NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW
VOL. 1, ISSUE 1
Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)
Recognition of Domestic Partnerships by Governmental Entities and
Private Employers.
By: Lewis Becker
Professor of Law, Villanova Law School1
I. Introduction.
Persons who are unmarried but who are living together as
"domestic partners" are increasingly being given recognition by
governmental entities (primarily municipalities) and private
employers.
Recognition by municipalities can take one of two forms.
First, some municipalities permit a couple who live together in a
committed relationship and who meet various qualifications to
publicly register their status as "domestic partners". Such
registration serves to permit partners, and especially gay
partners, to have a symbolic recognition of their union similar
in some respects to the recognition afforded by a licensed and
solemnized marriage. Second, some municipalities extend to the
"domestic partner" of a municipal employee the same health care
and other benefits that would have been extended to the spouse of
the employee. Some municipalities both permit symbolic
registration and confer benefits; others simply either permit
registration or confer benefits. Where municipalities do
recognize domestic partnerships, they usually act by ordinance or
other legislation; however, action may also be by executive order
(as when New =19ork City established a general registration
procedure) or by contract with a labor union (for example, the
coverage of domestic partners within health plans may be provided
for in a labor union contract).
Where private employers are concerned, the recognition of
domestic partners (if any recognition is extended by the
employer) takes the form of the extension of health care and
other employment related benefits to domestic partners.
Gay activists have been in the forefront of attempts to
achieve recognition of domestic partnerships. Although such
recognition may or may not benefit only gay partners, it does
serve a real need in the gay community because gay partners are
not otherwise able to achieve societal recognition (and other
more tangible benefits) by marrying each other. Of course,
recognition of domestic partnerships by municipalities and other
governmental entities is not the functional equivalent of
marriage. However, the pressure for such recognition is the
outgrowth of the fact that persons of the same sex are prohibited
in every state from entering into marriage. (State laws
prohibiting persons of the same sex from being married to each
other have occasionally been challenged as unconstitutional under
the United States Constitution, but no such challenge has been
successful. The Supreme Court of Hawaii2 recently reversed the
dismissal of a complaint which contended that the Hawaii statute
prohibiting same sex marriages was unconstitutional under the
state constitution - specifically, under Hawaii's Equal Rights
Amendment. A plurality of the court held that the statute must
pass the strict scrutiny test in order to be constitutional.)
Laws prohibiting discrimination based on sexual orientation
have been passed in many cities and some states.3 Additionally,
many states and localities prohibit discrimination on the basis
of marital status in housing and employment.4 Laws prohibiting
discrimination do not, of course, override state statutes which
prohibit same sex marriage. Thus, while protected from
discrimination in some states, gay couples are unable to achieve
by marriage both the symbolic recognition afforded to
heterosexual couples and the more tangible benefits, including
favored immigration status, jail and hospital visitation rights,
reduced cost club memberships, ability to file joint tax returns,
exemption from gift taxes, estate tax deductions, extension of
health benefits, right to sue for loss of consortium or wrongful
death, privilege not to testify against the other, ability to own
property as tenants in entirety, intestate succession, and
entitlement to Social Security benefits.5 Attempts to win rights
associated with marital status through litigation have been
attempted, but at least one commentator has pointed out the
inadequacies of litigation in this respect.6 In some instances,
gay couples have attempted to use other legal tools, such as
adoption, in an effort to establish "familial rights".7
It is in the context of this legal structure that
municipalities and private employers have begun to increasingly
recognize domestic partnerships. Interestingly, no municipal
recognition seems to predate 1985.
One major caveat - it is difficult to speak with absolute
certainty regarding the status and provisions of municipal
ordinances and executive orders because they are not readily
accessible for research purposes. I have therefore relied almost
exclusively on secondary sources in describing the provisions of
municipal ordinances and executive orders.8
II. Municipal action permitting members of the general public to
register as a domestic partnership.
