RIGHTS FOR GAY AND LESBIAN COUPLES:
The Recent Debate Stresses Benefits, With New Lawsuits And Legislation

By TOBIAS BARRINGTON WOLFF

Thursday, Dec. 06, 2001

The past ten years have seen a revolution in the debate surrounding the rights of gay and lesbian couples. While the actual rights and benefits that same-sex couples enjoy have remained largely unchanged in most parts of the country, the issue has quickly achieved an unprecedented prominence in the American political scene. As never before, Americans are debating whether, and to what extent, gay and lesbian couples should have access to the many rights and benefits that straight couples take for granted.

Recently, public debate has focused even more narrowly on an issue that promises to revolutionize the way that courts and legislators think about law and the family: the relationship between the formal institution of marriage, on the one hand, and spousal benefits, on the other.

Gay and lesbian couples, shut out of the formal institution of marriage, are challenging the assumption that only married couples are entitled to the support and protection of the State. The resulting court cases and legislative initiatives are raising important issues in constitutional law and family law alike.

In particular, three recent developments - court rulings in Oregon and Vermont, newly enacted legislation in California, and an ongoing suit in Alaska - illustrate the continuing importance of these issues on the American legal scene.

Gay Couples Still Cannot Marry

It remains the case that gay and lesbian couples may not marry anywhere in the U.S. In the much-noted case of Baehr v. Lewin, the Hawai'i Supreme Court issued the groundbreaking holding that excluding same-sex couples from the institution of marriage constitutes discrimination on the basis of sex and (under the Hawai'i Constitution) requires strict scrutiny. On remand (in Baehr v. Mi'ike), the court held a lengthy trial, found that the State could not meet this exacting standard, and ordered Hawai'i to grant gay couples equal access to the legal institution of marriage. Before that ruling could take effect, however, the people of Hawai'i amended their constitution to undo the decision, thereby ending the case.

There have been other recent court challenges on the issue of marriage, most notably in Vermont and Alaska. But, as yet, no gay and lesbian couple has had the opportunity to marry.

Moreover, in 1996, President Clinton signed into law the "Defense of Marriage" Act, which excludes gay and lesbian couples from marriage for all federal purposes and empowers the States to disregard gay marriages, if another State does permit them at some point in the future. Since gay couples cannot yet marry, the "Defense of Marriage" Act has never been invoked. If a State does grant gay couples the right to marry, however, the Act - despite its name - will seriously weaken that marital relationship, denying gay couples federal tax and employment benefits and empowering States to disregard the marriage entirely if the couple travels or changes their residence.

Benefits and Marriage Need Not Be Linked

In a series of recent court challenges and legislative initiatives, gay and lesbian couples have begun to request, not marriage itself, but some of the state benefits that are traditionally associated with marriage.

One area they have focused on is state employment benefits. The married spouses of state employees receive a host of important benefits, from health insurance coverage to retirement and bereavement support. Traditionally, these special benefits have only been available to married husbands and wives. Committed gay and lesbian couples have begun to ask why they are not entitled to share in these benefits, as well.

Discriminatory Definitions of Marriage

The definition of marriage, in all fifty States, discriminates against gay and lesbian couples - they are categorically excluded. When a State offers employment benefits only to married couples, and gay and lesbian couples are singled out and excluded from marriage, the result is that gay and lesbian couples are singled out and excluded from the employment benefits, as well.

Gay and lesbian couples have now begun to challenge this use of marriage as the exclusive touchstone for the conferral of important benefits. While States may believe that they have good reasons for preventing committed gay and lesbian couples from getting married, it is much more difficult to justify cutting those couples off from any form of state support.

One Oregon court has recently agreed. In 1998, an Oregon appellate court ruled in Tanner v. Oregon Health Sciences University that Oregon could not limit benefits to married husbands and wives employed by the State when doing so would categorically deny those benefits to committed gay and lesbian couples. A case raising similar claims is currently pending before the state courts of Alaska.

Legislative Reforms Affecting Benefits

Gay and lesbian couples have had even more success seeking equal benefits from their state legislatures. In Hawai'i, at the same time that the legislature submitted the constitutional amendment denying gay and lesbian couples the right to marry, it granted gay and lesbian couples many important legal protections. For the people of Hawai'i, equal benefits were apparently more palatable than equal marriage rights.

Other States have recently followed suit, including Vermont, which has instituted a "civil unions" system that grants gay and lesbian couples broad protection, and California, which enacted a domestic partnership law last month that includes such important benefits as health insurance, unemployment and disability coverage.

New Legal Frontiers

These judicial and legislative reforms force us to draw careful distinctions between the legal institution of marriage, on the one hand, and marriage as a private or religious bond, on the other.

In focusing our attention closely on the legal and material significance of state-supported marriage, pioneering gay and lesbian couples are making powerful claims for equal treatment. At the same time, these couples are reminding us of what the legal institution of marriage does, and does not, mean.

No State can legislate religious belief or private moral conviction, nor should any State try. When the State creates a legal institution of marriage, it is not endorsing any particular view about the religious significance of marriage. Rather, the State's role is to provide support to committed couples and their families, contributing to the stability and coherence of our society.

While many of us invest a great deal of personal and religious significance in the institution of marriage, the State's investment is one of financial, legal and social support, and that support should be available to gay and lesbian couples on equal terms. The best "defense of marriage" is to entrust the definition of its religious significance to religious institutions, rather than the State.

The claims of gay and lesbian couples for equal treatment under the law do not threaten marriage, as some have argued. Rather, they help to clarify the proper role of the State and to protect private religious belief from state regulation.


Tobias Barrington Wolff is a professor of Constitutional Law and Civil Procedure at U.C. Davis. His e-mail address is tbwolff@ucdavis.edu.

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