Key Court Cases Affecting
the Rights of Domestic Partners
Complied by Thomas F. Coleman, Executive Director, Spectrum Institute.
The following is a summary of some of the leading appellate decisions affecting the rights of domestic partners. Some involve same-sex couples while the litigants in others involved unmarried opposite-sex relationships. The list is not intended to be comprehensive as it does not include, for example, decisions of state courts invalidating sodomy laws or state cases involving child custody, visitation, or adoption.
Federal Cases —————
United States Supreme Court
Bowers v. Hardwick, 478 U.S. 186 (1986)
States, such as Georgia, have authority to enact criminal laws prohibiting consenting adults from committing sodomy in private, and such laws do not violate the federal constitutional right of privacy.
United States Court of Appeal
Markman v. Colonial Mortgage Co. (D.C. Cir. 1979)
The federal fair lending act which includes marital status discrimination prohibits a lender from treating an unmarried couple differently than a married couple for purposes of joint credit.
Rovira v. AT&T, 817 F.Supp. 1062 (S.D. N.Y. 1993)
A private employer’s refusal to provide death benefits to the unmarried partner of an employee does not violate any federal law, and state nondiscrimination laws may not attempt to regulate benefits governed by federal ERISA law.
State Appellate Cases —————
Alaska Supreme Court
Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994)
A local housing law prohibiting marital status discrimination provides protection to unmarried couples, and the religious freedom clauses of state and federal constitutions do not give the right to a landlord to discriminate merely because landlord believes that unmarried cohabitation is a sin.
University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997)
The refusal of the university to provide health and other job benefits to domestic partners of its employees was illegal marital status discrimination in violation of the state’s civil rights act.
California Supreme Court
City of Santa Barbara v. Adamson, 610 P.2d 436 (Cal. 1980)
A city ordinance restricting the number of unrelated adults who may live together in a residential area zoned for single families violated the right of privacy in the state constitution which protects the right of “alternate” families to live together.
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976)
It is not against public policy for courts to enforce cohabitation agreements made by unmarried couples pertaining to the distribution of their property when the relationship terminates, so long as sexual services are not the primary consideration for the agreement.
Elden v. Sheldon, 758 P.2d 582 (Cal. 1988)
An unmarried cohabitant who witnesses the death of her partner in an automobile accident may not sue the wrongdoer for emotional distress, although she could do so if she and her partner had been legally married.
Smith v. Fair Employment and Housing Commission, 913 P.2d 909 (Cal. 1996)
A state housing statute prohibiting marital status discrimination provides protection to unmarried couples, and neither the religious freedom clauses of state and federal constitutions, nor the religious freedom restoration act, gives the right to a landlord to discriminate merely because landlord believes that unmarried cohabitation is a sin.
California Court of Appeal
Hinman v. Department of Personnel Administration, 213 Cal.Rptr. 410 (1985)
The state’s refusal to provide dental benefits to the family partner of a state employee was not illegal discrimination on the basis of sexual orientation or marital status, nor did it violate the equal protection clause of the constitution.
Dept. of Industrial Rel. v. Worker’s Comp. Bd., 156 Cal.Rptr. 183 (Cal. App. 1979)
An unmarried cohabitant who lived with and was partially dependent on an employee may recover worker’s compensation survivor benefits when the employee dies from a work-related injury.
Colorado Court of Appeal
Ross v. Denver Dept. of Health, 883 P.2d 516 (Co. App. 1994)
The refusal of the city to provide sick leave benefits to an employee who wanted to care for her same-sex domestic partner did not constitute sexual orientation discrimination, nor did it violate the equal protection clause of the constitution.
Georgia Supreme Court
City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995)
The City of Atlanta had authority to create a local public registry for domestic partners.
Morgan v. City of Atlanta, __ S.E.2d __, 1997 WL 677314 (Ga. 1997)
The City of Atlanta had authority to provide health and other benefits to the domestic partners of city employees, so long as the domestic partner is at least partially dependent on the employee.
Illinois Supreme Court
Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979)
Illinois courts will not enforce cohabitation agreements made by unmarried couples because to do so would violate a state public policy promoting marriage.
