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Marriage: same-sex and opposite-sex

Legal and economic benefits of marriage

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About same-sex marriage (SSM) & the Defense of Marriage Act (DOMA):

The status of marriage in North America is in a state of flux as an increasing number of states make marriage available to same-sex couples and grant them all of the 300 or so state benefits and obligations that were previously restricted as a special privilege of opposite-sex married couples. Only in Canada, the District of Columbia, and a dozen or so states is the matter decided: Canada legalized same-sex marriage in mid-2005. Meanwhile other states have created civil unions and domestic partnerships that same-sex couples can enter into and obtain some or all of these state benefits.

However, as of mid-2011, the federal Defense of Marriage Act (DOMA) denies married, civil unionized and domestic partnershipped same-sex couples approximately 1,100 federal benefits currently reserved as special privileges to opposite-sex married couples. Even though their marriage may be recognized within a couple's state, the federal government considers them to be simply roommates; their children are regarded as illegitimate.

Most constitutional scholars beleive that the days of DOMA are limited. It has already been declared unconstitutional by two federal courts.

For families headed by same-sex couples, this is a profoundly anti-family law. It denies such parents and children elementary protections. However, most religious and social conservatives strongly prefer that the DOMA law remain in place; they do not recognize such families as valid. Many regard children being raised by two same-sex parents to be severely disadvantage or even intrinsically exposed to abuse because of the lack of a mother or a father. Some conservatives advocate a marriage amendment to the U.S. Constitution that would raise the DOMA law out of the reach of adverse court rulings.

About DOMA:

The following material was provided by the Lambda Legal Defense and Education Fund. It is used by permission.  The list appears to be based on a request by Representative Henry J Hyde, in 1996-SEP. He was chairperson of the House Committee on the Judiciary, and asked the General Accounting Office "to identify federal laws in which benefits, rights and privileges are contingent on marital status." Their response, which runs 75 pages, is available online. 1

The list below was compiled for a couple living in the United States. However, similar provisions exist in many other countries.

In 2009, the GAO prepared a new list which totaled about 1,100 federal benefits.

On the order of 1,400 legal rights are conferred upon married couples in the U.S. Typically these are composed of about 400 state benefits and over 1,000 federal benefits. Among them are the rights to:
bulletjoint parenting;
bulletjoint adoption;
bulletjoint foster care, custody, and visitation (including non-biological parents);
bulletstatus as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent;
bulletjoint insurance policies for home, auto and health;
bulletdissolution and divorce protections such as community property and child support;
bulletimmigration and residency for partners from other countries;
bulletinheritance automatically in the absence of a will;
bulletjoint leases with automatic renewal rights in the event one partner dies or leaves the house or apartment;
bulletinheritance of jointly-owned real and personal property through the right of survivorship (which avoids the time and expense and taxes in probate);
bulletbenefits such as annuities, pension plans, Social Security, and Medicare;
bulletspousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home;
bulletveterans' discounts on medical care, education, and home loans; joint filing of tax returns;
bulletjoint filing of customs claims when traveling;
bulletwrongful death benefits for a surviving partner and children;
bulletbereavement or sick leave to care for a partner or child;
bulletdecision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her;
bulletcrime victims' recovery benefits;
bulletloss of consortium tort benefits;
bulletdomestic violence protection orders;
bulletjudicial protections and evidentiary immunity;
bulletand more....

Most of these legal and economic benefits cannot be privately arranged or contracted for. For example, absent a legal (or civil) marriage, there is no guaranteed joint responsibility to the partner and to third parties (including children) in such areas as child support, debts to creditors, taxes, etc. In addition, private employers and institutions often give other economic privileges and other benefits (special rates or memberships) only to married couples. And, of course, when people cannot marry, they are denied all the emotional and social benefits and responsibilities of marriage as well.

