Two New Lawsuits Challenge DOMA

[Elizabeth502]

Two new lawsuits filed by Gay and Lesbian Advocates and Defenders and the American Civil Liberties Union challenge the Defense of Marriage Act, the 1996 law that prohibits the federal government from recognizing same-sex marriages.The lawsuits follow a ruling from a federal judge in Massachusetts in July that struck down the section of DOMA that discriminates by limiting marriage to one man and one woman for federal purposes. The Obama administration is appealing that decision.

According to The New York Times, “The two new lawsuits, which involve plaintiffs from New York, Connecticut, Vermont and New Hampshire, expand the attack geographically and also encompass more of the 1,138 federal laws and regulations that the Defense of Marriage Act potentially affects — including the insurance costs amounting to several hundred dollars a month in the case of Ms. Pedersen and Ms. Meitzen, and a $350,0000 estate tax payment in the A.C.L.U. case.”

advocate.com/News/Daily_News/2010/11/09/Two_New_Lawsuits_Challenge_DOMA/

nytimes.com/2010/11/09/us/09marriage.html?_r=1&hpw

 

[Elizabeth502]

In my opinion, all these attempts – in the context of what the plaintiffs claim they are trying to do – simply develop another level of discrimination.

Legal contracts should not be dependent solely on romantic partnerships, period. They should be extended to include equally (in substitution) the designated party or parties chosen by the owner (of the insurance policy, the estate, etc.) If I have a family friend I want to donate my estate to, I should be able to do that if I so designate in advance. I should be able to name a beneficiary on an insurance policy, or a vistor at my hospital bedside, to be a straight single elderly friend. Etc.

Remove the limitation entirely and the lawsuits will not have sufficient substance. There could still be a default assignment if the person did not designate a different party, but anything other than a traditional marriage – far exceeding anything called a “gay marriage” – should be able to be included in contractual arrangements in an era when so many nonstandard contractual arrangements (including housing, including business arrangements) are so prevalent.

 

[jilly4ski]

In my opinion, all these attempts – in the context of what the plaintiffs claim they are trying to do – simply develop another level of discrimination.

Legal contracts should not be dependent solely on romantic partnerships, period. They should be extended to include equally (in substitution) the designated party or parties chosen by the owner (of the insurance policy, the estate, etc.) If I have a family friend I want to donate my estate to, I should be able to do that if I so designate in advance. I should be able to name a beneficiary on an insurance policy, or a vistor at my hospital bedside, to be a straight single elderly friend. Etc.

You already can do this, the only plans that are restricted are benefits regulated under ERISA (government regulated retirement/health insurance plans). If you are married, your spouse has to sign a waiver of rights, for you to give those benefits to someone besides the spouse, otherwise if you are single, the beneficiary can be anyone you want.

Remove the limitation entirely and the lawsuits will not have sufficient substance. There could still be a default assignment if the person did not designate a different party, but anything other than a traditional marriage – far exceeding anything called a “gay marriage” – should be able to be included in contractual arrangements in an era when so many nonstandard contractual arrangements (including housing, including business arrangements) are so prevalent.

As far as estate tax purposes, I completely understand why the government would want to restrict that to married couples only. Generally if you make a transfer to your spouse, it is tax free (until that spouse dies). But make a transfer to anyone else then you (ie your estate) have to pay taxes on it. (Of course this only applies to people who have more that $3.5million in their estate last year and nobody paid federal estate tax this year, though next year it reverts to $1million, if congress doesn’t get off their behinds ). But if you allow people to just randomly select a person to receive tax free transfers, then no one would ever pay estate taxes. It would be a meaningless tax. As long as the government decides that the estate tax is a tax that they deem important, then it doesn’t make sense to allow people to make just anybody eligible for a tax free transfer. They have to make it semi difficult and serve a purpose (and yes I believe that “traditional” marriage serves a purpose).

 

[Elizabeth502]

They have to make it semi difficult and serve a purpose (and yes I believe that “traditional” marriage serves a purpose).

You seem to miss my point. I also think that traditional marriage serves a purpose. In fact, you will find no one on this forum more passionate for traditional marriage than myself. But that’s not at all the point. The point is that entire crux of the gay “marraige” argument rests on a supposed restriction of “rights.” When you eliminate those restrictions, you eliminate the argument. The two exceptions you noted are still exceptions, and if gays find economic & tax loopholes that apply to marrieds but not to them, they will continue to (literally) make a federal case over it and demand the title.

There are all kinds of ways to solve all the financial exceptions that currently exist, without at all jeopardizing traditional marriage. And the legal argument that should be made, is that creating unique opportunities for nontraditional couples does by definition discriminate against other nontraditional associations of affection. You shouldn’t have to get in bed with someone to create a contract. Mandating a sexual relationship with someone as a condition of benefitting from economic opportunities that others enjoy violates Equal Protection every bit as much as gays claim that their not being “married” violates theirs.

 

[Elizabeth502]

(continuing)
Of course, many will legitimately complain (as do I!) that the State provides incentives for traditional marriage through economic benefits. I agree. The point is, the gay marriage ship has sailed. Their entire argument is that if marriage is a privilege, they want it, too. So stop making it such a unique privilege.

What I see ahead as a possibility is a moral victory for traditional marriage as long as marriage doesn’t have to be widened to include nontraditional arrangements. That is still enough of an incentive for traditional marriage: social approval. Most people don’t have Cohabitation Ceremonies, but people still show up for weddings, and the social acceptance of marriage is still a powerful incentive. I see this all around me. People who have children out of wedlock, or who live together, are viewed very differently than couples who are married.

If I have to make that tradeoff (obviously it’s not up to me), I as an individual would far prefer that than all 50 states accepting gay “marriage.” And I think the American people as a whole would be more friendly to that idea than continuing to fight state by state, ballot measure by ballot measure, court by court, election by election.

If the privileges are not “separate,” there’s no separate/not equal argument.