Legal Protection for Same-Sex Couples

As an attorney who has spent years conducting research on the advantages and disadvantages of marriage vs. living together, my viewpoint is a legal one, unobscured by religious or moral questions. Legal recognition of a status for these couples is called for, as is their current need for self-help in making the laws work for them while they are still in flux.

Traditionally and legally, marriage has been defined as a union of a man and woman. Changing that definition is at the heart of the problem. Marriage, throughout history, has had more to do with procreation than romantic love or legal convenience. This legal definition and the issue of procreation have both been used to bolster the denial of the right of same-sex marriage.

What same-sex couples need, and should have, is the ability to form a legal relationship. The semantics used to describe this relationship should not matter as much as the rights and duties arising from it. Denial of these rights is the discrimination same-sex couples decry. We should not forget that only during the last generation was the denial of the right of marriage to members of different races overturned. The law is meant to serve the needs of the members of society - including same-sex couples.

My compromise solution is a law which allows same-sex couples the right to a legal relationship without the hot-button title of “marriage.” With a simple change of terms, these couples could become legal “domestic partners” which confer the same rights and duties of their state’s marriage contract. Similar licensing statutes could be enacted, along with the inevitable relationship dissolution laws.

The marriage contract from any state comes with built-in advantages and disadvantages. Married couples are bestowed with automatic inheritance rights. They enjoy the right to sue for loss of consortium if a third party injures their spouse, denying them services and companionship. Because a married couples has rights, they cannot be denied hospital visitation or the right to make medical decisions for each other. Employers often offer medical coverage and benefits to spouses of employees. Why should same-sex couples be denied these benefits?

Couples who live together do have flexibility to create their own rights and duties vis-a-vis each other. A same-sex couple can execute wills, written cohabitation agreements, durable powers of attorney for health care (giving a partner the right to hospital visitation and the right to make medical decisions in the event of an emergency) and, with careful financial awareness, create many of the advantages of marriage.

The question of medical insurance and benefits should be balanced against the “marriage penalty tax,” which still exists.

The denial of the choice to same-sex couples, however, is the true discrimination. Same-sex couples should have the option of forming a legal relationship under the law, no matter what title it is given.


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Johnette Duff is the author of The Spousal Equivalent Handbook: a legal and financial guide to living together, The Marriage Handbook: a legal and financial guide to your spousal rights, and Love After 50: the complete legal and financial guide. Nationally, she has appeared on Today, Good Morning America, CBS This Morning and in The Wall Street Journal, Self, Smart Money, New Woman and Modern Maturity promoting information on love and the law. Ms. Duff has recently opened a web site titled, love and the law. info@loveandthelaw.com