The Ettelbrick Project for LGBTQ Family Recognition (named for Paula Ettelbrick), a part of the Stonewall Community Foundation, is sponsoring a program in San Francisco next Wednesday, August 8, entitled, "Be Careful What You Wish For: Making Marriage Victories for Same-Sex Couples a Win-Win for All Families." The program is fully described here, with logistical information as well.
The program will focus in part on the loss of domestic partner benefits once same-sex couples win the right to marry, and the reasons to oppose such results. I wrote recently about this phenomenon in Weschester County, New York.
We are seriously in danger of losing protections for a range of families. In other words, we face the prospect of making marriage mandatory. In the words of the description of the program, "you get married or you get nothing."
I urge everyone in the San Francisco area to attend. A similar program was held in New York in June. For more information about the project, contact its director, Terry Boggis, at terry.boggis@stonewallfoundation.org
Showing posts with label domestic partnership. Show all posts
Showing posts with label domestic partnership. Show all posts
Tuesday, July 31, 2012
Friday, May 25, 2012
Winning marriage and losing domestic partnership benefits: check out this NY event
I'm in the middle of writing an article about a case from Westchester County, NY, in which a teacher, Kathe McBride, sued the school district for which she worked when it instituted domestic partner employee benefits for same-sex partners only. She wanted benefits for the man she had lived with for over 30 years. The Westchester County Human Rights Commission agreed that this amounted to discrimination on the basis of sexual orientation and marital status. A New York appeals court disagreed, and before the highest court in New York could hear the case, the parties settled.
But here's the other part of that story. Effective July 24, 2011, the day same-sex couples achieved the right to marry in New York, McBride's employer ended DP benefits entirely. Now the 7000+ employees must marry or forego the ability to extend the economic and emotional security of adequate health care to their partners.
Once upon a time, back when domestic partner employee benefits started at the Village Voice in 1982, they were for gay and straight couples alike and demonstrated respect for the choice not to marry -- a choice that no one's health care should depend upon. They were about family diversity. A decade later, some employers started covering same-sex partners only, reasoning that it was a gay rights issue because gay couples could not marry. Those employers had no problem with requiring straight couples to marry.
On June 4, an event in New York will examine how far we've come...for better and for worse...from the days when domestic partnership benefits were about making marriage matter less. The Ettelbrick Project for LGBTQ Family Recognition at the Stonewall Community Foundation is presenting a program, "The Day Domestic Partnership Dies: Rolling Back Family Reform." Paula Ettlebrick spent her entire career supporting equality and justice, which means she always argued that marriage should not be gatekeeper to family recognition. Terry Boggis serves Paula's memory well with this special Pride month program. I hope it gets a large audience and lots of press coverage.
But here's the other part of that story. Effective July 24, 2011, the day same-sex couples achieved the right to marry in New York, McBride's employer ended DP benefits entirely. Now the 7000+ employees must marry or forego the ability to extend the economic and emotional security of adequate health care to their partners.
Once upon a time, back when domestic partner employee benefits started at the Village Voice in 1982, they were for gay and straight couples alike and demonstrated respect for the choice not to marry -- a choice that no one's health care should depend upon. They were about family diversity. A decade later, some employers started covering same-sex partners only, reasoning that it was a gay rights issue because gay couples could not marry. Those employers had no problem with requiring straight couples to marry.
On June 4, an event in New York will examine how far we've come...for better and for worse...from the days when domestic partnership benefits were about making marriage matter less. The Ettelbrick Project for LGBTQ Family Recognition at the Stonewall Community Foundation is presenting a program, "The Day Domestic Partnership Dies: Rolling Back Family Reform." Paula Ettlebrick spent her entire career supporting equality and justice, which means she always argued that marriage should not be gatekeeper to family recognition. Terry Boggis serves Paula's memory well with this special Pride month program. I hope it gets a large audience and lots of press coverage.
Tuesday, October 4, 2011
El Paso has inclusive definition of domestic partners; Mayor and council members face recall
I've got a special connection to El Paso, given that my partner and I have a residence across the New Mexico border in Las Cruces. El Paso is our local airport. It's also a city hard hit by the Mexican drug wars across the border in Juarez, something we were following as a local story for years before the national press picked up on it.
Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.
The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.
The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.
Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.
This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)
Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.
The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.
The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.
Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.
This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)
Tuesday, August 16, 2011
Maps of relationship non-recognition laws often obscure non-recognition of different-sex unmarried couples.
In the process of planning one of my law school classes, I was perusing the websites with maps of the United States showing the status of relationship recognition or non-recognition across the country. There are so many different types of laws that it's a challenge to accurately portray each state with all its nuances. HRC and NGLTF each have useful, easy-to-print one-page non-recognition maps. The Movement Advancement Project has interactive maps more suitable to getting a quick online snapshot of each state's LGBT-related laws.
Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.
So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.
This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.
But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.
I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.
Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.
Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.
So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.
This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.
But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.
I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.
Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.
Thursday, July 28, 2011
New government report tells us how many employees can include same AND different-sex domestic partners on their health benefits
This week, the Bureau of Labor Statistics released a report on benefits offered employees in the public and private sphere in March 2011. For the first time, the data include the percentage of employees eligible for health benefits that cover domestic partners. The report includes separate statistics for how many employees can cover same-sex partners and and how many can cover different-sex partners. (The report uses the term "opposite sex." Several years ago some trans folks raised my consciousness about the term "opposite," and ever since I have used "different.")
While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).
The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.
I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?
Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.
In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.
The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.
While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).
The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.
I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?
Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.
In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.
The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.
Saturday, July 9, 2011
New York employers ending domestic partner benefits
And so it begins. New York allows same-sex couples to marry, and some employers are now eliminating domestic partner benefits. So the New York Times reported yesterday. This is exactly what Katherine Franke feared in her Times op-ed, published the morning that turned out to be the day (night,really) marriage equality came to New York. And these are large employers, whose policies affect thousands of people...Corning, IBM, Raytheon.
Every gay rights advocate quoted in the Times article opposes dropping DP benefits. But none of their organizations have made it a priority to say that no one should have to marry a partner to provide for their economic and emotional well-being. Case in point: Lambda Legal represents Arizona public employees with same-sex partners who don't want to lose their domestic partner benefits. Employees with different-sex partners are also losing their benefits, but Lambda takes the position that they aren't really losing their benefits because they can obtain them by marrying, which is not available to same-sex couples in Arizona. I decried their approach in this post precisely because it makes marriage mandatory for different-sex couples and suggests that it would be fine to have it mandatory for same-sex couples as well if they could marry.
It's worth remembering that domestic partner benefits started (in 1982) as an alternative to marriage and were always available to both same-sex and different-sex partners. The first employers to establish same-sex only policies were software developer Lotus in Massachusetts and Montefiore Medical Center in New York in 1991. They explicitly said their policies were based on the exclusion of same-sex couples from marriage. The next year, Levi Strauss became the first Fortune 500 company to provide DP benefits, and it chose to cover both same- and different-sex partners. There's been a split among employers ever since. The Times piece yesterday says Eastman Kodak, which covers both gay and straight couples, has no plans to require marriage of anyone.
Finally, as I wrote last fall, my employer, American University, has gone from covering only same-sex couples to covering both same- and different-sex couples. They were nudged in part by the fact that, even though DC allows same-sex couples to marry, DC also has registered domestic partnership which is open to different-sex, as well as same-sex, couples. Insurance policies that cover spouses must also cover domestic partners. American University now has a functional test for those who are not married or registered as domestic partners. The NY Times even published my letter to the editor about it. Scroll to the end of this page to read it. I hope some employers in New York follow.
Every gay rights advocate quoted in the Times article opposes dropping DP benefits. But none of their organizations have made it a priority to say that no one should have to marry a partner to provide for their economic and emotional well-being. Case in point: Lambda Legal represents Arizona public employees with same-sex partners who don't want to lose their domestic partner benefits. Employees with different-sex partners are also losing their benefits, but Lambda takes the position that they aren't really losing their benefits because they can obtain them by marrying, which is not available to same-sex couples in Arizona. I decried their approach in this post precisely because it makes marriage mandatory for different-sex couples and suggests that it would be fine to have it mandatory for same-sex couples as well if they could marry.
