In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines "child" for purposes of receiving survivor's benefits when a covered employee dies. Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert. The twins were conceived by IVF after Robert's death using semen he had frozen before this death specifically for that purpose.
Karen claimed the children were entitled to benefits because they inherently met the definition of "child" since they were the biological children of married parents. The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits. Under the law in Robert's domicile at the time of his death -- Florida -- children conceived post-death do not inherit without a will, so the twins were not Robert's children for purposes of receiving benefits.
In Astrue v. Capato, the Supreme Court ruled in favor of the SSA. Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels. First, Karen's claim was that the children were so obviously Robert's children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition. Why was this so obvious? Because, Karen argued, they were the biological children of married parents. I took great pleasure in Justice Ginsburg's criticism of that argument. Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should "eliminate the intestacy test only for biological children of married parents." (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between "children whose parents were married and children whose parents' liaisons were not blessed by clergy or the State."
I also like that the opinion is clear that neither marriage nor biology is necessary to be the "child" of a deceased worker for purposes of survivor's benefits. The opinion specifically cites to statutes that say a semen donor is not a parent to illustrate that "a biological parent is not necessarily a child's parent under the law." As for marriage, the opinion says that "marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child's parentage is uncertain. An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain." By explicitly separating the definitions of parent and child from both marriage and biology, the opinion creates space for definitions based on other criteria, including ones that recognize the parentage of children raised by same-sex couples.
The catch is that the SSA will look to the law of each state, and specifically to the state where the deceased worker was domiciled. Within that state, the SSA will look to intestacy law. So the patchwork of laws affecting gay and lesbian families will continue to produce dramatically different consequences across state lines. Of course that's also what happens to other children -- including the twins who were the subject of the Capato case; the opinion cites the statutes of several states that do allow posthumously conceived children to inherit, but Florida -- where Robert was domiciled -- does not.
As for our children, we assume that an adoption decree from one state will get Full Faith and Credit in every state. But will it mean that in every state that child can inherit from the nonbiological parent in the absence of a will? Probably yes. Without an adoption, it will be much more of an uphill climb. When parentage derives from a consent-to-insemination statute in a different state or from a couple's marriage/civil union/domestic partnership elsewhere, the SSA might find that the state would not consider the child to be the deceased's child for intestacy purposes. In that case, bye bye Social Security survivor's benefits. BUT...this is the time for me to remind everyone that the 2008 amendments to the Uniform Probate Code Section 2-120(f) do grant a child the right to intestate succession from a person -- male or female, married or unmarried -- who consents to a woman's insemination with the intent to be a parent. And there is an old doctrine of equitable adoption that allows a child to inherit even if there was no actual adoption. There are some states whose laws are not friendly to same-sex couples and their children, but if those states have the 2008 UPC amendments or a robust doctrine of equitable adoption, a child there may still qualify for SSA benefits.
Also, I want to remind everyone that the SSA has already ruled (and this was in 2007, under the Bush administration) that a child born to a couple in a Vermont civil union is eligible for disability benefits from the nonbiological mother, and the Justice Department has determined that granting those benefits does not run afoul of the Defense of Marriage Act. Here is the opinion letter. And the reason is because the child was eligible to inherit by intestate succession in Vermont, where the disabled worker was domiciled. Period. But had the family moved elsewhere, it would have been that state's law that SSA would look to.
So that the bad news -- and the good news -- in today's opinion.
Showing posts with label Social Security. Show all posts
Showing posts with label Social Security. Show all posts
Monday, May 21, 2012
Thursday, April 26, 2012
Here's what's really unfair about Social Security
Today Representative Linda Sanchez is introducing the Social Security Equality Act of 2012. It's the same proposal I critiqued here two years ago. Yes, it's true; same-sex couples do not get to take advantage of Social Security's provision of "special rights" to married couples who have one primary wage earner. Those couples put less in to the Social Security system and get more out of it than anyone else --- single people, unmarried couples, and couples who are married but have two more-or-less equal wage earners. All same-sex couples who have two close-to-equal wage earners will not benefit at all from this "equality" proposal.
As I have said before, African-American married heterosexual couples are among those disadvantaged by the current system because they are much more likely than White couples to be equal earners. We have a true LGBT rights champion, Ben Jealous, as the head of the NAACP. What the LGBT rights movement should be doing is beginning a coalition with him and getting a diverse group of advocates together to lobby for reform that will stop privileging one-primary-earner couples.
