FOUR WAYS TO
ACHIEVE
SAME-SEX MARRIAGE
SYNOPSIS:
First we will outline 25 rights and privileges
that are automatically
available to married couples
that could be extended to same-sex couples
if they were recognized and registered in some way.
Then we will
project four possible ways
in which laws might be changed in the 21st century
to enable same-sex couples to have the same rights and privileges
now enjoyed by different-sex married couples.
For the United
States of America,
same-sex marriage was achieved
by a Supreme Court decision in 2015.
But all methods of change might be relevant
for other jurisdictions that still ban gay marriage.
OUTLINE:
Same-sex
marriage will be achieved thru some combination
of judicial and legislative action in the various jurisdictions.
This
presentation will outline four possible ways
the right to marry will be won for same-sex couples:
1. Courts could overturn
laws preventing same-sex marriage.
2. Legislators can
repeal laws
requiring marriage partners to be of different sexes.
3. Legislators can
create new laws
permitting domestic partnership alongside traditional marriage.
4. Legislators can
repeal all marriage laws;
allowing relationships to be private and unregistered.
JUNE 2015: U.S. Supreme Court
Makes Same-Sex Marriage Legal Everywhere in the USA.
FOUR WAYS TO
ACHIEVE
SAME-SEX MARRIAGE
by James Leonard Park
25 RIGHTS AUTOMATICALLY AVAILABLE TO MARRIED
COUPLES
WHICH WOULD BE EXTENDED TO SAME-SEX COUPLES
WHEN THEY ARE PERMITTED TO MARRY IN SOME FORM
1.
Inheritance.
Partners-in-life who are not legally married
are not automatically entitled to each others' property
when one of them dies
unless they have a will or trust granting that inheritance.
2. Social Security benefits.
Married people are automatically entitled to
survivor benefits
based on the earning-record of a spouse who has died.
Without a legal marriage, you are not a survivor
according to Social Security law.
3. Health insurance as a "family".
Most health-insurance policies cover one's
spouse
and dependents.
If the partners-in-life are not legally married,
they have to obtain some other kind of health insurance.
4. Income-tax benefits.
Married couples who earn significantly
different
incomes
get large tax-benefits from all levels of government.
Unmarried couples cannot file joint tax-returns.
5. Family leave, family visitors, & medical decisions.
Employers usually allow time off from work
when a spouse is sick or hospitalized.
And hospitals often restrict visits to family members.
Medical decisions are automatically given to 'next of kin'.
But do these rights apply for unmarried couples?
6. Gaining citizenship by getting married.
A foreigner can become a legal resident by
marrying a citizen.
Later that spouse can become a citizen.
Without legal marriage, this pathway to citizenship is
closed.
7. Disabled-spouse benefits.
Taxes are lower for workers who have disabled
spouses.
Some corporations and government agencies
also recognize the additional burdens of caring for a disabled spouse.
Unmarried couples receive no benefits if one is disabled.
8. Protection of a jointly-owned home from medical catastrophe.
When medical expenses impoverish a married
couple,
the healthy spouse is allowed to keep a jointly-owned home.
But all of the assets
jointly owned by two unmarried persons are reachable,
even if this leaves the other partner out on the street.
9. Unemployment benefits.
Unemployment benefits are paid according to
the size
of the family.
If there is no legal relationship between the partners,
the needs of the dependent partner do not count.
Likewise when a unmarried couple moves to accommodate a new job,
the partner who must resign and move because of a partner's new job
gets no unemployment benefits.
10. Workers' compensation benefits.
When a worker is injured on the job,
benefits are paid according to the size of the family.
But if there is no legal marriage,
only the injured worker gets workers' compensation.
11. Relocation Benefits.
Many companies pay to relocate the whole
family
and everything they own.
But if the partners are not married,
the partner who moves to maintain the committed relationship
must pay for his or her own move.
12. Pension benefits.
Most pension plans (government and private)
provide a portion of the pension to a surviving spouse.
If there was no marriage,
pension benefits end
with the death of the worker who earned them.
13. The right to sue for loss of
'consortium' and
'wrongful death'.
When a married partner is killed,
the surviving spouse has an automatic right to sue
because of the loss of companionship.
But unmarried partners must prove that their loss is as great.
14. Veterans' and other military benefits.
The military provides a wide variety of
benefits and
services
to the spouses of members of
the military.
If there is no marriage, the partner receives no benefits.
15. The right to create certain kinds of family trusts.
Married couples can create family trusts
that avoid probate when one spouse dies.
Unmarried couples have no such automatic rights.
16. Estate-tax marital deduction.
A legal spouse can inherit even a very large
estate
without paying any estate taxes.
All other large estates must pay a major percentage in taxes.
