Same-Sex Marriage Myths Busted
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Same-sex couples in New York can get the protections they need for their families without marriage. |
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While same-sex couples can draw up legal documents to protect their families in a limited number of ways and rely on a handful of state laws that provide some rights, these fall far short of the comprehensive protections and legal certainty that marriage provides. |
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New York’s legislative, executive and judicial branches have provided committed same-sex couples a number of important rights, such as inheritance of rent-controlled apartments, health benefits for domestic partners of state employees, hospital and nursing home visitation and the disposition of a deceased partner’s remains. However, this small handful of protections pales in comparison to the literally 1,324 rights and responsibilities that comes with a marriage license from the State of New York, and the additional 1,138 that come through federal statutes Furthermore, because these few rights developed over time instead of all at once, same-sex couples often face a legal limbo of conflicting laws and policies.
To reduce the legal uncertainty, many same-sex couples draw up contracts, wills, trusts, powers of attorney, health care proxies, and other legal documents. However, these methods require a couple to have the knowledge, initiative and financial means to secure them. As a New York Times article noted, it can cost same-sex couples thousands of dollars to “create a legal framework that mimics some aspects of marriage,” but it still falls far short of the rights that come with marriage itself.
Because the overwhelming majority of marriage rights and responsibilities have been created through statutes and regulations specifically for spouses, same-sex couples and their families are by definition left out, no matter what private contractual arrangements or other “work-arounds” they try to create. For example, New York State law limits Workers’ Compensation survivor benefits, like the vast majority of entitlement programs, to people who are married. Therefore, these benefits cannot be passed on to any other dependent, including a domestic partner, by hiring an attorney to put together a will or other private legal agreement between the partners or by any other way.
Furthermore, while married couples typically can predict how they will be treated by government based on their married status, LGBT couples and their families may be left at the mercy of a court or agency to decide whether their relationship will be deemed sufficiently committed to warrant formal recognition or whether they will instead be seen as mere strangers in the eyes of the law. This can be true even when a couple has gone to the trouble and expense of hiring an attorney to draw up legal documents confirming their relationship. |
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Civil unions and domestic partnerships are the same as marriage, and give same-sex couples all the protections they need without using the word “marriage.”
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Civil unions and domestic partnership are no substitute for marriage. They are not as universally recognized and do not have the same legal certainty as marriage. |
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Some states have created statewide legal mechanisms short of marriage in an attempt to provide some protection to LGBT families. For example, civil unions in New Jersey give same-sex couples the rights and responsibilities granted by the state government to married couples. Domestic partnerships have been established by some public and private entities (like states, cities and private employers), but it is up to whichever entity that is establishing the domestic partnership to decide whether it will have many, some, or none of the rights and responsibilities marriage provides to a couple. Many domestic partnerships, in fact, simply document the existence of the relationship and do not grant a single right to the couple.
Private institutions like businesses are far more likely to recognize marriage than civil unions or domestic partnerships for the purpose of providing benefits ranging from employee health insurance to bereavement leave. Because marriage has a long legal and policy history, employers, businesses and other private actors have a sense of how to treat a marriage that they don’t have when dealing with civil unions and domestic partnerships. For example, while marriage is part of corporate benefits terminology, civil unions and domestic partnerships usually are not, or in other instances are given a separate and lower level of benefits. As a concrete example, even though the State of New Jersey has created civil unions for same-sex couples, some employers in that state have refused to add civil union partners to an employee’s health insurance because the partners are not married.
Civil unions and domestic partnerships are also no substitute for marriage because, as separate institutions, they inherently imply that the love between people of the same sex is less valid than the love between people of the opposite sex. As long as same-sex couples are denied the choice of entering into marriage—the legal institution used by the state to support loving couples and their families—LGBT people are denied equality with their neighbors. |
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If the state allows same-sex couples to marry, religious institutions will be forced—against their religious beliefs—to marry same-sex couples. They will have their tax-exempt status revoked and their freedom of worship limited. |
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The federal and state Constitutions—and explicit language in New York’s marriage equality legislation itself—guarantee that religious institutions cannot be forced to marry people in violation of their religious beliefs or otherwise have their freedom to worship curtailed as the result of same-sex couples being allowed to legally marry in New York. |
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Civil marriage is a relationship sanctioned and licensed by the state. It does not require the blessing of any religious institution. Religious marriage is the spiritual blessing of a relationship by a church, mosque, synagogue or other religious institution, and in New York it is not legally binding on the married couple unless they also secure a civil marriage license. Marriage equality as a civil rights issue refers to equal treatment in civil marriage as administered and licensed by the state.
