Rights vs. Obligations of Marriage

As San Francisco allows thousands of same-sex couples to tie the knot, the rights and responsibilities associated with marriage are taking center stage.

If the licenses are upheld -- and that’s a big if -- will gay and lesbian couples be better off?

California passed domestic partner legislation last year that gives gay couples many of the same benefits as marriage. The law, which takes effect next January, will grant California’s more than 25,000 state-registered domestic partners the same rights, protections, benefits, obligations and duties as married spouses regarding property, children and arrangements after death.

But gay rights activists say there’s still plenty missing: the right to file joint state tax returns, for example, and 1,049 federal rights granted to married couples. Among those are Social Security survivor’s benefits, Medicare and veterans’ benefits, and the right to help naturalize a foreign-born spouse.

Furthermore, marriage rights granted in any state are honored throughout the nation and the world, while domestic partner benefits are limited to California.

Whether the more than 2,800 couples who have received marriage licenses here over the last week will even have a shot at those benefits is an open legal question. About 40 states have laws on the books denying recognition to gay marriage. Blocking the couples’ path in Washington, D.C., is the 1996 federal Defense of Marriage Act, which recognizes only heterosexual marriages.

President Bush declined to say Wednesday whether he would support an amendment to the U.S. Constitution banning gay unions, but he made it clear that he was troubled by San Francisco’s legal experiment.

Last week, San Francisco Mayor Gavin Newsom flouted state law that defines marriage as “between a man and a woman” by ordering his county clerk to alter marriage license forms and issue them to same-sex couples, arguing that to do otherwise would violate the equal protection clause of the California Constitution.

The unions were immediately challenged in court by two conservative groups. One, the Proposition 22 Legal Defense and Education Fund -- represented by the Arizona-based Alliance Defense Fund -- was denied its request to immediately halt the marriages, and both sides were ordered back to court March 29 for a hearing on the merits of the case.

A second group was ordered back to court Friday to argue for a similar stay. That group -- the Campaign for California Families -- filed a writ with the Court of Appeal on Tuesday asking the court to intervene in the case. The writ was denied Wednesday.

So what are the benefits that marriage offers?

In the private sector, many companies offer employee benefits to spouses that are not available to domestic partners. These benefits can include health insurance, life insurance and access to flexible spending accounts for dependent care and unreimbursed medical expenses.

When these benefits are extended to domestic partners, the value of the domestic partners’ benefits is taxed under federal law, said John Small, managing director at Towers Perrin in San Francisco. If the marriage contracts written in San Francisco hold, those benefits may become tax-free, as they are to other married couples.

In addition, state inheritance laws provide rights to spouses that are not granted to live-in partners.

The most significant of those rights: A spouse can automatically inherit the other spouse’s assets at death, without the need to probate the estate.

On the other hand, there are economic costs to marriage too.

For instance, if one partner has a tax debt, marriage makes that debt the joint responsibility of the new spouse. Student loans? Same deal.

For registered domestic partners, the last five years have seen tremendous gains, as state legislation offered a parade of benefits. First, a bill allowed hospital visitation for same-sex partners. Then, rights for those in senior citizen housing. Later came the ability to make medical decisions for partners rendered incompetent, for step parent adoptions, and to get sick leave to care for an ill partner or partner’s child. A law that goes into effect this year offers six weeks of paid family leave to care for a sick spouse.

But perhaps the biggest victory for gay and lesbian couples came with a sweeping bill written by Assemblywoman Jackie Goldberg (D-Los Angeles). Signed into law by Gov. Gray Davis in his final months, it goes into effect next January and includes a wide array of benefits as well as obligations for domestic partners.

It gives the right to financial support and child custody if a partnership is dissolved, and gives survivors the right to collect a partner’s state government benefits.

It also makes partners responsible for one another’s debts and offers protection against disinheritance upon the death of a partner.

Jon Davidson, senior legal counsel for Lambda Legal and one of the architects of the bill, called it “a very significant increase in the rights of same-sex couples who register as domestic partners.”

But the law doesn’t allow for the filing of joint state tax returns or confer any federal rights. Key among those are Social Security survivor’s benefits, said Kate Kendell, executive director of the National Center for Lesbian Rights.

Beyond the legal benefits, however, are plenty of symbolic and emotional ones. Gay and lesbian couples and those who have advocated for gay rights say the government-sanctioned ceremony of marriage confers a dignity on their unions that even the best domestic partner benefits cannot match.

“We’re setting up a separate and unequal institution and codifying that into law,” Molly McKay, Northern California executive director of Marriage Equality California, said of domestic partnership laws, which are facing challenge in the courts by the same two conservative groups that have sued to block San Francisco’s same-sex unions. “Why have two different drinking fountains when all anyone wants is a drink of water?”

“It really infringes on our ability to articulate who we are to other people,” McKay said. “My wife and I got married four years ago. It wasn’t legal, but it was vitally important to explain to our friends and family who Davina is to me. This is the woman I want to be buried next to. It’s not a business arrangement.”

State Assemblyman Mark Leno (D-San Francisco), who introduced a bill last week that would change state law to allow same-sex marriage, called it “enormously important.”

Although Leno was satisfied to fight for gains in domestic partner benefits, a recent ruling by the Massachusetts Supreme Judicial Court calling for the legalization of gay marriage changed his mind.

“As [that] court said, separate is seldom if ever equal, and [domestic partner benefits] are a separate but parallel attempt at equality,” he said.

Brad Sears, director of the Williams Project on Sexual Orientation Law at UCLA Law School, added: “There’s a different social status for married people. That’s why you’re seeing thousands of people line up to do this.... They want that respect and dignity from society.”

Times staff writers Kathy Kristof and Maura Dolan contributed to this report.