The Importance of Marriage Increasingly Clear as Alternatives Fall Short

There was good news this week for United Parcel Service employees in New Jersey. The company, under pressure from Lambda Legal Defense as well as Garden State Governor Jon Corzine, revised its interpretation of state law and agreed to offer benefits to civil union partners under its contract with the Teamsters Union.

UPS provides employee perks to non-union domestic partners around the country, and recently added same-sex partners to its pilots’ contract as well. But as far as the Teamsters contract was concerned, the shipping giant limited benefits to a “spouse as defined under applicable state law.” In Massachusetts, UPS decided that same-sex spouses were included in that definition. In New Jersey, however, the company originally held that a “civil union partner” was not the same as a “spouse.”

In a way, UPS had a point. “The New Jersey Legislature, in enacting the state’s civil union law, did not go as far as Massachusetts and afford same-sex couples the ability to marry,” wrote a UPS Plan Administrator to union member Gabriael Brazier last May. “Had the New Jersey Legislature done that, you could have added Ms. Aurand as a spouse under the Plan.”

A month or so of activism and headlines culminated in a letter to UPS Chairman and CEO Michael Eskew from Governor Corzine. Corzine praised the company for voluntarily going beyond federal law in covering both non-union employees and married gay staff in Massachusetts. Some self-insured companies, including FedEx, have used federal law as an escape hatch to duck state regulations protecting same-sex couples. To its credit, UPS has not used that tactic.

However, Corzine went on, New Jersey’s six-month-old state civil union law indeed treats civil union partners as “spouses” and should be interpreted as such. After consultation with the Attorney General, UPS changed course.

“Based on an initial legal review, when New Jersey’s law was enacted, it did not appear that a civil union and a marriage were equivalent,” said UPS senior vice president for human resources, Allen Hill. “Over the past week,” Hill went on, “we’ve received clear guidance that at least in New Jersey, the state truly views civil union partners as married. We’ve heard that loud and clear from state officials and we’re happy to make this change.”

So what’s the problem? The problem is that it took a national campaign by a major legal group, along with the personal efforts of the state governor and the attorney general’s office in order to clarify the concept of a New Jersey civil union to the powers that be at UPS. What will happen to UPS’s union employees in domestic partnerships in California? How about those in civil unions in Vermont? Who will speak for the 211 couples in New Jersey who, according to Garden State Equality, are denied benefits by other companies? Will Governor Corzine be writing letters to their bosses?
“Equal protection under the law is not supposed to wind through a tunnel of hell, where gay couples have to threaten companies with lawsuits and where governors have to shame the companies into doing the right thing,” wrote Garden State Equality’s Steven Goldstein on Monday. “But that’s what gay couples have been reduced to under New Jersey’s civil union law.”

The bottom line is that courts and companies understand the institution of marriage. They do not understand the separate-but-equal schemes that have emerged since 2005 in California, Connecticut, New Jersey, and that are about to take effect in New Hampshire and Oregon. It doesn’t help that some of these institutions are called “civil unions,” while others (in California and Oregon) are known as “domestic partnerships.” Add to that confusion the existence of other legal statuses, also called “domestic partnerships,” that don’t even attempt to offer equal benefits to same-sex couples, such as the new law that took effect in Washington last week. And what the hell is a “reciprocal beneficiary” for that matter? Maybe someone in Hawaii can answer that question.

We’ve been bandying around the expression “civil union” since Vermont created the phenomenon under court order in 2000. In theory, the term describes a legal tie for same-sex couples that offers all the rights and benefits of marriage under state law. As such, the idea sounds like a fine compromise between tradition and civil rights to a large chunk of middle America, as well as all the major Democratic Presidential candidates. 
As long as the idea was unique to Vermont, a state with a population under a million, the question of whether civil unions and marriages were truly equal was a philosophical debate. Leaving aside the issue of federal marriage rights which lie outside the scope of state regulatory power, commentators discussed whether the “m” word really matters if a couple has the identical rights of a spouse.

But after five years of such musings, the giant state of California brought its statewide domestic partnerships close to the level of marriage, while Connecticut introduced civil unions as well. Then last February, New Jersey began its own civil unions, under court order to equalize the legal status of gay and straight couples.

As a result of the thousands of new participants in “marriage lite,” we are starting to realize that the inequality between marriage and its substitutes is not just a matter of semantics. It’s a question of concrete discrepancies between how gay couples and married couples are treated under the law.

