Colorado Reciprocal Beneficiary Bill Stalls in State Senate Committee     3/2/2006
By Robert Knight and Jan LaRue

Measure would expedite some benefits to nonmarried couples, including homosexuals.

Editor's Note: This article was revised and updated on March 3, 2006.

Analysis

A Colorado Senate committee has stalled on a 3-3 vote a controversial bill that would establish Reciprocal Beneficiary Agreements (RBAs) for people ineligible to be married, including homosexual couples.

Concerned Women for America opposes the bill because we believe it cheapens marriage and gives the appearance of appeasing homosexual activists, which is neither desirable nor possible to do.

Also, despite some proponents’ insistence that all of the RBAs are already available via durable power of attorney, the bill actually creates a new right to health benefits currently available only through traditional family relationships. The latest version of the bill also creates a death benefit now available only to widows, widowers and dependent children. As such, the bill takes several advantages unique to marriage and conveys them to nonmarital relationships.

Typically, RBAs streamline the process for people to obtain power of attorney to make medical decisions, designate inheritance and secure other legal rights that are automatically granted to married couples but are available to others through legal documents. The Colorado bill goes even further by adding the health benefits and death benefit provisions.

Sponsored by Sen. Shawn Mitchell (R), the bill, S.B.06-166, was drafted after Sen. Mitchell read an article by National Review writer Ramesh Ponnuru that raised the idea of reciprocal beneficiaries, Sen. Mitchell told Concerned Women for America (CWA).

According to the bill, Reciprocal Beneficiary Agreements are available to:

[A]ny two unmarried persons who are excluded from entering into a valid marriage under the laws of [Colorado] or who are or were related by blood, adoption or marriage, and who meet specified requirements, to establish a reciprocal beneficiary agreement that extends specific rights and related responsibilities to each reciprocal beneficiary … including, but not limited to, health care insurance benefits.

Meanwhile, a state constitutional amendment protecting marriage, and another that creates domestic partnerships with full marital rights, are likely to be on the ballot this fall in Colorado. CWA supports the marriage amendment and opposes the domestic partners amendment.

While not doubting the good intentions of the RBA bill's sponsors and backers, CWA opposes the bill for several reasons.

1. It implies that family-based marriage law is in and of itself a form of discrimination that needs a remedy. We believe marriage and family law should serve only to protect and support the God-created, marriage-based family.
2. It provides incentives for people to avoid marriage, and since it bars opposite-sex couples from getting these incentives, it appears to be geared toward appeasing homosexual activists.
3. The law should not chip away at the unique benefits of marriage by granting such benefits to other relationships, even the “two elderly sisters” that are often cited as the reason behind the bill, even though there is no substantial group other than homosexual activists pressing for such benefits.
4. Laws should not directly or indirectly facilitate homosexual relationships, since homosexuality is immoral, unhealthy, preventable and changeable.

The RBA bill deadlocked on Monday, February 27, in the Colorado Senate Business, Labor and Technology Committee on a party-line vote, with three Republicans supporting it and three Democrats voting “no.” A fourth Democrat left in the middle of the hearing and did not vote, according to the Associated Press.

Before the vote, the bill was edited to add the death benefit provision and to remove a section that granted automatic reciprocal beneficiary status to people in domestic partnerships from out of state. In effect, the state of Colorado would have been granting recognition to domestic partnerships like those enacted in California.

According to CWA’s analysis, even without the domestic partners provision, S.B.06-166 still would:

1. Require Colorado insurance companies to provide insurance coverage for a reciprocal beneficiary if an insured employer elects to cover a reciprocal beneficiary as a dependent in its insurance policy. Carriers must provide equal coverage for a reciprocal beneficiary if an individual or group policy provides coverage for a family member of the insured. Sen. Mitchell told CWA on Thursday that he agreed with our analysis and that this passage had been drafted poorly. His intent, he said, was to have the bill require that insurance companies must cover reciprocal beneficiaries if the insured company wants to include them. He said this problem would be corrected if the bill were to be resubmitted.

2. Forbid married couples and unmarried heterosexual couples to establish a reciprocal beneficiary agreement even though they have a right to enter into the same contractual agreements under existing Colorado law that are provided for under the bill.
3. Grant some existing exclusively spousal rights to other relationships.

Section 14-15-102 (f) grants: “The rights inuring from the laws relating to intestate succession [dying without a written will] in the same position as a spouse pursuant to Title 15, C.R.S….” (Emphasis added.)

