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    April 06, 2008

    Accessing those 1,200 federal benefits

    Posted by: Andoni

    Last week on Chris Mathews’ Hardball College Tour at West Chester College, Barack Obama was asked by a gay student if he supported civil marriage for same-sex couples. Obama answered that he did not support gay marriage but rather “strong civil unions,” where all 1,200 federal benefits of marriage are bestowed on gay couples in civil unions:

    Similarly, in her interview with the Philadelphia Gay News, Hillary Clinton said she would like to “extend the same access to federal benefits across the board” to couples in civil unions or domestic partnerships. She wasn’t as definitive as Obama and she didn’t reference the 1,200 benefits, but she did lean in the direction of wanting federal benefits for gay couples.

    My first thought as a guy person in a same-sex binational relationship was whether whoever was compiling this list of 1,200 benefits had included immigration rights on it. And then I wondered who is keeping this list anyway?

    A quick email to Evan Wolfson, executive director of Freedom to Marry, got me a list of those 1,200 benefits, compiled by the General Accounting Office. To my relief, immigration is listed (Category 6, page 7). It also got me an interpretation of these benefits from the Freedom to Marry website.

    So with two presidential candidates who want to extend federal benefits to legally partnered same-sex couples, the question is how best to do it? Repeal the Defense of Marriage Act? That will only benefit the people in Massachusetts, where same sex marriage is legal, but not those in Vermont, Connecticut, New Jersey, New Hampshire, California, Washington, Oregon or the District of Columbia -- all of which have some form of civil union or domestic partnership.

    Can federal benefits be extended to same sex couples in states that have partnership laws by simply passing a federal law mandating it? What about DOMA?

    As a non-attorney, I would argue that repealing DOMA, passed way back in 1996, is unnecessary. A new federal law recognizing gay partnerships for federal benefits would conflict with DOMA but be more recent -- the more recent federal law would govern. Still, for married gay couples in Massachusetts, DOMA would have to be repealed.

    Whether I'm right or not, it's passing strange that with two presidential candidates publicly advocating federal recognition of gay couples, we have not heard anything from our national organizations about how best to get the ball rolling.

    HRC, NGLTF, Barney Frank, Tammy Baldwin, Lambda Legal? I’m calling you out here.

    This is a big thing Obama and Clinton are proposing; a huge deal. I'm dismayed that no groundwork is being laid by our national leadership.

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    Comments

    1. Geena The Transgirl on Apr 6, 2008 4:19:44 PM:

      I wish we could do away with these insane tax brackets - Single, Married Filing Jointly or Qualifying Widow(er), Married Filing Seperately, Head of Household.

      A same sex couple pays less tax filing as two single people than Married Filing Seperately. But then if we allowed same-sex unions and a partner dies then you pay less tax as a qualifing widower than a single person. It gets really crazy if you are a gay couple with adopted children, you pay less tax filing as head of household than as Married Filing Jointly.

      The good news is the American people hate these tax brackets as much as we do.

    1. Strict Scrutiny on Apr 7, 2008 12:09:12 AM:

      Obama answered that he did not support gay marriage but rather “strong civil unions,” where all 1,200 federal benefits of marriage are bestowed on gay couples in civil unions.

      I am still waiting for Mr. Obama to explain how his position on gay marriage is anything other than "separate but equal."

      ...the question is how best to do it?

      If the federal govt. chose to recognize same-sex marriage, I think the fix would be straight forward for residents of MA and other states which have strong civil unions and other forms of domestic partnership benefits -- repeal DOMA and replace it with a law stating that if you have a same-sex marriage, domestic partnership, or civil union, the federal govt. will recognize you as being married for federal govt. purposes. It would be more difficult to extend federal benefits to same-sex in states like KY where there is no access to a marital type institutions or other states which have "civil-union lite" types of arrangements, which fall far short of what same-sex couples have in, let's say, California.

      This is yet another reason we need marriage for gay folks instead of all these pretty non-marriage substitute arrangements. There is no doubt what marriage means in all 50 states. But when you have umpteen different types of marital substitutes for gay folks, it invites onerous questions from the federal govt. regarding who is or should be regarded as married and who isn't or should not be so regarded. For example, in CA we have domestic partnerships which really are the functional equivalent of marriages. But in HI, you have "reciprocal beneficiaries," whatever the hell that is. So, would gay California couples and gay Hawaiian couples get the same level of federal benefits, even though the Hawaiian couple might have fewer state-level benefits than the California couple? Does this matter? This is just one more reason why it's easier to have plain ol' marriage for everyone, rather than two separate institutions for gay and straight folks.

      I would argue that repealing DOMA, passed way back in 1996, is unnecessary. A new federal law recognizing gay partnerships for federal benefits would conflict with DOMA but be more recent -- the more recent federal law would govern.

      Yeah, but then that gives the anti-marriage crowd license to litigate over conflicts of laws and whatever else. Better just to repeal DOMA and leave it on the trash heap of failed, discriminatory legislation.


    1. Andoni on Apr 7, 2008 7:54:41 AM:

      Marriage is the ideal...and of course I would like to see us go right to marriage.