Under the federal and state constitutions, no religious institution can be required to marry two people even if their marriage is licensed by the state. For example, a Jewish temple cannot be forced to marry two Catholics holding a marriage license, nor can the Catholic Church be required to marry two divorcees who can be legally married by the state. Similarly, no religious institution would be required to marry a same-sex couple even if they could legally get married in New York. In fact, the currently pending marriage equality legislation contains language that explicitly states: “[N]o clergyman, minister or society for ethical culture leader shall be required to solemnize any marriage or join together persons in marriage in violation of the right to free exercise of religion as guaranteed by the New York or United States constitutions.”
No religious institution in the states that allow same-sex couples to marry has been forced to marry a same-sex couple in violation of its religious beliefs or had their tax exempt status challenged. On the contrary, a number of religious traditions that have been sanctifying same-sex unions for some time (including the United Church of Christ, Unitarian Universalists, Reform Judaism, Reconstructionist Judaism and Quakers), who in New York would currently be violating the law against solemnizing marriages without a license, would finally be allowed to freely practice their religion in this area as they see fit.
Click here to read a PDF of our report, “Marriage Equality and Religion: The Massachusetts Experience.” The report profiles seven clergy members and their experiences over the past five years with a same-sex marriage law in Massachusetts. The clergy represent Episcopal, Lutheran, Baptist, United Church of Christ, Reform Jewish and Unitarian Univeralist congregations.
Watch the video below, featuring three Massachusetts faith leaders dispelling some common myths surrounding marriage equality and religious freedom.
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Marriage as an institution has remained the same for millennia. |
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Marriage is a dynamic institution that has evolved throughout history to meet the needs of society. |
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In fact, much of what was associated with marriage in the past would today be incomprehensible to the majority of Americans. This includes arranged marriages, payment of a dowry, the legally inferior status of women in the marital relationship, polygamous marriages and royal and aristocratic marriage between relatives, such as first cousins.
Here in America, it is easy to find an example in the not too distant past when the institution of marriage changed in a significant way. It was only six decades ago, in 1948, when California became the first state in the nation to say it was unconstitutional to prevent people of different races from marrying. At that time, 38 states still banned interracial marriage. Twenty years later, in 1967, the U.S. Supreme Court said the same thing for the whole United States in the famous Loving v. Virginia case.
During the decades between one state first striking down a ban on interracial marriages and the rest of the nation following suit, proponents of the ban used the same language we hear today to fight marriage equality for lesbians and gay men, saying that interracial marriage was “unnatural,” that people of different races could not marry “by definition,” and that society would crumble if the definition of marriage was broadened to include more people. For example, one court decision in 1959 that upheld laws against interracial marriage actually stated: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Today, these arguments seem bigoted and outdated, just like the arguments currently used by opponents of equal marriage rights for same-sex couples might look someday in the future.
This is not to say that the struggle for racial justice and the fight for marriage equality are the same thing. There are important similarities and differences, and clearly the LGBT movement owes a great debt to the civil rights struggles that have come before us and continue today for teaching us important lessons and opening America’s mind. Still, it is valid to note that allowing people of different races to marry was at the time a “radical” change to what people believed marriage had been for millennia.
The following books contain more information on the historical roots of marriage and how it has changed over time:
Marriage, A History: How Love Conquered Marriage by Stephanie Coontz (2006)
What Is Marriage For? The Strange Social History of Our Most Intimate Institution by E.J. Graff (2004)
Public Vows: A History of Marriage and the Nation by Nancy F. Cott (2002)
Tell the Court I Love My Wife: Race, Marriage, and Law – An American History by Peter Wallenstein (2004)
Why Marriage: The History Shaping Today’s Debate Over Gay Equality by George Chauncey (2005)
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New York does not have same-sex couples who are legally married. |
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Although New York does not yet allow same-sex couples to get married within its borders, the state does fully honor and respect the marriages of same-sex couples who were legally married elsewhere. In this way, there are thousands of legally married same-sex couples living here in New York State, even though they had to leave the state to get married. |
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At least three New York appellate level court decisions (Martinez v. County of Monroe, Godfrey v. Spano, and Lewis v. NYS Department of Civil Service) have said that New York is required under longstanding legal precedent to treat couples who have been legally married in another jurisdiction—including same-sex couples—as fully married, even if that marriage would be illegal if conducted in New York State. This means that a same-sex couple from New York who has gotten married in a place where such weddings are legal — like Connecticut, Washington, D.C., Iowa, Massachusetts, New Hampshire, Vermont, Argentina, Belgium, Canada, Iceland, Mexico City, Netherlands, Norway, Portugal, South Africa, Spain or Sweden — is as legally married here in their home state as an opposite-sex couple with a New York marriage license.
