BILL ANALYSIS                                                                                                                                                                                                    ”






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          SB 651 (Leno)
          As Amended April 25, 2011
          Hearing Date: May 3, 2011
          Fiscal: Yes
          Urgency: No
          EDO
                    

                                       SUBJECT
                                           
                          Family Law: Domestic Partnerships

                                      DESCRIPTION  

          This bill would eliminate the requirement that domestic partners 
          have a common residence in order to establish a registered 
          domestic partnership. 

                                      BACKGROUND 

          The first domestic partnership law in California was enacted in 
          1999 by AB 26 (Migden, Chapter 588, Statutes of 1999.)  Among 
          other things, AB 26 created an official domestic partnership 
          registry, provided registered domestic partners hospital 
          visitation rights, and granted health benefits to domestic 
          partners of state employees.  Several bills granting domestic 
          partners additional rights followed.  SB 2011, (Escutia, Chapter 
          1004, Statutes of 2000) qualified registered domestic partners 
          for housing in specially designed accessible housing for senior 
          citizens. Two years later, AB 25 (Migden, Chapter 893, Statutes 
          of 2001) granted 12 new rights and benefits to registered 
          domestic partners, including (i) the right to sue for wrongful 
          death; (ii) the right to use employee sick leave to care for an 
          ill partner or partner's child; (iii) the right to make medical 
          decisions on behalf of an incapacitated partner; (iv) the right 
          to receive unemployment benefits if forced to relocate because 
          of a partner's job; and (v) the right to adopt a partner's child 
          as a stepparent.  

          In 2002, several additional bills were enacted granting domestic 
          partners additional rights.  For example, AB 2216 (Keeley, 
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          Chapter 447, Statutes of 2002), granted a domestic partner 
          inheritance rights if his or her partner dies without a will.  
          SB 1575 (Sher, Chapter 412, Statutes of 2002) added domestic 
          partners to persons who are exempted from the prohibition on 
          benefiting from a will or trust that they helped  draft; and SB 
          1661 (Kuehl, Chapter 901, Statutes of 2002) granted six weeks of 
          paid family leave to employees to care for a sick spouse or 
          domestic partner.  

          The California Domestic Partner Rights and Responsibilities Act 
          of 2003 further expanded the rights of domestic partners and 
          specifically stated that "registered domestic partners shall 
          have the same rights, protections, and benefits, and shall be 
          subject to the same responsibilities, obligations, and duties 
          under the law . . . as are granted to and imposed upon 
          spouses."(AB 205 (Goldberg), Chapter 421, Statutes of 2003.) 

          In 2004, AB 2208 created the California Insurance Equality Act 
          (Kehoe, Chapter 488, Statutes of 2004) which prohibited 
          insurance providers from issuing policies or plans that 
          discriminate against domestic partners and required insurance 
          plans that include coverage of spouses to include the same 
          coverage for domestic partners. SB 1827 (Migden, Chapter 802, 
          Statutes of 2006 ) created the State Income Tax Equity Act in 
          2006, which allowed registered domestic partners to file joint 
          income taxes in order to receive the same financial protections 
          afforded to married heterosexual couples.  In 2007, AB 102 (Ma, 
          Chapter 567, Statutes of 2007) created the Name Equality Act 
          which allowed domestic partners to change their surnames, 
          regardless of gender, upon domestic partnership registration. 
          Most recently in 2010, AB 2055 (De La Torre, Chapter 590, 
          Statutes of 2010) extended the right to receive an award of 
          unemployment insurance benefits to a person who imminently plans 
          to enter into a registered domestic partnership that the law 
          currently provides for couples who are engaged to be married. 

          This bill would eliminate the requirement that registered 
          domestic partners must have a common residence.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that in order to establish a domestic 
          partnership, all of the following requirements must be met:
           Both persons have a common residence.
           Neither person is married to someone else or is a member of 
            another domestic partnership with someone else that has not 
                                                                      



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            been terminated, dissolved, or adjudged a nullity.
           The two persons are not related by blood in a way that would 
            prevent them from being married to each other in this state.
           Both persons are at least 18 years of age.
           Either of the following: (i) both persons are members of the 
            same sex; or (ii) if members of the opposite sex, one or both 
            persons must be over the age of 62. 
           Both persons are capable of consenting to the domestic 
            partnership. (Fam. Code Sec. 297.)

           This bill  would eliminate the common residence requirement to 
          establish a domestic partnership.



                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            This bill would eliminate an existing difference between 
            domestic partners and married spouses by eliminating the 
            requirement that domestic partners have a common residence.

            Existing case law recognizes that while same-sex couples lack 
            the right to enter into a relationship designated as 
            "marriage," they possess the right to the core set of basic 
            substantive legal rights and attributes associated with 
            marriage, including, the opportunity of an individual to 
            establish an officially recognized and protected family 
            possessing mutual rights and responsibilities and entitled to 
            the same respect and dignity accorded a union traditionally 
            designated as marriage.

          The sponsor, Equality California writes "Equality California is 
          proud to sponsor ›this bill], the Domestic Partner Equality Act. 
           This bill would reduce the legal inequalities under state law 
          that presently exist between marriages and domestic partnerships 
          in California.  In 1999, Equality California sponsored the first 
          of many bills to obtain rights and responsibilities for same-sex 
          couples.  That year, California established legal recognition 
          for same-sex relationships for the first time called registered 
          domestic partnerships.  AB 26 (Migden) created a Domestic 
          Partner Registry housed within the California Secretary of 
          State.  This groundbreaking law also established hospital 
                                                                      



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          visitation rights for domestic partners, and provided that state 
          and local government employers could offer health care coverage 
          and other benefits to domestic partners. This bill and 
          subsequent bills, now law, sponsored by Equality California, 
          extended many of the same rights enjoyed by married couples to 
          California's same-sex couples; however, differences remain."