As I have said before, African-American married heterosexual couples are among those disadvantaged by the current system because they are much more likely than White couples to be equal earners. We have a true LGBT rights champion, Ben Jealous, as the head of the NAACP. What the LGBT rights movement should be doing is beginning a coalition with him and getting a diverse group of advocates together to lobby for reform that will stop privileging one-primary-earner couples.
Monday, February 15, 2010
Gay people missing from recent GAO report on Social Security
Shortly after posting about the flaws in the upcoming "Rock for Equality" action, I came across a post on the Elder Law Profs Blog about a Government Accountability Project report released last month. The report, Social Security: Options to Protect Benefits for Vulnerable Groups When Addressing Program Solvency, acknowledges and addresses the way Social Security currently deals with families. It highlights the preferential treatment given one-earner households and the disadvantages faced by dual earner couples. It discusses the vulnerability of women. The report draws the many years of work by researchers at the Urban Institute and the Institute for Women's Policy Research whom I referenced in my previous post, as well as the National Women's Law Center and other advocates and scholars.
There is no mention in the report, at all, of the distinct needs of lesbians and gay men and our families.
If gay rights advocates wanted to strengthen and improve Social Security for the most vulnerable in the LGBT community, they needed to be connected to the broader movement already way ahead in looking at our current system. I have been urging this for years. What I thought was that Social Security was nowhere near the top of the list of issues that gay organizations wanted to address. So to discover that two of our leading gay rights groups do indeed want to focus on Social Security, but without a coalition effort, without acknowledging that their narrow demand will help only one subset of the gay community and will actually replicate part of the problem reformers are trying to address is, well, maddening.
Of course it is also maddening that to date the efforts of feminist and progressive researchers and advocates have completely overlooked the distinct needs of lesbians and gay men and our families when it comes to Social Security. But that's why we have to be connected to those groups, to have the exchange of information and perspective that will ensure that our constituency is represented and that our advocates see the bigger picture of which we are a part.
Rock for Equality is a misguided action. I do not support it. In fact, it embarrasses me to be a part of a movement that actually thinks this is the way to tackle the Social Security issue from a gay rights perspective. I explained the problem in detail in my earlier post. It's too late to be included in the recent GAO report. It's not too late to get in touch with the experts who for years have been looking to reform the way Social Security treats families, so we can be included in their future work and the needs of all of us, including single LGBT individuals and same-sex couples with two relatively equal earners, can make their way into the next government report.
There is no mention in the report, at all, of the distinct needs of lesbians and gay men and our families.
If gay rights advocates wanted to strengthen and improve Social Security for the most vulnerable in the LGBT community, they needed to be connected to the broader movement already way ahead in looking at our current system. I have been urging this for years. What I thought was that Social Security was nowhere near the top of the list of issues that gay organizations wanted to address. So to discover that two of our leading gay rights groups do indeed want to focus on Social Security, but without a coalition effort, without acknowledging that their narrow demand will help only one subset of the gay community and will actually replicate part of the problem reformers are trying to address is, well, maddening.
Of course it is also maddening that to date the efforts of feminist and progressive researchers and advocates have completely overlooked the distinct needs of lesbians and gay men and our families when it comes to Social Security. But that's why we have to be connected to those groups, to have the exchange of information and perspective that will ensure that our constituency is represented and that our advocates see the bigger picture of which we are a part.
Rock for Equality is a misguided action. I do not support it. In fact, it embarrasses me to be a part of a movement that actually thinks this is the way to tackle the Social Security issue from a gay rights perspective. I explained the problem in detail in my earlier post. It's too late to be included in the recent GAO report. It's not too late to get in touch with the experts who for years have been looking to reform the way Social Security treats families, so we can be included in their future work and the needs of all of us, including single LGBT individuals and same-sex couples with two relatively equal earners, can make their way into the next government report.
Thursday, February 11, 2010
LA Gay and Lesbian Center and NGLTF lead misguided action about Social Security
As a long-time champion of the National Gay and Lesbian Task Force, it pains me to have to criticize that organization, as well as the Los Angeles Gay and Lesbian Center, for its just-unveiled Rock for Equality action. The premise of the action is simple -- and misguided: that same-sex couples, who, even if they marry, cannot have their marriages recognized under federal law, are discriminated against in social security benefits. Leaders of the two groups make the following statements on the action's website:
Lorri L. Jean: "LGBT Americans are being treated unfairly by Social Security—it’s as simple as that. ...Why should a LGBT widow or widower have to give up the home they have shared for years with their partner when that partner dies? Preventing such tragedies is exactly what Social Security Survivor’s Benefits are for!"
