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Domestic partnerships pass Washington state legislature:

With the expected signature of the governor, the state will now grant some of the benefits of marriage to same-sex couples. According to the Seattle Post-Intelligencer:

Gays and lesbians can't legally wed, but the Legislature took another step toward that Tuesday by passing domestic partnership legislation for same-sex couples.

"It's not marriage," said Rep. Jamie Pedersen, D-Seattle. "There are more than 400 state law rights or obligations that don't come with domestic partnership, and we are going to have our hands full trying to get those rights and protections, too....

The bill passed easily on a 63-35 House vote despite condemnations from conservatives who said the bill was an affront to community values and religious freedom.

Gov. Chris Gregoire plans to sign the bill, which earlier passed the Senate, into law. Senate Bill 5336 creates a domestic partnership registry with the state and provides enhanced rights for same-sex couples, including hospital visitation, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.

Couples would have to share a home, not be married or in a domestic relationship with someone else and be at least 18.

Similar to California law, unmarried heterosexual couples would also be eligible for domestic partnerships if one partner were at least 62.

The advocates' intent to incrementally move toward gay marriage was one of the main reasons opponents fought the legislation. . . .

[Sen. Ed Murray, (D-Seattle),] said the bill moves gay marriage one step closer.

"I think we are closer to marriage than people realize, but it's still a multiyear process, it's still going to take a lot of work," he said.

Overall, the movement toward recognizing same-sex relationships in state legislatures has greatly accelerated since the fall election brought more Democratic control of state houses.

In Washington state, the legislature is also responding to a 5-4 decision by the state supreme court last summer that denied a gay marriage claim but left open the possibility of future claims for legal benefits. I commented here on that decision and its suggestion for legislative action to alleviate the legal difficulties faced by gay families. Whether the new domestic partners legislation will satisfy the court may be tested in future litigation.

Justin (mail):
Shame there are fewer and fewer Kirkian conservatives out there who might otherwise applaud the incrementalist approach to rights.
4.11.2007 11:25am
Elliot123 (mail):
This is a step forward. However, I note the law discriminates against heterosexuals. A logical second step would be to allow equal access regardless of gender.
4.11.2007 11:50am
CDU (mail):
"Similar to California law, unmarried heterosexual couples would also be eligible for domestic partnerships if one partner were at least 62."

I'm confused. What purpose is served by allowing domestic partnerships for heterosexuals when one member is over 62?
4.11.2007 12:22pm
Ella:

I'm confused. What purpose is served by allowing domestic partnerships for heterosexuals when one member is over 62?


One of the members might lose eligibility for a deceased spouse's social security or other benefits if she remarries.
4.11.2007 12:32pm
Ramza:
I am glad for progress, yet it begs the question.

Why does Legislatures/the State feel gays and older couples are entitled to these rights, responsibilities, and benefits (the new rights connected to Washington DP) but not those rights, responsibilities, and benefits? (the 400 state laws that affect marriage but not DP)

Do they have a rational based off a state interest for why yes these rights should or shouldn't be given, are they trying to be responsible representatives, or are they just playing a game?
4.11.2007 1:05pm
Hans Bader (mail):
This civil-unions bill might be a better deal than marriage, economically.

Perhaps Elliott123 has a point about it being discriminatory not to allow heterosexuals under 62 to benefit from it.

The bill gives civil unions a primary benefit of marriage (inheritance rights).

But the bill doesn't give them one of the primary costs of marriage: reduced protection against taxation of social security benefits (a married couple gets taxed based on their social security benefits at a much lower income level -- $45,000, I think -- than two unmarried people living together -- around $65,000).

And it's not clear if the Washington State bill gives civil unions the biggest financial risk of marriage, namely divorce law, which allows a family-court judge almost standardless discretion to award lots of alimony to one spouse in one family, and very little alimony to a similarly situated spouse in another similarly-situated family, all based on vague discretionary standards that vest great power in the judge. (Washington State already has judge-made case law allowing non-married ex-domestic partners to sue each other over property acquired during the partnership, but not for alimony, I think).

