Over the last 25 years, numerous legal options have emerged for same-sex and opposite-sex couples wishing to legitimize their intimate unions in ways other than through heterosexual legal marriage. Four of these options are civil unions, same-sex marriages, reciprocal beneficiaries, and licensed domestic partnerships.
I. Legal Options
A. Civil Unions
B. Same-Sex Marriage
C. Reciprocal Beneficiaries
D. Licensed Domestic Partnerships
II. Current Controversies
Four states (Vermont in 2000, Connecticut in 2005, New Jersey in 2007, and New Hampshire in 2008) have implemented civil union legislation. In all four states, only same-sex couples are eligible to enter into a civil union; with the exception of sexual orientation, they must also meet the eligibility requirements for legal marriage. At the state level, civil unions are the functional equivalent of legal marriage in that they provide to couples all of the benefits and protections of marriage afforded to spouses. Due to the federal Defense of Marriage Act signed into law by President Bill Clinton in 1996, which defines marriage as consisting of the legal union of one man and one woman, these couples do not enjoy any of the benefits or protections at the federal level afforded to legally married couples. Furthermore, while nonresidents are eligible to form civil unions in these four states, only in New Jersey do they receive any legal acknowledgment, benefits, or protections associated with their unions (Vermont and Connecticut do not grant legal acknowledgment to civil unions contracted elsewhere; nor does any state without civil union legislation).
Legally dissolving a civil union involves the same process as dissolving a marriage: one partner must file for divorce. In Vermont, for example, at least one partner must reside in the state for a minimum of six months prior to filing for dissolution, and that partner must reside in Vermont for at least one year prior to the hearing date for final dissolution of the civil union. If a couple that entered into a civil union either relocates to or are residents of another state and they wish to legally dissolve their union, the lack of acknowledgement of civil unions in other states means that a legal divorce is difficult, if not impossible, to obtain. Indeed, two couples who entered into civil unions in Vermont currently are struggling to dissolve their unions in other states (one in Connecticut, initially heard before the court in 2002, and one in Texas, initially heard before the court in 2003). In both cases, decisions about whether the unions may be legally dissolved in these states are yet to be rendered.
Another legal option made available to couples living in five states (Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont) and the District of Columbia is same-sex marriage. The federal Defense of Marriage Act dictates that states are not required to legally recognize the same-sex marriages contracted in any other state, although most of the states that allow them also recognize them from other states. New Jersey legally translates these marriages, in addition to the legal same-sex marriages contracted in other countries (same-sex marriage was legalized in the Netherlands in 2001, Belgium in 2003, Canada and Spain in 2005, and South Africa in 2006), into civil unions if the couples relocate there and provides to these couples all of the state-level benefits and protections of legal marriage. Similar to civil unions, same-sex marriage in the states in which it exists grants to couples all of the benefits and protections afforded to legally married couples at the state level, but these couples do not enjoy any of the benefits or protections afforded to legally married couples at the federal level as a result of the Defense of Marriage Act.
A third legal option, available only in the state of Hawaii, is reciprocal beneficiaries. According to Hawaii’s Reciprocal Beneficiaries Law, implemented in 1997, same-sex couples, as well as unmarried relatives and friends of heterosexual and homosexual individuals legally barred from marrying each other, are eligible to register with the Hawaii Department of Health as reciprocal beneficiaries. Hawaii’s policy is unique because it extends eligibility to those not in an intimate union. The law grants some of the benefits of marriage to reciprocal beneficiaries, including property rights, protection under the state’s domestic violence laws, the ability to visit a beneficiary in the hospital and to make medical decisions for him or her, to sue for the wrongful death of a beneficiary, and to inherit property without a will. Because individuals in reciprocal beneficiaries are legally single, dissolving the relationship legally simply involves informing the Hawaii Department of Health of its termination.
Licensed Domestic Partnerships
A fourth legal option is licensed domestic partnerships. These partnerships were first instituted in Berkeley, California, in 1984 and were originally intended to grant public acknowledgment to the unions of same-sex couples. Local government officials at that time determined that unmarried opposite-sex couples also needed legal acknowledgment of their unions, particularly with regard to protecting the so-called weaker party in the relationship upon the dissolution of it; thus, eligibility for participation in licensed domestic partnerships was extended to them as well. Since then, a few other states (Nevada, Oregon, and Washington) have implemented domestic partnership ordinances, as have over a dozen counties and more than 50 cities. An analysis of the domestic partnership records provided by most locales (some do not release this information due to confidentiality concerns) indicates that most licensed couples are in same-sex unions. Several other states grant partial benefits to couples in domestic partnerships.
