BILL ANALYSIS
SB 75
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Date of Hearing: July 13, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
SB 75 (Murray) - As Amended: April 27, 1999
As Proposed to be Amended
SUBJECT : DOMESTIC PARTNERSHIP
KEY ISSUE : SHOULD THE STATE ADOPT A STATUTORY SCHEME FOR THE
REGISTRATION OF DOMESTIC PARTNERSHIPS?
SUMMARY : Implements the Domestic Partnership Act of 1999,
enacting a statutory scheme for the registration of domestic
partnerships. Specifically, this bill :
1)Recognizes domestic partnerships validly entered into and
recognized in other jurisdictions, and preempts all local
ordinances and laws creating domestic partnerships within the
state on or after July 1, 2000, permitting the retention or
adoption only of those policies, ordinances, or laws that
provide rights to domestic partners in addition to those
provided by this bill. All domestic partnerships created
before that date would remain valid, provided that a
Declaration of Domestic Partnership is filed by the domestic
partners under Section 298.5, but they would be governed by
the provisions of this bill.
2)Requires the Secretary of State to provide forms for the
registration and termination of domestic partnerships, to
distribute such forms in each county, and to establish and
charge fees for the actual costs of processing these forms.
3)Requires a Notice of Termination of Domestic Partnership to be
filed with the Secretary of State by mailing a completed form
to the Secretary of State via certified mail, and to be sent
to all third parties to whom a copy of the Declaration of
Domestic Partnership had been given. The date of the receipt
of the Notice of Termination will be deemed the actual
termination date of the Domestic Partnership. Termination of
a partnership would occur under one of the following
circumstances:
a) One partner serves to the other a written notice via
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certified mail that he or she is terminating the
partnership.
b) One of the domestic partner dies.
c) One of the domestic partners marries.
d) The domestic partners no longer have a common residence.
4)Expressly provides that registration of the domestic
partnership would not establish any rights except those
specifically provided in the bill, and that upon termination
of the partnership the partners shall no longer incur the
obligations created by this bill.
5)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 meet all of the
following:
a) Both persons have a common residence.
b) Both persons agree to be jointly responsible during the
partnership for each other's basic living expenses,
including food, shelter, utilities, and all other costs
directly related to the maintenance of the common
residence.
c) Neither person is married or a member of another
domestic partnership.
d) The two adults are not related to each other such that
they could not be married to each other under existing law.
e) Both persons are at least 18 years of age.
f) Both persons file a Declaration of Domestic Partnership
with the Secretary of State, as provided.
g) Both persons are capable of consenting to the Domestic
Partnership.
h) Neither person has previously filed a Declaration of
Domestic Partnership with the Secretary of State that has
not been terminated under Section 299.
6)Requires health facilities to allow domestic partners, their
children, and the domestic partner of a patient's parent to
visit a patient in the facility, except where no visitors are
allowed or under other specified conditions.
7)Changes the Probate Code to accord domestic partners the right
to be notified of conservatorship proceedings, to give
domestic partners preference in the court's selection of a
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conservator, and generally to participate in all actions
concerning a conservatee who is a domestic partner; changes
the Statutory Will form to allow for the selection of domestic
partners as beneficiaries under the Will.
EXISTING LAW :
1)Provides for the creation of valid marriages, specifies the
rights and obligations of spouses during marriage, and
provides the procedure for the termination of marriage and the
division of marital property and obligations after death or
marriage. (Family Code sections 300 et. seq ., 700 et. seq .,
760 et. seq ., 900 et. seq ., 1100 et. seq ., 1500 et. seq ., 2300
et. seq ., 2310 et. seq ., 2320 et. seq ., 2330 et. seq ., 2400
et. seq .)
2)Does not provide for state recognition of unmarried
individuals.
3)Does not require health facilities to allow non-family members
to visit with a patient.
FISCAL EFFECT : Unknown
COMMENTS : The author states that SB 75 is "designed to aid,
strengthen, protect, and promote committed family
relationships." According to the author, hundreds of thousands
of Californians cohabit without the benefit of marriage, though
their relationships could be as stable as those of married
couples. Especially for senior citizens, cohabitation with a
trusted friend, male or female, could provide them with the
companionship, security and independence they need at this time
of their lives. Many senior citizens do not marry due to
restrictions on social security or other pension benefits that
would affect their incomes.
Although some accommodations are already available under
existing law for "friends" to be regarded as "relatives,"
recognizing the status of domestic partners as being more than
mere "friends" would give heterosexual and same-sex partners
limited and basic rights in the areas of health care and
conservatorships.
Background : About eight years ago, the Legislature appointed a
Joint Legislative Task Force on the Changing Family to study the
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evolving nature of the California family and to make
recommendations to the Legislature as to how the needs of that
changing family 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, even domestic partners.
Children are relating to multiple families, as their biological
parents get divorced, remarry and create new, extended families.
