Wednesday, January 20, 2010

As South Miami adopts a domestic partnership ordinance, consider a possible consequence of such ordinances

South Miami's City Commission has approved a domestic partnership ordinance (permanent link). The ordinance qualifies domestic partners of City employees for all employer-provided, spousal benefits. It also entitles all domestic partners to hospital visitation rights. As the Miami Herald reports, "South Miami joins Miami-Dade and Broward counties as well as the cities of Miami, Miami Beach and North Miami in recognizing domestic partnerships."

Even South Miami's limited form of domestic partnership represents a noteworthy development in a state with a "super-DOMA" amendment. Florida's constitutional amendment bans legal status for relationships "substantially equivalent" to marriage. For this reason, the South Miami ordinance precludes any interpretation that treats domestic partnership "as a marriage," or that otherwise brings the ordinance into conflict with state law, including the state constitution. So the City has accepted an unstable compromise - unstable because it rests on a contradiction. On the one hand, the City acknowledges the unfairness of treating same-sex couples unequally in hospital visitations, and in City-provided, employment benefits. On the other hand, it can't acknowledge this form of inequality, without also accommodating an inherently unequal legal status for same-sex couples.

If the Perry plaintiffs do not ultimately prevail, the "super-DOMA" amendments will remain in force absent repeal. But more municipalities in Florida and other "super-DOMA" states will adopt laws establishing limited domestic partnerships - a process that testimony in Perry may advance. Won't the contradiction such laws entail become increasingly apparent, and increasingly unsustainable?

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