Legal Marriage Primer
Read This If You Don’t Read Another Thing About Legal Marriage
© May 21 2009, Demian
The word “marriage” has two major meanings. One is a civil, legal status — the other is a religious or social status. It is critical to understand that the struggle for equal treatment is in the civil sphere, not with any church or religious philosophy.
Legal marriage triggers, at least, 150-to-350 laws in every U.S. state. Connecticut has 588 laws that are triggered by legal marriage. And on the Federal level, there are more than 1,138 such laws. These civil laws, in order to be just and fair, should apply to all citizens equally.
[See our article: U.S. Federal Laws for the Legally Married]
The civil right of legal marriage is not just a mere matter of semantics, culture, or social grace. It is the right to be considered a full adult, and be treated the same as any other U.S. citizen.
In America, there is no state church, and no religious body has the right to dictate state policy. Civil marriage laws have been the sole domain of individual states until the Federal “DoMA” law in 1996.
[See: “Defense of Marriage Act”.]
State marriage licenses are not religious in any way. They are legal contracts made between the couple and the state, not with any religious body.
Clergy are not required for a license to be completed. The couple does not need to be a member of any church or temple. The marriage license does not require, as some churches do, that the couple be together “till death do you part.”
Marriages, as we know them today, do not look the same as they did several hundred years ago. State involvement in marriages is historically a new phenomenon. Many cultures around the world had marriage rites for same-sex couples, long before organized religions took up marriage ceremonies. In fact, in the very early days of the Catholic and Orthodox Church, male-male marriages were the first to get official church blessing; opposite-sex marriages came later.
[See: Media Resources: Ceremonial Marriage for information on Same-Sex Unions in Premodern Europe by John Boswell.]
Not only are there no religious requirements to get a marriage licenses, you can get one even if you have committed anti-religious crimes, such as being a convicted rapist or murderer. In most states, you only need to be an adult, and part of an opposite-sex couple.
While religions have wildly differing views toward sexual orientation, many religions offer ceremonial blessings to same-sex couples. They do so because they recognize that all couples need social and spiritual support to be productive and survive in a healthy way. And these churches consider all congregants to be members-in-good-standing, regardless of sexual orientation.
[See: Where to get a Religious Blessing: Gay-welcoming denominations in the United States
Most contemporary biologists think that orientation is genetically predetermined, with a possible environmental component. Even if orientation were a choice, it should be constitutionally protected in the same way other choices are protected, such as religion and political affiliation.
Effects of Civil Marriage
To date, full and equal legal marriage for same-sex couples is only available in the countries and U.S. states listed at the end of this article:
No other legal procedure allows same-sex couples the same range of protections, responsibilities, and benefits that come with civil marriage.
A few of the rights triggered by legal marriage which are difficult or impossible to duplicate by other legal documents:
- Automatic Assumption of Spouse’s Pension
- Automatic Inheritance
- Automatic Housing Lease Transfer
- Bereavement Leave (offered by some employers)
- Burial Determination
- Certain Property Rights
- Child Custody
- Crime Victim’s Recovery Benefits
- Domestic Violence Protection (most cities won’t cover same-sex abuse)
- Exemption from Property Tax on Partner’s Death
- Immigration access for the foreign spouse of a U.S. citizen
- Immunity from Testifying Against Spouse
- Insurance Breaks (apartment, car)
- Joint Adoption and Foster Care
- Joint Bankruptcy
- Joint Parenting (insurance coverage, school records)
- Medical Decisions on Behalf of Partner
- Name Change if Desired
- Reduced Rate Memberships
- Sick Leave to Care for Partner (varies by employer)
- Visitation of Partner’s Children
- Visitation of Partner in Hospital or Prison
- Wrongful Death (loss of consort) Benefits
Marriage vs. Domestic Partner Status
The entire struggle for workplace partner benefits derives from the fact that we are not treated the same as other families in the first place. Were there legal marriage for same-sex couples, we would automatically be eligible for benefits.
Domestic partner benefits have come about because the marketplace recognizes the need to support all its workers in a fair manner. These benefits attract and keep better employees. They do not bring social acceptance or recognition for anything further than insurance, or time off to care for an ill partner or a partner’s children.