According to the 1990 census, there are approximately 500,000
unmarried couples in California, 93 percent of which are
heterosexual couples and 7 percent are same-sex couples. Of the
500,000 unmarried couples, 35,000 are senior citizen couples who
are not married because of social security or other pension
restrictions.
Already there are hundreds of cities and municipalities,
colleges and universities, private employers, labor unions, and
even the U.S. House of Representatives that 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, Counties of Los
Angeles, Marin, San Mateo, Santa Cruz, and the Santa Cruz Metro
Transit System. Ten university systems, including the
University of California, as well as the University of Southern
California, Golden Gate University, and the California Institute
of Technology, Pasadena have similar policies.
In the California private sector, 129 for-profit, not-for-profit
and union organizations have chosen to provide benefits to
domestic partners, including such organizations as Levi Strauss
& Co., Novell, Kaiser Permanente Foundation Health Plan, Inc.,
International Brotherhood of Teamsters #70, Southern California
Gas Co., Ticketmaster Group, Inc., Dow Chemical, Mattel, Eastman
Kodak, IBM, Northwest Airlines, Pacific Stock Exchange,
Patagonia, Inc., Paramount Pictures, Seagate Technology, Inc.,
Silicon Graphics, AFSCME #57 and #827, Consumers Union, Bank of
America, Apple Computer, Viacom, CBS, ABC, PBS, FOX, Disney
Corporation, and Warner Brothers.
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Legal effect of domestic partnership: rights bestowed : The only
obligations the domestic partners would have to each other would
be those that would create the domestic partnership. The rights
that would be conferred on domestic partners are specified in
the bill as follows:
1)A health facility would be required to allow a patient's
domestic partner, children of the domestic partner, and the
domestic partner of the patient's parent or child to visit the
facility (unless no visitors are allowed, or the visitor's
presence would endanger the patient or disrupt operations of
the facility, or the patient has indicated he/she does not
want the visitor to visit).
2)A domestic partner would be able to participate and have
standing to appear in conservatorship proceedings where the
other partner is the conservatee or proposed conservatee, be
eligible for appointment as conservator (with the same
preference as a spouse), nominate a conservator, receive
notice of all hearings, petition the court for an accounting
if justified or for the appointment of a successor conservator
or for distribution of the surplus income of conservatee's
estate for the support, maintenance and education of the
conservatee and those entitled to the conservatee's support,
and other rights related to conservatorship proceedings. The
bill would further make conforming amendments to the Probate
Code.
3)This bill would recognize as valid those domestic partnerships
entered into outside the state, which would be valid in the
jurisdiction where the partnership was created. The State of
Massachusetts as well as cities such as Atlanta (GA), Ann
Arbor (MI), Chapel Hill (NC), District of Columbia, Hartford
(CT), Ithaca (NY), Provincetown (MA), Seattle (WA), East
Lansing (MI), Cambridge (MA), Madison (WI) have instituted
domestic partnership registries.
The Statutory Will: Domestic partners as Beneficiaries :
Although the bill would make changes to the Statutory Will-a
simple document available at stationery stores statewide-the
changes would not confer any rights to the domestic partner that
current law does not already provide. Just as the testator can
write in any name he or she wishes, the testator can write his
or her domestic partner's name into the will as a beneficiary of
his or her estate. The changes simply place the "domestic
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partner" (the phrase, not the name) inside any box where the
"spouse" (the word, not the name) appears. Placing the domestic
partner in the same box as the spouse does not legally elevate
the stature of the domestic partner to that of a spouse, but
proponents claim this would make it easier for a domestic
partner to will his or her estate to the other partner.
ARGUMENTS IN SUPPORT : There is substantial support for this
bill. The California Child, Youth and Family Coalition members
"believe in the dignity of all family forms and therefore
support the recognition of domestic partnerships. This
legislation recognizes the importance of state-sanctioned bonds
between two people who have chosen to make a life together.
Children and youth being raised in domestic partnerships are
entitled to the same community support accorded other families."
The California Federation of Teachers stated that "[I]ndividuals
have often been prohibited from visiting a hospitalized person
with whom they have established a domestic partnership because
they are not considered "family." Non-relative partners have no
legal standing in conservatorship proceedings. SB 75 secures
such visitation and conservatorship rights."
The Older Women's League of California noted that "[t]here are
too many reasons to mention why two people find it necessary to
live together without marrying. When one does not provide for
recognition of this arrangement, one runs the risk of imposing
great hardships and discrimination on the domestic partners.
Older men and women often live without marriage for economic
reasons. It seems unreasonable to expect people on limited
income to live on less income because they decide to marry.
Then there are the older friends who have lost a spouse-either
men or women-who find for reasons of companionship as well as
economy that living together is best for them."
The Congress of California Seniors supports SB 75, stating that
"[p]eople in nontraditional relationships should not be denied
the very simple and basic rights which are afforded others. If
these are close and stable relationships which people entered
into knowingly, then domestic partners should not be punished.
