pageok
pageok
pageok
Domestic partnership on the decline in Massachusetts:

According to this article, the Boston Globe will soon require its gay employees to get married in order to keep their same-sex partners' benefits:

A memo sent to the Globe's Boston Newspaper Guild members, and obtained by the Herald, states that Massachusetts gay Guild employees can extend their benefits to their partners only if they marry.

"An employee who currently covers a same-sex domestic partner as a dependent will have to marry his or her partner by Jan. 1 for the employee benefits coverage to continue at the employee rates," the memo states. . . .

Benefits for domestic partners were originally offered to gay employees because they couldn't legally marry, said Ilene Robinson Sunshine, a lawyer at Sullivan & Worcester.

Now that gay marriage is legal in Massachusetts companies that offer benefits to gay employees' partners risk hearing cries of discrimination from unmarried straight couples. . . .

The Globe does not extend benefits to live-in partners of its heterosexual employees. Like many companies, it offered benefits to partners of gay employees because marriage was not an option for them. . . . . Paul Holtzman, an attorney specializing in employment law at Krokidas & Bluestein, said you can expect more local companies to change their policies.

"There is a trend towards doing what the Globe did," he said. "A number of employers have taken the position that now that same-sex marriage is an option there is no longer a need to offer domestic partner benefits."

While it's hard to be cheerful about the prospect that anyone would lose health coverage, this is on the whole a salutary development. My view has been that an incremental approach to gay marriage — involving first the recognition of domestic partnerships and/or civil unions — is ordinarily the best path. It is good policy and good politics. Critics of this approach, including Jon Rauch (who favors gay marriage) and Stanley Kurtz (who opposes it), have countered that such incrementalism creates a host of alternative statuses that risk making marriage less attractive. (Some people welcome this development since they'd like to knock marriage off its pedestal.) Their fear is that once a constituency develops for these alternative statuses it will be nearly impossible to end them.

The apparent trend in Massachusetts, however, suggests that interim marriage-lite statuses can be created for same-sex partners before gay marriage is recognized and then ended once full marriage is achieved. The reasons, I suspect, are both legal and political. There is first the fear of a sex-discrimination claim if a business or government continues to offer unmarried same-sex domestic partners benefits while not offering the same benefits to unmarried opposite-sex domestic partners. That discrimination could have been justified as long as gay partners could not be married, but the legal defense will be harder once they can be. There is second the political difficulty of justifying the continuance of same-sex-only domestic partners benefits once those partners have the marriage option. Heterosexual employees (and citizens in general) will want to know why gay employees and their unmarried partners should continue to get what will now look a lot like "special rights" to domestic partners benefits unavailable to anyone else.

Much harder to dislodge — after gay marriage is permitted — will be domestic partnerships and other marriage-lite statuses that, pre-gay-marriage, were made available both to unmarried heterosexual and unmarried homosexual partners. The equitable objections to continuing such alternative statuses will be unavailable, since everyone can access them.

The incrementalist conservative approach to gay marriage, therefore, has to emphasize that interim alternative statuses (like domestic partnerships and civil unions) should be available only to same-sex couples who do not yet have the option to marry. Alternative statuses can be limited to gay partners by emphasizing (1) the stronger equitable claim of gay partners who can't marry and by emphasizing (2) the enormously higher cost of including unmarried heterosexual partners in such statuses, since unmarried heterosexual couples always impose the lion's share of the costs when these statuses are available equally to them. Same-sex only interim alternative statuses will, ironically, have to fend off sex-discrimination and other claims. But this has so far not been difficult to do.

jimbino (mail):

unmarried heterosexual couples always impose the lion's share of the costs when these statuses are available equally to them


The fact that unmarried heterosexual couples impose the lion's share of the costs is tantamount to saying that adverse discrimination against unmarried heterosexual couples is even more extensive than that against their homosexual counterparts. Even greater is the adverse discrimination against singles.

So why are we spending so much time bemoaning the inferior status of gays, when the real victims of adverse discrimination based on marital status are singles and couples like mother and daughter or two brothers?

