Economic View: Gay Marriage Debate Is About Money, Too

• If Pat and Chris want to form a business partnership in your home state, should their sexes play any role in determining whether that partnership is legal?

• Should the government play any role in deciding the rules regarding religious ceremonies like christenings and bar mitzvahs?

If you answered “no” to both questions, you are on your way to solving the same-sex marriage debate in the United States.

Early this month, a federal appeals court panel declared unconstitutional a California ballot measure making same-sex marriage illegal. Although the decision produced headlines and strong emotional reactions on both sides, the case boiled down to a single question: Are same-sex couples entitled to call themselves “married”?

Nothing else was at stake, because same-sex couples in California are eligible to form domestic partnerships that grant, in the court’s words, “virtually all the benefits and responsibilities afforded by California law to married opposite-sex couples.” Same-sex couples already had the right to live together, have sex, adopt children and so forth. They just could not call themselves married. Clearly that word is important to people on both sides of this issue.

At the federal level, however, the fight is not just about words; it is also about money. Federal law bestows a long list of rights — more than 1,000 — on legally married couples. Spouses may give each other unlimited bequests tax free, and they are permitted to file joint tax returns. If one spouse is a citizen, the other can become a citizen, too, and spouses get special treatment from Social Security. For some couples, a lot of money is on the line. That’s why you are reading this column in the business section.

People in domestic partnerships, as well as gay couples who were legally married in a state, cannot get these federal benefits. That’s because of the 1996 Defense of Marriage Act, which says, “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” So, although the headlines are being made by legislation and court decisions at the state level, the financial aspects of same-sex marriage are, for the most part, controlled at the federal level.

The Defense of Marriage Act renders the positions of some politicians logically untenable. For example, in a Dec. 15 debate among Republican presidential hopefuls, Mitt Romney said: “I’m firmly in support of people not being discriminated against based upon their sexual orientation. At the same time, I oppose same-sex marriage.” Under current law, that is like saying 2+2=5.

President Obama’s view is not explicitly contradictory, but he still has a quandary. He says marriage is between a man and a woman — though he says his view is “evolving.” But unlike Mr. Romney, President Obama does not support the Defense of Marriage Act and has instructed his legal team not to defend the law in court. Still, he has not spelled out what he thinks should happen if the law is ruled unconstitutional.

Fortunately, there is a simple solution to this problem, one that, based on their stated views, both Mr. Obama and Mr. Romney might support, along with anyone else who answered “no” to my two opening questions.

Congress should amend the Defense of Marriage Act to replace the sentence I quoted earlier with the following: “Wherever the word ‘marriage’ appears in any federal statute, replace that word with the phrase ‘domestic partnership between two people valid under the laws of the state where it was obtained.’ ”

I am not a lawyer, so I will not try to spell out all the details of how this would work. But here is a rough outline of a plan: In my ideal world, all states would follow the federal lead. The legal unions that are now called marriages would be called domestic partnerships, which would be offered to same-sex as well as heterosexual couples. But if some states are unwilling to enact such statutes, same-sex couples who live in those states could simply go to a state that does offer same-sex domestic partnerships, and would then be treated as such by the federal government, with all the attendant financial benefits and responsibilities. Companies can choose the state in which they incorporate, so couples should have that privilege, too.

Marriage, of course, would continue, but would no longer be regulated by the government. Instead, weddings would become like many other important ceremonies from graduations to funerals: private matters. (Conservatives may applaud now.)

And anyone who believes in freedom of religion should support this proposal, because religions would have complete freedom to decide their criteria for marriages. One church could decide to marry only heterosexual members, while another might choose to marry only same-sex couples who are Cubs fans. Our founding fathers would be proud.

IT is worth remembering that interracial marriage was still against the law in some states until a unanimous 1967 Supreme Court decision declared such laws unconstitutional. The case, Loving v. Virginia, was brought when the police entered the bedroom of the wonderfully named Mr. and Mrs. Loving, hoping to find them engaged in sex, also against the law for mixed-race couples at that time.

