April 5, 2005
QUESTIONS ABOUT CIVIL UNIONS LEGISLATION
By: Susan Price, Associate Attorney
You asked a series of questions about sSB 963, “An Act Concerning Civil Unions” which we answer below. The Office of Legislative Research is not authorized to issue legal opinions and this report should not be considered such.
1. How does the bill compare with Vermont's civil union law?
Although drafting conventions in the two pieces of legislation differ, sSB 963's substantive provisions are quite similar to Vermont's civil union law (1999 Vt. Sess. Laws, Act No. 91). Notable differences are:
1. Vermont's law also creates a “reciprocal beneficiary” status, allowing two related people to qualify for certain benefits otherwise available only to spouses (15 V.S.A. ch. 25), while the Connecticut bill does not;
2. Vermont's law affords no protection for state officials who decline to perform civil union ceremonies, while the bill makes anyone authorized to perform civil unions exempt from liability for refusing to do so;
3. Vermont's law includes only a procedure for establishing and dissolving civil unions that parallels the state's marriage and divorce laws, while the bill also includes a provision requiring this state to recognize the validity of civil unions lawfully performed elsewhere; and
4. Vermont's law also established a commission to educate the public, study issues related to the law's implementation, and submit reports to the legislature for the first two years the law was in effect; Connecticut's bill contains no similar provision.
Connecticut's bill and Vermont's law are more fully summarized below.
SUBSTITUTE SENATE BILL 963: AN ACT CONCERNING CIVIL UNIONS
This bill authorizes same sex couples to enter into civil unions, granting them the same legal benefits, protections, and responsibilities as married couples. It incorporates civil unions by reference in most statutes that use or define terms indicating a spousal relationship. It establishes eligibility, application, and licensing criteria; specifies who can perform civil union ceremonies; and sets forth record-keeping requirements. Except for provisions in the bill (1) exempting people authorized to perform civil union ceremonies from liability for failing or refusing to do so and (2) requiring town clerks to give civil union license applicants copies of the relevant laws, the bill's substantive provisions and penalties are identical to current marriage statutes.
The bill also establishes circumstances under which the state will recognize civil unions performed in other countries.
Benefits, Protections, And Responsibilities (§§ 14 & 15)
The bill specifies that the rights it extends to civil union partners may derive under statute, administrative regulations or court rules, policy, common law, or any other source of civil law. Generally, these fall into the following categories:
1. family law, including marriage, divorce, and support;
2. title, tenure, descent and distribution, intestate succession, wills, survivorships, or other incidents of the acquisition, ownership, or transfer (during life or at death) of real or personal property;
3. state and municipal taxation;
4. probate courts and procedure;
5. group insurance for governmental (but not private-sector) employees;
6. family leave benefits;
7. financial disclosure and conflict-of-interest rules;
8. protection against discrimination based on marital status;
9. emergency and non-emergency medical care and treatment, hospital visitation and notification, and authority to act in matters affecting family members;
10. state public assistance benefits;
11. workers compensation;
12. crime victims' rights;
13. marital privileges in court proceedings; and
14. vital records and absentee voting procedures.
Excluded Laws (§ 15)
The bill does not incorporate civil unions by reference in the chapter of the General Statutes relating to marriage procedures and formalities. But it includes new provisions setting out the same procedures and formalities for applicants and parties to civil unions.
Civil unions are also specifically excluded under the bill from the statute that states that “the current public policy of the state is now limited to a marriage between a man and a woman” (CGS § 45a-727a(4)).
ELIGIBILITY CRITERIA (§§ 1, 2, 9, 10)
To be eligible to form a civil union, the bill requires that each party be of the same sex, not a party to another civil union or a marriage, and no more closely related to one another than first cousin. Unions between people more closely related are void.
Unless they have been declared emancipated minors, parties 16 or 17 years of age must have parental permission to enter into a civil union. Those under age 16 or under conservatorships must obtain written permission from their district probate court judge or conservator, respectively. A conservator's refusal to permit the ceremony to proceed must be based on clear and convincing proof of recent behavior, which would cause or create a risk of harm.
RECOGNITION OF FOREIGN CIVIL UNIONS (§ 13)
The bill declares civil unions performed in other countries involving at least one state resident valid, so long as the couple (1) could have entered into a civil union in Connecticut and the ceremony was performed in accordance with the other country's laws or (2) holds the ceremony in the U.S. consulate's jurisdiction, before that country's U.S. ambassador, minister, or other accredited consular official, and has a licensed clergy member officiate. Current law involving recognition of foreign heterosexual marriages is the same.
VERMONT CIVIL UNION LAW
Vermont's civil union law was passed in response to a state supreme court decision mandating equivalent treatment of same-sex and married couples (Baker v. State, 170 Vt. 194 (1999)). The law's stated purpose is “to respond to the constitutional violation found by the Vermont Supreme Court... and to provide eligible same-sex couples the opportunity to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples” (1999 Vt. Sess. Laws, Act No. 91, § 2).
Act 91 creates a procedure for establishing and dissolving civil unions that parallels the state's marriage and divorce laws. People at least age 18 who are not related to one another to a degree prohibited by the state's marriage laws can pay a $20 fee and apply to a town clerk for a civil union license. After a judge, justice of the peace, or clergyman certifies the union and returns the license to the appropriate clerk's office, the clerk issues the couple a civil union certificate.
Legal Consequences of a Civil Union
The law specifies that parties to a civil union have all the benefits, protections, and responsibilities under law as spouses in a marriage, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law (§ 3, codified at 15 V. S. A. § 1204(a)). Another provision includes a party to a civil union in any definition or use of the terms “spouse,” “dependent,” “next of kin,” or other terms that denote the spousal relationship in Vermont law (id., codified at § 1204(b)).
