Same-Sex Marriages

Gay Marriages

When I have discussed gay marriage with some conservatives, they strongly opposed using the word marriage for gays. Yet many of them accepted that gay partners should have the right to sign contracts that determine the inheritance of their property, provide various stipulations about living arrangement, the disposition of assets in case they breakup, and many other conditions. Most of these persons might accept, I believe, that a gay partner can qualify for the social security benefits that spouses get, can be covered under employment medical plans of their partner, and so forth. But to call these contracts “marriage” makes them see red. It is not that they believe (and I agree with them) that allowing the word marriage will significantly increase the extent of homosexuality. Whether homosexuality is due to genes or environment, allowing the term gay marriage to be used is likely to be a very small factor in determining the number of men and women who become gay.

The objections to gay marriage seem even stranger when one recognizes that gay couples have been allowed for a while to engage in much more significant behavior that has been associated throughout history with heterosexual couples. I am referring to the rights that gay couples already possess to adopt children, or to have one lesbian partner use sperm from a male to become pregnant, bring a fetus to term, and have a baby that the lesbian partners raise together, or the right of one gay male partner to impregnate a woman who bears a child that is raised by the two gay partners. No one knows yet what is the effect on children of being raised by a gay couple. Yet it is a far more important departure from how children have been raised throughout history, with potentially much greater consequences, than using the word marriage to describe a gay union. I believe, although there is little evidence yet, that the effects on children raised by gay couples will usually be quite negative, in part because fathers and mothers have distinct but important roles, in part because their family structures will differ so greatly from that of their classmates and other peers. Another reason is that gay couples tend to have much less stable relations than heterosexual couples, although the data that demonstrate this is mainly from gay couples without children. To the extent the greater turnover extends to gay couples with children, which I believe it will, then greater turnover adds a further complication and difficulty for the children raised by gay couples. So given this radical change when children are conceived and raised by gay couples, I find the furor stemming from the desire to use the term “marriage” to describe a union between two gays to be quaint and incomprehensible. But there is commotion and anger about gay marriage, both pro and con. and whether justified or not.

Given the strength of these convictions, it is better to have the issue of gay marriage resolved by the legislative process of different states rather than by largely arbitrary judicial decisions that may support or oppose the use of the word marriage to describe unions of homosexuals. Whatever the outcome of such legislation, gay couples should have the right to contracts that specify their desired asset allocation, conditions, if any, under which they can break-up, visitation rights if they have children and break-up, and any other aspects of their relation that they consider relevant. With the enforcement of these contracts, they would have practically all the rights that married heterosexual couples have, even when they cannot call their relation marriage. Indeed, I have long argued (see, for example, my 1985 Business Week column reprinted in G. S. Becker and G. N. Becker, The Economics of Life) that heterosexual unions should be based on contract rather than judicial decisions or legislative actions. Contracts are more flexible instruments than laws since they allow the terms of a marriage to fit the special needs of particular couples. The courts would become involved only in seeing that the contract is being enforced when one party believes it is not, and in insuring that adequate provision is made for any children if a marriage dissolves. If married heterosexual couples also had to base their relations mainly on contract, as I continue to advocate, gay couples may not feel strongly that they suffer from discrimination if they cannot be considered legally “married”. I agree with Posner that the contractual approach is not likely to be adopted in the foreseeable future. However, it does suggest that gay couples might actually be in a better position than heterosexual couples if gay couples could use contracts to define their rights and obligations, while heterosexual couples were mainly subject to less flexible judicial and legislative law. In fact, courts frequently override the provisions of marital contracts among heterosexuals, which they may be less likely to do when dealing with contracts between gays.

Author: Becker, defunct

Treasury Tax Ruling Recognizing All Legal Same-Sex Marriages

In a ruling that implemented the Supreme Court’s June decision invalidating a key provision of the Defense of Marriage Act, Treasury and the IRS announced in August 2013 that all legal same-sex marriages will be recognized for federal tax purposes.

The decision is notable because it provides same-sex couples with the certainty that their federal filing status will remain the same regardless of where they move throughout the country. The ruling determined that, if a same-sex couple’s marriage took place in a state or jurisdiction where it is legally recognized, the couple will be treated as married for all related federal tax provisions. This even applies if the couple relocates to a state where same-sex marriage is not recognized.

U.S. Treasury Secretary Jacob J. Lew further outlined the significant impact of this ruling last week, by explaining that it “provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve.”