17. Securing a mortgage.
At least in the past, mortgage companies
automatically counted the incomes of both spouses
when deciding whether or not to lend money on a house.
Unmarried partners usually had to qualify
by means of the income of one
partner.
18. Renting a home or apartment.
Married couples are never questioned when
renting
together.
But unmarried couples are restricted by law and custom,
especially if they are 'suspected' of being gay or lesbian.
Sometimes local laws limit the number of "unrelated individuals"
who are permitted to rent together.
19. Life insurance.
One's spouse is automatically one's
beneficiary.
Unmarried couples must sometimes make special provisions
in order to name unmarried partners as beneficiaries.
20. Loans and credit.
Loans and credit-cards are easily obtained by
married couples.
But unmarried couples usually do not qualify as an economic unit
for joint loans and other credit.
21. "Family rates" and "family memberships".
Many goods and services are provided to
families at
reduced rates.
But unmarried couples often do not qualify as "families".
22. The right to adopt children.
Married couples are usually assumed to be
good
adoptive parents.
But unmarried couples (especially of the same sex)
often have to pass higher
tests of competence to be parents.
23. Custody of children from a former marriage.
When a child is being
raised by a same-sex couple,
that child is often the biological offspring of one of those adults.
If the child's biological father or mother dies,
the child usually goes to the surviving
biological parent,
even if that person has had little or no role in the child's life.
Courts easily assume that a heterosexual couple
is better qualified to raise a child
(or that a biological parent has an automatic right to custody),
even if this means separating the child
from the only parent he or she can remember.
24. The right of 'privileged communication'.
Spouses
cannot be compelled to testify
against each
other.
Unmarried partners have no such right in a court of law
to keep their conversations private.
25. Social and psychological benefits.
Because society has supported marriage for
thousands
of years,
every culture grants formal and informal benefits to married couples.
Unmarried couples are sometimes made to feel inferior
if they do not have the same legal status.
FOUR
WAYS
TO ACHIEVE SAME-SEX MARRIAGE
1.
Courts could overturn laws preventing same-sex marriage.
One possible pathway by which same-sex marriages
might become possible is by courts overturning laws
that prevent people
of the same sex from marrying each other.
If the state has no compelling interest in preventing same-sex
marriages,
then the states can be ordered to issue licenses without discrimination.
The privacy and equal-protection provisions of the U.S. Constitution
might include the right of persons of the same-sex to marry each other.
In
late 2003 the Massachusetts Superior Court
found that the state of Massachusetts had no provision in its
constitution
to prevent same-sex couples from marrying.
Thus same-sex marriage licenses were issued in Massachusetts
beginning in May 2004.
There were efforts to change the Massachusetts state constitution.
But if any such ban were to succeed,
what would happen to the same-sex couples already married?
Various other efforts were made to change state constitutions
and the U.S. Constitution to prohibit
same-sex marriages.
In 2004, 13 states passed measures
defining marriage as between one man and one woman.
All such provisions were overturned by the Supreme Court in 2015.
Constitutions
usually protect minority rights
even if most of the people feel another way.
The U.S. Constitution has not yet been used
to deny rights such as
the freedom to marry.
In June 2003 the courts of Canada decided
that the law should not prevent same-sex couples from marrying.
This made Ontario and British Columbia (two provinces of Canada)
the first large elements of the English-speaking world
to recognize same-sex marriage.
A few countries in Europe already licensed same-sex marriages.
In 2008 the California Supreme Court overturned
the California ban on same-sex marriage.
(But in November
2008, the voters of California
passed a ban on same-sex marriage.)
Thus, the judicial
route has been an
effective way
to gain the right for same-sex couples to marry.
Often these are split decisions among a panel of judges.
But it is easier to convince professionals trained in the law
than to convince legislators to go against at least some of their
constituents.
And judicial rulings can prevail even against popular opinion to the
contrary.
Minority rights can be protected by law
even if the majority on the people in any jurisdiction would like to
discriminate.
And, in 2015, the United States Supreme Court
did in fact establish same-sex marriage everywhere in the USA.
This single action made all of the following methods no longer
relevant.
But they can still be used in other countries of the world.
2.
Legislators can repeal laws
requiring marriage partners to be of different sexes.
Many laws
already define marriage
as a contract between one man and one woman.
And where law does not have such provisions,
some people would like to see different-sex marriage
defined as the only kind of marriage licensed in that jurisdiction.
But
the opposite move is also possible:
Wherever marriage is defined as between one man and one woman,
that provision could simply be repealed.
Then adults of the same sex would be permitted to marry
under the same laws as different-sex couples.
Legislators are under very strong pressure
from both sides of this debate.
