Thoughts on Gay Marriage

President Obama’s recent announcement of his support for gay marriage sparked a firestorm of debate across the country. For Mormon Democrats such as myself, it has put us at odds with Obama on an important social issue.

In Support of Traditional Marriage

As a Latter-Day Saint, I believe in traditional marriage. I believe, as the Proclamation on the Family states, that “marriage between man and woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children.” I do not support the right to gay marriage or attempts to redefine traditional marriage for society at large. Ultimately, I believe that the only form of marriage recognized beyond the grave is the one that is performed in sacred LDS temples. All other marriages end at death: “ ’till death do us part.” In that sense, the religious debate over gay marriage is somewhat moot for Latter-Day Saints. While social conservatives often see the push for gay marriage as a threat to traditional families, I have never felt that my own traditional marriage and family were threatened by the prospect of gay marriage. As an American who cherishes individual liberty, I do not concern myself with the lifestyle arrangements of others.

Biology’s Role in Homosexuality

I also don’t believe that granting additional rights to gays will make more people gay, as I’ve heard some gay rights opponents assert. Science has made it clear that biology has a prominent role in causing homosexuality. Among the significant body of scientific evidence showing a biological link to homosexuality are the studies of a prominent Brigham Young University (BYU) micro-biology professor, Dr. William Bradshaw, who has published writings and given lectures which included data obtained from clinical studies regarding brain anatomy, birth order and genetics. A recording of Dr. Bradshaw’s September 2010 lecture at BYU, entitled “the Evidence for a Biological Origin for Homosexuality” can be found here. In a recent statement, the Church affirmed a universal guideline: “The bedrock moral issue for The Church of Jesus Christ of Latter-day Saints is how we treat each other as children of God.” Gay bashing, ranging from verbal denigration to violent assault, are horrific offenses that no Christian should commit.

Standing Against Discrimination

I stand firmly in favor of many gay rights, including prohibitions of discrimination in housing and employment. The Church itself has in fact supported such statutes. In November 2009, the Church announced its support for proposed ordinances in Salt Lake City that were designed to protect gay and transgender residents from discrimination, and as a result, the Salt Lake City Council unanimously approved the measures. The Church spokesman, Michael Otterson, who declared that the Church viewed the ordinances as “fair and reasonable,” noted that the Church’s support was consistent with its teachings because it “believes in human dignity, in treating people with respect when we disagree.”

I also strongly support President Obama’s repeal of the Don’t Ask Don’t Tell (DADT) policy, allowing openly gay people to serve in the military. Studies have shown that other militaries, including those in the UK, Canada, and Australia, which allow gays to serve openly, do not experience lowered morale or any other significant problems. As General David Petraeus stated, allowing openly gay service members in other countries had been “uneventful.” However, by repealing DADT, we are one big step closer to living the ideal set forth in the Declaration of Independence, “that all men (and women) are created equal,” affirming the 14th Amendment to the Constitution that all have equal protection under the law.

Civil Unions Provide Equal Protection Under the Law

In regards to marriage, I support civil unions for gay partnerships, with equal protection under the law. This means I support civil unions that provide gay couples with all of the legal rights that matrimony bestows on a heterosexual couple, such as rights of inheritance, Social Security, employer benefits, and hospital visitation. While I acknowledge that my belief in traditional marriage may seem at odds with this, I believe that the 14th Amendment requires that we provide equal treatment under the law to all civil partnerships. Jon Huntsman, a prominent Latter-Day Saint and former GOP candidate for President, notably expressed his support for civil unions, while still affirming his belief in traditional marriage. The controversial Proposition 8 in California, which prohibited gay marriage, also affirmed equal partnership rights for gays under domestic partnerships. It’s noteworthy to point out that the Church supported Proposition 8, despite the measure’s support for legal recognition of gay partnerships under domestic partnership rights, a shift from the Church’s previous stance. Civil unions are the best solution to the controversy because they satisfy the 14th Amendment’s requirement for equal protection under the law while avoiding a government-backed and highly controversial redefinition of the institution of marriage.