Sen. Mitchell said that this did not take anything away from marriage and give it to same-sex couples because “it’s the range of people who are eligible to step into that position. It could be a grandparent and child.”

But he later acknowledged, “I’ll concede that this does extend a right previously limited to marriage.”

Awarding Survivor Benefits that Are Now Limited to Marriage-Based Relationships
Another right that is now reserved exclusively for married people and their children is death benefits. S.B.06-166 amends Colorado law to include reciprocal beneficiaries under the death benefits provision (Sec. 8-42-114 to 8-42-120) by amending Section 8-41-501 to add reciprocal beneficiaries to the list of “persons presumed wholly dependent.”

Under current law, only widows, widowers and their dependent children qualify.

Recognizing Domestic Partners
Before being stripped out, Section 14-15-105 of S.B.06-166, “A Bill for an Act Concerning Reciprocal Beneficiary Agreements” allowed domestic partners from other states to qualify automatically as reciprocal beneficiaries in Colorado, thus granting recognition based on that legal status. A subsequent sentence in the bill read:

Domestic partners who do not qualify to become reciprocal beneficiaries [unmarried male-female couples] shall not be deemed to have a valid legal status within the state of Colorado as domestic partners.

By defining which couples DO NOT qualify as domestic partners, the language implied that other couples DO qualify as domestic partners in Colorado, thus it would have created a legal status for domestic partnerships in Colorado. In a single phrasing, the bill not only validated California’s creation of homosexual domestic partnerships – using them as a ticket to Colorado reciprocal beneficiaries -- but it implied that Colorado would recognize them as domestic partnerships within Colorado.

By automatically recognizing out-of-state homosexual RBs and homosexual domestic partnerships, Colorado would weaken its ability to argue its right not to acknowledge out-of-state same-sex “marriages” under the federal Defense of Marriage Act, which exempts states from being forced to do so under the Full Faith and Credit Clause of Article IV of the U.S. Constitution.

Some pro-family advocates see the RBA bill as a way to defuse homosexual activists’ exaggerated claims that they can’t visit their partners in hospitals, make medical decisions or leave property to their partners. There is no credible evidence that medical facilities are denying visitation to homosexual partners, and any competent adult may grant power of attorney to any other competent adult.

Proponents of the RBA bill claim that the rights available under the bill are already accessible and that this bill merely shortens and simplifies the process. Proponents also say that the bill will eliminate the high cost of “thousands of dollars” in legal fees for creating contracts. But the Colorado Bar Association provides free information to the public on several subjects covered by the bill.

For example, on the subject of a living will and a medical durable power of attorney, the Web site states:

Even though you don't need special forms, you can get ones for a Living Will and a Medical Durable Power of Attorney through Bradford Publishing Company and office supply stores. Be sure they are Colorado forms. A CPR Directive [cardio-pulmonary resuscitation order] is available through your doctor's office or the Colorado Department of Health. These forms need to be signed by you (the patient), and some must also be signed by two witnesses. A CPR Directive must be signed by your doctor. It's useful sometimes to have the forms notarized.

The State Bar Web site also addresses the ability to obtain an inexpensive form that is available to create a financial power of attorney:

A power of attorney should be written by an attorney. If you choose not to hire an attorney, using the “Statutory Power of Attorney” (Form 34S) is probably the next best form to use. This form is familiar to banks, brokers and other holders of assets, and is easily purchased from Bradford Publishing Co., 1743 Wazee Street, Denver, CO 80202. Compliance with a power of attorney can be a problem if your document doesn’t address your particular situation. It’s a powerful document and should be tailored to your situation by a qualified attorney.

Requiring Employers to Provide Insurance Benefits to Reciprocal Beneficiaries
The most dangerous aspect of the latest version of the bill is the insurance mandate. Under S.B.06-166, Christian-owned companies and other employers who regard insuring homosexual partners of employees as facilitating immorality would be forced to provide coverage to homosexual reciprocal beneficiaries if the employer’s policy provides coverage for a family member of an employee.

Because of added costs or moral considerations, some employers would be tempted to cover only employees but not their family members.

Section 3, 10-16-103.7, says:

[Insurance] carriers shall provide dependent coverage to reciprocal beneficiaries … that is equivalent to that provided to dependents if an employer elects to cover reciprocal beneficiaries as dependents. An individual or group insurance policy that provides coverage for a family member of the insured shall also provide the equivalent coverage for a reciprocal beneficiary.