That such laws — and police actions — were still in place less than 50 years ago seems mind-boggling today. Even more astonishing is that similar laws and police actions were applied to gay people until a 2003 Supreme Court ruling, Lawrence v. Texas. In the not-too-distant future, people will be saying the same about our current marriage law. Americans between the ages of 18 and 34 overwhelmingly support same-sex marriage. The times they are a changin’.

Although I think this proposal is reasonable, I don’t expect the current Congress to pass it anytime soon. That’s too bad, because, by failing to act, Congress will force this matter to be handled by the courts, which will be addressing these issues in coming cases. Those who are opposed to “activist courts” should take note that the inherent inequality of the current system, and its likely unconstitutionality, combined with Congressional inaction, is what will require action by judges.

Richard H. Thaler is a professor of economics and behavioral science at the Booth School of Business at the University of Chicago.

View the original article here

Gay Marriage, Passed, Awaits Veto by Christie

In two hours of passionate debate, Democrats supporting the measure urged their colleagues to make history, comparing the fight for legalization of same-sex marriage to battles for women’s suffrage and against racism.

“We can make a giant leap forward today in the fight against one of the last legalized barriers to equal rights,” said Sheila Y. Oliver, the Assembly speaker, whose voice broke at several points as she exhorted her colleagues to support the bill.

The State Senate passed a similar bill on Monday; the Assembly vote was the first time the Legislature united in endorsing same-sex marriage.

And the vote, passing 42 to 33, underscored how much opinion has shifted since two years ago, when the Senate rejected a similar bill. New York State legalized same-sex marriage last year, and this month Washington State did so. The bill passed on Thursday would make New Jersey the eighth state that allows gay and lesbian couples to marry.

But advocates for the bill in New Jersey face a new fight: trying to win enough votes to override the governor’s expected veto.

Mr. Christie is a rising star in the Republican Party, in which any politician with national ambitions must consider social conservatives who oppose same-sex marriage. After New Jersey Democrats, who control the Legislature, said they would make same-sex marriage a top priority this year, the governor proposed putting the issue to voters in a referendum in November.

On Thursday, Mr. Christie declared the Legislature’s action merely “an exercise in theater.”

“I’ve given them an alternative,” said Mr. Christie, who spent the day holding a news conference to announce that WrestleMania was coming to MetLife Stadium in 2013 and appearing at a fund-raiser for a Republican running for the United States Senate. “Put it on the ballot and let the people decide.”

Democrats have accused him of avoiding an issue that could hurt his national prospects, and said they would refuse to pass the legislation required to put a referendum on the ballot.

Mr. Christie has 45 days to veto the bill. If he does, the Democrats will have nearly two years to muster the two-thirds majority needed to override it.

“We’re going to take the time we need, assisted by a changing world,” said Steven Goldstein, the chairman of Garden State Equality, a gay rights group. “Look at how the world has changed from two years ago.”

While the measure in the Senate found only 14 votes in 2010, this week it passed with 24. Assembly Democrats said they would have had two more votes, from Republicans, if two members had not been on vacation. Four Democrats voted against the bill on Thursday, and no Republicans voted in favor.

Mr. Goldstein said his group’s budget this year was one-tenth what it was two years ago. National advocacy groups did not put as much money into the battle, disappointed over the failure of the legislation two years ago. Instead, he said, supporters will push their case in person, reminding legislators that same-sex couples are their relatives and friends.

The governor’s refusal to support same-sex marriage could also backfire, some noted.

“The meanness question is going to come out,” said Assemblyman Reed Gusciora of Mercer County, one of two openly gay members of the Legislature and the bill’s chief sponsor.

An override would be easier in the Senate, where it would need 27 votes; in the Assembly, it would require 54.

The debate on Thursday, however, reflected the shifting landscape. Several legislators who are leaders in black churches that oppose same-sex marriage spoke of agonizing over the legislation but ultimately deciding to support it.

View the original article here