January 18, 2002
CIVIL UNIONS AND DOMESTIC PARTNER RIGHTS AND RESPONSIBILITIES — OTHER STATES' LAWS AND PROPOSALS
By: Susan Price-Livingston, Associate Attorney
You asked about other states' laws and proposals to (1) recognize civil unions or marriage between people of the same sex or (2) provide a limited number of rights and responsibilities to same-sex couples.
Vermont's Act 91 is the only law that permits same-sex couples to enter into civil unions, entitling them to the same state law benefits as married couples. It also contains provisions that permit two unmarried relatives to declare themselves “reciprocal beneficiaries,” giving them the equivalent of a spouse's rights to hospital and nursing home visitation, access to medical information, and to make some personal decisions on each other's behalf.
Legislation narrowly passed the Vermont House in the last session that would eliminate the civil union provisions, allowing unrelated same-sex couples and paired relatives to become “reciprocal partners” with the same legal rights as married couples. The Senate did not take up the bill before the session's end, but may do so this session. Other bills, including some that would repeal Act 91 entirely, were also carried over.
Civil union or marriage legislation was introduced in the last session in California, Hawaii, New York, Rhode Island, and Washington. Only the Hawaii bill remains active.
California, Hawaii, Maine, and the District of Columbia already have laws affording domestic partners some legal rights and responsibilities. Laws in Alaska and Arizona do not create rights, but expressly include domestic partners in laws specifying the relatives and friends who may make decisions on an incompetent or dead person's behalf (AS § 47.24.016; ARS §§ 36-843 and –3231).
Colorado, Massachusetts, Nevada, and Washington legislatures considered bills in the last session that would afford domestic partners some of the rights of spouses and other dependents. Some have been carried over and may be taken up in current or upcoming sessions.
We enclose copies of the laws and bills.
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 (Sec. 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.
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 (“Vermont Guide to Civil Unions” (http://www.sec.state.vt.us/pubs/civilunions.htm)).
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 (Sec. 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 establishes 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. Both are on-line at http://www.leg.state.vt.us/baker/Final CURC Report for 2002.htm. The commission will dissolve by operation of law April 26, 2002 unless the legislature re-authorizes it.
Vermont Supreme Court Ruling
On December 26, 2001 the Vermont Supreme Court rejected a challenge to the civil union law brought by groups of Vermont taxpayers, legislators, and town clerks. The taxpayers and legislators sought to invalidate the law because several legislators had participated in a “dollar-a-bet” pool on the outcome of a preliminary vote. The plaintiffs argued that these legislators acquired a financial interest in the outcome of the vote by participating in the pool, and thus should have refrained from voting under the legislature's conflict-of-interest rules.
The clerk plaintiffs argued that enforcing the law (i.e., issuing applications and certificates and maintaining civil union records) infringed upon their sincerely held religious beliefs, in violation of the state and federal constitutions.
The Vermont Supreme Court upheld a lower court's dismissal of the complaint. The justices concluded that the conflict-of-interest claims were within the legislative, not judicial, branch's authority to remedy, and that Act 91 adequately accommodated the town clerks' religious objections by permitting them to designate another person to carry out functions involving civil unions (Brady v. Dean, Doc. No. 2000-547 (Dec. 26, 2001)).
Legislation Introduced in 2001 Session
Vermont's House of Representatives passed a bill in the 2001 session that would repeal Act 91's civil union chapter and void existing unions (HB 502). It would find that there are “valuable paired, nonmarital family relationships between committed unrelated same-sex adults and between adult relatives” (Sec. 1(6)), and make conforming changes in the laws to give both groups rights equivalent to spouses. It would do this by substituting “reciprocal partners” for “reciprocal beneficiaries” in existing law and including in the new classification both unrelated, same-sex couples and paired relatives who are not eligible to marry. It would replace the reciprocal beneficiary declaration procedures with licensing requirements similar to those currently applicable to civil unions.
