Domestic Partnerships Essay

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Domestic partnership ordinances are a form of licensed cohabitation in the United States, typically available to both same-sex and opposite-sex couples. Currently, couples may register their unions in approximately 60 cities, 9 counties, and 6 states. Hawaii in 1997, California in 1999, Vermont in 2000, Maine and New Jersey in 2004, and Connecticut in 2005 were the first to confer some form of official recognition on same-sex couples, as well as on unmarried opposite-sex couples, who may also be licensed domestic partners. At the national level, proposed domestic partnership legislation in 2001, the Domestic Partnership Benefits and Obligations Act, was referred to the House Subcommittee on the Civil Service and Agency Organization but never reached the floor; so far no one has introduced a similar bill.

The first domestic partnership ordinance—implemented in Berkeley, California, in 1984—provided official acknowledgment of the unions of same-sex couples, at a time when legal marriage did not exist elsewhere. Since 2004, Massachusetts has permitted same-sex couples to legally marry and, to date, remains the only state to do so, although no other state yet legally recognizes these Massachusetts marriages. Berkeley extended the option of becoming licensed partners to opposite-sex couples as well, as legislators asserted that heterosexual cohabiting couples also need legal acknowledgment of their unions, particularly when couples dissolve their unions and disagree over property division and “spousal” maintenance (commonly referred to as “palimony”). Most locales actually do permit both same-sex and opposite-sex couples to register. Currently, domestic partnership legislation in five cities and three counties (in addition to the states of Hawaii, Vermont, and Connecticut) specifies that only same-sex couples are eligible.

In most locales, becoming licensed partners requires the completion of an affidavit; couples attest that they are financially interdependent adults who share a single residence, are not biologically related, are not related through legal marriage or adoption (and are not legally married to anyone else), share an intimate relationship, and agree to be mutually responsible for each other’s well-being. Some locales have additional requirements. For example, currently in the states of California and New Jersey, the partners in same-sex unions must be at least 18 years of age to register their unions. At least one partner in opposite-sex unions, however, must be at least 62 years of age (as a function of the eligibility requirements under the Social Security Act). Other locales are less restrictive. For example, some do not require that the partners be residents of the locale, as long as they meet the other requirements to become licensed. Regardless of additional requirements, to register the union in most locales, couples must submit the completed affidavit, along with a small registration fee, to the appropriate government records office (e.g., the city clerk’s office), though in some locales, couples may have their affidavits notarized to register their partnerships.

Despite the legal acknowledgment of licensed partnerships, most locales grant few tangible benefits to the partners. Indeed, although all states with domestic partner registries offer some benefits, only a handful of cities do so. Benefits typically include the option of including a partner under one’s health insurance plan, visitation rights in hospitals and correctional facilities, and bereavement leave. Additionally, some state and local governments provide health insurance benefits to their employees and their partners even without enactment of a domestic partnership ordinance.

The proportion of licensed couples that are same-sex or opposite-sex is unknown, as most locales do not request this information on the affidavit. Thus, estimates rest on determining the sex of each partner on the basis of first names, but even then such methodology is not conclusive. Furthermore, because of confidentiality issues, about half of all locales refuse to release information about how many couples register their partnerships. From the available data of domestic partnership records from the locales that release such information, approximately 8 percent of all registered couples are in heterosexual unions.

Individuals can legally leave licensed domestic partnerships more easily than they can leave marital situations. The only requirement to terminate the license is that one of the partners inform the government records office where the partnership was registered. Termination of the license does not require the consent (or knowledge) of both partners, and the legislation does not include guidelines with regard to property division or palimony. In most locales, a new licensed partnership may be registered 6 months after the termination of the previous one. Furthermore, couples must terminate their license with the government records office even if the couple has subsequently married, though it appears that many couples fail to do so.

Legal challenges concerning domestic partnership ordinances focus on the debate surrounding the legal recognition of same-sex unions, with little attention paid to opposite-sex unions. Court decisions have come down on both sides of this issue. In Baker v. State of Vermont in 1999, the state supreme court ruled in favor, leading to the implementation of civil unions in that state. In Goodridge v. Massachusetts in 2003, the state court extended eligibility for legal marriage to same-sex couples. However, in Knight v. Schwarzenegger in 2005, the California Supreme Court ruled in favor of licensed domestic partnerships. In this case, the petitioners argued that the state’s Domestic Partners Act, in effect, amended Proposition 22, the defense of marriage initiative approved by a majority of California voters that defined legal marriage as existing only between one man and one woman. The petitioners argued that allowing same-sex couples to register as licensed partners redefines marriage without voter approval. The California Supreme Court disagreed, ruling that marriages and licensed partnerships were two legally distinct institutions. Other cases include Snetsinger v. Montana in 2004 and Tyma v. Montgomery County Council in 2001. Both cases were unsuccessful attempts to deny benefits such as insurance coverage to the domestic partners of homosexual employees.

Bibliography:

  1. Bowman, Craig A. and Blake M. Cornish. 1992. “A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances.” Columbia Law Review 92:1164-1211.
  2. Willetts, Marion C. 2003. “An Exploratory Investigation of Heterosexual Licensed Domestic Partners.” Journal of Marriage and the Family 65:939-52.
  3. Williams, Hannah Koopman and Rachel E. Bowen. 2000. “Marriage, Same-Sex Unions, and Domestic Partnerships.” Georgetown Journal of Gender and Law 1:337-59.

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