Domestic Partnership Benefits: Equity, Fairness, and Competitive Advantage

American Association of State Colleges and Universities
A Higher Education Policy Brief • October 2007
Domestic Partnership
Benefits: Equity,
Fairness, and
Competitive Advantage
By Alene Russell
State Policy Scholar, AASCU
As the American public becomes increasingly supportive of equity and fairness
in the workplace, employers are discovering that domestic partner benefits programs
make good business sense. Evolving social and economic pressures in support of these
programs are contributing to their increased use as a competitive lever to attract
a diverse, top-caliber workforce.
Context
and to deny recognition of any legal status for
same-sex couples. At the other extreme, there are
When the Village Voice newspaper in New York
those fighting for full marriage equality for same-sex
City first offered benefits to non-married domestic
couples. Between them, there is a very large group
partners of its employees in 1982, this represented a
of individuals who support legal recognition through
radical departure from tradition. Twenty-five years
civil unions or domestic partnerships, but who oppose
later, some 9,300 employers in the United States,
same-sex marriage. While both sides have intensified
including many of the nation’s largest and most
their efforts to achieve victories in statehouses, courts,
successful companies, have extended their benefits
ballot boxes, and Congress, domestic partner benefit
programs to the domestic partners of employees
programs have grown in popularity as a compromise
and their dependents. Though such benefits are far
solution that is acceptable to a large proportion of the
from universally available, it is clear that a shift has
American public. The term “domestic partner” itself
taken place in American society, moving domestic
is still in flux, but in general, it refers to an unmarried
partner benefits programs from the margins to the
couple (same- or opposite-sex) who live together and
mainstream.
who are committed to each other, certifying through
some formal means that they are financially and
This development is consistent with growing public
legally interdependent.
opposition to discrimination on the basis of sexual
orientation. It represents a new middle ground in
American businesses have taken the lead in
society’s culture wars. At one extreme, there are
developing domestic partner benefit programs
those who wish to preserve the traditional definition
for their employees, believing that it makes good
of marriage as between one man and one woman
business sense. Employers see this as an inexpensive

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Figure 1. Trends in Public Acceptance of Equal Rights for Gays
100%
90%
Think homosexuals should have
80%
equal rights in terms of job
opportunities
70%
60%
Think homosexual relations
between consenting adults
50%
should be legal
40%
Think marriages between same-
30%
sex couples should be
recognized by the law as valid,
20%
with the same rights as traditional
marriages*
10%
0%
1977
1982
1987
1992
1997
2002
2007
Source: Gallup Poll News Service.
*Surveys between 1996 and 2005 asked about “marriage between homosexuals.” The 2006 survey asked half of the
respondents about “marriage between same-sex couples” and half about “marriage between homosexuals.” The former
wording resulted in 3 percent greater support.
way to attract and retain talent and to gain an
is overwhelming public support for equality in the
advantage over the competition. Many of the
workplace. Recent Gallup Poll data indicate that 89
nation’s most competitive colleges and universities
percent of Americans believe “homosexuals should
are doing the same, as are a number of states and
have equal rights in terms of job opportunities,”
municipalities. But while private-sector employers
compared to 56 percent in 1977. There is less, but still
cannot be legally prohibited from offering these
growing, tolerance for gay rights in other areas of
benefits, the rules governing public entities are much
life (see Figure 1). In the same Gallup Poll, a majority
less clear. With the recent passage of many state
of Americans (53 percent) adhere to the belief that
statutes and constitutional amendments defining
“marriages between same-sex couples should not be
marriage, confusion reigns over the extent to which
recognized by the law as valid, with the same rights
such language affects other legal relationships. New
as traditional marriages,” but nearly half (46 percent)
legal ground is continually being charted, and it is
believe such marriages should be valid. Other polls
likely that the situation will remain volatile for many
have reported support for same-sex marriage to be a
years to come.
bit lower, but all are documenting significant change
over the past decade.
In this context, higher education leaders and state
policymakers will benefit from a greater familiarity
Evidence suggests some ambivalence on the topic of
with the issues surrounding domestic partner benefits
same-sex relationships. Many people want to be fair-
programs to better inform policy decisions. This paper
minded, but they are uncomfortable about changing
describes the key issues and addresses what is at
the traditional concept of marriage. Public opinion
stake for public colleges and universities.
polls that provide three options—recognition of same-

