The New Jersey Domestic Partnership Law
Its Formal Recognition of Same-Sex Couples, and How It Differs From Other States' Approaches

On November 5, 2003, a trial court in New Jersey upheld the state's ban on same-sex marriage. But this year, on January 8, the New Jersey Senate followed the trend in a small but growing number of states and approved a domestic partnership law that gives formal recognition to same-sex couples.

The Governor of New Jersey is expected to sign the bill into law shortly. New Jersey's law is modest in scope. But it is also important in both practical and symbolic ways.

New Jersey's "Domestic Partnership Act" creates a legal status that is available both to same-sex couples and to opposite-sex couples over age 62. (The potential loss of, or reduction in, retirement benefits for senior couples sometimes makes them reticent to marry, despite being in a committed relationship.)

According to the legislative findings, the state recognizes that many individuals choose to live in "important personal, emotional and economic committed relationships with another individual," and that these relationships assist the state in promoting the "financial, physical and emotional health of their participants." Although a central purpose of the bill is certainly to validate the rights of same-sex couples, it also has the effect of encouraging private dependencies rather than reliance on state benefits.

The bill provides formal recognition of domestic partnerships, without recognizing a right of same-sex couples to marry. It also specifically states that New Jersey will recognize similar partnerships created elsewhere--such as a Vermont civil union or an Hawaii reciprocal beneficiary relationship.

To register for a New Jersey domestic partnership, a couple must share a common residence, be engaged in a "committed relationship of mutual caring," and agree to support one another if the need arises. They must also demonstrate existing financial interdependence like a joint mortgage, bank account, or designation of one in the other's will. Closely related individuals (such as siblings or even first cousins) cannot enter into a domestic partnership, just as such individuals could not marry.

The New Jersey Act offers certain financial rights that opposite-sex married couples currently enjoy. Same-sex domestic partners may claim joint tax status for state tax purposes. Like spouses, domestic partners may claim mandatory insurance coverage and pension benefits if their partner is a state employee. But, oddly, they cannot claim a right to family entitlements in public benefit programs.

Meanwhile, while private employers are not obligated to pay for domestic partner coverage, insurance companies must offer coverage to domestic partners on the same terms they offer it to spouses.

The bill also adds "domestic partnership status" to the list of characteristics upon which basis employers, landlords, lenders, and a host of others cannot discriminate.

In addition, the bill provides important personal rights such as the right of hospital visitation, often reserved only for immediate family members, the right to consent to organ donation, and the right to name one another in a health care proxy.

Finally, the New Jersey regime is notable also for what it does not provide. In certain respects, domestic partnership, under the New Jersey law, falls far short of marriage.

The status is obviously not called "marriage," which is significant. But it also does not extend rights considered central to marriage. For example, the New Jersey law does not offer a right of entitlement to support, or property sharing, when the relationship dissolves. Thus, there is no equivalent of alimony, or division of marital assets, for domestic partners.

Domestic partners do not, however, have a free way out. The Act provides grounds for termination of same-sex partnerships much like the state's grounds for divorce, such as adultery, desertion, cruelty, habitual drunkenness and voluntary separation for at least 18 months. (A domestic partnership between individuals of the opposite sex over age 62 is automatically terminated when either enters into a valid, opposite-sex marriage.) But the court's jurisdiction over dissolution expressly does not include the power of equitable distribution.

Domestic partners also do not automatically acquire rights or obligations with respect to any children, which is different from the treatment of married couples. (A husband in most states is the "legal father" of any child born to his wife during their marriage, regardless of biological connection.)

Moreover, the New Jersey law does not include a domestic partner in the intestate succession scheme--a surprising omission, given that it does equalize the treatment of domestic partners and spouses for inheritance tax purposes. Thus, if one partner dies without a will, the other partner may still receive nothing at all -- while, in dramatic contrast, a spouse would have received a large share of the estate.

A domestic partner is also not entitled to an elective share of the other partner's estate (a right against total disinheritance). The existence of the domestic partnership may, however, help fend off will contests based on undue influence if one partner does designate the other as a beneficiary.

Finally, the New Jersey law does not specifically amend the state's tort laws to give domestic partners standing to sue for the injury or death to the other. Although that kind of right has been established by cases in a few other states, the New Jersey Act specifically states that it is not to be construed to grant rights beyond those explicitly granted.

At the moment, Vermont's civil union law is the most comprehensive. It provides same-sex partners in a civil union each and every benefit that accrues to and obligation that is imposed on a married couple. Over a thousand Vermont laws were amended to include civil union partners in the many laws regulating marriage. (The downside of this broad approach, as I have discussed in a previous column, is that civil union partners who are not residents of Vermont have found it extremely difficult to get divorced.)

Massachusetts has no statutory scheme yet--only a bill pending in the Senate that would create a status parallel to Vermont's civil union. But it may end up with a very broad law -- indeed, a law even broader than Vermont's in that it might allow same-sex couples to enter into marriages per se, rather than just a marriage-like relationship.

