BILL ANALYSIS
AB 25
Page 1
Date of Hearing: March 13, 2001
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 25 (Migden and Hertzberg) - As Amended: March 8, 2001
SUBJECT : DOMESTIC PARTNERS
KEY ISSUES :
1)SHOULD THE GROUP OF INDIVIDUALS WHO MAY REGISTER AS DOMESTIC
PARTNERS BE EXPANDED TO INCLUDE OPPOSITE SEX COUPLES WHERE
ONLY ONE INDIVIDUAL, RATHER THAN BOTH, IS OVER THE AGE OF 62?
2)SHOULD VARIOUS NEW LEGAL RIGHTS BE CONFERRED ON REGISTERED
DOMESTIC PARTNERS, TO THE SAME EXTENT THAT SUCH RIGHTS ARE
GUARANTEED TO MARRIED COUPLES?
SYNOPSIS
This Bill, Which Is A Compilation Of Several Domestic
Partnership Bills From Last Session, Seeks To Expand The Group
Of Individuals Who May Register As Domestic Partners By
Including Opposite Sex Couples Where Only One Individual, Rather
Than Both, Is Over The Age Of 62. The Bill Also Seeks To Confer
Various New Legal Rights On Registered Domestic Partners,
Including Rights Pertaining To Health Insurance Availability,
Tax Preferences For Health Coverage, And Medical
Decision-Making, As Well As The Right To Take Sick Leave, To
Collect Unemployment Insurance Benefits, To File A Claim For
Disability Benefits, To Participate Fully In Conservatorship
Proceedings, And To Bring An Action And Recover Damages For
Wrongful Death And Emotional Distress. The Bill Confers Such
Rights Only To The Extent That Such Rights Are Guaranteed To
Married Couples.
SUMMARY : Expands the group of individuals who may register as
domestic partners, and confers various new legal rights on all
registered domestic partners. (All further references to
domestic partners refer to registered domestic partners.)
Specifically, this bill :
1)Expands the group of individuals who may register as domestic
partners to include opposite sex couples where one or both of
the persons are over the age of 62. Current law allows
AB 25
Page 2
opposite sex couples to register as domestic partners only
where both partners are over the age of 62.
2)Requires health plans and disability insurers to offer
employers coverage for domestic partners of employees, in the
same manner as other dependents. If an employer elects to
provide coverage of domestic partners through a group health
plan or a group disability insurer, the bill requires that the
health plan or disability insurer that provides hospital,
medical or surgical expense benefits for employees also enroll
domestic partners in the same manner as other dependents.
3)Extends to domestic partners the same state tax preferences
for health care costs that are available to spouses and
dependents of employees.
4)Authorizes a domestic partner, to the same extent as a spouse,
to file a claim for disability benefits on behalf of his or
her partner when the partner is mentally unable to file the
claim. This right extends only where there is no other
legally authorized representative of the disabled person.
5)Authorizes an employee who would be entitled to use sick leave
to care for a child, stepchild, parent or spouse, to also use
his or her sick leave to care for a domestic partner, or a
child of the domestic partner.
6)Extends to a domestic partner the same entitlement as a spouse
to receive unemployment benefits if the reason for leaving his
or her employment is to move with a domestic partner to a new
location from which it is impractical to commute.
7)Extends to domestic partners the right currently given to
family members and others to make medical treatment decisions
on behalf of a partner if the partner is in a health facility
and is incapable of giving informed consent.
8)Authorizes a domestic partner to participate fully and have
standing to appear in conservatorship proceedings and be
appointed as conservator in the same manner as the spouse of a
conservatee or proposed conservatee.
9)Allows a domestic partner the right to inherit property if one
partner dies without a will, and to be appointed as
administrator of his or her deceased partner's estate, in the
AB 25
Page 3
same priority position as a surviving spouse.
10)Revises the statutory will form to include domestic partners
in the class of beneficiaries to whom a testator may leave
assets and property.
11)Authorizes a domestic partner to bring a cause of action and
recover damages for negligent infliction of emotional distress
and wrongful death, to the same extent that spouses are
entitled do so under California law.
