DC should not eliminate domestic partnerships when it authorizes gay marriage

by on October 26, 2009  •  In Family law, Marriage

One of the questions associated with legalizing gay marriage is the question of what to do about existing domestic partnership laws which create some meaningful form of legal recognition for relationships in addition to the standard conjugal couple form. Unfortunately, DC City Councilmember David Catania's bill to legalize gay marriage also would terminate access to domestic partnerships. 

Big mistake.

In DC, domestic partnerships are open not just to gay or even straight unmarried couples, but also to any two people in "a committed, familial relationship." I don't have any problem with eliminating civil union laws, because typically they create only a marriage mimic status, with all of the rights and responsibilities of marriage, open only to same-sex couples. If same-sex marriage becomes legal in one of those states, there is no reason to preserve civil unions, which really are just a segregated, second-class form of marriage. But DP laws such as the one in DC have created rights for non-gay folks and/or non-couples, and they shouldn't be dropped because gay couples acquire the right to marry.

Happily, there has been something of a revolt against this part of the bill within the DC lgbt community. A Council hearing on the bill tonight, at which more than 250 people have signed up to testify, will center mostly on the merits of legalizing gay marriage and the religious arguments pro or con, and will doubtless produce a massive amount of noise and probably not a single new argument on either side. However, some of the testimony in support of the marriage bill will also oppose the DP sunset provision. I endorse the arguments being made by Nancy Polikoff, who will testify about the importance of not limiting legal protections to couples, but extending them to other family forms as well.

Other jurisdictions that move from a domestic partnership system to marriage rights for gay couples will also have to decide whether to extinguish recognition for the different sex couples and others who can qualify as DPs. Currently, coverage varies from state to state. The next place where this issue will have to be addressed will probably be New Jersey. Thinking through how non-marital family recognition laws should be structured after gay couples have the right to marry is an important issue, for the gay and straight couples who choose not to marry, for people in various other forms of familial relationships, and for family law in general.

UPDATE – The provision phasing out domestic partnerships was dropped by the committee.


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