Mary Sylla, editor (

-------------------------------END PAGE 90---------------------------------

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 ork 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

-------------------------------END PAGE 91---------------------------------

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 ork City provides for hospital and jail visitation rights and provides further that registration shall be considered evidence in determining whether

-------------------------------END PAGE 92---------------------------------

a person qualifies as a family member entitled to occupancy rights in property owned by the New ork City Housing Authority and for succession and occupancy rights in property supervised by or under the jurisdiction of the New ork 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. (Aug. 1990)

New ork, N. (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 ork City require 6 months).

-------------------------------END PAGE 93---------------------------------

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.

-------------------------------END PAGE 94---------------------------------

Laguna Beach, CA.

San Francisco, CA. Santa Cruz, CA.

West Hollywood, CA. Cambridge, MA.

Ann Arbor, MI. East Lansing, MI.

Minneapolis, MN. New ork, N (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.

New ork, N (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

-------------------------------END PAGE 95---------------------------------

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

American Friends Service Committee, Philadelphia Amer. Psychology Assoc., Washington, DC

Apple Computer Co., CA Borland International, Scotts Valley, CA

Lambda Legal Defense Fund, NC Levi Strauss  Co., San Francisco, CA

Lotus Development Corp., Cambridge, MA MCA, Inc., Los Angeles, CA

Millbank, Tweed, Hadley  McCloy, NC National Organization for Women, Washington, DC

Orrick, Hennington  Sutcliffe, 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, NC

University of Chicago, IL Published reports have listed the following employers as also offering domestic partnership benefits:

Ben  Jerry'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

-------------------------------END PAGE 96---------------------------------

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

-------------------------------END PAGE 97---------------------------------

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 ork 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

-------------------------------END PAGE 98---------------------------------

fears, however, may well be unfounded on the basis of the experience to date:

(i). A spokesman for New ork City was quoted in a New ork 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

-------------------------------END PAGE 99---------------------------------

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 152 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).

-------------------------------END PAGE 100---------------------------------

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).

-------------------------------END PAGE 101---------------------------------

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).


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..2d 201, 543 N.E.2d 49, 544 N..S.2d 784 (1989), the court held that a gay man's partner qualified as a family member under the noneviction provision of New ork 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

-------------------------------END PAGE 102---------------------------------

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 ork 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).

-------------------------------END PAGE 103---------------------------------

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..2d 201, 543 N.E.2d 49, 53, 544 N..S.2d 784 (N 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

-------------------------------END PAGE 104---------------------------------

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).


write the editor
back to our home page