EXISTING LAW : Sets forth procedures for the establishment,
registration and termination of a domestic partnership between
unmarried, opposite sex couples over the age of 62 or same-sex
couples at least 18 years old. (Family Code section 297 et
seq .) Under this scheme, registered domestic partners are
granted limited rights in the areas of hospital visitation
(Health and Safety Code section 1261) and health benefits if one
of the partners is a state worker. (Government Code section
22867 et seq .)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill seeks to expand the group of individuals
who can register as, and confer a number of new legal rights on,
domestic partners, to the same extent such rights are guaranteed
to married couples. In commenting on the need for this measure,
the author states:
"[U]ntil the enactment of AB 26 in 1999, same sex
couples and their families received no recognition
under California law. Even with the enactment of the
domestic partner registry with hospital visitation
rights and health benefits for public employees, few
substantive benefits are available to domestic
partners who register. [This bill] would extend to
domestic partners substantive legal and economic
benefits that married spouses enjoy. These are basic
protections such as health insurance coverage for many
private sector employees, an end to state taxation of
domestic partner health benefits, the right to medical
decision making in the hospital, recognition of
domestic partners under the state's inheritance laws,
the right to sue for economic loss and emotional
distress caused by the death of a partner, the ability
AB 25
Page 4
to use sick leave to care for their families, and
other important rights."
Background . About ten years ago, the Legislature appointed a
Joint Legislative Task Force on the Changing Family to study the
evolving nature of the California family, and to make
recommendations to the Legislature as to how the needs of the
state's changing families could be better met. The task force
found that the traditional structure of the family, as it was
known in the 1950s and 60s, had indeed changed over the years.
Today, the traditional "nuclear family" no longer describes the
majority of families in California. Instead, the concept of
"family" has been extended to include stepparents, grandparents,
parents-in-law, and, in many cities, domestic partners.
Children are relating to multiple families, as their biological
parents get divorced, remarry and create new, extended families.
Already the U.S. House of Representatives, hundreds of cities
and municipalities, colleges and universities, private
employers, and labor unions recognize and/or provide benefits to
domestic partners. In California, among the local governments
with domestic partnership policies are the Cities of Alameda,
Berkeley, Laguna Beach, Los Angeles, Oakland, Petaluma,
Sacramento, San Diego, Santa Barbara, Santa Cruz, West
Hollywood, City and County of San Francisco, the Counties of Los
Angeles, Marin, San Mateo and Santa Cruz, and the Santa Cruz
Metro Transit System. Ten university systems, including the
University of California, have similar policies. In addition,
in California's private sector, over 100 for-profit,
not-for-profit and union organizations have chosen to provide
benefits to domestic partners.
California's Narrow Domestic Partnership Law . In 1999, the
Legislature enacted and Governor Davis signed into law AB 26
(Migden), 1999 Stats., Ch. 588, California's first domestic
partnership statute. AB 26 defines domestic partners as "two
adults who have chosen to share one another's lives in an
intimate and committed relationship of mutual caring" and who
file a Declaration of Domestic Partnership with the Secretary of
State. (Family Code section 297.) The only persons who may
register as domestic partners are same sex couples over the age
of 18, or opposite sex couples over the age of 62, who are not
blood relatives, not married to others, not members of another
domestic partnership, and who share a common residence, and
agree to be jointly responsible for each other's basic living
AB 25
Page 5
expenses incurred during the partnership.
AB 26 narrowly defines the legal effect of creating a domestic
partnership and expressly provides that registration of the
domestic partnership does not establish any rights except those
specifically provided in legislation, and that upon termination
of the partnership the partners shall incur none of the
obligations to each other that the bill would establish.
(Family Code section 299.5.)
Proposition 22 - California's "Defense of Marriage Act" . In
1996, Congress passed and President Clinton signed into law H.R.
3396, the so-called "Defense of Marriage Act," which allows
states to refuse to recognize same-sex marriages should they
ever become legal in another state. On March 7, 2000,
California voters passed Proposition 22 by a margin of 61-39%.
Proposition 22 added Section 308.5 to the Family Code, to read:
"Only marriage between a man and a woman is valid or recognized
in California." Similar "defense of marriage" acts have been
passed in over 30 states.
Recent Polls Suggest Strong Public Support for Expanding Rights
of Domestic Partners . According to the sponsor, a 1997 Field
Poll showed "a strong majority of Californians (ranging from 59%
to 67%) support domestic partners living together in a loving
and caring relationship to have many of the same rights married
couples enjoy, including medical power of attorney,
conservatorship, and financial dependence status granting
domestic partners such benefits as pensions, health and dental
care coverage, family leave and death benefits." The sponsor
also cites a Decision Research poll conducted last year which
shows that "a majority of California voters believe that gay and
lesbian couples are entitled to basic protections." Under this
poll, the sponsor claims, "69% of voters believe that gay and
lesbian couples suffer obstacles and hardships because they lack
the legal protections, benefits, and responsibilities currently
afforded by state law to legally married different-sex couples."
