Who's In and Who's Not:

Some Questions to Consider as Vermont
Ponders Whether to Pass an Inclusive or
Restrictive Domestic Partnership Law

by Thomas F. Coleman, Esq.

There is a major issue for the Vermont Legislature to decide as it responds to the challenge posed by the Supreme Court's decision in Baker v. State.  Will domestic partnership become a new legal institution restricted to same-sex couples or will it be open to other unmarried adults who are willing to assume the legal and economic obligations associated with the new law?

This is an important question which deserves careful consideration.

Census data reveal that unmarried couple households in the nation are 70% opposite sex and 30% same sex.  Gender-neutral domestic partner benefits programs show similar results, with about two-thirds of participating employees having heterosexual relationships and one-third having homosexual relationships.  Will Vermont enact a domestic partnership law which excludes the majority of domestic partners? 

The concept of domestic partner benefits was introduced in Vermont many years ago with the advent of a new employee benefits program at Ben & Jerry's, the famous ice cream company.  That program was, and still is, open to all domestic partners regardless of gender.  A few Vermont cities, such as Burlington and Middlebury, adopted a similar program for municipal employees.  Again, a decision was made to include unmarried heterosexual couples as well as same-sex partners.   Eventually, the State of Vermont itself adopted a domestic partner benefits program for state workers.  That program is also gender-neutral.  Will this tradition of inclusiveness end with the passage of a sexist domestic partner law limited to same-sex couples?

It should come as no surprise that gender-neutral domestic partner programs and laws are a goal of the National Organization for Women.  On January 25, 1999, Patricia Ireland, national president of NOW, wrote the following letter to the Governor of Hawaii:

"I am writing to encourage you to endorse passage of a comprehensive, gender-neutral domestic partnership act in Hawaii. I am sure you are aware that the National Organization for Women is committed to the rights of all women and believes that equal benefits should be granted to all domestic partnerships, regardless of sex or sexual orientation.

The passage of this act will pave the way for other states to introduce and enact similar legislation. States should no longer deny same-sex partners legal benefits equivalent to marriage or force opposite-sex partners to marry to legitimize their families. Simply put, states should be in the business of supporting families, not limiting them.

Through the passage of a gender-neutral, comprehensive domestic partnership act, families will no longer face an uncertain financial future due to catastrophic illness or death; nor will the children of domestic partners be denied coverage for their health and welfare.

I hope that you will support the proposed legislation."

Many seniors organizations also support domestic partnership programs and laws that are open to all unmarried adults, not just gays and lesbians.  For example, the American Association of Retired Persons (AARP) instituted a gender-neutral domestic partner program for its own employees.  The California Chapter of AARP lobbied for years for the passage of a statewide registry for domestic partners.  The California Congress of Seniors, which represents more than 500,000 older adults in California, insisted that domestic partnership should be open to opposite-sex as well as same-sex couples.  The group achieved this result when a new registration law was signed by the Governor last year. 

Will the Vermont Legislature ignore the position of groups like NOW and AARP by excluding opposite-sex partners from the new legislation?  If so, why? If unmarried heterosexual couples are willing to assume the obligations imposed by the new law, why should they not reap the "common benefits" it would afford them?

Some would argue: "Let them get married if they want protections and benefits."  This argument is premised on a lack of understanding as to why many heterosexual couples do not marry and instead want domestic partnership.  There are a variety of economic, religious, philosophical, political, and other personal reasons why opposite-sex couples may choose domestic partnership. 

If unmarried heterosexual couples are willing to assume all of the obligations of domestic partnership, which would include all of the state-law obligations of marriage, then what policy reason exists to exclude them from the domestic partner law?  For a further discussion of this point, see: "What's Wrong with Excluding Opposite-Sex Couples from Domestic Partnership."

Unmarried blood relatives cannot legally marry each other.  So why would they be excluded from a domestic partnership law?  Is there something about the sexual relationship of two men or of two women which makes a gay or lesbian relationship more valuable or worthy of protection than the relationship of two unmarried blood relatives?  

Since Vermont is creating the first statewide comprehensive domestic partnership law in the nation, why does a presumption of sexual conduct have to be built into the law?  Could not domestic partnership be based on a primary-family-partner model rather than on a marriage-sexual-relationship model?

Removing the presumption of sexual conduct from domestic partnership could have helpful political consequences.  Some religious opposition might be withdrawn or reduced by such a move. 

For example, when SB 118 was amended by California Senator Tom Hayden to include any two unmarried adults who meet the criteria, the association of Catholic bishops withdrew its opposition and actually supported this domestic partnership bill.  

