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Domestic partnership in California

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Part of the LGBTQ rights series
Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
LGBTQ portal
Example of California domestic partnership certificate.

A California domestic partnership is a legal relationship available to same-sex couples and certain opposite-sex couples in which at least one party is at least 62 years of age. It affords families a wide range of rights and responsibilities similar to marriage.

Enacted in 1999, the domestic partnership registry was the first of its kind in the United States created by a legislature without court intervention. Initially, domestic partnerships enjoyed very few privileges—principally just hospital-visitation rights. The legislature has since expanded the scope of California domestic partnerships to afford many of the rights and responsibilities common to marriage. As such, it is now difficult to distinguish California domestic partnerships from civil unions offered in a handful of other states.

Although the program enjoys broad support in California,[1] it has been the source of some controversy. Groups opposed to the recognition of same-sex families have challenged the expansion of domestic partnerships in court. Conversely, advocates of same-sex marriage have derided the inferior status of domestic partnerships as “separate but unequal” to marriage, invoking the rhetoric that discredited the Plessy v. Ferguson racial-segregation ruling.

Specifics

California has expanded the scope or modified some of the processes in domestic partnerships in every legislative session since the legislature first created the registry. Consult the California Secretary of State for the most current information.[1]

Scope

As of 2005, California affords domestic partnerships most of the same rights and responsibilities as a California marriage. Fact sheet on California domestic partnerships Among these:

  • Making health care decisions for each other in certain circumstances
  • Access to family health insurance plans
  • Sick care and similar family leave
  • Stepparent adoption procedures
  • Presumption that both members of the partnership are the parents of a child born into the partnership
  • Suing for wrongful death of a domestic partner
  • Rights involving wills, intestate succession, conservatorships and trusts
  • Some property and income tax provisions otherwise available only to married couples
  • Access to some survivor pension benefits
  • Supervision of the Superior Court of California over dissolution and nullity proceedings
  • Filing joint income-tax statements beginning in the 2007 tax year

Some privileges are not available at all, particularly any federally administered programs. Due to the federal Defense of Marriage Act or DOMA, same-sex couples in marriages, civil unions, or domestic partnerships in the U.S. do not have the 1,138 rights that a married couple has under federal law. [2] Likewise, some processes, such as the solemnization of a marriage by clergy has no counterpart in the domestic partnership statutes.

Eligibility

Currently, a couple that wishes to register must meet the following requirements:

  1. Both persons have a common residence.
  2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
  3. The two persons are not related by blood in a way that would prevent them from being married to each other in California.
  4. Both persons are at least 18 years of age.
  5. Either of the following:
    • Both persons are members of the same sex.
    • The partners are of the opposite sex, one or both of whom is above the age of 62, and one or both of whom meet specified eligibility requirements under the Social Security Act.
  6. Both persons are capable of consenting to the domestic partnership.

Also, a legal union of a same-sex couple, other than marriage, validly performed in another jurisdiction, that is substantially equivalent to a California domestic partnership, will be recognized as such in California. Civil unions in Vermont, for example, most likely qualify as domestic partnerships in California. Oddly, however, a valid same-sex marriage performed in a jurisdiction that recognizes such unions, such as Massachusetts, would not be recognized in California as either marriage or domestic partnership.

British law recognizes California domestic partnerships as equivalent to civil partnerships in the United Kingdom. The attorney general of New Jersey has ruled that California domestic partnerships are equivalent to civil unions in that state.

Registration

Domestic partner registration is an uncomplicated process, more simple and less costly than entering into a marriage. Both parties must sign a declaration listing their names and address. Both signatures must be notarized. Unlike a marriage, there is no line on the form for the couple to elect whether or not they wish to change their last name(s). The declaration must then be transmitted to the Secretary of State along with a $10 filing fee (plus $23 for same sex couples, to help fund same sex domestic violence training and information). In this regard it is not entered into like a marriage or a Vermont civil union because it is not solemnized by a priest, minister, rabbi, judge, or justice of the peace.

Dissolution

In most cases, a domestic partnership must be dissolved through filing a court action identical to an action for dissolution of marriage. In limited circumstances, however, a filing with the Secretary of State may suffice. This procedure is available when the domestic partnership has not been in force for more than five years. The couple must also meet many other requirements that the dissolution be both simple and uncontested: no children (or current pregnancy) within the relationship, no real estate (including certain leases), and little joint property or debt. The parties must also review materials prepared by the Secretary of State, execute an agreement dividing assets and liability, and waive claims to domestic partner support. Where all the requirements are met, the partnership will terminate six months after the filing, unless either party revokes consent.

