Recently, the Supreme Court of the United States rendered a decision through which it struck down key provisions of the Defense of Marriage Act, better known as DOMA. DOMA is a federal law that prevented same-sex couples from receiving any federal benefits, such as Social Security and Medicaid. DOMA said that whether or not a State recognized a same-sex couple as being legally married, the federal government must refuse to recognize that marriage for purposes of federal benefits.
By striking down DOMA, the Supreme Court left the door open for the federal government to treat opposite-sex and same-sex couples equally. For instance, the Court’s decision permits the federal government to give a surviving same-sex spouse Social Security benefits based upon the deceased same-sex spouse’s work history.
In the months since the Supreme Court’s decision, the federal government has begun bestowing equal benefits upon same-sex couples. For instance, the Social Security Administration changed its policy manual to recognize that same-sex couples who reside in states in which same-sex marriage is permitted are married for purposes of various federal benefits.
The Supreme Court’s recent decision and the federal government’s willingness to treat same-sex couples equally sets up a very interesting scenario in the state of New Jersey. A few years ago, the Supreme Court of New Jersey ruled that same-sex couples are entitled to the same rights as opposite-sex couples under this state’s constitution. New Jersey’s Supreme Court did not say that the legislature must permit same-sex couples to marry, but it did say that same-sex couples must be provided with a mechanism through which they can receive marriage-like treatment under the law.
In reaction to this decision, New Jersey’s legislature created what are known as domestic partnerships. Essentially, a domestic partnership is a legal partnership through which same-sex couples are supposedly entitled to all the rights to which a married opposite-sex couple would be entitled. As long as the legislature has given same-sex couples the same rights as opposite-sex couples, the legislature is complying with the New Jersey Supreme Court’s decision and our constitution.
For the past several years, same-sex couples have sought to challenge the fact that they cannot “marry” under our laws and can only enter domestic partnerships. The argument against them is, you are given all the same rights, it’s just not called marriage.
Governor Christie is against same-sex marriage. He believes the right of same-sex couples to marry should be left up to the constituents, and that the issue should be put to a referendum vote. Essentially, a majority of the people would vote on whether or not same-sex couples should marry.
Personally, I believe same-sex couples should be permitted to marry. They aren’t asking to be married in a church or a temple. Such a request would be up to the religious organization, and if the religious organization refused the request, there is nothing the government could do about that, as there is a separation of church and state in this country.
Same-sex couples are asking to be treated equally under the law. Many of us say we live in a great country, an exceptional country, but it is hard to believe that statement when a percentage of our population is denied fundamental rights.
The arguments against same-sex marriage are weak. People worry that such marriages will degrade the sanctity of marriage. Approximately 50% of the marriages end in divorce. Do all those divorces degrade the sanctity of marriage? Permitting same-sex couples to marry isn’t going to degrade the sanctity of my marriage.
The recent amendment to the Social Security Administration’s policy manual lists the states that permit same-sex marriage and from which same-sex couples are entitled to shared federal benefits. New Jersey is not on the list.
This fact, in and of itself, sets up the right of same-sex couples to petition our Supreme Court and request that the Court fulfill its decision holding that they are entitled to equal protection under our constitution. This issue has reach an inevitable conclusion; some people just haven’t accepted it yet.
Understanding inequalities in elder law empowers you to take steps that protect your family and ensure fair treatment under the law.