But as other places authorize same-sex marriage,
then it become easier for the slower jurisdictions to follow suit.
In some places,
a completely new law
might be the best way to allow same-sex marriage.
Because of frequent changes in laws,
an Internet search might be the best way to discover
just when and how same-sex marriage became legal.
3.
Legislators can create new laws
permitting domestic partnership alongside traditional marriage.
As a
compromise, some states created
marriage-like contracts
that are available to same-sex couples.
These were called "civil unions" in Vermont.
Another common expression is "domestic partnership".
When
the word "marriage" is not used,
some of the opponents are more willing to go along.
Usually these new licensed relationships
have all the same rights, privileges, & responsibilities
as found in traditional marriage contracts.
But
some people (including judges) see that
"separate but equal" status still leaves the door open for
discrimination.
And even if a different official label is provided by law,
most of the couples and their relatives
will still refer to the couple as "married".
And the 2015
Supreme Court decision
allows all such relationships in the USA to become legal
marriages.
4.
Legislators can repeal all marriage laws;
allowing relationships to be private and unregistered.
The jurisdictions would no longer issue any marriage
licenses.
All personal relationships would be private and individual,
and not defined or controlled by law.
All
laws that mention spouses, wife, husband, marriage, etc.
would have these references removed.
In many cases, the complete law would have to be repealed,
because it had no other purpose
than to give special rights and privileges to married people.
Marriage and divorce would become private matters.
Laws against domestic violence would apply to everyone equally
—without regard to marital status.
This would allow couples to create their own relationships,
without having them defined in advance by lawmakers.
If
and when all levels of government become marriage-neutral,
marriage will revert to being a private contract
—perhaps with some religious
meaning for some people.
The provisions of each private
relationship
contract
would be defined only by the partners themselves
and not by any state or national laws.
All laws would be cleansed of special privileges for
married people.
For instance, married people would no longer get tax-benefits.
The income of each person would be taxed individually.
Of course, couples who previously benefited from joint-filing
will resist losing such benefits.
But as more women work outside of the home,
there is more reason to tax each income separately.
And
if marriage dies out as a legally-defined social institution
and as a general pattern of
relationship,
then it will be easier to erase special privileges for married people.
If there comes a time when only 10% of adults are legally married,
then it will be easy to eliminate special privileges based on marriage.
All people would have the
same rights
without regard to their
personal relationships.
Instead of licensing marriages,
the state could license parenthood,
in order to protect children.
Repealing all marriage laws is the least likely change.
But even discussing such proposals
will make us aware of how many laws we already have
that attempt to define and control interpersonal relationships.
If and when the state governments and the federal
government
no longer had any laws referring to marriage in any way,
then the churches could still have their own rules about
marriage.
We might need to be reminded that
before the middle ages, civil
laws about marriage did not exist.
Marriage was controlled by the prevailing religions
and by the cultural practices of each culture and sub-culture.
Theoretically, this could happen again.
If
marriage were removed from the control of the state,
then, of course, people could create their own relationships,
without depending on society to structure their love.
All couples—including
same-sex couples—could
do as they please.
As the French say, "Love is the child of freedom."
JUNE 2015: U.S. Supreme Court
Makes Same-Sex Marriage Legal Everywhere in the USA.
This essay was first created in
2004.
And for the USA, the issue of same-sex marriage was suddenly settled
by the U.S. Supreme Count in June 2015.
During that decade of change, many states had already
changed their marriage laws to allow couples of the same sex to marry.
But other states had tried to ban the practice
either by state law or by changing their state constitutions.
Now all such
laws against same-sex marriage are null and void.
Thus, as far as
the United States is concerned,
same-sex marriage came
decisively by a court decision.
Other countries of the world might make similar changes
by court decisions or by the other methods discussed above.
Now all state
and national laws and regulations concerning marriage
have been modified to allow couples of the same sex to marry.
And all of the rights and duties of any married people
also apply to same-sex couples who choose to marry.
AUTHOR:
James Park is the author of several
books.
The essay above was adapted from a book called:
Designer Marriage:
Write Your own Relationship
Contract.
And the essay above has now been included
as a chapter of:
Heartbreak
Prevention: Loving Beyond
Romance, Sex, & Marriage.
Much more about
the author will be discovered on his website:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/index.html
drafted 3-15-2004; revised
3-16-2004; 3-21-2004; 3-22-2004; 4-10-2004; 4-23-2004;
11-3-2006;
5-28-2008; 11-6-2008; 4-11-2009; 2-27-2010; 3-6-2011; 8-2-2011;
6-23-2012;
5-18-2013; 8-28-2014; 1-31-2015; 6-28-2015; 7-18-2018; 11-14-2020;
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