Defining Family

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Thirty Years Later: An Historical Perspective on Family
The first edition of this book (published in 1980) addressed the issue of
marriage only by noting that it wasn’t available to same-sex couples, and
discussing what that meant. The first chapter was about legal and political
strategies for fighting discrimination, and about legal rules governing sexual
conduct throughout the United States. It was only in the 12th edition,
published in 2004, that we deleted the chart listing state laws prohibiting
consensual sexual conduct—it took the 2003 United States Supreme Court
decision in Lawrence v. Texas to make sodomy laws obsolete.
In 1980, there was no such thing as “domestic partnership.” No state
offered any benefits to nonmarital partners, straight or gay, and the only
way for same-sex couples to protect their rights in relationships was to
write contracts defining how they wanted to deal with their money and
assets. These contracts were the focus of the first edition, and they are
still a primary focus 30 years later. While there have been major changes
in some states, the need for same-sex couples to take control of their
legal relationships has not changed. We still need to educate ourselves,
communicate about how we want to structure our relationships, and take
the time to put our arrangements in writing.
Defining Family
According to Webster’s New Collegiate Dictionary, a family is “the basic
unit in society having as its nucleus two or more adults living together
and cooperating in the care and rearing of their own or adopted children.”
Despite this inclusive (and sexual-orientation-neutral) definition, a lesbian
or gay couple—with or without children—is not the picture that many
people see when they think of a family.
As a result, government benefits traditionally awarded to spouses—such
as unemployment insurance for spouses who relocate to accommodate
their partner’s job change, and workers’ compensation benefits for spouses
of injured workers—have historically been denied to same-sex partners.
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And because they are often not considered “immediate family,” partners
of lesbians and gay men have been denied the right to sue for emotional
distress over the death of a partner or to stay in an apartment after their
lover dies when their name isn’t on the lease. Along the same lines, until
recently, same-sex couples have generally not been treated as spouses when
their relationships ended, leading to confusion over how to divide assets.
Finally, however, things seem to be changing. Many courts are
beginning to treat same-sex partners like spouses, even many same-sex
couples who cannot marry or even register as domestic partners. This
section gives some examples in which public entities have treated samesex relationships as families in the eyes of the law. Such cases are not the
norm, but they seem to represent the beginning of a trend toward greater
flexibility and inclusiveness in official definitions of family. And in those
states that recognize legal partnerships, full equality on a local level is
now available.
Government Benefits
Most of the examples in this section come from California cases (yes,
there are reasons so many gay men and lesbians flock to the Golden
State), but other states’ agencies are coping with the same issues, and in
some instances, making similar decisions.
Unemployment benefits for caretakers. For years, married partners have
received unemployment insurance benefits if they quit their jobs to care
for terminally ill spouses. Several years ago, a gay man in California
who left his job to care for his lover who had AIDS successfully
sought unemployment benefits. The Unemployment Appeals Board
acknowledged that gay relationships can be as serious, loving, and
committed as marriages.
Unemployment benefits for relocation. A woman was awarded
unemployment insurance benefits after she quit her job to move with
her lover, who was beginning a medical residency in Pennsylvania.
The Unemployment Appeals Board judge who decided the case stated
that benefits are available when a person leaves a job to move with a
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spouse to a place from which it is impractical to commute. In this case,
the applicant’s “spouse was accepted into residency and this certainly
provided good cause for the couple to move.” The judge knew the couple
was lesbian, but chose to refer to them as spouses.
Workers’ compensation death benefits. A gay man won benefits when
his lover, a county district attorney, committed suicide because of jobrelated stress. The Workers’ Compensation Appeals Board found that the
surviving partner had depended on the deceased man for support, and
said that the homosexual relationship of the two men shouldn’t preclude
the survivor’s rights to benefits.
Pension benefits. New York State’s public employee pension fund will
recognize marriages of same-sex couples just as they do marriages of
opposite-sex couples for purposes of providing death benefits and cost of
living adjustments to surviving spouses.
Partner benefits for diplomats. As of May 2009, partners of American
foreign service officers must be treated the same as opposite-sex spouses
for purposes of various departmental policies. Although the policy
arguably violates the Defense of Marriage Act, Secretary of State Hilary
Clinton stated it was necessary for recruitment purposes as well as being
“the right thing to do.”
Social Security benefits. The United States Justice Department granted
Social Security disability benefits to the child of a disabled lesbian, even
though the parent-child relationship was based on the nonbiological
mom’s civil union relationship with the biological mom. The DOJ found
that the benefits were payable because they’re based on the parent-child
relationship, not the relationship between the two parents, and therefore
paying benefits doesn’t violate the DOMA.
Paid family leave. In California, Washington, and New Jersey, same-sex
partners in registered domestic partnerships and civil unions, respectively,
are included among employees entitled to paid family leave under state
law.
