This report presents a comprehensive argument in favor of extending civil marriage rights to gays and lesbians in this country. It offers statistical information about the prevalence of same-sex couples, attitudes in our society toward same-sex marriage, domestic partnership and civil union laws, and offers an overview of the dramatic changes in the institution of marriage over a period of roughly 2,500 years.
The difference between civil and religious marriage is explored, as well as a discussion of the four basic arguments against same-sex marriage, the benefits same-sex couples will gain through the extension of civil marriage rights to them, and some information about domestic-partnership laws in the US is offered.
The topic of the Federal Defense of Marriage Act of 1996 is discussed, including the argument for overturning the legislation on the grounds that it violates our US Constitution. There is a fairly thorough discussion of same-sex marriage around the globe, centering on the details of the worlds first legal same-sex marriage in Denmark, 13 years ago.
The appendix of this report contains:
Even individuals not interested in procuring the right of same-sex couples to marry will find the sections on the history of marriage and the story of how our US Supreme Court declared contraception legal for married couples in 1965 to be interesting, entertaining, and informative.
Of the approximately 285 million people living in our country today, between three and eleven percent are self-identified gays and lesbians. The 2000 US Census figures show 1.2 million gay men and lesbians are living together in committed relationships, although most reliable sources feel that the true number is closer to fifteen times that figure, due in part to the reluctance of some to disclose personal information to the government. According to the Partners Task Force for Gay & Lesbian couples, about 60% of gay men and lesbians are in [committed] relationships (Lesbian).
While an estimated 13% of gay couples have children they have biologically parented, couples that want children but choose not to procreate through traditional means may legally adopt in all but three states in the US (Not). In California alone, according to a recent Stanford University study, there are 140,000 children with either one or both parents who are gay (Marriage). Studies conducted over the past 20 years show that children of gays and lesbians are both well adjusted and happy (Marriage).
We have come a long, long way from the nuclear family of the 1950s and 60s but in terms of equality under the law, gay men and lesbians still have a long way to go. Its not that Americans dont have daily contact with gay men and lesbians, or that the majority of Americans hold intensely conservative viewsa quick glance at the results of some recent polls reveals that of those surveyed:
From these statistics, you might draw the conclusion that in the area of gay rights, the majority of Americans are quite liberal and favor a broad spectrum of rights to be extended to all citizens. However, taking a look at just one more statistic from the same survey shows something quite different: 47% of those polled do not support same-sex marriage (Gay Rights)
This report explains how marriage has changed through the years and presents an argument in favor of extending Civil Marriage rights to include all Americans including gays & lesbians.
Civil marriage is a contract between two adults who have met the States requirements for the legal protections of marriage. It is a basic right granted to 90% of Americansa badge of full and equal citizenship (GLAD 2-3). It is an expression of emotional support and public commitment that gives the participants equal property rights and equal access to government benefits, and requires a legally binding equitable dissolution in the event the relationship ends (GLAD 5). This dissolution is known commonly as divorce and requires the involvement of the legal community to assure that property is divided and offspring are supported following the end of the marriage. While certain religions and religious groups may perform ceremonies that serve to marry couples in the eyes of God, the only type of marriage recognized by the state and by the federal government is called civil marriage.
Same-sex couples are not currently allowed to marry in any of our fifty states, no matter what the circumstances or how necessary such a marriage would be to protect children the couple share, or how committed the couple is to each other (Lesbian; Court 3). While it is possible for a gay or lesbian couple to have attorneys draw up legal documents that mimic many of the contractual rights couples gain when they purchase a marriage license, the process is expensive, time consuming, and not foolproof. Wills, health-care proxies, and co-parent adoptions (legal in most states) can all be challenged in court, and in many cases, same-sex partners are prevented from making medical decisions or visiting their loved ones in the hospital if blood-family members object and make their objections known to the hospital staff. Also, there are no contracts that legally block prosecutors from forcing same-sex partners to testify in court against their partners; every state has laws that provide immunity against testifying in court against your legal spouse (Lesbian).
