The Slate Gist

Same-Sex Marriage

A judge in Hawaii ruled this week that the state’s constitutional prohibition against sex discrimination requires it to give legal sanction to same-sex marriages. Although state officials plan to appeal the decision to the state Supreme Court, the judge’s decision has revived the controversy that prompted Congress to pass (and President Clinton to sign) the Defense of Marriage Act in September. That act defines marriage for the purposes of federal law as the union of a man and a woman (thereby denying federal spousal benefits to same-sex partners) and permits states to deny recognition to same-sex marriages performed in other states.

While it is true that a large part of the debate over same-sex marriage has focused on the moral and religious issues, marriage is also a legal condition with practical consequences. What advantages–and disadvantages–would become available to same-sex unions if they were officially recognized by the government?

The federal tax code, as well as many state tax systems, favors marriages in which one spouse earns most of or all the income, and penalizes those in which income is equally or nearly equally split between the partners. The oft-complained-of “marriage penalty” only exists in the latter case. If both partners have roughly equal incomes–which may be the case more often among same-sex couples than among opposite-sex ones–getting married will raise their taxes. But a working person who is the sole or main support of a same-sex partner could realize a large tax saving if the union were legally sanctioned. This is especially so if they are approaching retirement.

Social Security’s old-age and disability programs both favor married people. For example, when a fully insured worker retires, the spouse receives half of the worker’s benefits. This is not the case with unmarried couples–which fact gives married partners the edge over their unwed counterparts. (However, if each partner had had substantial earnings, no marriage benefit would accrue–the law requires the lower-earning partner to choose between taking his or her own earned benefit or one-half of the partner’s benefit.) If only one partner in a same-sex marriage had substantial earnings, the couple would realize a much higher rate of return on that partner’s Social Security taxes than they would have if unwed or earning comparable incomes.

Social Security survivor benefits–and spousal benefits under other federal programs such as veterans’ pensions–apply only to a legal spouse, not to an unmarried partner.

Though the law does not require that businesses provide their workers with medical benefits, many employers do so. Benefits often cover employees’ families, and some companies now are extending benefits to same-sex partners as well. But benefits for employees and their families are tax-free. When businesses offer benefits to unmarried partners, however, the cost is taxable income. If same-sex partners were legally recognized as spouses, the benefits would no longer be taxed.

Marriage also grants a spouse automatic “medical power of attorney“–the legal authority to make medical decisions for an incapacitated person. Unmarried partners, of the same or opposite sex, must hire a lawyer to obtain this authority. Hospitals also generally bar those who are not members of a patient’s immediate family from intensive care units. The marriage contract confers numerous rights to a surviving spouse upon the death of the other spouse. This includes deciding how to dispose of the deceased’s body.

Marriage also helps the survivor to inherit. In most states, a spouse automatically inherits from a deceased partner. In the case of unmarried couples, on the other hand, the survivor is entitled to nothing unless the deceased specifically wills it to him or her. When unmarried people die intestate–without a will–their assets automatically go to their families. Because married people are considered to be an economic unit, moreover, the federal estate tax exempts all assets inherited by a spouse. Unmarried partners receive no such exemption. And where a surviving spouse may sue for wrongful death, or for his or her own emotional distress, if the death is arguably someone else’s fault (a traffic accident, for instance), an unmarried partner generally has no such right.

Some of the most important legal consequences of marriage involve getting out of it (even though it is true that one spouse generally cannot be required to testify against the other in court as long as they’re still married). Divorce laws divide property and dictate the financial support of spouses who did little work outside the home. These laws vary by state. But in general, when a marriage dissolves, each partner is considered to own everything he/she brought into the marriage, while all assets obtained during the marriage (except by inheritance) are considered joint property. What happens to joint property? Most states have “equitable distribution” laws, under which it is supposed to be divided fairly, though not necessarily in half. Only eight states have “community property” laws requiring that all assets acquired during a marriage be divided equally.

A same-sex spouse probably couldn’t count on any long-term alimony. Since the “no-fault” divorce reforms of the 1970s, courts have rarely made such awards in cases involving the dissolution of marriage. Instead, courts give the financially dependent spouse “maintenance” payments, which provide support while she or he gains a footing in the work force. In practical terms, maintenance usually lasts only five to seven years, and rarely longer than the marriage did.

U.S. immigration law permits spouses of American citizens to become American citizens with only a few exceptions, such as sham marriages undertaken for the purpose of obtaining citizenship. Although there are still some legal hoops to jump through, marriage would enable the same-sex partner of a U.S. citizen to avoid the very lengthy (and frequently unsuccessful) application process for citizenship.

Aprimary argument against same-sex marriage is that marriage is an institution for the raising of children. But laws pertaining to child-rearing are surprisingly marriage-neutral. Parents have the same obligations to support their children regardless of whether they are, or ever were, married to each other. (And marriage benefits go to all married people regardless of whether they have children.) Same-sex marriage would have no direct effect on the rights and obligations of parenthood. It might well, however, facilitate gay couples’ efforts to adopt children.

The marriage contract pours a sea of benefits and obligations into a single “I do.” As a generic set of laws for an extraordinarily diverse group of marriages, marriage law burdens some couples some of the time and benefits most couples most of the time. Symbolism aside, if government extended marriage to same-sex couples, the new spouses would find the pros and cons about the same.