Tuesday, January 14, 2014
Deborah Widiss (Indiana-Bloomington) has posted on SSRN her new essay, forthcoming in the Indiana Law Journal: Leveling Up After DOMA.
Here is the abstract:
Even though the provision of the Defense of Marriage Act precluding federal recognition of same-sex marriages has been held unconstitutional, more than half of the nation’s same-sex couples remain ineligible for full federal marriage rights because they live in states that do not recognize same-sex marriage. The common response to this problem is to urge Congress to enact a uniform “place of celebration” rule under which any lawful marriage would be recognized as valid for federal purposes, and many federal agencies have adopted this rule in implementing discrete statutes that reference marriage. This approach mitigates the inequity of current policy, but it has significant weaknesses that have not been adequately considered. It requires same-sex couples to travel out-of-state — and often very significant distances — to marry simply to claim federal benefits, imposing an unfair burden on same-sex couples and one which will likely further exacerbate class-based variation in marriage rates. And it increases the risk that some same-sex couples will become trapped in unwanted marriages, because jurisdictional rules typically require couples divorce in their home state and many states refuse to recognize same-sex marriages even to dissolve them.
This invited essay challenges the underlying assumption that state-licensed marriages should continue to be the exclusive mechanism for accessing core federal rights. It advocates instead creation of a federal domestic partner or “marriage” registry available to (at least) same-sex couples wherever they live. This would effectively “level up” federal marriage policy to address the discrimination against same-sex couples left in DOMA’s wake. It also suggests that a federal domestic partner registry could be structured to make at least some federal marriage rights more generally available to unmarried same-sex and different-sex couples who meet specific criteria. Even if, at some point, same-sex couples are permitted to marry in all states and the problem of derivative federal discrimination disappears, broader trends suggest that cohabitation and non-marital childbearing rates will continue to rise. A domestic partner registry could be a vehicle for more fairly and effectively distributing government benefits, rights, and obligations among diverse family forms.
Although not a traditional employment law piece, its premises are very relevant for ERISA, FMLA, and other employment-related issues. A very thought provoking proposal by Deborah, and one that should be considered seriously by policy-makers.