These include seniors who may not, for a variety of reasons, be
able to be married in a traditional way. We see this bill as a
way to treat domestic partners in a reasonable and fair way."
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The California Nurses Association believes that this bill "will
give families the right to care for each other in times of
crisis and need by allowing partners to visit each other in the
hospital, and make decisions for each other when one is
incapacitated. Nurses routinely witness the pain that domestic
partners suffer when they are denied access to their loved one
in the hospital. It is confusing and disorienting to all
parties involved, including the nurse assigned to care for the
patient. Because there are no clear guidelines, nurses are
often caught in the middle of disagreements regarding families
and partners' rights. This bill will promote responsibility and
mutual support between two committed adults and will clarify
some of the ambiguities surrounding responsible parties."
Kaitlin Duck Sherwood of Palo Alto wrote in support of SB 75:
"I was fortunate enough to rent a room in a house from a gay
couple for four years. They built a home of laughter and love
that was far more positive than the home I grew up in. From
watching them negotiate differences, seeing their commitment
grow and deepen, I learned how to make commitments myself, and
how to keep them. It baffles me that my marriage of seven
months should somehow be "worth" more than their eleven years
together. My husband and I have not undergone these tests. My
friends' relationship should be worth more than ours, not less.
They deserve to be married, but SB 75 will do."
ARGUMENTS IN OPPOSITION : Opponents of this bill state that the
bill is unnecessary. They further state that the historical
family arrangement works best for society, and that the
recognition of domestic partnerships would devalue true family
commitments.
The Committee on Moral Concerns, Sacramento opposes this bill
because "[o]ur society now suffers from high rates of divorce,
spousal and child abandonment, child neglect, and illegitimacy.
We cannot afford to further devalue the family with a new
easy-in, easy-out semi-marriage. This bill will hurt children."
The Institute for Creation Research, El Cajon states that the
"ramifications of such a misguided attempt to legislate morality
would be far-reaching and its results would be devastating.
This not only puts undue burden on our business, but also
violates our First Amendment Right to be separate from
government interference."
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The Capitol Resource Institute, Sacramento strongly opposes SB
75 because it believes that the bill "will undermine the
institution of marriage and family. By and large, "domestic
partners" are overwhelmingly same-sex couples. By equating
homosexual partner, or any unmarried partner, with the
time-honored status of married spouse, the institution of
marriage will be weakened and undermined. SB 75 is unnecessary,
and will only serve to undermine the uniqueness of marriage
between a man and a woman."
PRIOR RELATED LEGISLATION :
AB 54 (Murray, 1997) sought to recognize domestic partnerships
and provide benefits for domestic partners. The bill died on
the Assembly Floor. AB 75 is very similar to this bill.
AB 627 (Katz, 1995) and AB 2810 (Katz, 1994) both sought to
recognize domestic partnerships. Both failed in the Assembly
Judiciary Committee.
PENDING RELATED LEGISLATION :
AB 26 (Migden, 1999) also recognizes domestic partners, but
additionally requires a statement of veracity to accompany the
Declaration of Domestic Partnership to be registered with the
Secretary of State. It also mandates a group health care
service plan and a policy of disability insurance for domestic
partners. To be heard in the Senate Judiciary Committee.
AB 107 (Knox, 1999) allows state and local employers within the
Public Employees' Retirement System to offer heath care benefits
to domestic partners. Passed on the Assembly Floor and to be
heard in the Senate Industrial Relations Committee.
SB 1173 (Vasconcellos, 1999) provides status for a caring de
facto parent to maintain a long-term relationship with a child.
Failed in the Senate Appropriations Committee and granted
reconsideration.
SB 442 (Alarcon,1999) allows the family of an aging, vulnerable
person to protect him or her and his or her property from those
who prey on the elderly, even after death. To be heard in the
Senate Judiciary Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Association of Retired Persons (AARP) - California
California Professional Firefighters
Board of Supervisors of the City and County of San Francisco
California Alliance for Pride and Equality (CAPE)
United Transportation Union, AFL-CIO
California Federation of Teachers, AFL-CIO
East Bay Municipal Utility District
California School Employees Association (CSEA)
Gay and Lesbian Center of Los Angeles
Southern California Women for Understanding
AIDS Healthcare Foundation
California Nurses Association
Asian Pacific Gays and Friends (West Hollywood)
Friends Committee on Legislation of California
California Child, Youth and Family Coalition (CCYFC)
Older Women's League of California (OWL)
Congress of California Seniors
National Organization for Women (NOW)
24 individual letters
17 form letters from individuals
Opposition
Secretary of State Bill Jones
New Life Christian School
Lila McCarty
Marilyn Gaines
Committee on Moral Concerns
Institute for Creation Research
Burton Wesenberg
Capital Research Institute
Roy and Sherry Schippman
Analysis Prepared by : Syrus Devers and Sabina Jacobs / JUD. /
(916) 319-2334