The bill passed the House on a vote of 71-69, but the Senate did not take it up. It has been carried over for possible consideration in Vermont's current session, which convened on January 8, 2002 and adjourns in late April.
Other bills introduced in 2001 and carried over would (1) repeal Act 91 (HBs 315 and 350), (2) prohibit non-residents from entering into civil unions when the jurisdiction where they live deems them void (HB 194), and (3) permit people who have the legal authority to solemnize civil unions to decline to do so (HB 274, SB 55).
CIVIL UNION/MARRIAGE BILLS INTRODUCED IN OTHER STATES
The California Family Protection Act of 2001 (AB 1338), which is currently inactive, would provide equal legal recognition for same-sex and married couples. Modeled after Vermont's law, it would give “spouses in a civil union” the opportunity to obtain the same rights, protections, benefits, and responsibilities afforded different sex couples by California's marriage laws. It specifies that it is not intended to repeal or adversely affect any other ways in which relationships between adults are recognized or given effect in California, or the legal consequences of those relationships, including the registration of domestic partners (see below), enforcement of palimony agreements or powers of attorney, and appointment of conservators and guardians (§ 1(c)). And it contains a provision making any statute or other provision of state law that applies to a formerly married person applicable to a person who was formerly a spouse in a civil union (§ 3).
People could apply for a civil union license if they were (1) at least 18 years old and competent to enter a contract, (2) not related by blood in any way that would prohibit marriage nor uncle and nephew or aunt and niece, (3) not already married or in a civil union, and (4) disqualified from entering into a civil marriage in California (id.)
Assemblyman Paul Koretz, one of the bill's prime sponsors, reports that legislative rules permit him to re-introduce the bill in February, 2002. He may do this or wait until the 2003 session.
A House bill carried over from Hawaii's 2001 session would establish civil unions, repealing that state's existing “reciprocal beneficiary” law (see below). The bill includes a legislative finding that unmarried partners comprise a significant percentage of households in Hawaii, and that as a matter of public policy society should accord to such partners rights and benefits that are comparable to those in comparable relationships. The stated purpose of the bill is to recognize the right of certain such people to identify the partners with whom they share their lives as members of each other's immediate family and to accord them such rights and benefits.
Under the bill, “civil union partners” are two adults who are parties to a valid civil union contract and continue to meet its requisites. Eligibility criteria are that the parties:
1. live together,
2. consider themselves to be members of each other's immediate family,
3. agree to be jointly responsible for each other's basic living expenses,
4. neither be married nor a member of another civil union,
5. not be related by blood in a way that would prevent them from being married to each other under the civil marriage laws,
6. each be at least 18 years old,
7. each be competent to enter into a contract, and
8. each sign a declaration of civil union.
The union would be established by presenting a signed, notarized declaration of civil union to the health director, who must file it and give the partners a certificate of civil union showing that the declaration was filed in their names. Parties named in such certificates would have the same rights and obligations under the laws that are conferred on spouses in a marriage. The bill requires “civil union partners” to be included in any definition or use of the terms “spouse,” “family,” “immediate family,” or “dependent.”
Under the bill, the family court would have jurisdiction over the dissolution of civil unions and must follow the same procedures and subject these unions to the same substantive rights and obligations that apply to civil marriage dissolutions.
The bill states that it supercedes any state law or political subdivision ordinance to the contrary. It specifies that no religious organization is required to solemnize a civil union if it does not recognize this relationship within its ideology and the organization's action does not obstruct or violate the rights and obligations of civil union partners. The bill makes civil union status an unlawful reason for discriminating in state employment, housing, public accommodations, or access to services receiving state financial assistance.
Finally, it contains a provision requiring the state to recognize other substantially similar contractual relationships established outside of its jurisdiction.
A bill introduced in 2001 in the New York State Senate provided: “notwithstanding any other provision of [the Domestic Relations Law], a marriage is contractually valid between two persons, regardless of the sex, gender identity or expression” (S01-205). It was referred for a second time to the Judiciary Committee on January 9, 2002.