While the first sentence allows some discretion to an employer, the second sentence makes it impossible for an employer to provide family coverage for employees without also including reciprocal beneficiaries. First, it says insurance companies must cover reciprocal beneficiaries if an employer “elects” to cover them as dependents, but then goes on to say that if a company offers a policy to cover a family member, the company must provide the same coverage for the reciprocal beneficiaries.

In effect, the bill appears to say that insurers must treat reciprocal beneficiaries like family members, or cease offering family coverage.

Proponents of the RBA bill say that the inclusion of anyone 18 years old who can’t legally marry means that the state would not be granting status based on a sexual relationship. They note that it could apply to two unmarried relatives living together. Sen. Mitchell said the bill was drafted this way so “it does not cede the high ground of marriage.”

However, California’s domestic partnership law includes not only homosexual couples, but opposite-sex couples who could otherwise marry if they are at least 62 years old. S.B. 06-166 would not recognize these heterosexual couples as reciprocal beneficiaries or domestic partners if they become residents of Colorado. Thus, it would discriminate against opposite-sex couples.

For the record, Concerned Women for America opposes granting state-mandated, marriage-based family benefits to any unmarried couples.

Here’s the gist of S.B.06-166. It:

authorizes the establishment of reciprocal beneficiary agreements for the purpose of permitting any two unmarried persons who are excluded from entering into a valid marriage under the marriage laws of Colorado, or who are or were related by blood, adoption, or marriage.

The intent of the law, according to its backers, is to streamline the legal process for certain “specific rights and related responsibilities.” This would include:

1. emergency and nonemergency medical care and hospital visitations

2. terminal care and medical care
3. anatomical gifts (organ donations)
4. disposition of remains
5. domestic violence
6. intestate disbursal of property in the same manner as to a spouse
7. property rights pertaining to co-ownership and joint tenants
8. death benefits

   Note that domestic violence is included. This bill expands protections and programs for the prevention and treatment of domestic violence under current law, by eliminating the requirement of “intimate relationships.”

   This implies that there is a level of violence among individuals who are or were related by blood, adoption or marriage that requires treatment programs and protections that Colorado law has not previously recognized.

   Here are the eligibility requirements:

   1. 18 years of age or older
   2. not married or party to another reciprocal beneficiary
   3. excluded from marrying each other under Colorado law, or
   4. are or were related by blood, adoption or marriage
   5. enter into the agreement without fraud or duress or force
   6. fill out a form, have it notarized and file with the county “in which at least one of the reciprocal beneficiaries resides.”

   The agreement may be terminated:

   1. if either party enters into a valid marriage
   2. when either party terminates the agreement under procedures for invalidating a last will and testament and files notice with the county clerk where they filed the agreement

   Conclusion

   Even if this measure is reintroduced and eventually passes, it does not mean that the proposed domestic partnership constitutional amendment, which provides all the benefits of marriage, will be defeated, nor that the marriage constitutional amendment will be enacted. Homosexual activists have made it clear that they will not settle for less than marriage or counterfeit marriage. Passage of the RBA bill would immediately inspire subsequent legislation to add more and more benefits, a la California, until they arrive at de facto counterfeit marriage.

   Once lawmakers accept the idea that virtually all previously marital-related advantages are available to nonmarital relationships, the unique status of marriage in the law will have suffered irreparable damage. If you give away the unique aspects that elevate marriage to a protected status, you have removed the essence of the institution. Eventually, a court could declare that reserving the word “marriage” for opposite-sex couples is an arbitrary, discriminatory leftover from a “homophobic” era.

   The RBA bill, while well-intended, continues the de facto slide toward treating homosexuality as a morally neutral factor worthy of direct or indirect state support.

   Homosexual activists recently announced a 15-year plan agreed to by all major homosexual activist groups. It’s a well-funded battering ram of “hardball politics” to enact, piecemeal, the entire “gay” agenda whether they get the word “marriage” or not.

   We must confront the tragic reality of homosexuality itself and the totalitarian goals of its more militant proponents.

   If not, we might better spend our time preparing our families for the harsh reality to come, ushered in by incrementally enacted “tolerance” and “equality.”

   Robert Knight is Director of the Culture & Family Institute, an affiliate of Concerned Women for America (CWA). Jan LaRue is CWA’s Chief Counsel.

   
   
   

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