Leaving the Debate Over Marriage to Religious Institutions

In some European countries (including Poland) couples, either heterosexual or homosexual, wanting legal recognition of their partnership must obtain a civil union from the government, after which they can be married in a church. This keeps the government out of the highly charged and partisan debate over the definition of marriage. It allows churches to administer the marriage ordinance in accordance with their doctrines, while making available partnership rights through civil unions. This may or may not be a plausible solution for the U.S.; however, when considering that there are many churches that support gay marriage, it is helpful to reflect on the Eleventh Article of Faith, which states “we claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.” A deeply plural country like ours cannot function well if people do not possess at least some tolerance for others’ differing moral views.

Is Gay Marriage Advocacy a Push for Acceptance?

The push for legalization of gay marriage is thought by many to be a push for societal acceptance of gay marriage, one that seeks to eliminate any distinction between gay and traditional marriage. One potential consequence that I worry about with the legalization of gay marriage is the possibility that the government could require teachers to instruct young children about gay marriage and preach acceptance of it. While on the surface this may appear to be inline with education about civic responsibilities, value judgments about gay marriage should be left up to parents, not the schools. There is also uncharted territory in the area of religious freedom. Will religious adoption agencies be compelled to place children with same-sex couples? H. David Burton, the former Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints co-signed an open letter with other religious leaders that warned same-sex marriage could force “individuals and religious organizations — throughout their operations, well beyond religious ceremonies — to treat same-sex sexual conduct as the moral equivalent of [heterosexual] marital sexual conduct.” Legalization of same-sex marriage could subject churches that support only traditional marriage to the “full arsenal of government punishments and pressures” reserved for racists and bigots.

Some may ask why I continue to support President Obama, given his stated support for gay marriage, which I clearly oppose. I prefer to approach politics by looking at all of the issues I care about and seeing which candidates come closest to my views on most issues. While gay marriage is one area where I clearly differ from President Obama, I strongly support his policies in most other areas, including economic, environment, education, health care, foreign, and national security policy. And I am much more concerned about our government adopting the best economic and national security policies than I am worried about culture war issues like gay marriage.

On a final note, the fight to prevent legalization of same-sex marriage appears to be a losing one. There have been huge shifts in public opinion on the issue over the past ten years and as of 2012, polling has consistently shown that a slim majority of Americans now support legalizing same-sex marriage. Eventually, same-sex marriage will be recognized in most, if not all, states and religious organizations should prepare for that eventuality by focusing on protecting their religious freedom to affirm only traditional marriage. Supporters of traditional marriage should also do more to reach out to gays to improve mutual understanding.

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Aaron

Author / Editor at MormonDems
I have been an active Latter-Day Saint all of my life and have also been an enthusiastic Democrat and progressive since my days as an economics undergraduate student at Brigham Young University. The hostile climate towards progressives at BYU inspired me to get involved with the BYU College Democrats, where I served as president during my senior year. I have since obtained a master’s degree in international relations from the University of Oklahoma. I served a full-time mission to the Philippines. I’m active in my local ward, happily married and have two rambunctious little boys and an infant daughter.

32 Responses to Thoughts on Gay Marriage

  1. Rachel Blair says:

    Words are powerful. While I believe in the essense of this article, it would frame the debate better by calling it MARRIAGE EQUALITY. Let the bigotted, religous zealots own “gay marriage” and let us take the higher road with marriage equality.

    • Chowd3r says:

      It’s funny how you’re saying it’s not okay to label it as “gay marraige” but in the same sentence you gladly label these religious people as “bigoted zealots.” You see the hypocrisy? Just sayin.

  2. Duane says:

    This is all the basic excuses that we give, but it still doesn’t go to the point. I think the above stance can only be held by people who don’t know gay couples (married or otherwise) and are consequently speaking in theory. If you know a gay married couple then there’s no way you’re gonna line up with this attitude. I am active mormon and pro marriage equality. I have dear friends who are happily, lovingly married and raising happy, healthy kids and who am I to negate that or to say that they’re somehow wrong. Sure in the eternal scheme of things stuff gets a little hazier, but we’re not in heaven and it’s great that people are doing the best with what they have. We all have the right to the pursuit of happiness… we should take that seriously. Now, I’m not out carrying a sign or anything… but I definitely argue with the “debate is moot” statement above. Mormon liberals are too afraid of offending on this issue. When the Church made its now infamous statement about Prop 8 that we should do “all in our power” to make it pass (I’m not a Californian, but well aware of the Church’s involvement there) to me “all in my power” would mean maybe NOT giving money against it, or NOT putting a No on 8 sticker on my car, or maybe NOT trying to convince my home teachers to vote against it… within my values and ideology that’s probably the best I could have done.

