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Marriage, Civil Union, or Domestic Partnership... What’s the Difference?

by Joyce Kauffman
Contributor
Wednesday Feb 6, 2008
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In December of 2003, the Supreme Judicial Court determined that same-sex couples were entitled to the benefits of marriage under the Massachusetts constitution. Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). An avalanche of change with respect to the legal recognition of same-sex relationships in the United States, begun more than a decade before when the Hawaii case of Baehr vs. Miike was initially filed, continues. In the 1990’s, the Hawaiian court seemed poised to grant marriage rights to same-sex couples until the legislature intervened by enacting a Defense of Marriage law defining marriage as between one man and one woman. The Hawaiian legislature went on to enact the Hawaii Reciprocal Beneficiaries law in July 8, 1997. The law provides limited state rights to same-sex couples and "represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage." Since then, several jurisdictions have enacted some kind of protective status for same-sex couples, some more that are more "susbtantially similar" to marriage and some that are less. It all depends on where you live.

The Federal Defense of Marriage Act of 1996 declares that marriage is between one man and one woman and no state need recognize the union of a same-sex couple; this, of course, effectively undercuts the full faith and credit provisions of the US Constitution with respect to the recognition of same-sex relationships. As a result, couples married in Massachusetts and couples who have entered into Domestic Partnerships or Civil Unions where available, have access to none of the more than 1,100 federal rights and benefits available to heterosexual married couples. In the last several years, 45 jurisdictions (44 states and the District of Columbia) have similarly enacted Defense of Marriage Acts confirming that none of those jurisdictions intends to recognize same-sex marriages or any relationship between same-sex couples.

While Massachusetts remains the only state to grant marriage rights, there are six other states that have enacted relationship recognition for same-sex couples that is "substantially similar" to marriage. Couples who do not reside in Massachusetts may not marry in Massachusetts if their state of residency does not recognize same-sex marriages. Thus far, Rhode Island residents are the only ones who can take advantage of marriage in Massachusetts (but note that the RI Supreme Court has recently ruled that same-sex married RI residents cannot get divorced in RI).

VERMONT

In 1999, the Vermont Supreme Court ordered its state legislature to come up with a system providing same-sex couples with traditional marriage benefits and protections. (Baker v. State, 744 A.2d 864 (Vt. 1999).) The Vermont legislature subsequently passed the Vermont Civil Union law, which went into effect on July 1, 2000. While this law does not legalize same-sex marriages, it does provide gay and lesbian couples living in Vermont with many of the same advantages, including:


  • use of family laws such as annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
  • the right to sue for wrongful death, loss of consortium, and any other tort or law related to spousal relationships
  • medical rights such as hospital visitation, notification, and durable power of attorney
  • family leave benefits
  • joint state tax filing, and
  • property inheritance without a will

There is no residency requirement for entering into a civil union in Vermont.

NEW JERSEY

In 2004, New Jersey passed a Domestic Partnership law. Same-sex couples (who share a common residence and are over the age of 18) and opposite-sex couples where one partner is 62 or older may register as domestic partners. All couples must demonstrate financial interdependence (as shown by a joint mortgage, lease, checking account, or the like). The New Jersey law is close to creating parity with marriage, but has some significant differences in that the law, for example, does not provide for inheritance rights or the right to petition for spousal support if the relationship ends and does not provide any automatic parental rights -- second parents will still have to petition for adoption (which is available in New Jersey). The law does create equality with married couples in insurance coverage and medical decision making and the ability to file joint state tax returns (though not federal, because of the federal Defense of Marriage Act). However, domestic partners cannot claim a right to family entitlements in public benefit programs. While the law provides for dissolution similar to divorce, the courts do not have power over equitable distribution of assets. New Jersey will recognize the civil unions or domestic partnerships of couples from other states.

CALIFORNIA

In 2005, California passed AB 205, granting Domestic Partnership (and superseding a previously-enacted domestic partnership registry) to same-sex couples, essentially granting all the rights of marriage to same-sex couples, but not marriage per se. Opposite sex couples may enter into a domestic partnership if one of the parties is over the age of 62. The primary difference between domestic partnership and marriage in California is the manner in which couples register for domestic partnership and dissolve a domestic partnership. In addition, domestic partners do not have the protection of any statute or constitutional provision passed by citizen initiative. One interesting - and extremely helpful - provision of the California law is that domestic partners may opt for continuing jurisdiction to California to dissolve their domestic partnership even if they never lived or no longer live in California. As will be discussed below, the ability to dissolve a partnership has become a significant issue for same-sex couples. There is no residency requirement for entering into a Domestic Partnership in California. Both parties must be over the age of 18.

