Gay and lesbian couples have a lot to celebrate this Feb. 14, the first Valentine’s Day following the legalization of same-sex marriage on June 26, 2015. But as gay Americans from Anchorage to Atlanta revel in their Constitutional right to wed, others are coming to the sobering realization that the freedom to love may come at a cost. In the wake of the Supreme Court ruling, some employers across the country are eliminating domestic-partner benefits and issuing an ultimatum to couples, gay and straight: Get married or lose your coverage.
In the late 1970s, gay activists seeking public validation for their intimate relationships created the concept of domestic partnership, but it wasn’t until 1984 that the first law recognizing same-sex unions was passed by the City of Berkeley in California. In 1996 Bill Clinton signed the Defense of Marriage Act, which, prior to being ruled unconstitutional in 2013, defined marriage for federal purposes as the union of one man and one woman. In response to this legislation, LGBT citizens and their allies increased lobbying efforts for statewide protections. California led the way with domestic partner benefits in 1999, followed by Washington, Oregon and New Hampshire.
During this time, businesses began recognizing domestic partnerships as a way to provide benefits for gay employees and their families. The first private company to do so was The Village Voice newspaper in 1984. The first publicly traded firm was Lotus Development Corp. (now a division of IBM) in 1992, and the following year Microsoft became the first Fortune 500 corporation to grant domestic partner benefits. Organizations including Dow Chemical and Google extended coverage to any unmarried couple, regardless of sexual orientation, as a way to recruit and retain a more diverse workforce.
When same-sex marriage reform began to make progress, employers began reviewing policies not only to avoid discrimination lawsuits, but also to save money by cutting benefits and administrative costs. Companies, including Verizon, the Mayo Clinic, Raytheon, Corning, Inc. and Delta Air Lines, began terminating domestic benefits prior to 2014 in states where same-sex marriage was legal. IBM told their employees they would eventually have to wed their partners or lose coverage. Some academic institutions have followed suit including the University of Minnesota and Ithaca College, which is consistently ranked one of the most LGBT-friendly schools in the country.
Governments, too, have begun phasing out domestic-partner programs. The State of Maryland discontinued these benefits for government workers, which it offered only to same-sex couples, after gay marriage passed in 2013. The following year, Arizona did the same. In Washington State, existing domestic partnerships were converted automatically into marriages on June 30, 2014. Some states never offered domestic partner benefits to their workers, but they did allow those in civil unions to add their partners to their health and retirement plans. Following the passage of same sex marriage laws, Connecticut, Delaware, New Hampshire, Rhode Island and Vermont converted civil unions into marriage.
“There’s a danger in companies thinking that marriage reform equals equality,” says attorney Mariette Geldenhuys, a legal advisor to the National Center for Lesbian Rights. “Businesses are making policy changes without fully understanding or investigating the consequences for gay and transgender employees.”
Paradoxically, same-sex marriage makes LGBT citizens more vulnerable to discrimination in states without anti-bias laws protecting citizens on the basis of their identity and sexual orientation. For example, couples filing for a marriage license in Louisiana, Michigan and Idaho actually put themselves and their families at risk. By outing themselves as gay, they could be fired, denied credit, evicted or deprived of public accommodations. For these reasons, it is absolutely essential that employers continue offering domestic partner benefits.
Formal marriage equality is an important civil right, and it should be one of many choices available. “People forming families in the 21 st century don’t necessarily conform to ‘traditional’ models,” says attorney William S. Singer, a partner at Singer & Fedun, LLC and the Founder and Director of the LGBT Family Law Institute. “I believe that we should be offering more forms of relationship recognition rather than trying to fit every couple into the marriage box."
Census records show that women are marrying later, are less likely to remarry after a divorce, and are living longer as widows. Cohabitation outside of marriage is a trend among millennials, a key labor demographic and a generation with increasingly fluid notions of sex, gender and sexuality. The truth is “the average American now spends the majority of his or her life unmarried,” according to Sarah Wright, Board Chair of Unmarried Equality.
Companies that celebrate a variety of family formations can claim a competitive edge over those that recognize only conventional marriages. Domestic partnership can be a creative alternative to matrimony. Individuals and committed couples—gay or straight—who have no religious or political interest in marriage should not be coerced into walking down the aisle.