Domestic Partnership

Domestic partnership is an "alternative family" based on cohabitation by two adults, with or without children, in a relationship marked by mutual emotional and financial commitment, which may be recognized for a variety of purposes by businesses or government. The term emerged during the late 1970s and early 1980s as part of the attempt by lesbians and gay men to attain recognition for their families. This came after a series of unsuccessful lawsuits had persuaded many that the right of same-sex couples to marry could not then be won in the courts.

Although some activists sought same-sex marriage as their ultimate priority, others rejected legal marriage as an appropriate model for same-sex families, believing that marriage reflected the state of opposite-sex, biologically procreative families under a patriarchal social order that discounted the status and value of women. These critics also tied the historical legal structure of marriage to transmission of ownership in land and material wealth. Further, the women's movement has generated a wide debate about the desirability of marriage, even in its more egalitarian forms. Although domestic partnership was first seen mostly as a gay rights issue, it has also been adopted in some places for opposite-sex couples, especially older couples concerned about loss of government benefits if they marry.

Domestic partnership came to be favored by those who rejected marriage because, as it has no fixed legal status, it remained open to being formulated as circumstances might dictate. A domestic partnership proposal could be a simple government registry carrying no tangible rights or benefits, or might approximate the rights and responsibilities of marriage. It could be a voluntary private-sector concept for extending rights or benefits in the workplace or the marketplace. Domestic partnership was also attractive for some opposite-sex couples who did not desire to marry but wanted recognition for their relationship that would include some of the rights that traditionally accompany marriage.

In its earliest incarnation, domestic partnership was presented to employers as a pay equity issue. Indeed, employee benefits such as health, dental, and vision insurance, survivor's benefits, and bereavement and family leave account for a significant proportion of total compensation, and employees with domestic partners could be seen as paid less than their married colleagues for the same work. Some consumers also argued that it was discriminatory for businesses to not recognize nonmarital families for family membership rates and discounts.

The earliest recognition of domestic partnerships came from private businesses, nonprofit organizations, and smaller municipalities. The Village Voice, a weekly New York City newspaper, was among the first employers to provide benefits to nonmarital partners of employees in 1982. The concept spread to private employers and nonprofit organizations, including educational institutions, during the early 1980s, and was adopted by some governmental employers, such as the California cities of West Hollywood and Berkeley.

The Task Force on Family Diversity, established in the mid-1980s by the Los Angeles City Council, gave the concept new impetus. The task force issued recommendations for government policy, some of which were adopted in a Los Angeles city law. It circulated its reports to other cities, where they provided a template for legislation. Proponents in New York City used the Los Angeles task force report to craft local legislation as a parallel strategy to a lawsuit by the Lesbian and Gay Teachers Association (LGTA). Mayor David Dinkins established a partnership registry by executive order, then settled the LGTA case by authorizing partnership benefits for employees in mayoral agencies. His successor, Rudolph Giuliani, won enactment of an expansive city ordinance that conferred on registered partners all spousal rights available under city laws.

Domestic partnership achieved its broadest state-law form in California, where legislation establishing a simple partnership registry for same-sex couples and elderly opposite-sex couples was expanded through a series of amendments to a status of quasi-marriage. Thus, effective January 1, 2005, California afforded registered domestic partners almost all the rights of spouses under state law.

SUBJECTS OF DEBATE

The most frequent objections to extending benefits relate to anticipated costs and difficulties of administration. The AIDS epidemic fueled such fears, because domestic partnership was identified mainly with same-sex couples, and gay men were seen as the group with the highest risk for an expensive disease. Private businesses were concerned about how to define eligibility and how to ensure that only those qualified could obtain benefits.

Both of these concerns were assuaged as benefits consultants studied such programs in operation, resulting in publications providing model policies, sample forms, and data on costs. Studies showed that including same-sex partners had minimal impact on an employer's benefits costs, in the range of about 1 percent of overall costs, twice that if opposite-sex partners were also included, but still far less than had been feared. These data relied on employers requiring employees to prove the qualifications of their household, or to insist on registration with the local government registries that began to proliferate during the 1990s.

A completely different range of concerns emanates from social and religious conservatives, who see domestic partnership as a threat to the traditional family. For those to whom homosexuality is anathema, official recognition of homosexual relationships is clearly anathema as well. Others fear that offering domestic partnership as an easy alternative to marriage would undermine the family as a central feature of traditional religious and moral philosophies. In some places consumer boycotts were threatened against employers who adopted partnership benefits plans, and repeal initiatives appeared on local ballots.

During the 1980s, domestic partnership became a significant goal of gay rights advocates, but the number of private and public entities recognizing domestic partners really began to increase during the 1990s. Domestic partnership grew considerably in the private sector, especially at colleges and universities, in professional workplaces such as law and accounting firms, and in the financial services, high technology, and entertainment industries. Later in the decade manufacturing, transportation, and health-care industries also adopted such policies, as did major cities and a few states.

Opposition gained renewed force in the first decade of the twenty-first century in reaction to some successes in the campaign for same-sex marriage, most notably in a 1993 Hawaii Supreme Court decision suggesting the possibility that same-sex couples could win the right to marry from the courts and a 2003 Massachusetts Supreme Judicial Court decision that was the first in the United States to order a state to allow same-sex couples to marry. In the meantime, the U.S. Congress had responded to this trend in 1996 with the Defense of Marriage Act, which precluded federal agencies from recognizing registered domestic partners for federal rights or benefits.

