Q. The “affidavit of domestic partnership” I signed at work lets me claim my partner as my dependent, but when we tried to file a “domestic partnership declaration” with the state it was rejected because we are not the same sex. This is confusing and doesn’t seem fair.
A. The term “domestic partnership” is and has been used in a variety of scenarios with differing intents and effects, and it can indeed be confusing. A little history will help clear this up.
Living together without being married used to be called cohabitation, and until the 1970s it was illegal in every state in the US. In fact, in seven states (Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia), it’s still illegal.
Back then, courts consistently ruled that because men and women who cohabitated were living outside the law, they had no rights of any kind. They couldn’t claim each other as dependents, and if they split up there was no obligation to divide their property fairly.
It wasn’t until 1978 that the Oregon Supreme Court decided it was time to recognize that people do live together without getting married first, and that these “domestic relationships” do confer some legal rights. Oregon courts have ruled on many domestic relationship cases since then, but they have pretty much limited their involvement to settling property division disputes.
By 1993, the courts had begun referring to these relationships as “domestic partnerships.” However, these “domestic partnerships” are still relationships rather than legal entities, and there aren’t any laws defining them or assigning the partners rights and responsibilities. When these cases go to court, it’s still for the purpose of deciding how to divide property.
In 1998, the Oregon Court of Appeals ruled that employers violated the Oregon constitution when they denied domestic partners of unmarried employees benefits they extended to the spouses of married employees. The ruling applies only to state and local government agencies, however. Private employers may offer benefits to domestic partners, but they don’t have to.
In 2007, the Oregon legislature enacted the “Family Fairness Act.” This law created a legal entity known as a “domestic partnership,” and its purpose is to extend some of the benefits of marriage to same-sex couples. The text of the law strongly emphasizes the need to provide some legal protection to same-sex couples who are involved in stable, long-term relationships, especially when they are raising children together.
So, the “affidavit of domestic partnership” your employer provided is available to all employees, even those who could marry if they wished. Its primary purpose is to extend your health care coverage to your unmarried partner. In your case, if you want more legal rights and benefits, you have the option of marriage.
The “domestic partnership declaration” provided by the state is available only to same-sex couples, and only because under the Oregon constitution they cannot marry. Its primary purpose is to secure those couples, and their families, certain rights and benefits under state law that they would otherwise be denied. While it may seem unfair that you can’t be domestic partners in this sense, it’s only because you have the right to what many consider the better option: Marriage.