For that reason, though I am gay friendly, I oppose extending marriage rights to gays until the more than 1000 benefits conferred by marriage are totally eliminated. A just libertarian society would let anyone marry or engage in any religious or otherwise supersititous compact but not confer special rights on the participants.
7.8.2006 1:13pm
Cathy (mail) (www):
I'm not sure it's so obvious why the Globe didn't offer domestic partner benefits to its heterosexual employees too. I once had a job (in CA) where I was able to get them for my boyfriend/partner. We had to sign some sort of affidavit attesting to the long-term nature of our relationship and cohabitation, but that's all it took and there was no discrimination for or against gay or straight couples. Yes, it probably cost the company a bit more than if I had been single, but then again if I'd actually been married to him it would have cost them the same.

It seems, at least for something like health insurance benefits, the point in allowing an employee to cover a particular adult with whom they have an interdependent familial relationship with is the same whether that employee is technically married to the other person or not (especially since even for heterosexual couples there can be lots of reasons not to marry, or at least not to marry before beginning that kind of common interdependent familial household). Now, of course you wouldn't want to cover casual relationships, but you can take care of that possibility in other ways, like by requiring cohabitation for a certain period (I think we had to show we'd lived together for three months) or other such demonstrations of intended permanence.

Arguably a marriage is more durable than a domestic partnership (as mine unfortunately attests...) because it's a lot harder to get out of. But then if that's the reason justifying withholding of these kinds of benefits from heterosexual domestic partnerships then it's one more reason in favor of why marriage needs to be available for homosexual couples too.
7.8.2006 1:27pm
Aidan Maconachy (mail):
I think the incremental approach is somewhat confusing to be honest. It will create all sorts of legal anomalies and exceptions, quite aside from the implied ignomy of having to settle for an interim arrangement.

While I'm pro gay marriage, I don't think the traditional and homosexual definition is "the same". Try polling the globe on it. With the massive resistance in Asia, Africa and the Middle East - the numbers will demonstrate clearly that gay marriage is the province of progressive Westerners. So sociologically speaking there are distinctions that can reasonably be drawn between hetero and homosexual unions.

Having said that, I don't think one should be regarded as superior to the other. Homosexuals should have the right in a free and democratic society to marry if they choose, and assume all the rights and obligations that follow from that choice. Moreover they should not be subjected to the humiliation of bans and or incremental half-measures. I find it embarrassing that we are treating fellow citizens in this cavalier fashion, when it can be demonstrated that many gay unions are in fact models of conjugal harmony, and often involve children from former straight unions.

It's time for America to demonstrate that is is indeed "the land of the free" and remove the manacles from our gay fellow citizens on this marriage issue.
7.8.2006 1:36pm
plunge (mail):
How's this for irony: I married my wife because there was no other way to get health benefits. As a straight couple, our domestic partnership wasn't good enough. If we had been a gay couple, the hospital at which she worked would have given me benefits as a domestic partner. When I needed health insurance, badly, we joked that there were two ways I could afford to get it: get a sex change or get a marriage. Marriage cost less.

Strange how I haven't had any anti-gay marriage advocates breaking down my door to condemn what I did though.
7.8.2006 1:40pm
Aidan Maconachy (mail):
I didn't include a display email address and url when I first registered with Volokh. I'd like to do so now but can't figure out how I can get into my account detials to modify the info. Anyone know?
7.8.2006 1:44pm
Jimbino's Right:
Jimbino's Right of Course.
Now that gay marriage is clearing up any remaining notions that marriage has anything to do with procreation. (furthering the handiwork of no-fault divorce - removing notions of commitment and out-of-wedlock parenting - removing notions of childrearing), it is entirely clear that Massachusetts marriage now only functions to bestow financial and legal privileges upon the linking of 2, unrelated persons.

And so, he rightly asks: Why is it that couples are privileged over singles? (Or more fun, 3s and 4s and 5s?)
Simiarly: Why are unrelated persons privileged over a related mother-daughter? (Or more fun, brother-sister?)

And he rightly concludes, since marriage serves no other purpose than to confer financial and legal privileges, it cannot be justly administered to only two, unrelated parties.

And thus marriage should be opened entirely (and thus become meaningless), or abolished altogether.
7.8.2006 2:13pm
Hamilton Lovecraft (mail):
There is first the fear of a sex-discrimination claim if a business or government continues to offer unmarried same-sex domestic partners benefits while not offering the same benefits to unmarried opposite-sex domestic partners. ... Heterosexual employees (and citizens in general) will want to know why gay employees and their unmarried partners should continue to get what will now look a lot like "special rights" to domestic partners benefits unavailable to anyone else.