In its landmark decision in Goodridge v. Department of Public Health, the Massachusetts Supreme Court intimated that same-sex couples must be permitted access to civil marriage itself, not just some rough equivalent. Accordingly, the Massachusetts Supreme Court may well hold that civil unions are not enough, and that the only constitutional solution is to extend the current marriage law (and its benefits) equally to both opposite-sex and same-sex couples.

On the other end of the spectrum, Hawaii's and California's laws are considerably narrower. Hawaii created a reciprocal beneficiary status, which is in some ways quite limited. It provides a number of benefits to partners of state employees, but only limited benefits for others. Hospital visitation, tax benefits, standing for tort claims, and a right of inheritance are among the general rights provided to those in reciprocal beneficiary relationships.

But the law does not purport to create marriage-like relationships, and offers no right to property division or alimony upon termination. Reciprocal beneficiary relationships, in fact, can be unilaterally terminated by either party through the simple filing of a declaration with the appropriate governmental office.

Hawaii's law is notably broad in one particular respect: it permits two individuals who cannot marry--like grandmother and grandchild--to enter into a reciprocal beneficiary relationship. The purpose of the registry is to validate varying kinds of personal relationships and financial interdependencies, not just those of gay couples.

California's domestic partnership law, enacted in 1999, provides similar types of benefits to Hawaii's. Domestic partnerships are available on the same terms as in New Jersey--to same-sex couples or opposite-sex couples over 62 in a relationship of mutual caring. Registered partners are entitled to a range of rights relating to insurance, state taxes, employment, and healthcare decision-making. The law also, through a recent amendment gives domestic partners an intestate share equivalent to that of a spouse. And, as in Hawaii, either partner can unilaterally terminate the partnership.

What about other states' approaches -- and those of private employers? They are more piecemeal.

Case law and statutes in many states provide protections for some aspects of gay relationships, without recognizing the relationship itself as a marriage or quasi-marriage. Several states now prohibit discrimination on the basis of sexual orientation. And several permit partners in a same-sex relationship to adopt one another's biological children.

As I discussed in a prior column, a few states, such as New York, have also recognized the ability of a same-sex partner to sue under the state's wrongful death statute. (However, the New York ruling, which was premised on the couple's Vermont civil union, is currently on appeal.)

Meanwhile, thousands of employers--including private companies, universities, and governmental entities--provide domestic partner benefits. Employment-based benefits are obviously limited in scope, but financially, they can be very important. The right to insurance coverage or other benefits normally provided to a spouse or children can be valuable indeed.

At least seventy municipalities mandate certain rights for domestic partners, too.

Ironically, New Jersey's recognition of same-sex domestic partnerships is notable in part because few have taken much note of it. It was a bold law, but there was a distinct lack of fanfare -- or controversy -- surrounding its passage.

The bill grants wide-ranging protections for same-sex couples, and joins only four other states that provide similar protections. Yet news of its passage wasn't even front-page news in major papers. (The New York Times noted it in the "Metro" section; the Washington Post, in its "Nation in Brief" column.)

So why did the New Jersey law attract so little comment? The answer is probably that protections for domestic partners are becoming commonplace enough that each incremental development is no longer earth-shattering news. And the normalization of domestic partnerships is itself notable -- the sign of a dramatic cultural sea change.

New Jersey's adoption of a domestic partnership regime is also noteworthy for a second reason: The legislature led the way.

As noted above, the only New Jersey court to consider the question had rejected the claim that same-sex couples had a right under the New Jersey constitution to have their relationships recognized. The Senate's bill was thus not a concession required by a court decision -- as the Massachusetts legislature's pending bill is. Nor does the New Jersey law foreclose a later move to recognize more complete marriage rights.

In Massachusetts, the Supreme Court led the legislature -- offering a civil union law similar to Vermont's in an attempt to palliate a Court insistent on equal marriage rights.

In Hawaii, for example, the Hawaii courts first recognized a constitutional right of same-sex marriage. Then the Hawaii legislature began to consider a constitutional amendment to ban same-sex marriage altogether. Finally, the law creating the "reciprocal beneficiary" status was enacted in an attempt to resolve the battle.

And in Vermont, the Vermont Supreme Court held that it would mandate the provision of same-sex marriage unless the legislature created a statutory equivalent that made all the benefits and obligations of marriage available to same-sex couples. Unsurprisingly, the legislature followed up by passing the civil union law.

But in New Jersey, the legislature led the courts -- offering a domestic partnership law without judicial prompting, and, indeed, before the relevant case could even reach the state's highest court.

New Jersey's legislature should be lauded for acting on its own, without having to first be prodded reluctantly into action by the courts. Not only is recognizing same-sex rights the right thing to do, but the likelihood of public acceptance increases when social and cultural changes are implemented by a democratically elected body, rather than an appointed judiciary.

At the same time, however, the New Jersey bill could have gone much further, and a case working its way through New Jersey's courts might require more significant protections. For reasons I noted above, it falls short of a truly monumental development, or a guarantee of truly equal rights for same-sex couples.

A law recognizing a full-fledged right to marry would obviously be more significant, though such a law would engender more backlash as well.