April 11, 2007
From the desk of Jane Galt:Hello, I'm from the American Non-Sequitur Society. Blue is a beautiful colour!
On Volokh today, Dale Carpenter blogs this article about domestic partnerships in Washington State. I have nothing to add on the substance, except . . . what the hell is this all about?
"It's not marriage," said Rep. Jamie Pedersen, D-Seattle. "There are more than 400 state law rights or obligations that don't come with domestic partnership, and we are going to have our hands full trying to get those rights and protections, too....The bill passed easily on a 63-35 House vote despite condemnations from conservatives who said the bill was an affront to community values and religious freedom.
Gov. Chris Gregoire plans to sign the bill, which earlier passed the Senate, into law. Senate Bill 5336 creates a domestic partnership registry with the state and provides enhanced rights for same-sex couples, including hospital visitation, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.
Couples would have to share a home, not be married or in a domestic relationship with someone else and be at least 18.
Similar to California law, unmarried heterosexual couples would also be eligible for domestic partnerships if one partner were at least 62.
Why can't all heterosexual couples avail themselves of the benefits of domestic partnership if they so choose? Or, on the other hand, why let any of the bastards get them, since they can get married any time they want? And if we are going to carve out exemptions allowing heterosexuals to partner, what on earth is so special about turning 62? This seems completely and totally random to me. Can someone explain?
Posted by Jane Galt at April 11, 2007 10:42 AM | TrackBack | Technorati inbound links"); ?>It seems like the simplest thing in the world. Older people are more likely to oppose same-sex marriage, so the bill contains a small bribe to older people in general which, it is hoped, will blunt the group's opposition.
Posted by: sammler on April 11, 2007 10:57 AMThe New Jersey Domestic Partnership Law (which also has age 62) provides a clue:
" The potential loss of, or reduction in, retirement benefits for senior couples sometimes makes them reticent to marry, despite being in a committed relationship."
-- http://writ.news.findlaw.com/grossman/20040113.html
I have known older couples who do not wish to marry, but enjoy each other's company very much, and would like that peson to have the legal right to make decisions concerning them should a situation arise where they could not. This is due to either not having kids or having kids that live too far away to make those decisions or even when the relationship with the grown children has soured. I also know of several non-gay same sex friends that feel the same way.
Why they put an age limit on it is beyond me.
A question concerning Chuck's post: Do the domestic partnership laws provide no community property clause then?
Posted by: Reagan Fan on April 11, 2007 11:11 AMIf Chuck is right, it might not matter. Social Security law often piggybacks on state law when it comes to marriage--you are "married" for the puposes of your SS benefits based on what rights/benefits state law would give you.
There was a case involving SS survivor's benefits in which the 9th Circuit, in order to decide if a technically unmarried couple qualified as "married" under SS law by asking the SCOWA to tell it if the survivor would be entitled to inherit without a will. The answer was "no," so therefore no SS benefits.
Here, if there is a new catagory of intestate inheritance, it might be just as bad as marriage from the SS benefit perspective.
It will take a while for this to shake out.
Posted by: Rob Lyman on April 11, 2007 11:13 AMChuckC hit the nail on the head. Social Security benefits are the big issue.
Posted by: Ed Reid on April 11, 2007 11:13 AMAnd another thing, why do the laws state that you can not be domestic partners if you are related?
If Jane and her seldom mentioned sister, Judy, grow old and spinster-y, decide not to marry, and start collecting cats, who are we to stand in the way of two people who truly love each other and want to spend the rest of their lives together?
I haven't done a scientific study, but in my experience, the bond between some sets of brothers and some sets of sisters is one hell of a lot stronger than a lot of married people I know.
Posted by: Reagan Fan on April 11, 2007 11:24 AMNaive solution: Allow anyone to designate anyone else, (regardless of either's marital status) as their "spouse-like beneficiary" for purposes of allocating SS money. (I won't call them "SS checks" because I live in the 21st century.)
That stops discriminating against the unmarried or differently-married, and de-couples federal SS law from state law.
You could extend the same principle to other issues where a "spouse" needs to be determined, but the keep the existing archaic, crotchety definition of marriage as the "default" option.
Now, what's fundamentally wrong with that proposal?
Posted by: Person on April 11, 2007 11:43 AMWhat Chuck said. One of the D-partners might lose eligibility for a deceased spouse's social security or other benefits if he or she remarries.
Posted by: Gabriel Malor on April 11, 2007 11:56 AMNothing "fundamentally wrong" Person, but it doesn't address the issue here. Surviving spouses get a pension from SS. They don't want to remarry because that causes the pension to disappear (it's based on the same theory as the termination of alimony by remarriage: you don't need the government to support you if you have a new spouse to do it)
So the problem remains: old people don't want to remarry because they lose their benefits.