This concern is somewhat valid whether or not marriage is available to same-sex couples, which is why so many companies currently offer benefits to domestic partners of any gender.
7.8.2006 2:25pm
John Anderson:
There is indeed a "lot of baggage" around the word "marriage" though it seems simple to me. Marriage is the religion-recognized joining of people in a domestic relationship not concerning a blood tie. What the State offers is much the same, but (usually) without an explicit religious tie-in or restriction. The State has long used the word "marriage" as short-hand for its civil and secular contract, but this is the same as our use of the word "sun" to refer to Sol - any light-emitting star is a "sun", but only Sol dominates our planet's sky, and in the same manner a religious marriage is a specific subset of the State's use of the word.

The word "marriage" is being used for two rather different things. Don't get hung up on the religious side - that is where marriage is. But on the State side, it is a license recognizing a [limited] partnership, no more (and no less). Its purpose, when some truly brilliant bureaucrat dreamed it up for The Republic of Rome (pre-Empire) was and remains to ease a burden on government by being a cheap and easy (and sneaky, as the reason was obscured even then) way for people to achieve the effect of a will without having to contemplate death or even realizing they were doing so. In return for the license fee (collected by priests, in turn administered or licensed by the State), the State would apply a standard set of rules on the estates of people who died intestate. Before, dying without a will almost guaranteed a legal squabble: now, contesting the distribution of the estate would involve going up against the whole of the government, not just cousin Joe from Widespot-in-Road.

Will a man have to propose a "civil union" rather than a "marriage" then? Again, no: get married by your religious custom, and optionally get the same license as always from the State - no difference, except it may be called something other than a marriage license. Yes, optionally: you can be married within your religion and choose not to get the license, or conversely get the license without a religious ceremony. That is the way it works now! A few states will even forgo the fee, reasoning that a couple co-habiting for a certain length of time have established themselves with the same rights - usually called "common-law marriage".

Will gays, polygamists, polyganists, etc. be able to get the State license? Not unless they already can. Somewhat related, I checked my own State's law a while back: the homosexual thing is not addressed (the drafters fell into the language trap), but I noticed that the religions whose officiators can issue the license are explicitly stated and rather limited. A Shinto priest, for example, is not empowered to sign the license because that religion is not listed. OTOH, a number of judges, the Clerk of the Supreme Court, and oddly one town's sherrif may issue the license, so if you can persuade one to do so it is not clear that it would be illegal.
7.8.2006 2:27pm
Bob Van Burkleo (mail):
This will be the problem in Seattle - their city domestic partnership program is open to all (otherwise would be discriminatory) and over 70% of all partnerships are heterosexual.

Our state supreme court rejected 'separate but equal' arguments on principle decades ago, When advocates of gay-specific civil unions speak up I've always wondered how they will prevent heterosexual couples from demanding access to that license in the same manner homosexual ones are asking for access to marriage. I can see many situations where a couple might want a contract that is only applicable in their own home state.
7.8.2006 2:46pm
Bruce Wilder (www):
Just as a matter of labor law, I think employees ought to have a lot of flexibility to apply the benefits, which they, after all, earn (!!!) to pretty much anyone they have a familial and interdependent relationship with.

Marriage is one such relationship, but there are others, involving a less permanent relationship, or a non-sexual relationship, which, still, ought to be eligible for consideration.
7.8.2006 2:47pm
Jimbino's Right:
Mr. Wilder,

Marriage could be that very vehicle. Marriage is now neither permanent nor sexual by requirement.
7.8.2006 2:57pm
David M. Nieporent (www):
My wife's company offered domestic partnership benefits, intended for gay couples but officially on a sex-neutral basis; my wife and I used them before we got married. For us, definitely inferior: they were deemed taxable income by the IRS because we weren't married. (Of course, the federal government doesn't recognize same-sex marriage, so they're taxable either way for gays.)
7.8.2006 4:00pm
Elliot123 (mail):
The main reason companies extend such benefits is to attract scarce talent. If the company finds it needs to offer benefits to some class to attract the kind of people it needs, then it will do so. If it doesn't see that need, then it will cut back on the benefits. (Yes, I recognize this must comply with law.)