Having established who cannot legally marry (gay men & lesbians), lets look at who actually can marry. Paralyzed or mentally handicapped people are allowed to marry. Infertile couples and elderly people are allowed to marry; many of the important rights that accompany marriage have nothing to do with the ability to produce children (Marriage). The father of our country, George Washington, and his wife had no children; neither did Dr. Seuss and his wife (Why). Felony convictions do not prevent known child molesters, serial killers, drug dealers, black-market gun dealers, and rapists from obtaining marriage licenses (Bidstrup). Lyle Menendez, convicted along with his brother for murdering their parents in cold blood, married in prison (Marriage).
Applicants for marriage licenses are not required to reveal their sexual orientation. There are no laws preventing gays or lesbians from marrying heterosexuals, or even each otheras long as one license applicant is male and the other is female. While fidelity within marriage is preferable to most people, no fault divorce has eliminated adultery as grounds for divorce in most states (GLAD 9). In essence, most couples that show up at the courthouse with $50 and can prove they arent already married to other people can be married, even if they have only known each other a few minutes. People who have never met (Darva Conger and Rick Rockwell who met and married on Fox-TVs Who Wants to Marry a Millionaire) have actually gotten married on live television in front of an audience of millions as part of a game show (Marriage).
Throughout history, the institution of marriage has undergone numerous changes. Some of the more significant examples are:
One of the most contentious marriage related fights began in this country in the late 1600s and raged on until 1967 (Marriage). In 1705, the Massachusetts Colony became the first to ban marriage between blacks and whites (GLAD 8). By 1750, all Southern colonies and two Northern colonies [Pennsylvania and Massachusetts] had outlawed marriages between whites and other races (Bidstrup).
In 1948, Californias Supreme Court became the first to abolish laws preventing interracial marriages [Perez vs. Lippold], followed by 14 of the 40 states that prohibited these marriages (GLAD 8). However, as recently as 1958, a black woman, Mildred Jeter, went to prison in Virginia for marrying a white man, Richard Loving (Hartill). Their case, decided by the US Supreme Court in 1967, struck down the laws in the 16 remaining states prohibiting mixed race marriage. The legally unenforceable statute remained on the books in North Carolina until 1977; Alabama was the last state in the US to remove their law banning mixed-race marriages in November 2001, 34 years after the Supreme Court declared it unconstitutional (Hartill).
Lane Hartill, in an article that originally appeared in the Christian-Science Monitor in July 2001 states, the Current Population survey estimates that there are over 450,000 black-white marriages today, compared with 51,000 in 1960. The same article asserts, as recently as 1991, the National Opinion Research Center found that 66% of white Americans polled opposed a close relative marrying a black man. A similar study funded by Harvard University, The Washington Post, and the Henry J. Kaiser Family Foundation in 2000 found that 14% of blacks and 44% of whites still object to interracial marriage (Hartill).
The four most common objections to marriage between persons of the same sex are:
There are some common misconceptions about marriage, brought on by the large number of marriage ceremonies performed in churches, or by members of the clergy. While many couples choose to participate in a religious marriage ceremony, civil marriage is NOT religious; it is a one size fits all institution, NOT controlled by any religion. The federal government does not recognize religious marriages, unless performed in conjunction with obtaining a civil license registered with the local magistrate. Religious marriages do not convey legal rights or responsibilities. It is worth noting that some religions will not marry couples if either person is previously divorced, in spite of the fact this couple may marry in a civil ceremony (GLAD 4).
Gay & Lesbian Advocates & Defenders (GLAD), in their November 2001 publication, Civil Marriage for Same-Sex Couples, points out:
Because of [Constitutional] separation of church and state, every religious community always has the right to perform (or recognize) or not perform any marriage it deems appropriate, regardless of the partners sex
individual congregations of Reform Jews, American Baptists, Buddhists, Episcopalians, Presbyterians, Unitarian Universalists, the Society of Friends, and members of the United Church of Christ, among others, have performed [religious, non-legal] marriages for same-sex couples. (GLAD4)
Most Americans opposed to same-sex marriage cite religious reasons as their chief objection. Allowing religions or traditions to dictate policy violates church/state separation as outlined in the First Amendment of our Constitution. The United States is a democracy, not a theocracy. Our Constitution doesnt mention the Bible or Christianity anywhere (Why); what it does state clearly is that our government cannot create laws upholding one religious belief over any other. Lots of people mistakenly assume that our government is based on the teachings of the Christian Bible, most particularly the Ten Commandments found in the Old Testament. Its worth considering that eight of the Ten Commandments arent illegal under current laws (Marriage). Advertising is based entirely on convincing us all to covet what our neighbor has, presuming that we will go out and buy the same things.
