Separate But Not Equal

[furrbear]

From elfwreck in gay_marriage:

Separate But Not Equal
Differences between Marriage and Domestic Partnership in California
(long article; provided as a resource to rebut the claim "but they already have all the same rights!")

California Family Code Section 297.5, subdivision (a), states:
"Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." (Emphasis added)

However, there were nine differences between marriage and domestic partnership noted in In re Marriage Cases, the CA Supreme Court ruling in May 2008 that decided that homosexual couples have rights to the same legal recognition of their families--including the word "marriage"--as heterosexual couples.

Those nine differences are:

1. Residency requirement for domestic partners
2. Minors can marry but not be domestic partners
3. Different filings; marriage requires solemnization
4. No confidential domestic partnership
5. Terminating a marriage requires a judge's ruling
6. Terminating a marriage requires residency
7. Domestic partners ineligible for CalPERS long-term care insurance program
8. Property tax exemption for spouse of deceased veteran
9. Putative spouse doctrine is not putative domestic partner doctrine

Equal rights have been mandated but not provided. This is part of why same-sex couples have the right to insist on marriage, not domestic partnerships. This article gives the legal source for each of the 9 differences identified in In re Marriage Cases, and briefly explores some of the meanings of those differences. DISCLAIMER: I am not a lawyer; this is not legal advice or analysis. Italicized quote sections are taken directly from In re Marriage Cases; the rest is my commentary.

1) Common residence is required for domestic partners

First, although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established (§ 297, subd. (b) (1)), there is no similar requirement for marriage.

This indicates that domestic partnership is not a vow of intent, but a statement of an existing relationship. Domestic partnership can’t be used to start a life together.

Unlike marriage, a same-sex couple cannot develop a relationship from separate residences and dedicate their lives to each other before living together. Nor can they build a long-distance relationship and devote their lives to each other without the opportunity to live together—as is the case with non-citizen marriages.

It’s possible this clause’s main purpose is preventing gay or lesbian people from find life-partners in other countries, and bring them to the United States.

2) Minors can marry with parental/guardian/judge's consent

Second, although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established (§ 297, subd. (b)(4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. (§§ 302, 303.)

Like the previous, this prevents domestic partnership from being used as a declaration of future intent. It additionally implies that minors, who are able to consent to marry (with adult permission), are not able to consent to devoted same-sex relationships, regardless of maturity.

There is no reason to prevent minors (with proper adult consent) from domestic partnerships, unless homosexual relations are inherently more "adult" than heterosexual ones.

Noting the residency requirement: few minors are living with non-relatives; this aspect implies they must be "protected" from the possibility of domestic partnerships, while they are not so protected from the option of marriage.

3) Different filing locations & procedures; only marriage requires solemnization

Third, to establish a domestic partnership, the two persons desiring to become domestic partners must complete and file a Declaration of Domestic Partnership with the Secretary of State, who registers the declaration in a statewide registry for such partnerships (§ 298.5, subds. (a), (b)); to marry, a couple must obtain a marriage license and certificate of registry of marriage from the county clerk, have the marriage solemnized by an authorized individual, and return the marriage license and certificate of registry to the county recorder of the county in which the license was issued, who keeps a copy of the certificate of registry of marriage and transmits the original certificate to the State Registrar of Vital Statistics. (§§ 306, 359; Health & Saf. Code, §§ 102285, 102330, 102355.)

The differences in registry are minor, and are very likely equivalent. The difference in requirements is not.

Solemnization of a marriage is a crucial part of society. By not requiring it for domestic partnerships, the state declares that such relation-ships need no external validation—which in turn implies that they are not connections of the couple to society at large, but only a private contract between two individuals.

Marriage, as a keystone of society, requires solemnization by a civil or religious authority figure. Legal affirmation of a new family takes more than a statement between individuals. This aspect implies that domestic partners are not actually a family, but some other kind of relationship.