sex marriage, recognition of civil unions but not full
Observations
marriage rights, or recognition of neither—illustrate
this point. Polls taken in 2007 by both the CNN/
Over the past three decades, there has been growing
Opinion Research Corporation and Newsweek indicate
public tolerance for gay rights in the country, and
that one half of all Americans think that either same-
growing opposition to discrimination on the basis
sex marriages or civil unions should be recognized as
of sexual orientation. Though the nation remains
legally valid, with support equally split between those
deeply divided over certain gay-rights issues, there
favoring civil unions and those favoring marriage.
Fewer Americans (about 44 percent) think that there
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Figure 2. State Policies Recognizing Same-Sex Relationships
and Restricting Marriage to One Man and One Woman
? state constitutional amendment restricts marriage to one man and one woman; no recognition of same-sex couples
? state law restricts marriage to one man and one woman; no recognition of same-sex couples
? does not recognize same-sex relationships; does not restrict marriage
? recognizes limited spousal rights for same-sex couples, but restricts marriage to one man and one woman
? recognizes civil union or domestic partnership for same-sex couples, but restricts marriage to one man and one woman
? recognizes civil union, domestic partnership, or marriage for same-sex couples and does not restrict marriage to one man and one woman
should be no legal recognition of arrangements
The vast majority of states have now enacted laws
between same-sex couples.
or constitutional amendments opposed to same-sex
marriage (see Figure 2).
Finally, support for gay rights is greatest among
younger Americans and decreases as people age. This
• Forty-one states have statutes similar to DOMA that
suggests that the trend toward greater acceptance of
restrict marriage to one man and one woman.
differences will continue.
• Twenty-six states have added marriage
There has been widespread state activity over
amendments to their state constitutions to declare
the past decade prohibiting same-sex marriage,
marriages between same-sex couples void or
with the majority of states (44) crafting statutes
invalid. These are seen as stronger measures
or constitutional language defining marriage as
than state statutes because they prevent courts
between a man and a woman. A critical question is
from ruling that same-sex marriage bans are
whether the language in these measures is broad
unconstitutional, and they forbid recognition of
enough to limit other legal rights for same-sex
same-sex marriages performed in other states.
couples, including domestic partner benefits. In
Proposed constitutional amendments are pending in
1996, Congress passed the Defense of Marriage Act
11 additional states.
(DOMA) defining marriage for federal purposes as
“only a legal union between one man and one woman”
• Only six states (Connecticut, Massachusetts, New
and allowing states to refuse to recognize same-sex
Jersey, New Mexico, New York, and Rhode Island)
marriages performed in other states. This stimulated
and the District of Columbia have no provision
a flurry of activity at the state level in an area where
against same-sex marriage.
little legislation had existed before.
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In examining the language of these marriage
Motivated by a desire to attract and retain high-
amendments, the Human Rights Campaign (HRC),
quality workers, private businesses have taken the
an advocacy group working for gay equality, has
lead in offering domestic partnership benefits to
identified 17 states with broadly written constitutional
their employees, with public entities following suit.
amendments that might have consequences for other
Emerging research is documenting this as a cost-
legal relationships such as domestic partnerships.
effective strategy for fully harnessing workforce
These are now at the heart of controversies in many
potential. Benefits such as health and dental
states as supporters of domestic partner benefits
insurance are a significant component of the total
argue that voters were misled; they argue that many
compensation package offered by employers, and
citizens voted in support of state constitutional
research has documented that benefit packages
amendments, having been convinced by proponents
affect employee decisions and job satisfaction.
that the referenda applied only to same-sex marriage.
Though benefits have traditionally been extended
After passage of the amendments, these same
to the spouse and children of an employee, this has
proponents have called for a broader interpretation of
not been an option for same-sex couples, effectively
the new constitutional language.
resulting in lesser compensation. Employers have

