DOMESTIC PARTNERSHIPS: RIGHTS, RESPONSIBILITIES AND LIMITATIONS

By: Heidi Gewertz-- Fall 1994

THIS REPORT WAS CREATED AS A RESEARCH PROJECT OF THE PUBLIC LAW RESEARCH INSTITUTE AT HASTINGS COLLEGE OF THE LAW. IT DOES NOT REPRESENT THE OPINIONS, VIEWS, OR POLICIES OF THE COLLEGE

This Paper was produced for the Public Law Research Institute at Hastings College of the Law. Copyright 1994, University of California, Hastings College of the Law. Permission is hereby granted to reproduce and distribute copies for nonprofit purposes, provided that copies are distributed at or below cost, and that the author and copyright notices are included on each copy.

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INTRODUCTION

Over the past three decades the number of persons choosing to live together as couples in committed relationships without the benefits of state-recognized marriage has greatly increased. This trend is reflected in data from the United States Census Bureau's 1990 survey which found that approximately 2.6 million of the nation's 91 million households are unmarried heterosexual couples, and an additional 1.6 million are unmarried couples of the same sex. [No. 2] In addition, it is estimated that approximately one million of these households have children under the age of 15. [No. 3] Such data confirms the growing number of non-traditional relationships and families in the United States.

These relationships challenge traditional family law and produce a collection of novel legal issues which arise in numerous situations including: (1) the distribution of property or the custody of children upon dissolution of the partners' relationship; (2) the relationship of one partner with other family members upon the death or disability of the other partner; and (3) how disputes with third parties are resolved (for example, when one partner seeks benefits traditionally accorded to married couples or when a creditor attempts to hold a partner liable for one partner's debts). [No. 4]

The term by which the relationship of unmarried partners has come to be known is "domestic partners." In response to pressure from gay rights advocates and other concerned parties, some cities and businesses throughout the United States have begun to recognize such partnerships through the passage of municipal domestic partner legislation and the development of corporate benefits programs for domestic partners. [No. 5] No state legislatures, however, have passed domestic partnership legislation, although the California legislature passed a state-wide domestic partnership bill in September, 1994 which was then vetoed by Governor Wilson.

This report provides an overview of current municipal domestic partnership laws beginning with a general discussion of the definition of domestic partners and then examining the rights and responsibilities of such partnerships, using the City of San Francisco's ordinance as a framework. In addition, this paper examines the inherent limitations of defining a partnership on a municipal level rather than on a state or federal level. It then briefly explores the role of the courts in limiting or expanding the rights and responsibilities of persons in non-traditional relationships. Finally, the report proposes a model ordinance.

Alternative methods used to establish a legally recognized relationship between partners, such as adult adoption or various forms of co-habitation contracts, are viable options, but are not explored in this paper.

ANALYSIS

THE MUNICIPAL ORDINANCES

1. An Overview

The municipal ordinances vary widely in their coverage of these areas, as well as in their definitions of the partners' responsibilities to each other. [No. 7]

While varying widely in the above three areas, the majority of domestic partnership ordinances adopted to date in American cities are relatively similar in other respects. Most of these ordinances provide for some system of registration and dissolution of the partnerships. In addition, most ordinances require preregistration co-habitation for a minimum period of time, as well as an imposed waiting period between the termination of a previous domestic partnership and the registration of a new one. [No. 8] Regardless of these requirements, most ordinances provide no specific benefits beyond the right to proclaim publicly the existence of the relationship. [No. 9] Several ordinances, however, do provide benefits for the domestic partners of city employees equal to those provided for the spouses of city employees. [No. 10]

Although there are different approaches or forms of the municipal domestic partnership ordinances currently in place, critics have asserted that all of these ordinances fail to recognize the greater rights and responsibilities associated with state-recognized marriage. [No. 11] In addition, such critics describe domestic partnership as limited to enactment by "good samaritan" employers or municipalities, who choose to adopt a system to recognize some of their employees' needs for equivalent benefits. [No. 12]

2. Definition of "Domestic Partners"

While understanding that even the definition of domestic partner varies among the ordinances, one model, the San Francisco Municipal Ordinance, will be used here as a framework for a benefits and responsibilities analysis. Although differences exist between the ordinances, for purposes of this analysis the San Francisco ordinance provides an adequate and representative framework.

