemption, Congress has authorized laws such as the Ordinance and thus the Court does not have the power to review the Ordinance under the dormant Commerce Clause. Cf. Sea Air Shuttle Corp. v. Virgin Islands Port Authority, 800 F.Supp. 293 (D.Vi.1992) (port authority’s actions were authorized under the proprietary powers exception to ADA preemption and therefore did not violate the dormant Commerce Clause). The Court, however, concludes below that the Ordinance does not fall within the proprietary powers exception to the ADA. See Section V.C.4, infra. The Court concludes, therefore, that the Ordinance is subject to the strictures of the dormant Commerce Clause. B. Extraterritoriality The dormant Commerce Clause precludes State and local laws that have the extraterritorial effect of regulating “commerce occurring wholly outside the boundaries of a State.” Healy, 491 U.S. at 336. “When a state statute directly regulates ... interstate commerce, ... we have generally struck down the statute without further inquiry.” Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986). This strict bar is based both on the dormant Commerce Clause and on principles of State sovereignty: “The principles guiding this assessment ... reflect the Constitution’s special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.” Id. 491 U.S. at 335; see also BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 1597, 134 L.Ed.2d 809 (1996) (“one State’s power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, ... but is also constrained by the need to respect the interests of other States”). In Brown-Forman, the Court struck down a State statute that required distillers to post prices for in-State sales of their products during a certain month and to guarantee that they would not sell the product at a higher price elsewhere in the United States during that month. Brown-Forman, 476 U.S. at 575-76. The Court held that this law “regulates out-of-state transactions in violation of the Commerce Clause. Once a distiller has posted prices in New York, it is not free to change its prices elsewhere in the United States during the relevant month____ While New York may regulate the sale of liquor within its borders, ... it may not ‘project its legislation into [other States] by regulating the price to be paid’ for liquor in those States.” Id. at 582-83 (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521, 55 S.Ct. 497, 79 L.Ed. 1032 (1935)). See also, Gore, 116 S.Ct. at 1597 (a State cannot penalize “conduct that was lawful where it occurred and that had no impact on [the State] or its residents”). The Ordinance has a similar effect. Once a company signs a City contract, it cannot provide discriminatory benefit packages to its employees anywhere in the United States without facing penalties imposed by the City. In other words, the City effectively regulates certain extraterritorial practices of City contractors. Unless shielded by the market participant exception to the dormant Commerce Clause, discussed below, the Ordinance is unconstitutional as applied to out-of-State conduct. See S.F. Admin.Code § 12B.l(d)(iv). Although contract-related conduct, see 12B.l(d)(ii), (iii), might also occur beyond the State’s borders, it would not be “commerce occurring wholly outside the [City’s] borders” because the City would have entered into the contract. San Francisco conduct, that is, conduct described in § 12B.l(d)(i), takes place only on territory covered by the City’s police powers and thus that section raises no extraterritoriality concerns. The Ordinance, therefore, potentially violates this aspect of the dormant Commerce Clause only with respect to the out-of-State conduct covered by section 12B.l(d)(iv). C. Marketplace Participation Exception Defendants argue that, despite the Ordinance’s extraterritorial reach, it does not conflict with the dormant Commerce Clause because the City is acting as a market participant when it imposes conditions on its contractors. The Supreme Court first recognized a market participant exception to the dormant Commerce Clause in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Id. 426 U.S. at 810. In White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983), the Supreme Court upheld a Boston mayoral executive order that required all construction projects funded in whole or in part by city funds to be performed by a work force at least half of which consisted of city residents. Id. 460 U.S. at 206. “Insofar as the city expended only its own funds in entering into construction contracts for public projects, it was a market participant” and the order was valid under the Commerce Clause. Id. at 214-15. The Court rejected as irrelevant arguments that the order would have a significant impact on out-of-State workers and that the order swept too broadly, creating more of a burden than was necessary to accomplish its objectives. Id. at 209-10. “If the city is a market participant, then the Commerce Clause establishes no barrier.” Id. at 210. In a footnote, however, the Court stated, there are some limits on a state or local government’s ability to impose restrictions that reach beyond the