Similarly, several editorials called for this very sort of
legislative action in the wake of Proposition 22's passage. The
San Francisco Examiner noted that: Proposition 22's "backers
promised that it was not an opening wedge to deny gays other
rights. Taking them at their word, we invite them to join a
crusade to obtain those rights - to gain for gays and their
AB 25
Page 6
partners the same rights they would enjoy if they were married,
only without the marriage ceremony." ("Alternative to gay
marriage: Proposition 22 denies legal recognition to same-sex
marriages, but the fight for equality for gay couples shouldn't
stop," San Francisco Examiner, March 10, 2000.)
In a similar vein, the San Jose Mercury News recently issued an
editorial in support of this bill, opining that "[t]oo few
benefits flow from [domestic partner] registration. It doesn't,
for example, give one partner any rights to inherit the other's
property when there's no will. ? One positive outcome of the
debate over Proposition 22 ? was that Californians told
pollsters that they supported legalizing other protections for
gay couples. Now it's time for Californians to make good on
that. ("Second Step Toward Equality," San Jose Mercury News, p.
6B, January 2, 2001.)
Significant Domestic Partnership Legislation in Other States .
In response to an ongoing suit which sought to establish the
right to same-sex marriage ( Baehr v. Anderson ), the Hawaii State
Legislature recently enacted the Reciprocal Beneficiaries law
(House Bill 118 - Act 383 of 1997) which extends certain
benefits to gay and lesbian couples that are legally prohibited
from marrying one another. Among the benefits provided under
this law are inheritance rights, the right to bring claims for
wrongful death and other torts, public employee health and
retirement benefits for domestic partners, and the right to
consent to postmortem exams.
In December 1999, a unanimous Vermont Supreme Court ruled in
Baker v. State that same-sex couples must be given the full and
equal protections, benefits, and responsibilities accorded
married couples under state law. In response to this decision,
legislation was enacted last year in Vermont (Act 91 - H.847)
which allows gay couples to form "civil unions" that carry many
of the benefits and responsibilities of traditional marriages.
Partners in a civil union are eligible for 300 state benefits
given to married couples covering every phase of life. They can
transfer property, make medical decisions for each other,
inherit estates and oversee one another's burials. Such couples
may also file a joint state income tax return. In addition,
Vermont gay and lesbian couples who enter into a civil union are
subject to burdens similar to those of married couples.
Partners who want to end their civil union have to go through a
dissolution proceeding in family court, similar to divorce
AB 25
Page 7
proceedings. They also assume each other's debts.
ARGUMENTS IN SUPPORT : The position of California Alliance for
Pride and Equality (CAPE), the bill's sponsor, is reflective of
the principal arguments of the proponents of this measure.
CAPE states that the bill will provide to registered domestic
partners several basic rights that currently only married
couples have under California law. According to CAPE, "AB 25
will recognize registered domestic partners as appropriate
family members who should be consulted by medical professionals
for treatment decisions if and when a patient is unable to make
his or her own decisions. ? For couples in an enduring
relationship, the partner is the appropriate person for the
state to designate as the decision-maker during a period of
incapacity on the reasonable assumption that that is the person
whom the incapacitated person would have chosen if he or she had
addressed the question in advance."
In addition, CAPE states that "[g]ranting the right to sue for
negligent infliction of emotional distress or wrongful death
recognizes that the suffering of the surviving domestic partner
is real and direct. It recognizes the economic losses that the
surviving domestic partner would endure if and when a third
party caused the death of the other partner by negligence or an
unjustified deliberate act. Many partners would be affected
both financially and emotionally by their partner's death. They
deserve compensation from a wrongful and negligent third party."
Finally, CAPE argues that the bill appropriately recognizes the
roles of a domestic partner as soulmate, caretaker, and
confidant, and reinforces their legitimacy. "Absent these clear
guidelines, domestic partners are often caught in the middle of
disagreements and sometimes litigation regarding families and
partners' rights, especially in situations where the immediate
blood relatives have rejected the ailing or deceased partner
because of his or her sexual orientation. ? All Californians
deserve equal treatment under the law. AB 25 is a positive step
in that direction."
ARGUMENTS IN OPPOSITION : The position of the Traditional Values
Coalition (TVC) is reflective of the principal arguments of
opponents to this measure. TVC argues that the bill is an
attempt to circumvent the will of the majority of Californians
who voted for Proposition 22 which, they claim, "declared that
the rights and privileges of marriage should not be extended to
other forms of so-called 'unions.'" According to TVC, "[a]ny
AB 25
Page 8
Domestic Partnership is an automatic threat and deterrent to the
institution of marriage. ? The state has no vested interest in
advocating or promoting domestic partnerships since they cannot
give birth to a family." TVC also contends that "[t]he right to
impose medical decisions on behalf of another (should that
person be incompetent of doing so on their own terms), the right
of inheritance and receiving medical coverage, should only be
granted to those committed in the union of marriage, not under
the provisions of a domestic partnership."
