While the quest for marriage equality goes forth, many wonder (justifiably) what the differences are among domestic partnerships, civil unions and marriage.
Throughout the years, dictionaries have struggled to define “marriage.” The 2010 American Heritage Dictionary defines marriage as “[t]he legal union of a man and woman as husband and wife and, in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other.” The 2005 online version of the American Heritage College Dictionary defines marriage as “[t]he legal union of a man and woman as husband and wife; a union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage … a close union.” The 1993 hard-copy edition that I found of the same dictionary fails to mention “same-sex marriage” all together. It defines marriage as “[t]he legal union of a man and a woman as husband and wife.”
There are many state and federal benefits that married couples, as opposed to nonmarried couples, enjoy. For example, a married couple can file joint tax returns; inherit a deceased spouse’s property without tax consequence; and use the homestead protection, in which the couple’s home is protected from creditors when one spouse dies.
Partnerships vs. civil unions
The difference between domestic partnerships and civil unions is unclear and sometimes non-existent. A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage or civil union. Domestic partnerships tend to fall into two categories: 1) same-sex couples whose relationship is recognized by the state or local jurisdiction in which they live, or 2) same-sex couples who claim they are in a committed relationship to obtain work-related benefits that are available to heterosexual married employees. It varies but, typically, to obtain status as domestic partners, same-sex couples register with the relevant state or local jurisdiction. Registration alone does not give couples additional rights or benefits, but it is a first step in recognizing their relationship publicly.
Currently, Hawaii, Colorado, Maryland, Rhode Island, Maine, Oregon, Washington, Nevada, California and Wisconsin all have some form of domestic-partnership laws. In addition, cities such as Philadelphia, New York City and San Francisco provide some combination of registration and domestic-partner benefits.
New Jersey and Connecticut recognize civil unions. However, it is important to note that as of October 2010, Connecticut will only recognize marriage. Civil unions are state-sanctioned relationships that convey many of the benefits of marriage without calling it marriage. While civil unions are a start, they do not offer all the rights that marriage offers. Because of this, the New Jersey Supreme Court held that same-sex couples must be given the same rights under civil unions or marriage, even if the word “marriage” is not used.
Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and, most recently, the District of Columbia allow gay marriage. However, due to other states and laws and the federal Defense of Marriage Act, these marriages may not be recognized as valid in other states and are not recognized by the federal government.
DOMA prevents same-sex couples who are married, in a civil union or a domestic partnership from taking advantage of federal protections that are available to all married heterosexual couples. Some of these are the right to take family leave when one partner is ill, the acceptance of Social Security benefits of a deceased partner and joint tax-filing benefits. Last year, President Obama took a small yet important step toward undermining DOMA by signing a memorandum extending benefits such as visitation and dependent-care rights to the same-sex partners of federal employees.
Court decisions
Some see domestic partnerships and civil unions as a step forward. However, others view it as government-sanctioned inequality, comparing the laws to “separate but equal” in our civil-rights history. So far, courts in Massachusetts, California and Connecticut have weighed in on the issue. These courts agreed that “names matter” and that nominal differences were unconstitutional. By labeling a group with a special designation, a state relegates it to second-class status. As the Connecticut court stated, “A mere difference on nomenclature” was a “form of separate but equal segregation” that only seeks to perpetuate and formalize discrimination against gays.
Other courts have reached a different outcome. As mentioned above, in “Lewis v. Harris,” the New Jersey Supreme Court held it was unconstitutional to withhold the benefits and responsibilities from same-sex couples, but did find that the use of the word “marriage” was unnecessary.
One major difference between marriage and either civil unions or domestic partnerships is that due to DOMA, the federal government only recognizes marriage, and so only legally married same-sex couples have legal standing to challenge DOMA.
The terminology for same-sex unions is constantly evolving, and the rights and responsibilities conferred vary widely by jurisdiction. As the fight for equality rages on, leaders in the LGBT community may have a choice to make: Do they push for change, including domestic partnerships and civil unions, or solely push for same-sex marriage? These early judicial decisions show that the jury is still out on which legal strategy would ensure equality.
Angela Giampolo, principal of Giampolo Law Group, has offices in Pennsylvania and New Jersey and specializes in LGBT, business, real-estate and civil-rights law. Her website is www.giampololaw.com and she blogs at www.phillygaylawyer.com. Send her your legal questions to [email protected] .