These decisions validate the opinion of the New York State Attorney General and the practice of a number of state entities. In 2004, the State Comptroller began recognizing the legal marriages of same-sex couples for the purposes of the New York State Retirement System, and in 2007 the Department of Civil Service said it would allow the 1.2 million state and local employees participating in the New York State Health Insurance Program to add their same-sex spouses to their insurance.
Most recently, in 2008 Governor David Paterson alerted all state agencies of their legal requirement to respect legal marriages of same-sex couples. This memo followed the Governor’s prior statement that he intended for this to be the policy of the State of New York. As a result of that memo from his office, the New York State Banking Department and the New York State Insurance Department have both issued advisories to members of their industries about equal treatment of same-sex married couples. The Pride Agenda, along with our legal partners at Lambda Legal, the New York Civil Liberties Union and the American Civil Liberties Union, released an update in January 2009 of several other ways that state agencies have confirmed that they will be extending the rights and responsibilities of marriage to legally married same-sex couples.
In addition to state government, New York localities including Albany, Buffalo, Ithaca, New York City, Nyack, Rochester and Westchester County have proactively stated that they will respect the legal marriages of same-sex couples for all local governmental purposes. Other institutions also respect the legal marriages of same-sex couples, including the City University of New York (CUNY) and the pension systems of New York City municipal employees. A number of private businesses and companies, including insurance companies like Allstate, Electric, Geico and State Farm, are also respecting the legal marriages of same-sex couples.
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The people of New York and their elected representatives are against marriage being extended to same-sex couples. |
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In fact, a majority of New Yorkers support allowing same-sex couples to marry, and all statewide elected officials are in line with the majority who support it. |
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Six years ago in 2003, when Canada became the first jurisdiction where it was practical for a New York same-sex couple could get legally married, national polls showed that only between 31-40% of Americans supported the idea of same-sex couples being allowed to marry, with 51- 56% being opposed. The most recent polling commissioned by the Pride Agenda in 2006 had those numbers basically flipped, with 53% supporting same-sex couples having the ability to marry versus 38% who opposed. What was an almost even split in opinion two years ago in a 2004 Global Strategy Group poll (47% for, 46% against) had become a 15 point margin in favor. This same poll by Global Strategy Group of 658 voters had an error margin of +/- 3.8% and found that, for 68% of voters, their legislator’s position on marriage was either beneficial or had no impact when going to the voting booth.
Additionally, in a poll conducted by the Siena Research Institute in April 2009, 53% of New Yorkers believed that the State Senate should pass the marriage bill, while 39% did not. The poll also found that a majority of New Yorkers from all regions of the state supported marriage equality for same-sex couples.
Elected officials have heard their constituents, and as a result, the large majority support marriage equality. In fact, all New York statewide elected officials support marriage equality. These include: U.S. Senators Charles Schumer and Kirsten Gillibrand, Governor David Paterson, Attorney General Andrew Cuomo, Comptroller Tom DiNapoli, Assembly Speaker Sheldon Silver and Senate Majority Leader Malcolm Smith. We also know from the 2007 vote on marriage equality in the New York State Assembly that 85 Assemblymembers—Democrats and Republicans—think same-sex couples should be allowed to marry in the state, versus 61 who do not. Additionally, every single Assemblymember who voted for the marriage bill in 2007 and sought reelection won their race in the November 2008 legislative elections.
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Legalizing marriage for same-sex couples will hurt children and force them to be taught about it in early grade school. |
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There is nothing in current New York law nor in the pending marriage equality legislation that would require marriage for same-sex couples (or marriage at all) to be taught in schools. In fact, the tens of thousand of children being raised by same-sex couples would benefit from their families being afforded the protections of marriage. |
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It has yet to be shown how extending the rights and responsibilities of marriage to LGBT families harms children. Opponents of marriage equality in other states have claimed that legalizing same-sex marriage will force schools to teach young students about it. However, education experts and officials have decried those claims as scare tactics. For example, the State of California’s Superintendent of Schools called the characterization “misleading, inaccurate, and … really irrelevant.” States that have allowed same-sex couples to marry have not seen the same-sex marriage issue formalized as part of any school curriculum for young children. Similarly, the New York State marriage equality legislation does not have one word about education.
