Let’s Celebrate the End of DP Benefits

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Some LGBT advocates can’t recognize a sign of victory, or feel it’s not in their organizational interest to do so.

As the Washington Blade reports in Future of domestic partner benefits uncertain, “the U.S. Supreme Court’s historic ruling in June legalizing same-sex marriage in all 50 states…has prompted more private sector employers as well as public employers…to drop domestic partner benefits for their employees.”

Remarked Camilla Taylor, an attorney with Lambda Legal Defense and Education Fund, “that’s unfortunate because we believe people should not have to get a legal marriage in order to be respected as a family.”

But this isn’t about “respect”; it’s about reasonably limiting employer-provided benefits to spousal relationships with a commitment to permanency, as demonstrated by becoming a legal family unit with mutual obligations and responsibilities toward each other.

Moreover, the Blade reports:

Lambda Legal and several other national LGBT rights organizations, including the Human Rights Campaign, have issued statements calling on employers to retain domestic partner benefits for unmarried employees.

Some LGBT rights advocates have said forcing employees in a same-sex relationship to marry as a condition for receiving partner benefits such as health insurance coverage could subject them to discrimination in states where anti-LGBT discrimination remains legal.

News flash: If you’ve signed up with the HR department to receive same-sex domestic partner benefits, your employer already knows you’re gay.

While the activists want to paint the ending of DP benefits as a retrenchment, it’s just the opposite. And the employers ending these stop-gap programs haven’t suddenly turned anti-gay. As the Blade noted, according to corporate benefits attorney Todd Solomon, “the companies he knows that have dropped domestic partner benefits have a record of being LGBT supportive due, in part, to their earlier decisions to promote those benefits to same-sex couples that were barred by law from marrying.”

Which, of course, makes sense.

In a companion story, State Dept. considers phasing out DP benefits, the Blade reports that a gay entry-level Foreign Service officer said:

the State Department’s domestic partner program “was the thing that really made” him “feel welcomed” in the agency.

“While it’s great that we can get married much more easily now, my partner and I are not looking forward to being forced into a shotgun marriage due to a policy change that takes away the benefits we were promised.”

Sorry, but absent a contract, benefits are subject to change. And an employer doesn’t owe your boyfriend or girlfriend subsidized health care.

15 Comments for “Let’s Celebrate the End of DP Benefits”

  1. posted by Tom Scharbach on

    Now that marriage equality is a fact-on-the-ground in all states, this is a simple issue – equal does mean equal.

    If an employer elects to offer domestic partner benefits to unmarried couples, straight and gay/lesbian, the employer’s action meets the “equal means equal” test. If an employer elects to offer no domestic benefits to unmarried couples, straight or gay/lesbian, the employer’s action meets the “equal means equal” test. If an employer differentiates between unmarried couples, offering domestic partner benefits to unmarried straight couples but not to unmarried gay/lesbian couples, or vice versa, that does not meet the “equal means equal” test.

    We’ve discussed this before several times (see, for example, “Domestic Partner Benefits Are (Almost) Passé” by Stephen H. Miller on January 15, 2015; “Wither Domestic Partnerships?” by Stephen H. Miller on September 19, 2013) and I’m not sure what there is to add at this point.

    I do have a caveat to Stephen’s celebratory mood exhortation, though.

    Where couples (either straight or gay/lesbian) have entered into domestic partnership programs sponsored by employers, the couples have often entered into legal arrangements (wills, partnership agreements and so on) that are designed around the domestic partner benefits programs. Accordingly, I hope that employers that elect to discontinue domestic partner benefit programs (again, affecting either straight or gay/lesbian couples), the employers will give adequate notice to employees enrolled in such program, allowing the employees time to marry and make the necessary legal rearrangements.

  2. posted by Wilberforce on

    I don’t know enough about the issue to say definitively. But domestic partner benefits seem kind of unfair to single people. On the other hand, Stephen’s position here is easy to understand. The benefits probably lessen profits for investors. And that’s a bad thing. So in Stephen’s mind, getting rid of them is a good thing.

  3. posted by Mike in Houston on

    While I agree in principle that domestic partnership benefits should be superseded by marriage benefits, I also understand that there are problems that should not be discounted,
    especially since Stephen (& other homocons like Jorge) want to enshrine discrimination against legally married same-sex couples.

