TESTIMONY REGARDING HB 2299

Domestic relations is an area of the law traditionally reserved to the States. State laws define marriage, and govern matters such as divorce and child custody. It has not traditionally been the practice in Kansas to allow local governments to develop their own ordinances and resolutions in these areas. Indeed, the entirety of Chapter 23 of the Kansas Statutes is dedicated to setting forth uniform laws for the governance of domestic relations in Kansas.

For example, K.S.A. 23-101 sets forth a State wide standard for the definition of marriage:

23-101. Nature of marriage relation.
(a) The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void. The consent of the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.
(b) The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage contract is under 18 years of age.

Furthermore, Article 15, § 16 of the Kansas Constitution provides as follows:

(a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.

(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.

The recent discussion by the Lawrence City Council regarding the potential establishment of a domestic partnership registry would represent a departure from the traditional practice of state-wide standards regarding domestic relations. The extent to which a domestic partnership registry may be prohibited by existing State law would of course depend upon the exact language of the ordinance or resolution in question.

In the case of the proposed Lawrence ordinance the question is not clear cut. In an October 30, 2006 Legal Memorandum, Toni Ramirez Wheeler, the City’s Interim Director of Legal Services indicated that the purpose of domestic registries are often:

“[a means] by which unmarried couples in a mutual support, caring and commitment may document their relationship”, recognizing the cultural changes in our society that have resulted in “diverse living arrangements and the development of nontraditional family compositions or familial units”, and seeking equal treatment for domestic partners. Although the ordinances collected from other communities are varied, and operate under different constitutional and statutory provisions, they contained many common elements or features.” (Emphasis mine).

Whether the proposed Lawrence ordinance fits these parameters is a bit difficult to discern. What the Lawrence ordinance clearly would do is define the term domestic partner to mean:

“two individuals who have reached the age of majority and live together in a relationship of indefinite duration, with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent. Also, domestic partners are not married to anyone else, do not have another domestic partner and are not related by blood more closely than would bar their marriage in this state.”

As I read Ms. Ramirez Wheeler’s memorandum the ordinance as proposed in October of 2006 did three things with this definition: 1) Adds the term “domestic partner” to definitions in the City Code; 2) Amends the definition of family that appears in the Human Relations portion of City Code. This change may have the effect of changing the definition of “employee” in the City Code, since the term “immediate family” is used in the definition of employee; 3) Amends the definition of “family” for purposes of the City Zoning Code. Without going into great detail I believe that depending upon application an ordinance of this breadth might well be preempted by existing State law. (1)

That having been said, in a February 1, 2007 Attorney General Opinion Request the City appears to present a more limited version of the draft amendment. Under this version it is not clear that either the Human Relations portion of the City Code or the City Zoning code would be affected. Furthermore, the revised proposal includes a specific section specifically stating that the ordinance “creates no legal rights, other than the right to have the registered domestic partnership included n the City’s Domestic Partner Registry.”

The apparent narrowing of the resolution from the time of the October Legal Memorandum to the time of the February Attorney General’s Opinion Request is itself evidence of a potential recognition by the City that it is treading on tenuous legal ground. And as an aside I might add that the recent draft’s explicit disclaimer of the conference of any substantive legal rights should make it apparent that in passing HB 2299 we would not be denying any substantive right to anyone. Simply put, the preemption of an ordinance that conveys no rights can not in any way itself be construed as a denial of any rights.

The point then is that, regardless of the exact language used by the City of Lawrence, the very concept of Domestic Partnership by local ordinance is an invitation to legal wrangling, and ultimately to the development of this area of the law via judicial rather than legislative action. This alone in my view is reason enough why local units of government should not be allowed to establish their own domestic relations law on an ad-hoc basis.

There is certainly no reason that a domestic partnership registry is necessary to make zoning ordinances more fair and equitable as Cohabitating couples are already permitted to live together even under existing restrictive single-family zoning laws, if they function as a single-house keeping unit.

Furthermore, couples already have the perfect right to govern virtually every area of life via legally recognized contracts and other legal devices. To the extent a private company requires a formalized domestic partnership for extension of insurance or other benefits that is quite frankly the private company’s problem. Nothing in current law requires any company to adopt such a requirement.

A further problem with domestic partnership legislation is its fuzzy relationship to any legitimate public policy aim. First of all it is important to realize that at least in the Lawrence context the proposed domestic partnership ordinance would apply to opposite sex couples who are not blood relatives. This raises several issues. First, all possible legal rights are already available to these couples via marriage. What possible public policy objective is achieved by allowing governmental recognition of some sort of ill defined sub-marital relationship between cohabitating opposite sex couples. This questions gains even greater force when one considers the no blood relatives requirement that invariably seem to be a part of domestic registry laws. Why, as a matter of public policy, does it make sense to grant this special legal recognition to two 18 year olds who met last month, but not to a brother and sister who have lived together for 50 years? In a similar vein, but this time in the same sex context, what public policy goal is advanced by conveying this special status to certain same sex couples who live together, but denying it to two spinster sisters?

I think an honest assessment of these types of questions leads to the conclusion that domestic partnership registries can have only two purposes. First, they can serve as mechanisms to convey legal rights approximating marriage. To the extent they do so, at least in Kansas, they run contrary to the clearly established will of the people embedded in our Constitution. Second, they can serve as pure political statements designed to allow a particular community to stake out its position in a broader cultural dispute. While it can be argued that this is not all bad, any possible benefit must be weighed against the dangers attendant to setting a precedent in favor of local development of domestic relations law. Again, this is a recipe for our law in this area to develop via judicial decree rather then via the legislative process. The net result may well be an erosion or hollowing out of the marriage amendment. Indeed, I do not think it at all unlikely that this is exactly when some proponents of the Lawrence ordinance have in mind.

1 - The October draft arguably gives domestic partners equality with spouses in the general city code definition of family, as well as in zoning regs. This would mean that every single city ordinance pertaining to families would include domestic partners and would thus convey legal rights that are traditionally incident to marriage.