The law specifies the following nonexclusive list of legal benefits, protections, and responsibilities of spouses that now apply equally to parties to civil unions:
1. laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer (during life or at death) of real or personal property, including eligibility to hold property as tenants by the entirety;
2. causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under contracts reciting, related to, or dependent upon spousal status;
3. probate law and procedure, including nonprobate transfer;
4. adoption law and procedure;
5. group insurance for state employees under 3 V. S. A. § 631 and continuing care contracts under 8 V. S. A. § 8005;
6. spouse abuse programs under 3 V. S. A. § 18;
7. protection against discrimination based upon marital status;
8. victim's compensation rights under 13 V. S. A. § 5351;
9. workers' compensation benefits;
10. emergency and non-emergency medical care and treatment, hospital visitation and notification, including the Patient's Bill of Rights under 18 V. S. A. ch. 42 and the Nursing Home Resident's Bill of Rights under 33 V. S. A. ch. 73;
11. terminal care documents under 18 V. S. A. ch. 111 and durable power of attorney for health care execution and revocation under 14 V. S. A. ch. 121;
12. family leave benefits under 21 V. S. A. ch. 5, subch. 4A;
13. state public assistance benefits;
14. state and municipal tax laws, except for estate tax provisions;
15. marital privilege and testimonial immunity laws;
16. the homestead rights of a surviving spouse under 27 V. S. A. § 105 and homestead property tax allowance under 32 V. S. A. § 6062;
17. loans to veterans under 8 V. S. A. § 1849;
18. the definition of family farmer under 10 V. S. A. § 272;
19. making, revoking, and objecting to anatomical gifts by others under 18 V. S. A. § 5240;
20. state pay for military service under 20 V. S. A. § 1544;
21. applications for absentee ballots under 17 V. S. A. § 2532;
22. family landowner rights to fish and hunt under 10 V. S. A. § 4253;
23. legal requirements for wage assignments under 8 V. S. A. § 2235; and
24. affirmance of relationship under 15 V. S. A. § 7.
25. Parties to a civil union can modify the terms, conditions, or effects of their legal relationship in the same manner and to the same extent as married people can through premarital and other agreements recognized and enforceable under the law (18 V. S. A. § 1205). The family court determines the enforceability of such agreements. It also has jurisdiction over dissolutions of civil unions and child custody and support issues.
The law also specifies that treating the benefits, protections, and responsibilities of civil marriage differently from those of civil unions is permissible only when clearly necessary because the gender-based text of a statute, rule, or judicial precedent would otherwise produce an unjust, unwarranted, or confusing result and different treatment would promote or enhance, and would not diminish, the common benefits and protections that flow from marriage under Vermont law (§ 39).
Act 91 also creates a “reciprocal beneficiary” status, allowing two related people to qualify for certain benefits otherwise available only to spouses (§§ 29-38, codified at 15 V. S. A. ch. 25). Unlike parties to a civil union, reciprocal beneficiaries need only present the health commissioner a notarized declaration to establish or terminate their relationship. They must be at least age 18, related by blood or adoption and therefore barred by law from entering into a civil union or marriage, not presently married or a party to a civil union, and be competent to contract.
The act gives reciprocal beneficiaries rights equal to those of spouses in these areas: (1) hospital visitation and medical decision-making; (2) anatomical gift, burial, and cremation decisions; (3) authority to act under a durable power of attorney for health care and terminal care decisions; (4) coverage under the state's patient's and nursing home resident's bill of rights; and (5) entitlement to abuse prevention law coverage. State officials report that no one has yet used the law's reciprocal beneficiary provisions.
Lastly, Act 91 established a study commission comprised of experts and people appointed by legislators, judges, and executive branch heads charged with (1) educating the public and collecting information about
the implementation, operation, and affect of the law and how other states and jurisdictions treat Vermont civil unions and (2) studying whether reciprocal beneficiary rights should be enlarged or made available to non-related persons over age 62.
The commission issued a preliminary report in January 2001 and a final report on January 15, 2002. It dissolved by operation of law April 26, 2002 having made no recommendations for statutory changes.
2. What impact would the bill have on merchants, employers, and organizations that do not want to, de facto, be forced through policies to recognize same-sex unions?
It appears that civil unions will have the same status as heterosexual marriage under the state's laws prohibiting discrimination based on marital status in employment, housing, public accommodations, credit, licensing, and provision of state services (CGS § 46a-58, et seq.). (These entities are already prohibited from discrimination based on sexual orientation.) As under current law, employers with fewer than three employees, and certain landlord-occupied properties and private clubs are exempt from these laws.
It is unclear whether religious organizations would be exempt with respect to (1) employment of individuals to perform the organization's core functions or (2) matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law (CGS § 46a-81p).
3. How would the bill impact on school family life curricula?
It is unclear how the bill would impact family life curricula, although parents can already ask that their children be excused from classes dealing with family life issues that conflict with their personal, moral, or religious beliefs.
4. How would the bill's mandate on recognizing foreign civil unions work?
No country currently authorizes civil unions. However, the general rule is likely to be that foreign civil unions involving Connecticut residents will be afforded the same recognition afforded to couples who entered into civil unions here, so long as (1) the foreign country's civil union laws were followed and (2) the individuals involved could have legally entered into a civil union in Connecticut. This is the same standard that currently applies to Connecticut residents who enter into foreign heterosexual marriages.
Courts may determine that other non-statutory rules, such as comity, require the state to recognize foreign civil unions involving non-Connecticut residents.