Watch the video below, featuring a message from New York State's Deputy Secretary for Education on marriage equality and public school learning.
Far from harming children, allowing same-sex couples to marry will give their children the same legal protections that the state of New York extends through marriage to every other family—protections that can be expensive, difficult or impossible for LGBT families to access without marriage.
The last U.S. Census in 2000 counted 46,490 New York households with same-sex “unmarried partners,” with 1 in 4 of them raising an average of 2 children. This number is widely viewed as representing only a fraction of the actual number of same-sex unmarried partners in New York State, as many are reluctant to disclose their relationship to a government entity out of fear of punishment or discrimination. USA Today cited various reports that put the national number of children living with at least one gay or lesbian parent at 6 million to 12 million.
Whatever the actual number, LGBT families are in just as much need of governmental support as are other families—perhaps more. An analysis of U.S. Census data by the Williams Institute think tank at UCLA Law School found that New York City families comprised of same-sex couples raising children were economically disadvantaged, having average household incomes between 7% lower (in Brooklyn) and 36% lower (in Staten Island) than their married counterparts, and median household incomes 26% lower that that of married parents. If these families are left without the social safety net that government provides through marriage to all other families, they are more likely to become a social or financial burden on society as a whole.
The scholarly consensus among researchers and experts is that children raised by same-sex couples have no major differences from children raised by opposite-sex couples in terms of emotional adjustment and development. The American Psychological Association, for example, has said: “[T]here is no scientific evidence that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children. … [R]esearch has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.”
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Allowing same-sex couples to marry will cost the state money. |
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When all the factors are taken into consideration, a state actually loses money by not allowing same-sex couples to marry. |
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The New York City Comptroller released a report in 2007 showing that the money generated and saved by allowing same-sex couples to marry in the state could total over $117 million gained. This figure was based on factors including:
- Increased state tax income as a result of joint filing for same-sex couples would total $2.1 million statewide.
- Revenues from marriage license fees would total $3 million statewide.
- Since the domestic partners of New York State (and some other municipalities’) employees are already eligible for health benefits under the law, the public sector is unlikely to incur any additional spousal health benefits costs.
- Individuals who receive public assistance under certain programs—such as the State’s Medicaid program—may become ineligible if they marry someone whose income or assets lift them as a couple above the thresholds for these programs. This could save the state about $110 million in Medicaid payments.
Other economic factors to be considered, but not included in the Comptroller’s overall additional revenue number include:
- Greater economic security resulting from marriage may prompt more couples to buy homes, thereby increasing homeownership rates and generating greater real estate tax revenue of nearly $50 million.
- Private employers may face lower recruiting costs or an expanded pool of qualified candidates if same-sex couples are more likely to move to New York as a result of the change.
- Because same-sex couples do not even have the option of utilizing marriage and the protections it provides, they may lack the support for their families that other families have to keep them from depending more directly on health and social services provided by the state.
The Governor’s memo in support of marriage equality legislation also reiterates many of the points made in the Comptroller’s report. Also, the Williams Institute, a think tank at UCLA Law School, has issued reports about the economic impact of marriage for a number of other states and has come to similar conclusions. |
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It is wrong to equate same-sex marriage with the legal marriage between a man and a woman. |
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Well, that raises the core questions: Is the love between two gay men or lesbians as valid as the love between people of the opposite sex, and should the law draw distinctions between the two? |
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If the love between two gay or lesbian people is as valid as the love between two people of the opposite sex, should the government deprive same-sex couples of the ability to legally marry each other? And even though some people believe that same-sex and opposite sex relationships aren’t morally equivalent, should the State of New York as a matter of law and policy keep these couples from access to the legal institution that society uses to protect committed, loving couples who want to spend the rest of their lives caring for each other and their children?
While these might be legitimate questions to ponder, it is not legitimate to claim these myths as facts when deciding whether New York’s same-sex couples should be allowed to marry in their home state and have access to the protections that the government offers to all other loving, committed couples and their families. |
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