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The changing face of marriage: who is not allowed to marry:

North American governments have prohibited various groups from marrying and thus benefiting from government programs:
bullet Before the civil war, African-American slaves in some states were not allowed to marry. After the civl war, the definition of marriage was changed to allow all African Americans to marry, as long as they married other African Americans and were of opposite genders.
 
bullet Before 1967, inter-racial couples were not allowed to marry in some U.S. states. In an ironically named case Loving v. Virginia, the U.S. Supreme Court changed the definition of marriage to include any man joined to any woman, regardless of racial ancestery. They only had to be sufficiently old and not too closely genetically related.
 
bulletPrior to the year 2000, the relationships of loving, committed gay and lesbian couples were not recognized by any of the U.S. states. They were treated like roommates; they children were considered illegitimate.

bulletIn the 1990s and early 2000s, the governments of Alberta, British Columbia, Nova Scotia, Ontario and Quebec, Canada recognized same-sex relationships and granted restricted rights to gays and lesbians, that were nearly equivalent to those enjoyed by heterosexual common-law couples. More info.

bullet In the year 2000, Vermont was the first U.S. state to recognize same-sex relationships. They created a system of civil unions.  This brought same-sex couples all of the state benefits of marriage, but none of the 1,049 federal rights, benefits and privileges that were routinely given to married couples at the time.

bulletDuring 2003, the Ontario Court of Appeal ruled that same-sex couples could marry.

bulletDuring 2004, Massachusetts became the first state to allow same-sex marriage (SSM). Still, they have no access to the federal benefits of opposite-sex marriage.

bullet During 2005, same-sex marriage became available across Canada except for the province of Prince Edward Island, whose government apparently could not figure out a way to marry same-sex couples. That province quickly found a way when they were threatened with a lawsuit. Since eligibility for marriage is defined by federal and not by provincial law, same-sex married couples were given the full set of provincial and federal benefits.

bullet Since then, other U.S. states have legalized SSM. The current status is in state of continuous flux as more and more states introduce civil unions and same-sex marriage. More details.

Webmaster's personal view:

These beliefs are not necessarily shared by the rest of the group that sponsors this web site.

If marriage were considered like baptism, there would be no problem, because it has no civic meaning; it is purely religious. The state has no interest in whether a person is baptized. Faith groups could decide to marry or not marry a couple on any grounds whatever. In the past, Christian churches have refused to marry couples with a marriage license from the government because they were judged to be too young or immature, did not have a serious intent, were of the wrong combination of races, religions, or genders, too closely related genetically, or even when one person was physically disabled.

If marriage were like a driver's license or registering a business, there would be no problem. Any two people who could meet the qualifications (fee, minimum age and genetic remoteness) would sign an application form, and the government would assign them certain rights and privileges.

The problem is that marriage has traditionally been interpreted as having both a civic and a religious function. Perhaps it is time for a change.

I feel that the best solution is to separate the civic and religious functions of marriage. Then any two people could register their relationship with the government as a civil marriage, pay a fee, and get all of the approximately 300 state and 1,100 federal rights, privileges, responsibilities and protections that have been associated with marriage. If a state refused to allow same-sex couples to enter into a civil marriage, the former could be sued in federal court under the equal protection clause of the 14th amendment of the U.S. Constitution. Finally, if a couple wished, they could apply to a religious group and ask for a religious marriage.

France has a simlar system of civil and religious marriages but still rejects applicants to civil marriage who are of the same gender.

Back in the mid 2000's, this system was proposed in Canada but was rejected because it would have required the consent of the federal government, all three territories and all ten provinces. This would have been impossible. And so the federal government -- which in Canada defines who is eligible to marry -- replaced the term "a man and a woman" with "two persons" in the marriage act, and the fight was over, from sea onto sea. .... except for the smallest province: Prince Edward Island. They couldn't figure out how to follow the federal law until threatened by a lawsuit. That motivated them to find a way.

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Related essays on this web site:

bulletMarriage menu: past, present and future
bullet

Same-sex marriage menu << This is a BIG section

bulletTimeline of SSMs & civil unions from 2005 to now

bulletCurrent status of SSM and civil unions.

References:

bulletLetter from the General Accounting Office to Rep. Henry J Hyde, 1997-JAN-31, at http://www.gao.gov/ or http://frwebgate.access.gpo.gov These are PDF files. You may need software to read these files. It can be obtained free from:

Copyright © 1997 to 2011, by Ontario Consultants on Religious Tolerance
Latest update: 2011-JUL-04
Compiled by: B.A. Robinson

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