5. Congress must protect the rights and health care rights of gay and lesbian couples.
Fairness in civil marriage is vital to ensuring quality, affordable health care for the LGBT community. Civil marriages afford gay and lesbian partners and families critical protections and benefits, such as employer-provided health insurance, hospital visitation rights, and medical decision-making authority. Furthermore, there is compelling scientific and medical data showing that civil marriage improves physical and mental health for LGBT individuals and their families. 26
In the ten states 27 that currently provide civil unions or domestic partnerships to gay and lesbian couples, these couples face many health care challenges, including obtaining employer-provided health insurance for their families. For instance, public employees can obtain health care benefits for spouses but not for domestic partners. When unmarried partners are indeed eligible for coverage, the employee is subjected to a payroll tax on the health insurance, while the married employee pays no such tax. 28
Because the protections encompassed by civil unions and domestic partnerships are defined by state legislatures, they are not portable between states, and their recognition may vary even within a state. By contrast, civil marriage carries a strict set of rights and protections. 29
In 2004, Massachusetts became the first state to issue marriage licenses to gay and lesbian couples. On May 15, 2008, California became the second 30. In both cases, the State Supreme Court ruled that limiting civil marriage to straight couples violated the state constitution. However, marriage licenses issued to gay and lesbian couples in any state are not recognized federally due to the Defense of Marriage Act.
The Defense of Marriage Act (DOMA) bars federal recognition of gay and lesbian marriages by restricting marriage to “a legal union between one man and one woman as husband and wife.” 31 Because of DOMA, gay and lesbian spouses legally married in the United States have no rights at the federal level. For instance, gay and lesbian spouses must pay federal taxes on the employer’s cost of the partner’s health insurance, and spouses from other countries cannot petition for permanent residency.
DOMA also enables states to pass similar legislation barring access to benefits for gay and lesbian partners. To date, forty states have enacted their own DOMA legislation. 32
The Federal Marriage Amendment (FMA) has been introduced to Congress many times since 2002. If approved and ratified, the FMA would define marriage as the union of a man and a woman in the United States Constitution and preclude all states from providing rights to gay and lesbian couples and their families.
Congress must pass legislation to repeal the Defense of Marriage Act (DOMA) and recognize marriage licenses granted to gays and lesbians. State laws should provide equal protection, fairness, and freedom to all couples, straight and gay, as opposed to the “separate but equal” model of civil unions and domestic partnerships for gays and lesbians. At the state level, legislatures should promote equal treatment under the law by (1) eliminating legislation that restricts the rights and benefits of gay and lesbian couples and (2) recognizing civil marriages for gay and lesbian couples.
