A Rose by Any Other Name:

Why Oregon’s Domestic Partnership Law Is Thinly Veiled Same-Sex Marriage

Oregon’s new Domestic Partnership law violates the Oregon Constitution by extending all benefits of Oregon Marriage to same-sex couples.
The Domestic Partnership law violates the spirit of section Article XV § 5(a) of Oregon’s constitution, which limits Oregon Marriage to one man and one woman. The people of Oregon amended the state constitution to limit Marriage and its benefits to one man and one woman. The Domestic Partnership law explicitly grants all Oregon Marriage benefits and privileges, including all tax benefits, to Domestic Partnerships. HB 2007 § 9. The Domestic Partnership law adds “or domestic partnership” after “marriage” 17 times in Oregon law. Gay rights advocacy groups say that Oregon’s Domestic Partnership statute grants Domestic Partners over 500 rights, responsibilities, and benefits of Marriage in Oregon.

The law was promoted by Governor Ted Kulongoski, who argues a Domestic Partnership law will help same-sex families in Oregon become “equal” with traditional families. If this is true, it is logical to infer the intent of the Governor and top legislators is to sneak around Oregon’s constitution by granting same-sex couples Marriage with a different name.

Technicalities do not create a meaningful distinction between Marriage and Domestic

Partnerships.

The legislature created technical differences between Marriage and Domestic Partnerships. These technicalities are an attempt to bypass Oregon’s constitutional ban on same-sex Marriage. For example, one distinction is that a judge or member of the clergy does not have to solemnize a Domestic Partnership. Domestic Partners simply register with the County Clerk, filing license and affidavit of Domestic Partnership. Persons entering a marriage must both obtain a license and have their Marriage solemnized by an officiated exchange of vows. Another technical difference is the residency requirement to enter into a Domestic Partnership in Oregon. There is no residency requirement to enter a marriage in Oregon, but at least one person in a Domestic Partnership must be an Oregon resident in order for a couple to become Domestic Partners. This is because the Domestic Partnership is only valid in Oregon and can only be enforced by Oregon courts. Domestic Partnerships cannot be recognized by most other states, and Domestic Partners are not eligible for Federal Marriage benefits. However, this is also true for full-fledged same-sex marriage in Massachusetts.

Another example of the use of technicalities to escape the mandate of the Oregon constitution is the legislature’s decision to change the name of the same-sex union provided for in the Domestic Partnership Statute. Initially, the Oregon Domestic Partnership law was a “Civil Union” statute. This proved unpopular because many people associate Civil Unions with marriage, so the legislature changed the terminology. Other provisions in the law, however, remained the same. The legislature employed semantics in an attempt to ignore Oregon’s Constitution and “get one by” the people, who voted to limit marriage to one man and one woman.

There are no meaningful differences between Oregon’s marriage law and Oregon’s Domestic Partnership law. The differences that do exist have no impact on the legal functions of Domestic Partnerships and Marriage in Oregon. In fact, in every regard, the Oregon responsibilities, rights, and legal functions of Domestic Partnerships are exactly like Marriage.

The Domestic Partnership law is discriminatory and creates inequality.
Only two unrelated individuals of the same gender can enter domestic partnerships. A man and a woman cannot choose to enter into a domestic partnership. Their only option is Marriage. A person cannot be part of a Domestic Partnership and a Marriage at the same time. If Domestic Partnerships are genuinely distinct from Marriage, Oregon should allow all heterosexual and same-sex couples to choose a Domestic Partnership.

Hawaii, for example, has an arrangement known as Reciprocal Beneficiaries. This arrangement permits any two people who support each other to receive a legal status with limited benefits. It is truly distinct from marriage, and provides legal protection to any two people who provide financial support for each other – same-sex or heterosexual. Nothing prevented the Oregon legislature from enacting this kind of law. Instead, the legislature crafted a same-sex marriage statute and called it Domestic Partnerships.

Conclusion

The Oregon legislature has enacted a law that provides same-sex couples with all the Oregon benefits, rights, and responsibilities of Marriage. In an attempt to bypass Oregon’s constitution and Measure 36, the legislature created technical differences between Marriage and Domestic Partnerships. The technical differences do not have a practical impact on how Marriages and Domestic Partnerships will legally function in Oregon. The legislature has wantonly disregarded the express will of the Oregon people by enacting a sweeping Domestic Partnership law that grants all Oregon marriage benefits to same-sex couples.

At a Glance: Marriage and Domestic Partnerships in Oregon