CONNECTICUT

Also in 2005, the state of Connecticut enacted a Civil Union law - the first time a legislature did so without pressure from the Courts. Civil Unions in Connecticut essentially provide all the protections, benefits, and responsibilities of marriage to same-sex couples. There are some interesting differences, however, which include the following: an official has the right not to officiate at a civil union (not available to public officials with respect to marriage, of course) and although 16- and 17-year olds are, under some circumstances, allowed to marry in Connecticut, an individual must be 18 years old or older to enter into a Civil Union. There is no residency requirement for entering into a civil union in Connecticut.

OREGON

In 2007, the Oregon legislatures enacted a Domestic Partnership law. The Oregon law (when it goes into effect) is similar to the California law in that it grants the same protections, benefits, and responsibilities as marriage. At least one member of the couple must be a resident of Oregon and both parties must be over the age of 18 in order to enter into a Domestic Partnership. Unfortunately, in late December, a federal judge issued an injunction preventing the Oregon law from taking effect because of an alleged problem with the verification process concerning a referendum effort to put the issue on the November 2008 ballot.

NEW HAMPSHIRE

Effective January 1, 2008, New Hampshire allows for Civil Unions which, just as in Vermont, provide same-sex couples with equivalent rights to married heterosexual couples. Unlike other jurisdictions, however, New Hampshire’s civil union law includes a provision that allows for the recognition of civil unions entered into by couples outside of New Hampshire. Couples who move to New Hampshire and have previously entered into a civil union in another state or a marriage in Massachusetts will be seen as having a valid civil union in New Hampshire. There is no residency requirement for entering into a civil union in New Hampshire.

THE INABILITY TO DIVORCE

One of the most significant problems faced by same-sex couples is the inability to dissolve a civil union or domestic partnership or to divorce, if they have left the state where they entered into the legal relationship. The Rhode Island court recently ruled that RI will not recognize a Massachusetts marriage for the purpose of same-sex divorce. Since same-sex marriage is not recognized in the majority of jurisdictions, it is unlikely that a couple married in Massachusetts will be able to divorce outside of Massachusetts. To the best of this author’s knowledge, California is the only state that retains jurisdiction to dissolve a domestic partnership when the parties no longer reside in California. The Pandora’s Box of problems this creates is certain to be a significant challenge to these couples and to the courts down the road. For example, all of the states that provide legal protections require that neither party be in another domestic partnership or civil union prior to entering into that legal relationship. If someone is unable to dissolve the previous relationship, they will not be able to enter into a new legal relationship.

One other example serves to illustrate some of the other issues that may arise: a couple married in Massachusetts, moves to Ohio and then breaks up. They cannot get divorced, but they go their separate ways. Ultimately, one of them moves back to Massachusetts, where they are still married. Even though she can file for divorce after residing in Massachusetts for a year, she dies before that year is up. Who has authority over burial? Does the spouse have a claim to her estate in Massachusetts?

Legal experts around the country are grappling with these questions; most agree that the only real solution is for the legal relationships of same-sex couples to be recognized everywhere, including by the federal government.

WHAT’S THE DIFFERENCE?

The only way same-sex couples will have true equality under the law is when our relationships are recognized by all the states and by the Federal Government. "Marriages" that enjoy full faith and credit by all other jurisdictions are the only sure path to that recognition. The essence of the difference between Civil Unions and Domestic Partnerships, on the one hand, and Marriage, on the other hand is this: first, only marriage confers over 1,100 federal rights and benefits, along with the hundreds of state rights and benefits, and second, it is only through marriage that same-sex couples can hope to obtain full equality. Civil Unions and Domestic Partnerships are certainly a step in the right direction but effectively create a "separate but equal" situation, essentially making same-sex couples second class citizens. Among the Federal benefits unavailable to same-sex married couples are protections under the Family Medical Leave Act; family and death benefits through social security and pension plans (most of which provide benefits only to legal spouses); the ability to have foreign spouses immigrate to the U.S.; worker’s compensation surviving spouse protections; and numerous tax benefits, including tax breaks for couples raising children. And do not forget, the vast majority of states provide no legal protections to same sex-couples and families headed by those couples. Gay and Lesbian Advocates and Defenders, the organization which brought the Goodridge case to the Court, states that:

Marriage is a unique legal status conferred by and recognized by governments the world over. It brings with it a host of reciprocal obligations, rights, and protections. Yet it is more than the sum of its legal parts. It is also a cultural institution. The word itself is a fundamental protection, conveying clearly that you and your life partner love each other, are united and belong by each other’s side. It represents the ultimate expression of love and commitment between two people and everyone understands that. No other word has that power, and no other word can provide that protection.

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On the web:

http://www.glad.org/rights/OP7-marriagevcu.shtml (this article on the GLAD website provides an in-depth analysis of the differences between marriage and civil unions/domestic partnerships).

Joyce Kauffman is a lawyer in Cambridge, MA. She can be reached at joyce@kauffmanlaw.net.

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