4) No confidential domestic partnership

Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of the marriage are not made available to the public (§ 500 et seq.), the domestic partnership law contains no similar provisions for “confidential domestic partnership.”

Implies, like the previous notion, that domestic partnerships are not a real family—because real families can be acknowledged by the state but not their community, for reasons of oppression or just a desire for privacy. This aspect denies that domestic partners have the same rights to privacy as married couples.

It also can lead to discrimination; while bias against gay and lesbian people is illegal, it is also common—and domestic partners have no choice to keep their relationship secret; if they want benefits similar to marriage, they must be public.

5) Dissolving a marriage requires a judge's ruling

Fifth, although both the domestic partnership and marriage statutes provide a procedure for summary dissolution of the domestic partnership or marriage under the same limited circumstances, a summary dissolution of a domestic partnership is initiated by the partners’ joint filing of a Notice of Termination of Domestic Partnership with the Secretary of State and may become effective without any court action, whereas a summary dissolution of a marriage is initiated by the spouses’ joint filing of a petition in superior court and becomes effective only upon entry of a court judgment; in both instances, the dissolution does not take effect for at least six months from the date dissolution is sought, and during that period either party may terminate the summary dissolution. (§§ 299, subds. (a)-(c), 2400 et seq.)

Marriage, as more than a contract between two individuals, requires a judgment to dissolve. Domestic partnerships do not, which implies the state does not consider them to have the same import in society; they can be dissolved by mutual consent alone.

By this aspect, the state denies that domestic partnerships are a true family unit, and declares they are less important to the welfare of the state than marriages. In so doing, the state declares that gay and lesbian relationships are not crucial to society—unlike straight devoted relationships, which require solemnization to begin and judicial review to end.

6) Dissolving a marriage requires residency

Sixth, although a proceeding to dissolve a domestic partnership may be filed in superior court “even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed” (§ 299, subd. (d)), a judgment of dissolution of marriage may not be obtained unless one of the parties has been a resident of California for six months and a resident of the county in which the proceeding is filed for three months prior to the filing of the petition for dissolution. (§ 2320.)

Again, the state declares that same-sex couples are of less importance. In this case, the state is willing to dissolve a union between people not currently residing in the state—if they are of the same sex.

People not living in a state are not normally subject to that state’s laws, but the state will end a domestic partnership on request. A willingness to dissolve the legal relationship of some couples but not others indicates that those couples are less worth preserving.

Part of the residency requirements prevents a couple from divorcing in the midst of crisis or personal upheaval. By dissolving same-sex unions without this consideration, the state declares them more casual, more transient, less crucial to society.

7) Domestic partners ineligible for CalPERS long-term care insurance program

Seventh, in order to protect the federal tax-qualified status of the CalPERS (California Public Employees’ Retirement System) long-term care insurance program (see Sen. Com. on Appropriations, fiscal summary of Assem. Bill No. 205 (2003-2004 Reg. Sess.) as amended Aug. 21, 2003; 26 U.S.C. § 7702B(f)(2)(C)), the domestic partnership statute provides that “nothing in this section applies to modify eligibility for [such] long-term care plans” (§ 297.5, subd. (g)), which means that although such a plan may provide coverage for a state employee’s spouse, it may not provide coverage for an employee’s domestic partner; this same disparity, however, would exist even if same-sex couples were permitted to marry under California law, because for federal law purposes the nonemployee partner would not be considered a spouse. (See 1 U.S.C. § 7.)

As noted, this is written to fit a federal requirement. However, there’s no reason to include it; the domestic partnership parts of family code make no mention of federal income tax status, nor of Social Security.

This prevents this aspect of state law from be used to challenge federal discrimination—and in doing so, admits that it considers gay couples unworthy of all the benefits that are due to married couples

This proves that it’s not only the word "marriage" that the state withholds from domestic partners; it also denies that they deserve federal recognition, even if CA legislature has no ability to grant it.

