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, (more) SB 651 (Leno) Page 2 of ? 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 SB 651 (Leno) Page 3 of ? 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 SB 651 (Leno) Page 4 of ? 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 SB 651 (Leno) Page 5 of ? 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 SB 651 (Leno) Page 6 of ? 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. ************** SB 651 (Leno) Page 7 of ?