Introduction.

Today, fewer and fewer families live in what many have dubbed "traditional family relationships" with a working husband, a non-working wife and their children. Unfortunately, our legal and social system, with its incentives and protections for the traditional family, fails to provide for a majority of U.S. employees. As a response to the inadequacy of legal and social frameworks in defining relationships, many people, including lesbians and gay men, began searching for a new definition of family--one that fits their reality. Hence, the concept of "domestic partnership" was born.

Benefits for domestic partnerships are a variation on the theme of recognizing and respecting the reality of today's relationships for the following reasons:

First, benefits for the unmarried partners of employees are important for the simple reason that they are desperately needed. If a partner is seriously ill, an employee will need time to take care of her or him. In addition, if the partner falls outside coverage by the private health care industry, the employee will need to pay for her or his medical expenses. Furthermore, if the partner has a child, the employee will need to help care for the child. These are just a few of the instances in which partner benefits, though gravely needed, are not granted to unmarried employees.

Second, domestic partnership benefits are important because the majority of people in the United States still have misconceptions about unmarried couples in general, and about lesbians and gay men in particular. Lesbians and gay men are often depicted in the media and perceived by many as anti-family and unable to commit to long-term relationships. However, each time they lobby for domestic partnership rights, either within private corporations or in the public sector, those perceptions are challenged. This action helps to educate the citizenry about the lives and families of gay men and lesbians.

Third, although domestic partnership recognition may confer few legal rights, couples could conceivably use their partnership as evidence of a familial relationship, which in turn could be used to support questions which arise in family matters, ex., estate issues.

A. Historical Background (1)

When seeking such benefits, it helps to have a general understanding about why employers offer family benefits:

Prior to World War II, the vast majority of employers did not extend benefits coverage to an employee's family members. As the influence of unions increased, however, employees pressured employers to provide better employee benefits. Employees' demands were based on their needs. At that time, most employees in a position to bargain for benefits were men. They lived in family units consisting of one wage earner, a financially dependent spouse and dependent children.

Women who did not work in the private sector--the vast majority did not--were not eligible for group plans. Although private plans were available, they were prohibitively expensive. Employees demanded and received extended benefit coverage for their spouses because the spouses needed such coverage. The model for family benefit coverage that exists today developed as a result of the very real economic needs of employees fifty years ago.

While employers continue to extend employee benefits on the basis of the above family model, economic realities have changed even more. In some two-income households, employee benefit coverage is available to both spouses through their respective employers. In other two-income families, an individual may only be employed part-time, underemployed, or working in a job that otherwise does not offer benefits.

B. Benefit Extension History

Some familiarity with benefit extension history is useful for several reasons:

Even in many households with two wage earners, one partner often is ineligible for health insurance benefits. This is particularly true for lesbian couples because women are traditionally in lower-paying positions with fewer employment benefits. For these couples the need for coverage of a partner is great, just as it was for non-working wives 50 years ago. Employers who extend benefits only to spouses of employees cut off the partners of some lesbian and gay employees despite the fact that the employer awards benefits on that very principle--one partner needs to provide coverage for the other partner who would not otherwise be covered.

There is precedent for extending benefits based on need and economic reality--for distributing the benefits according to how people really live. Benefits were not originally extended in order to "promote marriage," as some employers, insurance companies, and courts now claim, but in order to meet the needs and desires of employees. In such cases, employers and insurance companies extended benefits to a group of "unknowns" or potentially "high risk" persons about whom they had little, if any, actuarial data.

There are some situations where extending benefits to gay and lesbian employees based on need would be unnecessary. In many domestic partnership relationships, both partners are full time employees that qualify for and receive benefits. In these situations, extending benefits simply constitutes an employer's acknowledgement of the fairness principle--equal pay for equal work.

(1) We are indebted to Matt Coles of the ACLU of Northern California for the substance of this historical analysis.