TVC also argues that the bill will result in a proliferation of
frivolous emotional distress cases. According to TVC, since
domestic partnerships are more easily dissolvable than
marriages, "the chances for unfounded claims of emotional
distress would increase" and "[t]he mere personal grudge of one
partner in such a union against the other can be used as a
defense justifiable for a claim of 'emotional distress.'" In
addition, TVC states that the bill's provision granting
inheritance rights is unnecessary because "[t]he issue of
inheriting one's possessions is already provided under current
law through the simple drafting of a legal will by any resident
of California, regardless of their relationship." Finally, TVC
argues that the concept of domestic partnerships is an attempt
to circumvent the law prohibiting homosexual marriages, and is
an affront to the concept of marriage. "Once all the rights
currently afforded to those relationships of the opposite sex
are granted to those of the same sex, the concept of marriage
will have lost its meaning, purpose, and legitimacy."
Pending Related Legislation . AB 1338 (Koretz), a "civil union"
bill modeled after the Vermont law, would provide that the
rights and obligations of a civil union which could be entered
into by any two persons are the same as those of a marriage.
Status: Pending referral in the Assembly Rules Committee.
Prior Related Legislation . As noted above, this bill is a
compilation of provisions that were contained in various bills
introduced in prior legislation sessions, as summarized briefly
below.
AB 26 (Migden) of 1999, as originally introduced, contained
provisions which would have required group health plans and
group disability insurers to offer employers coverage for
domestic partners of employees, in the same manner as other
dependents. Those provisions were subsequently deleted from the
AB 25
Page 9
bill. As enacted, AB 26 established the domestic partner
registration system and granted limited rights in the areas of
hospital visitation and health benefits for public employees.
(Chapter 588, Stats. 1999.)
Last year, a three-bill package was introduced which contained
many of the provisions upon which this bill is modeled: AB 1990
(Romero), which would have expanded the legal rights of a
registered domestic partner to make medical treatment decisions
on behalf of his or her partner if the partner is a patient in a
health facility and incapable of giving informed consent; AB
2047 (Steinberg), which would have allowed a domestic partner
the right to inherit property if one partner dies without a
will, and to be appointed as administrator of his or her
deceased partner's estate, in the same priority as a surviving
spouse; and AB 2211 (Kuehl), which, among other things,
contained the same provisions as this bill authorizing a
registered domestic partner to bring a cause of action and
recover damages for negligent infliction of emotional distress
and wrongful death, and to participate fully in conservatorship
proceedings, as well as incorporating the same changes to the
statutory will form to include domestic partners. All three
measures died on the Assembly inactive file.
AB 2421 (Migden) of 2000, which, as heard and passed by this
Committee, would have expanded the legal rights of domestic
partners with regard to the right to take sick leave, to collect
unemployment insurance benefits, and to file a claim for
disability benefits. Those provisions were subsequently deleted
from AB 2421 and replaced with the same provision contained in
this bill expanding the group of individuals who can register as
domestic partners to include opposite sex couples where only one
individual, rather than both, is over the age of 62. That
version of the bill was passed by the Legislature but vetoed by
Governor Davis.
AB 901 (Knox) of 1999, which would have extended to domestic
partners the same tax preferences for health care costs that are
available to spouses and dependents of employees, died in
Assembly Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 25
Page 10
California Alliance for Pride and Equality (sponsor)
AIDS Project Los Angeles
American Association of Retired Persons
American Civil Liberties Union
Berkeley City Council
California Church Impact
California Faculty Association
California HIV Advocacy Coalition, Southern California Region
California Labor Federation, AFL-CIO
California National Organization for Women
California Nurses Association
California Professional Firefighters
California School Employees Association
California Teachers Association
Congregation Kol Ami
Congress of California Seniors
East Bay Municipal Utility District
Friends Committee on Legislation
Gay and Lesbian Community Services of Orange County
Gray Panthers California
Human Rights/Fair Housing Commission of the City and County of
Sacramento
Inland Empire Lesbian & Gay Democratic Club
Lesbian and Gay Immigration Rights Task Force, San Francisco/Bay
Area Chapter
National Association of Social Workers, California Chapter
Older Women's League of California
Parents, Families and Friends of Lesbians and Gays, Los Angeles
Chapter
People for the American Way
San Francisco AIDS Foundation
Service Employees International Union
over 250 individuals
Opposition
Campaign for California Families
Capitol Resource Institute
Committee on Moral Concerns
Traditional Values Coalition
Eleven individuals
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334