The Internal Revenue Service interpreted the tax code unfavorably to domestic partners, requiring that the value of partnership benefits be treated as taxable income (unlike the value of benefits provided to legal spouses). Many states passed laws and constitutional amendments, aimed primarily at barring same-sex marriage, that could also prevent municipalities from recognizing domestic partners. During the summer of 2005, Congress considered a proposed Federal Marriage Amendment that might be construed to outlaw domestic partnership as well, but the measure did not receive enough support to be sent to the states for ratification at that time, and fared little better during the 2006 session.

Domestic partnership is normally limited to adult couples in an economically interdependent household. Both partners must be old enough to consent to contracting within the jurisdiction. From there, domestic partnership plans vary in how they handle such matters as waiting periods to qualify for benefits, methods of termination, waiting periods for starting new partnerships after terminating old ones, and, most significantly, whether the status is open to opposite-sex couples. Attempts by opposite-sex couples excluded from domestic partnership plans to challenge them as discriminatory have generally been rejected by the courts, on the ground that opposite-sex couples can marry to obtain benefits. Nevertheless, many advocates for domestic partnership have argued that it should be open to both kinds of couples.

LEGISLATIVE AND LITIGATION ISSUES

Litigation to secure domestic partnership benefits has enjoyed mixed success. Because of preemption by the federal Employee Retirement Income Security Act (ERISA), state courts may not order private-sector employers to provide partnership benefits, so litigation has focused on state and local government. Until 1998, most cases foundered on courts accepting the argument that there is no unlawful discrimination when same-sex couples are treated the same as unmarried opposite-sex couples. In that year, the Oregon Court of Appeals ruled that state constitutional and statutory principles were violated by denying benefits to same-sex partners of employees of a state college, which led to a state law extending the benefits to state employees generally. Since then, the Alaska Supreme Court and a New Hampshire superior court have refused to equate unmarried same-sex and opposite-sex couples for this purpose, finding that the state's denial of marriage rights placed same-sex in a different category and rendered the denial of benefits discriminatory.

Some municipal plans have been challenged on the ground that local governments lack authority to set policy in the field of domestic relations, normally subject to state legislation. Some courts have invalidated municipal domestic partnership plans on this basis, but most plans have survived the challenge, and in some cases further tinkering with the domestic partnership law, specifically by changing the definition or scope of coverage, made it possible to survive subsequent challenges. In Atlanta, Georgia, for example, the state supreme court first invalidated a domestic partnership ordinance as contradictory to a state law governing eligibility for employee benefits, but the city council's second attempt was sustained when it introduced a requirement of financial interdependency for domestic partners.

Although state and local governments may not require private employers to establish domestic partnership benefit programs, some municipal governments have sought to influence private companies by restricting contracting with companies that do not provide such benefits. The New York City Council's attempt to enact such a law over the mayor's veto was rejected by the state courts, which found a state law requiring the award of public contracts to the lowest responsible bidder to take priority. San Francisco's ordinance partially survived judicial review, although portions were found to be unenforceable because of federal preemption.

In some states, constitutional amendments prohibiting same-sex marriage also forbade the bestowal of "incidents" or "benefits" of marriage on unmarried or same-sex couples. Questions arose about the continued validity of state or municipal domestic partnership programs in these states. The California courts found that a voter-initiated ban on same-sex marriage did not preclude the legislature from adopting its domestic partnership law. In one of the first cases addressing the state constitutional issue, a Utah judge ruled in 2006 that employment-related insurance is not a "benefit" of marriage, but rather a benefit of employment; this enabled the implementation of Salt Lake City's ordinance allowing city employees to sign up an "adult designee" to be covered by their health plan.

Some have seen domestic partnership, or its near relation, civil unions, as preferable to same-sex marriage in dealing with the inequities suffered by same-sex couples. The first jurisdiction to embrace "civil unions" was Vermont, where the legislature, under orders from the state supreme court to extend equal rights of marriage to same-sex couples, invented civil unions to bestow virtually all the state law rights of marriage on same-sex couples. The court's opinion was in December 1999 and the legislature passed the Civil Union Act in 2000. In its effect, the Vermont law is similar to the final version of California's Domestic Partnership law. Connecticut has enacted a similar civil union law, and New Jersey responded to a state supreme court mandate to provide equal rights for same-sex couples by enacting a civil union law in 2006. Polling shows that many members of the public who are opposed to same-sex marriage recognize the inequities of depriving same-sex couples of any legal status, and are willing to support alternative forms of recognition. Thus, it seems likely that domestic partnership will continue to flourish alongside the efforts by activists to secure the right to marry for same-sex couples. In some cases it may prove a legislative stepping-stone toward something approximating marriage. It is difficult to predict whether marriage will ultimately sweep the field, or whether the increasing popularity of domestic partnership among unmarried heterosexual couples might give the latter more permanent life.

see also Family;Family, Alternative.

BIBLIOGRAPHY

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                                             Arthur Leonard