begun to recognize that extending benefits to
While some states are restricting recognition of
domestic partners and their children can be a cost-
same-sex relationships, a small but growing number
effective way to recruit and retain talent, as well
have begun to recognize civil unions and domestic
as a way to promote workplace equality. Many
partnerships. Seven states offer a full range of
organizations have a policy against discrimination
spousal rights, and four jurisdictions offer more
on the basis of sexual orientation, and in many
limited spousal rights to same-sex couples. Just
jurisdictions, such discrimination is illegal. Offering
this year, legislatures in three states took action to
partner benefits equalizes the compensation package
recognize same-sex relationships, more states to have
and demonstrates commitment to non-discrimination.
done so in a single legislative season than ever before.
When these laws go into effect in 2008, 20 percent
Domestic partner benefits are not limited to same-sex
of the U.S. population will be living in states that offer
couples. Hewitt Associates, a global human-resources
broad-based rights and responsibilities to same-
consulting company, has found that 58 percent of
sex couples. Prior to 2000, no states offered such
organizations that offer domestic partner benefits
recognition. But unlike traditional marriages, these
offer them to both same-sex and opposite-sex
relationships do not carry the federal protections of
couples.
marriage (such as Social Security benefits, family
medical leave, and so on), and they generally are not
To determine eligibility, employers require
recognized outside of a state’s jurisdiction.
documentation of domestic partnership status in
one of two ways. Some employers define their own
Currently, Massachusetts is the only state in the
requirements and develop a domestic partnership
nation in which same-sex couples may marry. This is
affidavit. The partners are typically required to certify
the result of a 2003 Massachusetts Supreme Judicial
that they are at least 18 years of age, unmarried,
Court decision that determined that the denial of
not related to each other, sharing a committed
protections, benefits, and obligations of marriage to
relationship that is exclusive, living together, and
same-sex couples violated the due-process and equal-
financially and legally responsible for each other. More
protection clauses of the state’s constitution.
employers are taking a second approach, which is to
accept documentation from local or state domestic
Six states provide same-sex couples all or nearly all
partner registries, state-level civil unions, or marriages
the rights and responsibilities of married couples
(in Massachusetts). As the number of registries grows,
through parallel arrangements. Four of these states
the latter approach is gaining in popularity because it
offer civil unions: Connecticut, New Hampshire
reduces the burden on employers.
(effective 2008), New Jersey, and Vermont. Two
offer domestic partnerships: California and Oregon
Significantly, the largest and most successful
(effective 2008). Four additional jurisdictions offer
companies are the most likely to offer domestic
more limited spousal rights to same-sex couples: the
partner benefits, recognizing that they provide a
District of Columbia, Hawaii, Maine, and Washington.
competitive edge in the search for talent. Currently
In several cases, these states prohibit same-sex
269 of the Fortune 500 companies provide domestic
marriage, but have created a parallel legal structure to
partner benefits. Of the nation’s 100 top-grossing law
grant benefits, protections, and responsibilities.
firms, 88 provide health benefits to same-sex partners
of employees.
October 2007 • AASCU Policy Matters \ 4

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Thirteen states offer at least some domestic partner
Provision of domestic partnership benefits is an issue
benefits to state employees, and at least 145 city and
for all of higher education, not just elite institutions.
county governments around the country offer them.
Approximately 141 public colleges and universities
This is occurring across the nation, even in states that
offer domestic partner benefits, and 25 states have at
prohibit same-sex marriage.
least one public institution that offers these benefits.
Sixty-five members of the American Association
For both private and public entities, the cost of
of State Colleges and Universities (AASCU) do
providing benefits has been a primary concern,
so, representing 15 percent of AASCU institutions.
at least at the outset, but a growing number of
Comprehensive universities, in particular, have much
studies are documenting that costs are far less
to gain by offering competitive benefits packages
than anticipated. Research suggests that the actual
since they have less money to offer in salaries. This
number of people using these benefits has been
could make a real difference in attracting talented
modest, and the fiscal risks (i.e., costs) associated
faculty and staff and improving campus morale and
with these individuals are no greater than those of
workplace productivity.
spouses. In Minnesota, for example, the total cost of
providing state employee health benefits increased
In a 1995 resolution, the American Association of
just 0.05 percent when domestic partner health
University Professors (AAUP) stated its opposition
benefits were added, equivalent to four cents per
“to discrimination based upon an individual’s sexual
year per state employee. Studies by the Society for
orientation in the selection of faculty, the granting
Human Resource Management, KPMG Peat Marwick,
of promotion or tenure, and the providing of other
and the Employee Benefit Research Institute have
conditions and benefits of academic life.” Faculty
similarly concluded that adding health-care benefits
on campuses across the nation have taken up this
for domestic partners generally has a minimal
cause, and even those who would not directly benefit
financial impact on overall benefits costs, raising them
from domestic partner benefits are calling for equal
at most by one to two percent. When looking at cost
benefits on their campuses as a symbol of a non-
issues pertaining to statewide employee-benefits
discriminatory and inclusive community.
programs, studies have actually projected cost
savings. This is due to the fact that when same-sex
As to cost, domestic partnership benefits at public
couples assume fiscal responsibility for one another in
universities have not been a drain on state budgets.
legally recognized arrangements, they save taxpayers
Data from the College and University Professional
money by reducing dependence on public-assistance
Association for Human Resources (CUPA) indicate
programs.
that only 8 percent of institutions pay all health
insurance costs for family coverage; it is far more
Colleges and universities, led by private institutions,
common for employees to pay for some or all of
are increasingly extending benefits to domestic
the costs associated with covering additional family
partners, but these institutions remain in the
members. Also, in some instances, the employer
minority. Public institutions are proceeding at a
portion of domestic partner benefits costs is paid for
slower pace and with greater caution, mindful of
out of private donations so that no state money is
the appropriations power wielded by policymakers
used.
who may not agree with the policy. The Human
Rights Campaign has identified 304 higher education
Political battles continue to be fought across the
institutions in the United States that offer domestic
nation, and there are a growing number of legal
partner benefits. Mirroring corporate America, the
challenges to public colleges’ right to offer benefits
more competitive institutions are at the forefront of
to domestic partners. While Attorneys General
efforts to utilize these benefits as a tool in attracting
and the courts in several states have concluded
and retaining top faculty and staff. HRC indicates
that domestic partner benefits do not violate state
that 60 percent of U.S. News & World Report’s top
bans on same-sex marriage, others are reaching the
125 colleges and universities offer partner benefits,
opposite conclusion. The following state examples
a proportion higher than that of Fortune 500
illustrate the volatility of the situation, the political
companies (54 percent). Of U.S. News’ top 10 colleges
and legal struggles being fought in the states, and the
and universities, all offer domestic partner benefits;
uncertainty university leaders are facing.
the same is true for all Ivy League universities. The
University of Wisconsin is the only Big Ten conference
school that does not offer partner benefits.
October 2007 • AASCU Policy Matters \ 5