It's also not clear if the Washington State bill subjects civil unions to the "marriage penalty" that afflicts married couples unless they are very poor, or have radically different incomes. (If your income is very similar to your partner's, and you collectively make less than $100,000 per year, you clearly benefit by filing jointly, but if your income is higher, or your incomes differ a lot, you don't benefit much, and may even suffer a big loss). It sounds like it probably doesn't subject civil unions to the marriage penalty.

I am married. I have suffered financially every year of my marriage for being married, since I and my wife have consistently been forced to pay more taxes than two people in a civil union, or two people just living together.

I and my wife collectively pay more taxes than if we were single, regardless of whether we filed jointly, or separately.

That's because filing jointly eliminates my wife's standard deduction, which is higher than her own itemized deductions, and since filing jointly subjects us to a higher marginal rate than we would face if we just lived together "in sin."

And it's because filing separately would subject me to alternative minimum tax (which I would not face if I were single) as well as to a higher marginal rate than if I were single.

Could the Professor clarify whether this bill (like the California civil-unions law) gives ex-members of civil-unions alimony rights?

And could he clarify whether civil-union members are subject to marital tax filing rules under state law?

(The state can't affect whether civil unions are treated as marriages for purposes of federal tax law, but state income-tax law often also contains a marriage penalty. State tax law varies a lot from state to state in whether there is a marriage penalty. For example, the marriage penalty is severe in Vermont, but almost non-existent in California. Indeed, in California, civil-unions between partners of very different incomes would benefit from being treated as married-filing-jointly).

Come to think of it, Washington State is one of the few states without a state income tax, so the issue is moot in Washington State.

Viewed in isolation, it would be simpler and fairer for all concerned if both marriages and civil unions were open to people of all sexual orientations, and if people were allowed to select from a range of marital contracts or arrangements to fit their needs (as is already partly possible through the Uniform Premarital Agreement Act).

The only problem is that in the overregulated and litigious society we live in, state governments recognizing gay marriage might lead over time to churches losing their tax exemptions for failing to conduct gay marriages (which would be a bad thing, since churches, even those with retrograde or peculiar beliefs, often perform useful charitable and community functions).
4.11.2007 1:13pm
Ramza:
So in sum Hans Bader since Washington uses a property tax and a sales tax and not an income tax. There is no tax advantage with social security which you started listing and then retracted.

Furthermore even if they called these DPs marriage and gives all the benefits of marriage like Massachusetts it would not be classified as a marriage under Federal Law (due to Defense of Marriage Amendment) and thus the federal government will treat the gay couple who is married under state law as "separate people."

Just want to make sure, being concise with brevity is extremely important in discussions.
4.11.2007 1:24pm
Ramza:

The only problem is that in the overregulated and litigious society we live in, state governments recognizing gay marriage might lead over time to churches losing their tax exemptions for failing to conduct gay marriages (which would be a bad thing, since churches, even those with retrograde or peculiar beliefs, often perform useful charitable and community functions).

This is not so under state and federal law. It is a strawman. The state recognizes the right for certain people such as priests, pastors, rabbis etc to marry people. They are not forced to marry them. Furthermore it is the documents you sign for the state that grants the marriage license.

On the other hand it is the Church who sees your union blessed by God whether you are married or not, not what the law says, not what a piece of paper says.
4.11.2007 1:27pm
John425:
I live in WA stste and am not a lawyer. Why is it "right" to allow these unions to exist at all? The State has placed limits on several kinds of unions and if the "will of the people" says NO to same sex unions why isn't that OK?
Consider consanguinuity- the State forbids mothers from marrying their sons and brothers from wedding their sisters.
Then the State has also prohibited unions by enforcing an age of consent- A 49 y.o. man can't marry a 14 y.o girl (altho there may be a state or two where that is OK (yuk!)
and then there is the matter of bigamy and polygamy. A man cannot have (legal) plural marriages.
Seems to me that if society (in it's collective wisdom) says No- It should mean NO.
4.11.2007 2:14pm
Truth Seeker:
John 425 it's because people on the left think they are wiser than collective wisdom and if society doesn't want something, then they will force it on society by re-interpteting the constitution to mean something that it was never meant to mean when it was written. The only way to get the ideal egalitarian society that the left wants is through force.
4.11.2007 2:23pm
Cornellian (mail):
Seems to me that if society (in it's (sic) collective wisdom) says No- It should mean NO.

