WHAT WILL STATE AMENDMENTS ACTUALLY DO?: Joshua Baker replies to Barry Deutsch and Walter Olson

A couple of brief thoughts in response to Walter Olson and Barry Deutsch . . . .

First off, my thanks to Walter Olson for his correction regarding the Virginia law limiting group health insurance policies to spouses and dependents. Apparently the Virginia law has been in place since 1986, preceding the current gay marriage debate. This Washington Business Journal piece from May 2004 has a nice writeup on the larger subject of partner benefits, including reference to the Virginia law. I would also note, though, that the Human Rights Campaign lists a few (about 35) Virginia businesses that extend domestic partner benefits (perhaps these are all self-insured, or there are other ways around the law).

Neither Walter's comments nor Barry Deutsch's comments are inconsistent with my larger point, however: Many of the scenarios raised in opposition to state marriage amendments bear little relation to the likely effect of the amendments. What is the causal link between the amendment and the anticipated consequence?

I still see no persuasive argument as to how any of the proposed marriage amendments is likely to (a) ban private employee DP benefits; (b) limit hospital visitation rights; or (c) deprive children of parental support, all of which exist independently of marriage under current law. Generally speaking, private employee benefits are not a matter of legal status but of employer policy. Even Virginia's group health insurance law would not have been mandated by a marriage amendment, but rather was the result of a legislative change in the insurance code twenty years ago.

While some hospitals have undoubtedly balked at recognizing visitation rights (or medical decisionmaking documents) for same-sex couples, these private policies exist independent of the amendments. Acknowledging the limitations of such legal documents, it remains that living wills and powers of attorney for health care are not legally tied to marriage -- and would not be impacted by the marriage amendments. Even concerning abuses of visitation policies, with or without an amendment, a state legislature could step in to address concerns about hospital visitation (as the Nebraska Legislature did in 2002 -- two years after the Nebraska marriage amendment was adopted).

At bottom, my concern is with the unsupported suggestions I've read that suggest the proposed marriage amendments would dramatically change the status quo, unleashing a parade of unintended horribles. That is not to say that employee benefits, visitation rights and parental rights are not real issues in the larger same-sex marriage debate -- but rather that the pending amendments are very unlikely to work any significant change in existing law on these topics. And that efforts should be made to support claims to the contrary.

posted by Eve at 6:40 PM VOTE

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