    • Aaron says:

      Duane- I appreciate your comment and perspective. I agree that attitudes towards gays would change dramatically among church members if more members were personally acquainted with gays, including gay couples. Doctrinally, it’s an issue that perplexes me, especially in light of the significant body of scientific research that shows a genetic cause to homosexuality. I think the civil union route, or even perhaps the Polish example, where all couples, hetero- or homosexual, are required to obtain civil unions before getting married in the church of their choice, could be a good solution, which keeps the government out of the business of defining marriage, leaving it to religious institutions.

      • Let’s take religion out of our rights. Isn’t that where the trouble comes?
        Marriage Equality is a Financial Issue, NOT a social issue.
        There was a time I might have accepted “Civil Unions”. But that ship has sailed with the aggressive manner in which the Religious Right has attacked.
        I want “Marriage” Equality, with all the rights and responsibilities that come with it. Nothing less will do.
        Churches don’t have to perform the ceremony, but I will NOT accept “Separate, but Equal”!

      • Elle Lunette says:

        Aaron, I believe you mean “if more members were personally acquainted with out and open gays.” The reality is that they ARE all acquainted with them, but with a don’t ask, don’t tell policy in place. It’s a self-perpetuating cycle, fear creates the closet, the closet prevents people from confronting bigotry, so it remains.

        • Aaron says:

          Elle- I agree. I don’t think members of the church generally treat gays very well and there is certainly strong tacit pressure for gays to stay in the closet. Lots of suspicion and homophobia, not enough love and understanding.

    • Debbie Denbo says:

      My best friend is high school was lesbian. A partner in my firm is a married gay man. I have had a great deal of interaction with the gay community in my life. I firmly disagree with your analysis. I firmly believe in the separation of church and state. I support civil unions and always have. I do not support gay marriage. I realize it will eventually become law. I understand why the gay community seeks marriage, but I do not believe, no matter how committed the relationship, same sex couples create a marriage. This nation is based on a myriad of differences, all of whom should be welcome. Homogonizing marriage does not, in itself, make it so.

      • Aaron says:

        Debbie- thanks for reading and taking the time to comment. I’m not sure if you were disagreeing w/ my analysis or that of the commenter above, but it looks like you and I hold precisely the same position- we’re in favor of civil unions but against gay marriage. I also acknowledge that it will eventually become the law of the land. I’d be interested to hear you expound on this statement without tying it to religion: “I do not believe, no matter how committed the relationship, same sex couples create a marriage.”

  3. Boni Cali says:

    FAIR ENOUGH. THIS IS A WELL BALANCED presentation of belief. Still don’t understand the biological issue, since all things biological derive from Nature, the Creator, thus it is validated by its own existence. Our BELIEFS on one thing or the other does not change the unknown purpose of God. People think that if they believe on something that is the ultimate truth. Yes, for you not for others. I think this position, though still lacking in liberalism, is very narrow because it adheres to the BELIEFS of a group. They are at par with the beliefs of gays that want to marry, just two different points of view. The mormon’s point of view has no stronger position because it is based on what someone wrote on a book. You know, anyone can come up with a book and say “it was inspired by God”. I don’t even believe in the Bible. The philosophy of unity, is the only thought that is central to all religions, but people interpret “unity” in the shallowest sense to mean all those that agree to all “our precepts”. We are, after all, very egotistical and we deny others their rights, even their life, just because they don’t believe on what we believe. We either give homage to that invisible force that is the Creator of LIFE whose golden law is to love each other than to the many “sacred” books created by men with the purpose of aggregating people of similar thinking so they can be at odds with others that follow other “sacred books”, or worst, to convert then to our beliefs. Which is the sacred book? None, I figure. They are all tainted by personal ambitions, historically correctness, personal and common goals, and control hungry egos. Almost all religions were not created by the enlighted souls that tried to unite and teach. Most of them were created by the followers that institutionalized the set if beliefs into a “religion”.