Opposite sex couples are not prevented from marrying if they choose not to have children, and taking steps to prevent pregnancy cannot be used against married couples. The US Supreme Court made this clear in 1965 when they ruled against state of Connecticut [Griswold vs. Connecticut], which had added two articles to its general statutes in 1958, criminalizing the use of contraceptives. The articles read:
Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender. (Griswold)
The Executive Director of Planned Parenthood League of Connecticut, Estelle Griswold [pictured above], in addition to the doctor from Yale Medical School who helped operate their clinic, were convicted and fined $100 each under these statutes for passing information to, giving instructions and medical advice to married persons as a means of pre-venting pregnancy. In 1965, the U.S. Supreme Court ruled that Connecticut's laws on the use of birth control by couples violated a newly defined right of marital privacy (Griswold).
If procreation were actually a determining factor in deciding who is allowed to marry, elderly or infertile couples would experience the same discrimination as gay couples, and would be turned away at the courthouse. Also, making the ability to reproduce the litmus test for eligibility to marry would most certainly allow gays and lesbians to marry. As mentioned in the introduction of this report, a full 13% of same-sex couples not only have children in their homes, but BIOLOGICAL children; being gay or lesbian does not interfere with the bodys capability to reproduce.
A common myth among heterosexuals in our culture is that gays and lesbians can convert to heterosexual orientation by employing a group of techniques called reparative therapy. Subjects follow a regimen of prayer, counseling, aversion therapy or other combinations of treatments designed to change the sexual orientation of the patient. The American Psychological Association (APA) has issued several policy statements over the years since 1972 when they removed homosexuality from the list of mental illnesses. The APA stands firms in the position that homosexuality is both natural and unchangeable, probably the result of genetic factors that occur prior to birth. A 1998 APA position statement obliges psychiatrists and counselors to speak out against religious and political groups who call homosexuality a mental illness (DeNoon and Gossett).
In 2000, the APA denounced reparative therapy as unethical and unprofessional conduct, pointing out that to date there are NO scientifically valid studies showing benefits of this practice, only a stockpile of victims damaged by the therapy (DeNoon and Gossett).
If we as a nation decide that laws must be based on popularity and majority rule, several outdated and abolished practices will need to be restored. Slavery was wildly popular; it took a Civil War and an official presidential proclamation to end it. There has been evidence of slavery since the dawn of man (Bidstrup). Womens rights were never popular, and giving the right to vote to women in 1920 was not a popularity contest. The Civil Rights Act of 1964 was never a popular cause, and even after the Civil Rights Act went into effect, there were riots (most notably, the Watts Riot in Los Angeles, CA, 1965) and several black leaders (Martin Luther King, Malcolm X) were murdered by those who hoped to reverse the progress blacks had obtained through having their minority status recognized. Many people today still do not see black and white people as equals.
Excluding gays and lesbians from civil marriage has hardly strengthened the institution; statistically, one in two heterosexual couples who marry end up divorced, often within the first five years of marriage. Nevertheless, a frequent argument against same-sex marriages is that allowing gay couples to marry will somehow weaken the institution. It is a perversion of logic to suggest that making marriage available to the 10% currently prevented from marrying the person they love will ruin the institution for the 90% currently able to participate. The marriage of two adults of the same sex who seek to make a lifetime commitment together takes nothing away from anyone elses marriage (GLAD 5). The power to ruin a marriage lies entirely in the hands of the couple that marry.
According to GLAD,
anti-gay, anti-marriage laws hurt real families of same-sex couples and do nothing to protect anyones marriage. In addition to declaring [gays]
to be second-class citizens
some states have used their laws as a general public policy declaring disfavoring gay relationships. Other states have attempted to use anti-marriage laws to restrict a gay parents custody of their own child, to rescind or challenge domestic partnership plans and to infringe on adoption rights (GLAD 19).