During the last legislative session, a bill was introduced in the Rhode Island House of Representatives that would add a civil union chapter to Rhode Island's Domestic Relations Law (H01-5590). The bill's stated purpose was to provide eligible couples the opportunity to obtain the same benefits, protections, and responsibilities offered by the laws of Rhode Island to married couples. Many of the provisions of the bill track Vermont's Act 91. In addition, it specified that “the term marriage, as used throughout the law, whether in statutes, administrative or court rule, policy, common law or any other source of civil law … shall be read, interpreted, and understood to include marriage and civil union.” Under the bill, spouses joined in a civil union would be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.
The bill was defeated in the Judiciary Committee.
House and Senate bills introduced during Washington's regular 2001 session would create a system for establishing a civil union in that state, imposing on civil union partners the same duties to support one another as are imposed on married people (HB 1758, SB 569). The bills generally track Vermont's Act 91 and make conforming changes to existing law. They also include provisions for recognizing unions entered into in other states, so long as the partners are not related to a degree that would void their marriage under Washington law (i.e., no closer than second cousins).
Both bills were referred to the Judiciary Committee and carried over for possible consideration in the current session.
DOMESTIC PARTNERSHIP LAWS IN OTHER STATES AND THE DISTRICT OF COLUMBIA
A California law that took effect January 1, 2002 gives registered domestic partners more legal rights and protections and expands the types of relationships the registry law covers (AB 25 — Chapter 893, Statutes of 2001). Registration is now available to same-sex couples and opposite sex couples when either partner is over age 62 and meets specified federal Social Security Act criteria. (Under prior law, each partner in the latter group had to meet both the age and Social Security Act criteria.)
As under prior law, eligible same-sex partners must (1) be at least age 18, unmarried, and not in another domestic partnership; (2) share a residence; (3) agree to be jointly responsible for one another's basic living expenses; and (4) not be related in a way that would prevent them from legally marrying one another under California law.
The new law includes registered domestic partners in laws relating to:
1. tort claims for spouses of injured or deceased people, including negligent infliction of emotional distress and wrongful death;
2. stepparent adoption;
3. continued health coverage for domestic partners and their dependent children upon the death of a covered state or local government employee;
4. death benefits and survivors' allowances for covered domestic partners in San Francisco (and San Mateo County if approved by its county board of supervisors);
5. health care decision-making on behalf of patients in some circumstances;
6. domestic partnership coverage options that group health care and disability plans must offer employers and associations whose plans cover spouses;
7. family and bereavement leave;
8. conservatorship, property transfer, revocation of bequests, statutory wills, and some estate administration rules;
9. personal income tax deductions for health insurance costs;
10. unemployment eligibility when an employee quits a job to accompany a relocating domestic partner; and
11. disability claims-filing authority on behalf of incapacitated partners.
District of Columbia
The D.C. Health Care Benefits Expansion Act of 1992 requires all health care facilities in the district to allow domestic partners visitation rights, creates a domestic partnership registry in the mayor's office, and allows district government employees to purchase health insurance coverage for their registered domestic partner through the district's health care plan (D.C. Code 32-701). It also permits them to take family or bereavement leave in the same circumstances that married employees can.
Although the law went into effect in 1993, Congress did not authorize federal money to implement it until December, 2001.
A law passed in 1997 recognizes “reciprocal beneficiary” relationships in Hawaii (L. 1997, Ch. 383). Under its provisions, any two unmarried people who are legally prohibited from marrying under state law (i.e., close relatives and same-sex couples) can register and qualify for some benefits that were previously available only to married couples. These include hospital visitation privileges, authority to sue for wrongful death and loss of consortium, family and bereavement leave entitlements, and treatment as spouses under some inheritance laws. An attorney general's opinion and subsequent changes in the state employee benefits laws limit other provisions relating to health insurance and other coverage for reciprocal beneficiaries. A bill that would restore them is currently before the state Senate (SB 636).