    • Aaron says:

      Boni- thank you for reading and commenting. I definitely agree that in a plural society such as ours, people need to keep an open mind and understand that, while they have their own beliefs about morals, others differ and society’s rules, implicit or explicit in the form of laws, must allow for a significant degree of tolerance. Balancing the need to stay true to one’s own values and beliefs while living in a functional plural society can be a challenge, and when individuals refuse to compromise at all, we end up with culture wars. To those who support gay marriage as marriage equality, I’m curious to know your beliefs on plural marriage and whether that should be legal when it involves consenting adults.

  4. Eric says:

    Glad to read a reasoned and reasonably open minded perspective from an oponent of “gay marriage.” That said, I disagree strongly with most of your position. While I too think the separation of civil and religious marriage would be a good thing for our country, it isn’t quite the solution you seem to believe. Having been married in Germany, where such separation exists, it’s important to note that the civil ceremony results not in a “civil union” but in a marriage. The religious ceremony has no standing in civil law whatsoever.

    The truth is that permitting “gay marriage” here in the US would result in exactly the same status. Gay couples could marry in either a civil ceremony or a religious one – in a church so inclined – and either would result in a marriage. The only difference is a positive one for churches in the US. . . they may preside over a legally binding marriage.

    The posturing over the word marriage is, frankly, absurd. No one can legislate how a couple and their friends and family refer to their union. Some couples eschew legally binding marriage and yet still refer to themselves as married. The label is moot. The real issue is equality. “Civil unions” do NOT currently provide the same rights as marriage because they are not recognized by the federal government. That means no social security survivor benefits, no joint tax returns and much more.

    So, if you support truly equal rights for gay couples then the issue of the word marriage isn’t one for legislative bodies but is one for each individual to decide for themselves or for linguists and rhetoricians to discuss ad nauseum. For equality, there must be one standard for all people in the eyes of the government.

    • Aaron says:

      Eric- thanks for taking the time to comment. You make some great points. I think a national civil union law with the same package of rights would solve the problem while defusing this contentious social issue. But you’re right, the gov’t cannot prevent someone from referring to themselves as “married” even if they choose to forgo a legally-recognized marriage. In that sense, the debate over the word “marriage” is somewhat moot.

  5. I’d like to address an issue that hasn’t been brought up yet.
    I was alive in the 1980s when AIDS ran rampant through the Gay community.
    The following is one example of many. I personally knew three couples that went through this experience, to varying degrees.

    Fred and Luis were close friends of mine. They were together 14 years. Fred’s family distanced themselves from him when they learned he was Gay. They completely cut Fred off in 1988, when he was diagnosed with AIDS.
    Fred died two years later. His family took over. They challenged the will, and forced Luis out.
    In spite of the thousands of dollars Fred and Luis paid lawyers, the family won because Fred and Luis’ relationship was not recognized by the state.
    Luis could have fought it, but Fred’s father was able to afford enough lawyers to challenge Fred’s will and continue to appeal for years. Luis would have gone broke.

    The thing that pisses me off about all this, is how none of Fred’s family offered to lend a hand with Fred’s care. When Luis asked Fred’s family to at least come visit Fred in the hospital, he was met with ridicule.
    Things were worse at the Hospital. Luis could not stay past visiting hours because he wasn’t considered family.

    Had Fred and Luis been Married, Luis might have had a fighting chance.
    Besides… Why should Gay and Lesbian couples be expected to pay thousands of dollars for the myriad rights that heterosexual couples get with a $25 marriage license?
    Even when we pay those thousands of dollars, there’s no guarantee.
    I want FULL Marriage Equality!

    • Aaron says:

      ADignorantium- thanks for reading and commenting, and sharing that story. I think a national civil union law that gave the same package of rights to a couple as a “marriage” would solve the problem while defusing a highly contentious social issue. And with it, situations like the one you mention would be avoided. Not sure we’ll agree completely on the marriage issue, but I acknowledge that it’s probably inevitable that gay marriage will become law in most if not all states.

  6. Cameron Lewis says:

    Aaron,
    I comment knowing that I do not at all expect you to adopt my philosophy. That being said, I feel it important to voice. One of your concluding phrases had me thinking:
    “I am much more concerned about our government adopting the best economic and national security policies than I am worried about culture war issues like gay marriage.”
    I’m sure you’re familiar with the story of Sodom and Gomorrah, the cities destroyed by the Lord in the Old Testament because of sensuality and a saturated culture of homosexuality and immorality. What makes you think the Lord will spare our nation if we do not protect ourselves from the same? Have we not been told in the Book of Mormon: “If ye shall keep my commandments, ye shall prosper in the land”? What does that say of your concerns regarding policies of national security?