My point is that the definition of "marriage" isn't "has a piece of paper that uses that word," it's something more like "non-blood relative entitled under state law to inherit in the absence of a will." That seems to me to make the domestic partners here "married" for the purpose of SS law. That's great for elderly gay couples (who now should get surviving-spouse SS benefits), but doesn't accomplish what the old straight couples are trying to accomplish, namely marrying without "marrying."
There are, of course, many ways to designate a "spouse-like beneficiary" for a variety of things, such as wills, life insurance, 401(k)'s, etc., but spouses also typically have a certain special claim (WA is community property, BTW) and of course challenges of those documents are a lot easier to win than challenges of the validity of an old-fashioned marriage.
Posted by: Rob Lyman on April 11, 2007 11:57 AMOK, dug out the cites.
"Wife" and "Husband" are defined for SS by 42 U.S.C. 416.
416(h)(1)(A) says that marriage is defined in two ways: (i) the state courts would regard the marriage as valid or (ii) the state courts would grant the claimant the same inheritance rights as a spouse in the absence of a will.
If this domestic partnership bill grants the same intestate succession rights to the DP as it would to a spouse, then that person is a spouse for the purposes of SS. Old gay couples get survivor's benefits, and old straight widows lose their survivor's benefits.
Posted by: Rob Lyman on April 11, 2007 12:08 PMRob_Lyman, isn't the *real* problem that SS was originally predicated on the idea that "man works, marries woman, who stops working and depends on him", and that the SS policies based on this idea have remained despite its obsolescense?
Posted by: Person on April 11, 2007 12:33 PMPerson, you've certainly identified *a* problem, though I wouldn't go so far as to imply it's the only problematic aspect here.
Posted by: Kirk Parker on April 11, 2007 1:37 PMJane…
Long-time reader, first time commentator…
It is my understanding that the issue of offering domestic partnerships to heterosexuals where one party is over the age of sixty-two is to deal with the issue of survivor benefits for widows and widowers under public and private pension schemes.
I offer my parents as an example. My father is a retired Public School Administrator. He has a decent pension and a gold-plated health care policy paid for by the state. If he dies, my mother has survivor benefits and retains the health insurance coverage until her death OR until she remarries.
Arguably this is a portion of the population that we would want to have shacking up and taking care of each other without having to ditch their insurance or pensions. Domestic Partnerships offer them some basic benefits (like hospital visitation) that they otherwise would be denied as unmarried co-habitators.
Maybe I'm misunderstanding here, but it sounds a lot like this is a provision for gaming of the system. Why should the annuity be protected or guaranteed in the event of remarrying? It strikes me that, in the event of remarriage, the combined reconstituted annuity should be actuarially equivalent to the one or two old annuities. Is this wrong? If not, why should the partnership option be any different?
Posted by: Bill Dalasio on April 11, 2007 1:54 PMPerson"
1. If you allow someone to designate anyone they want as his spouse equivalent for Social Security benefits, then when I am 65 I will sell my survivor's benefits to an 18 year old for a hefty sum.
2. If you think the "husband works and supports wife" model is somehow outmoded, you probably don't commute from Chappaqua or Jericho much. In fact, I'm guess you aren't a married suburbanite.
Posted by: y81 on April 11, 2007 2:24 PMIt strikes me that, in the event of remarriage, the combined reconstituted annuity should be actuarially equivalent to the one or two old annuities. Is this wrong? If not, why should the partnership option be any different?
If it were just an investment program, you'd be right. There would also be no justification for the government to be running it though. It is, quite literally, social security. It is not intended to be a wise investment, or even fair. It is intended to be an efficient and effective means of providing security to the elderly. You can argue whether it does those things, or should do those things, but that's what it is intended to be.
The same justification could be used to implement means-testing. However, while the rules for Social security do not necessitate wisdom in investment, or fairness in disbursements, the rules of Washington only allow what is politically feasible.
"Hello, I'm from the American Non-Sequitur Society. Blue is a beautiful colour!"
Shouldn't that be the British Non_Sequitur Society? Or is the "u" part of the non-sequituzation.
Posted by: Njorl on April 11, 2007 2:37 PMIt is not intended to be a wise investment, or even fair. It is intended to be an efficient and effective means of providing security to the elderly.
That's fair enough, as far as it goes. But, it really seems to be ignoring my main point here. The survivor benefit is designed to meet income needs for living by themselves. Effectively this seems to be saying the state will pretend you're needs are different from what they are.
Posted by: Bill Dalasio on April 11, 2007 2:57 PMy81:
1. If you allow someone to designate anyone they want as his spouse equivalent for Social Security benefits, then when I am 65 I will sell my survivor's benefits to an 18 year old for a hefty sum.
