The gay couple continuum

The legalization of domestic partnerships—which are sometimes considered a roadside stop on the journey toward legal civil marriages for gay and lesbian partners—secures a number of important rights for committed couples who can’t legally marry.

But by allowing gay and lesbian couples to register with the state as domestic partners, and denying that same right to opposite-sex couples under the age of 62, the newest domestic partnership law seems to create new inequities while trying to correct others. At least that’s the way it looks to James Smith of West Sacramento.

The issue grabbed Smith’s attention when a friend of his received a letter from the Northern California chapter of the California Automobile Association (AAA), which said “Persons insured under the policy now include domestic partners of the policyholder(s) … State law does not recognize opposite sex domestic partnerships unless both partners are over 62 and both are eligible for social security benefits.”

Smith isn’t one of those Bible-thumping homophobes, and said he has no problem with homosexuality. To him, this is about fairness. Such concerns could be front and center as a new state task force examines the legal status of gay couples in California.

Smith believes that current anti-discrimination laws and California’s new expanded domestic partnership law put gay couples pretty much on the same footing with the rest of the world. He’s not entirely correct, but he still bristles at this perceived discrepancy. He suspects that gay and lesbian domestic partners were probably eligible for some unique benefit, “some kind of gratuity.”

Smith claimed that if the policy were written to include straight couples but not gay couples, “there would be an outcry of discrimination from same-sex partners in California and across the nation.”

Of course, he’s right. Historically, the situation has been reversed. Straight couples can marry, gay couples can’t, and there has been an outcry among the homosexual community over the inequity. But in spite of a vocal gay rights movement, Californians elected in 2000 to continue to deny gay couples the right to marry through Proposition 22.

In the same year, a domestic partnership registry was established to grant some legitimacy to same-sex unions. It included few legal benefits. Assembly Bill 25, signed into law in October 2001, took the next step and tagged a number of rights to domestic partnership registration. The number of registered couples has nearly doubled since.

Just how radical are California’s domestic partnership laws? Compared to other states, California is both way ahead of the curve and way behind the frontrunner. California is the second most progressive state in the country, but it lags far behind Vermont, where a “civil union” gives same-sex couples all the rights and responsibilities afforded married couples. California, Vermont and Hawaii are the only three states in the U.S. to acknowledge same-sex unions.

It’s estimated that there are 1,049 laws in the federal code that make specific mention of marriage, spouses, widows and other marital labels. The state of California recognizes an additional 400, meaning that married couples in California are bound by approximately 1,500 various rights and responsibilities the second they say, “I do.”

These legal rights and obligations vary considerably. Some simply refer to a couple’s legal right to co-own property and possessions; others refer to the benefits awarded the spouses of servicepeople killed in the line of duty. Many refer to health and death benefits for various groups.

Though some opponents fear that “domestic partnership” will become just another term for marriage—and one that violates the spirit of Prop. 22, which limited the definition of marriage to a union between one man and one woman—the new law hardly settles the score. It grants a registered couple fewer than 20 new rights, and binds them by few responsibilities, except in spirit.

By registering as domestic partners, a couple is agreeing to live in the same residence and to take care of each other throughout their lives. But if such promises fail, domestic partners are also freed from the court proceedings associated with divorce.

Though many of the rights of marriage are missing from domestic partnership laws, it’s also important to recognize that many of the responsibilities are missing as well, and since domestic partnership status is limited to same-sex couples, opposite-sex couples still have only two options: they’re either married or they’re single.

It’s this inequity that rankles people like Smith, even though the cure—allowing full-fledged gay unions in California, with all the rights and responsibilities of a marriage—is unpalatable to the majority that approved Prop. 22.

In what one advocate called the “gayby boom,” more gay and lesbian couples are forming family units and raising children together. One domestic partner can now legally adopt the other’s children, using the same process a stepparent uses. Without formal adoption, California does not assume the partners share legal rights and responsibilities for the child, even if the partners prepared for the child together. Since opposite-sex couples cannot register as domestic partners, they are not guaranteed the right to adopt each other’s children without the benefit of marriage.

