Gay Marriage

Note: Bumped from December 11, 2005.

Reading an ABC News report, "U.K. to Allow Same-Sex Partnerships," provoked me to go ahead and discuss the facets of this issue.

Holland not only has gay marriage, but also gay divorce. Catholic Spain, Canada and now South Africa also allow civil partnerships.

None of those countries actually calls the civil partnerships "marriage." But all of them offer the same legal benefits, such as tax breaks, inheritance rights and visitation rights at the hospital — the same type of benefits gay rights activists in the United States say same sex couples deserve.

Last year, Massachusetts was the first and only state to adopt an amendment to make gay marriage legal. Other states, like Connecticut and Vermont, recognize civil unions, but many gay couples say that not being allowed to marry makes them second class citizens.

There are traditions, including religious ones like the Christian and Islamic, that strongly discourage homosexuality and have used religious laws to prohibit and punish it. In Western history, however, civil authority came to predominate to the point that marriage is regulated solely by the state, although church officials are still granted the legal (but not exclusive) right to solemnize marriage ceremonies. Other traditions appear to have condoned homosexuality, although more as an additional source of pleasure than as an institution.

American homosexuals might argue that denial of marriage to them is a vestigial establishment of religion prohibited by the Constitution, although one would be hard-pressed to find evidence for this argument in the original intent of the Framers. Moreover, the disappointment of most parents when a child comes out of the closet probably owes less in most cases to religious belief than to a recognition that their genetic material invested in their now professedly homosexual child is less likely to be propagated down through eternity, a recognition that may have subconsciously driven religious positions on the matter.

In 2003 the United States Supreme Court decriminalized homosexual sodomy in Lawrence v. Texas, but Justice O'Connor's concurrence -- grounded on equal protection rather than the substantive due process ground used by the majority -- indicated gay marriage could be a different kettle of fish:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

Even Justice Kennedy's opinion for the Court stated:

The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

The Lawrence decision is of course reversible by a future Court, just as Lawrence reversed the Court's holding seventeen years earlier in Bowers v. Hardwick. Moreover, the push for gay marriage has engendered a powerful pushback via state and federal legislation and even constitutional amendments intended to reign in the judiciary and local governments.

In search of solutions, I am going to take Deep Throat's legendary advice and follow the money here. Although enhanced social acceptability is undoubtedly important to gays, the full status of marriage in the United States carries with it some very substantial financial benefits, the most important of which are tax breaks, pension and health benefits, and inheritance rights.

Inheritance is the easiest to deal with. Protections for a spouse generally include the right to inherit, in the absence of a will, the decedent's entire estate or an equal share with any children of the decedent, and also the right to dissent against a will that attempts to disinherit the spouse below a certain percentage of the estate. Gays can be expected to be no less aware than straights regarding these provisions of law; and the problems presented to other prospective heirs would be no different than usual.

The tax breaks and pension and health benefits marriage brings, however, were created in a social environment significantly different than today's, an environment when marriage was more universal and lifelong, and reflect a tyranny of the majority perpetrated on what was then a smaller minority.

A married couple, for federal income tax purposes, gets to pretend that the income generated by the earning spouse was half-generated by the stay-at-home spouse, thereby lowering the tax bracket and the total income tax owed for the couple. The same mechanism works to lower taxes for spouses with unequal incomes. This results in a tax subsidy for marriage and makes it cheaper to keep a spouse at home but also raises the effective income tax for singles, widows, and divorcees. In 21st century America, greater delay before marriage, more frequent divorce, and more widowhood through higher longevity makes such a system more and more unfair for the unmarried.

Click this link, Survivors' Benefits under Social Security, to see the extent that this program incorporates the same philosophy favoring having a spouse, and children as well, in essence granting a free life insurance annuity to a spouse (even some divorced spouses!) and any children -- with the start, amount, and duration of benefits depending upon their ages. Extending benefits this way increases the System's payouts without collecting additional premiums from the worker for covering others. A single person pays the same Social Security tax but receives no such benefit to his or her estate.

Private health and pension benefits began with this same marriage-subsidizing (and child-subsidizing) philosophy; but recent years have seen employers -- worried about the continued affordability of providing these benefits -- phasing in new and additional premiums for spousal and child coverage or reducing or eliminating these benefits altogether. Private business has to worry more about affordability than the federal government; but the need to revise public health and pension benefits occasionally gets attention in the United States Congress, which so far has done little but raise the retirement age slightly.

Rather than just admitting gay spouses into the unfair subsidy schemes described above, creating a sui generis model for same-sex civil partnerships could cause a rethinking and elimination or reduction of some of those subsidies. Other Americans living "alternative lifestyles" -- such as being single or divorced -- may find some common cause with gay people in that process.

UPDATE: National Review Online just republished a piece I had not read but which makes similar points.