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Wisconsin—Concerned about being at a relative
from recognizing same-sex unions for any purpose.”
disadvantage in the competition for faculty talent,
Though the American Civil Liberties Union (ACLU)
Governor Jim Doyle proposed a measure to the state
will appeal the decision to the Michigan Supreme
legislature in 2005 to provide funding for health
Court, Michigan State University and the University of
insurance for domestic partners of employees. State
Michigan have meanwhile broadened their domestic
legislators rejected this proposal.
benefits plans to avoid the language of domestic
partnerships. MSU’s pilot program offers benefits to
In 2006, voters passed a constitutional amendment to
“Other Eligible Individuals,” defined by neutral criteria
prohibit same-sex marriage. Many groups, including
that do not require documentation of a committed
the Board of Regents of the University of Wisconsin
relationship. Similarly, the University of Michigan’s
System, expressed concern that it might restrict
program allows for benefit coverage for “Other
domestic benefit programs, and the city of Madison,
Qualified Adults.”
which has had a

domestic benefit
“The absence of domestic partner
Kentucky—In July 2006, the University of Louisville
program since
benefits is really a serious recruiting
became the first university in the state of Kentucky
1990, asked for
issue for us. We know of instances
to offer domestic partner benefits, and the University
clarification
where we have lost outstanding
of Kentucky followed in April 2007. Members of
from the state’s
candidates because of it.”
the state legislature who were opposed to this
Attorney
—University of Wisconsin at Madison’s
development asked the state Attorney General to
General. The AG
provost, 2005
issue an opinion. In June 2007, the AG asserted that
declared that
these two programs violated the state’s marriage
the marriage amendment does not prohibit public or
amendment that bars recognition of any same-sex
private employers from extending domestic partner
status “substantially
“We are not endorsing any
benefits to non-married partners of employees,
similar” to marriage.
lifestyle. We are simply
and that “neither the Legislature nor the people
However, he opened the
recognizing that people are
intended to invalidate domestic partnerships when
door to other types of
people. We are recognizing
they adopted this provision.” UW still does not offer
benefits approaches,
the world we live in.”
domestic benefits.
suggesting a solution
—University of Louisville trustee,
similar to what was done
2006
Michigan—When Michigan voters approved a state
in Michigan—broadening
constitutional amendment in 2004 that banned
the definition of eligible individuals to others who
recognition of marriage for same-sex couples or
live in the household under circumstances that do
other “similar union for any purpose,” confusion about
not resemble marriage. UK responded by creating
the legality of domestic partner benefits arose. In
a Sponsored Dependent Coverage plan based
a dispute pertaining to the city of Kalamazoo, the
on sharing a residence for at least a year, but not
University of Michigan, Wayne State University, and
classifying the dependent as a domestic partner. U
the American Association of University Professors
of L has developed a similar plan that would provide
filed briefs with
coverage for one “qualifying adult.” The matter is not
“Given the economic crisis our
the court urging
settled, however. Governor Ernie Fletcher is pushing
state is in, discouraging an
that the marriage
for legislation that would ban benefits to domestic
educated workforce from staying
amendment did not
partners of state university employees.
in Michigan . . . seems like a step
prohibit domestic
backward instead of forward.”
partner benefits
Ohio—In 2005, a state representative from Cincinnati
—Eastern Michigan University staff
and arguing that
filed a lawsuit against Miami University, contending
member, 2007
such benefits were
that its domestic partner benefits policy violates the
“vital to the universities’ ability to recruit and retain
state marriage amendment. That measure prohibits
the best and the brightest faculty and staff.” In a 2005
state agencies from
Miami University officials
decision, the judge backed the universities’ position,
creating or recognizing
“have thumbed their noses
arguing that health-care benefits are not a legal
relationships that
at the Constitution.”
part of marriage, but rather part of an employment
“approximate the design,
—Ohio lawmaker, 2005
relationship and that awarding these benefits does
qualities, significance or
not violate the “similar union” language of the
effect of marriage.” His lawsuit stated that he had
constitutional amendment. However, in early 2007, an
grounds to sue the institution as both a taxpayer and
appeals court reversed that decision, ruling that the
a tuition-paying parent. A judge dismissed the case in
marriage amendment “prohibits public employees
2006, ruling that the legislator did not have standing
October 2007 • AASCU Policy Matters \ 6

