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New and Notable: Nevada's Domestic Partnership Act

By Jack M. Balkin

With comparatively little notice, on May 30 and 31, Nevada?s legislature overrode Governor Jim Gibbons?s veto of a new Domestic Partnership Act (Senate Bill 283). Several features of this Act warrant comment. First, the legislature passed it mindful of Nevada?s constitutional amendment (approved by voters in 2002) providing: ?Only a marriage between a male and a female person shall be recognized and given effect in this state.? Thus, the Act states: ?A domestic partnership is not a marriage for the purposes of . . . the Nevada Constitution.? But marriage is the clear reference point for the ?social contract? between domestic partners. The Act provides them ?the same rights, protections and benefits? and subjects them to ?the same responsibilities, obligations and duties? under law as spouses, former spouses, and surviving spouses, with some exceptions (such as employers providing health care to partners). The law of marriage supplies the substance of this new status.

But entering this new status is ? as with other state domestic partnership laws ? different than entering marriage. Persons seeking to register as domestic partners must file a statement declaring that they ?have chosen to share one another?s lives in an intimate and committed relationship of mutual caring.? They must share a ?common residence.? However, by contrast to some state laws, persons in Nevada need not declare their intention to be financially responsible for each other. The Act itself, by referencing the rights and responsibilities of marriage, will impose on domestic partners ?as on spouses ? a duty of mutual support.

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Second, Nevada?s new law is available both to same-sex and opposite-sex couples. By contrast, California?s domestic partnerships law is open only to older opposite sex couples (at risk of losing important retirement or medical benefits if they marry). In this respect, Nevada is like several European countries where registered partnerships are available to opposite sex and same-sex couples. The Act does not include findings about why Nevada made this striking choice. Like others, I have argued that creating a new civil status alternative to civil marriage might provide a good option for heterosexual couples who resist marriage either because of its historical association with sex inequality or its religious connotations. Will any opposite-sex couples in Nevada choose this new status? Will critics charge that the Act weakens marriage precisely because it provides this alternative?

Third, Governor Gibbons?s veto of the Act highlights the recurring question of the interplay of legislative and constitutional change. He asserted that the Act contradicts the will of the people, as expressed in the 2002 constitutional amendment and that ?only the voters? should determine whether the rights of marriage ?should equally apply to domestic partners.? However, that amendment does not expressly bar civil unions or domestic partnerships. Indeed, when it was on the ballot, some supporters stressed this fact.. The governor also claimed that many of the rights granted in the Act are already available by way of private contracts. But private contract cannot secure all the significant rights and responsibilities linked to marriage; at best, it provides what I have elsewhere called ?partial equality.?

In sum, the Nevada Domestic Partnership Act illustrates how a state legislature constrained by such a constitutional amendment may find a way to maneuver to create a new legal status to support and recognize intimate relationships other than civil marriage. It changes yet again the landscape in the United States with respect to the recognition and support of intimate relationships.

Full post as published by Balkinization on June 03, 2009 (boomark / email).