As has been stated above, some municipalities permit
unmarried couples to register as domestic partners. For same sex
couples, this permits a public declaration of status and
recognition of status that is otherwise unavailable because they
are not permitted to marry. The right of registration is
permitted to the general public (as opposed to being confined,
for example, to the municipality's employees). The fact of
registration will usually confer no benefit other than the public
declaration and recognition of the partnership. However, in a
few instances registration confers specific privileges, such as
recognition for purposes of hospital visitation.9 The executive
order signed by Mayor Dinkins in New =19ork City provides for
hospital and jail visitation rights and provides further that
registration shall be considered evidence in determining whether
a person qualifies as a family member entitled to occupancy
rights in property owned by the New =19ork City Housing Authority
and for succession and occupancy rights in property supervised by
or under the jurisdiction of the New =19ork City Department of
Housing Preservation and Development. Registration under a
general registration provision may also serve as proof of
domestic partnership for other purposes - e.g., health benefits
extended by employers.
The Report of the Lambda Legal Defense and Education Fund
lists, as of November 1993, the following cities as permitting
general registration, along with the dates when registration
provisions were adopted:
Berkeley, CA. (Oct. 1991)
Sacramento, CA. (Oct. 1992)
San Francisco, CA. (Nov. 1990)
West Hollywood, CA. (Feb. 1985)
Atlanta, GA. (June 1993)10
Cambridge, MA. (Sept. 1992)
Ann Arbor, MI. (Nov. 1991)
Minneapolis, MN. (Jan. 1991)
Ithaca, N=19. (Aug. 1990)
New =19ork, N=19. (exec. order Jan. 1993)
Madison, WI. (Aug. 1988)
Additionally, published news reports indicate that in 1993,
Hartford, Connecticut and New Orleans, Louisiana, have adopted
general registration provisions.
Registration provisions that are open to the general public
do not seem to be limited to same sex couples. Thus, even though
heterosexual couples are free to marry, if they opt not to marry
they are still free to avail themselves of the registration
provisions. I am not aware of any recent empirical data
concerning whether same sex couples are the chief users of
general registration provisions.11 (One possibility is that
where a municipality provides health care benefits for the
registered domestic partner of a municipal employee, more
heterosexual couples than same sex couples will register, but
that where the chief benefit available is only a registration of
status, more same sex couples than heterosexual couples will
register.)
General domestic partnership registration provisions impose
various eligibility requirements in order to register.
Interestingly, these conditions often mirror the requirements to
enter into marriage. Thus, it is very common to require that the
parties be at least 18 years old, that each be mentally
competent, that the parties not be related by blood ties closer
than would bar marriage in the state, and that neither of the
parties have an existing marriage or domestic partnership. Some
may require that any prior domestic partnership have been
terminated for a minimum period of time (for example, Ann Arbor
requires 3 months, San Francisco and New =19ork City require 6
months).
Ordinances may also contain additional requirements designed
to insure that domestic partners have the kind of familial status
associated with marriage. Thus, parties are often required to
reside together. They are often required to declare that they
have a committed relationship.12 They also may be required to
assume an obligation for the basic living expenses of the other
partner.13
In keeping with the marriage analogy, formalities may be
required in order to register; for example, Ann Arbor requires
two witnesses and the Declaration must be notarized. Other
municipalities similarly require statements under oath regarding
the qualifications of the partners. The registration of the
domestic partnership may or may not become part of the public
records. For example, in Ann Arbor and San Francisco, the
partners may either ask the clerk to file the form or they may
simply retain a copy of the completed Declaration in their
private possession to be presented on an as needed basis.
Some cities, such as Minneapolis and San Francisco, limit
the right of registration to couples where at least one partner
lives or works in the city. Others, such as Berkeley and West
Hollywood, allow non-residents to register.
Just as domestic partnerships can be created, they can also
be terminated.14 Municipalities generally permit domestic
partnerships to be terminated at any time by the unilateral act
of one of the partners. (If the marriage analogy is pursued
here, such a power of termination results in "divorce on
demand".) Usually the statement of termination must be filed
and/or notice must be given to the other domestic partner.
Domestic partnerships also terminate, of course, upon the death
of one of the partners.
III. Provisions conferring benefits upon the domestic partners
of municipal employees.
