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CHAIRMAN GRAHAM AND MEMBERS OF THE SUBCOMMITTEE ON HUMAN RIGHTS, LATINO AFFAIRS, ASIAN AND PACIFIC ISLANDERS, AND PROPERTY MANAGEMENT: MY NAME IS KENNETH L. SAUNDERS AND I AM THE DIRECTOR OF THE OFFICE OF HUMAN RIGHTS FOR THE DISTRICT OF COLUMBIA. I GREATLY APPRECIATE THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY TO DISCUSS THE HUMAN RIGHTS MARITAL STATUS CLARIFICATION AMENDMENT ACT OF 2004.

• As you know, the DC Office of Human Rights is an agency of the District of Columbia government that seeks to eradicate discrimination, increase equal opportunity, and protect human rights in the city.

• For almost 20 years, we have recognized 16 protected classes, including marital status. Presently, the DC Human Rights Act defines marital status as “ the state of being married, single divorced, separated , or widowed and the usual conditions associated therein, including pregnancy and parenthood.”

• Although the DC Human Rights Act does not include domestic partnerships in its protected classes, domestic partnerships are already defined under District law.

• The Health Care Benefits Expansion Act of 1992 defines “domestic partner" as a person with whom an individual maintains a committed relationship as defined in paragraph (1) of this section and who has registered under § 32-702(a). Each partner shall:

  (A) Be at least 18 years old and competent to contract;

  (B) Be the sole domestic partner of the other person; and

  (C) Not be married.

• To establish the existence of a domestic partnership and to qualify for benefits, persons must register as domestic partners by executing a declaration of domestic partnership to be filed with the Mayor.

• The Draft Bill would amend Section 102 of the Human Rights Act of 1977 to add the phrase “domestic partnership” to the definition of “marital status.”

• Therefore, the definition would read, “Marital Status means the state of being married, in a domestic partnership, single, divorced, separated, or widowed and the usual conditions associated therewith, including pregnancy or parenthood.”

• The Office of Human Rights was requested to give a legal opinion regarding this Draft Bill and the following is an attempt to do so.

• If enacted into law, the Draft Bill would extend the protections of the Human Rights Act to domestic partnerships.

• For example, persons subject to the Human Rights Act would need to properly update and conform their records for compliance and reporting purposes.

• In addition, subject to any exception, all permits, licenses, franchises, benefits, exemptions, or advantages issued by or on behalf of the District government would be required to comply with the Human Rights Act.

• The Draft Bill would likely have no effect on existing District laws that govern the rights of persons who are in a domestic relationship rather than in a marriage.

• It is a general statutory construction that laws must be harmonized with each other so as to give the greatest possible effect.

• It is our understanding that courts look first at the language of the statute. Courts generally will not employ legislative history to interpret a law, unless the meaning cannot be clearly discerned from its plain language.

• Courts will not enlarge a statute to include something that is not there; and repeals, or amendments by implication are not favored.

• Therefore, the courts would probably not deem the existing positive laws relating to marriage benefits to be implicitly amended or repealed by the Draft Bill.

• If there is a conflict between statutes, the more specific statute (giving specific rights to married people) would prevail, even if it was enacted prior to the more general statute or the Draft Bill, unless the legislature intended to make the more general bill controlling.

• Accordingly, the numerous District laws which give certain rights to married people, likely would not be changed in any way by the enactment of the Bill.

• It is the legal opinion of the General Counsel of the Office of Human Rights that under current law, the courts would not view the Draft bill as vesting in domestic relationships, the rights now afforded to married couples.

• A more affirmative statutory amendment would be needed to override the exclusion of domestic partners from the numerous benefits and rights now afforded, under District law, to exclusively married people.

• These laws are too numerous to enumerate in this setting. But, as currently codified in the D.C. Official Code, some of the laws include the: (1) ability to give informed consent for mentally retarded persons in a medical emergency; (2) authority to make anatomical gifts; (3) alimony pendent elite; (4) maintenance of spouse; (5) rights of surviving spouse and children; (6) enforceability of child support; (7) differences in standard tax deductions; and (8) joint ownership of mot! or vehicles and trailers.

• It may be instructive to look at the laws in other states to see how they both define domestic partnerships and construe it as it relates to other laws.

• A few states have domestic partnerships as a separate protected class in their discrimination statute, and others have an entirely separate section relating to domestic partnerships, primarily relating to the provision of benefits.

  California

• The California Domestic Partner Rights and Responsibilities Act of 2003 extends the rights and duties of marriage to persons registered as domestic partners. This will take effect in January of 2005.

• Under the Act, domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.

• A domestic relationship shall be established under the Act when: 1) Both persons have a common residence; 2) Neither person is married to someone else or is a member of another partnership; 3) The two persons are not related by blood in any way that would prevent them from being married to each other in this state; 4) Both persons are at least 18 years of age; 5) Either of the following: both persons are members of the same sex or one or both persons meet the eligibility under the Social Secur! ity Act for insurance benefits for the elderly. Notwithstanding any other provision, persons of the opposite sex may not constitute a domestic relationship unless one or both of the persons are over the age of 62; 5) both persons are capable of consenting to the domestic relationship.