Rea Carey: "It’s unthinkable that in America, countless LGBT seniors — widows, widowers, and other retirees — are being systematically short-changed by unfair Social Security policies. ...Social Security was created to protect all Americans in their later years. It is utterly un-American that this institution discriminates against LGBT citizens."
I think most people reading the description of the problem on this website would think, at a minimum, that Social Security gives all married (heterosexual) couples a benefit that it denies to LGBT couples (whether or not they are married in the state where they live). A friend of mine said this to me: "When [my partner] dies, I can't get her social security benefits," as though if she and her partner were recognized as married by Social Security (or if they were a married heterosexual couple), she would get a benefit she is otherwise deprived of. As though every surviving spouse "inherits" something from Social Security.
This is a hard issue to understand and to explain. I'm going to try. One type of married couple gets this kind of windfall under Social Security -- it's the type of family that Congress had in mind in 1939, when it created the system and only 15% of married women earned their own income. When one spouse has earned all or the vast majority of the couple's income, the non-earner or low-earner spouse gets a retirement benefit equal to half her spouse's, even if she never paid into Social Security; and if her spouse dies first, she will then receive the amount of money he was receiving. Example: If his lifetime earnings entitle him to $1,800/month in benefits, she will receive $900 while he is alive and $1,800 once he dies. (So the household has $2,700/mo. while he is alive and $1,800 when he dies).
When a same-sex couple resembles this couple's earning pattern, that couple is, indeed, disadvantaged by being considered unmarried, when the couple is actually married in a state that allows it.
But same-sex couples with two earners, whose lifetime earnings are pretty close to each other(I'm pretty sure my friend and her partner fall into this category), will gain nothing by being considered married. Instead, they will find themselves, like equal-earning heterosexual couples (including most African-American married couples), paying more into the system and getting less out. Let's say each partner is entitled to $1,350/mo. based on her own earnings. Sure, if they are married, each can qualify for a spousal benefit. But that benefit is instead of, not on top of, what each qualifies for on her own. So the spousal benefit is only $675/mo. instead of $1,350, which, of course, no one would choose. So that household also gets $2,700/mo. while both are alive. But when the first spouse dies, the survivor simply keeps her own benefit -- $1,350. The surviving spouse sees a 50% cut in benefits to the household, compared to the 33% cut experienced by the surviving stay-at-home spouse whose deceased spouse earned all the family's income.
So Lorri Jean's outrage about one partner losing his home when the other partner dies happens right now to married heterosexuals, given the 50% reduction in household income, as well as to the survivor of a same-sex couple. If Rock for Equality succeeds in getting social security for same-sex couples on the same basis now afforded different-sex married couples, the surviving partner will continue to suffer this dramatic decrease in income unless his partner's lifetime earnings greatly succeeded his own. This is an action calling for support from the entire LGBT community, when only couples who come close to replicating the one-primary-earner household will be helped should the action succeed. All of us in couples where both partners work full-time and contribute close to equally to the household are being asked to support an action that will not benefit us at all. Not at all.
Scholars and advocates unconnected to the gay rights movement have been pointing out for years how unfair this system is...to equal earning married couples and to single parents, whose lifetime earnings suffer because of their childcare responsibilities and who have no income-earning spouse confering a spousal benefit. Research by the Institute for Women's Policy Research and law professor Dorothy Brown demonstrates that black couples are disadvantaged by the current Social Security system.
I have urged gay rights groups to connect with those advocates who criticize the failure of Social Security to equally value current family structures. Instead, Rock for Equality suggests that the social security system in uniquely unfair to same-sex couples. It's an opportunity for coalition work missed...and for what? Or I should say for whom? For the segment of our community who can afford to have one partner work part-time, or be a stay-at-home parent, or make employment choices based on criteria other than maximizing income.
The Rock for Equality website has a graphic presenting the amount of lost social security income to a couple when one earns $95,000/yr and the other earns $45,000. Leaving aside just how much this household has, compared to average households, the graphic would look very different if each partner earned $70,000. Then the cost of the "discrimination" would be ... zero. (I'm not counting the $255 death benefit that every surviving spouse receives based on the marriage alone ; I'm pretty sure if the only loss to same-sex couples was $255, this issue would not would not form the basis of a major stand-alone campaign.)
And if one spouse earned $140,000 and the other earned nothing, another graphic could show that those two people pay far less into Social Security than the $70,000-each couple, and yet they get far more out in terms of social security payments. That's the windfall that goes to the couples social security was originally designed for. Every one of us subsidizes those couples.