Legislative history

The movement to create domestic partnerships in California began at the municipal level.

In 1982, the San Francisco Board of Supervisors passed a measure to extend health insurance coverage to domestic partners of public employees, but did not provide for a registry available to the general public. Mayor Dianne Feinstein vetoed the measure.[2] Eventually San Francisco enacted a similar measure, as did other communities, such as Berkeley, and some local agencies.

In 1985, West Hollywood became the first U.S. city to enact a domestic partnership registry open to the citizenry. Eventually other cities, including San Francisco, Berkeley, and Santa Cruz, followed suit.[3]

Despite successes in a handful of localities, supporters of legal recognition same-sex couples could not overcome the limited geographical scope and relatively modest range of programs administered at the county and city level. In the 1990s, they turned their attention the state legislature.

Early attempts in the state legislature

Mirroring the experience of California’s local efforts, the state legislature did not initially succeed in providing health insurance coverage for domestic partners or creating a domestic partner registry for the general public.

  • Assembly Bill 627 of 1995: In 1995, Assemblymember Richard Katz introduced a bill to create a domestic partner registry, open to both same- and opposite-sex couples. It sought provide limited rights in medical decision making, conservatorships and a few related matters. It died in committee. [4]
  • Murray-Katz Domestic Partnership Act of 1997: At the beginning of the 1997–1998 legislative session Assemblymember Kevin Murray introduced Assembly Bill 54. It was similar to Assembly Bill 627 of 1995. After successfully negotiating two Assembly committees, Murray did not bring the bill to a vote on the Assembly floor.[5]
  • Assembly Bill 1059 of 1997: In 1997, Assemblymember Carole Migden introduced a bill that would require health insurance companies to offer for sale policies that would cover domestic partners of the insured, but did not require employers to provide the coverage. As later amended, it required employers who cover employees’ dependents to cover their domestic partners as well. The amended bill eventually gained approval of the legislature, but Governor Pete Wilson vetoed the measure.[6]
  • Domestic Partnership Act of 1999: Kevin Murray, now a state senator, introduced Senate Bill 75 in December 1998. It was largely identical to his Assembly Bill 54 of 1997 and ultimately passed both houses of the state legislature. Governor Gray Davis vetoed the bill in favor of Assembly Bill 26, which was narrower in scope.[7]

Establishment and incremental expansion

Assembly Bill 26 of 1999

Simulatenously with the Domestic Partnership Act of 1999, Assemblymember Carole Migden introduced Assembly Bill 26 of 1999. As originally drafted, it covered all adult couples, like its unsuccessful senate counterpart. Before bringing the bill to the Assembly floor, however, Migden narrowed its scope. Based on objections from Governor Gray Davis, who did not want a competing alternative to marriage for opposite-sex couples, Migden eliminated coverage for opposite-sex couples where either participant less than 62 years of age. The bill passed, and Davis signed into law on September 22, 1999. It provided for a public registry, hospital visitation rights, and authorized health insurance coverage for domestic partners of public employees.[8] While modest in scope, Assembly Bill 26 marked the first time a state legislature created a domestic partnership statute without the intervention of the courts. (Hawaii’s legislature enacted a more expansive reciprocal beneficiaries scheme in 1997 in response to an unfavorable lower court ruling; Vermont enacted a sweeping civil union bill in 2000 at the direction of its state Supreme Court.)

Assembly Bill 25 of 2001

In the first successful expansion of the domestic partnership act, Assemblymembers Carole Migden and Robert Hertzberg, joined by state Senator Sheila Kuehl, introduced a bill that added 18 new rights to the domestic partnership scheme. It also relaxed the requirements for opposite-sex couples, requiring only one of the participants to be over 62 years of age. The expanded rights included standing to sue (for emotional distress or wrongful death), stepparent adoption, a variety of conservatorship rights, the right to make health care decisions for an incapacitated partner, certain rights regarding distribution of a deceased partner’s estate, limited taxpayer rights, sick leave to care for partners, and unemployment and disability insurance benefits. Governor Gray Davis signed the bill into law on October 22, 2001.[9]

Other bills in the 2001–2002 legislative session

During the 2001–2002 session, California enacted five more bills making minor changes:

