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1,500 Reasons Why We Need Marriage Equality
By Karen M. Doering
Staff Attorney, National Center for Lesbian Rights
Over the past several months, I have been traveling around Florida talking about marriage and
made an inadvertent discovery. “ Marriage” means different things to different people. When I
ask people what marriage is, I typically get a myriad of responses: partnership, love,
commitment, contract, legal union, religious rite or ceremony… and the list goes on. Yes,
marriage can be all of those things. But in the eyes of the government, civil marriage is
something very specific -- and quite distinct from religious marriage.
What is Marriage?
To fully understand what marriage is, we must distinguish between civil marriage and religious
marriage. Religious marriage is considered by many to be a sacred rite. Religious marriage
rituals vary depending on the faith of the participants, but one thing is clear. Regardless of
whether the government grants same- sex couples equal access to civil marriage, religious faiths
will not be required to perform the religious rite of marriage for same- sex couples. Religious
institutions will remain free to determine, based on the dictates of their faith, who may and may
not undergo the religious sacrament of marriage. No religious institution will ever be forced to
perform a wedding ceremony for a same- sex couple.
Civil marriage, on the other hand, is a package of approximately 1,500 reciprocal rights,
privileges and obligations granted or imposed by state and federal government. The federal
government bestows at least 1,049 of these reciprocal rights, privileges and obligations, while
most states provide approximately 500 ( the exact number of rights and obligations vary a bit
from state to state).
Federal benefits include such things as protection under the Family Medical Leave Act, family
and death benefits through social security and pension plans ( most of which provide benefits
only to legal spouses), immigration laws that enable foreign spouses to immigrate, worker’s
compensation surviving spouse protections, numerous tax benefits such as the ability to roll over
a spouse’s 401( k) plan upon death and the unlimited ability to make gifts and transfer property to
each other, and marriage portability – the knowledge that a marriage performed in one state will
be recognized by other states.
State benefits include the ability to have access to a spouse’s hospital room, to make medical
decisions on his or her behalf, a presumption that the spouse is the legal parent of children born
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during the marriage, inheritance rights, application of homestead and community property laws,
the ability to make burial decisions for a spouse, and the right to sue for wrongful death. They
also include access to family law courts, whose equitable distribution, child support and
visitation provisions enable couples to terminate their relationships in a more equitable and
Why Aren’t Civil Unions or Domestic Partnerships Enough?
Contrary to popular myth, “ marriage” and “ civil unions” are not the same; changing the term
drastically changes the meaning as well. As mentioned above, marriage is approximately 1,500
reciprocal rights, privileges and obligations, 1,000 from the feds and about 500 from the state. A
civil union, on the other hand, is a term coined by the Vermont legislature to avoid granting the
“ m” word to gay and lesbian couples. Because federal law does not recognize civil unions, a
civil union provides only the 500 state conferred rights, privileges and obligations associated
with marriage with none of the 1,000+ federal benefits.
But that is not the only difference. In addition to being denied federal benefits, rights and
responsibilities, civil unions lack portability – so couples do not have the security of relationship
recognition when traveling to other states. So although civil unions may provide a couple some
protections at home, when they go on vacation, travel on business or otherwise leave the state,
the couple will likely once again be relegated to the status of legal strangers.
Domestic partnership laws provide even fewer protections than civil unions and can vary
dramatically depending on the jurisdiction that enacts the law. In some jurisdictions, domestic
partner registries do not confer any rights or responsibilities at all and are simply a registration.
In other jurisdictions, domestic partners are given a few protections, such as the right to hospital
visitation. ( The most generous local domestic partnership laws only provide about 10- 15 rights).
Currently, only three states, Hawaii, New Jersey and California, provide more comprehensive
rights and responsibilities under their domestic partnership registration systems. At the local
level, most domestic partnership laws provide benefits for public employees and little or nothing
So, to return to the initial question, why not just settle for civil unions or domestic partnerships?
1,500 ( M) vs. 500 ( CU) vs. 10- 15 ( DP). But what’s in a name, right? As the Supreme Judicial
Court of Massachusetts recently pointed out, “ The history of our nation has demonstrated that
separate is seldom, if ever, equal.”
Denial of Marriage Acts and A Proposed Constitutional Amendment
In 1996, anti- marriage activists succeeded in passing a federal law ( DOMA) which created a
federal definition of marriage as the “ union between one man and one woman” and permitted
states to legally discriminate against same- sex marriages performed in other states. In response,
38 states passed “ mini- DOMAs,” state statutes or amendments to state constitutions which
express that state’s intent to refuse to grant or recognize same- sex marriages performed in any
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Despite this legislative attempt to deny marriage equality to same- sex couples, many legal
scholars on both sides of the marriage debate believe DOMA laws may ultimately be ruled
unconstitutional as a violation of the Equal Protection, Due Process and/ or Full Faith and Credit
Clause of the U. S. Constitution. As a result, anti- marriage activists have been pushing a federal
constitutional amendment to explicitly write discrimination against same- sex couples into the
U. S. Constitution.
President Bush and some conservative legislators have recently rallied around a proposed
amendment sponsored by Congresswoman Marilyn Musgrave. 1 The Musgrave amendment
states that, " Marriage in the United States shall consist only of the union of a man and a woman.
Neither this Constitution or the constitution of any State, nor state or federal law, shall be
construed to require that marital status or the legal incidents thereof be conferred upon unmarried
couples or groups."
This proposed amendment would do far more than simply deny same- sex couples marriage
equality. According to Evan Wolfson, a leading legal expert on marriage and executive director
of Freedom to Marry, an organization which supports marriage rights for same sex couples, the
White House and " the Christian right" are " being deliberately deceptive." According to Wolfson,
the " vague and sweeping language" of the proposed amendment's second sentence " is intended to
deny any other measure of protection, including civil unions and domestic partnerships."
If the Musgrave amendment is passed, the issue before us will no longer be whether same- sex
couples should receive 1,500 or 500 or 10- 15 rights. If passed, the amendment could mean that
same sex couples would be denied ALL of the federal AND state rights, privileges and
obligations of marriage. Families headed by same- sex couples would be officially denied equal
treatment and constitutionally branded as second class citizens.
Religious and moral objections to marriage equality are not new. They were used when women
first fought for marriage equality – to be something other than their husbands’ property. They
were used to justify laws prohibiting inter- racial marriages. As the Massachusetts Supreme
Judicial Court pointed out in the Goodridge case, “ Alarms about the imminent erosion of the
1 Ironically, many of America’s leading conservatives are speaking out AGAINST the proposed
Musgrave amendment. Former Senator Alan Simpson, R- Wyo. said in the July 2003 issue of
Newsweek, “ I don’t think the Federal Marriage Act is appropriate. I think that minimizes the
Former Congressman Bob Barr, R- Ga. who drafted DOMA said in the Washington Post, August
21, 2003, “ A Constitutional amendment is both unnecessary and needlessly intrusive and
Conservative Columnist George Will stated in his November 30, 2003 syndicated column that,
“ Amending the Constitution to define marriage as between a man and a woman would be
unwise… Constitutionalizing social policy is generally a misuse of fundamental law.”
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‘ natural’ order of marriage were sounded as each of these changes occurred, and they are being
sounded again at the prospect of same- sex marriage…. Marriage has survived all of these
transformations, and [ it will undoubtedly] continue to be a vibrant and revered institution.”
There is no rational reason to continue to deny same- sex couples equal access to civil marriage
and the 1,500 reciprocal rights privileges and obligations that it affords.
For More Information, Contact:
National Center for Lesbian Rights
www. nclrights. org
( 415) 392- 6257
info@ nclrights. org.
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