Waldlaw Blog

Wednesday, May 07, 2008

Is This One Country? Contrasts In Domestic Partnership

Two very different legal decisions on domestic partner benefits hit my computer this morning. In the first, the California Court of Appeal in San Diego (which has been on the cutting edge in its family law rulings for many years) ruled that "a person's reasonable, good faith belief that his or her domestic partnership was validly registered with the California Secretary of State entitles that person to the rights and responsibilities of a registered domestic partner, even if the registration never took place." The case involved a gay male couple who signed and had notarized a Declaration of Domestic Partnership. One of the partners believed in good faith that the other partner had filed the document with the Secretary of State, as required by law for the registration to become valid. He later filed for divorce, and his ex-partner moved to dismiss the divorce petition on the basis that their domestic partnership had never, in fact, been filed. Applying the "putative spouse doctrine" -- which protects "innocent parties who believe they were validly married" from being denied family law protections (such as community property divisions and spousal support) -- the Court of Appeal ruled that the partner who filed for divorce should have the opportunity to establish -- as a factual matter -- that he did, indeed, possess a reasonable and good faith belief that the domestic partnership had been registered. If so, under this ruling, he is entitled to the full benefits and responsibilities afforded registered domestic partners under California law. In stark contrast, the Michigan Supreme Court ruled yesterday in a 5-2 decision that the Michigan Defense of Marriage Act -- which amended the Michigan Constitution to provide that: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" precludes public employers in Michigan from providing health care and other benefits to the same-sex partners of employees. This means, for example, that the University of Michigan is precluded, as a matter of state constitutional law, from providing health benefits to the same-sex partners of university employees. Unbelievable! These two court decisions -- filed within 24 hours of each other -- graphically illustrate the divide we are seeing between states that are trying to protect gay families and states that remain openly hostile. I have to wonder: will this ever feel like one country again? Or maybe the more honest question is: was this ever really one country?


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