Domestic partnership ordinances typically define partners as two financially interdependent adults who live together and share an intimate bond but are not related by blood or law. Couples wishing to license their cohabiting unions complete an affidavit attesting that they are not already biologically or legally related to each other or legally married to someone else, that they agree to be mutually responsible for each other’s welfare, and that they will notify the local government records office if there is a change in the status of the relationship, either by dissolution or by legal marriage. Along with a fee, the affidavit is then submitted to the local records office or, in some locales, may be notarized to register the partnership. To dissolve a licensed partnership, one partner must inform the office where the partnership was registered. Within six months after this notification, an individual in most locales may then register another domestic partnership.
As noted, the first state to implement a domestic partnership ordinance was California in 1999; in that state, both same-sex and opposite-sex couples are eligible to become licensed partners, although the age-eligibility requirements differ. Specifically, both partners in a same-sex couple must be at least 18 years of age to become licensed partners. One partner in an opposite-sex couple, however, must be at least 62 years of age and meet eligibility requirements for old-age benefits under the Social Security Act. These differing eligibility requirements were implemented to encourage legal marriage among opposite-sex couples, while also recognizing that remarrying after the death of a spouse imposes financial costs in terms of reductions in Social Security benefits to those remarrying as opposed to remaining single. Upon implementation of the legislation, licensed domestic partners in California received a number of tangible benefits that the legally married enjoyed; since 2005, essentially all state-level rights and responsibilities of marriage have been extended to licensed partners.
In the state of Maine, both opposite- and same-sex couples are eligible to register as licensed domestic partners, with the same age eligibility requirements (both partners must be at least 18 years of age). To become licensed, both partners must be residents of Maine for at least one year. Licensed partners in Maine also enjoy limited benefits, including protection under the state’s domestic violence laws, the right to inherit property from a partner without a will, making funeral and burial arrangements for a partner, entitlement to be named the partner’s guardian in the event he or she becomes incapacitated, and to make decisions regarding organ or tissue donation for a deceased partner.
At least three of the dozen counties and 5 of the 50-plus cities that have implemented domestic partnership ordinances restrict eligibility to same-sex couples. Furthermore, in at least 13 locales, both partners must be either residents of the city or county or couples must include at least one partner who is an employee of the city or county. Thus, couples throughout the United States may become licensed domestic partners in many locales, although they do not reside there. Their home city or county will not acknowledge their licensed status, however, and they will receive no benefits or protections as a function of being licensed partners. Most locales, however, do not offer any tangible benefits or protections to licensed partners anyway, regardless of where the couple resides. The benefits granted by the handful of counties and cities that do provide them include health insurance coverage for a partner, visitation rights in hospitals and correctional facilities, and bereavement leave.
Those most concerned with the implementation of policies legitimizing various coupling options are divided along ideological lines to form two competing camps. The pro-marriage camp consists of those promoting legal marriage as the sole form of public acknowledgement of intimate unions. Individuals and organizations in this camp may be divided further into two classes: one that promotes heterosexual marriage and desires the exclusion of legal recognition of all other types of unions based on religious beliefs (referred to here as the religiously-oriented) and one that fears the institution of marriage, along with its beneficial aspects to men, women, children, and society, are threatened by legally acknowledging other forms of relationships (referred to here as the family decline–oriented). Specifically, those motivated by religious arguments assert that only heterosexual relationships within the context of legal marriage are natural or ordained by God and that recognition of same-sex unions and nonmarital forms of heterosexual unions undermines the inherent value of legal marriage and violates the will of God. They view marriage as much more than simply a civil contract; rather, it is a holy sacrament. Those motivated by concerns over family decline assert that there are tangible and emotional benefits to marriage that accrue only to individuals residing within the context of legal marriage and that all of society benefits from the well-being these individuals enjoy. Those in this class are concerned that legal acknowledgement of other forms of coupling undermines marriage as the so-called gold standard and that couples will be less likely to aspire to marriage as a result, leading to a host of social ills.