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Court Cases and Legislative Action
Courts, legislatures, and public agencies have also begun to grant
recognition to same-sex partnerships in some circumstances, sometimes
treating partners just as they would spouses even where formal
recognition is not yet in place. Here are some examples:
• The federal Office of Personnel Management updated its definition
of “family member” and “immediate relative” for leave purposes,
to include same-sex domestic partners in the broad category of
“individual[s] related by blood or affinity whose close association
with the employee is the equivalent of a family relationship.”
• In New York City, where affordable and decent housing is very
hard to find, a domestic partnership law gives a surviving domestic
partner the right to keep an apartment after the death of the
lease­holder even if the couple is unmarried. Before this law was
enacted, a surviving partner risked sudden homelessness when the
leaseholding partner died and the survivor’s name was not on the
lease.
• Also in New York, a state court ruled that New York City must
actively enforce its Equal Benefits Law, which requires city
contractors to provide domestic partners the same employment
benefits they provide to spouses. The Pennsylvania Supreme Court
upheld a similar ordinance in Philadelphia. (San Francisco and Los
Angeles have similar laws.)
• In Denver, a city worker who took three days off to care for her
seriously injured lover was granted sick leave by a hearing officer
who declared that the policy allowing workers to take sick leave
to care for family members was applicable to all city employees
regardless of sexual orientation.
• In Washington, DC, a woman was allowed to file a claim under
the district’s Wrongful Death Act after her lover died, because a
court found that the surviving partner qualified as her deceased
lover’s “next of kin.” (This was before the District of Columbia got
marriage in 2011.)
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• A New Mexico court ruled that an unmarried cohabitant can
make a claim for “loss of consortium”—usually defined as the loss
of the companionship of a spouse as a result of injury. The court
ruled that factors to be considered in determining whether an
unmarried partner’s claim should be granted include the length
of the relationship and the degree to which the partners’ lives
are intertwined. (Lozoya v. Sanchez, 133 N.M. 579, 66 P.3d 948
(2003).) On the other hand, the Massachusetts Supreme Court
ruled in 2008 that an unmarried same-sex partner could not state
a loss of consortium claim even though marriage wasn’t available
to the couple at the time of the accident and the couple was clearly
committed, and a loss of consortium claim was also denied in New
Jersey, for the same reasons.
• In a Pennsylvania case, two men who had lived together for 18 years
were both convicted of possession and sale of methamphetamine.
Both had the same probation officer after being released from
prison; the officer refused to grant permission for the two to
associate with each other because of the standard prohibition on
parolees associating with felons. The federal court ruled that the
two had a constitutionally protected right to continue their intimate
relationship.
• In California, a surviving unmarried partner of a man who died
from AIDS was awarded $175,000 by a court for emotional distress
experienced after a funeral company mishandled the deceased man’s
ashes. Previously, such recoveries were limited to spouses.
• A New York trial court ruled a few years ago that a property
settlement entered into by a gay couple married in Massachusetts
would be enforced in New York even though at the same time, the
state wouldn’t recognize the marriage.
• Again in New York, the New York City Department of Homeless
Services changed its policies and agreed to recognize domestic
partners for purposes of providing shelter to homeless families.
• Even before the state began offering civil union registration, the
Rhode Island attorney general issued an opinion stating that Rhode
Island would recognize marriages performed in any other state,
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including same-sex marriages in Massachusetts, and that such
recognition was not against Rhode Island public policy.
• The Virginia Supreme Court ruled that the Department of Vital
Records must issue new birth certificates listing both same-sex
parents following the adoption of children born in Virginia.
• The Alaska Supreme Court held that public employers in that state
could not deny same-sex domestic partners the benefits that were
provided to spouses of married employees.
• In June 2004, two lesbians reached a settlement with a Presbyterian
retirement community that had denied them admission based on
a policy against accepting any unmarried, nonrelated couples. The
settlement allowed the women to join the retirement community,
and the facility changed its policy to allow equal access to all
qualified applicants.
• In a mixed result, the California Supreme Court held that a country
club discriminated under state and local laws by denying a lesbian
member’s partner the right to spousal privileges at the club, based
on its policy that only legally married spouses could enjoy these
privileges. (Koebke v. Bernardo Heights Country Club, 36 Cal.4th
824.) But in Minnesota, an appeals court supported an athletic
club that refused a family membership to a lesbian couple and their
child, on the basis that family memberships required marriage,
which is not available to same-sex couples there.
And in a high-level legal shift that was a preview of more changes on
the way, in 2002 the American Law Institute, a prestigious organization
made up of judges, lawyers, and legal scholars, issued a report
recommending sweeping changes in domestic relations law. The report
recommended that all unmarried partnerships be subject to the same
rights and responsibilities upon breakup as spouses in a marriage.
To be sure, not all cases have resolved in favor of same-sex partners:
• In Florida, a state pension board denied a petition filed by the
surviving partner of a Tampa police officer killed in the line of duty
who sought pension rights that would automatically have gone to
her if she and her partner had been able to marry. The circuit court