California domestic partnerships are particularly problematic. Although the program aims for equality, the law contains a number of built-in differences between gay partners and married straights. To register, for example, partners have to be 18 years old and share a common residence. The partnership is entered, and in some cases dissolved, by filing a few papers. It does not require a solemnization, nor do the partners need a reason to sever the tie.  The partners of state employees do not receive long-term care benefits.

Although these distinctions might seem minor, they operate like a crack in a foundation, weakening the structure of domestic partnerships and deepening its flaws. Last week, for example, Lambda Legal filed an appeal in the case of a man who tried to dissolve his domestic partnership, only to discover that his ex-partner never filed the papers to begin with. Although a married person would be protected in such a situation by the “putative spouse doctrine,” a lower court ruled that the doctrine did not apply to domestic partners, noting that the legislature never specifically included the doctrine in the text of the California Domestic Partner Rights and Responsibilities Act. But how could they? A list of every possible benefit of marriage would have produced a bill the size of ten phone books, and still would have left out countless situations.

In Orange County last month, another judge ruled that a domestic partnership “is not the equivalent of marriage” for the purposes of ending alimony duties. Ronald Garber quite logically believed that his financial obligations to his ex-wife Melinda would be complete once she registered as a domestic partner, just as they would be complete had she remarried. But Judge Michael Naughton ruled that a domestic partnership is no different from “cohabitation” as far as the family code is concerned, a decision that Lambda’s Jennifer Pizer said “appears to be based on a gross misreading of the law.”

As for private employers, many of them, like UPS, respect the term “marriage” in Massachusetts, but apply a double standard to same-sex couples in the marriage-lite states. For now at least, domestic partners in California still covered by the UPS Teamsters Contract will not receive the benefits granted to Massachusetts spouses and New Jersey civil union partners.

State Farm, in turn, offers benefits “to the legally married spouse of any State Farm employee—meaning marriages legally recognized by a state.”

According to Media Relations Manager Fraser Engerman, this includes same-sex married couples in Massachusetts, but does not include domestic partners or civil union partners elsewhere. In California, for example, State Farm partners are eligible for benefits if they enroll in an HMO headquartered in the state. They are not eligible for State Farm’s own policy, nor may they enroll in an HMO based outside the California border.
These two illustrations are important, because both of these companies have chosen to recognize Massachusetts marriages. As self-insured employers operating under federal law, they could have followed the example of FedEx and others in refusing to insure same-sex couples anywhere in the country, married or not. Nonetheless, they still elevate their married workers above those who carry a lesser status. The “m” word matters to them as it matters to every American on both sides of the marriage debate.

The state supreme courts of Connecticut and California are now faced with the question of whether their respective marriage lite institutions are constitutionally equal to marriage under state law. We know that same-sex marriage will never be equal until Congress repeals the 1996 Defense of Marriage Act, but that is not the issue before the justices. Nor is there any real question of whether the separate institutions are identical. In California specifically, an appellate court has already ruled that domestic partnerships do not violate the voter-approved ban on same-sex marriage, because they do not provide full marriage rights.

Instead, the courts will have to decide how much inequality can survive under their state constitutions. Aside from the profound psychological impact of being relegated to a separate status outside of marriage, same-sex couples are feeling the tangible harm of second-class treatment based on the unavoidable distinction made between marriage and anything else - whatever it may be called or however carefully it may be legislated.

The Writers Guild recognizes California partners, but will not provide coverage to a partner’s stepchild. UPS does not provide bereavement leave when a partner’s parent dies. Last March, a registered domestic partner was denied access to her sick daughter in the emergency room of the San Joaquin Community Hospital although the girl’s biological mother was allowed into the examining area, as were heterosexual couples. 

Or how about Marvin Burrows, who lost his registered partner Bill Swenor to a heart attack after a 51-year relationship? When Burrows called a funeral home, Alameda Cremations, to make arrangements, he was told that he was not the next of kin and had no legal status. To add injury to insult, Burrows lost Swenor’s pension benefits when Owens-Illinois cited federal law as an excuse for ignoring his state partnership. “My personal opinion,” said Burrows, “is that our domestic partnership gave us both a false sense of security.” 

 So, does a state have a responsibility to improve the conditions of same-sex partners? Or can it simply provide a mechanism that approximates equality, and then let the chips fall where they may, blaming the ensuing problems on lack of education, growing pains, the conflict between federal and state law, or unavoidable bigotry?

Asked another way, do the states of California or Connecticut have a good reason for continuing to withhold the status of civil marriage from gay and lesbian partners, knowing for a fact that many of these couples will suffer adverse consequences as a direct result for years to come?

And what exactly is that reason?