A domestic partner can now sue for wrongful death. As an example, consider Sharon Smith’s case against the couple who owned the dog that killed her girlfriend, Diane Whipple. State law now makes it legal anywhere in California, not just San Francisco, for one domestic partner to bring such a case to court. As the law is now written, had Whipple been a man, California would not have guaranteed Smith that right.

A domestic partner can now file for unemployment after relocating with the other partner. A domestic partner can now use sick leave to take care of the other partner. If one domestic partner is incapacitated, the other can make his or her medical and financial decisions. One partner can also file for disability benefits on behalf of the other, and be appointed the administrator of a deceased partner’s estate.

None of these rights are guaranteed for opposite-sex domestic partners.

According to Smith, all people should share basic rights. In his opinion, domestic partnership rights should be granted to opposite-sex couples as well, especially when there’s the possibility of financial benefit, as with AAA’s insurance policy.

Domestic partners can now file a single home insurance claim with AAA, for example, to protect their joint household. Opposite-sex domestic partners still have to file two claims, even if they’ve lived together long-term, adding inconvenience and expense to the protection of shared property.

Though gay activists recognize the discrepancy, they’re quick to point out a solution for straight couples who want the rights of domestic partners: get married! That’s a straight couple’s only option to secure these rights, thanks largely to the heterosexual powers-that-be.

Assembly Bill 25, as it was originally written, did allow all adults, gay or straight, to register as domestic partners. But as Assemblywoman Carole Migden’s homepage states, “As the Governor and the Legislature considered the bill, many viewed domestic partnership as an alternative to marriage that was inappropriate for opposite sex couples that have the option to marry.”

“It’s a circular argument,” says Eric Astacaan, lobbyist for the California Alliance for Pride and Equality. “If [opposite-sex couples] want to get the same basic legal protections, they can get married.”

Patti Restaino, a market development manager for the Northern California chapter of AAA, said there was some discussion of acknowledging opposite-sex unions, but in the end, the automotive club decided to stick with the state’s definition of domestic partners. That will allow them to consistently offer more rights to gay and lesbian consumers as the state expands the rights and responsibilities of domestic partners.

New rights may not be long in coming. Governor Gray Davis has recently requested that staff members look into the issue of civil unions, study the Vermont legislation and consult members of California’s gay and lesbian community and report back to him—but only after the budget is solidified. Davis has signed some gay rights legislation, but so far, civil union legislation has never made it to his desk.

Astacaan said that five years ago he believed he’d never live to see marriage for gay couples. Now, he says, he’s cautiously optimistic. Legislators who were unfamiliar with the issues are now talking about them. The argument occasionally escapes its religious context, and is considered in the context of civil rights: all citizens treated equally under the law.

If some form of same-sex marriage were legalized, it’s not like any church or religious organization would be forced to marry gay couples, said Astacaan. “We’re talking about that little piece of paper from the County Clerk’s office.”

In the meantime, organizations such as AAA are changing their policies not just for political reasons, but to remain attractive to consumers in the marketplace. By simply adding “domestic partners” every time a policy applied to “spouse,” AAA made a savvy business decision.

“What are we doing today that’s making them jump through hoops?” Restaino said, thinking back to the decision-making process regarding gay and lesbian consumers. “What can we do tomorrow to make it easier for them to walk in and do business with us?”

It might be unfair to deny opposite-sex couples domestic partner status, but Astacaan and others believe that could be corrected in future legislation, along with some other inequities.

For instance, in state law, domestic partners still can’t file joint tax returns, or claim spousal or child support after the dissolution of partnerships. Moreover, domestic partnership status in California means nothing outside of California. Even Vermont, which recognizes civil unions as the legal equivalent of marriage, can only grant such rights to couples within its borders.

“In the eyes of the law,” said Astacaan, “everyone should have the same legal treatment.”

Smith made almost exactly the same statement. Where Astacaan would like to see California expand the definition of “marriage” in the future, Smith would prefer an expanded definition of “domestic partners.”