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to sue because he was not significantly affected by
Resources
the university policy, but he added that others might
American Association of University Professors (AAUP).
have standing to file such a lawsuit. A 2007 appeals-
Domestic Partner Benefits on Campus (2005) describes
court decision upheld the lower court’s ruling that
AAUP’s position and reviews recent domestic partnership
the legislator did not have standing to sue on either
litigation involving faculty.
ground: first, taxpayers do not have a general right to
aaup.org/AAUP/protect/legal/topics/partners.htm
challenge any decision by a public entity, and second,
American Civil Liberties Union (ACLU). ACLU’s Lesbian
tuition funds are not used to pay for the benefits. The
Gay Bisexual Transgender (LGBT) Project fights LGBT
legislator could appeal to the state Supreme Court, or
discrimination and engages in legal and public-education
other lawsuits could follow.
efforts to recognize same-sex relationships. It produces an
annual report providing a state-by-state update of political
activity and litigation pertaining to LGBT issues.
Conclusion
aclu.org/lgbt
Domawatch.org. Domawatch.org is a project of the Alliance
With public opinion increasingly supporting equity
Defense Fund, a conservative Christian organization that
and fair compensation in the workplace, and with full
supports the preservation of marriage as a union of one
marriage equality for same-sex couples unlikely in
man and one woman. It tracks lawsuits related to the issue
the foreseeable future, legal recognition of same-sex
of same-sex marriage and provides detailed information
couples in the form of domestic partnerships seems
on state and federal circuit-court cases.
here to stay and likely to grow. Leaders of public
domawatch.org/
higher education and state policymakers need to
Gallup Poll News Service. Gallup’s annual Values and Beliefs
understand what the competition already recognizes:
Survey has collected data for over 30 years on trends in
that offering domestic partner benefit programs
public tolerance for gay rights.
is a cost-effective strategy to attract and retain
galluppoll.com/content/?ci=27694&pg=1
faculty, staff, and administrators from a greater pool
of talent. And of equal importance, offering these
Human Rights Campaign (HRC). HRC is an advocacy group
programs is essential if the nation’s public institutions
that works to achieve gay equality. Its resources include
are to demonstrate their commitment to social and
a database of employers that offer domestic partnership
benefits, analysis of marriage- and relationship-related bills
economic justice, diversity, and inclusiveness.
and ballot initiatives, and an annual update on workplace
issues for gay Americans.
For many public institutions, adopting policy that
hrc.org
allows for the offering of domestic partner benefits
may well be a significant public-relations challenge,
National Conference of State Legislatures (NCSL). NCSL
but, as the experience of 25 states demonstrates, it is
tracks state legislative activity pertaining to same-
not insurmountable. The process can be particularly
sex marriage, civil unions, and domestic partnerships,
difficult in states where lawmakers hold conservative
including results of the 2006 elections and a timeline of
views about marriage and have fears about a negative
same-sex-marriage political and legal activity since 2003.
impact on state budgets. It is incumbent upon both
ncsl.org/programs/cyf/samesex.htm
higher education leaders and policymakers to learn
Stateline.org. Same-Sex Marriage Ripe for Decision in
the facts as they relate to public policy and economic
2 Courts provides excellent background on this issue,
competitiveness, and to make informed decisions.
including a timeline of key events and a summary of state
policies.
stateline.org/live/digitalAssets/9339_Same-sex_
marriage.pdf
Contact: Alene Russell, State Policy Scholar
at 202.478.4656 or russella@aascu.org • aascu.org
October 2007 • AASCU Policy Matters \ 7

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