BENEFITS AND RESPONSIBILITIES ANALYSIS PURSUANT TO THE SAN FRANCISCO MUNICIPAL ORDINANCE

1. Benefits Accruing to Each Partner

2. Partners' Responsibilities to Each Other

3. Dissolution of the Partnership

A domestic partner is no longer liable for the partner's basic living expenses incurred subsequent to the dissolution. [No. 22]

INHERENT LIMITATIONS ON THE SCOPE OF A PARTNERSHIP RECOGNIZED ON A MUNICIPAL-ONLY BASIS

While it is clear that municipalities must uphold state law and recognize relationships granted under those laws, it is less clear to what degree cities may recognize relationships that are not recognized by state law. [No. 26]

1. Overview of Municipal Government Powers

Approximately 41 states have diverted from the traditional approach and have granted greater power to local governments through constitutional amendments or statutes granting home rule. [No. 28] There are two types of home rule: (1) "imperio in imperium" which treats a municipality as a state within a state, with full police power regarding local concerns and some immunity from state legislature review, and (2) the "legislative" model which is a grant of power from the state legislature and is thus limited by the legislature's own power, leaving the legislature with the power to alter or deny any power granted. [No. 29]

Accordingly, cities may not enact local laws that conflict with state statutes or regulations if the cities are in non-home rule states or in legislative home rule states. Cities in jurisdictions with the greatest latitude, imperio home rule, may only enact legislation that conflicts with state law if it relates to a matter of primarily local concern. [No. 30]

This structure greatly limits the ability of municipalities to pass ordinances which expand or create rights beyond those created by the state. Thus, any legislation passed only on a municipal basis is inherently limited in its application. Modern domestic partnership ordinances passed by cities and counties in the United States are confined within the limits of the power-granting entity (i.e. the city or county government).

Due to the limited rights and responsibilities provided for in current domestic partnership ordinances, domestic partners should consider taking additional steps to further define the scope of their relationship and provide for one another. These additional steps include executing: (1) a will or other estate planning instrument to ensure that each partner receives the appropriate property upon the death of the other partner, and (2) a durable power of attorney for health care to ensure that one's partner can make medical decisions if the other partner becomes ill. [No. 31] Such steps need to be considered because of the inherent lack of protection and security provided by current municipally-based domestic partnership ordinances.

2. The Role of the Courts

(a) Recent Cases and Settlements Regarding Domestic Partners' Rights

Following Braschi, however, in 1991 the same court refused to recognize a member of a lesbian couple as a parent for purposes of child custody under New York's Domestic Relations Law. [No. 37] In Alison D. v. Virginia M., [No. 38] the Court of Appeals upheld two lower court decisions which refused to recognize that a lesbian had any parental right to visitation under New York's Domestic Relations Law, even though she had fully participated in the process of raising and supporting the couple's child for three years following his birth. [No. 39] Unlike the court's reasoning in Braschi regarding the definition of "family," the court in Alison D. based its decision on a narrow definition of the term "parent" within the meaning of the Domestic Relations statute. By finding that the state legislature did not intend to include such persons within the definition of "parent" for purposes of the statute, the court denied visitation rights to Alison D. and referred to her as a "biological stranger" in the opinion. [No. 40]

More recently, a settlement was reached in a New York case involving a claim by a gay man for the right to inherit a co-op apartment, as a surviving partner of a deceased co-op member. In the settlement, as recently reported in the New York Times, the Sutton Place Co-op agreed to amend its leases so that apartments may be transferred or bequeathed to domestic partners just as they are to married spouses. [No. 41] As a result of the 1994 settlement, the cooperative's new proposed lease defines "domestic partners" as those who have registered their relationship with the city or who fit the definition under existing court rulings and housing regulations. [No. 42] Although the settlement does not technically establish legal precedent as it is not a court decision, the settlement could potentially have great influence on the rights of ownership in New York City cooperatives. A lawyer and vice president of the Council of New York Cooperatives described the potential impact by stating that he "would now advise any co-op to treat a `domestic partner' of one of its shareholders in exactly the same manner as it would treat a `spouse'." [No. 43]