Louisiana Supreme Court
Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La. 1978)
An unmarried cohabitant who lived with and was partially dependent on an employee may recover worker’s compensation survivor benefits when the employee dies from a work-related injury.
Massachusetts Supreme Court
Reep v. Commissioner, 593 N.E.2d 1297 (Mass. 1992)
An unmarried cohabitant is entitled to unemployment benefits when she quits her job in order to move to another area with an unmarried partner who was relocating his business.
Minnesota Supreme Court
State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990)
Unmarried couples are not protected from housing discrimination even though state law forbids “marital status” discrimination. Since another state law criminalizes unmarried cohabitation, the legislature could not have intended to protect unmarried couples from discrimination while at the same time criminalizing their cohabitation.
Minnesota Court of Appeal
Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. 1995)
The City of Minneapolis lacked authority to grant job benefits to the same-sex domestic partners of city employees, since state law authorizing cities to give job benefits defines “dependent” in a narrow manner which is limited to children and legal spouses.
New Jersey Supreme Court
Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994)
A person who witnesses the death of his or her unmarried partner may sue the wrongdoer for emotional distress so long as the couple was living together in a “familial relationship” even though they were not married to each other.
New Jersey Superior Court, Appellate Division
Rutgers Council of AAUP v. Rutgers University, 689 A.2d 828 (N.J. Super.A.D. 1997)
The university’s refusal to extend job benefits to same-sex domestic partners of its employees did not constitute illegal discrimination on the basis of sexual orientation or marital status and was not unconstitutional.
New York Court of Appeals
Braschi v. Stahl Associates, 543 N.E.2d 49 (N.Y. 1989)
When the term “family” is used in a statute without definition, the term may include persons who are living together as a family unit even though they are not related by blood, marriage, or adoption.
Baer v. Town of Brookhaven, 537 N.E.2d 619 (N.Y. 1989)
A town ordinance prohibiting unrelated adults from living together in a residential area zoned for single-family use violated the due process clause of the state constitution.
Morone v. Morone, 413 N.E.2d 1154 (N.Y. 1980)
New York courts will enforce cohabitation agreements made by unmarried couples so long as the agreement is either in writing or is an explicit verbal agreement between the parties.
New York Supreme Court, Appellate Division
Gay Teachers Assn. v. Board of Education, 585 N.Y.S.2d 1016 (N.Y. Supr. Ct. 1992)
Teachers’ complaint stated a cause for discrimination due to the employer’s refusal to provide job benefits to the domestic partners of teachers.
Ohio Court of Appeals
State v. Hadinger, 573 N.E. 2d 1191 (Ohio Ct. App. 1991)
The court rules that a domestic violence statute which applies to “persons living as a spouse” applies to two persons of the same sex who are cohabitating or have cohabitated within the past year.
Oregon Court of Appeals
Tanner v. Oregon Health Sciences University, __ P.2d __, 1998 WL 869976 (Or. Ct.
App. Dec. 9, 1998)
The court rules that extending important employment benefits like health coverage only to married state employees is unfair to workers who cannot legally marry, and violates the Oregon Constitution’s “equal privileges and immunities” clause. The court also ruled that the state law which bars discrimination on the basis of sex also prohibits sexual orientation discrimination.
Virginia Supreme Court
Cord v. Gibb, 254 S.E.2d 71 (Va. 1979)
The state could not deny a lawyer a license to practice law merely because she was living with a person of the opposite sex out of wedlock.
Wisconsin Supreme Court
County of Dane v. Norman, 497 N.W.2d 714 (Wisc. 1993)
A county ordinance which purported to protect unmarried couples from housing discrimination was invalid because it conflicted with the public policy of the state to promote marriage.
Wisconsin Court of Appeal
Phillips v. Wisconsin Personnel Commission, 482 N.W.2d 121 (Wisc. App. 1992)
The state’s denial of health insurance cove rage to the domestic partner of a state employee did not constitute illegal discrimination on the basis of sex, sexual orientation, or marital status and was not unconstitutional.
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