Some municipalities recognize domestic partnerships in order
to permit the domestic partners to obtain benefits which are
given to married employees. The most common benefits conferred
are usually health care benefits (for example, coverage of the
domestic partner in employer sponsored insurance plans) or sick
leave and bereavement leave (i.e., paid leave time to care for a
sick domestic partner or to attend the funeral of a deceased
domestic partner). Note that if health care reform takes the
form of universal coverage for each person, as proposed by
President Clinton, such reform may eliminate the need for
recognition of domestic partnerships for purposes of health care
benefits. On the other hand, if health care reform is keyed to
covered employees, then recognition of domestic partnerships will
remain important.
The Report of the Lambda Legal Defense and Education Fund
lists, as of November 1993, the following as conferring health
benefits:
Berkeley, CA.
Laguna Beach, CA.
San Francisco, CA.
Santa Cruz, CA.
West Hollywood, CA.
Cambridge, MA.
Ann Arbor, MI.
East Lansing, MI.
Minneapolis, MN.
New =19ork, N=19 (pursuant to settlement stipulation in
lawsuit).
Burlington VT.
Seattle, WA.
The Lamdbda Fund report lists the following as extending sick
leave and bereavement leave:
Berkeley, CA.
Los Angeles, CA.
Santa Cruz, CA.
West Hollywood CA.
West Palm Beach, FL (bereavement leave only).
Takoma Park, MD.
Ithaca, N=19.
New =19ork, N=19 (bereavement leave only).
Seattle, WA.
Madison, WI.
Ordinances that confer health care benefits or sick leave
and bereavement leave may require registration or designation of
the domestic partners. Where a municipality permits members of
the general public to register as domestic partners if they meet
prescribed qualifications, as discussed above, the municipality
may require that employees who wish to register as a domestic
partnership meet the same or similar qualifications. In any
event, the qualifications necessary to register as domestic
partners for the purpose of qualifying for employment related
benefits are often similar to the qualifications discussed above
for general registration. For example, to obtain coverage in the
city of Laguna Beach, California, the partners must have filed an
affidavit that they have lived together at least six months, are
not related by blood, are mentally competent, and are responsible
for their common welfare. West Palm Beach extends bereavement
leave in the case of a domestic partner, defined as a person with
whom the employee shares a residence, within the context of a
committed relationship. Seattle requires that the employee
submit an affidavit stating that: the domestic partners share a
residence, have a close personal relationship, have agreed to be
jointly responsible for the basic living expenses incurred during
the domestic partnership, are unmarried, are at least 18, are
unrelated by blood closer than would bar marriage, are mentally
competent, are each other's sole domestic partner, and are
responsible for each other's common welfare. The affidavit must
also state that any prior domestic partnership has been
terminated for at least 90 days. In some instances, no
registration procedure may exist.15
Although municipalities have taken the lead in the
recognition of domestic partnerships, occasionally benefits have
been conferred upon domestic partnerships by other governmental
entities. Thus, Ohio permits state employees sick and
bereavement leave to care for a "significant other", defined as
"one who stands in place of the spouse" with no other objective
criteria.16 Moreover, it has been reported that the governor of
Massachusetts, in September, 1992, issued an executive order
granting sick and bereavement leave and hospital visitation
rights to state employees who register their domestic partnership
with the state.
IV. Recognition of Domestic Partnerships by Private Employers.
Increasingly, private employers are extending recognition to
the domestic partnerships of employees. The Lambda Fund Report
identifies the following employers as offering domestic
partnership benefits (unfortunately, the list does not detail
precisely which benefits - health care, sick leave, bereavement
leave, or others - are offered by which employer):
ACLU/San Francisco
Albert Einstein College of Medicine/Montefiore
Medical Center, Bronx, N=19
American Friends Service Committee, Philadelphia
Amer. Psychology Assoc., Washington, DC
Apple Computer Co., CA
Borland International, Scotts Valley, CA
Lambda Legal Defense Fund, N=19C
Levi Strauss =A0Co., San Francisco, CA
Lotus Development Corp., Cambridge, MA
MCA, Inc., Los Angeles, CA
Millbank, Tweed, Hadley =A0McCloy, N=19C
National Organization for Women, Washington, DC
Orrick, Hennington =A0Sutcliffe, San Francisco, CA
Pitzer College, Claremont, CA
Santa Cruz Metro. County Transit, CA
Seattle Mental Health Institute, WA
Stanford University, Palo Alto, CA
The Village Voice, N=19C
University of Chicago, IL
Published reports have listed the following employers as also
offering domestic partnership benefits:
Ben =A0Jerry's, Inc.