  • Senate Bill 1049 (Speier) permitted San Mateo County to provide survivor benefits to domestic partners.[10]
  • Assembly Bill 2216 (Keeley) provided for intestate succession.[11]
  • Assembly Bill 2777 (Nation) authorized Los Angeles, Santa Barbara and Marin counties to provide survivor benefits to domestic partners.[12]
  • Senate Bill 1575 (Sher) exempts domestic partners from certain provisions voiding wills that they helped draft.[13]
  • Senate Bill 1661 (Kuehl) extends temporary disability benefits to workers to take time off to care for a family member.[14]

Wholesale expansion

The introduction of The California Domestic Partner Rights and Responsibilities Act of 2003 (or Assembly Bill 205 of 2003) marked a major shift in the legislature’s approach to domestic partnerships. Earlier efforts afforded domestic partners only certain enumerated rights, which the legislature expanded in piecemeal fashion. This bill, introduced by Assemblymembers Jackie Goldberg, Christine Kehoe, Paul Koretz, John Laird, and Mark Leno, created the presumption that domestic partners were to have all of the rights and responsibilities afforded spouses under state law. The bill did carve out certain exceptions to this premise, principally involving the creation and dissolution of domestic partnerships and certain tax issues. It also, for the first time, recognized similar relationships, such as civil unions, created in other states. Because the legislation dramatically changed the circumstances of existing domestic partnerships, the legislature directed the Secretary of State to inform all previously registered domestic partnerships of the changes and delayed the effect of the law for an additional year, until January 1, 2005. Governor Gray Davis signed the bill into law on September 19, 2003. [15]

Subsequent changes and clarifications

Since enacting The California Domestic Partner Rights and Responsibilities Act of 2003, the legislature has passed several bills aimed at clarifying how certain spousal provisions should be treated in the context of domestic partnerships and made some modest changes. The legislation signed by Governor Arnold Schwarzenegger includes:

  • Assembly Bill 2208 of 2004 (Kehoe) clarifies that health and disability-insurance providers must treat domestic partners the same as married spouses.[16]
  • Senate Bill 565 of 2005 (Migden) allows transfer of property between domestic partners without reassessment for tax purposes.[17]
  • Senate Bill 973 of 2005 (Kuehl) specifies that domestic partners of state workers are entitled to retroactive pension benefits, even if the worker entered retirement before the enactment of Assembly Bill 205.[18]
  • Senate Bill 1827 of 2006 (Migden) requires domestic partners to file state income-tax returns under the same status as married couples (jointly or married filing separately), effective in the 2007 tax year.[19]
  • Assembly Bill 2051 of 2006 (Cohn) creates programs and funding grants to reduce domestic violence in the LGBT community and increases the fee for registering a domestic partnership by $23 to fund these services. The new fees are effective January 1, 2007.[20]

California public opinion has long supported legal protections for gay and lesbian couples. In early 1997, two and half years before any statewide recognition occurred, polls showed two-thirds of Californians supported the limited provisions in unsuccessful bills debated in the legislature at the time. There was also strong support (59 percent) for broader provisions (pension, health, leave and survivor benefits) that weren’t enacted until more than four years later.[21]

Polls consistently show a marked contrast between support for domestic partnerships and same-sex marriage. In 1997, roughly 38 percent of Californians supported same-sex marriage. More recent polls show an increase in support for same-sex marriage, but few polls suggest that there is any more support for same-sex marriage than a statistical tie with opponents.[22]

Challenges to domestic partnerships

Despite broad support, California’s domestic partnership program has engendered opposition.

Referendum

California law provides for referenda, petition drives that would place any legislative enactment on the ballot for review. Following the passage of The California Domestic Partner Rights and Responsibilities Act of 2003, state senator William “Pete” Knight (author of the successful Proposition 22 initiative) and Assemblymember Ray Haynes sought put the new legislation to a popular vote. The referendum failed to qualify for the ballot.[23]

Litigation

Opponents of legal recognition for same-sex couples filed two lawsuits in the Superior Court of California. In the first case, state senator William “Pete” Knight sued Governor Gray Davis (later substituting Governor Arnold Schwarzenegger) on the grounds that A.B. 205 impermissibly amended Proposition 22, which Knight authored. Randy Thomasson (an opponent of gay rights and head of the Campaign for California Families) filed a similar lawsuit, which challenged both A.B. 205 and the earlier domestic-partner expansion in A.B. 25. Both lawsuits, consolidated into a single action, failed at the trial and appellate courts. In the wake of those decisions, opponents of legal recognition for LGBT families launched at least two recall efforts against Judge Loren McMaster, who presided over the trial-court hearings. The recall efforts also failed.[24]