It's worth remembering that domestic partner benefits started (in 1982) as an alternative to marriage and were always available to both same-sex and different-sex partners. The first employers to establish same-sex only policies were software developer Lotus in Massachusetts and Montefiore Medical Center in New York in 1991. They explicitly said their policies were based on the exclusion of same-sex couples from marriage. The next year, Levi Strauss became the first Fortune 500 company to provide DP benefits, and it chose to cover both same- and different-sex partners. There's been a split among employers ever since. The Times piece yesterday says Eastman Kodak, which covers both gay and straight couples, has no plans to require marriage of anyone.
Finally, as I wrote last fall, my employer, American University, has gone from covering only same-sex couples to covering both same- and different-sex couples. They were nudged in part by the fact that, even though DC allows same-sex couples to marry, DC also has registered domestic partnership which is open to different-sex, as well as same-sex, couples. Insurance policies that cover spouses must also cover domestic partners. American University now has a functional test for those who are not married or registered as domestic partners. The NY Times even published my letter to the editor about it. Scroll to the end of this page to read it. I hope some employers in New York follow.
Friday, June 24, 2011
NY Times op-ed weighs in for a "beyond marriage" approach
Columbia Law prof Katherine Franke got a prime placement today in the New York Times for a tempered view of what comes with marriage equality for same-sex couples. The piece is well-timed as everyone watches the cliffhanger in the New York Senate. Among Katherine's excellent points -- that the availability of marriage has made domestic partner benefits disappear and that neither same-sex nor different-sex couples should be forced to marry to provide for the health of their partners. Katherine fears she could be in this position if New York allows same-sex couples to marry.
I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.
To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.
If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.
I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.
To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.
If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.
Tuesday, June 21, 2011
Wisconsin trial court upholds domestic partner registry
Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.
Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.
Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.
Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.
Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.
Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.
Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.
Tuesday, March 29, 2011
Marquette University to offer domestic partner benefits...to those who register with the state in a registry that is the subject of court challenge.
Going on two years ago, Wisconsin adopted a domestic partner registry in spite of the fact that it has a "super-DOMA" constitutional amendment. Almost immediately, the registry was challenged as unconstitutional, as I wrote about here. Well, the past week has seen two items of related news.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
Monday, February 14, 2011
Ninth Circuit hears case on Arizona domestic partner benefits...but only for same-sex couples who say they would marry
In 2008, by administrative regulation, Arizona made available to state employees health benefits for their domestic partners, defined by at least a year of living together and a set of criteria demonstrating financial interdependence. Same-sex and different-sex partners were eligible. In August 2009, the Arizona legislature rescinded these benefits through a statute limiting state employee health benefits to spouses. Before the rescission could take effect, Lambda Legal challenged the constitutionality of the legislation, but only on behalf of those state employees with same-sex partners. They won in the District Court, and the Ninth Circuit Court of Appeals hears the state's appeal today, in the case of Collins v Brewer.
This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.
Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.
The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.
It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.
The press will likely report this case the way Lambda is portraying it...as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.
This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.
Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.
The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.
It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.
The press will likely report this case the way Lambda is portraying it...as an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.
Friday, January 7, 2011
New Mexico update -- Republican governor may repeal domestic partner benefits
One day after New Mexico Attorney General Gary King released an opinion that same-sex marriages performed elsewhere would be recognized in New Mexico, the new Republican governor, Susana Martinez, said she is reviewing whether to eliminate domestic partner benefits for state employees. Both same-sex and different-sex couples receive those benefits, as a result of an executive order signed by Governor Bill Richardson in 2003.
Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.
The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.
No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.
Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.
The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.
No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.
Wednesday, December 1, 2010
Illinois legislature passes civil unions: different-sex couples also eligible
In yesterday's post on the DADT repeal recommendations, I noted that the report opposed creating a "same-sex relationship" status for gay servicemembers, in large part because it would appear unjust and unequal to differentiate between same-sex and different-sex committed couples. Well the Illinois Senate has just approved civil unions there, and the governor will sign the bill, and when it becomes law the status will be available to both same-sex and different-sex couples. Only Nevada and the District of Columbia have created a status that is also open to different-sex couples (both jurisdictions called the status "domestic partnership" but because it extends to those who register virtually all of the state-based legal consequences of marriage it is the same as what others states call a "civil union."). The Hawaii civil union bill which was vetoed earlier this year by the state's Republican governor also included different-sex couples.
