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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 and most of the New England 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-2009, 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.

For families headed by same-sex couples, this is a profoundly anti-family law. It denies such families 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:
bulletBefore the civil war, African-American slaves in some states were not allowed to marry.
 
bulletBefore 1967, inter-racial couples were not allowed to marry in some U.S. states.
 
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.
bulletIn the year 2000, Vermont was the first U.S. state to recognize same-sex relationships. They created a system of civil unions.  This brought them 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.
bulletDuring 2005, same-sex marriage became available across Canada except for the province of Prince Edward Island. That province quickly caved when 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.
bulletSince then, other U.S. states have legalized SSM. The current status is in a separate essay.

Related essays on this web site:

bulletMarriage menu: past, present and future
bulletSame-sex marriage menu
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 2009, by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUN-17
Compiled by: B.A. Robinson

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