    • Aaron says:

      Cameron- thanks for reading and commenting. I’m sure won’t see eye to eye on the issue, but I appreciate hearing alternate viewpoints. There is much we as Christians don’t understand about homosexuality, particularly about biology’s role in causing it. I think it is best to leave judgement to God on the issue rather than be judgmental of our gay brothers and sisters. President Uchtdorf said something in the April General Conference that I think applies here: “don’t judge me because I sin differently than you.”

      Just as the government can’t stop people from having extramarital sex or having abortions, a constitutional amendment banning gay marriage won’t stop people from being gay and living together in homosexual partnerships. The best way for us to have a moral society, and to spread our morals, is through living exemplary lives, properly teaching our children, and missionary work. Government isn’t the solution here. The Gospel is.

      Former Secretary of State Albright once said “Armageddon is not a foreign policy.” I think the same principle applies to your example: Old Testament stories like Sodom and Gomorrah are not particularly pertinent to national security or economic policies.

  7. Don says:

    I appreciate your knowledge and insight on this subject.
    Before I go any further I wanna say,” I appreciate very much, your progressive thinking.” Thank you!
    Now, I must wonder why you cannot make the final leap?
    I wait for the day that you and others will.
    Although you say that gay marriage is inevitable, your stance is not helping people that need help NOW!
    Marriage can be a social union or a legal contract. (I believe this is the actual definition)
    You yourself, nor your religion, nor any religion owns the word marriage but yet you politically stand on the fact that you do!
    When interracial “marriages” were fought for, we didn’t call them unions, we call them marriages.
    Who knows if one day marriage will evolve to included 3 or more people? Marriage HAS in fact done the opposite. I believe your very church is rumored to evolved AWAY from this. If one day down the road, our culture encounters enough bigamist and the majority of voters see a need for it, than it will be.
    Right now we have urgent needs to unify families with marriages from our government – granting all rights that marriage grants from the government. Saying I can’t marry anther one because someday it will lead to marrying 3 is a bizarre stance and does not solve a problem of today’s world.
    I am most certain that if a number of people pondered marrying interracial couples after freeing slaves, many more slaves would have suffered while awaiting a next generation to evolve.
    I anxiously await your final step. Whether it be found or forced.

  8. Lance says:

    I just think it’s funny that the Christian person in this article believes it’s Ok for a man and woman Satanist to marry and Not two gay Christians.

  9. Kevin says:

    As a devout Mormon and also a LGBT ally I support Marriage Equality. Civil Unions have proven to be discrimnatory and don’t end up providing equal rights. The Polish example is too little too late. More conservative states could have taken the Polish route but instead they ended up putting their energy into discrimination against LGBT individuals and their families. Also, while your article mentions President Obama, it fails to mention Senate Majority Leader Harry Reid’s (a devout Mormon) support of Marriage Equality.

  10. Wayne Borean says:

    Ah, yes but then there’s the 11th Article of Faith

    We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.

    There are a variety of faiths that wish to celebrate Same-Sex marriages. We are obliged to allow them that right. In fact WE ARE OBLIGED TO HELP THEM OBTAIN THAT RIGHT. We are also obliged to fight those who would deny them that right.

    Unless of course you are willing to deny the Articles of Faith, and if you are willing to do that, you aren’t worthy of holding a Temple Recommend.

    Wayne

  11. Jon A. says:

    As a libertarian, I may be speaking to the wrong crowd, I think the entire premise is missing the root of the problem and is asking the wrong question. I want to know why government is involved in marriage at all. If we get government completely out of marriage, then none of this matters and my opinion or your opinion don’t affect others.

    No marriage licenses. No taxes related to marriage (or, better yet, no taxes at all!) so that estate taxes, income taxes, social security benefits, etc are not dependent based on your marital status. If two people want to live together, either opposite or same gender, that is their decision and doesn’t impact me.

    I have my own views on the morality of it, but immoral should not mean illegal in most cases (unless it impacts another person or their property). That, to me, is in line with the teachings of the Savior, that we let men act according to their own conscience rather than using government to force them to act according to the choice of the majority, or the choice of 535 people in Washington DC, or the choice of 9 people in black robes. End government involvement and let people make their own choices.