Along similar legal lines, defendants in a wrongful-death action brought by the survivor of a domestic partnership mounted a defense based partly on the ground that the legislative enactments giving a domestic partner standing to sue for wrongful death ran afoul of Proposition 22 (among other defenses). That defense failed on appeal.[25]

Main article: California Proposition 22 (2000)

Proponents of same-sex marriage, including the City and County of San Francisco, have challenged the state’s opposite-sex marriage requirements on constitutional grounds. In pursuing these claims, the plaintiffs argue that even the broad protections of California’s domestic partnership scheme constitute a “separate but unequal” discriminatory framework. The Supreme Court of California is reviewing these challenges.[26]

Main article: Same-sex marriage in California

Constitutional amendments

Immediately following the passage of The California Domestic Partner Rights and Responsibilities Act of 2003, a petition drive began to amend the California Constitution to forbid any recognition—including domestic partnerships—of LBGT relationships.[27] The measure failed to qualify for the ballot.

For a month in early 2004, San Francisco issued marriage licenses to same-sex couples. The Supreme Court of California halted that process and later declared the marriages void. Regardless, four separate groups began petition drives to amend the California Constitution to prevent same-sex marriage and repeal domestic-partnership rights.[28] The renewed efforts peaked in 2005,[29] but have continued since. These groups have filed a total of 20 petitions, but none of the proposed amendments have qualified for the ballot.[30] As of December 2006, one petition remains in circulation.[31]

References

  1. ^ “California Opinion Index: A Digest on How the California Public Views Gay and Lesbian Rights Issues.” The Field Poll: San Francisco (March 2006).
  2. ^ Bishop, Katherine. “San Francisco Grants Recognition to Couples Who Aren’t Married.” New York Times 31 May 1989.
  3. ^ Becker, Lewis. “Recognition of Domestic Partnerships by Governmental Entities and Private Employers.” National Journal of Sexual Orientation Law. 1.1 (1995): 91-92.
  4. ^ AB 627. Legislative Counsel of California. 1995–1996 Session.
  5. ^ AB 54. Legislative Counsel of California. 1997–1998 Session.
  6. ^ 1059. Legislative Counsel of California. 1997–1998 Session.
  7. ^ SB 75. Legislative Counsel of California. 1999–2000 Session.
  8. ^ AB 26. Legislative Counsel of California. 1999–2000 Session.
  9. ^ AB 25. Legislative Counsel of California. 2001–2002 Session.
  10. ^ SB 1049. Legislative Counsel of California. 2001–2002 Session.
  11. ^ AB 2216. Legislative Counsel of California. 2001–2002 Session.
  12. ^ AB 2777. Legislative Counsel of California. 2001–2002 Session.
  13. ^ SB 1575. Legislative Counsel of California. 2001–2002 Session.
  14. ^ SB 1661. Legislative Counsel of California. 2001–2002 Session.
  15. ^ AB 205. Legislative Counsel of California. 2003–2004 Session.
  16. ^ AB 2208. Legislative Counsel of California. 2003–2004 Session.
  17. ^ SB 565. Legislative Counsel of California. 2005–2006 Session.
  18. ^ SB 973. Legislative Counsel of California. 2005–2006 Session.
  19. ^ SB 1827. Legislative Counsel of California. 2005–2006 Session.
  20. ^ SB 2051. Legislative Counsel of California. 2005–2006 Session.
  21. ^ DiCamillo, Mark and Mervin Field. “Statewide survey.” The Field Institute: San Francisco 1997.
  22. ^ Baldassare, Mark. “Californians & the Future.” Public Policy Institute of California: San Francisco. Sep. 2006.
  23. ^ “Initiative Update as of December 15, 2003.” California Secretary of State; also, “Referendum on California's Historic Domestic Partner Law Fails to Qualify for Ballot.” Equality California: San Francisco 22 Dec. 2003.
  24. ^ Gardner, Michael. “Gay marriage opponents aim to recall judge.” San Diego Union Tribune 31 Dec. 2004.
  25. ^ Armijo v. Miles (2005) 127 Cal.App.4th 1405.
  26. ^ In re Marriage Cases docket. Supreme Court of California.
  27. ^ “Initiative Update as of October 2, 2003.” California Secretary of State.
  28. ^ Position statement: VoteYesMarriage.com; Position statement: ProtectMarriage.com.
  29. ^ Buchanan, Wyatt. "The Battle Over Same Sex Marriage." San Francisco Chronicle 12 Aug 2005: B1.
  30. ^ Office of Attorney General. Initiative Measures, Inactive.
  31. ^ “Initiative Update as of November 17, 2006.” California Secretary of State.
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