Separate Yet Unequal Marriages

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May 26, 2009 by Daniel Stack

Today the California Supreme Court upheld Proposition Eight’s ban on same-sex marriages which had previously been legalized from an earlier Supreme Court decision. Proposition Eight amended the California state constitution to include: “Only marriage between a man and a woman is valid or recognized in California.”

To be frank, this isn’t much of a surprise. A constitution defines the underlying rules of government and supreme courts, whether federal or state, use constitutions as the basis for their decision-making. This doesn’t make the decision praise-worth. But the true damage was done when, via ballot initiative, the voters of California chose to ban same-sex marriages in their constitution. If the US Constitution were to be amended to repeal the First Amendment, then that would be the underlying law of the land. Congress would then be free to restrict religion or speech. (Indeed there is an effort to do so with a flag-burning amendment.) So I submit in this case it is not the court which should be “blamed” but Proposition 8. And I would further submit that an even bigger problem is the fact that it is so easy to amend most state constitutions. Constitutions should be tough to ammend, like the US Constitution. They should not simply be the will of the majority but rather, at the very least, that of a supermajority. Historically the number of occasions in which a majority grants or recognizes the rights of a minority is tragically low. It is unlikely, for example, that segragation would have been ended across the nation if it had been put in the hands of voters’. Sometimes courts need to intervene to assure the rights of a minority.

Now one argument I have heard is no rights are being abridged by banning same-sex marriage. For example, medical power of attorney can be given by legal contract. And wills can guarantee inheritance. Indeed, this was my view several years ago prior to my learning more about the issues involved. And I believe this is the journey that Governor John Elias Baldacci went through when he came out in favor of gay marriage. Beyond the simple social aspects, consider some of the following differences between the rights given by a civil union and those given by marriage (source:

  • Taxes.Couples in a civil union may file a joint state tax return, but they must file federal tax returns as single persons. This may be advantageous to some couples, not so for others. One advantage for married couples is the ability to transfer assets and wealth without incurring tax penalties. Partners in a civil union aren’t permitted to do that, and thus may be liable for estate and gift taxes on such transfers.
  • Health insurance.The state-federal divide is even more complicated in this arena. In the wake of the Massachusetts high court ruling, the group Gay & Lesbian Advocates & Defenders put together a guide to spousal health care benefits. GLAD’s document is Massachusetts-specific but provides insight into how health insurance laws would apply to those in a civil union in other states. In general, GLAD says, it comes down to what’s governed by state law and what’s subject to federal oversight. If a private employer’s health plans are subject to Massachusetts state insurance laws, benefits must be extended to a same-sex spouse. If the health plan is governed by federal law, the employer can choose whether or not to extend such benefits.
  • Social Security survivor benefits. If a spouse or divorced spouse dies, the survivor may have a right to Social Security payments based on the earnings of the married couple, rather than only the survivor’s earnings. Same-sex couples are not eligible for such benefits.

These are not abstract concepts. And no legal paper signed between you and a partner can obtain for you social security benefits. And there have been specific cases when a same-sex partner has been denied visitation rights to a dying loved one.  Consider the case of Lisa Pond and Janice Langbehn from this ABC article:

Her partner of 18 years, Janice Langbehn, said she was not allowed to see Pond for eight hours as she lay dying, and their children were never given the chance to say goodbye.

She said pleas to be at her partner’s deathbed were not granted because the Lacey, Wash., couple were lesbians.

All the rights that married couples take for granted must be fought for individually in civil unions, from death benefits to parental rights.

These seem to be cases of separate yet not equal.


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