The Rock for Equality website cites Williams Institute data that, on average, lack of access to spousal social security benefits costs same-sex couples $5700/yr. Even if that figure is an accurate average, this is one place where average doesn't tell the story. If one couple loses $11,400/yr and another couple loses nothing, the average loss is $5700/yr. But one couple isn't hurt at all, and, in fact, is subsidizing the other couple's benefits. The Task Force and the LA Center are not asking all LBGT couples to come out and support an action that will benefit half of us; their rhetoric suggests that all our couples are victims of this discrimination. This is not true.
It's past time for a conversation about the redistribution of income from single earners and dual earner couples to married couples with one primary earner. The Urban Institute has been pushing that conversation for many years. Now two gay rights groups want to enter a conversation about discrimination in social security, but only to ask that when same-sex couples have one primary income earner they, too, should be subsidized by the rest of us -- including all the same-sex couples with two equal-income earners.
I am well-known for my stance that marriage should not confer "special rights." That may make some who disagree with me inclined to discount my criticism of the Rock for Equality effort. So let me be clear. This action, if it succeeds, will result in some same-sex married couples getting an advantage at the expense of other same-sex married couples, who will not benefit at all.
Why is that a good use of movement resources?
Lorri L. Jean: "LGBT Americans are being treated unfairly by Social Security—it’s as simple as that. ...Why should a LGBT widow or widower have to give up the home they have shared for years with their partner when that partner dies? Preventing such tragedies is exactly what Social Security Survivor’s Benefits are for!"
Rea Carey: "It’s unthinkable that in America, countless LGBT seniors — widows, widowers, and other retirees — are being systematically short-changed by unfair Social Security policies. ...Social Security was created to protect all Americans in their later years. It is utterly un-American that this institution discriminates against LGBT citizens."
I think most people reading the description of the problem on this website would think, at a minimum, that Social Security gives all married (heterosexual) couples a benefit that it denies to LGBT couples (whether or not they are married in the state where they live). A friend of mine said this to me: "When [my partner] dies, I can't get her social security benefits," as though if she and her partner were recognized as married by Social Security (or if they were a married heterosexual couple), she would get a benefit she is otherwise deprived of. As though every surviving spouse "inherits" something from Social Security.
This is a hard issue to understand and to explain. I'm going to try. One type of married couple gets this kind of windfall under Social Security -- it's the type of family that Congress had in mind in 1939, when it created the system and only 15% of married women earned their own income. When one spouse has earned all or the vast majority of the couple's income, the non-earner or low-earner spouse gets a retirement benefit equal to half her spouse's, even if she never paid into Social Security; and if her spouse dies first, she will then receive the amount of money he was receiving. Example: If his lifetime earnings entitle him to $1,800/month in benefits, she will receive $900 while he is alive and $1,800 once he dies. (So the household has $2,700/mo. while he is alive and $1,800 when he dies).
When a same-sex couple resembles this couple's earning pattern, that couple is, indeed, disadvantaged by being considered unmarried, when the couple is actually married in a state that allows it.
But same-sex couples with two earners, whose lifetime earnings are pretty close to each other(I'm pretty sure my friend and her partner fall into this category), will gain nothing by being considered married. Instead, they will find themselves, like equal-earning heterosexual couples (including most African-American married couples), paying more into the system and getting less out. Let's say each partner is entitled to $1,350/mo. based on her own earnings. Sure, if they are married, each can qualify for a spousal benefit. But that benefit is instead of, not on top of, what each qualifies for on her own. So the spousal benefit is only $675/mo. instead of $1,350, which, of course, no one would choose. So that household also gets $2,700/mo. while both are alive. But when the first spouse dies, the survivor simply keeps her own benefit -- $1,350. The surviving spouse sees a 50% cut in benefits to the household, compared to the 33% cut experienced by the surviving stay-at-home spouse whose deceased spouse earned all the family's income.
So Lorri Jean's outrage about one partner losing his home when the other partner dies happens right now to married heterosexuals, given the 50% reduction in household income, as well as to the survivor of a same-sex couple. If Rock for Equality succeeds in getting social security for same-sex couples on the same basis now afforded different-sex married couples, the surviving partner will continue to suffer this dramatic decrease in income unless his partner's lifetime earnings greatly succeeded his own. This is an action calling for support from the entire LGBT community, when only couples who come close to replicating the one-primary-earner household will be helped should the action succeed. All of us in couples where both partners work full-time and contribute close to equally to the household are being asked to support an action that will not benefit us at all. Not at all.