Beth Israel Medical Center
Consumers United Insurance Co.
Garfinkel's Dept. Stores
Home Box Office
Kaiser Health Care, North East Region
Microsoft Corp.
Minnesota Communications Group (St. Paul)
Silicon Graphics Inc.
Viacom
Walker Arts Center
The topic of extension of benefits to domestic partners by
private employers seems to be an increasingly hot one. Newspaper
reports published within the week that this article is being
finalized report that Apple Computer has extended health care
benefits to domestic partners, that the University of
Pennsylvania will be extending such benefits in May, 1994, and
that Xerox Corporation has decided against such coverage.
Private employers which extend benefits to domestic partners
may require advance registration and impose eligibility
requirements similar to municipal requirements for general
registration. Thus, the Lambda Fund Report states:
(i). Albert Einstein College of Medicine, Montefiore
Medical Center, requires that the couple reside together, share
financial responsibility for each other and file a sworn
statement that they are each other's sole partner;
(ii). Levi Strauss requires that domestic partners
consider themselves life partners, reside at the same address, be
financially interdependent and have joint responsibility for each
other's welfare; and
(iii). Lotus Development Corp. requires that the
parties reside together and be responsible for each other's
welfare and that an affidavit be signed attesting that the
parties are spousal equivalents and intend to remain so
indefinitely. Lotus also requires that if the parties break up,
the employee must wait one year before registering another
partner. This waiting period is longer than that required by any
municipality.
Interestingly, some of the private employers make a
distinction between heterosexual and same sex couples, making the
benefits available only to same sex couples. The obvious
rationale for such a distinction is that heterosexual couples
have the option of legal marriage, whereas same sex couples do
not have that option. For example, the Lambda Fund Report
identifies Albert Einstein College of Medicine, Montefiore
Medical Center, and Lotus Development as employers who make
domestic partnership benefits available only to same sex couples.
A published newspaper story indicates that Apple Computer
extended benefits only to lesbian and gay partners. In this
connection, a subcommittee at Stanford University charged with
the task of recommending a policy regarding extending benefits to
domestic partners concluded that benefits should be extended to
both heterosexual and same sex couples, but that if costs
militated against covering both groups, benefits be extended only
to gay couples because of a stronger equitable claim.
In deciding whether or not to extend recognition, private
employers face some considerations that are similar to those
which face governmental entities, as well as some considerations
which are quite different. Private employers are not subject to
the same political pressures as governmental entities. However,
some private companies might face an attack from religious and
other groups opposed to the recognition of same sex partnerships.
Likewise, some private employers might be concerned about the
reaction of customers or other relevant groups (for example, in
the context of a university the Stanford subcommittee considered
potential costs in alumni/ae relations). Both private employers
and governmental entities will be concerned with cost (which
subject is discussed infra, in the Policy Analysis) and with the
concerns expressed and pressures exerted by employee groups.
Concerns expressed by organized groups of gay employees will
probably be the most likely to have an impact. For example,
recent published news stories have indicated that Apple
Computer's gay and lesbian employee group, Apple Lambda, played a
key role in a long term successful campaign to gain health care
benefits, and that Xerox's "gay and lesbian caucus" played a
significant but unsuccessful role in a similar attempt. In New
=19ork City, a suit brought in part by the Lesbian and Gay Teachers
Association resulted in a settlement extending health care
benefits to gay, lesbian, and unmarried heterosexual domestic
partners.