Also, the Archbishop of San Francisco found a way to comply with the city's new nondiscrimination law which required contractors and grant beneficiaries to give the same benefits to domestic partners are they give to spouses.  Catholic Charities broadened its benefits plan to allow each employee to select one adult household member for benefits, whether a spouse, a domestic partner, or a blood relative.

Several large corporations have since followed this broad and inclusive model.   Bank of America was the first to create an extended family benefits program, open to a domestic partner of either sex or a dependent blood relative of the employee.   That plan has been copied by Nations Bank, Bank Boston, Merrill Lynch, and Prudential Life Insurance.

Is cost a reason to limit a new domestic partnership law to same-sex couples?   Studies show that costs associated with gender-neutral benefits plans are minimal with only about one percent of employees signing up.   Plans that include blood relatives show an additional increase in enrollment of about four-tenths of one percent (0.4%).  One would expect that participation in a comprehensive domestic partner legal system would be even smaller, considering the wide range of obligations imposed on partners as compared with minimal obligations in an employee benefits plan.

An article published by the Boston Globe on February 21, 2000, suggested that gay rights advocates oppose an inclusive domestic partnership law because a gay-only law would show societal recognition of same-sex relationships.  That political message, they believe, would be diluted if others are allowed to participate.  Should the Legislature adopt a "gay rights" goal as its own, or should a broader range of nonmarital family relationships receive the same "common benefits" as gay and lesbian couples who sign up under the new law?

Besides, many gay rights leaders and organizations support inclusive and gender-neutral domestic partnership laws and programs.  For example, the Log Cabin Clubs of California registered its opposition when some politicians tried to turn a gender-neutral domestic partner bill into a "gays only" measure last year. 

The National Gay and Lesbian Task Force has taken a strong position favoring inclusive domestic partnership programs open to heterosexuals and same-sex couples alike.   Kerry Lobel, executive director of the Task Force said this in an op-ed article released on May 11, 1999:

"And these benefits are not limited to the GLBT community; domestic partnership recognizes the importance of allowing individuals to define their own family structures for themselves, and facilitates the equal treatment of each and all.  In working toward domestic partnership, we stand with our unmarried heterosexual, aging, and disabled allies, and others who may choose not to marry for a variety of reasons."

Urvashi Vaid, director of the Policy Institute of the National Gay and Lesbian Task Force was even more forceful in her defense of gender-neutral domestic partnership, stating in a letter to Spectrum Institute on October 23, 1998:

"The benefits of domestic partnership should not be restricted to gay, lesbian, bisexual and transgendered people.  Instead, domestic partnership should be a vehicle through which the traditional family definitions are redefined to include a wider variety of families, including heterosexual unmarried couples.  Just as discrimination based on sexual orientation is wrong, discrimination based on marital status is wrong.

The overwhelming majority of municipalities in the nation with domestic partner registries or employee health benefits programs have chosen the inclusive method by adopting gender-neutral plans.  Most private-sector companies have done the same. 

The international trend also is moving toward gender-neutral domestic partnership laws.   Belgium's new Cohabitation Contract Law is open to any two adults, regardless of gender or blood relationship.  In France, a new Contract of Civil Union law confers many of the benefits and obligations of marriage on same-sex or opposite-sex unmarried couples who register with local municipal clerks.  The federal government in Canada introduced a bill on February 11, 2000, to amend 68 federal laws to give benefits and protections to domestic partners.  Unmarried same-sex couples and opposite-sex couples are treated the same in this sweeping measure.  Will Vermont join these leaders in the international community by respecting the human rights of all domestic partners regardless of the gender of the partners?

No state in this country has adopted a "gays only" domestic partnership benefits program.   As mentioned above, Vermont has a gender-neutral program for state employees.   Oregon and New York are also completely gender-neutral in their domestic partner employee benefits plans.  California considered, and then rejected, a law limited to same-sex partners.  Within the last few months, Los Angeles and Seattle adopted city contractor nondiscrimination laws that require contractors to offer gender-neutral domestic partner benefits to their own employees.  Does Vermont want to build upon a national domestic partnership system that is primarily gender-neutral or will it create a sexist model that bucks this trend of inclusivity?

These are some of the policy questions which must be addressed by the Vermont Legislature.  Local gay rights advocates who favor same-sex marriage in Vermont do not seem to be asking these questions.  Neither are the religious organizations which oppose any reform whatsoever.  But legislators such as Alice Nitka and John Edwards have grappled with these issues and have concluded that inclusivity is the best policy for the state. 

In time, each member of the Legislature must confront these questions head on.  Inclusive or restrictive?  Which direction for Vermont?