          2.  This bill would eliminate the requirement that domestic 
            partners have a common residence in order to register as a 
            domestic partnership in California  

          Under existing law, in order to register as a domestic 
          partnership, two people must (i) have a common residence; (ii) 
          not be married to someone else or be a member of another 
          domestic partnership; (iii) not be related by blood in a way 
          that would prevent them from being married to each other in this 
          state; and (iv) be at least 18 years of age. Also, both persons 
          must be members of the same-sex or, if members of the opposite 
          sex, one or both persons must be over the age of 62. Finally, 
          both persons must be capable of consenting to the domestic 
          partnership.  

          In comparison, under existing law, in order to enter into a 
          valid marriage in California both people must be members of the 
          opposite sex, at least 18 years old (without parental consent) 
          and must not be married to anyone else.  There is no common 
          residence requirement. This bill would eliminate the requirement 
          that domestic partners share a common residence in order to 
          register as a domestic partnership, making this more similar to 
          the requirements for marriage.

          In support of the bill, Equality California writes "there are 
          important legal differences between domestic partnerships and 
          marriage under state law that were highlighted by the California 
          Supreme Court in its 2008 decision in In re Marriage Cases.  For 
          example, same sex couples that wish to enter into a domestic 
          partnership must reside in the same household, even if they are 
          working in two different locations, while there is no such 
          requirement for marriage."  The requirement that domestic 
          partners share a common residence, without the same requirement 
          for couples entering into marriage, results in discrimination 
          between spouses and domestic partners.  Practically speaking, 
          the common residence requirement does not make sense.  There may 
          be couples in long-distance relationships who have jobs in 
          different cities then their spouses or partners and are 
          committed to one another and want to make their relationship 
                                                                      



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          official through marriage or domestic partnership. Technically 
          speaking, these couples may not share a common residence. Since 
          there are currently legal barriers to same-sex couples entering 
          into a marriage, it is important to allow same-sex couples to 
          freely enter into a domestic partnership without the barrier of 
          sharing a common residence.  This bill would also benefit 
          opposite-sex couples over the age of 62 who may wish to enter 
          into a domestic partnership, but do not share a common 
          residence. 

          This bill is another step in a long line of laws designed to 
          achieve parity between marriage and domestic partnerships in 
          California. AB 205 (Goldberg, Chapter 421, Statutes of 2003.)  
          created the California Domestic Partner Rights and 
          Responsibilities Act of 2003 (Act) and included intent language 
          stating that the Act is "intended to help California move closer 
          to fulfilling the promises of inalienable rights, liberty, and 
          equality contained in Sections 1 and 7 of Article 1 of the 
          California Constitution by providing all caring and committed 
          couples, regardless of their gender or sexual orientation, the 
          opportunity to obtain essential rights, protections, and 
          benefits and to assume corresponding responsibilities, 
          obligations, and duties and to further the state's interests in 
          promoting stable and lasting family relationships, and 
          protecting Californians from the economic and social 
          consequences of abandonment, separation, the death of love ones, 
          and other life crises." This language was meant to express the 
          intent of the Legislature that domestic partners be afforded the 
          same rights and responsibilities of married persons.  

          As further argued by the respondents, including the American 
          Civil Liberties Union, Lambda Legal and the National Center for 
          Lesbian Rights, in their supplemental brief filed in the In re 
          Marriage Cases, "the common residence requirement imposes a 
          burden on same-sex couples who do not wish to live together 
          prior to domestic partnership for personal, religious or moral 
          reasons.  In contrast, heterosexual persons who wish to refrain 
          from living together until after marriage are free to do so." 
          The justification for this different requirement is unclear.  It 
          is also unclear what the public policy reasons are for why two 
          people must share a common residence in order for them to form a 
          domestic partnership when the same is not true for two people 
          entering into marriage.  It is fairly common, and very accepted 
          that some couples apply for a marriage license and are married 
          before ever sharing a common residence. Further, the respondents 
          note "in addition, the common residence requirement prevents 
                                                                      



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          same-sex couples who are in a long-distance relationship from 
          entering into a legal union unless they are able to establish a 
          common residence at the time of registration, while there is no 
          barrier for similarly situated heterosexual couples who wish to 
          marry.  For example, a heterosexual person who is forced to live 
          apart from his or her different-sex partner because of work or 
          education requirements, or to care for a sick or elderly family 
          member, can legally marry without establishing a common 
          residence with his or her spouse.  A lesbian or gay person, 
          facing identical circumstances, would be barred from entering 
          into a legal union." 

          Currently in California, a domestic partnership is the only way 
          for same-sex couples to make their relationship official.  The 
          two unions are unequal when they have different requirements for 
          entering into them. This bill will take another step towards 
          equality between domestic partnerships and marriage. 

           
          Support  :  Association of Certified Family Law Specialists

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Equality California

           Related Pending Legislation  : SB 757 (Lieu) would require that 
          every health insurance policy issued or delivered to a resident 
          of this state, regardless of where the insurer is located, must 
          comply with California laws regarding equal benefits and 
          coverage for an employee's domestic partner as to a spouse.  
          This bill has been referred to the Senate Committee on 
          Judiciary.

           Prior Legislation  :  See Background. 


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