Not all gay couples will choose to marry, just as not all straight couples make their unions legal under current law. Being a free society, we cannot force couples living together to get married, and marriages between people that lived together before marriage are not any less legally protected than those who abstain from cohabitation before marriage (Marriage).
The most effective way to strengthen marriage for all couples that choose to participate is to make legal marriage the universal standard of a committed relationship. Some other suggestions for improving the sanctity of civil marriage:
Its worth noting that in countries like the Netherlands, where same-sex marriage has been legal for 13 years, the marriage rate for straight couples is up 10%, and the divorce rate among straights has fallen 12%. Of the 17,000 gay couples who have married there, one in twelve divorce (Hari).
Civil marriage is an entire intricate web of legal, economic, and practical protections and responsibilities, from sharing club memberships, to adoption, to tax issues, to immigration (Marriage). Each state has somewhere between 300-600 laws that specifically grant permissions and protections to married couples. The congressional General Accounting Office (GAO), in a report released February 7, 1997, cited 1,049 federal laws in which marital status is a factor (New). Property rights, child custody, automatic inheritance, immunity from testifying against your spouse in court, Medicare, Food stamps, Social Security, Immigration benefits, hospital visitation and health decisions, and the right to obtain a divorce (judicial review of dissolution) are a few of the areas covered under these 1,049 federal laws (an expanded list is included in the appendix of this report).
As Lambda Legal Defense Executive Director Kevin Cathcart puts it, stabilizing families and couples is of such value that society has created a unique web of laws to acknowledge and protect them. Coverage is only available through civil marriage, and no citizens should be denied access to this institution (New).
The Vermont Supreme Court unanimously granted domestic partnership rights to gay couples on December 20, 1999. The new law went into effect July 1, 2000, making Vermont the first US state to offer the first statewide domestic-partnership, offering same-sex couples nearly the same rights within the state as heterosexual married couples. California added its own version of the same benefits in October 2001 (government pensions are not included in the domestic partners rights in California, but are in Vermont).
Hawaii has allowed reciprocal beneficiary status since 1997, which gives same-sex couples inheritance, hospital visitation, government pension, and medical-decision rights. Five states Washington, Oregon, Massachusetts, New York, & Connecticut offer state government employees domestic partner benefits (Allen). A handful of states offering their government employees domestic partnership benefits are no substitute for marriage, but it is a start. Evan Wolfson, Marriage Project director of Lambda Legal Defense points out,
its not possible to devise
domestic partnership programs that could
replace this institution [marriage] (New).
Vermonts domestic partnership law went into effect three years after President Clinton, during the heat of the 1996 presidential election campaign, signed the Defense of Marriage Act (DOMA) into law. This law doesnt prevent gay marriages; it simply bars federal recognition of gay marriages once they become legal in any state (New). It also gives states the option of not recognizing lawful marriages licensed by neighboring states, setting up a situation in which couples may be unsure if they remain married when they have traveled from state to state (Why).
DOMA violates the constitutional principles of federalism, non-discrimination, and respect for lawful marriages
the New York Times [calls DOMA] constitution bashing. DOMA violates the US Constitutions Full Faith and Credit Clause because official acts of states and proceedings of states must be recognized by all other states (Why). Many scholars, including Harvard Law Professor Laurence Tribe, believe DOMA is unconstitutional (GLAD 18), and will ultimately be struck down by the US Supreme Court.
Following the Vermont domestic partnership law taking effect, forty states passed additional marriage protection laws (including North Carolina), which define civil marriage as being legal only if the couple consists of one man and one woman. These laws, along with the DOMA will have to be repealed once same-sex marriage becomes legal in this country.
On October 1, 1989, the first legal marriage between two men was performed in Copenhagen, Denmark. The couple, Axel and Eigil Axgil, who married along with 10 other couples, had been together nearly 40 years, 32 of which they lived together under a common last name. Their wedding was an international media event, attended by hoards of reporters, photographers, on-lookers, in addition to family, friends and members of the Danish gay-rights movement, founded by the couple in 1948. They had combined their first names in 1957 to create the family name Axgil when they were in prison for gay rights activism. So many couples also changed their last names in a similar fashion that the government soon outlawed the practice, and it was prohibited until 1989 when the partnership law made such name changes possible again. When asked if they minded marrying in a circus of media, Eigil responded that it was the necessary price you pay for making world history (1st). Eigil Axgil died of a stroke September 22,1995, six years after realizing his lifelong dreamcivil marriage for all citizens of the Netherlands.
