I posed this question in the comments on another post, but it occurred to me that it might be interesting to lift the discussion out of the comments and open it up to everyone who reads here. Here’s what I asked in that comment thread.
What rights and protections do you think same-sex couples should have? Which do you think they shouldn’t have?
Were it in your power, which would you grant them? Which would you withhold?
List them by category. (“should have”/’shouldn’t have”)
Are there rights that same-sex couples don’t need, but that heterosexuals do? Or are there equivalent needs in same-sex couples as in heterosexual couples? Are there rights and protections that same-sex couples simply shouldn’t have? I thought it would be interesting to hear what everyone had to say in answer to those questions. But first, it might be a good idea to review what’s already out there.
This is about the best summary I’ve seen thus far of the rights and protections that same sex couples are currently denied. Broadly, they include:
- Hospital Visitation Rights – Married couples have the automatic right to visit each other in the hospital and make medical decisions. Same sex couples can be denied the right to visit a sick or injured partner in the hospital.
- Health insurance – Same-sex couples have no automatic right to visit one another in the hospital or make medical decisions for one another. Having medical power of attorney documents may help, but there’s no guarantee and hospital will recognize those documents.
- Spousal Privilege – Same-sex couples have no right to refuse to testify against one another. So everything you say, write, email, fax, etc. to your partner is admissible in court and can be used against. you.
- Inheritance rights – Same-sex couples have no automatic rights to inheritance in the absence of a will.
- Family leave – Same-sex couples have no legally protected right to unpaid leave to care for an ill spouse.
- Pensions – Most pension plans only pay survivor benefits to a legal spouse. Same-sex partners get no pension support for surviving partners.
- Nursing homes – Same-sex couples have no legal right to live together in a nursing home and spend their final years together.
- Home protection – The laws that protect married couples from being forced to sell their homes to cover high nursing home bills don’t apply to same-sex couples. A same-sex partner can be forced to sell, and forced out of the home to satisfy nursing home bills if he/she lives in the home but does not own it.
- Retirement savings – Married people can roll over a deceased spouses 401(k) into an IRA without paying taxes. Same-sex partners must withdraw everything, pay income taxes on it, and lose the tax deferral benefits.
- Taxes – Marries spouses may inherit unlimited property from a deceased spouse, tax free. Same-sex partners pay taxes on any amount over set state and federal limits.
- Social Security benefits – Unless you’re married, you get no Social Security from a dead spouse. If you have kids, they will get it and you may be custodian of it until they’re adults.
Beyond that, as I’ve said before, the government’s General Accounting office tallied up 1,049 rights and protections based on marital status. It will take longer to detail what all of those are, and just how they might or might not apply to same sex couples. But in the time I’ve been writing this blog, I’ve posted about some stories that underscore just how this stuff shakes out in real life.
- There was the friend I wrote about recently who was turned away from from the emergency room, where his partner had been taken after suddenly collapsing at work, and told he could not be given any information because he was not next of kin. He had to leave the hospital and retrieve their legal documents before he could gain admittance to see his partner when a married spouse would have been waved through without question.
- My friend was luckier than Bill Flanigan. When his partner Robert Daniel was hospitalized in Baltimore, the couple had their legal documents with them, including durable power of attorney and documentation that they were registered as domestic partners in California. But those documents were ignored by hospital staff and Flanigan was kept from seeing his partner until Daniel’s mother and sister arrived and by then Daniel was unconscious, with his eyes taped shut and hooked to a breathing tube; something Daniel had not wanted.
- Even having a will didn’t help Sam Beaumont when his partner of 23 years, Earl, died. Oklahoma requires a will to have two witnesses, but Earl didn’t know that and his will leaving everything to Sam had only one. So Earl’s cousins, who disapproved of his relationship and most of whom never spoke to the couple or even came to Earl’s funeral, successfully sued to take away the home and ranch Sam an Earl had shared for 23 years. A married spouse, even in the event of a will lacking enough witnesses, would’ve had the right to automatically inherit at least some of the estate.
- Laurel Hester gave 23 years of service as a investigator for the county prosecutor’s office, only to be denied justice when she requested that the county government to provide domestic partnership benefits as permitted (but not required) by New Jersey state law. Hester was dying of cancer and wished to leave her pension to her partner, Stacee Andree, so that Andree could keep their home after Hester’s death. Her request was denied. It wasn’t until the story attracted media attention, caused people to rally in support of Hester, and eventually drew threats to boycott the tourism-dependent county that the county government finally granted Hester’s request shortly before she died.
- Having a domestic partnership didn’t spare Crispin Hollings any trouble when his partner Eric Rofes died recently. While making funeral arrangements, Crispin had to mount a legal challenge against a funeral home director who refused to recognize their relationship and refused to let Hollings proceed with the funeral arrangements. The funeral home director eventually relented, but no heterosexual spouse would’ve had to face that challenge in the midst of mourning and carrying out a spouse’s last wishes.
- Having a civil union won’t help Robert Scanlon and Jay Baker, even after 30 years together. With Robert facing inevitable decline and death from ALS, the couple will likely have to liquidate all of their belongings to pay for the necessary care. A married spouse, as mentioned before, would at least be able to keep the house.
And let’s not forget that there are states already trying to outlaw not just same-sex marriage but also domestic partnerships, civil unions, and legal arrangements that resemble marriage, ultimately stripping same-sex couples of any rights or protections.
So, considering all the rights and protections granted married couples, which ones should gay couples get? Which ones shouldn’t we get? Should my friend have been barred from his partner’s hospital bed? Should Bill Flanigan have been kept from his partner’s side? Should Laurel Hester have been able to leave her pension to her partner as she desired? Should Cripsin Hollings have been allowed to say goodbye to his partner in peace and honor his partner’s last wishes unimpeded? Should Robert and Jay have to lose everything, including their house?
If it were up to you to decide what rights and protections same-sex couples have, what would you decide?