Originally published in The Wall Street Journal June 2, 1998.
IN 1996, NYNEX, now part of Bell Atlantic, began offering health benefits for partners of employees in long-term, committed homosexual relationships. "We wanted to be fair to our employees," says a company spokesman. "If same-sex domestic partners could get married, then there would be no need for this policy."
Paul M. Foray, a cable splicer with 28 years on the job, applied for the benefits last year but was turned down. The reason: His partner was a woman. On May 18 he sued Bell Atlantic in federal court, charging the company's policy violates U.S. laws against sex discrimination.
"Given the fact that his domestic partner is female," the complaint says, "Foray was denied benefits because he is a male." If the courts agree with himand his argument is plausibleit will become legally risky for companies to offer partner benefits to gay employees without also offering benefits to heterosexuals who are, to use a quaintly judgmental phrase, "shacking up."
Mr. Foray's suit is the first of its kind against a private employer, but state and local governments are under the gun already. In 1996 Oakland, Calif., set up a gay-only partnership program for city workers, but the state labor commissioner ruled last year that excluding heterosexual couples constituted illegal discrimination. In April, after a long battle, Oakland gave up and opened its program to unmarried heterosexuals. In February, the city attorney of Santa Barbara, Calif., likewise opined that gay-only benefits were illegal, and the city extended its program to include heterosexuals.
Why doesn't Mr. Foray marry his partner? Through his lawyer, he says, quite reasonably, that that's his own business. Unmarried cohabitation suits many peoplemore and more of them, in fact. Since 1985, the number of unmarried opposite-sex couples living together in the U. S. has doubled, while the number of married couples has risen by only 7 percent. The proportion of unwed cohabiting couples who have children under 15 (now about one third) has grown even faster.
For some people, cohabitation works; but it is not the same as marriage. Research suggests that cohabiting women are more than twice as likely as married women to be victims of domestic violence, and more than three times as likely to suffer depression; cohabiting partners tend to be less sexually faithful and less likely to invest together. "Partnership" is less durable than marriage, which shouldn't be surprising. Marriage, after all, is much more than a legal certification of a pre-existing relationship; it uses a thousand subtle social mechanisms - like rings, weddings and joint invitations - to help bind couples together.
Mr. Foray's discrimination complaint suggests that he understands this. His filing says that Bell Atlantic's policy is "imposing burdens on the employee such as the need for health tests, the need for a marriage ceremony, and the need for a divorce proceeding to terminate the relationship." What a bother. Hawaii's domestic-partner law, which applies to straight and gay couples, allows the "reciprocal beneficiary" relationship to be terminated by either partner without the other's consent or even knowledge.
The trouble is that there are a lot more heterosexuals than homosexuals. In companies where partner benefits are offered to all, two thirds of the users are typically heterosexual, according to the Spectrum Institute, a group that advocates "inclusive definitions of family." So, with or without Mr. Foray's lawsuit, the attempt to reserve "partnerships" for same-sex unions is likely to prove unsustainable. Gay activists who want partner benefits are more than happy to ally themselves with heterosexual supporters of such benefits; the "pro-family" lobby dislikes unmarried partner benefits of any sort. There is no one to lobby for the most sensible policy: restricting partner benefits to people who can't legally marry.
Thus, all three of the states and all but a handful of the municipalities that offer domestic-partner programs for their workers include opposite-sex couples; so do the large majority of corporate programs. Mayor Rudolph Giuliani's new proposal to give domestic partners in New York City most of the civil benefits of marriagefrom jail visitation to joint burial in the city cemeterymakes no distinction between homosexuals and heterosexuals.
The sad irony is that the option that clears up the whole mess most humanely gay marriage is also the option that social conservatives are least willing to consider. Society should send a simple message: If you want the benefits of marriage, get married. To legalize same-sex marriage and eliminate domestic partner programs would reinforce that message instead of undermining it. Instead of marriage-lite and regular marriage, there would once again be only marriage.
I don't expect that social conservatives will wake up tomorrow morning and embrace gay marriage. They will instead fight rear-guard actions against partner benefits to little avail. Marriage will be weaker as a result. Being against gay marriage and being pro-marriage are not, as it turns out, the same thing.