A More Perfect Union

Another thing that can be done to help smooth the way to eventual repeal of Proposition 8 is to make California’s domestic partnerships more like marriage.

This may seem counter-intuitive to some, and others may wonder why anything needs to be done to domestic partnerships at all. Let me address the second concern first.

Domestic partnerships are different than marriage. They are very similar, but not the same. It is clear, now, that the voters in California will not allow the two institutions to share the same name and ready recognition that goes along with the word marriage. But aside from that, there are some differences, of debatable significance. The following changes need to be made to the domestic partnership law in California to make a domestic partnership identical to a marriage.

  1. The requirement that domestic partners cohabitate before the DP will be recongize must be abolished. To do this, Family Code § 297(b)(1) must be repealed.
  2. Parental or judicial consent for a minor entering into a DP must be authorized. Family Code § 297(b)(4) must be amended, copying language from Family Code §§ 302-303.
  3. County clerks must assume responsibility for issuing DPs, and the statewide registry of DPs maintained by the Secretary of State must be abolished. No such registry exists for marriages. Family Code § 298.5(a-b) must be repealed and appropriate legislation enacted mirroring the authorization of a county clerk to issue a DP and transmit the original DP certificate to the State Registrar of Vital Statistics.
  4. Those prospective domestic partners who want to make their DP certificate, and the date of creation of their DP, not public knowledge must be provided with a means to do so. Such a procedure exists now for marriages (Family Code § 500 et seq.), largely to spare a couple who have held themselves out as being married, and maybe have had children together, the embarrassment of having to reveal that they were not married for a period time that they were publicly together. Such a procedure must be available to DPs, too.
  5. Dissolution of a DP must become necessarily protected and supervised by the courts. All divorces ending marriages must go through at least minimal judicial supervision and review, but a party seeking to dissolve a DP may do so in a summary fashion with a one-page filing with the Secretary of State. Some might think that this is an advantage of a DP over a marriage, but the judicial supervision creates a significant deterrent to, and remedy against, one party taking more than their share of the marital estate to disadvantage their former spouse. Thus, a summary DP “divorce” carries a greater risk than a marital divorce that one partner may be able to abscond with an unfair portion of the community estate’s assets. This potential ability to make a DP dissolution unfair needs to be eliminated.
  6. Marital divorces carry a venue requirement — the petitioner seeking a divorce must have been a resident of California for at least six months, and of the county in which the petition is filed for at least three months, prior to filing the petition for divorce. No such requirement exists for dissolving a DP in a judicial proceeding; neither party even has to be a California resident. This was enacted as a deterrent, or at least as a delay, against divorces. If marriages merit that effort by the law to seek to preserve them and promote reconciliation, then so do DPs.
  7. It is not clear whether a California court can dissolve a DP or a civil union issued by another state. California and other states that issue DP’s and civil unions need to enter into an interstate compact permitting one another’s courts to dissolve these non-marital unions as though they were marital divorces. (If it were marriage, we’d treat it like any other divorce, but it can’t be marriage thanks to Prop. 8.)
  8. A DP must be able to participate in his or her partner’s CalPERS health and retirement benefits on the same terms as a marital spouse would. As it stands, the DP of a public employee is not entitled to any share of CalPERS benefits, either during the existence of the DP or in the form of a residual community property interest in those benefits after dissolution of the DP. Now, it is true that CalPERS works in tandem with multiple Federal funding sources, and the Federal Defense of Marriage Act prohibits those Federal funders from providing money to benefit the DPs of California state employees. So, the exclusion of DPs from CalPERS particiaption set forth in Family Code § 297.5 must be repealed and modified, and to the extent that the Federal government refuses to provide those funds, the state of California must make up the difference out of its treasury.
  9. Similarly, the DP of a veteran must be entitled to the death and support benefits that the marital spouse of a veteran gets. Cal. Const, Art. XIII, §3(o-p). This can be accomplished in practice by statute rather than by an amendment to the Constitution, but it would be better if the Constitution did it to afford the DP the same dignity of Constitutional protection that a marriage gets. (Ah, there I go amending the Constitution again. Oh, wait. It wasn’t my side that amended the Constitution this time around…)
  10. Family law has a concept called the “putative spouse doctrine” related to the concept of “palimony.” No analogue exists for a DP. If there are going to be “putative spouses” who are entitled to support upon the end of their “putative marriage,” then there must also be a “putative DP” with similar post-relationship rights. Thus, the holding of Velez v. Smith (2006) 142 Cal.App.4th 1154, 1172-1174 must be abrogated by appropriate legislation.
  11. Same-sex couples who held marriage licenses abrogated by passage of Prop. 8 must be issued DP licenses free of charge, unless they already held DP licenses prior to getting married, in which case their old DP certificates must be reinstated retroactively as if they had never been superceded by the now-void marriage licenses. They obviously wanted to be together. A court can do this by way of exercising its power of creating common law, but it would be better if the Legislature did this, because the Legislature could more easily create an opt-out provision for those couples who feel that it has to be marriage and nothing else.

Some of this is technical and would only affect a very small number of people. But we wouldn’t have to concern ourselves with these things if gay people could just get married. This is what we would need to do in order to make a DP the real legal equivalent of marriage in California. See in re Marriage Cases (2008) Sup. Ct. Docket S147999 (abrogated by initative constitutional amendment, Nov. 4, 2008), slip op. 42-44 & n. 24.

So that’s what we need to do. Why should we do it? Two reasons.

First, we should do it because until and unless we can get the institutions merged into the single instution of marriage again, a gay couple is entitled to the exact same benefit of the law as a married couple. They can’t get that right now. We owe it to them to get as close as we can — especially to those 14,000 or so couples whose marriages have just been extinguished by the effect of a morally poisoned but nevertheless valid democratic process.

Second, we should do it because when the issue of merging the two institutions into marriage comes up again, the fact that there have been gay couples who have been together married in all but name will demonstrate that society can easily and harmlessly accomodate them. Calling a DP “marriage” will change nothing — nothing — about the legal, social, or economic reality of that relationship. So, why not call it marriage if that’s what is really is?

Yes, I know that a lot of SSM advocates consider the DP to be a poor and demeaning substitute for marriage. But thanks to the passage of Prop. 8, it’s the best we can do for now. For the indefinite interim period in which we cannot provide marriage to all people, we should at least make what they can get as close to the real thing as possible. By doing so, we will empircally demonstrate that these people are as entitled to marriage as anyone else, and eventually make general acceptance of same-sex marriage easier.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.