Vice Presidential Debate on Same Sex Marriage (Part II)

Or: Is there a difference between "same-sex benefits" and gay marriage?

It was interesting to watch the way the Vice Presidential candidates danced on Thursday regarding the issue of same-sex "benefits" and "gay marriage".

First, let's look at the term "benefit". From dictionary.reference.com we find the following definitions of "benefit".

1. something that is advantageous or good; an advantage
2. a payment or gift, as one made to help someone or given by a benefit socieity, insurance company, or public agency
. . .
4. Archaic. an act of kindness; good deed; benefaction.

We should be cautious of the word "benefit" because it seems to suggest that same-sex couples are being given something "extra" which is a great concern of those who are concerned that we would be giving same-sex couples an "advantage" over opposite-sex couples.

Now I will admit, that some of what I, personally, am looking for is a "benefit" even as defined above - i.e., a "payment [from] a public agency". I married my partner earlier this year. If I die first, I want her to receive my social security benefits. But given that I have paid 12% of my salary up to the annual cap every year into it, it is not too much to expect.

But as the federal law stands, spouse, and marriage, continue to be defined as one man and one woman, and many of the federal "benefits" are provided to married couples only.

Biden states the following:

Do I support granting same-sex benefits? Absolutely positively. Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.

The fact of the matter is that under the Constitution we should be granted -- same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.

There are probably areas in the country that still do not automatically grant visitation rights in a hospital, but there are contracts we can put into place that can help assure such visitation. Joint ownership of property is merely a contract. Yes, there has been discrimination in the past to renting or selling to same-sex couples. There may still be, but federally, at least, there are provisions to protect against such discrimination. I'm not sure what he thinks he's giving us with life insurance policies? Again, this is a contractual obligation and the owner of the policy determines who the beneficiary will be.

I'm not sure what Biden thinks he is providing. It sounds good, until you look carefully at it. What we're missing, at this point, is the federal recognition and same treatment for federal purposes from social security to tax treatment.

As a same-sex couple, married legally in California, we are about to create a legal tax nightmare. I have some thoughts as to how it might be resolved based upon historical treatment of such tax issues, but there is no guarantee, and there is nothing in place to dictate how this situation should be handled.

Here's an illustration of the concern I see: Two people fall in love and get married. One continues to work while the other decides to stay home and raise their children. In California, all money earned during the marriage is community property and each spouse has equal right of management over this money. Should they dissolve the marriage, typically the courts will split the community property 50/50 between the spouses. Should one of the spouses die before the other without a will in place, the State automatically presumes all of the community property belongs to the surviving spouse.

If the couple is heterosexual, there is no need to keep elaborate accounting of who earned what dollar. The federal government provides a marital gift and estate tax exemption that allows spouses to give unlimited gifts to each other. And given the definition of community property - as was determined through the courts in the first half of the 20th century, community property is not a "gift". Because of that difference between community property and non-community property states - that created an advantage to those in community property states - the federal government enacted the exemption for married couples. States that had traditionally not been community property states were switching over so as to give their residents the same advantage. But this was creating tremendous confusion, and after the marital exemption was in place, those states reverted back to being non-community property states.

It's hard to explain those concepts in easy-to-understand terms. But if a couple earns and saves $10 million in their lifetime, when the first spouse dies, there are no tax consequences to the surviving spouse if they are an opposite-sex couple. However, if they are a same-sex couple, and it is the earning partner who passes, the federal government could choose to look into the accounting of income and determine that all of the money is passing (transferring) to the remaining spouse, and then tax that transfer according to the tax rate then in effect.

An example that might affect more couples. Let's say the couple buy a car. Or a house. And pay for it out of community property assets. Is the earning party giving a "gift" of the value to the other partner? If so, in theory, it could be taxed by the federal government for any value above the annual exemption in effect.

I believe that because of the community property characterization, it is not a transfer, and it should not be taxed. But I do not run the IRS, and I cannot guarantee how they might characterize it when presented with the opportunity.

But I digress.

Back to the VP debates. While I am disappointed (although not surprised) by Palin's beliefs, I admire her courage to go straight to the issue of gay marriage. The elephant that was being danced around, and continued to be danced around in this portion of the debate.

Her first questionable word was the word "tolerant." Referring, again, to dictionary.reference.com, here are some of the definitions for the word "tolerance"

1. a fair, objective, and permissive attitude toward those whose opinions, practices, race, religion, nationality, etc., differ from one's own; freedom from bigotry.
. . .
4. the act or capacity of enduring; endurance

The definition seems more reasonable than I was expecting, but I think I reacted to the "permissive" nature of the word. I don't think these issues should require anyone's "permission" , but sadly that belief doesn't reflect reality. Apparently, I need permission to love my wife. And permission to be treated as anyone else who makes vows for better or worse, richer or poorer, in sickness and in health.

But I do respect her courage to state upfront and clearly her position. At least at first.

After being clear about not supporting gay marriage, Gwen Ifill turned around and asked Biden directly his position on the matter. See the exchange below:

BIDEN: No. Barack Obama nor I support redefining from a civil side what constitutes marriage. We do not support that. That is basically the decision to be able to be able to be left to faiths and people who practice their faiths the determination what you call it.

The bottom line though is, and I'm glad to hear the governor, I take her at her word, obviously, that she think there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple. If that's the case, we really don't have a difference.

IFILL: Is that what your said?

PALIN: Your question to him was whether he supported gay marriage and my answer is the same as his and it is that I do not.

Biden did state he did not support gay marriage, and that was disappointing. Also, he attempts to simplify the matter by trying to distinguish between civil marriage and religious marriage by ignoring that civil marriage does provide certain status within civil laws. It is not clear whether he might support a federal domestic partnership law that would provide civilly the same benefits whether one is "married" or "domestically partnered".

Long before California did gain the right to marry, I have always thought politically, that the best plan - the one which would cause the least angst among all parties, is to have marriage be a religious distinction, and to create a civil union that ALL couples would be required to enter to receive civil benefits, and to grandfather in those who had been "married" prior to that point. Separate church from state. Hmm... I think I've heard that somewhere before.

Biden then tried to pin Palin down, as you see above, to suggest that she supports that there "should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple." Ifill asked Palin if that was what she said, and she stumbled and clarified ONLY that she did not support gay marriage.

The only thing Palin seemed to support was hospital visitation and private contracts. (Congratulations to Karen Thompson and Sharon Kowalski - unfortunately about twenty-five years too late for you! (see my post below on May 24th entitled "Disability / Health-Care Issues / Death - Fun Stuff!")).

I am glad that everyone can agree today to allow hospital visitation, but even so, this creates some complications, nonetheless. How do hospitals determine who can visit and who cannot? What boundaries do they set up? This could create civil nightmares for intensive care units who have to find some way to distinguish between a gay married couple and two heterosexuals who are dating. What must they show to prove their relationship is significant enough to provide visitaiton rights and who might not be able to visit? Part of the issue, that is being ignored, is that families were deciding who could or could not visit, and how does this protect against that since there seem to be no criteria for A can visit but B cannot.

But it does make a good sound-bite, and it does make them seem compassionate. This is something, in theory, everyone can agree on, and so we don't need to give marriage to those gay people. (Well, everyone except those families who are dealing with their child or sibling who is gay and they want to prevent the partner from visiting.. )

In theory, what was said, particularly by Biden who at least referenced "no civil rights distinction" (although it was in the form of a question to Palin rather than a resounding expression of his belief) sounds right. In practice, we'll have to see.