8) Property tax exemption for spouse of deceased veteran

Eighth, an additional difference stems from the provisions of California Constitution, article XIII, section 3, subdivisions (o) and (p), granting a $1,000 property tax exemption to an “unmarried spouse of a deceased veteran” who owns property valued at less than $10,000; however, as the Legislative Analyst explained when this constitutional provision last was amended in 1988 (see Ballot Pamp., Gen. Elec. (Nov. 8, 1988) analysis by Legis. Analyst of Prop. 93, p. 60), few persons claim this exemption, because a homeowner may not claim both this exemption and the more generous homeowner’s exemption on the same property (Rev. & Tax. Code, § 205.5, subd. (f)), and the homeowner’s exemption is available to both married persons and domestic partners. (See § 297.5, subd. (a).)

"But nobody uses that law" is no reason to deny access to it to gay couples. If tax law changes, this could be the more valuable exemption.

This may be a denial of gay veterans, or a denial that their partnerships are due the same benefits as heterosexual marriages.

This also denies that gay couples suffer the same as hetero couples after the death of a partner. Benefits to unmarried widow/ers protect the bereaved by preventing a hasty new marriage from financial need rather than true devotion. The ineligibility of this benefit to same-sex couples implies they need no such protection--either because they do not grieve as straight people do, or because their relationships aren’t as important.

9) Putative spouse doctrine doesn't apply to putative domestic partners

Ninth, one appellate decision has held that the putative spouse doctrine (codified in § 2251) does not apply to an asserted putative domestic partner. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1172-1174.)

Another statement that gay relationships are not as important as straight ones. The putative spouse doctrine protects property rights & members of a nullified marriage who believed it was valid; different standards for nullified domestic partnerships imply one or all of the following:

1) A fraudulent domestic partnership is not as bad or important as a fraudulent marriage,
2) Gay victims of such fraud are not as deserving of protection as straight ones, and
3) Some aspects of domestic partnerships are not part of family law at all, but of standard business contract law.

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These show that the state of California does not treat domestic partnerships the same as marriage, nor equal to marriage. Instead, domestic partnerships are strongly implied to be a mere contract between individuals—not an essential unit of society that the state has an interest in encouraging and governing. They are not legally treated as family units equal in importance and social value to marriages.

• Domestic partners do not have the same rights: the right to commit to each other without residing together, to join in union as minors, to keep their relation confidential, to have their honest attempt to have a legal family relationship--even if technically flawed--provide some protection from damages.


• They do not have the same protections: judicial overview and residency for dissolution.


• They do not receive the same benefits: access to insurance policies and tax exemptions.


• They do not have the same obligations: the requirement for solemnization of a commitment ceremony.

Separate is not equal.
A declaration of equality does not create the reality.

References/Resources:

• In re Marriage Cases: 2008 ruling that established that all family partnerships, regardless of genders or orientations involved, have the right to the same name. 172 pages. Download at http://www.courtinfo.ca.gov/opinions/archive/Si47999.PDF
• Perez v Sharp: 1948 ruling eliminating anti-miscegenation law in California, establishing that mixed-race couples had a right to marry. Establishes that marriage is a right of individuals, not groups. 36 pages. Download at http://lmaw.org/freedom/docs/CA-Perez.pdf
• California Family Code: http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20 Relevant areas:
  Sections 297-299, regarding domestic partnerships
  Sections 300-536, regarding marriage
  Sections 700-1620, rights & obligations during marriage
  Sections 2000-2452, nullity and dissolution of marriage
• Articles Online
  Domestic Partnership vs. Marriage
  A More Perfect Union
  What's the Difference Between Marriage in California and Domestic Partnership?
  Domestic partnership in California

Comments

[sftallguy.livejournal.com]

Thanks - great post. The other item that people forget is that when an employer does offer Domestic Partner or other such benefits they generally require you to prove the fact that it exists and attest each year that it still exists. When was the last time a straight coworker had to prove that they got married or sign a form each year that said they were still married?