Same-Sex Marriage
A judge in Hawaii ruled this
week that the state's constitutional prohibition against sex discrimination
requires it to give legal sanction to same-sex marriages. Although state
officials plan to appeal the decision to the state Supreme Court, the judge's
decision has revived the controversy that prompted Congress to pass (and
President Clinton to sign) the Defense of Marriage Act in September. That act
defines marriage for the purposes of federal law as the union of a man and a
woman (thereby denying federal spousal benefits to same-sex partners) and
permits states to deny recognition to same-sex marriages performed in other
states.
While it
is true that a large part of the debate over same-sex marriage has focused on
the moral and religious issues, marriage is also a legal condition with
practical consequences. What advantages--and disadvantages--would become
available to same-sex unions if they were officially recognized by the
government?
The federal tax code , as well as many state tax
systems, favors marriages in which one spouse earns most of or all the income,
and penalizes those in which income is equally or nearly equally split between
the partners. The oft-complained-of "marriage penalty " only exists in
the latter case. If both partners have roughly equal incomes--which may be the
case more often among same-sex couples than among opposite-sex ones--getting
married will raise their taxes. But a working person who is the sole or main
support of a same-sex partner could realize a large tax saving if the union
were legally sanctioned. This is especially so if they are approaching
retirement.
Social Security 's
old-age and disability programs both favor married people. For example, when a
fully insured worker retires, the spouse receives half of the worker's
benefits. This is not the case with unmarried couples--which fact gives married
partners the edge over their unwed counterparts. (However, if each partner had
had substantial earnings, no marriage benefit would accrue--the law requires
the lower-earning partner to choose between taking his or her own earned
benefit or one-half of the partner's benefit.) If only one partner in a
same-sex marriage had substantial earnings, the couple would realize a much
higher rate of return on that partner's Social Security taxes than they would
have if unwed or earning comparable incomes.
Social
Security survivor benefits --and spousal benefits under other federal
programs such as veterans' pensions --apply only to a legal spouse, not
to an unmarried partner.
Though the law does not require that businesses
provide their workers with medical benefits , many employers do so.
Benefits often cover employees' families, and some companies now are extending
benefits to same-sex partners as well. But benefits for employees and their
families are tax-free. When businesses offer benefits to unmarried partners,
however, the cost is taxable income. If same-sex partners were legally
recognized as spouses, the benefits would no longer be taxed.
Marriage
also grants a spouse automatic "medical power of attorney "--the legal
authority to make medical decisions for an incapacitated person. Unmarried
partners, of the same or opposite sex, must hire a lawyer to obtain this
authority. Hospitals also generally bar those who are not members of a
patient's immediate family from intensive care units . The marriage
contract confers numerous rights to a surviving spouse upon the death of
the other spouse. This includes deciding how to dispose of the deceased's
body .
Marriage also helps the survivor to inherit . In most
states, a spouse automatically inherits from a deceased partner. In the case of
unmarried couples, on the other hand, the survivor is entitled to nothing
unless the deceased specifically wills it to him or her. When unmarried people
die intestate--without a will--their assets automatically go to their families.
Because married people are considered to be an economic unit, moreover, the
federal estate tax exempts all assets inherited by a spouse. Unmarried
partners receive no such exemption. And where a surviving spouse may sue for
wrongful death , or for his or her own emotional distress, if the death
is arguably someone else's fault (a traffic accident, for instance), an
unmarried partner generally has no such right.
Some of
the most important legal consequences of marriage involve getting out of it
(even though it is true that one spouse generally cannot be required to
testify against the other in court as long as they're still married).
Divorce laws divide property and dictate the financial support of
spouses who did little work outside the home. These laws vary by state. But in
general, when a marriage dissolves, each partner is considered to own
everything he/she brought into the marriage, while all assets obtained during
the marriage (except by inheritance) are considered joint property. What
happens to joint property? Most states have "equitable distribution" laws,
under which it is supposed to be divided fairly, though not necessarily in
half. Only eight states have "community property" laws requiring that all
assets acquired during a marriage be divided equally.
A same-sex spouse probably couldn't count on
any long-term alimony . Since the "no-fault" divorce reforms of the
1970s, courts have rarely made such awards in cases involving the dissolution
of marriage. Instead, courts give the financially dependent spouse
"maintenance" payments, which provide support while she or he gains a footing
in the work force. In practical terms, maintenance usually lasts only five to
seven years, and rarely longer than the marriage did.
U.S.
immigration law permits spouses of American citizens to become American
citizens with only a few exceptions, such as sham marriages undertaken for the
purpose of obtaining citizenship. Although there are still some legal hoops to
jump through, marriage would enable the same-sex partner of a U.S. citizen to
avoid the very lengthy (and frequently unsuccessful) application process for
citizenship.
Aprimary argument against same-sex marriage is that
marriage is an institution for the raising of children. But laws pertaining to
child-rearing are surprisingly marriage-neutral. Parents have the same
obligations to support their children regardless of whether they are, or ever
were, married to each other. (And marriage benefits go to all married people
regardless of whether they have children.) Same-sex marriage would have no
direct effect on the rights and obligations of parenthood. It might well,
however, facilitate gay couples' efforts to adopt children.
The marriage contract pours a
sea of benefits and obligations into a single "I do." As a generic set of laws
for an extraordinarily diverse group of marriages, marriage law burdens some
couples some of the time and benefits most couples most of the time. Symbolism
aside, if government extended marriage to same-sex couples, the new spouses
would find the pros and cons about the same.
