Domestic Partner Rights in California
Michael Jenkins is a partner with the law firm of Jenkins & Hogin and serves as city attorney for the City of West Hollywood and several other Southern California cities; he can be reached at MJenkins@localgovlaw.com. Helyne Meshar is principal of Helyne Meshar & Associates and legislative advocate for the City of West Hollywood; she can be reached at HMeshar@aol.com. Hernan Molina is deputy to West Hollywood Mayor John Duran and can be reached at HMolina@weho.org.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
It has been three years since California’s Domestic Partner Law was enacted. This article traces the law’s history, explains California cities’ role in its development and implementation and includes specific recommendations to ensure that your city is in compliance with the law.
It should be noted that California prohibits same-sex marriage and does not recognize such marriages from other jurisdictions. The legality of California’s prohibition of same-sex marriage is currently being litigated and pending before the California Supreme Court. In addition, it should be noted that California’s Domestic Partner Law is specific to state laws; federal laws related to employee benefits (retirement, Social Security and so on) are not impacted by the state law.
Local Governments Lead with First Domestic Partner Ordinances
Legal recognition of domestic partnerships in California began at the local level.
In 1984, the newly incorporated City of West Hollywood adopted a citywide policy of nondiscrimination in all city hall-related activities and employee benefits and established a public Domestic Partner Registry. The cities of Santa Cruz and Berkeley soon followed. San Francisco established both a Domestic Partner Registry and a policy to extend benefits to domestic partners of employees in 1989, only to see the benefit repealed by voters in November that year; it was finally enacted by initiative in November 1990.
When the City of West Hollywood at tempted to add domestic partners to its health insurance plans for city employees, it could not find an insurer that would include domestic partners in its benefit packages. The California Public Employees Retirement System (CalPERS) also refused on the basis that it did not have a legal mechanism for extending benefits to domestic partners. Left with no other options, West Hollywood self-insured for health care benefits for employees and their domestic partners, with the requirement that they be registered domestic partners.
In the early 1990s, the Legislature shifted millions of dollars from local governments to backfill the state deficit, forcing West Hollywood to reassess its budget and make cuts. Rather than cutting city programs and services for residents, the city chose to reduce its employee health care liability by joining CalPERS. As a result, the city’s annual insurance premiums decreased by 48 percent. However, CalPERS would not include domestic partners in its benefits, because it wanted clear legislative direction and believed including domestic partners would make premiums too costly. So, in 1994, the City of West Hollywood sponsored SB 2061 (Hart), which would have authorized CalPERS to include domestic partners in its health benefit program. The bill failed by one vote in the Legislature.
It took two more legislative attempts to finally secure domestic partner health care benefits. Then-Governor Gray Davis signed the legislation that authorized Cal PERS to include domestic partners in its health care plans (AB 26, Migden, Chapter 588, Statutes of 1999). The new law applied not only to city employees but to any jurisdiction that belonged to Cal-PERS, including the State of California. Building on the initial benefit, over the next several years the Legislature passed a number of new laws that extended to domestic partners the rights not previously accorded to them. The most notable was AB 25 (Migden, Chapter 893, Statutes of 2001) in 2001, which was the first significant expansion of domestic partner rights that included a definition of domestic partners as family members for the purpose of hospital visitation and making health care decisions on behalf of a partner.
AB 205 Expands Mandate on Employers
Recognition of domestic partners by California continued to be an incremental process until 2003, when AB 205 (Goldberg, Chapter 421, Statutes of 2003) was signed into law with an effective date of 2005. AB 205 mandates that California legally recognize domestic partners and establishes a mechanism for couples to claim that legal recognition. AB 205, the Domestic Partners Rights and Responsibility Act of 2003, states, " ... registered domestic partners shall have the same rights, protections and benefits, and shall be subject to the same responsibilities, obligations and duties under [California state] law, whether they derive from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses."1
AB 205 mandates that domestic partners be treated the same as married couples and that all employers, including cities, extend to state-registered domestic partners the same benefits accorded spouses of employees. The law:
- Allows employees to use sick leave to care for a domestic partner or the child of a domestic partner;
- Requires health care insurers to sell domestic partner coverage to employers;
- Exempts domestic partner benefits from state taxation; and
- Extends unemployment benefits to an employee who quits his or her job to accompany or join a domestic partner at a new location.
In terms of municipal programs and ser vices, AB 205 also requires cities to apply the same standard for domestic partners as it does for married couples. This ex tends to eligibility requirements for housing programs, social services programs, permits and property transfers; cities cannot require a higher standard of proof for eligibility for domestic partners than for married couples. For example, requiring a certificate of domestic partnership registration but not requiring a marriage certificate is illegal under AB 205.
The rights accorded under AB 205 apply only to individuals who register as domestic partners with the California secretary of state. Registration is limited to same-sex couples and opposite-sex couples in which at least one partner is older than 62. While many localities in California, including West Hollywood, Los Angeles and Santa Cruz, maintain city domestic partner registries, registration with a city alone is not sufficient to qualify a domestic partner for rights and benefits granted by California law.
Further, a same-sex marriage license issued in California or another jurisdiction is not a domestic partnership registration, and such a marriage license does not trigger domestic partnership rights under California law. However, one provision of AB 205 requires domestic partner ship registrations from outside California to be recognized on the same basis as California-registered domestic partner ships. Those domestic partnerships must be a "legal union of two persons of the same sex, other than a marriage" that is "substantially equivalent" to a California domestic partnership. The only such relationship that appears to meet this standard is Vermont’s civil union, which accords same-sex couples the same rights and responsibilities as married couples.
AB 205 and Federal Law
While AB 205 protects domestic partners from employment-based discrimination, it does not mandate benefits. In this way it reflects federal law: The federal Fair Employment and Housing Act (FEHA) does not mandate that employers provide benefits for spouses of employees. Spousal benefits and benefits for domestic partners are employee benefits negotiated between employers and employees. However, if employers provide benefits to spouses of employees, the same benefits must be extended to domestic partners.
Implementing AB 205 in City Hall
Cities should take the following steps to properly implement AB 205:
1. Review city codes and ordinances to ensure that language is not marriage specific, but is worded to include domestic partnerships.
2. Human resources (HR) departments should review city personnel policies to ensure that married couples and domestic partners are treated equally in areas such as employment recruitment, training, benefits and working conditions. When bargaining with employee unions for dependent benefits, HR directors also need to ensure that dependents of domestic partners and married couples are included equally.
3. HR departments should also ensure that domestic partners are included in the city’s family and medical leave programs because domestic partners are included in the family and medical leave provisions of the California Family Rights Act (CFRA). Under the CFRA, cities with 200 or more employees must provide or pay for dependents’ health coverage. The CFRA currently allows an employee to take up to 12 weeks of unpaid leave a year to care for a spouse who has a serious health condition. When the provisions of AB 205 and the CFRA are considered together, the CFRA will allow an employee to take family and medical leave to care for a domestic partner.
AB 205 represented a historic step toward advancing the cause of equality for all Californians. All local public agencies should ensure that they are adhering fully to its requirements.
1 Cal. Fam. Code § 297.5(a)