Dangers of marriage as policy ideal
AtMP has seen important progress on unmarried people’s rights since its founding in 1998. But now I worry that the trend might be starting to slip into reverse. Two recent court decisions – both hailed as gay rights victories – actually highlight the dangers of using marriage as an exclusive public policy ideal, instead of valuing all individuals, caring relationships and families.
While celebrating that California’s Prop 8 was overturned and same-sex couples may regain the right to marry there, our friends Rachel and Bella DePaulo point out that the judge and the winning lawyers elevated marriage and disparaged alternatives to marriage, to an extraordinary and unnecessary extent.
With far less fanfare, Arizona ruled that same-sex domestic partners of state employees could have their health benefits back, after taking them away last year. However, local news reports that
The ruling does not affect unmarried heterosexual couples who also gained coverage as part of a change in state policy pushed through by the administration of former Gov. Janet Napolitano. Absent some change in policy — or a different lawsuit — they will lose their domestic partner benefits at the end of this year. Attorney Dan Barr said the lawsuit did not cover these “straight’’ unmarried workers because they are in a different legal situation: Unlike gays, they can get married to obtain benefits.
In essence, both court cases say “if you can get married, you should, and the burden’s on you if you don’t.” We see parallels in the private sector: both Google and Syracuse University are reimbursing income taxes their employees pay on health benefits for same-sex but not different-sex partners.
Today I had a very pleasant and helpful conversation with an attorney at Lambda Legal. I learned that lawyers have a hard time making an equal protection claim for different-sex couples. To paraphrase, at least two courts have ruled that ‘choosing not to drive a Cadillac does not give someone the right to drive a Pinto.’
I’m not a lawyer, but my instinct says that a winning case would have to demonstrate that being domestic partners or staying single are better options than marriage for a significant group of people. We’d have to prove that marriage is the Pinto, not the Cadillac. Obviously, many AtMP members believe this is true for themselves. Can we build a legal argument to that effect? Can we build one that overcomes the lens of traditionalism through which judges and business leaders see the world?
August 11th, 2010 at 4:42 pm
Given the increasing age at first marriage and the increasing number of single people in this society, on top of the high divorce rate, I think that regardless of what judges or companies decide marriage is changing in importance.
August 12th, 2010 at 9:23 am
I live in South Florida where a significant percentage of the population is elderly (or at least over 55). When Prop 2 (FL Marriage Amendment) was brought to a vote some years ago, one of the many arguments against it was the impact it would have on seniors who cohabit. Many seniors here have survived their spouses and receive survivorship benefits which form a part of their incomes. So, they live together to pool resources and look out for each other, etc. Forced to marry, they’d lose their benefits, placing them in a more economically precarious position.
In this case, marriage is definitely the Pinto and should be included in a legal argument to that effect.
August 12th, 2010 at 5:22 pm
It is important to note that this pinto/cadillac meme is not incidental to the arguments that won the day in the Prop 8 case but, rather, integral to them. If you read the transcript in Perry, you’ll see that the central argument of the plaintiffs was a constitutive claim; that is, they argued that ONLY marriage could convey dignity/importance/social acceptance, etc. This argument *required* the disparagement of everything other than marriage. (In fact, the plaintiffs argued that civil unions were bad precisely because they were associated with homosex–they were, in essence, tainted.) Other marriage cases have moved along similar lines. But IMHO we should not be thinking of legal arguments that will turn the tide. Full-bore litigation is the problem here, not the solution.
August 16th, 2010 at 1:34 pm
A really interesting discussion, one that I haven’t seen so well expressed before. (Heretofore while probably almost all of us in the ATMP community support equal rights for gays, a lot of us have felt conflicted about rooting for gay *marriage*).
Anyway, to me the problem with marriage is that it is a one-size-fits-all government solution — the only proper way to couple is the government’s way (marriage), and a huge body of government law determines exactly what your rights, benefits, and responsibilities are as marrieds, as a survivor on the death of a spouse, and what happens in a divorce (and valid prenuptial agreements can’t change some core things — a few years ago we had quite a discussion thread about that).
It seems adults in the U.S. ought to be entitled to make their own contracts and agreements without being denied benefits or housing. I find it ironic that much of the right-wing pushes marriage as the only way, while at the same time incessantly arguing for freedom, especially freedom from big government.
(As usual, I’ll also mention that if marriage is the Cadillac — and domestic partnerships / civil unions are the Pinto (or vice versa) — the plight of the uncoupled single is analogous to road kill. The type of road kill that is long decayed and off to the side of the road where hardly anybody notices or cares, and not even considered worthy of a decent burial).