The first eleven years same-sex marriage was legal in Denmark, two key rights enjoyed by married heterosexual couples were denied same-sex couples: adoption and church weddings. In 1989, 72% of Danish clergy were opposed to same-sex marriage and refused to perform ceremonies; by 1995, 89% surveyed admitted the law is a good one, and perform up to 100 same-sex unions per year (Bidstrup).
In 2001, both adoption and church weddings were added to same-sex marriage rights. Today, all married couples, opposite sex and same-sex, enjoy true equality under the law. Couples who previously registered under the 1989 partnership law are allowed to covert their unions to ordinary marriage.
A law that takes effect July 1, 2002, will give Swiss citizens who register their unions in a civil register all of the same legal rights and obligations as heterosexual couples. A 1998 Canadian court ruling has awarded gay couples the same pension rights as straight couples. Ottawa, Canada's capital city (Province of Ontario), now offers equal treatment for gays and straights in everything from pension laws to bankruptcy laws (Gay). Hungary has allowed common law gay and lesbian marriage since 1995; couples are granted all of the rights of married couples under the Hungarian government (Lesbian). Portugal (GLAD 25), Germany, Brazil, Belgium, Finland, Iceland, Norway, and Sweden all have passed registered partnership laws and allow couples virtually all of the rights of heterosexual marriage, aside from adoption rights, artificial insemination, and church weddingsall weddings must be civil ceremonies (Gay).
The quest for same-sex marriage rights is recognition of marriages importance and power in our lives and in society (GLAD 5). Marriage is a major building block in our society for strong communities and families; banning same-sex couples and their children from participating weakens those families and the communities they live in (GLAD 19). Denying civil marriage rights on the basis of sexual orientation is arbitrary; it is discrimination based on attributes one cannot change. It is both unfair and unhealthy to allow public policy to be dictated by religions or cultural traditions.
In 1987, when deciding the case of Turner vs. Safley, in which a state tried to restrict the rights of prisoners to marry, the US Supreme Court described marriage as an expression of emotional support and public commitment and a relationship which can receive tangible benefits, including government benefits and property rights (GLAD 3). Same-sex couples want the same things that opposite-sex couples want, but our current laws prevent an estimated 10% of the population from enjoying the stability and public recognition afforded the majority of Americans.
In South Africa, Archbishop Desmond Tutu has called ending discrimination against gays the worlds next moral goal (GLAD 24). At home in the US, civil rights activists like the Reverend Jesse Jackson, US Representative John Lewis (GA), and Coretta Scott King have publicly voiced support for same sex marriage (GLAD 9).
However, the largest lobby in the US for extending marriage rights to all American citizens is the US Bar Association. With gay marriage comes gay divorce. Considering that the influence of the legal community is second only to the gun and tobacco lobbies, I feel confident that the day this change in our Constitution will come is not very far off in the future.
©2002 Randy Cahoon
1st Partnership Page: Pioneers of Gay Marriage. PlanetOut. 21 March 2002. 21 March 2002. http://users.cybercity.dk/~dko12530/ .
Allen, Dan. Gay Marriage Worldwide. The Advocate. 22 January 2002.
13 March 2002. http://www.advocate.com .
Bidstrup, Scott. Gay Marriage: The Arguments & the Motives. Revised 13 October 2000. 1 March 2002 http://www.bidstrup.com/marriage.htm .
DeNoon, Daniel J. and Darryl Gossett. Sexual Orientation NOT Debatable: Psychiatrists Reject Forum on Homosexuality as an illness. Lycos Health with WebMD. 19 May 2000. 16 January 2002. http://webmd.lycos.com/content/article/1728.57704 .
Gay couples to enjoy equal rights in Zurich. Swissinfo. 21March 2002. http://www2.swissinfo.org/sen/Swissinfo.html?siteSect=201&sid=996815 .
