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
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
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
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
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
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
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
"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
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
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?