Scholars and advocates unconnected to the gay rights movement have been pointing out for years how unfair this system is...to equal earning married couples and to single parents, whose lifetime earnings suffer because of their childcare responsibilities and who have no income-earning spouse confering a spousal benefit. Research by the Institute for Women's Policy Research and law professor Dorothy Brown demonstrates that black couples are disadvantaged by the current Social Security system.
I have urged gay rights groups to connect with those advocates who criticize the failure of Social Security to equally value current family structures. Instead, Rock for Equality suggests that the social security system in uniquely unfair to same-sex couples. It's an opportunity for coalition work missed...and for what? Or I should say for whom? For the segment of our community who can afford to have one partner work part-time, or be a stay-at-home parent, or make employment choices based on criteria other than maximizing income.
The Rock for Equality website has a graphic presenting the amount of lost social security income to a couple when one earns $95,000/yr and the other earns $45,000. Leaving aside just how much this household has, compared to average households, the graphic would look very different if each partner earned $70,000. Then the cost of the "discrimination" would be ... zero. (I'm not counting the $255 death benefit that every surviving spouse receives based on the marriage alone ; I'm pretty sure if the only loss to same-sex couples was $255, this issue would not would not form the basis of a major stand-alone campaign.)
And if one spouse earned $140,000 and the other earned nothing, another graphic could show that those two people pay far less into Social Security than the $70,000-each couple, and yet they get far more out in terms of social security payments. That's the windfall that goes to the couples social security was originally designed for. Every one of us subsidizes those couples.
The Rock for Equality website cites Williams Institute data that, on average, lack of access to spousal social security benefits costs same-sex couples $5700/yr. Even if that figure is an accurate average, this is one place where average doesn't tell the story. If one couple loses $11,400/yr and another couple loses nothing, the average loss is $5700/yr. But one couple isn't hurt at all, and, in fact, is subsidizing the other couple's benefits. The Task Force and the LA Center are not asking all LBGT couples to come out and support an action that will benefit half of us; their rhetoric suggests that all our couples are victims of this discrimination. This is not true.
It's past time for a conversation about the redistribution of income from single earners and dual earner couples to married couples with one primary earner. The Urban Institute has been pushing that conversation for many years. Now two gay rights groups want to enter a conversation about discrimination in social security, but only to ask that when same-sex couples have one primary income earner they, too, should be subsidized by the rest of us -- including all the same-sex couples with two equal-income earners.
I am well-known for my stance that marriage should not confer "special rights." That may make some who disagree with me inclined to discount my criticism of the Rock for Equality effort. So let me be clear. This action, if it succeeds, will result in some same-sex married couples getting an advantage at the expense of other same-sex married couples, who will not benefit at all.
Why is that a good use of movement resources?
Saturday, October 3, 2009
The cost of being a gay couple... the New York Times tells just one part of the story
You know I'm going to respond to any article that says:
"Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage."
Well, that's what the article in today's New York Times concludes. It purports to be a study based on the differences between a married heterosexual couple and a same-sex couple (who, if married in their state, is still not married for federal law purposes).
So let's get the first obvious problem with this article out of the way by rephrasing the study's findings as follows:
Nearly all the extra costs that unmarried couples face would be erased if the federal government stopped privileging marriage over other relationships.
My formulation is no less accurate than the conclusion in the Times article. But if you're a hammer everything looks like a nail, and if you're an advocate for same-sex marriage every problem looks like it's caused by denial of access to marriage. I just don't see it that way.
Here's an example. The article points out that when an employer provides health insurance to a same-sex partner it is taxed, while spousal coverage is not. True. But suggesting that the problem here is that same-sex couples can't marry misses the larger point. Why should any employer-provided health benefits be taxed? Salt Lake City allows an employee to cover anyone s/he lives with in an interdependent relationship. Many employers cover both same-sex and unmarried different-sex partners. In all those situations, the benefit is taxed. Spousal coverage gets special treatment. It shouldn't. A solution that ended that special treatment would reduce the "high cost of being a gay couple" as much as allowing same-sex couples to marry, and would be a better policy choice because it would encourage employers to recognize the actual families of their employees -- married or not.
Meanwhile, the article does not entirely ignore the fact that marriage helps those straight families who look like the male breadwinner and stay-at-home mother model that drives both our tax and social security system. So it would mostly help those same-sex couples who also have one high and one low income earner. The authors acknowledge that for an equal earning couple their social security payments don't vary depending on whether or not they are married. What they fail to mention is that many observers believe the current set-up fails to reflect modern family life and should be reformed...for straight married couples. Taking the current system as a given misses the opportunity to highlight the views of those who think it unconscionable that a family in which one person has earned most of the money pays less into social security and gets more out of it than a couple who have greater parity. Here's an example of one paper by the Urban Institute. They actually have an entire project about making social security more equitable.