immediate parties with which the government transacts business, [citation omitted] We find it unnecessary in this case to define those limits with precision, except to say that we think the Commerce Clause does not require the city to stop at the boundary of formal privity of contract. In this case, the May- or’s executive order covers a discrete, identifiable class of economic activity in which the city is a major participant. Everyone affected by the order is, in a substantial if informal sense, “working for the city.” Id. at 211 n. 7. In South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984), a plurality of the Court held that Alaska had exceeded the limits of the market participant exception, but Justice Rehnquist, author of the White opinion, vehemently dissented. In Wunnicke, Alaska had conditioned the sale of State-owned timber on a commitment that the primary manufacture of the timber take place in Alaska. Id. 467 U.S. at 84. The plurality held that this law violated the dormant Commerce Clause and could not be saved by the market participant exception: “The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.” Id. at 97. The plurality rejected an interpretation of the doctrine that would “validate under the Commerce Clause any contractual condition that the State had the economic power to impose.” Id. at 97 n. 10. In his dissent, Justice Rehnquist stated that the plurality’s distinction between market participation and market regulation invoked antitrust principles inapplicable to a Commerce Clause analysis, and noted that Alaska could achieve the same result by modifying its law so that it clearly fell within the doctrine. Id. at 101-103 (Rehnquist, J., dissenting). There is no question that the City is acting as a market participant when it implements the Ordinance: when the City enters into contracts that are subject to the Ordinance, it is directly participating in the marketplace by purchasing services or leasing property. The only question before the Court, therefore, is whether, by implementing the Ordinance, the City inappropriately reaches beyond the sphere of economic activity in which it is participating in an attempt to regulate commerce beyond its borders. The Court concludes that the Ordinance reaches too far to be shielded by the market participant exception. Contractors must guarantee that, throughout the term of the contract, they will not provide discriminatory employee benefit packages in “any of [their] operations elsewhere within the United States.” S.F. Admin.Code § 12B.l(d)(iv). Technically, subsection (iv) does not “reach beyond the immediate parties with which the government transacts business,” White, 460 U.S. at 211 n. 7, because only companies that sign contracts with the City are affected. However, this class of economic activity encompasses much more than that in which the City is a “major participant,” id., and the individuals affected by the Ordinance could hardly be described, even informally, as “working for the city.” Id. Under the plurality’s test in Wunnicke, section 12B.l(d)(iv) of the Ordinance surely fails as applied to out-of-State conduct. This section applies to contractor conduct that is not related to the purpose of the contract. Cf § 12B.l(d)(iii) (contract-related conduct carried out anywhere in the United States). By operation of this subsection, a contractor may face penalties, termination of the contract, a two-year bar from contracting with the City, and forfeiture of moneys owed by the City under the contract. These consequences are certainly substantial enough to create a regulatory effect on the contractors’ out-of-State activities. The Ordinance, therefore, has “a substantial regulatory effect outside of [the] particular market” in which the City participates. Chief Justice Rehnquist’s criticisms of the plurality’s approach in Wunnicke do not apply here. There is no way that the City could modify this portion of the Ordinance so that it would meet the requirements of the marketplace participant doctrine. The Court concludes, therefore, that the imposition of national nondiscrimination guarantees pursuant to the Ordinance is not shielded by the market participant exception. The Ordinance, therefore, impermissibly regulates out-of-State commerce. Therefore, the Court strikes down the Ordinance insofar as it applies to the out-of-State conduct described in S.F. Administrative Code section 12B.2(d)(iv). D. Burdens on Interstate Commerce Defendants argue that the Ordinance does not otherwise violate the dormant Commerce Clause by imposing excessive burdens on interstate commerce. In determining whether a State or local government has overstepped its role in regulating interstate commerce, the Supreme Court has distinguished “between state statutes that burden interstate transactions only incidentally, and those that affirmatively discriminate against such transactions.” Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). A statute that discriminates against interstate commerce on its face or in practical effect is invalid unless the State can demonstrate “both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means.” Id. (quoting Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)). On the other hand, if a statute “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). The Ordinance burdens interstate commerce because out-of-State companies that provide discriminatory benefits packages are barred from obtaining certain City contracts. The Ordinance does not, however, discriminate by its terms or in practical effect between intrastate and interstate commerce: companies that do business only within California are subject to the same constraints. Because the Ordinance on its face does not discriminate between in-State and out-of-State commerce, it must be analyzed under the Pike formulation of the dormant Commerce Clause test. The Ordinance regulates even-handedly and the Court finds that the City has acted to effectuate a legitimate local public interest, the City’s long-term interest in not indirectly supporting discriminatory business practices. A plurality of the Supreme Court has recognized that local governments have a compelling interest “in assuring that public dollars ... do not serve to finance the evil of private prejudice.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion) (discussing race discrimination and noting that government involvement in private discrimination may be unconstitutional). Similarly, Maryland’s highest court has recognized that a city may have a legitimate and strong public interest in dissociating itself from discriminatory practices. In Board of Trustees of Employees’ Retirement System of City of Baltimore v. Mayor and City Council of Baltimore City (City of Baltimore), 317 Md.72, 562 A.2d 720 (1989), the Maryland court upheld against a dormant Commerce Clause challenge Baltimore ordinances that required divestiture of city funds from companies doing business in South Africa. The court explained that “it is indisputable that the Ordinances effectuate legitimate, local public interests.... They permit the City and its citizens to distance themselves from the moral taint of coventuring in firms that, in the view of many, help to maintain South Africa’s system of racial discrimination. Finally, they express the City’s sensitivity to the deep feeling of its citizens on this matter of fundamental human dignity.” Id. at 143, 562 A.2d 720. San Francisco has a long history of taking a principled stand against discrimination and of being in the forefront of efforts to ban discrimination based on sexual orientation. See, e.g., Alioto’s Fish Co. Ltd. v. Human Rights Comm’n of San Francisco, 120 Cal.App.3d 594, 600 & n. 4, 174 Cal.Rptr. 763 (since 1972, City has prohibited contractor from discriminating on the basis of sexual orientation). Thus, the Ordinance effectuates a legitimate local public interest, to combat discrimination on the basis of sexual orientation. The Ordinance fails, therefore, only if the burdens it places on interstate commerce are clearly excessive in relation to the putative local benefits. As applied to conduct in San Francisco, see § 12B.l(d)(i), employees working within the City who had been victims of discrimination directly benefit. The applications of the Ordinance that cover contract-related conduct, see § 12B.l(d)(ii), (iii), serve to keep the City from directly participating in discriminatory business practices. These sections also are shielded by the market participant exception. Even as applied to the in-State conduct covered by § 12B.l(d)(iv), the local interest in dissociating the City from discrimination justifies the minor burden of requiring companies to modify discriminatory benefit plans, especially because contractors can comply with the Ordinance without increasing their benefit costs. The Ordinance permits companies to reduce or eliminate benefits as a means of compliance. The Court concludes, therefore, that the Ordinance, insofar as it does not violate the dormant Commerce Clause’s bar against extraterritorial regulation, also does not violate the dormant Commerce Clause as an excessive burden on interstate commerce. E. Summary of Constitutional Challenges Plaintiffs are entitled to prevail on summary adjudication of their claim that the Ordinance is impermissibly extraterritorial to the extent the Ordinance is applied to out-of-State conduct that is not related to the purposes of the City contract. See S.F. Administrative Code § 12B.l(d)(iv). With respect to all other applications of the Ordinance, Defendants are entitled to prevail on summary adjudication of Plaintiffs’ claim that the Ordinance violates the dormant Commerce Clause of the United States Constitution. V. Preemption by Federal Law A. General Principles Federal preemption of State law may be express, typically as provided in a preemption clause of a federal statute, or implied, either because the State law is an obstacle to accomplishing the full purposes and objectives of Congress with respect to a federal law (conflict preemption) or because the existence of a comprehensive federal regulatory scheme implies that Congress intended to occupy the entire field of regulation (field preemption). Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The inclusion of an express preemption provision in a federal statute implies that Congress did not intend to preempt other matters. Freightliner Corp. v. Myrick, 514 U.S. 280, 288, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). In every ease, the scope of preemption turns on Congressional intent. N.Y. State Conference of Blue Cross & Blue Shield v. Travelers Insurance Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Courts must begin with the “starting presumption that Congress does not intend to supplant state law. Indeed, ... where federal law is said to bar state action in fields of traditional state regulation, we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Id. 514 U.S. at 654-55 (citations omitted). Plaintiffs argue that the Ordinance is preempted under the express preemption provision of ERISA, and under both express and implied preemption principles of the ADA and the RLA. B. Preemption by ERISA 1. Standing Defendants argue that Plaintiffs do not have standing to raise their ERISA preemption argument because they are not among the enumerated categories of persons who may bring a declaratory relief action directly under the act. See 29 U.S.C. § 1132(a) (limiting statutory right to seek declaratory judgment to enumerated parties). Plaintiffs, however, have not brought an action based on § 1132(a), but instead raise a claim of federal preemption based on the Supremacy Clause of the Constitution. The Ninth Circuit recognized the distinction between these causes of action in Hydrostorage, Inc. v. Northern Calif. Boilermakers Local Joint Apprenticeship Comm., 891 F.2d 719, 724-25 (9th Cir.1989) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)); see also, Section V.C.l, infra (discussion of cause of action to raise ADA preemption challenge). Defendants concede that individual carriers have standing to raise this claim. Plaintiffs’ associational standing derives from its members’ standing. See Section II, supra. Therefore, except as noted previously in the Court’s discussion of associational standing, id., Plaintiffs have standing to challenge the Ordinance based on ERISA preemption. 2. Legal Standards ERISA contains an express preemption clause providing that the law “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” as described in the act. 29 U.S.C. § 1144(a). In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), the Supreme Court defined “relates to” as “has a connection with or reference to,” id. 463 U.S. at 97, and stated that the phrase should be given a broad interpretation. Id. at 98. In Shaw, the Court had “no difficulty” in concluding that a State nondiscrimination law related to employee benefit plans. Id. at 96. The law, which forbade discrimination on the basis of sex, had been interpreted by a State court to require employers who provided disability benefit to provide benefits for pregnancy leave as well. Id. at 88. The Court found that the law was preempted to the extent that it banned practices that were lawful under federal law. Id. at 108. In subsequent decisions, the Court continued to interpret the “relates to” phrase in the ERISA preemption provision expansively. For example, in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the Court held that ERISA preempted a State law wrongful discharge claim that was based on an allegation that an employer fired an employee in order to avoid making pension contributions. Id. 498 U.S. at 140. The Court held that the cause of action related to ERISA plans because it “makes specific reference to, and indeed is premised on, the existence of a pension plan.” Id. In Mackey v. Lanier Collection Agency & Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), the Court held that a State garnishment law that specifically exempted ERISA plans was preempted because it expressly referred to ERISA plans, id. 486 U.S. at 829, but that a generally-applicable garnishment law was not preempted because it did not conflict with Congressional objectives in enacting ERISA, id. at 831. In District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992), the Court considered a law that required employers who provided health coverage for then-active employees also to provide equivalent coverage for injured employees who were eligible for workers’ compensation benefits. Id. 506 U.S. at 126-27. The Court held that law was related to ERISA plans, and therefore was preempted, because it imposed obligations to provide health coverage that were “measured by reference to” employee health plans, which are ERISA-covered plans. Id. at 130. More recently, the Supreme Court has retreated from such an expansive interpretation of the ERISA preemption provision, although it has reaffirmed the specific holdings of these earlier cases. In New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Court cautioned against extending the meaning of “relate to” to “the furthest stretch of its indeterminacy.” Id. 514 U.S. at 655. The Court observed that there must be some limit to ERISA preemption, but acknowledged that neither the language of the provision nor the Court’s prior decisions interpreting that language provided much guidance as to