The problem with this argument is it can be applied equally to every unconstitutional law ever enacted - laws banning interracial marriage, laws criticizing the government, laws mandating racially segregated schools etc. We do not, nor have we ever lived in an unlimited direct democracy in which the opinion of a bare majority of the electorate decides everything. There are a great number of restraints in the popular will, including representative (rather than direct) democracy, the division of power among separate branches of government, the division of power between federal and state governments and the direct restraints on government action in the Bill of Rights. Thus, the mere fact that a majority of the electorate favors position X does not, in and of itself, decide anything.

The same argument also applies in reverse. Now that Washington state has enacted some type of DP law, one might phrase that as "society, in its collective wisdom, has said 'yes'." So what's your objection to that?
4.11.2007 2:26pm
JosephSlater (mail):
John425, TruthSeeker, and even Cornellian:

"Society" hasn't said "No" to this. Per the original post, this law was passed by the democratically-elected legislature. Thus, whether this idea is good, bad, or indifferent, the people, through their representatives, said "yes" to it.

As others have noted, the anti-SSM folks were enraged when the Mass. court decided in favor of SSM, and then went to the legislatures to get some anti-SSM bills passed in some states. Now, some folks have gotten a domestic partner bill through the legislative process. You may disagree with that as a matter of policy, but you can't accurately say "society" [here, the people of Washington State] had "said no" to it.
4.11.2007 2:56pm
Adeez (mail):
"Why is it "right" to allow these unions to exist at all?"

(1) Because we live in a representative democracy, and the duly elected legislature of the state voted to approve these unions.

(2) Because it is wrong to deny a benefit to a group of people, for no discernable reason, strictly because they were born different than the majority.

I understand you're not a lawyer, John 425, but you are aware that one of the highlights of our Constitutionally-based representative democracy is that the will of the majority does not always reign?
4.11.2007 3:45pm
JosephSlater (mail):
Adeez:

To you also, this law is NOT an example of courts stepping in to overturn the popular will -- this is a bill, passed by the legislature, and signed by the governor. There's no "democracy" problem here.
4.11.2007 4:01pm
Adeez (mail):
Joseph Slater: I'm not disagreeing. As my first point implied, there's not a "democracy problem" here b/c the law was passed through the legislature, which I believe accurately reflected the will of the state's citizens. However, I added my second point b/c I wanted to express the fact that the law was right not only from a democratic or political standpoint, but from a moral one as well.

It also seemed that our friend John425 was implying that the will of the majority should always control. Thus, my concluding reminder.
4.11.2007 4:20pm
Cornellian (mail):
As others have noted, the anti-SSM folks were enraged when the Mass. court decided in favor of SSM, and then went to the legislatures to get some anti-SSM bills passed in some states.

Curiously, they were equally enraged when the Massachusetts legislature refused to take any action to reverse the court's SSM decision even though their decision to do nothing is still a decision by a duly elected legislature. Heck, Gov. Mitt "Flip" Romney even overcame his concern about judicial activism long enough to go to court to try to get a judge to order the legislature into session.
4.11.2007 4:54pm
JosephSlater (mail):
Adeez:

Fair enough. I think the wind is shifting on the "politics" of civil unions and even on gay marriage, so I thought it worth repeating that this wasn't the result of an "activist" court. Especially since some other commentators defaulted to that complaint even though it wasn't relevant here.

But you are certainly right that majorities don't and shouldn't always win in our system, and you and Cornellian are right that the difference between an outrageously "activist" decision and a courageous decision defending rights that would otherwise be trampled by the government often depends on the politics of the commenter.
4.11.2007 6:05pm
Hans Bader (mail):
My post above, noting that marriage can be a worse deal than a civil union (as it has turned out to be for me), contains an inadvertent error in one sentence:

In a sentence discussing the "marriage penalty" in the federal tax code, I meant,

"If your income is VERY DIFFERENT THAN your partner's, and you collectively make less than $100,000 per year, you clearly benefit by filing jointly, but if your income is higher, or your incomes DON'T differ a lot, you don't benefit much, and may even suffer a big loss)."