Thus, as evidenced in the above discussion, absent a clear definition of the rights and responsibilities of domestic partners or unmarried partners, the courts have difficulty defining and applying such rights in a consistent manner. This void allows settlements to be reached that may alternate between protecting or ignoring the rights of domestic partners. Statewide domestic partnership laws could provide a solution to this inconsistent treatment under the law.

3. The Greater Protections Available Through State Legislation

Assembly Bill 2810 (A.B. 2810) would have created a statewide registry for domestic partners in the Secretary of State's office, afforded partners hospital visitation rights and conservatorship rights similar to those afforded married couples, and provided that domestic partners be included in the state statutory will form. [No. 45] These provisions would have been accomplished by amendments to California's Health & Safety Code and the Probate Code. By amending these provisions, A.B. 2810 would have created a strong civil status on the state level for domestic partnerships, providing protections for such partnerships to a level which local governments cannot provide.

As no states currently recognize domestic partnerships, municipal and county ordinances must be developed in the most effective manner possible to grant and ensure domestic partner rights. A clear model would provide guidance for the development and implementation of domestic partnership ordinances.

PROPOSAL FOR A MODEL MUNICIPAL DOMESTIC PARTNERSHIP ORDINANCE

1. Basic Issues

While some of the above issues are beyond the scope of municipal authority, they should still be considered due to the impact such legislation may have on securing rights for domestic partners through the courts and in other areas. Although some of these issues are not relevant to municipal legislation, they are directly relevant to state legislation. Currently, no domestic partnership ordinance considers all of these issues. [No. 48]

2. Section-by Section Analysis of a Model Ordinance

CONCLUSION

NOTES

Rights to spousal shares of marital property upon death of one partner; tax benefits (including joint income tax returns, dependency deductions, gift tax exemptions, and exemptions for alimony and property settlements); rights in tort law (including emotional distress, wrongful death actions, and loss of consortium); rights in criminal law (including immunity from compelled testimony and the marital communication privilege); non-exclusion under zoning laws; visitation privileges in hospitals and other institutions; authority to make decisions for an ill spouse; employee benefits for spouses (including Social Security and veterans payments to spouses, workers compensation for those whose spouses move for job-related reasons); lower fees for married couples (including automobile and life insurance, family travel rates, and family memberships); immigration benefits; and draft exemptions.

William B. Rubenstein, Legal Issues Facing the Non-Traditional Family, WL 49, Practicing Law Institute Tax Law and Estate Planning Course Handbook Series (April-May, 1994).

[No. 2] Mary Rowland, Your Own Account; Hurdles for Unmarried Partners, N.Y. Times, May 22, 1994, 3, at 15.

[No. 3] Id.

[No. 4] Craig A. Bowman and Blake M. Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 93 Colum. L. Rev. 1164, (1992). (See full reproduction of article in Appendix A.)

[No. 5] A current list of cities and counties offering some domestic partnership recognition or benefits for its employees consists of approximately 30 entities, including, in California: Alameda County; Berkeley; Laguna Beach; Los Angeles; Marin County; San Francisco, San Mateo; Santa Cruz; and, West Hollywood. Cities and counties outside of California include: Hartford, Connecticut; Atlanta, Georgia; Chicago, Illinois; Tacoma Park, Maryland; Boston, Massachusetts; Cambridge, Massachusetts; Ann Arbor, Michigan; East Lansing, Michigan; Minneapolis, Minnesota; Ithaca, New York; New York, New York; Travis County, Texas; Burlington, Vermont; Seattle, Washington; and, Madison, Wisconsin. Hayden Curry et al., A Legal Guide for Lesbian and Gay Couples 1-10 - 1-11 (1994). See also Appendix B, Table of Benefits Offered Through Selected Municipal and County Domestic Partnership Ordinances.