    • Wayne Borean says:

      First off, an American Libertarian is an oxymoron.

      Let me explain. A lot of so-called American Libertarians want to shut down the Environmental Protection Agency. They obviously haven’t thought this through, because the second they do that THEY HAVE TO SHUT DOWN EVERY FOSSIL FUELED POWER GENERATING STATION IN THE COUNTRY.

      Why? Because all rights are property rights, and didn’t give any of those power plants permission to dump their waste, Carbon Dioxide, on my property. I’ll go to court to stop them from damaging my property.

      Think about it.

      As to ‘Government’ being involved in marriage, I suggest you read up on the history of divorce. Marriage involves property. When marriages break down, as unfortunately all too any do, some adjudication by an unbiased third party is required.

      Who would you have that third party be? The local Bishop? He wouldn’t thank you. The Stake President? He wouldn’t thank you either.

      What if the married couple is mixed religion? One sister I know had a successful 25 year marriage to a non-member. Their kids served missions, and were married in the Temple. He was a really nice guy, I was sad to hear he’d passed away. How could the church handle a divorce where one party isn’t a member?

      Do you really want to give more power to lawyers? In Canada you can get a divorce without ever seeing a lawyer. Lots less expensive that way, assuming both parties can agree on the major issues.

      What you suggest would be a legal quagmire. Are you sure you aren’t a lawyer trying to drum up business?

      Wayne

      • Jon A says:

        Wayne- thank you for the personal attacks, dismissiveness, and general negative tone of your reply. This has served as adequate reminder of why I generally do not participate in online discussions as any attempt to understand views are not even considered, leaving us free to demonize the person as we wish.

        Jon, an American Libertarian (yes, we do exist)

  12. Hank says:

    People saying they don’t believe in gay marriage is just as ridiculous as saying you don’t believe in temple marriages. What anyone else thinks doesn’t matter. If you are gay and want to be married, then do it. If you want to be married in a temple, do it. What anyone else thinks doesn’t matter. Let’s all support each other rather than tear people down or deny people rights. And if you think you are supporting God and Jesus by not supporting gay marriage, that is not what you have been asked to do. Do unto others, folks.

  13. Hank says:

    And for fair disclosure, I am a gay LDS returned missionary who plans on MARRYING his gay LDS boyfriend next year. Anything else would be foreign and wrong for me. Obviously, we are not active, but I can say the church really missed out on having two good guys as active members.

  14. barrowb says:

    It seems that the links to the BYU studies are broken. Are there new links you can add?

  15. Freedom Wins says:

    “Changes in civil law do not, [gay marriage] indeed cannot, change the moral law God has established.” https://www.lds.org/church/news/lds-church-instructs-leaders-regarding-same-sex-marriage?lang=eng

  16. Kevin says:

    Aaron – you say you “support Traditional Marriage” Would that be similar to the biblical King Solomon who was a dedicated polygamist, with 700 wives?

    Or a Traditional Marriage where married women couldn’t own property and had no claims on their earned income.

    Of course in Traditional Marriage it was completely legal for a husband to physically force his wife to have sex with him. In fact, North Carolina only outlawed marital rape in 1993.

    Gay people wanting equality – women saying NO to their husbands — Tradioanal Marriage sounds so much better.

  17. Kevin says:

    There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. [1] Because the Defense of Marriage Act defines “marriage” as only a legal union between one man and one woman, same-sex couples – even if legally married in their state – will not be considered spouses for purposes of federal law.

    Here are a few areas where federal laws contingent upon marital status – MARRIAGE nor Civil Union.

    SOCIAL SECURITY

    Social Security provides the sole means of support for some elderly Americans. All working Americans contribute to this program through payroll tax, and receive payments upon retirement. Surviving spouses of working Americans are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry. Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive drastically unequal benefits, as set forth below.