And the relationship after a civil marriage is whatever the couple decides it will be. It can be oriented towards raising kids or passing the crack pipe.
7.8.2006 4:40pm
SacDavid (mail):
I'm not sure why a sex discrimination claim by heterosexuals because of exclusionary domestic partnership benefits would have any more merit than a sex discrimination claim by gay couples because of exclusionary marriage laws would. Dale was quite successful, I thought, in showing why courts pretty much reject that claim as a constitutional matter in the marriage cases. I think exactly the same reasoning would lead to exactly the same conclusion in domestic partner benefits cases.
7.8.2006 4:40pm
BobN (mail):
For generations, heterosexual America gives not a fig for its dependent aunts and live-in grannies. Brothers are, by statute no less, unable to be their brother's keeper. The government cares not a whit to encourage anyone to look out for weird Uncle Bob.

Then, out of the shadows come the gay people. They start coming out of the closet and exposing their committed relationships to the light of day. All of a sudden, "conservatives" are jumping up and down about the forgotten sisters, the disadvantaged cousins, the uncared-for roomies. In no time, the crescendo of compassionate hysteria (or hysterical compassion) forces the government to recognize all the nuances of "family" besides the nukular one.

And they say gay people serve no societal purpose... Hah!
7.8.2006 6:00pm
jimbino (mail):
I curious as to how the Globe plans to treat an employee with an out-of-state or out-of-country partner. If they were a heterosexual married couple, the company would confer partner benefits regardless of where either one had citizenship. But since Massachusetts SSM is limited to residents, it seems that by the company's logic they would have to go on offering partner benefits to those who still can't legally get married in Massachusetts. Don't a hell of a lot of citizens and residents of NH work in Massachusetts?

Here in Austin, Texas, we have companies like Dell that offer domestic partner benefits to gay, but not hetero couples. As a hetero single, I have always dealt with the matter by never considering taking an employee-status job with companies like Dell. I have always done quite well working for such companies on a 1099 contract basis, in the same job at twice the pay, and I provide my own damn benefits and those of my partner. And the reason that Dell will pay me double per hour is based on their realization that they don't have to worry at all about my benefits or my partner's pregnancy expenses of some $8000 per unneeded baby.

That's no way to run a country, of course. But that fact that the labor market can so easily be divided between singles and gays on 1099s, on the one hand, and marrieds on W-2s, on the other, does afford the marriage-disenfranchised back-door access to equal, if not better, pay and benefits.
7.8.2006 7:22pm
plunge (mail):
The point of marriage, really, should be to start new families outside of blood ties. Two people, unrelated, find each other, and commit to be each others partner and co-conspirator for life. That IS something worth the law recognizing and bestowing special things upon in order to help the union work and function in society.
7.8.2006 7:24pm
jimbino (mail):
Plunge,

You are part of the problem. From where, exactly, did government get the right to favor folks who "start new families outside of blood ties"? Nature doesn't generally favor plants' or animals' starting families outside of blood ties, nor did God in the case of Cain and Abel, their sisters, children or grandchildren.
7.8.2006 7:49pm
Ship Erect (mail) (www):
Nature doesn't generally favor plants' or animals' starting families outside of blood ties

You realize that marrying your sister is a bad idea for the health of any future children, right?
7.8.2006 8:02pm
jimbino (mail):

You realize that marrying your sister is a bad idea for the health of any future children, right?


As an unapologetic rationalist, I must say I fail to make the connection between marrying anyone and future children. Marriage, sex, love, procreation and cohabitation are totally independent, and have been so since biblical times and throughout human history. David loved Absalom and Bathsheba, for example, Jesus loved us all, the Jews made babies throughout Palestine, etc. Americans are confused.
7.8.2006 8:18pm
Ship Erect (mail) (www):
Well... yes, but my point was a roundabout way of saying that your "nature likes monocultures" idea is wrong. Nature kills tiny groups of organisms that choose mates from within; we'll quickly die off if our children come from having sex with family members.
7.8.2006 11:23pm
DG:
Nature kills tiny groups of organisms that choose mates from within; we'll quickly die off if our children come from having sex with family members.
Probably true for siblings, but perhaps a bit more complicated for cousins and beyond. See here.
7.9.2006 3:54am
Hamilton Lovecraft (mail):
Marriage, sex, love, procreation and cohabitation are totally independent, and have been so since biblical times and throughout human history.