    A marriage license is a public record — which can be used by someone to discriminate against someone based on their sexual orientation; something that is not only not unlawful in many states & localities but that discrimination is something that Stephen (& Jorge) thinks is acceptable.

    So, how about this: LGB people should not be discriminated against because of their sexual orientation… regardless of whether they are in a legally sanctioned marriage or not. (Not that Stephen or Jorge would sign off on that without allowing certain Christian folks the ability to continue to discriminate against LGBT people without any penalty – even social opprobrium.)

    • posted by Jim Michaud on

      Mike, aw c’mon man! You’re forgetting that Stephen (like other homocons living in comfy blue areas) never had it cross their minds that a public record like a marriage license would be used against them. They have all the protections they could ever want. Who cares about the poor dude/gal living in a hostile red area? It’s up to them to just up and move to a blue region they harrumph. This situation was what crossed my mind when I read his post. Jeez, I wish these folks would break out of their gay positive ghetto and live in a small town (no, not a college town) in the Deep South. Try it for just a week. They would come back crying for their mamma.

      • posted by Houndentenor on

        I’m for equal rights. So long as the same rules apply to both same-sex and opposite-sex couples, I’m fine with it. I’ve heard arguments both pro-and con and back when I lived in a blue state I knew far more straight couples in domestic partnerships than gay ones. It makes sense for states to convert DPs into marriages if couples want to continue to receive

  4. posted by Jorge on

    “Let’s Celebrate the End of DP Benefits”

    Let’s not and have everyone retreat to their own hidey-holes instead. There is no chance gays will be of one mind on this.

    “that’s unfortunate because we believe people should not have to get a legal marriage in order to be respected as a family.”

    Hmm, as an employer, if I never meet your spouse-without-the-ring, there is no opportunity for me to respect you as a family anyway, so I don’t really see what the big deal is.

    The majority opinion in Obgerfell, in addition to being a self-pompous ball of Koosh, gave a very eloquent presentation of all the ways gay marriages (excuse me, gay parents) are socially stabilizing and beneficial.

    That means there is a qualitative difference between a a family and two people who happen to be living together while in a romantic relationship.

    Of course families headed by unmarried couples are deserving of respect. But the question is, how do you as an agent that wishes to recognize strong families, tell the difference between an unmarried family and a temporary shack-up? Worse, if you’re in a city/state that does not offer domestic partner benefits, how will you know if the two “divorced?” Marriage is a sign of commitment. The opposite is true: living together outside of marriage is a warning sign that there is no commitment and that the couple may break up without warning and without notice to the community.

    Domestic partnerships had potential for great things for the gay community and perhaps they still do. But the forces of evil and oppression became too powerful in their time, so that nothing less than holy matrimony was able to purify the nation and win dignity for gays and lesbians.

    News flash to Lambda and HRC: If you’ve signed up with the HR department to receive same-sex domestic partner benefits, your employer already knows you’re gay.

    Really?

    Why wouldn’t they assume Mary is just a shortened version of Maryn? Or that Winnie really is the opposite sex?

    Are you telling me the same fat lady in charge of your company health insurance is on a first-name basis with your immediate boss because Obamacare applies (or soon will apply) to small businesses with 20 employees?

    “While it’s great that we can get married much more easily now, my partner and I are not looking forward to being forced into a shotgun marriage due to a policy change that takes away the benefits we were promised.”

    ………

    You asked for those benefits when you signed up. You could have looked at the state of your relationship and said, “hmm…”. What you do not realize is that the conversation you had when you were first hired already forced you into a shotgun marriage. But now you have chosen yet again to look at your relationship and say, “hmm…”. That is your right to do, but to be perfectly honest, I consider it a little aberrant.

    (& other homocons like Jorge)

    Dear, I’m a moderate.

    I am handsome and not close to middle-aged, and I have a full head of hair. You are combat-tested and a sworn enemy of evil. You should be nicer to me.

    A marriage license is a public record

    1) I realize it is theoretically possible for Stephen’s analysis here to be wrong in many different situations, but it seems to me that if you’re gay and register for domestic partnership benefits with your employer, you are not closeted to your employer.