Gay Rights. Public Agenda Online. 1 January 2002. 6 April 2002. http://www.publicagenda.org/issues/major_proposals/ .
GLAD, Gay & Lesbian Advocates and Defenders. Civil Marriage for Same-Sex Couples: The Facts© November 2001. pgs. 2-5, 8-9, 18-19, 24-25. 2 April 2002. http://www.glad.org .
Green, Roedy. Gay Marriage Rights. ©2002 Canadian Mind Products. 21 March 2002 http://mindprod.com/marriage.html .
Griswold v. Connecticut. University of MissouriKansas City Law Online. 20 April 2002. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html .
Halsall, Paul. Lesbian and Gay Marriage through History and Culture.
1 June 1996. 21 March 2002 http://www.bway.net/~halsall/lgbh/lgbh-marriage.html .
Hari, Johann. Marriages that REALLY are forever. New Statesman. 10
September 2001. 26 March 2002. Academic Search Elite http://ehostvgw7.epnet.com/ .
Hartill, Lane. A brief history of interracial marriage. 25 July 2001. 20 February 2002. http://www.csmonitor.com/durable/2001/07/25/ps15s1.htm .
Lesbian and Gay Marriage: The Moral, Ethical and Legal Rights. 15 April 2002. http://geocities.datacellar.net/Wellesley/9349/same-sex.html .
Marriage Myths & Responses to the Opposition. Marriage Equality.15 October 2001
http://www.marriageequality.com/facts/myths.htm .
New Congressional Report: 1,049 Reasons to Allow Gay Couples to Marry? 6 March 1997. 2 April 2002. http://www.waf.org/ .
Not Wanted: Gay Parents. ABC/Go! 14 March 2002. 15 March 2002. http://abcnews.go.com/sections/primetime/ABCNESWSSpecials/primetime_020314_gayadoption_feature.html
Peterson, Larry R., PhD. The History of Marriage as an institution. ©1997 Larry R. Peterson, PhD. 20 February 2002 http://www.buddybuddy.com/peters-1.html .
NC Laws Concerning Marriage
CHAPTER 51.Marriage.
ARTICLE 1.
General Provisions.
§ 51-1. Requisites of marriage; solemnization
§ 51-1.1. Certain marriages performed by ministers of
Universal Life Church validated.
§ 51-1.2. Marriages between persons of the same gender not valid
Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina. (1995 (Reg. Sess.,1996), c. 588, s. 1.)
§ 51-2. Capacity to marry
§ 51-3. Want of capacity; void and voidable marriages
§ 51-3.1. Interracial marriages validated.
All interracial marriages that were declared void by statute or a court of competent jurisdiction prior to March 24, 1977, are hereby validated. The parties to such interracial marriages are deemed to be lawfully married, provided that the provisions of this Chapter have been complied with. (1977, c. 107, s. 2.)
§ 51-4. Prohibited degrees of kinship.
§ 5l-5. Marriages between slaves validated.
Persons, both or one of whom were formerly slaves, who have complied with the provisions of section five, Chapter 40, of the acts of the General Assembly, ratified March 10, 1866, shall be deemed to have been lawfully married. (1866, c. 40, s.5; Code, s. 1842; Rev., s. 2085; C.S., s. 2497.)
Article 2.
Marriage Licenses.
§ 51-6. Solemnization without license unlawful.
No minister or officer shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to him a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage is intended to take place or by his lawful deputy. There must be at least two witnesses to the marriage ceremony. (1871-2, c. 193, s. 4; Code, s. 1813; Rev., s. 2086; C.S., s. 2498; 1957, c. 1261; 1959, c. 338; 1967,
c. 957, ss. 6, 9; 1977, c. 592, s. 2.)
§ 51-7. Penalty for solemnizing without license
Every minister or officer who marries any couple without a license being first delivered to him, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and he shall also be guilty of a Class 1 misdemeanor. (R.C., c. 68, ss. 6, 13; 1871-2, c. 193, s. 8; Code, s. 1817; Rev., ss. 2087, 3372; C.S., s. 2499; 1953, c. 638, s. 1; 1967, c. 957, s. 5; 1993, c. 539, s. 415; 1994, Ex. Sess., c. 24, s.