where to draw the line. Id. The Court concluded, “We simply must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Id. at 656. The Court concluded in Travelers that the purpose of the ERISA preemption clause “was to avoid a multiplicity of regulations in order to permit the nationally uniform administration of employee benefit plans.” Id. Reviewing prior cases in which it had found ERISA preemption, the Court explained that those laws had “mandated employee benefit structures or their administration” or provided an alternate enforcement mechanism for ERISA plans. Id. 514 U.S. at 658. Comparing these laws to the law at issue in Travelers, the Court concluded that “[b]oth the purpose and the effects” of the Travelers law distinguished it and saved it from preemption. Id. at 658. In Travelers, the Court reviewed a State law that imposed surcharges on certain health maintenance organizations (HMOs) and required hospitals to collect surcharges from patients covered by a commercial insurer, but exempted patients insured by a Blue Cross/Blue Shield plan (Blues). Id. at 649. Commercial insurers had challenged the law to the extent it was applied to patients whose insurance or HMO coverage had been purchased by an ERISA-covered employee health plan. Id. The district court had concluded that the law was preempted because the surcharges increased costs for HMOs and insurers other than the Blues, and hence increased their premiums, which significantly affected purchasing decisions by ERISA plans. Id. at 652. Considering both the purpose and the effect of this law, the Court concluded that Congress did not intend ERISA to preempt it. The justification for the law, which the Court found credible, was that the Blues paid their bills more promptly and efficiently, and covered patients who would have been rejected by commercial insurers as unacceptable risks. Id. at 658. By imposing surcharges on the Blues’ competitors, which presumably were passed on to these insurers’ or HMOs’ customers in the form of higher premiums or membership fees, the law had the effect of making the Blues a more attractive option for purchasers of health insurance, including ERISA plans, than they otherwise would have been. Id. at 659. The Court concluded, however, that this was only an “indirect economic influence [that did] not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself.” Id. at 659. This indirect influence did not interfere with Congress’ objectives in enacting ERISA: it did not “preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishes to provide one. It simply bears on the costs of benefits.” Id. at 660. The Court found “nothing remarkable about surcharges on hospital bills” and noted that even absent State action they had been common since before ERISA was enacted and had varied substantially across regions, which made it unlikely that Congress intended State laws with similar effects to be preempted. Id. at 660. Despite holding that the indirect economic effect of the surcharge law did not merit preemption, the Court cautioned that some indirect influences might. “[T]here might be a point at which an exorbitant tax leaving consumers with a Hobson’s choice would be treated as imposing a substantive mandate.” Id. at 664. At the conclusion of the opinion, the Court noted: [W]e do not hold today that ERISA preempts only direct regulation of ERISA plans, nor could we do that with fidelity to the views expressed in our prior opinions on the matter. We acknowledge that a state law might produce such acute, albeit indirect economic effects, by intent or otherwise, as to force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers, and that such a state law might indeed be pre-empted. Id. at 668 (citations omitted). The Court reaffirmed the Travelers approach to ERISA preemption in California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 117 S.Ct. 832, 838, 136 L.Ed.2d 791 (1997), and again explored the issue of when indirect effects on ERISA plans might be preempted. In Dillingham, the Court considered whether ERISA preempted a statute that required public works contractors to pay prevailing wages to their employees, but permitted them to pay lower wages to apprentices if the apprentices belonged to a State-approved apprenticeship program. Id. 117 S.Ct. at 835. Arguing that the apprenticeship program was an ERISA plan, a contractor claimed that the law related to ERISA plans. Id. at 836. The Court discussed separately the “reference to” and “connection with” prongs of the “relates to” test. Reviewing Greater Washington, Mackey, and Ingersoll-Rand, the Court explained that a law refers to an ERISA plan if it “acts immediately and exclusively upon ERISA plans ... or [if] the existence of ERISA plans is essential to the law’s operation.” Id. at 838. Because the Court concluded that apprenticeship programs did not necessarily have to be ERISA plans, it concluded that the law did not refer to ERISA plans and was not preempted on this basis. Id. at 838-39. With respect to the “connection with” test, the Court stated that it would apply the Travelers “purpose and effects” test to determine whether the law conflicted with ERISA’s objectives. Id. at 838. The Court did not expressly review the statute’s purposes, however. Discussing the law’s effects, the Court explained that it had found a connection with ERISA plans in previous cases, including Shaw, because the laws at issue in those cases had “ ‘mandated employee benefit structures or their administration.’ ” Id. at 839 (quoting Travelers, 514 U.S. at 658). The prevailing wage statute, on the other hand, like the law at issue in Travelers, had only an indirect economic influence on those plans. Id. at 840. The law “does not bind ERISA plans to anything,” the Court observed. Id. at 841. Contractors could use no apprentices, could use apprentices from a State-approved program, or could use apprentices from an unapproved program. The law merely imposed different apprentice wage rates based on whether or not the apprenticeship program had been approved by the State. Id. The Court noted that such “differential economic incentives” on apprenticeship programs predated ERISA and would exist based on similar federal prevailing wage statutes even absent the State law under consideration. Id. Because the law “alters the incentives, but does not dictate the choices” of ERISA plans and because the economic inducement was not “tantamount to a compulsion,” the law was insufficiently connected with ERISA plans to be preempted. Id. at 842. Addressing the fundamental issue of Congressional intent, the Court noted that apprenticeship standards and public works employment standards were areas traditionally regulated by the States and “remote from the areas with which ERISA is expressly concerned — ‘reporting, disclosure, fiduciary responsibility, and the like.’” Id. at 840 (quoting Travelers, 514 U.S. at 661 (quoting Shaw, 463 U.S. at 98)). In a concurrence to Dillingham, Justice Antonin Sealia, who was joined by Justice Ruth Bader Ginsburg, wrote, “I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict pre-emption____except as establishing that, ‘relates to’ is irrelevant.” Id. 117 S.Ct. at 843 (Sealia, J., concurring). In Boggs v. Boggs, — U.S. —, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997), another ERISA preemption case decided later the same term, the Court relied solely on conflict preemption principles to resolve the case and found it unnecessary to “inquire whether the statutory phrase ‘relate to’ provides further and additional support for the preemption claim.” Id. 117 S.Ct. at 1761. The Court also suggested that if conflict preemption had not resolved the case, it would have considered whether the law was preempted under field preemption principles. Id. 3. Does the Ordinance “Relate to” ERISA plans? Defendants argue that the Ordinance does not “relate to” ERISA plans for four reasons: first, the Ordinance refers only to benefits, not plans; second, the Ordinance does not mandate changes in ERISA plans because employers can provide separate plans to provide benefits for domestic partners and those separate plans would not be ERISA plans; third, the Ordinance does not operate exclusively on ERISA plans; and fourth, the Ordinance does not have a substantial connection with ERISA plans because it creates only indirect economic incentives for employers to modify their plans. a. Relates to Benefits Defendants argue that the Ordinance is not affected by the ERISA preemption provision because it refers only to ERISA benefits and not to ERISA plans. In Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 7-8, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), the Supreme Court noted that ERISA preempts State laws only if they “relate to any employee benefit plan” and not simply because they relate to employee benefits. Attempting to identify what constitutes a “plan,” the Court noted that “the terms ‘employee benefit plan’ and ‘plan’ are defined only tautologically in the statute,” and concluded that the meaning of “plan” had to be derived from Congress’ purposes in enacting ERISA. Id. 482 U.S. at 8-9. Congress enacted ERISA, the Court concluded, in part to ease the administrative burdens of providing benefits to employees: “An employer that makes a commitment systematically to pay certain benefits undertakes a host of obligations, such as determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of funds for benefit payments, and keeping appropriate records.” Id. at 9. The Court noted that these obligations arise only “with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligations.” Id. at 12. The Court held that the State law in question, therefore, did not relate to benefit plans. Id. The law required employers to provide a severance payment to employees in the event of a plant closing. Id. at 3 — 1, 12. Because the “requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation,” the law did not relate to employee benefit plans: “To do little more than write a check hardly constitutes the operation of a benefit plan.” Id. at 12. Thus, the Court’s conclusion that the law did not relate to employee benefit plans turned on the nature of the benefit the law required employers to provide to their employees. To the extent the Or