That's a new one on me. I'd grant "nonidentical", but "totally independent?"
7.9.2006 2:54pm
hjgu (mail):
7.9.2006 9:50pm
PaulV (mail):
the old german teeth in an English mouth problem of outbreeding
7.10.2006 12:01am
IB Bill (mail) (www):
Marriage, sex, love, procreation and cohabitation are totally independent, and have been so since biblical times and throughout human history.

LOL. I wonder how Jimbino would feel if someone propositioned his significant other and he/she accepted, using the argument, "marriage, sex, love, procreation and cohabitation are totally independent."
7.10.2006 11:12am
raj (mail):
jimbino7.8.2006 6:22pm

I curious as to how the Globe plans to treat an employee with an out-of-state or out-of-country partner.

Read the article that Carpenter links to. According to the article--last paragraph--if the Globe employee resides out of state (MA), but works in MA, the Globe will continue his or her Domestic Partner benefits because the employee cannot marry in other states.

--raj
7.10.2006 12:41pm
raj (mail):
Regarding the subject matter of the post, what the Globe is proposing to do--cancelling Domestic Partner (DP) benefits for same-sex partners who reside in Massachusetts, it had been reported that that had been considered by various companies in MA several years ago--when same-sex marriage was becoming a reality in MA. The only thing that is surprising about this is that it has taken the Globe so long to implement it.

It is not surprising that the Boston Herald would be publicizing this. I have seen nothing about this in the Globe. The fact is that the Herald and the Globe, which are competitors in the New England region, have been sniping at each other for the last few years. From a financial standpoint, the Globe is in fairly good shape, but the Herald apparently isn't doing so well.

--raj
7.10.2006 12:50pm
JosephSlater (mail):
I know this is exactly the right blog to make the obvious point that health benefits are a big issue in the context mainly because in the U.S. -- unlike every other industrial democracy -- medical insurance is provided primarily through employers.
7.10.2006 3:43pm
Scott W. Somerville (mail) (www):
Interesting development. When I took Harvard Law's first "Sexual Orientation and the Law" course back in 1991, my classmates were very split over the whole issue of same-sex marriage. The gay men were AGAINST it. My lesbian classmates were for it.

Have you noticed how the media never refer to the issue as "gay marriage" any more? This may reflect a sensitivity to the division within the gay/lesbian ranks.

I can't see the gay men responding to this move positively.
7.10.2006 4:15pm
raj (mail):
Scott W. Somerville 7.10.2006 3:15pm

Have you noticed how the media never refer to the issue as "gay marriage" any more?

Why, no, I haven't noticed that. Indeed, "gay marriage" has been used in the Boston Globe at least five times in the last week or so:

CONSTITUTION TRUMPS ALL, July 9, 2006, EILEEN McNAMARA

VOTE THE BAN DOWN, July 8, 2006

LEADERS OPPOSE BID TO BAN GAY MARRIAGE, July 6, 2006

IN LEXINGTON, FEAR SURROUNDS PLAYERS IN FLAP OVER GAY TEACHINGS, July 5, 2006

ROMNEY HELPS PUSH FOR S.C. GAY MARRIAGE BAN, July 1, 2006

--raj
7.10.2006 4:38pm
David M. Nieporent (www):
Why, no, I haven't noticed that. Indeed, "gay marriage" has been used in the Boston Globe at least five times in the last week or so:
Well, I don't think your examples are the best. Those are all headlines, and headlines always choose shortness over precision. We'd expect, IOW, to see them use "gay" over "same sex" in a headline even if they had made a conscious decision to switch to the latter phrase in their news coverage.

That having been said, I haven't noticed any lessening of the usage of the term "gay marriage" in any context, headline or otherwise.
7.10.2006 5:57pm
BobN (mail):
Gay man marries lesbian. Is that a "gay marriage"?

Marriage laws don't require anyone to prove their sexual preference. They require (or at least assume) standard male biology in one party and standard female biology in the other.

All terms used in this debate are probably wrong. What's really being fought for (and against) is gender-neutral marriage.
7.10.2006 9:09pm