Then there's this problem. The article posits the hypothetical couple having a joint income of $140,000 a year. This perpetuates the myth of gay affluence, something roundly debunked by the careful research of the Williams Institute. And for poor same-sex couples, they are, like different-sex unmarried couples, sometimes better off not being married (the Earned Income Tax Credit is one example.) In fact, you'd never know it from this article that lawyers who specialize in elder law often advise their heterosexual couple clients not to marry. If one partner needs to spend down all assets to be eligible for medicaid nursing home care, the other can keep all of his or her assets if the couple isn't married. If they are married, they must spend down almost all of both of their assets.
But no partner in the hypothetical couples used as examples in the Times article needs nursing home care. Lucky them.
"Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage."
Well, that's what the article in today's New York Times concludes. It purports to be a study based on the differences between a married heterosexual couple and a same-sex couple (who, if married in their state, is still not married for federal law purposes).
So let's get the first obvious problem with this article out of the way by rephrasing the study's findings as follows:
Nearly all the extra costs that unmarried couples face would be erased if the federal government stopped privileging marriage over other relationships.
My formulation is no less accurate than the conclusion in the Times article. But if you're a hammer everything looks like a nail, and if you're an advocate for same-sex marriage every problem looks like it's caused by denial of access to marriage. I just don't see it that way.
Here's an example. The article points out that when an employer provides health insurance to a same-sex partner it is taxed, while spousal coverage is not. True. But suggesting that the problem here is that same-sex couples can't marry misses the larger point. Why should any employer-provided health benefits be taxed? Salt Lake City allows an employee to cover anyone s/he lives with in an interdependent relationship. Many employers cover both same-sex and unmarried different-sex partners. In all those situations, the benefit is taxed. Spousal coverage gets special treatment. It shouldn't. A solution that ended that special treatment would reduce the "high cost of being a gay couple" as much as allowing same-sex couples to marry, and would be a better policy choice because it would encourage employers to recognize the actual families of their employees -- married or not.
Meanwhile, the article does not entirely ignore the fact that marriage helps those straight families who look like the male breadwinner and stay-at-home mother model that drives both our tax and social security system. So it would mostly help those same-sex couples who also have one high and one low income earner. The authors acknowledge that for an equal earning couple their social security payments don't vary depending on whether or not they are married. What they fail to mention is that many observers believe the current set-up fails to reflect modern family life and should be reformed...for straight married couples. Taking the current system as a given misses the opportunity to highlight the views of those who think it unconscionable that a family in which one person has earned most of the money pays less into social security and gets more out of it than a couple who have greater parity. Here's an example of one paper by the Urban Institute. They actually have an entire project about making social security more equitable.
Then there's this problem. The article posits the hypothetical couple having a joint income of $140,000 a year. This perpetuates the myth of gay affluence, something roundly debunked by the careful research of the Williams Institute. And for poor same-sex couples, they are, like different-sex unmarried couples, sometimes better off not being married (the Earned Income Tax Credit is one example.) In fact, you'd never know it from this article that lawyers who specialize in elder law often advise their heterosexual couple clients not to marry. If one partner needs to spend down all assets to be eligible for medicaid nursing home care, the other can keep all of his or her assets if the couple isn't married. If they are married, they must spend down almost all of both of their assets.
But no partner in the hypothetical couples used as examples in the Times article needs nursing home care. Lucky them.
Wednesday, August 12, 2009
Important elder law publication...with a caveat
I was so excited to see the National Center for Lesbian Rights' new publication, Planning with Purpose: Legal Basics for LGBT Elders, available on line here. Basically, I love any publication that explains the law to people in a clear and useful way.
So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.
The publication importantly notes the rules that protect a spouse's right to stay in a home if one spouse goes into a nursing home on Medicaid. There is also a set-aside of a certain amount of assets. But the publication completely ignores the fact that if one partner owns most of the assets and it is the other partner who needs nursing home care, then being UNMARRIED is the best economic protection. That's because an unmarried person's property is his/her own; none of it needs to go towards the care of the person in the nursing home. If the couple were married, all of the assets of both partners, with limited exceptions, would have to go towards the care of the partner in the nursing home. Furthermore, if the couple owns a house together, elder law experts say that the unmarried co-owner will be allowed to remain in the home.
