Nancy Polikoff

The hidden inequalities behind the anti-DOMA litigation

Filed By Nancy Polikoff | March 03, 2009 1:30 PM | comments

Filed in: Marriage Equality, The Movement
Tags: Defense of Marriage Act, DOMA, gay marriage, GLAD, same-sex marriage, Social Security

I don't like the Defense of Marriage Act. It's an anti-gay measure, pure and simple. As a political matter, GLAD's lawsuit seeking to overturn one part of the statute on Equal Protection grounds may turn out to be brave, or it may turn out to be reckless. But I've got a complaint whichever way it goes.

The equality denied some of the plaintiffs in GLAD's case is the equality to be treated as married under federal income tax and Social Security law. But those laws hurt only some same-sex couples -- those in which one partner earned all or most of the income.

Equal-earning heterosexual married couples also lose out on the "marriage bonus" that our tax and Social Security laws grant couples who reflect the traditional gender norms in which the husband earns all or most of the income. Because African-American married couples are more likely than their white counterparts to be equal earners, they too get treated unfairly by a Social Security system explicitly designed to benefit the male-head-of-household family.

So this means that GLAD had to hand-pick its married same-sex couples for this lawsuit. Those with equal earners were not worse off with respect to Social Security benefits than their heterosexually married counterparts. And those with equal earners were probably better off for income tax purposes that they were treated as single under federal law. Those couples would have been lousy plaintiffs.

There has been advocacy on behalf of reforming Social Security laws to deal more justly with American families. I mean how fair is it exactly that a woman who raises two children on her own, working full time, is likely to wind up with less in Social Security benefits than a stay-at-home wife with a wealthy husband? or that equal-earner couples actually subsidize the benefits that go to couples that adhere to gendered norms? Reform efforts haven't gotten very far, and the reason is that knocking families with stay-at-home moms off of their privileged perch is fraught with political peril -- maybe more political peril that trying to repeal DOMA.

But I'm not happy spending the political capital of the gay rights movement to replicate within our community the inequalities that plague so many heterosexual couples.

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Michael M. | March 3, 2009 2:39 PM

This is what happens when you allow a duopoly party system that cares, primarily, about enhancing its own power to erect a massive federal apparatus designed to enforce social norms, among other things.

"Reform" isn't going to happen until that duopoly's stranglehold is broken. As it is, we've elected a President and populated Congress with people who are even more committed to expanding the reach of the federal government into the minutiae of our lives than were the last President and Congress. The gay rights movement has little choice but to play along if it wants to accomplish anything, which at least partially explains the movement's overwhelming support for a man who repeatedly reaffirmed that he does not support marriage equality.

VERY interesting - I never knew this, or thought about it. Thanks for bringing it up.

While I agree with the entire post, I had to laugh at this sentence:

So this means that GLAD had to hand-pick its married same-sex couples for this lawsuit.

Don't lawyers always pick and choose their plaintiffs for cases like these? The part that made me laugh was picturing GLAD as Denny Crane from Boston Legal.

Bill Perdue Bill Perdue | March 3, 2009 10:39 PM

"The gay rights movement has little choice but to play along if it wants to accomplish anything" had some validity as an explanation, as opposed to a justification, for much of the political pussyfooting and back stepping that’s gone on since Clinton.

But that was then and this is now. The political context in which our struggle unfolds is changing for the better.

Obama is not just a bigot; he's a war president who's war policies will make him as unpopular as Nixon. Beyond that he and the Democrats are driving the economic collapse even deeper by constant bailouts of the rich and a policy of demanding take backs from unions and working people as a whole.

The upshot of all this will have two very positive effects for us.

First it's reenergizing all the movements for social change, including the heavy infantry, trade unions.

Second, as the shock of homelessness and joblessness wears off it’ll be replaced by rage and a determination to set things right on a fundamental basis. Political and class polarization will tend to become extreme and widespread from now on as the ‘social contract’ shatters under repeated blows.

Our battlefield is changing fast. Our job is to keep up by building an independent GLBT leftwing organized nationwide and on democratic lines with an elected leadership and a democratically decided strategy. Independent means not controlled by Democrats or their front groups like HRC.

Bill Perdue Bill Perdue | March 3, 2009 10:42 PM

^^^^ Sorry, that should have been a reply to Michael M.s Comments.

DanaRSullivan | March 4, 2009 1:02 PM

I wonder how many couples who are unequal earners really fit into the traditional "stay at home wife" model. I'm sure many do, but what about situations where one partner is disabled, or where they just chose career paths with very different salary expectations? Also, with multiple young kids, having one stay-at-home parent can be an economic necessity when daycare costs more than your job is paying you. I agree that repealing this part of DOMA doesn't benefit everyone, but it's not necessarily targeted solely for the white-picket-fence crowd.

I know it's heresy to talk about it, but what about just equalizing people's social security benefits? Everyone gets the same thing if they've worked for a certain number of years, or something along those lines.

although I don't think these problems will be solved any time soon since Obama indicated that Social Security reform is off the table. Sure, he was referring to benefits cuts and privatization schemes, but I think that's where something like this would happen - in a larger bill to change Social Security.

Bil-True, lawyers always pick their plaintiffs. In this case, though, some married couples would not just be unappealing in general but would actually not be harmed by DOMA.
Alex-One of the reforms suggested by the Urban Institute in its work on Social Security and the family was essentially a guaranteed minimum benefit for everyone -- an old age benefit not tied to work. Here's one site:
I wish gay rights groups were part of this discussion.