Friday, March 29, 2013

Skim Milk Marriage

This week, the Supreme Court heard two cases regarding same-sex marriage.  One was on the issue of California’s Proposition 8.  More importantly, the court heard a case challenging the Defense of Marriage Act.

As Proposition 8 deals only with California and I am a citizen of Ohio, I will refrain from discussing it except to write that I hope the Court will decide that the plaintiffs in the case do not have standing – which will result in the law being nullified.

Now, let’s talk about the 1996 Defense of Marriage Act (DOMA).  It was a terrible law, and the rationalizations former President Clinton has tried to make in signing it (namely, that doing so prevented a Constitutional Amendment from being passed) simply do not convince.  They remind me of the rationalizations people have tried to make defending Franklin Roosevelt’s Executive Order 9066 (which sent Japanese-Americans to Internment Camps during World War II) to the effect that they were safer in camps than on the streets.  But FDR’s action was a tremendous black mark on his record, no matter what the revisionists try to say.  The same is true of Bill Clinton.

I am not a Constitutional lawyer, but it seems to me that Section 2 of DOMA is a violation of the “full faith and credit” clause of the U. S. Constitution.  But the bulk of Wednesday’s discussion dealt with Section 3 of DOMA  - which deals with the Federal Recognition of Marriage.  Justice Ruth Bader Ginsburg made a comment, which quickly became an Internet meme – that goes to the heart of why DOMA must be struck down:

“…the problem is if we are totally for the states' decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -- if that set of attributes, one might well ask, what kind of marriage is this?... I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's…1,100 statutes, and it affects every area of life…You're saying, no, state said two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

There are some 1,138 benefits the Federal Government grants in heterosexual marriages that are totally left out of same-sex marriages, which have no Federal recognition under DOMA.  Justice Ginsburg’s comments go to the historical ruling that “separate but equal is unequal.”

The difference between the experience of opposite-sex marriages and same-sex marriages is best encapsulated by the worst case scenario: the unexpected death of a spouse.

Let’s examine two experiences of two pairs of spouses:

Jane Doe is awakened one night by a phone call from the police department.  There has been a traffic accident involving her husband, John – his vehicle was stuck by a drunk driver.  She’s asked to go to the hospital, and finds her husband in the ICU – he is clinically dead, but his organs are kept going so Jane can make the decision on organ donation.  She graciously opts to allow John’s organs to be donated. 

The next several days are a blur, as she buries her husband and begins her life transition.  She and John, being young, had not really prepared for the death of a spouse.  But due to federal marriage laws Jane has automatic inheritance rights for all of John’s property – and as a spouse she will pay no federal inheritance tax.  When it comes time to retire, Jane will receive a Social Security survivor’s benefit.  Jane receives back pay from John’s employer.  A month later, Jane receives a check from the drunk driver’s auto insurance company – but she has already decided to sue the drunk driver, who survived the crash – because she has that right under Federal marriage statutes.

Jack is awakened by a phone call from the police department one night.  There has been a traffic accident involving his husband, Jim – his vehicle was stuck by a drunk driver.  Jack goes to the hospital, remembering to bring some of the many documents that Jim, a lawyer, made sure they had in order just in case of an emergency.  Jim is in the ICU – clinically dead.  His organs have been kept going in case they can be donated.  Jack shows the doctor Jim’s Power of Attorney, giving Jack full authority over all medical matters.  But the doctor isn’t sure the document is valid, so the hospital’s lawyer has to be consulted.  The lawyer decides the POA gives Jack has the right to switch off life support, but announces that the hospital will not accept Jim’s organs since he was a gay man and “there could be risk of AIDS transmission” even though Jack and Jim had repeatedly tested negative for HIV.

Jack buries his husband, bringing the many documents that Jim had prepared to smooth the way.  Jack and Jim had prepared Wills: but that doesn’t present Jim’s Fundamentalist relatives from crawling out of the woodwork to challenge Jim’s Will on the basis that the same-sex marriage they got out of state is not recognized in their home state.  The probate judge rules that the purpose of a Will is to determine the wishes of the deceased, not whether a marriage is officially recognized.  Thus, Jack is able to inherit the property Jim specifically bequeathed to him – that includes the house they jointly owned.  Jack is shocked by the taxes he must pay on Jim’s half of the house – so much he may have to sell the house at a loss in the bad real estate market and move into a smaller place.  As if that weren’t enough, the drunk driver’s insurance company denied the claim for liability in Jim’s death – and paid out only the book value for Jim’s totaled vehicle.  To make matters worse, Jack has no standing to sue the drunk driver in civil court, as his marriage isn’t “real” as far as the law is concerned.    

The situation above is neither far-fetched nor unusual – it is the kind of conundrum faced by same-sex couples in over 40 states.  Even in those states that recognize marriage equality, same-sex couples are grievously disadvantaged.    

The plain truth is that not all marriages are equal – but that has nothing to do with the court cases at hand.  What quantifies a marriage is not the gender of the spouses, but the love and commitment through riches and poverty, sickness and health, until parted by death.  Based on that, my marriage to another man is not merely equal, but superior to a good many heterosexual marriages I’ve seen – including those of some family members who remain hypocritically opposed to same sex marriage.

But like it or not, same-sex marriage is coming.  It may not be this year, or next – but by the end of this decade, I am confident that marriage equality will be the law of the land.  

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