    Family Eligible for Surviving Child Benefits Eligible for Surviving Parent Benefits

    Family #1: Married husband and wife, both are biological parents of the child
    Eligible for Surviving Child Benefits
    Eligible for Surviving Parent Benefits
    Family #2: Same-sex couple, deceased worker was the biological parent or adoptive of the child
    Eligible for Surviving Child Benefits
    Not Eligible for Surviving Parent Benefits
    Family #3: Same-sex couple, deceased worker was not the biological parent nor able to adopt child through second-parent adoption
    Not Eligible for Surviving Child Benefits
    Not Eligible for Surviving Parent Benefits

    TAX

    According to the GAO report, as of 1997 there were 179 tax provisions that took marital status into account. The following is a limited sample of such tax provisions.

    Tax on Employer-Provided Health Benefits to Domestic Partners

    In growing numbers, both public and private employers across the country have made the business decision to provide domestic partner benefits in order to promoted fairness and equality in the workplace. For example, as of August 2003, 198 (almost forty percent) of the Fortune 500 companies and 173 state and local governments nationwide provide health insurance benefits to the domestic partners of their employees. Federal tax law has not kept up with corporate and governmental who take advantage of it are taxed inequitably.

    As policymakers have put an increasing emphasis on delivering health coverage through the tax code and as the cost of healthcare has once again begun to skyrocket, the current inequities in the tax code have placed a burden on the employers who provide healthcare coverage to domestic partners and on the employees who depend upon these benefits to provide security for their families.

    1. Burden on Employees
    Employers who provide health benefits to their employees typically pay a portion of the premium – if not the entire premium. Currently, the Code provides that the employer’s contribution of the premium for health insurance for an employee’s spouse is excluded from the employee’s taxable income. An employer’s contribution for the domestic partner’s coverage, however, is included in the employee’s taxable income as a fringe benefit.

    2. Burden on Employers
    An employer’s payroll tax liability is calculated based on their employees’ taxable incomes. When contributions for domestic partner benefits are included in employees’ incomes, employers pay higher payroll taxes. This provision also places an administrative burden on employers by requiring them to identify those employees utilizing their benefits for a partner rather than a spouse. Employers must then calculate the portion of their contribution that is attributable to the partner, and create and maintain a separate payroll function for these employees’ income tax withholding and payroll tax. Thus, the employers are penalized for making a sound business decision that contributes to stability in the workforce.

    Inequitable Treatment of Children Raised in LGBT Households
    Recent data shows that at least 1 million children are being raised by same-sex couples in the United States. The Code contains competing definitions of “child.” Certain provisions of the Code defining child penalize for the marital status of their parents and caregivers.

    1. Earned Income Tax Credit
    Eligibility for the earned income tax credit (EITC) is based in part upon the number of “qualifying” children in the taxpayer’s household. See 26 USC § 32. The definition of qualifying child under this provision includes only a child who is the taxpayer’s (a) biological child or descendent; (b) stepchild of the taxpayer; or (c) adopted child. Certain children of lesbian and gay couples are disadvantaged by this provision. For exampled, a taxpayer and their partner domestic are jointly raising the partner’s biological child. The taxpayer works full-time and the child’s legal parent stays home to care for the child. The state in which the taxpayer resides does not permit them to adopt through second-parent adoption or to marry the partner and become the child’s step-parent. This working family is therefore ineligible for an adjustment of the EITC, and therefore has decreased the resources to devote to the child’s care.

    2. Head of Household Status
    Heads of household, as defined by 26 U.S.C. § 2, are eligible for an increased standard deduction that, among other things, provides taxpayers with increased funds to care for their dependents. The “limitations” section of this provision explicitly denies the benefit of head-of-household status to taxpayers supporting non-biological, non-adopted children. Thus, a gay or lesbian taxpayer who supports his or her partner’s child (and who is ineligible to adopt the child) has fewer post-tax dollars with which to support the child.

    3. Child Tax Credit
    Taxpayers meeting income eligibility requirements are entitled to a credit against tax for qualifying children in their households. This provision limits the child tax credit to children who meet the relationship test set fourth in the earned income tax provisions, § 32(c)(3)(B). As set forth above, § 32 does not include children of a taxpayer’s domestic partner if the children are not related to the taxpayer biologically or through adoption.

    All three of these inequities have the effect of penalizing families who choose to have one parent in the work force and the other caring for the children full-time. In addition, they disadvantage such couples and their children by limiting the choice of which parent will be a full-time caregiver. Although similarly situated married couples may choose which parent will fulfill that role without consequence, lesbian and gay couples, as well as other unmarried couples, face negative tax consequences for the same decision.