Even though I wrote the opposite, specifically,

"If your income is very SIMILAR TO your partner's, and you collectively make less than $100,000 per year, you clearly benefit by filing jointly, but if your income is higher, or your incomes DIFFER a lot, you don't benefit much, and may even suffer a big loss)."

Hopefully, the error is a sign of momentary fatigue, not mental deterioration.

With respect to Ramza's point, there is a tax advantage to being in a civil union rather than a marriage for purposes of shielding social security benefits from taxation, since the tax code subjects more of a married couple's social security benefits to taxation than an unmarried couple living together.

I haven't "retracted" that claim of tax advantage.
4.11.2007 6:36pm
Ramza:

With respect to Ramza's point, there is a tax advantage to being in a civil union rather than a marriage for purposes of shielding social security benefits from taxation, since the tax code subjects more of a married couple's social security benefits to taxation than an unmarried couple living together.

I haven't "retracted" that claim of tax advantage.

Which doesn't apply to gay couples do to DOMA, you can make the argument for straight couples over the age of 62 who get a DP (in Washington) but not a marriage.

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Regardless marriage legal benefits are so much more numerous than just how the government taxes your relationship. Even if there was an economic advantage you still have the opportunity cost of all the other legal benefits which marriages in Washington get but Domestic Partnerships do not.

Here are the rights (and this is all of them no more no less) granted by the domestic partnership bill

• health care facility visitation rights;
• ability to grant informed consent for health care for a patient who is not competent;
• authority of health care providers to disclose information about a patient without the
patient's authorization to the patient's state registered domestic partner;
• automatic revocation of the designation of a domestic partner as the beneficiary for
nonprobate assets upon termination of the partnership;
• automatic revocation of power of attorney granted to domestic partner upon
termination of the partnership;
• title and rights to cemetery plots and rights of interment;
• ability to authorize autopsies and request copies of autopsy reports and records;
• right to control the disposition of the remains of a deceased person;
• ability to consent to removal of human remains from a cemetery plot;
• ability to make anatomical gifts;
• inheritance rights when the domestic partner dies without a will;
• administration of an estate if the domestic partner died without a will or if the
representative named in the will declined or was unable to serve;
• beneficiary rights in wrongful death actions; and
• ability to designate a partner's physician as the attorney-in-fact.

PEBB Benefits: A certificate of domestic partnership issued by the OSOS fulfills eligibility requirements for the partner of the public employee to receive benefits. Information recorded on death certificates must include domestic partnership status and the surviving partner's information to the same extent that such information is recorded for marital status and the surviving spouse's information.

The forms must contain statements that registration and termination may affect property and inheritance rights and that rights conferred by registration may be superseded by a will, deed, or other instrument.

You can read the full bill history and text here
Bill History Link

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I am for civil unions (if the confer all the benefits of marriage) or same-sex marriage. I don't really care, this though is unsatisfactory, but at least it is a step in the right direction, even if the legal rights granted are very basic and almost all the legal rights could be replicated with other documents already.
4.11.2007 7:59pm
Randy R. (mail):
It's a step in the right direction, alright. And once people see that granting these enumerated rights to gay couples doesn't spell disaster for hetero marriages, then gay couples will be granted more rights -- probably even marriage.
4.11.2007 11:12pm
JosephSlater (mail):
Randy R.:

Oh, I don't know. When I heard that gays and lesbians in Washington state will soon have health care facility visitation rights, title and rights to cemetery plots and rights of interment, plus inheritance rights when the domestic partner dies without a will, I went right up to my wife and said, "honey, I can't see how our marriage has any meaning anymore, we might as well get divorced." After double-checking the statute, she had to agree.

Now we're off to tell some straight engaged couples we know that they should call off their weddings, because really, what's the point now?
4.12.2007 11:32am