Tuesday, February 14, 2012

"As If Married"

In the 9th Circuit's recent Prop 8 opinion, the Court noted:

"... 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a lifelong committed relationship, a marriage by the name 'registered domestic partnership' does not."

As someone in a legal civil union with my same-sex partner, I think about this issue a lot.

In Illinois, the state Department of Revenue is requiring same-sex couples in civil unions to file their state taxes as married. Because of the Defense of Marriage Act (DOMA), however, same-sex couples in legal civil unions cannot file their federal taxes as married; they must file as single individuals. Complicating matters, in order to complete an Illinois tax return, one has to include numbers from one's federal return.

What this tangibly means is that people in same-sex civil unions will have to:

a) Complete and file a federal tax return as an individual;
b) Complete (but not actually file) a separate "fake" federal tax return "as if married" in order to get certain numbers to use on the Illinois return; and
c) Complete and file a state of Illinois tax return as married.


Aside from the extra time, effort, and cost that same-sex couples in Illinois will have to go through in filing their returns this year, isn't that phrase, "as if married," interesting?

The Illinois Department of Revenue, in its guidance to same-sex couples, actually used the lingo "as-if-married" to describe the federal filing status of same-sex couples in legal civil unions.

Civil unions and domestic partnerships are, for some, a compromise between giving same-sex couples the rights of marriage while preserving the word marriage for man-woman couples. They are supposed to be the thing that grants same-sex couples dignity while still letting people know that marriage is for the Normal People, or for the couples who are capable of procreation, or for couples who have the genitalia of those who are capable of procreating together even if they actually can't procreate together. Or.... something.

Yet, to me, this practical, tax-filing application of civil union/marriage law really illustrates what an absurd nod-and-a-wink "it's marriage, but not really marriage" scheme this separate-and-unequal arrangement really is.

The marriage/civil union arrangement makes a distinction between couples based, not on actual procreative ability, but on the gender composition of the partners in the relationship. Following from that distinction, the state (but not the federal government) funnels the same rights to these "different" couples through two separate licenses: a marriage license for the man-woman couples and a civil union license for the same-sex couples (or, to man-woman couples who choose the civil union license).

In this way, is the legal status of same-sex relationships in a constant state of flux.

Sometimes they are marriages. Sometimes they are civil unions. Sometimes they are "as-if-married"-types of relationships. And, sometimes, the partners in legal civil unions are complete legal strangers, say, when state borders are crossed, when certain forms have to be filled out, or when the federal government is involved.

Yet, if one can concede that a relationship is deserving of the same state-level rights as something called by a different name, is it really coherent or justifiable to call it by a different name? (Or, to treat it differently in different states, although that's a separate issue).

If a state granted licenses that allowed people to ride hoverboards on roadways would it make sense for the state to create two separate categories of licenses that granted the exact same rights? Imagine: The Generic Recreational License (for redheads only) and The Super FunTimes Hoverboard Permit (for everyone else). Sure, both licenses allow people to operate hoverboards and we all know that the licenses are the exact same except for the names.

But, wouldn't people wonder why the redheads are singled out in this way? Like, why couldn't they just call their licenses The Super Fun Times Hoverboard Permit too?

People would have legitimate reasons for asking why it had to be called something different if its legal effect was the same. People would have legitimate reasons for asking what people had against redheads. Or, saying, "if you're concerned about safety, then actually make the license hinge on a person's safety record rather than hair color."

I'm sure to some it seems silly that so much fuss is being made, on both sides of the marriage issue, over "just a word." I don't agree with Judge Reinhardt that "marriage" is for all people the relationship between two adults that "matters most," but the ferocity with which the word is fought over does demonstrate that the word is very important to many people. My point here is to suggest that the "same-sex couples can have everything except the word marriage" position begs a big question:

If same-sex couples are deserving of the same rights as man-woman couples, are same-sex couples really different enough from man-woman couples to justify calling their relationships something different?

[Cross-posted: Family Scholars Blog, Alas]

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