Dale Carpenter blogs at the Volokh Conspiracy that federal recognition of same-sex marriages could put the kibosh on civil unions and domestic partnerships:
There is also, it should be noted, an effect for unmarried gay couples currently getting benefits from private employers who have recognized domestic partnerships…. Since federal benefits will now be available to same-sex spouses wherever they live, many companies across the country will likely end their domestic-partnership programs. Three decades of experimentation with alternative family statuses like civil unions and domestic partnerships is coming to an end.
That sounds reasonable, except that Wal-mart, the largest retail employer in the U.S., just announced it’s launching domestic partner benefits for employees and their (unmarried) same-sex and opposite-sex partners.
Given the decline in straight marriage, particularly among those with lower incomes, there may yet be a future for partner status, confirmed by employers if not by the state.
10 Comments for “Wither Domestic Partnerships?”
posted by Tom Scharbach on
Dale is probably right, in the long run. As marriage equality becomes the law nationwide, there will not longer be a need for domestic partner benefits to put gay/lesbian employees on a somewhat equal footing with straight employees.
When that day has come, so long as employer-sponsored domestic partner benefits plans (or the lack thereof) apply identically to both unmarried gay/lesbian and unmarried straight couples, “equal means equal” is met. At that point, the employer’s decision will be based on the employer’s assessment of the importance of such programs in recruiting and retaining employees.
But “in the long run” means after the day when marriage equality is the law in every state in the union. Not until then.
At present, gay/lesbian couples are prohibited from marrying in all but 13 states, and marriage is not a practical option for most gay and lesbian couples living in anti-marriage states. For many, travel costs to a free state in order to marry are prohibitive. For others, marrying out of state is a crime (in Wisconsin, the couple would be subject to a $10,000 fine and 9 months imprisonment) under the laws of the state in which they reside. And so on.
I think that it is important, too, to remember that federal law is not the only relevant law in question. Federal law can become a completely level playing field, but so long as marriage is unavailable in the anti-marriage states, the playing field is decidedly not level for gays and lesbians in those states.
What we have been seeing in recent months, as the federal government, state governments and private employers work through the implications of Windsor, is a demonstration of the need for marriage equality in all 50 states. The need will only become more urgent as we progress in the future, because the impact on gays and lesbians left behind will be increased.
posted by Houndentenor on
This is going to be a mess until we have marriage equality in all US states and territories. That may take awhile. (I say that aware that 20 years ago I’d have said we’d never have gay marriage in even one state in my lifetime so what the hell do I know?) The marriage-light status of domestic partnership offered in some jurisdictions was also popular among a lot of straight people who for some reason didn’t want to get married. Some would like to keep both statuses. I don’t really see the point but I’m open to hearing any good reasons for why we would want a two-tiered system of legal relationship statuses.
posted by Tom Scharbach on
That may take awhile.
SCOTUS will issue a Loving-type ruling somewhere between 2018-2022, most likely, followed on by a massive resistance phase in which social conservatives challenge this, that and the other to try to evade/limit/reverse the ruling. By 2025-2030, marriage equality will be accepted as the status quo, and people will wonder what all the ruckus was about 15-20 years earlier.
It is moving faster than I ever thought it would, but “fast” is a relative term.
posted by Tom Scharbach on
The marriage-light status of domestic partnership offered in some jurisdictions was also popular among a lot of straight people who for some reason didn’t want to get married. Some would like to keep both statuses. I don’t really see the point but I’m open to hearing any good reasons for why we would want a two-tiered system of legal relationship statuses.
In most (all, I think) cases, state-sanctioned marriage-equivalent civil unions are restricted to same-sex couples, a legal compromise intended to provide grant protections to gay/lesbian couples while continuing state-sanctioned legal discrimination. State-sanctioned civil unions are dead as a rock, constitutionally. It is just a matter of time.
You raise an interesting question, though. Are there a significant number of straight people who would prefer “marriage lite”?
I don’t know, but a few states (Arkansas, and I think one or two others) have tried something like that, with “Covenant Marriage”, creating a two-tier marriage regime. “Covenant Marriages” cannot be dissolved except in cases of adultery and/or abandonment, as I understand it, while “Marriage” is “no fault”. Few Arkansans, despite the high proportion of self-professed Christians, have opted for “Covenant Marriage”, and the two-tiered system seems to have lost its appeal.
A domestic partnership tier would, presumably, offer lesser rights/protections (e.g. Wisconsin’s Domestic Partnership Act, which grants spousal inheritance rights and medical-decision rights, but doesn’t otherwise replicate marriage). I know a number of unmarried straight couples, mostly my age or older, where that is all they need, and who might well become domestic partners if that was an option.
posted by Jorge on
That sounds reasonable, except that Wal-mart, the largest retail employer in the U.S., just announced it’s launching domestic partner benefits for employees and their (unmarried) same-sex and opposite-sex partners.
Given the decline in straight marriage, particularly among those with lower incomes, there may yet be a future for partner status, confirmed by employers if not by the state.
…..
An interesting sign of the decline of marriage, but not the most threatening.
posted by Tom Scharbach on
Carpenter: A couple can fly to San Francisco in the morning, get married in the afternoon, and be back home in time for the reception.
I wonder if Carpenter knows any gay and lesbian couples outside the economic elite. I just checked, and the round-trip flight cost from the nearest real airport to San Francisco is a minimum of $2,000-$3,000 per couple, Economy class, and a total of 18 hours in the air.
I realize that for a tenured law professor like Dale, that kind of money is an inconvenience, not an obstacle. But for most people living in rural areas on rural wages in real jobs, that’s a chunk of change.
I don’t get the mindset of rich gay conservatives who live in “safe” enclaves in gay-friendly cities. We live in very different worlds. Let me put it this way: To my way of thinking, having to travel out of state and risk criminal prosecution to marry, something that a straight couple can do by driving to the county courthouse 10 miles away, isn’t equality.
posted by Houndentenor on
Having your marriage recognized by the federal government has some benefits, but many of the laws that affect our daily lives are state and local and in most of the country, those marriages will still not be recognized. But I’m glad that you pointed out that most gay conservatives (at least most of the ones I’ve ever encountered) live in liberal areas often in deep blue states or at least deep blue cities. They then complain that it’s more of a problem being a Republican among gays than gay among Republicans. I don’t doubt that’s true in LA or NYC. It would be quite another story if they lived in Mississippi or Alabama.
posted by Doug on
Those wealthy gay conservatives are just looking for a way to justify their tax cuts and pretend we have equality.
posted by lisa on
You are uninformed on this subject.
Walmart makes employees contribute heavily to employee benefits. Without ERISA including domestic partners, domestic partner benefits are NOT tax deductible payroll deductions (like spouse and child medical coverage) and therefore 50% higher in real dollars because they are AFTER tax payroll deductions.
posted by Kosh III on
‘I don’t get the mindset of rich gay conservatives who live in “safe” enclaves in gay-friendly cities.”
AMEN!
I dare Stephen or this Carpenter person to come to Centerville TN(birthplace of Minnie Pearl) and stand holding hands in the communion line at a Church of Christ.
Funeral expenses are his responsibility.