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Marrying Apartheid
The Failure of Domestic Partnership Status
© March 6, 2011, Demian

In the wake of anti-gay votes and continuing opposition to legal marriage for same-sex couples, some activists and supporters have advocated domestic partner registration such as Vermont’s “Civil Unions,” as a more attainable objective. This is not the best tactic because of reasons both strategic and of principle. The stronger position requires continuing the pressure for the fully, equal, civil right of legal marriage.

Civil Union, or the numerous lesser-powered Domestic Partner Registrations, at first appear to be an attractive alternative. It seems more winnable — even opponents of legal, same-sex marriage have rhetorically proposed it as a “lesser evil.”

It nonetheless represents a system of apartheid, less heinous than South Africa’s, but similar in principle. It is plainly designed to treat one group of citizens in a separate and inferior manner despite their identical circumstances.

Many churches apply the same logic when they perform a marriage ceremony for an opposite-sex couple and call it a “marriage,” then employ an identical ceremony for a same-sex couple and call it a “commitment” or a “union” ceremony. It is an apartheid type of treatment.

As of March 2011, 9 countries, 1 city, 5 U.S. states and the District of Columbia allow same-sex couples the freedom to legally marry. [See the list below.] No other state or country provides, under any other name, same-sex couples the same range of protections, responsibilities, and benefits that come with civil marriage.

The U.S. government and about 38 U.S. states have made laws specifically declaring that they would not recognize a legal marriage license obtained by same-sex couples.

Nearly all industrialized nations — except America — offers some form of domestic partner registration. Substantial legal rights approximating marriage are offered by Denmark, Germany, Greenland, France, Iceland, Norway and Sweden. (The Netherlands continues to offer domestic partner registration as well as legal marriage.) But while the apartheid of registration is a generous one, it remains separate, unequal and therefore demeaning.

In the United States, domestic partnership programs have amounted to little more than tokenism. For example, consider the inequitable barriers to workplace health coverage for domestic partners, the most valuable benefits so far accorded. In order to qualify, many plans require a signed affidavit stating that the partners cohabit and are “mutually responsible for each other’s economic welfare.” Some require that the relationship has existed for six months or a year. Legally married couples applying for benefits face none of these barriers.

To be comparable to legal marriage, a domestic partnership policy would need to provide for 150-to-350 rights and responsibilities, depending on the couple’s state of residence. Further, it would need to activate at least 1,138 federally regulated rights and responsibilities that are triggered by legal marriage.
      [See: U.S. Federal Laws for the Legally Married.]

Furthermore, these benefits would need to be portable so that partnerships remain valid when crossing state lines. Otherwise, a couple’s right to hospital visitation would be rendered invalid should they have an accident while traveling out-of-state.

Registrations do not have any legal weight in the Federal sphere, and, as of March 2011, only California and New Jersey officially recognizes this kind of status from other states.
      [See California: Registration]
      [See New Jersey: Domestic Partnership Act]

A Vermont Civil Union has been recognized by one other state, for the purpose of a divorce. The judge who allowed it faces a voter initiative to have him removed form office.
      [See: Vermont: Civil Union]

Surely politicians supporting domestic partner benefits as a compromise have in mind only modest handouts — not the whole package. Practically speaking, a complete domestic partnership plan is highly unlikely, simply because of the number and complexity of laws. Further, if we manage to replicate all of the provisions of legal marriage, why then call it something other than “marriage?”

Hawaii’s modest “Reciprocal Beneficiaries” failed in the biggest benefit it was supposed to offer — workplace insurance — when Hawaii’s Attorney General ruled that benefit null.
      [Hawaii greatly expanded registration coverage in January 2012.
      See Civil Unions: The Hawaii Approach.]

The Texas Attorney General offered an opinion on December 16, 1999, when asked about Bexar County offering a registration, as is offered by Travis County. He said that such declarations of domestic partnership are neither “required or permitted by law to be recorded” because they are used by those seeking to “alter their political or juridical relations with others, or to impose legal burdens upon third parties” without legal standing.

Domestic partnership laws may be summarily dismissed by state Attorneys General, rather than deliberated in a court of law, or debated in public by legislative bodies. Domestic partnership policies are very fragile, and, unlike legal marriage law, may be extended or withdrawn, at will, by only one person in power.

The Hawaii legislature only considered domestic partner benefits in the first place because they hoped that doing so would avert a court ruling allowing legal marriage for same-sex couples. Had Hawaiian same-sex couples initially advocated domestic partnership, rather than suing for legal marriage, the benefits would never have been voluntarily proposed.

