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.