Tuesday, September 4, 2012

Domestic Partner Benefits in Peril

When I finished Not Just Roommates: Cohabitation after the Sexual Revolution (University of Chicago Press, 2012), I concluded that the gay civil rights movement was extraordinarily good for cohabitors, straight and gay. Not many of the people who are living together outside of marriage use this word to describe themselves, but, according to the U.S. census, there are in fact 16 million cohabitors in the U.S.  Since the 1980s cohabitors have been gaining legal rights and benefits at work.  In 1982 Jeff Weinstein, a union organizer at the Village Voice, proposed expanded health care coverage for nonmarried employees.  He hoped that domestic partner benefits would close the gap between the married and the nonmarried at the Voice; he was not thinking about same-sex marriage at the time (although he’s now married).  The AIDS epidemic and the lesbian baby boom added luster to legal marriage for gay people; it meant celebration, first-class citizenship, legal protection, security. In the late 1980s gay legal advocates agreed on a two-pronged approach:  same-sex marriage along with expanded rights for couples who chose not to marriage. They believed that it was possible to combine two quite separate ideas, recognition of diversity of family forms and establishing the constitutional right of same-sex couples to legal marriage. Employers such as Lotus software company and Montefiore hospital in the Bronx cut off one of the two prongs. Same-sex employees, they claimed, deserved full benefits because they were not allowed to marry; other workers needed to marry to get theirs. The fight ricocheted into state legislatures.  Some states and employers began to offer domestic partnership registration to the committed nonmarried, sometimes as a consolation prize to gay couples who were being denied the legal right to marry.  

            In 2011 New York became the sixth state in the U.S. to legalize same-sex marriage. While same-sex couples were breaking out the champagne in the West Village, Kathe McBride, a schoolteacher in Croton, New York, was reckoning with the loss of health care coverage for her partner of 30 years. The upscale school district in Croton, New York eliminated domestic partner health coverage the same day sex marriage became legal; the school board had decided that if gay couples could marry, a special benefit for the nonmarried was no longer needed. Most cities have not been so ungenerous. A Bureau of Labor Statistics study in 2011 published the first federal survey of the availability of health care benefits for the two groups.  Same-sex partners are more likely to enjoy coverage than opposite sex partners at a government workplace or a private sector job. But the gap is not that much, about four or five percent.

            New federal legislation, however, threatens to widen the gap. The backlash against same-sex marriage inserted explicit discrimination against gay couples in federal law. The Defense of Marriage Act, passed in 1996, specified that no US state was required to recognize a same-sex marriage authorized by law in another state. Section 3 of the law stated that any federal marital benefit or regulation applied solely to opposite-sex couple. Undoing DOMA has strengthened the requirement that one must marry to get full benefits. President Obama issued a memorandum in 2010 making full employee benefits available to same-sex partners; opposite sex partners were not covered. Revised Medicaid and Medicare provisions have done the same thing. Meanwhile, Congressional supporters of gay rights were introducing federal legislation to remove the discriminatory features of DOMA. After several previous failed attempts, the Domestic Partnership Benefits and Obligations Act passed by voice vote in a Senate committee in May of this year; it will guarantee equal benefits for same-sex partners as those available for legally marriage opposite-sex federal workers. Memo from the feds to the unweds: if you want dental coverage or life insurance for your partner, get married.          


David Bernstein said...

Is there some particular reason (preferably somehow related to legal history) that people who choose not to make a binding legal commitment to each other should get the same rights as privileges as those who do? I'm certainly open to the argument, but you seem to assume that your readers will think this is obviously true, and it's not. The counter-argument is easy: society has an interest in encouraging marriages, because marriages are less likely to break up than cohabitation, and family stability is good for society. W/r/t to health benefits, there is also a significant element of fraud prevention involved--anyone can claim to have cohabitator, but marriage is rather harder to fake.

Elizabeth Pleck said...

The argument in favor of promotion of marriage or special privileges for marriage is indeed that (legal) marriage is the foundation of society, that marriage promotes stability,that it is good for children,that it is based on religious beliefs in the sanctity of marriage.
As one might expect, the arguments on behalf of rights for cohabitors have evolved and closely track the evolution of liberalism, privacy rights, and the use of the 14th amendment to argue for rights.
1. The main argument of Marvin v. Marvin(1976) was a version of liberalism, that law had to evolve to keep up with new patterns of behavior and that the law could not be used to police morality because moral standards were diverse and changing.
2. The main argument of domestic partnership legislation is a version of the"new" common law, that relationships should be judged on the basis of function, not form, and that many cohabiting relationships, if analyzed based on function, would fulfill the same public and private functions as legal marriage.
3. Some state courts have ruled that housing discrimination against cohabitors constitutes "marital status discrimination," prohibited under state law.
4. Lawrence v. Texas (2003) has been used to rule that criminal penalties against cohabitation are unconstitutional. Lawrence is usually seen as asserting a right to freedom of association and has been applied to cohabitation as well as homosexual relations conducted in private.
5. Just as the argument for same-sex marriage, as in Perry v. Schwarzegger, is a 14th amendment argument, so, too, the argument for rights for cohabitors is that to treat them differently is a deprivation of due process and equal protection of the law.
6. In most European and Commonwealth countries, cohabitants have greater legal rights and access to greater entitlements than in the U.S.
Because of concern about fraud, employers ask domestic partners to file an affidavit or proof of domestic registration. Marriage is by no means a fraud-free institution; in fact, "sham marriage" refers to the practice of entering into legal marriage for fraudulent purposes. See Ariela Dubler, "Immoral Purposes: Marriage and the Genesis of Illicit Sex, 115 Yale Law Journal 75 (2006).

David Bernstein said...

Thanks. I think we need to distinguish among (1) laws that penalize people for cohabitating; (2) laws that deny people benefits for cohabitating that they'd get if they were married (e.g., public employee health benefits); (3) and private actions that discriminate against cohabitating couples (refusing to rent to them, denying private company insurance benefits, refusing to allow your cohabitating children to sleep together when visiting your house).

The case for prohibiting (1) seems strong on the basis of the right to privacy. (2) less so. (3) not at all.

Thanks again for your response, I do think it makes your case stronger if you don't simply assume that your readers are offended by (2) and (3).