Wisconsin made history last week with the passage of its domestic partner registry because it is the first state with a "super DOMA" to take such a step. A word about "super DOMAs." These are the constitutional amendments passed by states that reject not only marriage for same-sex couples but legal protections for or recognition of unmarried couples of any sexual orientation. Because of such a DOMA, the Michigan Supreme Court ruled last year that its public employers (like the University of Michigan) could not provide domestic partner benefits.
Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.
The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.
But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).
In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.
So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.
My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?
When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.
And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.