Category Archives: United States of America

What’s Your “Gender” Role?

thThe old stay-at-home wife and bread-winner husband model of society went out the window with black and white TV.  So how does any marriage gay or straight define household roles and rules?  What do you do in your family?

Supreme Court Justice Ruth Bader Ginsburg explained exactly why marriage was long understood to be incompatible with homosexuality in just five sentences:

[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “[t]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.

Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.

So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.

But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

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Social Security Only In “Legal” States

The Social Security Administration announced on Friday that it will begin offering partner benefits to same-sex couples, but  BuzzFeed reports the benefits will not be applied as consistently as some other federal benefits available to same-sex couples since the Supreme Court overturned the Defense of Marriage Act.  For now only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit.

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The National Battle Continues…

In Washington, the Obama administration is moving with commendable diligence and speed to extend benefits like health care, life insurance and immigration rights to gay and lesbian married couples. We took special satisfaction from the memo sent out by the chief administrative officer of the Republican-led House informing all 435 representatives and their staff members in all 50 states that they have 60 days to enroll their same-sex spouses for benefits like vision, dental and long-term care insurance and survivors’ annuities.

House Republicans spent millions of taxpayer dollars on private lawyers’ fees to defend the Defense of Marriage Act’s indefensible discrimination when the Obama administration decided it would no longer do so.

Even now, though, there is a serious risk that legally married individuals will lose out on valuable Social Security and veterans’ benefits because language in the applicable statutes seems to determine whether couples are married based on where they live rather than where their marriage was celebrated.

The Justice Department should be exploring every legal route around that, but there should be no need for straining. A newly reintroduced bill would fulfill the letter and spirit of the Defense of Marriage Act ruling by ensuring that the elderly, veterans who risked their lives for their country and others are not excluded from federal benefits even if they live in states where their marriages are not recognized.

From the New York Times

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