Colorado allows different-sex couples to register as "designated beneficiaries" (as well as any two unmarried people), and that gives some of the important legal consequences of marriage, like the right to inherit without a will and the right to sue for wrongful death, but it gives nowhere near all the legal consequences of marriage. (I like this status because those who sign up can choose their own legal consequences.) California and Washington also allow different-sex couples to register, but only if one partner is 62 or older. (This is supposedly to protect benefits that might be lost if a recipient remarried, but the specific age chosen - 62 - does not actually correspond to any legal consequence of remarriage, so go figure...)
If Illinois creates a critical mass and is a precursor of things to come, I say it's about time. We may well have come full circle to the impetus behind the first domestic partner benefits implemented in the 1980's; those benefits were available to gay and straight couples because their purpose was to make marriage unnecessary to protect the well-being of a loved one. When Vermont implemented the first "civil union" status but restricted it to same-sex couples, heterosexual feminists rightly complained that they were being inappropriately forced into marriage.
Same-sex only civil unions send two messages: marriage is really special and different-sex couples should be required to marry to get any recognition; and same-sex couples are less worthy and can be cabined in a status developed just for them. I detest both these messages.
After Nevada passed its domestic partnership law, I spoke with some of the key players in that political process. They all said that including different-sex couples was virtually a given, that allowing heterosexuals access to domestic partnership was important to garner more widespread support and represented the value of equality. To me, it's all about making marriage matter less as a legal status, and that's a good thing.
Colorado allows different-sex couples to register as "designated beneficiaries" (as well as any two unmarried people), and that gives some of the important legal consequences of marriage, like the right to inherit without a will and the right to sue for wrongful death, but it gives nowhere near all the legal consequences of marriage. (I like this status because those who sign up can choose their own legal consequences.) California and Washington also allow different-sex couples to register, but only if one partner is 62 or older. (This is supposedly to protect benefits that might be lost if a recipient remarried, but the specific age chosen - 62 - does not actually correspond to any legal consequence of remarriage, so go figure...)
If Illinois creates a critical mass and is a precursor of things to come, I say it's about time. We may well have come full circle to the impetus behind the first domestic partner benefits implemented in the 1980's; those benefits were available to gay and straight couples because their purpose was to make marriage unnecessary to protect the well-being of a loved one. When Vermont implemented the first "civil union" status but restricted it to same-sex couples, heterosexual feminists rightly complained that they were being inappropriately forced into marriage.
Same-sex only civil unions send two messages: marriage is really special and different-sex couples should be required to marry to get any recognition; and same-sex couples are less worthy and can be cabined in a status developed just for them. I detest both these messages.
After Nevada passed its domestic partnership law, I spoke with some of the key players in that political process. They all said that including different-sex couples was virtually a given, that allowing heterosexuals access to domestic partnership was important to garner more widespread support and represented the value of equality. To me, it's all about making marriage matter less as a legal status, and that's a good thing.
Monday, November 22, 2010
Kudos to American University for expanding domestic partnership benefits to include different-sex couples
It's no surprise to readers of this blog (or my book) that I dislike domestic partner benefits extended only to same-sex couples. The first employer-provided DP benefits were for same- and different-sex partners, and the theory behind them was that "marriage" was too narrow a category for what counted as family and that a couple should not have to marry for one to be able to protect the economic well-being of the other. The rise of DP benefits for same-sex couples only, however, reflected a different perspective, one based solely on the inability of same-sex couples to marry. Same-sex only benefits accepted marriage as a proper criterion for extending benefits but gave same-sex couples benefits only because they could not marry.
The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.
So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.
Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.
Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.
Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.
I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.
Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.
But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.
The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.
So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.
Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.
Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.
Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.
I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.
Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.
But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.
Tuesday, October 26, 2010
Oregon Tax Court ruling points the way towards compulsory marriage
Last month the Oregon Tax Court ruled on the constitutionality of an administrative rule allowing same-sex but not different-sex partners to exempt from state tax the imputed value of their domestic partner health insurance benefits.
