Domestic Partnerships, Post Same-Sex Marriage

Jonathan Evans

Jonathan Evans

Unless you’ve been abstaining from news lately, you know that last month the U.S. Supreme Court decided that all couples in America have a fundamental right to marry, regardless of sexual orientation. The Obergefell v. Hodges decision was announced right before the annual San Francisco Pride festivities. SF Pride was even more exuberant than usual, as thousands of people took to the streets and celebrated the hard-fought constitutional victory. However, in much of the hoopla surrounding the celebration of marriage equality, the future of California’s domestic partnership law has been overlooked.

Before marriage was available to all, California attempted to remedy the situation in 1999 by offering a domestic partnership registry. The law initially allowed registered domestic partners only a few of the privileges associated with “traditional” marriage, including hospital visitation and the right to be next of kin for a deceased partner. In 2012, the state Legislature expanded the rights associated with domestic partnerships to include all of the rights associated with marriage under state law, including the right to make health care decisions and the right to take the other person’s last name. However, to qualify for a registered domestic partnership, a couple is required to be same sex or, if opposite sex, have at least one partner older than the age of 62.As of today, this is still the law in California. Obergefell calls into question the state of California’s domestic partnership law: If marriage is available to all, why continue with domestic partnerships?

According to California Secretary of State Alex Padilla, the Obergefell ruling “did not invalidate or change any of the California Family Code sections related to registered domestic partners.” “Domestic partnership registrations are different from marriage licenses,” Padilla says. The secretary of state’s office will continue to process declarations of domestic partnerships, while county governments process marriage licenses. This leaves the current state of domestic partnership law in quite a conundrum.

There are three possibilities for the domestic partnership law. First, the law could stay as it is. Or, the law could be amended, removing same-sex couples from domestic partnerships and leaving elderly opposite-sex couples as the only eligible domestic partners. Alternatively, the law could be changed to allow opposite-sex couples of any age the right to choose domestic partnerships instead of marriage. The latter option is the proper route.

If California’s domestic partnership law stays as-is, the equal protection right of opposite-sex couples will be violated. Same-sex couples of any age would have the right to marry or be registered domestic partners. Opposite-sex couples with both partners younger than 62 would have only the option of marrying to attain marital rights and privileges. The Constitution guarantees all citizens the equal protection of law, and such an imbalance runs afoul of that guarantee. The justification initially given for the exclusion of opposite-sex couples younger than 62 was to encourage opposite-sex couples to choose “traditional” marriage. In light of the Supreme Court’s recognition of a fundamental right to express one’s identity through personal choices including marriage, if California’s domestic partnership law remains unchanged post-Obergefell the rights of opposite-sex couple would be violated and more lawsuits will follow.

In the court of public opinion, removing same-sex couples from the domestic partnership law would be met with stiff resistance. Potentially thousands of current domestic partners could be forced to marry to maintain their rights and privileges. Even if existing domestic partnerships remained valid, the truncation of the domestic partnership avenue for same-sex couples would look and feel like the abridgement of a currently held right. None have suggested in the LGBT community a willingness to sacrifice the institution of domestic partnership in exchange for the institution of marriage. Rather, the rallying cry has been #MarriageEquality. Even though not obvious at first glance, that rally cry includes, as a corollary, #DomesticPartnershipEquality.

Thus, the best option for California’s Legislature is to amend the domestic partnership law to allow opposite-sex couples of any age the right to choose domestic partnerships instead of marriage. If, as Justice Anthony Kennedy stated, “the right of personal choice regarding marriage is inherent in the concept of individual autonomy,” then the choice not to get married is certainly also inherent to our ability to make life decisions for ourselves. Many people of all sexual preferences find marriage to be a heavy burden, precisely because it’s marriage. The petitioners in Obergefell won Kennedy’s support because of their respect for the importance of the marital bond. Their victory should not only bestow upon same-sex couples the right to marry, but also lift the bar for domestic partnerships for opposite-sex couples. In respecting the importance of the institution of marriage, an option should be available to couples that may find that, while they desire certain rights and privileges that embody a shared life together, the decision to get married is a step they are currently unwilling to take.

Jonathan D. Evans is a civil rights attorney with The Cochran Firm California in Los Angeles. Follow him @JEvansJD.