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.

	joint parenting;
	joint adoption;
	joint foster care, custody, and visitation (including non-biological parents);
	status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent;
	joint insurance policies for home, auto and health;
	dissolution and divorce protections such as community property and child support;
	immigration and residency for partners from other countries;
	inheritance automatically in the absence of a will;
	joint leases with automatic renewal rights in the event one partner dies or leaves the house or apartment;
	inheritance of jointly-owned real and personal property through the right of survivorship (which avoids the time and expense and taxes in probate);
	benefits such as annuities, pension plans, Social Security, and Medicare;
	spousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home;
	veterans' discounts on medical care, education, and home loans; joint filing of tax returns;
	joint filing of customs claims when traveling;
	wrongful death benefits for a surviving partner and children;
	bereavement or sick leave to care for a partner or child;
	decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her;
	crime victims' recovery benefits;
	loss of consortium tort benefits;
	domestic violence protection orders;
	judicial protections and evidentiary immunity;
	and 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.

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:

	Before the civil war, African-American slaves in some states were not allowed to marry.
	Before 1967, inter-racial couples were not allowed to marry in some U.S. states.
	Prior 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. In 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. 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 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. During 2003, the Ontario Court of Appeal ruled that same-sex couples could marry. During 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. During 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. Since then, other U.S. states have legalized SSM. The current status is in a separate essay.

Related essays on this web site:

	Marriage menu: past, present and future
	Same-sex marriage menu
	Timeline of SSMs & civil unions from 2005 to now
	Current status of SSM and civil unions.

References:

Letter 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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