A 2001 Maine law requires insurers and other health care service providers doing business in the state to offer individuals and group policyholders the option of enrolling a covered person's domestic partner at appropriate rates and under the same terms and conditions as it offers spousal coverage (2001 Maine Pub. L. ch. 347). They can require the covered person and domestic partner to sign an affidavit and provide documentary proof of their relationship.
Under the law, partners must be adults and (1) have lived with the covered person for at least one year, (2) be single and not part of another domestic partnership, (3) be the sole partner of the covered person and expect to remain so, (4) be jointly responsible for each other's common welfare as evidenced by joint (a) living or financial arrangements or (b) ownership of real or personal property.
DOMESTIC PARTNERSHIP BILLS IN OTHER STATES
A bill that was not voted out of Colorado's Judiciary Committee in the 2001 session would have amended the state's intestate succession law, allowing “committed partners” to stand in the same position and inherit from their deceased partners in the same manner as a surviving spouse would (SB 01-159). A “committed partnership” was one in which the couple declared themselves committed partners and filed a notarized affidavit to that effect with the clerk in the county where at least one of the partners lived. Both partners had to be at least age 18, unmarried and not in another committed partnership, barred from marriage under Colorado law, and not related in a way that would violate the state's marriage laws.
In addition to inheritance rights, the bill included provisions giving partners the same priority for consideration as is given spouses in matters relating to (1) personal representative, guardian, or conservator appointments and (2) proxy decision-making authority for an incompetent partner.
The partnership would terminate when either partner died or married, or when one or both filed an affidavit terminating the relationship with the clerk's office where the establishing affidavit was filed.
Legislators in Massachusetts considered but did not pass seven bills in their 2001 session that would have granted a limited number of rights to domestic partners. People eligible to register as partners were those in a relationship of mutual support, caring, and commitment who (1) lived in the same household and shared financial responsibilities and expenses, (2) were at least age 18 and competent to enter into contracts, (3) were unmarried and not barred from marrying one another by the state's consanguinuity laws, and (4) intended to live together indefinitely as sole and exclusive domestic partners.
Four of the bills would have given domestic partners equal rights of dependents and surviving spouses under the state's public sector benefit laws (H 2163 and S 1344, 1527, and 2123). Two would have included domestic partners in the definition of “family” used in the state's victim compensation laws (S 831 and 1936). And one would include a patient's domestic partner among the group of unlicensed people who could lawfully administer narcotics (H 2309).
A 2001 New York bill would have amended the state's workers' compensation law to include domestic partners within its definition of “dependent” (AB 9555). It defined domestic partner as a person at least age 18 who:
1. is dependent upon an employee for support as shown by either unilateral dependence or mutual interdependence, as evidenced by a nexus of factors including, but not limited to: (a) common ownership of real or personal property; (b) common householding; (c) shared budgeting; and (d) the length of the personal relationship with the employee, or, if the employee is deceased, dependence upon the employee immediately prior to the employee's death or
2. has registered as the domestic partner of the employee with any registry of domestic partnerships maintained by the state or by any county, city, town, or village.
It deemed employers covered by the workers' compensation laws to have included domestic partner dependency coverage in their policies or self-insurance certificates unless they filed a disclaimer of coverage with the compensation commissioner.
A bill introduced in Nevada's 2001 session would recognize reciprocal beneficiary relationships, entitling people to: (1) family and medical leave law coverage, (2) excuses from jury service due to their partner's serious illness or death, (3) certain inheritance rights, (4) inclusion in the state's crime victim compensation law, and (5) health care facility visitation rights (AB 496). It allowed state and local governmental employers to enroll reciprocal beneficiaries as dependents in employee benefit plans. It also listed domestic partners in the standard form people use to grant a durable power of attorney for health care decisions and gave surviving domestic partners primary responsibility for making burial arrangements and priority in making anatomical gift decisions.
The bill was referred to the Judiciary Committee, which did not take action on it within the time prescribed by Nevada legislative rules.