The challenge was filed by Yvonne Haldeman, a taxpayer with an unmarried different-sex partner who, in 2007, tried to subtract $5313 from her gross income because that was the imputed value, for federal tax purposes, of the health insurance provided by her employer for her partner. (The details of her specific situation are in the opinion of a tax court magistrate who heard the case in 2008).
Haldeman argued that the rule violated the Oregon Constitution's privileges and immunities clause which "forbids inequality of privileges or immunities not available upon the same terms...to any class of citizens." She argued that the class of citizens of which she was a member was unmarried different-sex partners. The background for this issue is the 1998 Tanner case, in which the Oregon appeals court found it unconstitutional to grant health insurance benefits to the spouse of a married public employee but not to a same-sex partner who could not marry the employee. The Oregon Attorney General subsequently concluded that it would violate the state constitution to permit a spouse, but not a same-sex domestic partner, to subtract the value of the health insurance benefit from gross income for tax purposes. The administrative rule at issue defines "domestic partner" as someone under no legal disability to marry the other person but for the fact that each is the same sex and who would marry that person if Oregon law permitted it.
Haldeman argued that the class for purposes of constitutional analysis was unmarried different-sex partners vs unmarried same-sex partners. The Tax Court rejected this, specifically because the rule applied only to those same-sex partners who would marry if they could. Therefore, the Tax Court found the class to be married vs unmarried persons. Tanner found sexual orientation to be a suspect class. It also determined that immutability was not an absolute requirement for suspect class status; rather a class is suspect if its characteristics are "historically regarded as defining distinct, socially recognized groups that have been the subject of adverse social or political stereotyping or prejudice." The Tax Court then determined that marital status was not a suspect class and that neither single status nor marital status has resulted in routine targeting for adverse treatment over the years. The opinion states that Haldeman did not argue that her class had historically suffered prejudice or stereotyping. Rather she argued that the very rule she challenged put her through "adverse social and political prejudice," and the Tax Court disregarded this, stating that she "does not elaborate on this assertion, does not contribute any evidence of her assertion, and does not cite to any case law supporting an argument of mistreatment of unmarried persons."
As a result of the above, Haldeman was not in a suspect class. Applying the rational basis ("any conceivable state of facts") test, the Tax Court found that the rational basis was avoiding the litigation that would likely have followed after Tanner had the state continued to include the value of the benefit in the gross income of an employee with a same-sex domestic partner. The Tax Court did not adopt the reasoning of the magistrate in his 2008 ruling that "it was rational for the legislature to assume that the financial benefit inuring from the exemption provided an incentive for people to marry." Yet the reasoning it did use seems not credible to me. How can the purpose of a rule be avoiding litigation, as opposed to some substantive benefit provided by the rule? As it turned out, the rule did not avoid litigation; after all, Haldeman sued.
I applaud the Tax Court's implicit (unfortunately) rejection of promoting marriage as the legitimate interest furthered by the distinction in the rule. But I question the part of its reasoning that disregards precisely the prejudice and stereotyping that unmarried couples have historically suffered. Once immutability is not a prerequisite for determining a suspect class, there is a strong evidence of the longstanding prejudice against unmarried couples.
Of course this issue feeds into the argument I have been making over many years. The arguments for access to marriage for same-sex couples glorify marriage. They diverge from the arguments made in the past that marriage should not determine who gets benefits. In 2000, Lambda Legal filed a friend of the court brief in 7th Circuit Court of Appeals in support of Milagros Irizarry, a heterosexual city employee denied access to domestic partner health benefits available to same-sex couples. Irizarry lost, but Lambda Legal entered the case even though gay and lesbian employees were receiving the benefits. Lambda Legal took a position against making marriage compulsory for straight couples. I doubt the organization would have assisted Yvonne Haldeman in her case in the Oregon Tax Court.
In fact, Lambda Legal is not representing the different-sex domestic partners who lost their benefits in Arizona. You could read all of Lambda's publicity about the case, Collins v. Brewer, without ever realizing that different-sex domestic partners were receiving benefits and that those benefits were also terminated. In fact, this Lambda press release describes Arizona's action as "eliminating health benefits for gay state employees" when all state employees lost their domestic partner benefits. The University of Arizona recently notified its employees that a court injunction issued in July does not prevent the termination of benefits to different-sex partners.