V. Policy Analysis.
A. Pro.
Recognition of domestic partnerships contributes to
stability in domestic relations by encouraging gay couples who
are not able to marry and heterosexual couples who are not
married to enter into a marriage-like relationship and form
family units with established rights and responsibilities.
Moreover, the extension of health care benefits, sick leave, and
bereavement leave to domestic partners of municipal and other
employees remedies what is otherwise an inequitable situation,
especially where same sex couples are involved. Employers who
extend health care benefits to an employee with a married partner
but who do not extend such benefits to an employee with a
domestic partner are arguably inequitably undercompensating the
employee with a domestic partner. (The employer certainly has
the option of denying benefits based on spousal or domestic
partnership status, but all benefits should be equitably
distributed.) The critical importance of health care and the
human dimensions of sick and bereavement leave underscore the
desirability of treating an employee with a domestic partner the
same as an employee with a marital partner.
B. Con.17
One argument against any recognition of domestic
partnerships is that such recognition undermines support for the
nuclear family and the institution of marriage. Conservative
religious groups are the most likely to make such an objection.
Such an argument seems more likely to be made when a municipality
- as opposed to a private employer - is asked to recognize
domestic partnerships, and especially when the municipality is
being asked to permit members of the general public to register
as domestic partners.18
The chief argument against the extension of health care
benefits, and to a lesser extent sick leave and bereavement
leave, is that such extension engenders higher costs. These
fears, however, may well be unfounded on the basis of the
experience to date:
(i). A spokesman for New =19ork City was quoted in a New
=19ork Times article in late December, 1993, as stating that the
experience of other cities which provided health benefits to
domestic partners was that insurance fees for the additional
coverage amount to less than 2 percent of total health insurance
costs.
(ii). Home Box Office was quoted in a Wall Street
Journal article in January, 1994, as stating that in its
experience, covering gay partners costs 83% what heterosexual
partners cost, because of no pregnancy costs.
(iii). A story in the Boston Globe, dated October 12,
1993, states that Seattle had found that domestic partners had
lower overall claims costs and fewer medical visits than married
employees and their spouses, and that although the city's
insurers had initially charged extra premiums, they found that
the surcharge was unnecessary. (The Boston Globe story states
that nearly 5% of Seattle's 10,000 eligible employees have signed
up. An earlier report, in the Lambda Fund Report, stated that as
of April, 1991, there were 412 affidavits of domestic partnership
on file with 125 (30%) identified as same sex couples.)
(iv). Berkeley and Santa Cruz found that adding
domestic partnerships was roughly equivalent to adding a like
number of spouses.18 In Berkeley, insurance carriers initially
enacted a surcharge to cover the cost of insuring domestic
partners but due to positive experience abandoned it.20
(iv). When West Hollywood self insured health
benefits, it found that the increased costs were negligible, that
claims ran lower than for married couples, and there was an
actual positive effect because of the additional numbers of
persons paying premiums. However the numbers involved were very
small - only 6 domestic partnerships were registered.21
There are very few published counter indications of cost.22 Of
course, even if costs are a factor, they are only a factor. As
the Stanford subcommittee concluded, the stronger the argument
for extending benefits on fairness terms, the heavier the burden
to show that practical considerations outweigh it. The
subcommittee also noted that at least with gays and lesbians, the
fairness arguments for extending benefits are very strong.
It must be noted that even if cost is not a major problem,
the fear of cost may be a problem in that such fear makes
insurance companies hesitant about entering into coverage
contracts with employers. A published story in the Boston Globe,
dated October 12, 1993, quotes consultants as stating that
insurance companies are the biggest barrier to wider access to
domestic partnership benefits. Insurance companies that do not
cover domestic partnerships state that they lack the actuarial
data needed to determine whether partners' families will have
higher or lower claims than families of married couples, and that
it is therefore difficult to set premiums. The Boston Globe
story states that Aetna will administer plans but does not
underwrite policies, that John Hancock and Prudential will
administer self-insured plans and decide on a case by case basis
whether to insure domestic partners, and that ITT Hartford does
not insure domestic partners. A consultant quoted in the article
states that of 22 insurers surveyed in 1992, only one offers a
standard policy to all customers.