There seems little reason to abandon a strategy that is more prideful and more powerful. After all, any movement to enact even modest domestic partnership provisions will face the same protests and reactions as does the fight for legal marriage. We know that right-wing strategists have long considered partnership benefits a “wedge” for legal marriage.

They campaigned against benefits in the mid 80s, claiming it was part of a so-called “gay agenda,” many years before any national gay or lesbian organization supported legal marriage. They have also sued, or used a referendum, to successfully block benefits for government workers in:

Anchorage and the State of Alaska
Arlington County, Va.
Austin (Travis County), Texas
Brookline, Mass.
Boston, Mass.
Cambridge, Mass.
Columbus, Ohio
Hennepin County, Minn.
Houston, TX
Minneapolis, Minn.
Northampton (Hampshire County), Mass.
Philadelphia, Penn.
Sedgwick County, Kansas
A further concern is that domestic partnership may provide couples with greater liabilities than benefits. Municipalities typically charge couples $35-65 to register, yet deliver little-to-no benefits. Worse still, these registrations are a new legal construction and legal scholars fear that courts will rely on them in resolving a relationship dissolution or dispute.

For example, a registered partner could unexpectedly be held financial responsible for a former partner’s ongoing welfare — a responsibility undocumented in the original benefit contract. If it comes to that, couples will bear the responsibilities of marriage while receiving few, if any, of its benefits.
      [See: Governments Offering Benefits]

We deserve the civil right of marriage, which is otherwise offered to convicted killers, and even to adulterous, right-wing politicians. We deserve the right to be treated like full, adult citizens. Demanding instead a statewide or nationwide domestic partnership plan would marry us to an apartheid.

Governments that offer Full Legal Marriage

Netherlands (2001)
Belgium (2003)
Canada (2005)
Spain (2005)
South Africa (2005)
Norway (2009)
Sweden (2009)
Iceland (2010)
Argentina (2010)
Portugal (2010)
Denmark (2012)
France (2013)
New Zealand (2013)
Brazil (2013)
Uruguay (2013)
New Zealand (2013)
United Kingdom
(England, Wales, Scotland) (2013)
Luxembourg (2014)
Finland (2014)
Ireland (2015)
United States (2015)
Colombia (2016)
Germany (2017)
Taiwan (2017)
Malta (2017)
Australia (2017)
US States & Territories
U.S. Supreme Court, June 26, 2015 Ruling: All U.S. States must allow same-sex couples legal marriage.

Massachusetts (2004)
California (2008)
Connecticut (2008)
Iowa (2009)
Vermont (2009)
New Hampshire (2009)
District of Columbia (2009)
New York (2011)
Maine (2012)
Washington (2012)
Maryland (2013)
Rhode Island (2013)
Delaware (2013)
Minnesota (2013)
Illinois (2013)
Utah (2013)
New Jersey (2013)

Hawaii (2013)
New Mexico (2013)
Michigan (2014) - stayed pending legal challenge
Oregon (2014)
Wisconsin (2014) Arkansas (2014) - stayed pending legal challenge
Pennsylvania (2014)
Indiana (2014)
Nevada (2014)
Virginia (2014)
Oklahoma (2014)
Idaho (2014)
West Virginia (2014)
Alaska (2014)
Arizona (2014)
Wyoming (2014)
Kansas (2014) - stayed pending legal challenge
Florida (2014)
Colorado (2014)
North Carolina (2014)
South Carolina (2014)
Montana (2014)
Alabama (2015)
Native American Tribes

Coquille Tribe, Oregon (2009)
Mashantucket Pequot, Connecticut (2011)
Suquamish Tribe, Washington (2011)
Confederated Tribes of the Colville Reservation, Washington (2013)
Leech Lake Band of Ojibwe, Minnesota (2013)
Little Traverse Bay Bands of Odawa Indians, Michigan (2013)
Pokagon Band of Potawatomi Indians, Michigan (2013)
Santa Ysabel Tribe, California (2013)
Confederated Tribes of the Colville Nation, Washington (2013)
Cheyenne, Oklahoma (2013)
Arapaho, Oklahoma (2013)
Leech Lake Tribal Court, Minnesota (2013)
Puyallup Tribe, Washington (2914)
Wind River Indian Reservation, Wyoming (2014)
Keweenaw Bay Indian Community, Michigan (2014)
Colville Confederated Tribes, Washington (2014)
Central Council of Tlingit, Alaska (2015)
Haida Indian Tribes, Alaska (2015)

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