Well, it would be inalienable like SS benefits already are, but if you mean you would *designate* an arbitrarily young person to milk the most benefit, then that's a good point. But I was asking for fundamental errors, and this could be neutrally corrected by reducing the size of the benefit, the younger the designated is than you.
2. If you think the "husband works and supports wife" model is somehow outmoded, you probably don't commute from Chappaqua or Jericho much. In fact, I'm guess you aren't a married suburbanite.
That's not what I said or meant. I meant that believing that everyone will always fit into that model, is wrong. Wives work, some husbands don't. The SS system should not pretend otherwise.
"Hello, I'm from the American Non-Sequitur Society. Blue is a beautiful colour!"
Shouldn't that be the British Non_Sequitur Society? Or is the "u" part of the non-sequituzation.
What is the difference between "British Non-Sequitur Society" and "Royal Non-Sequitur Society"?
Posted by: brian on April 11, 2007 3:07 PMWhat is the difference between "British Non-Sequitur Society" and "Royal Non-Sequitur Society"?
The British Non-Sequitur Society was founded by Parliament while the Royal Non-Sequitur, on the other hand, likes puppies.
Posted by: AT on April 11, 2007 3:16 PMA number of commenters have noticed that changes in the definition of marriage or inheritance rules have large effects on programs like Social Security.
This doesn't have to be true. Two seemingly simple changes could make the Social Security Administration indifferent to changes in the definition of marriage:
1) Any beneficiary is allowed but not required to share his or her benefits with any other person or persons as a joint and survivor annuity.
2) Changes in the people to whom benefits will be paid must be actuarially equal to the previously expected benefits (thus more or younger beneficiaries added as partners mean less money per month).
Those changes may be simple to explain and defend, but they are light years away from where we are today politically.
The current system doesn't imagine people making choices like this. You're either required to include someone else as receiving a survivor benefit or prohibited from doing that.
That approach means that expanding the definition of possible survivors will require raising taxes or lowering benefits compared to what they otherwise would have been if the remaining policies are held constant.
I much prefer to implement (1) and (2) so that we can delink the question of how large Social Security should be from the question of who is permitted to marry. If it wants to simplify the change, the SSA could even implement a transition rule that forces everyone who is married today to comply with current rules going forward.
There are analogous changes available for other government programs and tax provisions.
Posted by: Telnar on April 11, 2007 3:25 PM"Effectively this seems to be saying the state will pretend you're needs are different from what they are."
Sorry, I am so used to disagreeing with you that I forgot to point out that I agreed with you.
Posted by: Njorl on April 11, 2007 3:39 PMPerson,
The SS system treats men and women equally. It does not strike me as insane that a spouse, working or non-working, should get survivor's benefits (equal to 1/2 the full benefit), given that, if his/her partner were living, s/he could expect to share in the benefit of that person's labor or pension.
In any case, I'm staying out of the debate about what the law should be. My main purpose was to discuss what the law is, and to point out that the hope of letting old people keep their double pensions seems to be a vain one; or at any rate, it can only be achieved by denying those benefits to gay couples.
Posted by: Rob Lyman on April 11, 2007 3:39 PMSorry, I am so used to disagreeing with you that I forgot to point out that I agreed with you.
Well, as they say, a stopped clock...of course that begs the question of which clock is stopped. :-)
Posted by: Bill Dalasio on April 11, 2007 9:51 PMI would prefer to define 'marriage' as a religious rite only. Government would have interest only in 'households' -- adults blending incomes and taxes and nurturing dependents.
Polygamy, polyandry, same-sex unions, whatever. Allow adults to practice whatever religious rites they prefer, and lump them all into the same bag for assessing taxes - one or more adults sharing an address with intent to share incomes.
Posted by: Brad K. on April 11, 2007 10:23 PMBrad, that's a common position in some circles. Unfortunately, it neglects just how woven into the fabric of law marriage is. Insurance, wills, property, tort, contract, bankruptcy, welfare, and of course tax and family law all depend to some extent on state recognition of marriage. This is all quite apart from the standard expectations of business, which also depends on a fairly ordinary definition. You find it in all sorts of places you wouldn't expect.
This is not say the state couldn't get out of the marriage business, but to do so would require quite a bit more effort (and have quite a few more unintended consequences) than most people realize.
Posted by: Rob Lyman on April 12, 2007 8:08 AM"If you allow someone to designate anyone they want as his spouse equivalent for Social Security benefits, then when I am 65 I will sell my survivor's benefits to an 18 year old for a hefty sum."
It already happens, except for what the golddig-, um, young lady is offering. I don't know if she's still alive, but a few years ago there was at least one woman still drawing a government pension as a widow of a Union soldier in the Civil War. Eighty years ago she married a Union veteran old enough to be her grandfather, and she's been living on his pension ever since.
Posted by: markm on April 12, 2007 10:29 AM