The other side involved in this debate, referred to here as the pro-inclusivity camp, advocates for legal recognition of both marital and nonmarital relationships. They assert that legal marriage for many couples is either unavailable or undesirable as an option to legitimizing a union. They argue that other forms of legitimization must be made available to these couples as a civil rights issue. Advocates of inclusivity argue that the well-being of men, women, children, and society would be advanced by the implementation of policies promoting their choices and protecting their interests, whereas denying them either the opportunity to legitimize their unions or forcing them into an all-or-nothing situation, where they must either marry and receive benefits and protections or not marry and receive no benefits or protections, harms the individuals in these families as well as the well-being of society.
The success of both the pro-marriage and the pro-inclusivity camps in promoting their views is mixed. As noted, an increasing number of locales are implementing legislation that grants acknowledgement to various forms of coupling. At the same time, however, an increasing number of states have implemented their own Defense of Marriage Acts or amended their state constitutions to define marriage as consisting of the legal union of one man and one woman. Currently, only 10 states do not have a version of this act or a substantively similar constitutional amendment.
Clearly, the most controversial issue surrounding the implementation of policies legitimizing various methods of coupling concerns public acknowledgment of same-sex unions. States in particular have struggled with determining what type of acknowledgment to provide, if any, and what terminology should be employed to grant this acknowledgment (e.g., civil unions, licensed partnerships). As noted, only four states have made legal marriage available to resident same-sex couples. Other states have attempted to strike a compromise in this debate by implementing similar legislation but referring to it as something other than legal marriage. The result of the compromise is that parties on both sides of the debate are left dissatisfied. Pro-marriage advocates are alarmed that the unions of same-sex couples are receiving any acknowledgement all; for many same-sex couples and their advocates, however, anything short of legal marriage is simply not enough, as marriage enjoys a cultural aura and subsequent social support that is bolstered by history and religion and that does not exist in any other form of coupling.
It is important to note that even homosexual individuals and organizations promoting their civil rights and well-being are divided on the issue of whether marriage should be extended legally to same-sex couples. Some argue for equal legal treatment between same-sex and opposite-sex couples, whereas others argue that legal marriage has never been an institution in which spouses, especially wives, enjoy equality and the benefits and protections of marriage that have been traditionally enjoyed by husbands. It appears, however, that most organizations serving as advocates for homosexual individuals and their intimate unions are fighting for access to legal marriage.
Although they receive much less public attention, heterosexual licensed domestic partnerships are also a source of controversy. Those promoting heterosexual legal marriage on the basis of family decline concerns argue that opposite-sex couples are engaging in a rational-choice approach to coupling, looking to attain the benefits of marriage while attempting to avoid its costs and obligations. For example, they assert that cohabiting couples, licensed and otherwise, wish to enjoy the financial benefits of marriage by sharing household expenses, while also maintaining financial independence from their partners. Similarly, they are looking to attain the companionship found in marriage while also desirous of more emotional independence from their partners than spouses have from each other. Those in the family decline camp assert that by licensing heterosexual cohabitation, and thereby encouraging couples to cohabit rather than marry, legal marriage is losing its social status as the ultimate method of coupling in society and is being redefined as simply one of several equally valid and valued coupling options. The repercussions, they argue, are significant: adults reduce their sense of commitment and are less likely to fulfill their obligations to others, leading to less security for both adults and children.
Advocates of licensed domestic partnerships, however, assert that emotional commitment and the sense of obligation to partners and children do not differ among licensed partners or the legally married. Instead, marriage is associated with liabilities that may be avoided in licensed partnerships without undermining the quality of or obligations in intimate unions. For example, in legal marriage, spouses are responsible for each other’s debts, whereas in licensed domestic partnerships, because the partners are legally single, the financial well-being of one partner is protected from the financial problems of the other partner. Because the partners reside together, the economic well-being of both partners and any children residing with them is protected. Similarly, marriage for some is associated with the oppression of women. Some women in licensed domestic partnerships believe that they are able to avoid what they see as the patriarchal nature of marriage by becoming licensed partners instead. As a result, they assert that they have attained equitable relationships that would not be possible in legal marriage.
In summary, civil unions, same-sex marriage, reciprocal beneficiaries, and licensed domestic partnerships provide some, but not all, of the legal benefits and protections of heterosexual marriage. As a result, these options are not, to date, the legal equivalent of marriage. Furthermore, these couples do not enjoy the social or cultural support promoting the maintenance of their unions that legally married couples enjoy. If indeed individuals in families engaging in nonheterosexual or nonmarital forms of coupling experience lower levels of well-being (and to date, research has not been conducted exploring this issue), the reasons should not be surprising.
Marion C. Willetts
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