Another objection to the extension of benefits is the
asserted potential for fraud and abuse - the concern that
employees will attempt to exploit the system by enrolling sick
friends or relatives. However, if advance registration is a
requisite for coverage, then the necessity of meeting all
requirements necessary to qualify as domestic partners seem
sufficient to prevent fraud (i.e., residence together, for
specific time periods, financial interdependence, public
affirmation of emotional commitment). Moreover, fear of
reprisals or dismissal from employment are a hindering effect.
Even more importantly, limits on pre-existing conditions under
most insurance plans also inhibit fraudulent enrollment because
enrollment may therefore be of limited value. Tort actions for
damages caused by fraud are also a possibility. Santa Cruz
provides that anyone injured because of a false statement in an
Affidavit of Domestic Partnership may sue to recover losses as
well as reasonable attorney's fees.23
Another disadvantage - or at least an additional cost as the
result of benefit extension - may result from federal tax law.
In response to a request from Seattle, the IRS concluded that
"nonspouse cohabitants" (domestic partners who are not legal
spouses) who do not receive more than 50% of their support from
the employee do not qualify as "dependents" under =15152 of the
Internal Revenue Code. Therefore, benefits extended to such
persons may be included as taxable income to the employee because
they are not excludable from the employee's gross income.
Moreover, the non exempt benefits may be taxed at "fair market
value" - i.e., what the domestic partner would have had to pay
for those benefits in an arm length's transaction.24 Given the
high cost of health care, this could be a significant amount of
calculable income on which the employee has taxable liability.
VI. Legal Ramifications.
It would seem that where, pursuant to registration
requirements, the domestic partners have agreed to be jointly
responsible for the basic living expenses of each other, an
enforceable contract arises. The precise extent of the
contractual agreement may, however, vary in accordance with the
precise declaration required by the municipal registration
ordinance. For example, in San Francisco and Seattle, the term
"basic living expenses" is defined as meaning the costs of basic
food and shelter and expenses which are paid at least in part by
a program or benefit for which the partner qualified because of
the domestic partnership (interestingly enough, medical expenses
seem excluded).
The existence of a domestic partnership between two people
and/or a specific agreement to be responsible for the basic
living expenses of each other may create not only an express
contract but may also be the basis for asserting other equitable
claims by one of the partners (for example, an implied contract
claim). Even if there is no specific agreement to be jointly
responsible for expenses, a statement that the parties share each
others' living expenses or that they are financially
interdependent may be the basis for either equitable claims or
perhaps even an express contract claim. Only time will tell,
however. Similarly, a claim may be made that creditors are able
to enforce an agreement between domestic partners to be
responsible for each other's expenses. San Francisco
specifically requires that the parties agree that their agreement
to be jointly responsible for basic living expenses can be
enforced by anyone to whom those expenses are owed.
Where a domestic partnership terminates as the result of the
voluntary act of one of the parties, the chief legal concern
would seem to be the giving of notice to affected parties. Thus,
an ordinance or an employer should provide that notice be given
to the other partner. Notice should also be given to third
parties who may have relied upon the existence of the
partnership. Thus, if the registration was on the public record,
then the termination should be also. San Francisco provides that
when a domestic partnership ends, a domestic partner who has
given a copy of the Declaration of Domestic Partnership to a
third party must give that party a notice signed under penalty of
perjury stating that the partnership has ended. San Francisco
further provides that in the event of a failure to give such
notice (and also in the event of a failure to give the required
notice to the other partner), anyone who suffers a loss may sue
to recover actual damages.
The recognition of domestic partnerships also can have a
broad societal and legal impact by establishing the legitimacy
and acceptability of same sex relationships. Gay activists have
been increasingly attempting to achieve various types of rights
for a gay family unit.25 Increasing recognition of gay and
lesbian domestic partnerships, and, in particular, the increasing
adoption of municipal ordinances which permit members of the
general public to register their status as domestic partners can
only buttress such an argument.
Selected Bibliography
Berger, Domestic Partner Initiatives, 40 DePaul L.Rev. 417
(1991).
