Legal Protection for Same-Sex Couples

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 by: Johnette Duff

Has anyone considered a compromise solution to the issue of legalization of same-sex marriages?

As an attorney who has spent years conducting research on
the advantages and disadvantages of marriage vs. living together, my
viewpoint is a legal one, unobscured by religious or moral questions.
Legal recognition of a status for these couples is called for, as is
their current need for self-help in making the laws work for them while
they are still in flux.

Traditionally and legally, marriage has been defined as
a union of a man and woman. Changing that definition is at the heart of
the problem. Marriage, throughout history, has had more to do with
procreation than romantic love or legal convenience. This legal
definition and the issue of procreation have both been used to bolster
the denial of the right of same-sex marriage.

What same-sex couples need, and should have, is the
ability to form a legal relationship. The semantics used to describe
this relationship should not matter as much as the rights and duties
arising from it. Denial of these rights is the discrimination same-sex
couples decry. We should not forget that only during the last
generation was the denial of the right of marriage to members of
different races overturned. The law is meant to serve the needs of the
members of society - including same-sex couples.

My compromise solution is a law which allows same-sex
couples the right to a legal relationship without the hot-button title
of “marriage.” With a simple change of terms, these couples could
become legal “domestic partners” which confer the same rights and
duties of their state’s marriage contract. Similar licensing statutes
could be enacted, along with the inevitable relationship dissolution
laws.

The marriage contract from any state comes with built-in
advantages and disadvantages. Married couples are bestowed with
automatic inheritance rights. They enjoy the right to sue for loss of
consortium if a third party injures their spouse, denying them services
and companionship. Because a married couples has rights, they cannot be
denied hospital visitation or the right to make medical decisions for
each other. Employers often offer medical coverage and benefits to
spouses of employees. Why should same-sex couples be denied these
benefits?

Couples who live together do have flexibility to create
their own rights and duties vis-a-vis each other. A same-sex couple can
execute wills, written cohabitation agreements, durable powers of
attorney for health care (giving a partner the right to hospital
visitation and the right to make medical decisions in the event of an
emergency) and, with careful financial awareness, create many of the
advantages of marriage.

The question of medical insurance and benefits should be balanced against the “marriage penalty tax,” which still exists.

The denial of the choice to same-sex couples, however, is
the true discrimination. Same-sex couples should have the option of
forming a legal relationship under the law, no matter what title it is
given.

About the Author

Johnette Duff is the author of The Spousal Equivalent Handbook: a legal and financial guide to living together, The Marriage Handbook: a legal and financial guide to your spousal rights, and Love After 50: the complete legal and financial guide. Nationally, she has appeared on Today, Good Morning America, CBS This Morning and in The Wall Street Journal, Self, Smart Money, New Woman and Modern Maturity promoting information on love and the law. Ms. Duff has recently opened a web site titled, love and the law.

info@loveandthelaw.com

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