Colorado includes different-sex couples in civil union legislation...you wouldn't know it from the press

When I heard about the civil union bill in Colorado, I did what I always do...check the fine print.  And the first thing I looked for was whether different-sex couples were eligible.  I needed to check the bill for that because the press didn't report it, not the New York Times, or Huffington Post, or the Denver Post.  The answer is...yes.  Colorado joins Illinois and Hawaii as states that don't discriminate in civil unions on the basis of sex or sexual orientation.  Nevada and the District of Columbia allow different-sex couples to enter the equivalent status, which they call domestic partnership. (D.C. allows any two people who live together in a committed, familial relationship to enter a domestic partnership).

Colorado also retains a unique status of designated beneficiaries, which I've written about extensively in these posts.  It allows people to tailor the legal consequences they want to their specific relationship, rather than being the all-or-nothing of marriage or civil unions.

With all the focus on same-sex couples and marriage, civil union is generally portrayed as a second-best way station until equality comes with access to the word "marriage."  But when the status is available to different-sex couples it provides a choice for those who have reasons not to marry.  In the first three and a half months in Illinois, 87 different-sex couples registered.  As this survey shows, they had varying reasons.

Illinois may be on its way to marriage equality.  The current proposal leaves civil unions in place.  DC has marriage equality, and it has retained domestic partnership.

Why does all this matter to me?  I want respect for all families.  When marriage is on a pedestal, all other forms of families are devalued. Civil unions for different-sex couples create a small opening, a crack in the pedestal. It's not enough, but it's better than the way station approach.

Non-bio dad win in Colorado bodes well for non-bio moms

A Colorado Appeals Court ruled earlier this month that a man with a six-year father-child relationship was the child's parent for all legal purposes, including joint legal custody and visitation. Although it's not obvious that such a case would be a win for the children of lesbian couples, in fact the basis for the court's decision is applicable by analogy to the situation in which a non-bio lesbian mom raises a child with the child's bio mom.

Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.

The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.

This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.

Colorado designated beneficiary law takes effect -- check out this website

Colorado's terrific new law, the subject of previous posts here and here, went into effect at the beginning of this month. Folks there have developed this user-friendly web site with answers to questions and forms to download.

Congratulations, Colorado! LGBT folks there can now name a next-of-kin, whether that is a same-sex partner or a close and trusted friend. I hope other states will follow, including those that allow same-sex couples to marry. If you're interested in how this law got passed, contact the Gay, Lesbian, Bisexual, and Transgender Community Center of Colorado and its Legal Initiatives Project.

More on Colorado's designated beneficiary law

Last week I wrote about the new Colorado law that allows any two unmarried adults to become "designated beneficiaries" and thus gain what essentially amounts to next-of-kin status. I love this law!

But it's still not a statute that matches the purpose of various laws to the families/relationships that the law should encompass. Here's what I mean. It's perfect that the law allows designation of a medical and burial decisionmaker and a person who will inherit if you die without a will. That's because the purpose of any law on those subjects is to advance individual autonomy.

But the selection of a designated beneficiary also establishes who can sue for wrongful death or obtain employee partner benefits. When I consider the purpose of those laws, I don't think autonomy; I think economic interdependence. So ability to recover for wrongful death should attach to anyone in a relationship of economic dependence or interdependence. No marriage or registration should be required. In fact, even married couples should have to show economic interdependence to come within these laws.

Colorado does this now for workers compensation survivors benefits. The purpose of these benefits is compensation for the loss of an economic provider. A spouse -- and now a designated beneficiary -- cannot receive the benefit if s/he was not living with the worker who died or not dependent, at least in part, on the worker who died. So far so good.

But the benefit should go to anyone dependent in whole or in part of the deceased worker. A few states do this now. Those laws should be models for all states.

I'm still so excited about the new Colorado law. It's a big improvement over the all-or-nothing status based on whether a couple is married, and I love the fact that the two people can pick the legal consequences they want. More laws like this and it will be easier to see the wisdom of matching the purpose of any law and the relationships subject to that law.

The extraordinary new Colorado law

When a legislature blinks on same-sex marriage, we hear about it in the news everywhere. But the law signed by Colorado's governor last week has garnered little attention, and it has some transformative possibilities that deserve lots and lots of attention. (Thanks to Bilerico's Alex Blaze for highlighting it -- but not a single comment to his post.) Colorado now has a simple form, with a menu of options, that allows any two unmarried people to designate each other as entitled to numerous legal consequences usually reserved to married couples.

The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.

Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.

In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.

Colorado has now come close to that model.

I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.

So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)

You'll be hearing more from me about the Colorado law soon.