The fight for domestic partner benefits started in the 1980's as a fight against mandating marriage before an employee could protect the health of his or her family. All the early domestic partner benefits (think The Village Voice and Ben & Jerry's) were open to unmarried couples of any gender. A decade ago, Lambda Legal endorsed that position. Apparently it no longer does.
I'm reminded all the time by leaders in the marriage equality movement that they are fighting for the choice to marry. And I consistently reply that there is no "choice" when marriage is the only way to obtain economic protections for a family unit. Both Haldeman and Collins v. Brewer prove my point.
The challenge was filed by Yvonne Haldeman, a taxpayer with an unmarried different-sex partner who, in 2007, tried to subtract $5313 from her gross income because that was the imputed value, for federal tax purposes, of the health insurance provided by her employer for her partner. (The details of her specific situation are in the opinion of a tax court magistrate who heard the case in 2008).
Haldeman argued that the rule violated the Oregon Constitution's privileges and immunities clause which "forbids inequality of privileges or immunities not available upon the same terms...to any class of citizens." She argued that the class of citizens of which she was a member was unmarried different-sex partners. The background for this issue is the 1998 Tanner case, in which the Oregon appeals court found it unconstitutional to grant health insurance benefits to the spouse of a married public employee but not to a same-sex partner who could not marry the employee. The Oregon Attorney General subsequently concluded that it would violate the state constitution to permit a spouse, but not a same-sex domestic partner, to subtract the value of the health insurance benefit from gross income for tax purposes. The administrative rule at issue defines "domestic partner" as someone under no legal disability to marry the other person but for the fact that each is the same sex and who would marry that person if Oregon law permitted it.
Haldeman argued that the class for purposes of constitutional analysis was unmarried different-sex partners vs unmarried same-sex partners. The Tax Court rejected this, specifically because the rule applied only to those same-sex partners who would marry if they could. Therefore, the Tax Court found the class to be married vs unmarried persons. Tanner found sexual orientation to be a suspect class. It also determined that immutability was not an absolute requirement for suspect class status; rather a class is suspect if its characteristics are "historically regarded as defining distinct, socially recognized groups that have been the subject of adverse social or political stereotyping or prejudice." The Tax Court then determined that marital status was not a suspect class and that neither single status nor marital status has resulted in routine targeting for adverse treatment over the years. The opinion states that Haldeman did not argue that her class had historically suffered prejudice or stereotyping. Rather she argued that the very rule she challenged put her through "adverse social and political prejudice," and the Tax Court disregarded this, stating that she "does not elaborate on this assertion, does not contribute any evidence of her assertion, and does not cite to any case law supporting an argument of mistreatment of unmarried persons."
As a result of the above, Haldeman was not in a suspect class. Applying the rational basis ("any conceivable state of facts") test, the Tax Court found that the rational basis was avoiding the litigation that would likely have followed after Tanner had the state continued to include the value of the benefit in the gross income of an employee with a same-sex domestic partner. The Tax Court did not adopt the reasoning of the magistrate in his 2008 ruling that "it was rational for the legislature to assume that the financial benefit inuring from the exemption provided an incentive for people to marry." Yet the reasoning it did use seems not credible to me. How can the purpose of a rule be avoiding litigation, as opposed to some substantive benefit provided by the rule? As it turned out, the rule did not avoid litigation; after all, Haldeman sued.
I applaud the Tax Court's implicit (unfortunately) rejection of promoting marriage as the legitimate interest furthered by the distinction in the rule. But I question the part of its reasoning that disregards precisely the prejudice and stereotyping that unmarried couples have historically suffered. Once immutability is not a prerequisite for determining a suspect class, there is a strong evidence of the longstanding prejudice against unmarried couples.
Of course this issue feeds into the argument I have been making over many years. The arguments for access to marriage for same-sex couples glorify marriage. They diverge from the arguments made in the past that marriage should not determine who gets benefits. In 2000, Lambda Legal filed a friend of the court brief in 7th Circuit Court of Appeals in support of Milagros Irizarry, a heterosexual city employee denied access to domestic partner health benefits available to same-sex couples. Irizarry lost, but Lambda Legal entered the case even though gay and lesbian employees were receiving the benefits. Lambda Legal took a position against making marriage compulsory for straight couples. I doubt the organization would have assisted Yvonne Haldeman in her case in the Oregon Tax Court.
