Marriage Will be Saved by Marriage Equality, not DOMA

A meteor is threatening to destroy the institution of marriage, but it isn’t marriage equality. And it isn’t the February 22 decision by federal court judge (and Bush appointee!) Jeffrey White that (1) sexual orientation is a suspect or quasi-suspect class deserving of protection from discrimination, and (2) that the Defense of Marriage Act is unconstitutional because it serves no legitimate governmental purpose and demonstrates “a stark departure from tradition and a blatant disregard of the well-accepted concept of federalism in the area of domestic relations.”

Ironically, what may save marriage is a Supreme Court decision finding DOMA and all the state constitutional amendments barring marriage equality for gays and lesbians to be unconstitutional. That’s because it will give marriage a new constituency for the 1,138 rights, benefits, and privileges associated with marriage under federal law (to say nothing of the 400 or so state-level rights for each state, totaling over 20,000 rights for all 50 states and the District of Columbia).

The explanation starts and ends with the right to include a spouse in your health insurance.

The decision finding DOMA unconstitutional concerns Karen Golinski v. United States Office of Personnel Management (read it here). In 2008 Ms. Golinski, an attorney working for the OPM, married her lesbian partner of many years during the period that marriage equality was legal under California law. She then applied to have her wife covered under her health insurance. OPM instructed her insurer not to cover her wife due to DOMA, so she sued.

After Obama announced on February 23, 2011, that he had instructed the Department of Justice to stop defending DOMA because it is unconstitutional, members of Congress organized the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives to make the case in favor of DOMA.

BLAG attempted to defend the four governmental interests that Congress identified as the rationale for DOMA (from p. 26 of the decision):

(1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources.

How compelling was the evidence BLAG presented? One of its three references purporting to prove that same-sex parenting is inferior to opposite-sex parenting was an article from Slate.com, of which Judge White drily notes:

[It] is a three-page, non-scientific article by an author with no professional expertise in child development, published by an online magazine without peer review.

Really — that’s the caliber of authority BLAG asserted as sufficient for forcing gays into the hassles, obstacles, burdens, heartbreak, abandonment, and all-around destruction included at no extra charge in second-class citizenship. I am not making this up.

There’s more.

BLAG also submitted a piece by Prof. Loren Marks, about which Judge White blandly observed:

[His] critique is neither a study nor published in a peer-reviewed journal and its questionable analysis is based on outdated and selectively chosen data.

In summary:

The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

What DOMA does do is block same-sex couples from enjoying the 1,138 rights, benefits, and privileges the General Accountability Office reported to Congress are associated with marriage under federal law in reports submitted in 1997 and 2004. The following are some of the most important rights and benefits barred to lawfully married same-sex couples, who may not do or have the following:

— Include a spouse on their federal health insurance policy — which also means the same-sex spouse cannot continue employer-sponsored health insurance after the death or divorce of an employee;

— Take time off work to care for a sick spouse (as heterosexual spouses can under the Family and Medical Leave Act);

— Receive Social Security benefits on the death of a spouse (or ex-spouse) based on the marriage rather than his or her own earnings;

— Receive veterans’ benefits, including pensions, indemnity compensation for service-related deaths, medical care, nursing home care, the right to burial in veterans’ cemeteries, educational assistance, housing, assistance in borrowing for housing and preferences in hiring for federal employment;

— Transfer property from one spouse to another (or to a former spouse in the event of a divorce) without any recognition of gain or loss for tax purposes;

— Receive a spouse’s  federal retirement annuity after the death of the spouse;

— Receive the death benefit of a public safety officer killed in the line of duty — this means being denied up to $100,000;

— Receive augmented compensation for work-related injuries;

— Receive per diem allowances or subsistence payments in connection with a spouse’s government-ordered relocation;

— Be included in the order of precedence for receiving final paychecks and life insurance benefits when the federal employee or service member died without designating a beneficiary;

— Provide a path to citizenship for an immigrant spouse;

— File jointly for bankruptcy protection;

— Enjoy protection from the due-on-sale clause of a mortgage when transferring residential property from one spouse to another;

— Be entitled to copyright renewal and termination rights as the widow or widower of the creator of a copyrighted work.


State level rights conferred on same-sex spouses with legally recognized marriages, which they lose under DOMA if they move to one of the 38 states barring recognition of same-sex marriage, include:

— The spousal communications privilege (in state court only)
— The spousal testimonial privilege (in state court only)
— The right to ride in an ambulance with a sick or injured spouse
— The rights to stay with a sick or injured spouse in the emergency room, to have hospital visitation, notification and to make medical decisions for a spouse/partner who can no longer do so and who has not created a durable medical power-of-attorney
— The right to plan a spouse’s funeral after the spouse’s death
— The right to inherit from an intestate spouse and numerous other inheritance rights, including protection from being disinherited

In 2009 the New York Times set out to determine the financial costs to gay couples of being denied the right to marry. The reporters created a hypothetical gay couple “with two children and assumed that one partner would stay home for five years to take care of them.” In their best case scenario, the lifetime cost of being gay was $41,196, while in their worst case it was $467,562. But, they wrote, “for wealthy couples with a lot of assets … the [extra] cost of being gay could easily spiral into the millions. Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage.”

So why does saving the institution of marriage begin and end with the right to include a spouse on your health insurance?

Because Obamacare is poised to do for lower- and middle-class marriage what Medicaid has done to marriage for the disabled, the elderly and the poor: means-test health insurance with rules that make marriage unaffordable and incentivize divorce. (One of the saddest duties of estate and tax attorneys is to tell pious, elderly clients married for decades that divorce is their best option so that they can qualify for Medicaid and avoid being wiped out by nursing home expenses.)

The difference is that Medicaid is voluntary while Obamacare is mandated for all. So the meteor poised to wipe out marriage is Obamacare’s requirement that married couples filing their taxes jointly will be means-tested by their combined income. Unmarried couples filing separately will not. Couples will have to decide between marriage and health insurance. Straight couples will get a harsh introduction to the list of rights attending marriage that cannot be obtained by any contract, power-of-attorney, or will.

However, if the Supreme Court finds DOMA and all the state constitutional amendments barring same-sex marriage to be unconstitutional, marriage immediately will gain a new constituency in lesbians and gays willing to fight hard for its well-being and their access to the 21,000-plus rights newly determined to be theirs — yea, even to the point of repealing Obamacare.