Sunday, September 23, 2007
In the wake of their defeat last week in the Maryland Court of Appeals, gay rights advocates are turning to the General Assembly, where sympathetic legislators will introduce a bill allowing same-sex couples to marry. The legislature should take this opportunity to reevaluate the place of marriage -- straight or gay -- in the state's laws.
The Court of Appeals recognized that most households no longer follow "the traditional model of what constitutes a family." All families and households need the economic stability and emotional peace of mind that usually extend only to married couples. Unmarried couples of any sexual orientation, single mothers pooling resources to raise their children together, committed friends or siblings who live together, and intergenerational households are just some of the many family forms that need recognition and protection. The General Assembly should put Maryland in the forefront of valuing all families.
Maryland already has at least one model law to draw on. When an employee dies on the job, the state awards workers' compensation death benefits to anyone who depended on the person who died. Marriage is not a requirement. As far back as 1950, the Maryland Court of Appeals ruled that workers' comp is "not a code of morals." Rather, it's designed to economically protect workers and those who depend on them. The legislature should extend this reasoning to other laws. All death benefits should be based on dependency, not marriage. Wrongful-death lawsuits should also be available to anyone who financially depended on the person who died; that's the law now in West Virginia.
The General Assembly can find other models for laws that value all families. In Salt Lake City an employee can cover on her health insurance any economically dependent or interdependent adult she has lived with for a year and intends to continue living with, as well as that person's children. The federal government allows employees to use paid sick leave to care for anyone close enough to have "the equivalent of a family relationship."
Washington state allows courts to equitably divide the property of unmarried couples when they separate. The District of Columbia gives unmarried partners priority in making health-care decisions when one partner is incapacitated. New York gives unmarried partners priority in disposing of remains. Colorado admits a will to probate even if it lacks all the will formalities, if it can be proven that the deceased intended the document to be his will. This last provision would have protected Maryland marriage plaintiff John Lestitian, who lost his home when his partner died because his partner's will had only one witness instead of the required two.
These changes in the law would address many of the concrete harms that drove the Maryland plaintiffs to seek access to marriage. Marriage is no longer the way many people arrange their families, so privileging marriage leaves too many Marylanders unprotected, often at their most vulnerable times. Marriage equality for same-sex couples is a civil rights victory, but it's not the fix to what's wrong with the law of families today. That requires laws that don't draw a bright line between married couples and everyone else.
-- Nancy D. Polikoff
The writer is a professor of law at American University's Washington College of Law.