14(c).)
marriage equality
PROTECTIONS accompanying civil marriage include:
MECA EDUCATIONAL GUIDE
Taxation Without Representation
How Unfairly are Gay Men, Lesbian and Transgender People Treated Because They are not Allowed Access to Civil Marriage?
* Our life partner has no automatic right against our estate if we die without a will AND if she or he does win ownership, the estate, known in legalese as "gifts" or "bequests", is subject to taxes. Gifts and requests to married spouses are not taxed.
* If we own a home before we meet our new life partner and later decide to transfer half to our partner, it is a gift, which may be taxable.
* Our compensation package, when the value of fringe benefits is added in, is less than the compensation of a married person doing the same job, working the same hours, and receiving the same nominal pay. We have to pay income taxes on the value of the employer benefit to our partner, which a spouse avoids.
* Our life partner may have to fight to establish his/her right to buy insurance on our life, if the insurance company challenges the partner's insurable interest. The reason why partners might have to buy life insurance on the life of each other is because the estate is taxable and the survivor needs to have a source to pay those taxes without depleting the assets off of which the survivor must continue to live.
* We can be kicked out of our jointly owned home if a creditor of only one of us goes after the property, while the married spouse's interest in the property protects the home for the couple. This is a tax problem to the extent that we cannot make a transfer of the property to our life partner to avoid a possible creditor claim, because the transfer would be subject to a gift tax, while a similar transfer between spouses is not subject to a gift tax.
* We cannot use family limited partnerships to shield our assets the way every married family can. The family limited partnership works because the spouse is able to receive the income and pay taxes on the partnership income without having the income flow through the hands of the risk creator. If an unmarried gay person made a limited partnership with his/her life partner, the creation might result in a gift tax and the accrual of income would be taxable to the risk creator. If the life partner received the distributions, and paid the income tax, since it would be the tax liability of the risk creator, the payment would constitute a gift, which might be taxable.
* The deductible expenses of the one cannot shelter the income of the other.
* When our partner dies, we have to prove our ownership of every item in the household or we can face a tax bill and even total loss of the items to the partner's family. The deductible expenses of the one cannot shelter the income of the other.
* Gay men and lesbians pay federal taxes for military personnel but under the Dont Ask, Dont Tell Policy, are refused enlistment or discharged if the military should find out. Gay people pay into the state tax system for benefits such as child welfare even though in many states they are prevented from having custody of children, becoming a foster parent, or adopting children.
Other Economic Disadvantages Affecting Lesbians and Gay Men
* We cannot claim Social Security benefits through our partner's employment.
* If the owner of the homestead has to move permanently into a nursing home, the non-owning partner may have to leave the domicile they shared for decades to meet Medicaid's claims.
* We often have to pay more for ordinary transactions, such as renting a car or buying umbrella risk insurance.
* We cannot rollover our partner's retirement account into our own but must start drawing it down when a surviving spouse can wait until his or her own retirement age.
* When our partner dies, we receive no death benefit or continuation of the decedent's pension.
* We cannot claim Social Security benefits through our partner's employment (FICA tax law).
About the "Marriage Penalty" Tax
Increasingly seen as an unconscionable attack on marriage and the family, the "marriage penalty" tax is imposed on heterosexual couples that choose to marry. These couples are pushed into income brackets for which the benefits of marriage are reduced.
Although approximately 40% of married couples pay less tax than they would as separate individuals (through bonuses in the tax code), there are certain families hurt by the tax, namely, those where low and moderate-income spouses work. Two-earner families where both partners earn approximately the same amount and low-income families receiving housing benefits, food stamps and tax credits currently suffer from the "marriage penalty" tax.
In 2000, Both President Clinton and the Republican majority proposed legislation that would attempt to address this problem:
* President Clinton's plan would have focused on raising the standard deduction for two-earner families, who suffer most from the marriage penalty, thus providing a tax cut of approximately $300 to $600, depending on the tax bracket.
* The House (and Republican party as a whole) supported giving a big tax cut to all married couples--even those who are benefiting from the existing tax code and not suffering at all from the "marriage penalty."
Marriage Equality thanks Dennis Mack, Esq. of the International Lesbian and Gay Association for his help in compiling this information.
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