Now when an unmarried heterosexual couple sees an elder law specialist to learn the consequences of getting married, the lawyer will relate these rules. The couple may decide not to marry because of the different treatment of married and unmarried couples. The NCLR publication just does not present the information a same-sex couple would need to make a similar decision if DOMA repeal meant that a same-sex couple's marriage WOULD be recognized under federal law.
The publication also discusses the disadvantages same-sex couples face under social security law, but it again fails to put the status of unmarried couples in the context of who gets what social security benefits. This is a criticm I leveled at GLAD's lawsuit challenging DOMA. Read about that here.
So here is my question. Why present our inability to marry and obtain federal recognition of those marriages as always a bad thing when it is not? This is a huge oversight in a publication about elders. After all, heterosexual elders have been choosing to live together without marrying since before it was even socially acceptable to do so. (You know...they were companions.)
To me this is the triumph of a pro-marriage ideology over the goal that any LGBT publication should have --- accurate and complete information.
So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.
The publication importantly notes the rules that protect a spouse's right to stay in a home if one spouse goes into a nursing home on Medicaid. There is also a set-aside of a certain amount of assets. But the publication completely ignores the fact that if one partner owns most of the assets and it is the other partner who needs nursing home care, then being UNMARRIED is the best economic protection. That's because an unmarried person's property is his/her own; none of it needs to go towards the care of the person in the nursing home. If the couple were married, all of the assets of both partners, with limited exceptions, would have to go towards the care of the partner in the nursing home. Furthermore, if the couple owns a house together, elder law experts say that the unmarried co-owner will be allowed to remain in the home.
Now when an unmarried heterosexual couple sees an elder law specialist to learn the consequences of getting married, the lawyer will relate these rules. The couple may decide not to marry because of the different treatment of married and unmarried couples. The NCLR publication just does not present the information a same-sex couple would need to make a similar decision if DOMA repeal meant that a same-sex couple's marriage WOULD be recognized under federal law.
The publication also discusses the disadvantages same-sex couples face under social security law, but it again fails to put the status of unmarried couples in the context of who gets what social security benefits. This is a criticm I leveled at GLAD's lawsuit challenging DOMA. Read about that here.
So here is my question. Why present our inability to marry and obtain federal recognition of those marriages as always a bad thing when it is not? This is a huge oversight in a publication about elders. After all, heterosexual elders have been choosing to live together without marrying since before it was even socially acceptable to do so. (You know...they were companions.)
To me this is the triumph of a pro-marriage ideology over the goal that any LGBT publication should have --- accurate and complete information.
Saturday, April 25, 2009
Lambda Legal gets big win for children of disabled parent...but the case shows the risk of parentage orders
Lambda Legal announced this week that the Social Security Administration has agreed to grant child benefits to the two children of a father receiving social security disability benefits. The issue concerned recognition of the parent-child relationship based on two California parentage orders declaring Gary Day the father of his two children. Day now lives in Florida.
SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.
Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.
Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.
This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.
Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.
Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.
This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.
SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.
Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.
Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.
This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.
Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.
Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.
This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.
Thursday, April 16, 2009
How about the whole story on taxes and same-sex married couples?
Gary Gates does amazing work. He is singlehandedly responsible for the wealth of knowledge we have about same-sex couples from census data. I turn to him for data for my own work. But his co-authored Huffington Post piece today doesn’t tell the whole story about same-sex couples and taxes.
What he writes about is the unfairness of treating married same-sex couples as unmarried for purposes of federal law. Unlike GLAD’s lawsuit challenging DOMA, he steers clear of examples of same-sex couples who pay more federal income tax because they are treated as single individuals. I’m figuring that’s because he knows that for close-to- equal-earning same-sex couples, they do better being considered unmarried under federal law. The married couples who pay less in federal income tax are those who are the single-earner model, mirroring the husband-at-work and wife-at-home marriage that lawmakers had in mind when they enacted our tax code. I find it unjust that the tax system rewards such families at the expense of equal earners, whether those couples are gay or straight.
Gary Gates does mention Social Security. As I explained in an earlier post about the GLAD lawsuit, our system of Social Security survivors benefits also favors the traditional, gendered model of a single, or at least one primary, income earner. Dual income married couples pay more into the system and get less out over the course of both their lifetimes than the traditional, gendered model. Race-based critiques of Social Security point out that since Black married couples are more likely to both work and to have more equal incomes, the current system disadvantages them.
What should the gay rights movement do? Rather than complain about our lack of access to a set of laws that benefits only some members of our community, how about we work with other groups who want to reform family taxation and Social Security rules for everyone? I wrote about this last year. I'd love to have something different to report for tax day 2010.