Bowman and Cornish, Note, A More Perfect Union: A Legal and
Social Analysis of Domestic Partnership Ordinances, 92 Colum.
L.Rev. 1164 (1992).
Eblin, Note, Domestic Partnership Recognition in the
Workplace: Equitable Employee Benefits for Gay Couples (and
Others), 51 Ohio St. L.J. 1067 (1990).
Hunter, Homosexuals as a New Class of Domestic Violence
Subjects Under the New Jersey Prevention of Domestic Violence Act
of 1991, 31 U. Louisville J. Fam. L. 557 (1992). The chief value
of this article for purposes of domestic partnership is in
Appendix III, which contains some empirical data regarding actual
registrations.
Lambda Legal Defense and Education Fund, Recognition of
Domestic Partnerships.
Post, The Question of Family: Lesbians and Gay Men
Reflecting a Redefined Society, 19 Fordham Urb. L.J. 747 (1992).
Treuthart, Adopting a More Realistic Definition of Family,
26 Gonz. L. Rev. 91 (1990-91).
ENDNOTES
1.This article was originally prepared for presentation at the
Spring Meeting, 1994, of the Family Law Section of the American
Bar Association. I would like to acknowledge the research
assistance of Kirsten Mellors in the preparation of this article.
2.Baehr v. Lewin, 852 P.2d 44 (1993).
3.See Bowman and Cornish, Note, A More Perfect Union: A Legal and
Social Analysis of Domestic Partnership Ordinances, 92 Colum.
L.Rev. 1164, 1177 n.63 (1992).
4.Id. at 1177, n.64.
5.This list of tangible benefits is taken from Berger, Domestic
Partner Initiatives, 40 DePaul Law Rev. 417, 417-18 (1991).
6.See Berger, Domestic Partner Initiatives, 40 DePaul Law Rev.
417, 420-22 (1991). See also Bowman and Cornish, Note, A More
Perfect Union: A Leqal and Social Analysis of Domestic
Partnership Ordinances, 92 Colum. L.Rev. 1164, 1177 n .65 (1992)
. Berger, in her article at the above cited pages, also questions
the efficacy of contractual arrangements between gay couples as
an attempt to formalize their relationship.
On the other hand, some judicial gains have been won. For
example, in Braschi v. Stahl Associates, 74 N.=19.2d 201, 543
N.E.2d 49, 544 N.=19.S.2d 784 (1989), the court held that a gay
man's partner qualified as a family member under the noneviction
provision of New =19ork City's rent control law.
7. See Comment, Adult Adoption: a "New" Legal Tool for Lesbians
and Gay Men, 14 Golden Gate U.L.Rev. 667 (1984)
8.The secondary source I have relied on most heavily is a report
of the Lambda Legal Defense and Education Fund, entitled
"Recognition of Domestic Partnerships". This report includes a
national overview of domestic partnership ordinances, dated
November 1993. It also includes lengthy descriptions of some
ordinances and orders, as well as the names of contact persons
and other relevant information. The biggest defect is the
absence of descriptive information for the most recently enacted
or adopted provisions.
9.The Lambda Fund report lists Minneapolis and West Hollywood in
this category.
10. The Georgia Superior Court, Fulton County, has reportedly
held Atlanta's Domestic Partnership Ordinances, which extend
health insurance coverage to the registered partners of unmarried
city employees, violative of Georgia's Municipal Home Rule Act
and the state constitution by exceeding the city's authority to
deal with the status of individuals; as a consequence, the court
enjoined the city from implementing or enforcing the Domestic
Partnership Ordinances, but stayed the injunction with regard to
the city's accepting registrations under the Domestic Partnership
Registry. See McKinney v. Atlanta, as summarized at 20 (BNA)
Fam. L. Rptr. 1326 (1994).
11. Some older data is contained in Hunter, Homosexuals as a New
Class of Domestic Violence Subjects Under the New Jersey
Prevention of Domestic Violence Act of 1991, 31 U. Louisville J.
Fam. L. 557, Appendix III (1992).