In fact, Lambda Legal is not representing the different-sex domestic partners who lost their benefits in Arizona. You could read all of Lambda's publicity about the case, Collins v. Brewer, without ever realizing that different-sex domestic partners were receiving benefits and that those benefits were also terminated. In fact, this Lambda press release describes Arizona's action as "eliminating health benefits for gay state employees" when all state employees lost their domestic partner benefits. The University of Arizona recently notified its employees that a court injunction issued in July does not prevent the termination of benefits to different-sex partners.
The fight for domestic partner benefits started in the 1980's as a fight against mandating marriage before an employee could protect the health of his or her family. All the early domestic partner benefits (think The Village Voice and Ben & Jerry's) were open to unmarried couples of any gender. A decade ago, Lambda Legal endorsed that position. Apparently it no longer does.
I'm reminded all the time by leaders in the marriage equality movement that they are fighting for the choice to marry. And I consistently reply that there is no "choice" when marriage is the only way to obtain economic protections for a family unit. Both Haldeman and Collins v. Brewer prove my point.
Tuesday, June 15, 2010
Final OPM regs value broad range of relationships and should be model for other reforms
I posted last fall about proposed regulations from the Office of Personnel Management concerning for whom a federal employee may use sick or bereavement leave. Yesterday, OPM issued the finals regs, in the process responding to comments received on the proposed regs.
The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)
Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.
In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.
I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.
The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.
The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)
Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.
In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.
I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.
The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.
Friday, June 4, 2010
Excluding different sex domestic partners bodes ill for federal law reform
Domestic partners of federal employees are now eligible for long term care insurance. The Obama administration determined that it could make this change, without going to Congress, as part of the review of federal employee benefits the President announced last June. The program will be limited, however, to same-sex partners. The final regulations state that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners."
I had hoped that the approach Secretary of State Hillary Clinton announced the month before Obama's directive, covering both same- and different-sex partners of State Department employees, would prevail as reforms of benefits for partners of federal employees proceeded. I had hoped that Maine Senator Susan Collins would prevail in amending legislation extending the prize of benefits -- health insurance -- to both same- and different-sex partners.
My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.
Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.
Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).
I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.
But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?
I had hoped that the approach Secretary of State Hillary Clinton announced the month before Obama's directive, covering both same- and different-sex partners of State Department employees, would prevail as reforms of benefits for partners of federal employees proceeded. I had hoped that Maine Senator Susan Collins would prevail in amending legislation extending the prize of benefits -- health insurance -- to both same- and different-sex partners.
My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.
Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.
Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).
I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.
But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?
Sunday, December 27, 2009
Contemplating gay and lesbian families in New Mexico in 2010
I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.
On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."
New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.
As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).
Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.
Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.
On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."
New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.
As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).
Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.
Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.
Tuesday, November 10, 2009
DC City Council committee passes marriage equality bill and preserves domestic partnerships
Here's Rick Rosendall's excellent coverage of the 4-1 vote in the DC City Council Commitee on Public Safety and the Judiciary approving the marriage equality legislation. As indicated in my previous post, the bill deletes the provision "sunseting" domestic partnerships.
The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).
The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).
Moreover, while the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there are likely to be some same-sex couples that prefer domestic partnerships as an alternative to marriage.
The ability to register domestic partnerships in the District remains important. This allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, as well as to non-sexual relationships, the Committee believes that preserving the right to register is necessary. (My comment: I love this!)
Retaining domestic partnership at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
From here to the full Council, then the Mayor, then Congress.
D.C. City Council committee recommends retaining domestic partnerships
The DC City Council Committee on Public Safety and the Judiciary today marks up the bill authorizing same-sex marriage in the District of Columbia. I'm happy to report that Committee Chair Phil Mendelson is recommending preservation of domestic partnership. The draft of the Committee Report on the subject says as follows:
Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.
The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:
The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.
Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.
Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.
The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:
The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.
Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.
Tuesday, October 27, 2009
It's looking good for removing the domestic partner "sunset" provision from the DC marriage equality bill
If I were a betting woman, I'd say there will be no mention of ending domestic partnership in the marriage equality bill that goes through the DC City Council.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
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