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This chapter is a basic introduction to a group of different kinds of policies which are all loosely referred to as "domestic partnership." The next chapter goes over some of the things you should consider in deciding which type of policy to propose.
Domestic partnership policies all involve an intimate relationship between two people who are not married, and usually are not related by blood.
There are three kinds of domestic partnership policies. Some proposals mix two or all three together. First, there are registration systems. A registration system is an official system for creating and ending domestic partnerships. A pure registration system doesn't do anything else.
Second, there are benefit systems. A benefit system gives something to a person simply because she or he is a domestic partner of another person. There are benefit systems which are financially significant and those which are not. An employer provided health plan which covers domestic partners is financially significant because it costs the employer and is usually worth a good deal to the domestic partner. A bargain-rate domestic partnership membership at a gym or a museum, or employer provided funeral leave plan is usually not very financially significant. As explained below, financially significant benefit plans have special requirements that other plans don't have.
Third, there are recognition systems. These are systems which take account of domestic partners because they are the closest person to someone else. Recognition systems are similar to benefit systems, but with recognition systems, the relationship and not the "benefit" is the most important thing. Recognition systems also usually aren't very financially significant. A policy allowing domestic partners to visit patients in intensive care units, or allowing employees to receive calls from domestic partners at work are examples.
Registration systems have two purposes. First, they give a form of official status to the relationship. For some people this is important in itself. For example, the voter-approved domestic partnership system adopted in San Francisco in 1990 was a "pure" registration system, with no benefits. Hundreds of couples registered on the day it took effect (Valentine's Day 1991). Moreover, the official status that goes with registration can be significant. If the registration system has people swear that they are in an intimate, committed relationship, it would be good evidence against a later claim that two people were just roommates or friends. This might have social and possible legal consequences.
Second, registration systems create a mechanism for institutions which want to voluntarily adopt benefit systems or recognition systems. They aren't essential; employers, hospitals, etc. can create their own definitions and documents if they want to. But institutions may be more willing to include domestic partners in benefits and particularly recognition systems if they don't have to create their own system or do much paper work. There also may be some value in having all institutions operating on the same definition.
Since the idea of a registration system is that it creates an official record of the relationship, only a government can create one. State governments definitely have the power to do it. Other governments may. Special agencies, like transportation authorities or water districts probably don't, since they usually can only do things related to their special jobs. They often can have benefit plans and recognition systems.
Some cities and counties can set up registration systems, others may not be able to do it. Cities and counties get their power from the states, and sometimes their powers are limited. Since pure registration systems don't really regulate anything, even some cities with limited powers to govern, which might not be able to pass broader civil rights policies, may be able to set up registration systems.
Since registration systems don't fit neatly into any of the existing legal rules about the powers of cities, you shouldn't accept the claim that the city doesn't have the power without further investigation. Every attack on a city's domestic partnership law except one has failed.
Since there aren't clear answers, you may want to urge the city to take a broad view of its powers and take a chance. Since pure registration systems don't have direct legal consequences, there isn't a great deal to lose.
Most institutions have the power to voluntarily adopt whatever benefit plans they want. However, if the institution uses insurance (as opposed to paying the costs itself, sometimes called "self insurance"), it may have trouble finding a company that will cover domestic partners. As health plans have become more regulated, some states have begun to regulate what they may and may not offer. If the federal government adopts a comprehensive health care reform system, it may greatly regulate the terms of health plans.
Government agencies may be even more limited. They sometimes receive their health and pension plans from the state government, and these often are not flexible about terms.
However, be wary of the claim that an institution can't adopt a domestic partnership benefit plan. The claim is made far more often than it is true. Get your lawyer to look into it.
Moreover, most employers can provide at least some health care even if it can't add domestic partners into its plan by buying roughly equal individual health plans for domestic partners (government agencies may again be a little more restricted here).
At the time this was written, neither cities nor states had the power to require private employers to include domestic partners in health or pension plans. A federal law said they could not do that with any financially significant employment benefit plan. If you aren't sure whether a benefit you want to have a city or state require is covered by this federal law, seek legal help.
Most institutions can adopt whatever voluntary recognition systems they want to have. One exception is that an agency administering a federal or a state program may not be able to recognize a domestic partnership unless the federal or state government allows it. So, for example, a county social service agency probably cannot recognize domestic partners as a family for food stamps (typically with social service programs, there aren't any advantages to that anyway).
Again, be skeptical about claims of powerlessness here. Most federal housing programs, for example, do allow local agencies to recognize domestic partners as family if the agency wants to do it.
States have considerable power to require institutions to adopt recognition systems. So, for example, most states could tell doctors to consult domestic partners for health care decisions for people who cannot make their own. States could tell tennis clubs to include domestic partners in family plans. Some cities and counties may be able to require recognition systems as well. It depends on the city's power to regulate, and whether or not the state has taken over an area of regulation.
There have been a couple of proposals for "extended family" registration systems. The idea is that a group of people who consider themselves family could register as such. There are two problems, the second of which is very serious.
The first problem has to do with logistics. These plans won't work for "couples" focused benefit plans (like health or pension plans) or for recognition systems which are aimed at primary relationships. And it is difficult to make them work. What if two people have a falling out? Can the rest of the family expel one member? If one member decides to leave, does the family continue or does it need to reregister?
Much more serious is the problem of adults and children. A few proposals have sought to address the problem of co-parents who are not legally recognized as parents. These proposals usually purport to make the adult responsible for the child, financially and otherwise, and to create a right for both the adult and the child to continuing contact with each other even if the co-parents cease to consider themselves family.
But domestic partnerships and alternative families are basically agreements among the members. And while many states will allow an adult to make an agreement taking on financial responsibility for a child, few will permit an agreement to treat an adult who is not a parent as if he or she were.
At best, these provisions are meaningless. They are likely to prove a cruel disappointment if put to the test. Worse, they may result in binding the co-parent to financial responsibility without creating any other enduring relationship.
Perhaps worst of all, people may think that they don't need to take other steps to establish their co-parenting relationships.
>> Next: 2. Deciding What Kind
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