Domestic partnership (rather than marriage) benefits are a form of apartheid because of the way these benefit plans are administered. In order to qualify, many plans require the employee to sign an affidavit stating that the relationship has existed for a year, that the couple lives together, and that the couple is mutually responsible for each other’s economic welfare. None of these are required of legally married employees. In fact, legally married couples are not required to live together — or even like each other — and can sign nuptial agreements which keep their finances separated.
Domestic partner benefits can be great value in the short run, and demonstrate the dire need same-sex couples have to protect their families. However, after more than 23 years of tracking the social status of same-sex couples, Partners Task Force has concluded that the effort to enact domestic partnership law is not in the best long-term interests of couples. Domestic partnership status is a far cry from equality.
There is no evidence that the movement toward legal marriage would be aided by advocating anything other than full legal marriage. This is true in the same way that there was no good reason to demand separate water fountains as an incremental path toward full integration. Separate social structures for different classes of people are never equal.
How Domestic Partnerships Differ from Legal Marriage
- Are not portable — no recognition outside the city, state or country which offers the status.
- Offer very few benefits.
- Create a second-class status which is legally and socially restrictive.
- Can easily be negated by state’s attorneys general, as has happened in Hawaii and Texas.
- Could become a liability — because most couples do not make wills, powers of attorney, etc., the domestic partner affidavits could be viewed as de facto relationship agreements by courts, and seen as the financial contract, no matter what the couple agreed to verbally.
As a community, there is little to gain by fighting for a second-class status like domestic partnership laws. It is not a stepping-stone to legal marriage because the two are legally and socially totally different entities.
Fighting for the second class status of a domestic partnership takes the same amount of time and energy as fighting for legal marriage, and it encounters nearly the same level of resistance. The attempts to enact a few meager worker’s benefits in various municipalities has resulted in annulments by state officials (Hawaii), and has been struck down by courts (Austin, Tex., Chapel Hill, N.C., Minneapolis, Minn., Pima County, Ariz., and the State of Minnesota).
Further, the radical right extremists do not really care whether it is marriage law or domestic partner status, only that it be denied to same-sex couples. They have said so since the first domestic partnership benefit was created in Berkeley in 1984. They publicly announced that they planned to stop the 1998 Hawaii governor’s domestic partnership bill, which followed winning the court case for legal marriage. (The Hawaii legislature destroyed that ruling by changing their state constitution specifically to deny equal coverage of same-sex couples.)
Marriage by Any Other Name
Some have suggested that making some kind of a parallel structure to marriage — and calling it anything but marriage — would satisfy the need for legal protection of same-sex couples, as well as mollify the radical religious right wing. Unfortunately, it wouldn’t do either.
No parallel structure to marriage law could possibly duplicate the more than 1,138 Federal laws and each state’s 150-250 laws which apply to anyone with a marriage license. To try to do so would be a legal, financial and logistical nightmare. Further, when there is a change in a marriage law, the “parallel marriage” law would likewise need to be changed as well.
Because most states do not recognize domestic partner registrations or Civil Unions, it is likely that the same would happen to any parallel marriage-like structure. And it would not be recognized by the U.S. Federal system because of the “DoMA” law which denies recognition of same-sex couples. It certainly would not be recognized by other countries, just as the “Registered Partnerships” of Northern Europe are not recognized anywhere else.
Every culture has defined marriage differently. Every age has changed the way people are related by law and custom. Marriage in the West used to mean that the husband completely owned the wife and the children. Now, a wife is no longer property and may bring charges against a husband for unwanted abuse.
Another tradition, denial of license to an interracial marriage, was enforced by prison terms in America by 13 states until the U.S. Supreme Court ruling of 1969.
It is now time for the marriage laws to be updated and conform to the real needs of same-sex couples. Many churches have done this already in the spiritual and social arena. It is now time for our states to do the same in the legal sphere.
Do Not Call It “Gay Marriage”
It is more accurate to use the term “same-sex marriage” — or “marriage for same-sex couples” — or just plain “marriage” — rather than “gay marriage” or “same-gender marriage.”|
No one uses the term “straight marriage” partly because, in reality, we do not know the sexual orientation of married couples. The same is true for same-sex couples.
The legal marriage discrimination is against same-sex couples, that is, a discrimination solely based on one’s biological sex (physical attributes), not on orientation or gender (which is a social construct).
Lesbian or gay people can get legal marriage — as long as they marry an opposite-sex partner.
Calling it “gay” marriage feeds the myth that it is a “special” right, not equal treatment.