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Gay Marriage Doesn’t Make Domestic Partnership Obsolete

Unmarried couples won’t just be feeling pressure from their parents in the wake of last week’s Supreme Court decision legalizing gay marriage nationwide. The ruling is already prompting companies to pare back benefits for unmarried couples in committed relationships. States may be next, withdrawing the benefits allowed to couples that register for civil unions or domestic partnerships.

Since 1992, 15 states and the District of Columbia have legalized civil unions or domestic partnerships, legislation that originated in part because of the absence of legal same-sex marriage.1 Civil unions tend to resemble marriage in all but name, while domestic partnerships tend to provide a more limited set of rights and responsibilities and serve a broader range of partners.

Gay marriage became legal in all of these states and the District of Columbia before the Supreme Court’s ruling, and five (31 percent) ceased to offer civil unions or domestic partnerships once gay marriage was legal.2 All five not only ceased to register new civil unions but also converted all existing civil unions to marriages. Now that gay marriage is the law of the land, other states may follow this example or simply never create domestic-partner options for their citizens.

It is difficult to find data on the total number of domestic partnerships, particularly as some companies have not made registration with the state a prerequisite for receiving benefits at work. But census data on the number of “unmarried partner” households shows that there are millions of couples who might have been eligible for these benefits. Many might want to continue to have an alternative to a formal marriage.

The vast majority of unmarried partners who could be eligible for a civil union or domestic partnership nationwide are opposite-sex couples. According to the 2010 census, 6.8 million households include unmarried, opposite-sex partners (5.9 percent of all households), compared with about 650,000 households with unmarried, same-sex partners (0.6 percent of all households). Many companies offer domestic-partner benefits to opposite-sex couples, but only six states allow any opposite-sex couple to enter into domestic partnerships or civil unions. An additional three states allow opposite-sex couples who are 62 or older to register as domestic partners.

A deeper dive into these households, drawing on data from the 2000-2003 American Community Survey (and presented at the 2005 annual meeting of the Population Association of America), found that many of these unmarried partners are caring for children. Forty-four percent of opposite-sex unmarried partner households included children younger than 18; that is only slightly below the proportion of married households that included children (47 percent). Among households with same-sex unmarried partners, the share of households with children was 38 percent for female couples and 27 percent for male couples.

Regardless of state law, some of these couples might have been eligible for employment benefits (sick leave, etc.) prior to the ruling because, according to a 2002 report by the Corporate Resource Council, more than half of companies offering benefits for domestic partners only asked for an affidavit from an employee attesting to the relationship — no state recognition required. Thirteen percent of company benefit plans required no proof at all; the employee simply had to list the name of the partner to receive benefits. Only 5 percent required employees to register with state or local government.

Although formal state recognition may not be required for employee benefits, legal recognition offers more secure benefits than voluntary programs by employers and offers a wider range of rights to partners (hospital visits, tax benefits, inheritance rights, etc.). Unlike benefits offered by an employer, domestic partnership benefits awarded by a state government are not counted and taxed as a type of income.

Although domestic partnerships, civil unions and other accommodations for unmarried partners were often passed to meet the needs of gay couples, they are an example of the curb-cut effect — an accommodation designed for a specific group that turns out to be useful to a broader segment of the population, just as curb cuts for wheelchair users wind up helping parents with strollers, bicyclists and many more.

Domestic partnerships and civil unions offer protection for cohabiting couples or for non-romantic, non-sexual partnerships. None of those 7 million households ceased to benefit from the opportunity for domestic partnership or civil unions when gay marriage became legal.


  1. Colorado, Connecticut, Delaware, Hawaii, Illinois, New Hampshire, New Jersey, Rhode Island and Vermont instituted civil unions. California, the District of Columbia, Hawaii, Maine, Nevada, Oregon, Washington and Wisconsin offered domestic partnerships.

  2. Connecticut, Delaware, New Hampshire, Rhode Island and Vermont.

Leah Libresco is a former news writer for FiveThirtyEight.