What he writes about is the unfairness of treating married same-sex couples as unmarried for purposes of federal law. Unlike GLAD’s lawsuit challenging DOMA, he steers clear of examples of same-sex couples who pay more federal income tax because they are treated as single individuals. I’m figuring that’s because he knows that for close-to- equal-earning same-sex couples, they do better being considered unmarried under federal law. The married couples who pay less in federal income tax are those who are the single-earner model, mirroring the husband-at-work and wife-at-home marriage that lawmakers had in mind when they enacted our tax code. I find it unjust that the tax system rewards such families at the expense of equal earners, whether those couples are gay or straight.
Gary Gates does mention Social Security. As I explained in an earlier post about the GLAD lawsuit, our system of Social Security survivors benefits also favors the traditional, gendered model of a single, or at least one primary, income earner. Dual income married couples pay more into the system and get less out over the course of both their lifetimes than the traditional, gendered model. Race-based critiques of Social Security point out that since Black married couples are more likely to both work and to have more equal incomes, the current system disadvantages them.
What should the gay rights movement do? Rather than complain about our lack of access to a set of laws that benefits only some members of our community, how about we work with other groups who want to reform family taxation and Social Security rules for everyone? I wrote about this last year. I'd love to have something different to report for tax day 2010.
Tuesday, March 3, 2009
The hidden inequalities behind the anti-DOMA litigation
I don't like the Defense of Marriage Act. It's an anti-gay measure, pure and simple. As a political matter, GLAD's lawsuit seeking to overturn one part of the statute on Equal Protection grounds may turn out to be brave, or it may turn out to be reckless. But I've got a complaint whichever way it goes.
The equality denied some of the plaintiffs in GLAD's case is the equality to be treated as married under federal income tax and Social Security law. But those laws hurt only some same-sex couples -- those in which one partner earned all or most of the income. Equal-earning heterosexual married couples also lose out on the "marriage bonus" that our tax and Social Security laws grant couples who reflect the traditional gender norms in which the husband earns all or most of the income. Because African-American married couples are more likely than their white counterparts to be equal earners, they too get treated unfairly by a Social Security system explicitly designed to benefit the male-head-of-household family.
So this means that GLAD had to hand-pick its married same-sex couples for this lawsuit. Those with equal earners were not worse off with respect to Social Security benefits than their heterosexually married counterparts. And those with equal earners were probably better off for income tax purposes that they were treated as single under federal law. Those couples would have been lousy plaintiffs.
There has been advocacy on behalf of reforming Social Security laws to deal more justly with American families. I mean how fair is it exactly that a woman who raises two children on her own, working full time, is likely to wind up with less in Social Security benefits than a stay-at-home wife with a wealthy husband? or that equal-earner couples actually subsidize the benefits that go to couples that adhere to gendered norms? Reform efforts haven't gotten very far, and the reason is that knocking families with stay-at-home moms off of their privileged perch is fraught with political peril -- maybe more political peril that trying to repeal DOMA.
But I'm not happy spending the political capital of the gay rights movement to replicate within our community the inequalities that plague so many heterosexual couples.
The equality denied some of the plaintiffs in GLAD's case is the equality to be treated as married under federal income tax and Social Security law. But those laws hurt only some same-sex couples -- those in which one partner earned all or most of the income. Equal-earning heterosexual married couples also lose out on the "marriage bonus" that our tax and Social Security laws grant couples who reflect the traditional gender norms in which the husband earns all or most of the income. Because African-American married couples are more likely than their white counterparts to be equal earners, they too get treated unfairly by a Social Security system explicitly designed to benefit the male-head-of-household family.
So this means that GLAD had to hand-pick its married same-sex couples for this lawsuit. Those with equal earners were not worse off with respect to Social Security benefits than their heterosexually married counterparts. And those with equal earners were probably better off for income tax purposes that they were treated as single under federal law. Those couples would have been lousy plaintiffs.
There has been advocacy on behalf of reforming Social Security laws to deal more justly with American families. I mean how fair is it exactly that a woman who raises two children on her own, working full time, is likely to wind up with less in Social Security benefits than a stay-at-home wife with a wealthy husband? or that equal-earner couples actually subsidize the benefits that go to couples that adhere to gendered norms? Reform efforts haven't gotten very far, and the reason is that knocking families with stay-at-home moms off of their privileged perch is fraught with political peril -- maybe more political peril that trying to repeal DOMA.
But I'm not happy spending the political capital of the gay rights movement to replicate within our community the inequalities that plague so many heterosexual couples.
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