Domestic Partnership Laws in the United States: A Review and Critique

Domestic Partnership Laws in the United States: A Review and Critique* I. INTRODUCTION Arrangements providing for employment and other social benefits based on "domestic partnership" status are becoming increasingly common in both the private and the public sectors. For example, the Human Rights Campaign reports that 3,572 private companies, colleges, universities, and governments offer domestic partnership benefits to their employees.1 Recently, the state legislature of California began to offer domestic partnership benefits to partners of legislative employees.2 In 2000, an arbitrator in Connecticut ruled that the state had to offer health benefits for same-sex partners of state employees.3 A number of countries and foreign jurisdictions have also created a special status for same-sex couples. These countries include Brazil,4 Canada,5 Denmark,6 France,7 Ice land,8 Norway,9 Sweden,10 Switzerland,11 New South Wales (Australia),12 and Aragon (Spain).13 Now, Germany and Hungary are also considering creating a status for same-sex domestic partners.14 These laws are of increasing concern not only because of their frequency, but also because of their attractiveness as a substitute for recognition of same-sex "marriage." Politicians may offer domestic partnership benefits, or something similar, as a concession. This happened in Hawaii in 1997 when the state marriage amendment was being considered in the legislature.15 Similarly, the Iowa marriage recognition statute (providing that an out-of-state same-sex "marriage" would not be valid in Iowa) included a provision creating a task force to report on the issue of domestic partners.16 Most conspicuously, the Vermont Legislature created the status of "civil unions" for same-sex couples17 after a Vermont Supreme Court decision mandated the provision of marriage benefits to same-sex couples by the legislature and threatened to force recognition of same-sex "marriage" if the legislature did not comply.18 Now the American Law Institute ("ALI") has joined the fray by endorsing a domestic partnership status.19 This paper will survey the domestic partnership laws of various U.S. jurisdictions and will compare the ALI proposal with these laws. It will also discuss the litigation surrounding these provisions and briefly comment on legal and policy implications of domestic partnership statutes. II. STATE DOMESTIC PARTNERSHIP PROVISIONS Only three states-Hawaii, California, and Vermont-have domestic partnership statutes. The Hawaii law was adopted in 1997 as a tradeoff for the passage of the Marriage Amendment, which would have prevented the legalization of same-sex "marriage."20 The Hawaii law provides a number of benefits to state employees and citizens, although its effect on private employers is limited. Its provisions include funeral leave for state employees, hospital visitation rights, health insurance coverage for partners of state employees, and the ability to claim an elective share of a partner's estate.21 Hawaii's term for domestic partners is "reciprocal beneficiaries." Reciprocal beneficiaries must be eighteen years old, ineligible to marry, and unmarried. They must sign a declaration of intent,22 which is filed with the director of the state health department.23 Reciprocal beneficiary status can be ended by filing a declaration with the state health department or by marriage.24 Notably, the Hawaii statute explicitly includes relationships not involving sex or the same residence. While the law was originally intended to cover private as well as public employers, private employers filed suit. The litigation settled with an agreement that the law would only apply to a small number of private employers.25 The California law, enacted in 1999, creates a registry whereby same-sex couples and couples over age sixty-two can register for the right to hospital visitation and to appoint their partner a beneficiary on their insurance. …