  New Jersey

• On January 12 2004, former Governor James McGreevy signed into law the Family Equality Act, more commonly known as the Domestic Partnership Act. The Act amends the New Jersey Law Against Discrimination by adding domestic partnership as a protected class.

• Although most states have this type of law somewhere in the legislative process, New Jersey has become the fifth state in the US to recognize some form of domestic partnership.

• In NJ, domestic partners are defined as either: Two persons of the same sex; or two persons of the opposite sex who are both at least age 62.

  Maine

• Although Maine does not include marital status as a protected category under employment, housing or public accommodation, it does include it under credit discrimination under their Act.

• With respect to domestic relationships, the Insurance Code mandates that the insurance companies offer benefits to domestic partners.

• Under that section, a domestic partner means a partner of a subscriber who: (1) Is mentally competent adult as is the subscriber; (2) Has been legally domiciled with the subscriber for at least 12 months; (3) Is not legally married to or separated from another individual; (4) Is the sole partner of the subscriber and expects to remain so; and (5) Is jointly responsible with the subscriber for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or! joint ownership of real or personal property.

  Hawaii

• Although Hawaii does not include domestic partnerships as a protected class, it does include race, sex, sexual orientation, age, religion, cold ancestry, disability, marital status and arrest record.

• Hawaii created a provision for domestic partners, termed reciprocal beneficiaries, under its Family Code. The purpose of this chapter was to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law.

• In order to enter into a valid reciprocal beneficiary relationship, it shall be necessary that:(1) Each of the parties be at least eighteen years old; (2) Neither of the parties be married nor a party to another reciprocal beneficiary relationship; (3) The parties be legally prohibited from marrying one another; (4) Consent of either party to the reciprocal beneficiary relationship has not been obtained by force, duress, or fraud; and (5) Each of the parties sign a declaratio! n of reciprocal beneficiary relationship.

• The legislature was quick to point out that reciprocal beneficiaries may include familial relationships, for example, elderly mother and unmarried son.

  Vermont

• Domestic relationships can be recognized as civil unions in the State of Vermont. Parties to a civil union have all the same benefits, protections, and responsibilities that are granted to spouses in a marriage. For example, the law of domestic relations, including annulment, separation, divorce a! nd child custody and support, and property division apply to civil unions.

• Based on our review of the state laws, no other jurisdiction that has “marital status” as a protected class, includes domestic partnership under the definition.

In 2001, Lambda Legal created a partial summary of domestic partnership registries which included the following:

National
US House of Representatives
Arizona
Tucson (Pima)
California
State of California
Arcata (Humboldt)
Berkeley (Alameda)
Cathedral City (Riverside)
Davis (Yolo)
Laguna Beach (Los Angeles)
Colorado
Denver (Denver)
Connecticut
Hartford (Hartford)
Massachusetts
State of Massachusetts
Boston (Suffolk)
Brewster (Barnstable)
Brookline (Norfolk)
See, www.lambdalegal.org/cgi-bin/iowa/documents/record?record=403

• It is in the context that municipalities and private employers have begun to increasingly recognize domestic partnerships.

• Registration provisions that are open to the general public do not seem to be limited to same sex couples. Thus, even though heterosexual couples are free to marry, if they opt not to marry they are still free to avail themselves of the registration provisions.

• General domestic partnership registration provisions impose various eligibility requirements in order to register.

• Interestingly, these conditions often mirror the requirements to enter into marriage. Thus, it is very common to require that the parties be at least 18 years old, that each be mentally competent, that the parties not be related by blood ties closer than would bar marriage in the state, and that neither of the parties have an existing marriage or domestic partnership. Some may require that any prior domestic partnership have been terminated for a minimum period of time (for example, Ann Arbor requires 3 months, San Francisco and New York City require 6 months).

• Regardless of a state’s definition of marital status or domestic partnership, the public and private sector are responding with policies in recognition and support of the various family relationships.

  Consider these facts. According to one report, [1]

  1) Currently, more than ten percent of all employers offer domestic partner benefits. Among companies with more than 5000 employees, almost one quarter offer these benefits.

  2) Increasingly, colleges and universities are extending benefits beyond the families of married faculty members to the domestic partners of gay and lesbian professors. Nearly 360 colleges and universities now offer some kind of domestic partnership benefit, which may include insurance policies (health, disability, life); tuition remission; child care; family and bereavement leaves; and retirement plans.

  3) Currently, Big Ten universities that provide and pay for domestic partner benefits include Indiana, Iowa, Michigan, and Michigan State.

  4) More than 62 percent of Americans support domestic partners receiving equal access to inheritance benefits.

  5) And contrary to many predictions, some studies have shown that domestic partnership benefits are not costly and enrollment is low; generally less than 2.5 percent of employees elect these benefits.

• THANK YOU, AGAIN, CHAIRMAN GRAHAM, FOR THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY AND I WILL GLADLY ANSWER ANY QUESTIONS.

[1] Domestic Partner Statistics, Insurance, Taxes, Court Cases-data from the National Gay and Lesbian Task Force, Domestic Partnership Organizing Manual. 2000, Demian.