    2) I believe the evidence that the employers removing DP benefits are those with a reputation of being most gay-supportive is decisive.

    • posted by Craig123 on

      Really? Why wouldn’t they assume Mary is just a shortened version of Maryn? Or that Winnie really is the opposite sex?

      A truly uninformed comment. If you’re asking HR to add your partner to the health insurance plan, they need very completed information, including, obviously, gender.

  5. posted by Tom Scharbach on

    The majority opinion in Obgerfell, in addition to being a self-pompous ball of Koosh …

    The Obergefell decision is a direct descendant of , and the inevitable result following from, the reasoning in Romer, Lawrence and Windsor, as Justice Scalia noted in his dissents. If Obergefell is wrongly decided, and the reasoning “Kooch”, then that is also true of the other three cases.

    This is a question of curiosity (I am not going to argue with you about it), but do you think that Obergefell should be reversed? Windsor? Lawrence? Romer?

    • posted by Jorge on

      The Obergefell decision is a direct descendant of , and the inevitable result following from, the reasoning in Romer, Lawrence and Windsor, as Justice Scalia noted in his dissents. If Obergefell is wrongly decided, and the reasoning “Kooch”, then that is also true of the other three cases.

      First things first. You are badly misrepresenting Scalia’s reasoning. In a nutshell, Scalia argued in Lawrence (I’m not sure about the other two) that the Justices in the majority were making things up as they were going along to achieve a political result they favored (he makes this accusation quite often). Their protests that they would not think to extend the ad-libbing to the case of marriage were false. In Obgerfell he gave the same argument.

      Do you really believe what you just wrote about Scalia’s Lawrence opinion, or are you part of crafting the elaborate spoof on it?

      Second, as for the substance of the cases in relation to each other, the slippery slope is a one-way wand. Or to use another analogy, have you ever noticed that mazes on the back of cereal boxes are usually easier to complete backwards than forwards? When you’re at the bottom of the hill looking back, you can only see the way you came. It’s not possible to see the many different ways you could have reached your current location. But when you are at one point looking ahead, you can see multiple possible results. One possible result is to hold your ground and stop.

      Third, there is a huge difference between the right not to be prosecuted for living in a de facto marriage and the right to have a marriage license issued in your name by the government. That difference crosses from the area of fundamental liberty into the area of entitlements.

    • posted by Jorge on

      This is a question of curiosity (I am not going to argue with you about it), but do you think that Obergefell should be reversed?

      I think Obergefell should be rendered moot by a Constitutional amendment recognizing gay marriage as equal to straight marriage. I hope that answers your question.

      Windsor?

      Yes.

      Lawrence?

      Absolutely not.

      Romer?

      I’ve actually never read Romer, so I’ll say no.

  6. posted by Tom Scharbach on

    Do you really believe what you just wrote about Scalia’s Lawrence opinion, or are you part of crafting the elaborate spoof on it?

    Let’s take the dissent in Lawrence. Justice Scalia wrote this:

    State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

    and

    This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

    and

    Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

    I’d say that this is a straight-up warning and legal conclusion. I do not believe that Justice Scalia was spoofing. Nor was I. Nor was the Supreme Court when it cited the earlier cases.

    • posted by Jorge on

      We are going to have to agree to disagree then.

  7. posted by Tom Scharbach on

    Tom: This is a question of curiosity (I am not going to argue with you about it), but do you think that Obergefell should be reversed?

    Jorge: I think Obergefell should be rendered moot by a Constitutional amendment recognizing gay marriage as equal to straight marriage. I hope that answers your question.

    It does, and thanks. In order for a constitutional amendment to be relevant at all, Obergefell would need to be reversed, and a constitutional amendment would not have a prayer of getting either the necessary 2/3 margin in Congress or the necessary approval in 2/3 of the states (Republicans control the legislature in 31 of the 50 at present).

  8. posted by Tom Jefferson 3rd on

    Again. I can see the need to gradually phase out domestic partnership benefits – in an equal means equal environment -.

    However, I also appreciate that sometimes a domestic partnership is a legal contract, so it ain’t gonna happen overnight.

    Also, marriages are public records in America, and many folks realize that getting married on a Saturday, can mean getting fired and evicted on a Monday.

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