      However, in reality, change is hard to accomplish. The blacks could not go directly from freedom to full equality overnight. They had to endure years of separate but equal. (Yes, I agree with you that this is separate but equal). Is our case stronger than the blacks' case? Are people more sympathetic to us than they were of the blacks to allow us to skip a step? In reality, I don't think so.

      It's like my clan who came from Greece two generations ago. They wanted to come all together all at once -i.e. they wanted the whole thing all at once, but it couldn't happen that way. So they came one at a time in small steps, until everyone got to the US. If they had insisted on waiting until they all could come all at once, they'd still be waiting there. (ENDA analogy, as well.)

      What we need now is 10 to 20 states that recognize our relationships in one way or the other....and at the federal level too for tax, SS benefits, immigration, etc.... in order to demonstrate to the rest of the country that the world wouldn't fall apart because of this.

      Once we get this critical mass of couples who will then move around from state to state causing all kinds of problems (opps.... you crossed a state line, now you don't have health insurance, your child is illegal, you can't file jointly anymore, your spouse's SS payment stops, that joint property...it's taxable now, etc). It will unveil a myriad of ridiculous problems that the American public itself will conclude are ridiculous. The American public will conclude that the only answer for us is marriage and the DOMA is wrong. But we need thousands of couples moving around demonstrating and publicizing these problems.

      But we can't get there in one big leap. It has to start with a moderate sized step..... and I think Obama's suggestions is as good a step as I've heard.

      Again, if had a magic lamp, I would say, give us marriage tomorrow, but that ain't gonna happen.

    1. Scott on Apr 7, 2008 9:50:25 AM:

      Adoni, I'm not buying the excuse that it takes time for civil rights accomplishments. Literally overnight half the country banned marriage for gay couples.

      The reason why gay people have always been held back is because of straight people saying you can't do it.

    1. Tim C on Apr 7, 2008 1:23:27 PM:

      I was watching "Hardball" when Obama was asked that question and I listened to his answer, all the while thinking about all the legislation that would be required at the federal level to open up all those 1200 federal benefits (which Obama referred to several times) to various marriage-like scenarios, when the simple, efficient thing to do is to simply allow same-gender marriage at the federal level. Then a spouse is a spouse, and you don't have to concern yourself with various definitions of domestic partner, legally-responsible co-habitant, etc., etc. I believe we could probably achieve same-gender marriage before they figure out what needs to be changed to allow all the various permutations of marriage-like statuses access to federal benefits.

    1. Andoni on Apr 7, 2008 1:46:19 PM:

      Hey, guys, I'm not a U.S. Senator or a Congressman, and have never spent one day in law school, but I've observed enough changes in law to know that what they do is simply amend. They say something like, "Heretofore, in all US codes the word marriage is hereby amended to read 'marriage or civil union.' In all US codes the word 'married' is amended to read 'married or civil unioned.'"

      It's pretty simple.

    1. Tim on Apr 7, 2008 5:33:30 PM:

      No offense Andoni but your grasp of law is rather weak in this respect. The "1200 benefits" are hundreds of different laws laced throughout the last 200 years and a law is not "superseded" by a more recent law. Dismantling DOMA. which is inherently unconstitutional because it seeks to undo the Federal mandate, which states that Federal law supersedes any state law, would be the first step in throwing the in marriage rights. Than a law would have to be passed that states that civil unions are the equal to marriages, than the definition of civil unions would have to be determined. I would like to believe Obama but to tell the truth what he is proposing is as unlikely as the constitutional amendment Bush sponsored. Even with a democratic congress EDNA barely passed and the votes for this sort of social engineering would not be easy to get at least in this generation of law makers. Bette to just hope for a repeal of DOMA and DADT than anything more.

    1. SteveW on Apr 8, 2008 1:34:00 PM:

      The GAO report linked in the main article is a 2004 update to an earlier 1997 report. For those of you who collect these links, here is the link to the full 1997 report (75 pages): http://www.gao.gov/archive/1997/og97016.pdf

      The 1997 report lists 1,049 federal laws affected by marital status. The 2004 update bought that total to 1,138. That number doesn't include the huge number of state laws that depend on marital status.

      Not all of the federal laws are benefits of marriage. Some of the laws impose burdens based on duties that society expects spouses to perform for each other, which brings up another good link to save. A Congressional Budget Office report in 2004 concluded that recognizing same sex marriages nationwide would have virtually no effect on the federal budget. As a matter of fact, if the federal government recognized same sex marriages, it would decrease the budget deficit by slightly less than $1 billion per year for the next ten years. You can view that report here: http://cbo.gov/doc.cfm?index=5559

      Good links to have handy.

    1. Terrance on Apr 10, 2008 3:41:41 PM:

      But how do we get there? Great, Obama and Hillary support equal-rights-but-not-marriage. But nobody's proposed the kind of legislation Chris is talking about here. My guess is that we're a long way from passing that. But if politicians are going to pay lip service to equality in order to get our support, we ought to ask them to tell us what they're going to do to -- if not get us there -- move us in that direction.

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