    Tax on Gain from the Sale of the Taxpayer’s Principal Residence

    Under Internal Revenue Code §121, a single taxpayer may exclude up to $250,000 of profit due to the sale of his or her personal principal residence from taxable income. Married couples filing jointly may exclude up to $500,000 on the sale of their home. Lesbian and gay couples, who are not permitted to marry or to file jointly, are therefore taxed on all gain above $250,000, creating a large tax penalty compared to similarly situated married couples.

    Estate Tax
    Internal Revenue Code § 2056 exempts amounts transferred to a surviving spouse from the decedent’s taxable estate. For same-sex couples who are legally barred from marriage, this exemption is not available, creating an inequity in taxation.

    Taxation of Retirement Savings
    Under current law, when a retirement plan participant dies, plan benefits must be distributed in a lump sum or remain in the plan to be distributed in accordance with the minimum distribution requirements of § 401(a)(9). This problem does not exist if the beneficiary is the deceased participant’s surviving spouse, because the surviving spouse may transfer plan benefits to an IRA or a retirement plan in which he or she is a participant. This entitlement is valuable because (a) it allows the surviving spouse to defer taxation of the proceeds, often until the survivor is in a lower tax bracket; and (b) it protects the surviving spouse from being forced to withdraw from an investment program when its value is depressed. Because gay and lesbian couples are treated as strangers under federal tax and pension law, they cannot transfer plan benefits without incurring significant penalties, and do not have the flexibility to withdraw funds when they choose. The example below demonstrates this inequity:

    Michelle and Sarah have been in a committed relationship for over 10 years. They have registered as domestic partners under the laws of the District of Columbia. Throughout their relationship, they have taken every legal step available to formalize their relationship and protect themselves, legally and financially as domestic partners. Michelle participated in her employer’s 401(k) retirement plans, naming Sarah as the primary beneficiary. Sarah purchased an individual retirement account (IRA). While driving to her job, Michelle is killed in a car accident. Sarah does not have the option to transfer Michelle’s 401(k) funds into her existing IRA because, under current law, only a “spouse” may roll over 401(k) and inherited IRA plans upon the death of a plan participant. Sarah must then take the entire proceeds of the inherited 401(k) in a lump sum and pay taxes on them immediately at a much higher rate, rather than rolling it over into her own name tax free as a surviving spouse can do.

    FMLA

    The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses. As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member. Family and medical leave should be a benefit for all American workers.

    IMMIGRATION

    Currently, U.S. immigration law does not allow lesbian and gay citizens or permanent residents to petition for their same-sex partners to immigrate. Approximately 75% of the one million green cards or immigrant visas issued each year are granted to family members of U.S. citizens and permanent residents. However, those excluded from the definition, under current immigration law of family, are not eligible to immigrate as family. Such ineligible person include (but are not limited to) same-sex partners and unmarried heterosexual couples.

    Each year, current law forces thousands of lesbian and gay couples to separate or live in constant fear of deportation. In some cases, partners of lesbian and gays face prosecution by the Immigration and Naturalization Service (INS), hefty fines and deportation and U.S. citizens are sometimes left with no other choice but to migrate with their partner to a nation whose immigration laws recognize their relationship. This creates a tremendous hardship, not only for those involved, but for their friends and family, and leads to a drain of talent and productivity for our country.

    Fifteen countries: Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom recognize lesbian and gay couples for the purposes of immigration.

    EMPLOYEE BENEFITS – FEDERAL

    According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP). Although married couples are eligible for reimbursement for expenses incurred by a domestic partner are not reimbursable. As of August 2003, nine states and the District of Columbia and 322 local governments offer health benefits to the domestic partners of their public employees, while the nation’s largest employer – the federal government – does not.

    COBRA

    Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits. Although this trend is encouraging, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples. Under 29 U.S.C. § 1167, an employer is only required to offer continuation coverage to the employee and to “qualified beneficiaries,” defined as the employee’s spouse and dependent children, regardless of whether the employee’s original benefits plan covered other beneficiaries. Because of the narrow definition of “spouse” under federal law, employees are not guaranteed continued coverage for their domestic partners. [2]

    [1] Defense of Marriage Act: An Update to Prior Report, General Accounting Office, 2004

    [2] Nothing in this law prevents an employer from extending COBRA benefits to domestic partners.

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