August 17th, 2010 at 10:20 am
I can’t agree more with Yvonne. The arguments made in the California and Connecticut cases (where same-sex couples could get the legal benefits of marriage through civil unions) had to portray civil unions or domestic partnership regimes as degrading. Zarillo’s testimony in the Prop 8 trial on this is horrible: (http://www.johnirelandonline.com/Trial/ Day 1, Chapter 2, 38:10 to 45:33), as was Kristin Perry’s: http://www.equalityontrial.org/videos/marisa-tomei-and-josh-lucas 5:00 – 6:50. I work at Columbia University and they force different-sex couples to marry in order to put the employee’s partner on the health plan. Same-sex couples can just show shared residence and financial interdependence. When we challenged the General Counsel’s office about the marriage requirement for different-sex couples they had no idea what we were talking about. My fear is that they’ll start doing the same once ss couples can legally marry, so we need to take care of this now.
September 7th, 2010 at 11:57 am
how about that marrying will lose couples benefits –
their social security changes from two singles to one married, and becomes 1½, that often couples who remarry will lose a deceased spouses pension and health insurance benefits.
that marring legally saddles the new spouse with any debts the other is carrying.
But then, the system would see these as pros – they have to give less money for the people, they have more people to hound for bills that there is insufficient income (or arguments as to service rendered) .
But it might be a start on building the case.
Income tax will also go down as married couples do not pay as much tax as singles do. the so-called marriage penalty is simply an income penalty. You will have the same problem if you have income from two jobs as you will if you marry in the tax year…so restoring our domestic partnership rights that have been here since before the country was founded will net them more in tax money than forcing everyone into marital contracts will.
September 7th, 2010 at 11:58 am
and these changes will accrue whether the couple is same, different or poly.
(oh, that’s right. It’s still against religious law to have more than one spouse)
September 7th, 2010 at 12:06 pm
Jeff: an unmarried woman who has no children is actually treated like a pariah who dares to use precious resources without providing wage-slaves for the next generation and is better of committing suicide to eliminate their embarrassing existence.
Don’t know if the male of the species is treated as badly, but females are all but REQUIRED to produce offspring to excuse their very existence.
Road kill is a wonderful example. and it includes that singles pay higher taxes and higher premiums on everything.
September 18th, 2010 at 5:20 pm
Actually, as far as Social Security retirement benefits, married people *always* do better (or at worst exactly the same) as two singles with the same earnings. The 1 1/2 (of the higher earning spouse’s benefits) is a minimum. To clarify (using as an example the traditional married couple where her earnings are less than his):
Phase I – while they are both alive and upon reaching retirement age and
begin receiving Social Security benefits:
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If her lifetime earnings are less than 50% of his, say 30% of his, than she pays 30% of the S.S. taxes he paid but gets 50% of what he gets in S.S. benefits. Their combined take from S.S. expressed as a percent of what he gets is 150%. (If they were an unmarried couple or just two singles, their combined take would be 130% of his).
If her lifetime earnings are more than 50% of his, say 60% of his, than she pays 60% of the S.S. taxes he pays and gets 60% of what he gets. Their combined take from Social Security expressed as a percent of what he gets is 160%. (If they were an unmarried couple or just two singles, their combined take would be the same 160% of his).
Phase II – If he dies and she survives him, than at her retirement age:
=======================================================
If her lifetime earnings (and thus the S.S. taxes she paid) are less than his, than she gets 100% of the benefits he would have gotten if he were alive.
The case where she out-earns him
====================================
The Social Security laws are gender neutral, so if she out-earns him, than all of the above about Phase I and Phase II still holds true, except to replace “he” with “she” and vice versa. So the lower earning husband gets a subsidy in Phase I if his lifetime earnings are less than 50% of hers, and gets a subsidy in Phase II (if he outlives her) even if his earnings are a little lower than hers.
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Regarding losing spousal benefits on remarrying – that is true. But notice one is losing a benefit that one acquired through marriage. Going through what happens in remarriage is a bit too complex for a posting like this, but rest assured, the remarrying person always does better than the never married (or at worst exactly the same).
Sources:
[1] Marriage and Social Security Benefits, by Emily Brandon, US News (online) 9/11/08 http://money.usnews.com/money/retirement/articles/2008/01/09/marriage-and-social-security-benefits.html
[2] “No Presents, Please, Katha Pollitt, p. 12 The Nation, Aug 14, 2006. http://www.thenation.com/article/no-presents-please