Private companies and organizations offering domestic partner benefits include: American Friends Committee; American Psychological Association; Ben & Jerry's Homemade; Blue Cross-Blue Shield; Episcopal Diocese of Newark, New Jersey; Home Box Office; Levi Strauss & Co.; Lotus Development Corp.; MCA (owner of Universal Studios); Microsoft Corporation; San Francisco law firms: Orrick, Herrington & Sutcliffe; Pillsbury, Madison & Sutro; Heller, Ehrman, White & McAuliffe; Howard, Rice, Nemerovski, Canady, Robertson, Falk & Rabin; Morrison & Foerster; and Cooley, Godward, Castro, Huddleson & Tatum; Seattle Times; Viacom; and the Village Voice. Curry, supra at 1-12.

In addition, approximately 30 colleges and universities offer some version of domestic partnership benefits to staff or students, or both. The list of major schools includes: Brown University; Columbia University; Harvard University; New York University; North Dakota University; Northeastern University; Princeton University; Smith College; Stanford University; University of Colorado; University of Michigan; University of Oregon and University of Pennsylvania, among others. Id. at 1-13.

[No. 6] Rubenstein, supra note 1, at WL 10.

[No. 7] Id. at WL 53, n. 1.

[No. 8] Bowman, supra note 4, at 1191.

[No. 9] Id.

[No. 10] Id.

[No. 11] Zimmer, supra note 1 at WL 6.

[No. 12] Id.

[No. 13] Id., WL 21 n.66.

[No. 14] Ann Belser, Rights, Privileges, and Gay Lovers, Advocate, Feb. 1992, at 56.

[No. 15] Id. at 56.

[No. 16] ACLU, Domestic Partnership Information Packet at 10 (undated). (Full document provided in Appendix C.)

[No. 17] ACLU, supra at 8.

[No. 18] San Francisco, Cal., Administrative Code, ch. 62, 62.2(a) (1991). (Appendix D.)

[No. 19] Id., at 62.2(c).

[No. 20] ACLU, supra note 16, at 8.

[No. 21] San Francisco, Cal. supra note 18 at 62.4.

[No. 22] Id. at 62.6.

[No. 23] Bowman, supra note 4, at 1198 (citations omitted).

[No. 24] Rubenstein, supra note 1, at WL 10.

[No. 25] Mary N. Cameli, Note, Extending Family Benefits to Gay Men and Lesbian Women, 68 Chi.-Kent L. Rev. 447, 473 (1992).

[No. 26] Id.

[No. 27] Bowman, supra note 4 at 1198 - 1199.

[No. 28] Id.

[No. 29] Id.

[No. 30] Id.

[No. 31] ACLU, supra note 16, at 8.

[No. 32] See Curry, supra note 5, at 1-3 - 1-8 for a summary of cases.

[No. 33] Braschi v. Stahl Assoc. Co., 143 A.D.2d 44, 531 N.Y.S. 2d 562 (1st Dept. 1988).

[No. 34] Rubenstein, supra note 1, at WL 11.

[No. 35] Id.

[No. 36] Id.

[No. 37] Id. at WL 13.

[No. 38] Alison D. v. Virginia M., 155 A.D. 2d 11, 552 N.Y.S. 2d 321 (2d Dept. 1990).

[No. 39] Id.

[No. 40] Id.

[No. 41] David W. Dunlap, End of Co-op Dispute Hailed as Victory for Gay Couples, N.Y. Times, November 17, 1994, B at 3.

[No. 42] Id.

[No. 43] Id.

[No. 44] Bowman, supra note 4, at 1199.

[No. 45] California Committee Analysis Report, A.B. 2810, STATENET, Aug. 15, 1994.

[No. 46] Bowman, supra note 4 at 1186.

[No. 47] Id. at 1188.

[No. 48] Id.

[No. 49] For full analysis, see Bowman, supra, note 4 at 1203 (reproduced in Appendix A). Authors provide a proposed model domestic partnership bill. Text contains model language followed by commentary explaining the need for the specific language and identifying alternatives and areas of state law that should be researched prior to drafting an ordinance for a local government.