12. Ann Arbor and Ithaca require that parties declare themselves
to be in a relationship of mutual support, caring, and
commitment. Berkeley requires that the parties intend to remain
as domestic partners indefinitely. Ann Arbor and Berkeley
additionally require that the parties declare that they share the
common necessities of life. Madison requires that the parties
show that they are in a committed relationship. Minneapolis
requires that the parties be committed to one another to the same
extent as married persons are to each other. San Francisco and
New Orleans require that the partners declare that they have an
intimate and committed relationship of mutual caring. New =19ork
City requires that they have a close and committed personal
relationship.
13.In San Francisco and New Orleans the partners must agree to be
jointly responsible for basic living expenses incurred during
their domestic partnership. The Lambda Fund Report states that
in Berkeley, the parties must be responsible for each other's
common welfare, in Ithaca the parties must declare that they are
responsible for each other's welfare, and in Minneapolis the
partners must be jointly responsible to each other for the
necessities of life. These requirements are conditions for the
existence of a domestic partnership. The extent to which these
declarations and agreements create specific obligations, and to
whom, is discussed infra, in the "Legal Ramifications" section.
14.For one of the few published sources discussing the extent to
which there have been terminations of registrations, see Hunter,
Homosexuals as a New Class of Domestic Violence Subjects Under
the New Jersey Prevention of Domestic Violence Act of 1991, 31 U.
Louisville J. Fam. L. 557, Appendix III (1992).
15.For example, Takoma Park, which extends sick and bereavement
leave, does not have any formal registration procedure.
Apparently, the existence of a domestic partner is left to a case
by case determination when an administrative interpretation is
needed. The lack of any formal procedure may be appropriate when
the only benefit extended is sick and bereavement leave.
16.See Eblin, Note, Domestic PartnershiP Recognition in the
WorkPlace: Equitable Employee Benefits for Gay Couples and
Others), 51 Ohio St. L.J. 1067, 1077 n.84 (1~90).
17.For a good general discussion of the concerns often voiced
about the extension of benefits to domestic partners, see Eblin,
Note, Domestic Partnership Recognition in the Workplace:
Equitable Employee Benefits for Gay Couples (and others), 51 Ohio
St. L.J. 1067, 1081-1085 (1990).
18.On the other hand, that is not to suggest that private
employers are immune from such a reaction. For example, a
university may have to consider adverse alumni/ae reactions. A
private employer may face adverse reaction from customers or even
its own employees. Newspaper reports state that when Apple
Computer extended bereavement leave to gay and lesbian employees
some employees denounced Apple for condoning an immoral or
perverse life style.
19. Eblin, Note, Domestic Partnership Recognition in the
Workplace: Equitable Employee Benefits for Gay Couples (and
Others), 51 Ohio St. L.J. 1067, 1082 n.133 and accompanying text
(1990).
20. Lambda Fund Report.
21.Lambda Fund Report.
22.The Wall Street Journal, on January 25, 1994, stated that
Xerox had decided against coverage because of cost. On the other
hand, the chairman of Apple Computer was quoted in a different
article as having concluded that there was no moral or financial
reason for Apple to refuse to extend benefits to domestic
partners.
23.Eblin, Note, Domestic Partnership Recognition in the
Workplace: Equitable Employee Benefits for Gay Couples (and
Others), 51 Ohio St. L.J. 1067, 1073 n.39 and accompanying text (
1990 ) .
24.See Eblin, Note, Domestic PartnershiP Recognition in the
Workplace: Equitable Employee Benefits for Gay Couples (and
Others), 51 Ohio St. L.J. 1067, 1084-85 (1990).
25.See Braschi v. Stahl Associates, 74 N.=19.2d 201, 543 N.E.2d 49,
53, 544 N.=19.S.2d 784 (N=19 1989) (same-sex couples qualify as
family for rent-control purposes, and definition of family
"should find its foundation in the reality of family life" rather
than "fictitious legal distinctions or genetic history"). But see
City of Ladue v. Horn, 720 S.W.2d 745 (Mo. Ap. 1986) (upholding
zoning law that prohibited cohabitating couple and their children
from living in certain neighborhood).