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.

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.