DOMESTIC PARTNERSHIP BENEFITS STILL MATTER IN THE AGE OF EQUAL MARRIAGE

Gay & Lesbian Advocates & Defenders
30 Winter Street, Suite 800
Boston, MA 02108
Phone: 617.426.1350/800.455.GLAD
Fax: 617.426.3594
Website: www.glad.org
DOMESTIC PARTNERSHIP BENEFITS STILL MATTER
IN THE AGE OF EQUAL MARRIAGE:
Marriage Does Not Mean Instant Equality for Lesbian and Gay Employees
Employers all across Massachusetts offer domestic partnership benefits to unmarried same-sex
couples. Those policies were instituted in the spirit of fairness in order to provide “equal pay for
equal work.” Even though the state may no longer deny marriage to same-sex couples in
Massachusetts, domestic partnership benefits remain important. There is no reason to
terminate domestic partnership policies immediately and a number of good reasons exist to
maintain them for the foreseeable future. Without careful thought, employers could
inadvertently harm their employees’ families and children.
Same-sex couples and heterosexual couples are not on a level playing field with regard
to marriage.
The right to marry is very helpful to many same-sex couples in Massachusetts, but it is a
mistake to think that it means all employees are now in the same position. They are not. Same-
sex couples who marry still face discrimination and legal complications that non-gay married
employees don’t. There is no federal law disrespecting the marriages of heterosexual couples
(as there is with same-sex couples), let alone state laws “voiding” the marriages of non-gay
couples. The legal complications and uneven respect for marriages of same-sex couples may
mean that the right choice for some people is to NOT marry.
Legal reasons why some same-sex couples might not be able to marry:
? Marrying a same-sex partner would mean an automatic discharge from the military or
reserves.
? A same-sex couple who marries cannot adopt a child internationally.
? A bi-national same-sex couple cannot marry for fear that the non-citizen partner would be
exposed to U.S. immigration officials and deported.
Heterosexual couples do not face these risks.
Marrying a same-sex partner could put an employee’s or his or her partner’s ongoing job
prospects in jeopardy.
It is still legal to discriminate based on sexual orientation in 36 states and there is no federal
employment discrimination protection based on sexual orientation. If an individual needs to
change job locations or transfer within a company, or even contemplates moving from
Massachusetts some day for new opportunities, being married to a same-sex partner can “out”
them as gay or lesbian, jeopardizing their job and career path.

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Legal uncertainty makes marriage unattractive to some same-sex couples; employees
should not be penalized for exercising caution.
A marriage is a marriage, but marriages of same-sex couples face official discrimination in
many areas, complicating their situation and deterring some from marrying. For example, the
federal government denies all 1138 federal rights of marriage to same-sex couples. Some
couples may be unable to navigate the bizarre legal situation of being married in Massachusetts
but not in the eyes of the federal government. Others might want to take a wait and see
attitude, particularly in light of attempts to change the Massachusetts state constitution and strip
marriage rights away from same-sex couples. In addition, many states are on record saying
they will not respect a marriage of a same-sex couple. An employee may justly feel like these
issues need to be addressed before marriage will really protect his or her family.
Insurance protection may not be portable from one job to the next, leaving a family
worse off due to the sacrifices or negative legal consequences of marriage for same-sex
couples.
Making health insurance for an employee’s family hinge on marriage places undue pressure on
the couple to marry. Some couples may think the health insurance is worth the sacrifices
described above, as part and parcel of marriage for same-sex couples. However, the benefit of
the bargain could be stripped away if their next employer refuses to extend health insurance or
other benefits to same-sex married couples. (Many management attorneys are advising self-
insured employers to revise their plans to purposely exclude married same-sex spouses.) This
would leave the employee’s family worse off, rather than better protected.
Until there is more respect for marriages of same-sex couples as marriages, employers
need to understand that marriage can be risky business for same-sex couples.
Forcing same-sex couples to marry for health insurance
may have unintended negative consequences.
Based upon the mistaken belief that gays and lesbians can now marry on the same terms as
everyone else, some employers are terminating their domestic partnership policies. In many
cases, these policies provide the sole mechanism for employees to obtain health insurance
coverage for their long-term partners.
PLEASE RECONSIDER. Forcing employees to marry in order to get health insurance for their
families will put many employees in an untenable predicament. Any employer who cares about
providing “equal pay for equal work” and who does not want to add to the discriminatory
hardships faced by their employees should continue to offer domestic partnership benefits.
Reviewed: December 2008

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