Domestic partner measure kicks in

The final piece of the state's domestic-partnership law, approved by voters a month ago after a failed attempt by opponents to get it repealed, goes into effect today. The so-called "clean-up" measure confers on registered same-sex partners and some senior couples an assortment of marriage-like benefits not already provided in the partnership law, and adds partners to every section of state law that previously referred only to spouses.

But even as state agencies move to implement the expanded law, there is broad ambiguity over what it does and doesn't provide — particularly in areas such as health-insurance benefits, where state and federal governing laws interact or conflict.

The confusion arises because the federal government does not recognize same-sex unions, and its Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman, trumps state law in directing how certain federal-benefit laws are enforced.

It's the kind of uncertainty that increasingly is showing up across the country, as more states recognize same-sex relationships — through civil unions, domestic partnerships or even gay marriage — with the benefits and responsibilities conferred by those arrangements falling into an evolving and largely untested gray area of law.

The greatest lack of clarity appears to surround health-care coverage provided by big private employers with self-insured or other federally governed health plans. Nationally, more than half of all insured workers in the private sector are covered by such plans.

Because the federal Defense of Marriage Act supersedes the state's domestic-partnership law, the state lacks the authority to compel employers with federally regulated health plans to extend coverage to an employee's same-sex partner. Employers may, of course, choose to extend such benefits voluntarily — and some already do. In recent weeks, the Olympia office of state Sen. Ed Murray, architect of the partnership law, has fielded many calls on these kinds of issues.

"We're getting a lot of these questions and we are in the process of trying to clarify where the line is — that overlap between state and federal" oversight, said Jeff Reading in Murray's office.

Law's effects

The state's domestic-partnership law applies to registered same-sex couples and some senior couples where at least one partner is 62.

It is reciprocal in that it covers couples who move here from other states that also recognize same-sex unions. But the law is not portable, meaning a registered couple who moves to or even visits a state that does not recognize those unions typically leaves their partnership rights and benefits behind.

The law extends to registered partners some 423 state rights already enjoyed by married heterosexual couples, entitling one partner to visit the other in a hospital or nursing home, for example, or to take time off from work to care for that partner when he or she is ill.

The law also gives surviving partners inheritance rights in the absence of a will and the right to claim a partner's unpaid wages when that person dies.

In the weeks since voters approved Referendum 71, the ballot measure authorizing the final piece of the law, partners have been registering at a rate of about 90 a week — more than double what it was before.

Washington has about 6,500 registered domestic partnerships.

The key to understanding what the law does and doesn't confer on them lies in understanding the law's limitations.

Because the federal government doesn't recognize same-sex unions, no purely federal benefit can be extended to domestic partners under the state law.

Some of those are obvious.

Partners of those who work for the federal government, for example, are not entitled to any employment-related benefits.

Couples can't file joint federal tax returns, and partners are not entitled to one another's military or Social Security benefits. Nor can one partner petition on behalf of a foreign partner for immigrant benefits.

Other areas are less clear. For example, in California, whose domestic-partnership law was the model for Washington's, judges have differed in recognizing such relationships for the purposes of bankruptcy filing. And there are any number of federal tax implications associated with the joint ownership of property, which the law allows. Other benefit areas raise even more questions.

Ambiguities in one area that's especially crucial to couples and families — health-care coverage — could ultimately be settled by the courts, officials with the Washington Insurance Commission say.

Whether an employee can add a partner to an employer-provided health-insurance policy depends both on the type of employer and the kind of plan that employer offers.

Under the law, benefits are available to the partners of state and local government workers, but not to the partners of federal employees.

Within the private sector, it gets a whole lot trickier.

Typically employers that are large enough self-insure for health care, assuming the financial risk for providing health-care benefits to their employees, rather than buying insurance.

Their health-care plans fall under a federal law known as the Employee Retirement Income Security Act, or ERISA, which regulates a range of private health and pension benefit plans. And because of that federal oversight, employers with such plans are under no obligation to comply with state domestic-partnership laws.

"It's an open question about whether the state government can try to require an employer to do what the feds indicate they don't have to do," said Brian Molton, chief legislative counsel with the Human Rights Campaign, a national gay-rights advocacy group.

The state Office of the Insurance Commissioner takes the position that it has no authority to require them.

"Whether these self-funded health plans must cover domestic partners will likely be decided by the courts," spokeswoman Stephanie Marquis said.

Many employers on their own already extend some form of domestic-partner benefits to their employees. More than 600 companies do so in Washington, including Microsoft, Starbucks and Boeing.

"We are seeing a large number of employers take the lead in this area and offer these benefits affirmatively," said Tara Borelli, a California attorney with Lambda Legal, a national gay-rights-advocacy organization.

"It's the best thing for recruitment, retention and morale, and it's becoming conventional wisdom."

But even when employees are able to add their partner to an employer-sponsored health plan, Uncle Sam still has a say.

Because of DOMA, the federal government treats health-care benefits provided to an employee's partner as income to the worker, making it subject to federal income taxes.

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com