This decision garnered an overwhelmingly positive response across a broad spectrum of individuals, advocacy groups and media outlets, including:

Affirmations (Michigan): Spokesperson Cassandra Varner. “The IRS has sent a clear message to the United States about same-sex couples being treated equally when it comes to federal taxes…. Being treated equally is not some casual luxury same-sex couples should hope for. It’s a fundamental right that every human deserves.”

Charlotte Observer (Editorial). “Just as we lauded the DOMA ruling for overturning a law that denied gays protections the U.S. Constitution guarantees, we applaud this Treasury move. It gives gays the same federal tax benefits that opposite-sex couples receive.”

Congressional LGBT Equality Caucus Co-Chair and U.S. Representative Mark Pocan (D-WI). “I applaud the Department of Treasury for siding with equality and treating all legally married couples in America the same. Loving same-sex couples should not be afraid they could lose their federal benefits or protections simply by moving to another state. Today’s decision continues our nation’s forceful progress toward recognizing the rights and responsibilities of all loving couples.”

Empire State Pride Agenda: Executive Director Nathan M. Schaefer. “We’re grateful to President Barack Obama and Department of Treasury Secretary Jack Lew for their leadership and for their swift and thoughtful implementation of the Supreme Court ruling on DOMA. All legally married couples now have access to the same federal tax purposes, and we’re one big step closer to full equality under the law.”

Equality Pennsylvania: Executive Director Ted Martin. “Since the Supreme Court struck down the so-called Defense of Marriage Act, the Obama Administration has shown historic leadership, evaluating all federal policies and taking critical steps to ensure that all legally married couples have equal protection under the law. To be sure, this ruling is a tremendous and historic step forward, and across Pennsylvania, thousands of loving, committed same-sex couples are celebrating…”

Family Equality Council: Executive Director Gabriel Blau. “This announcement is yet another giant step forward for our families. The Federal Government will now acknowledge same-sex couples, and their children, as a family under the tax code regardless of their zip code… This is a significant win for the millions of our families who work hard, pay taxes and deserve to be recognized equally by the Federal Government. Once again the Obama Administration has demonstrated that they value the lives and contributions of the 3 million LGBT parents in the US raising 6 million children, and will no longer financially penalize them for who they are.”

Freedom to Marry: Founder and President Evan Wolfson. “This announcement makes today a day of celebration and relief for married same-sex couples all over America. At long last, the IRS will treat them as what they are: married. Freedom to Marry commends the administration’s swift implementation of the Supreme Court’s landmark ruling for federal equality in an area that will have a direct, tangible impact on families’ financial health. The fact that this new respect applies only to married couples – not those joined by domestic partnerships or civil unions – highlights the need for an America where everyone can marry the person they love in any state, and have that marriage respected at all levels of government.”

Gay & Lesbian Alliance Against Defamation (GLAAD): Spokesperson Wilson Cruz. “Today, America moves one step closer to ‘liberty and justice for all.’ Equal federal tax protections will not only endow legally married same-sex couples with the respect and dignity they deserve, but will also provide critical financial security for countless loving families.”

Human Rights Campaign (HRC): President Chad Griffin. “With today’s ruling, committed and loving gay and lesbian married couples will now be treated equally under our nation’s federal tax laws, regardless of what state they call home. These families finally have access to crucial tax benefits and protections previously denied to them under the discriminatory Defense of Marriage Act.”

Minnesota Revenue: Revenue Commissioner Myron Frans. “I think the impact for Minnesota is we have clarity for all married couples and uniform treatment, consistent treatment for all married couples, regardless of where they’re residing.”

New York Times (Editorial). “The I.R.S. change is the broadest to come out of the landmark court ruling, affecting virtually every married same-sex couple in the United States. The move to recognize all same-sex couples’ marriages will reduce the harm to those who get married in one of the states where same-sex marriage is legal but reside in a state that does not recognize their unions. ”

Washington Post (Editorial). “In what is arguably the federal government’s most significant rule change since the Supreme Court’s watershed June decision striking down the federal Defense of Marriage Act (DOMA), the Treasury Department and its Internal Revenue Service (IRS) have mandated that all legally married same-sex couples be treated as such for the purposes of federal taxation. Although 37 states still don’t recognize gay marriage, the federal government has taken a powerful step in equalizing standards for same-sex couples, no matter what state they call home… It’s heartening to see the federal government prioritize this issue and mobilize itself so quickly to implement the Supreme Court decision… the updated IRS standards are a welcome addition and an important step in the nuts-and-bolts implementation of equality.”