Committee Opinion
Number 574, September 2013
(Replaces No. 428, February 2009)


Committee on Health Care for Underserved Women
This information should not be construed as dictating an exclusive course of treatment or procedure to be followed.


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Marriage Equality for Same-Sex Couples

ABSTRACT: Same-sex couples encounter barriers to health care that include concerns about confidentiality and disclosure, stigma and discriminatory attitudes and treatment, limited access to health care and health insurance, and often a limited understanding of their health risks. Same-sex couples and their families are adversely affected by the lack of legal recognition of their relationships, a problem with major implications for the health of same-sex couples and their families. Tangible harm has come from the lack of financial and health care protections granted to legal spouses, and children are harmed by the lack of protections afforded to families in which partners are married. However, the recent Supreme Court ruling, The United States v Windsor, which afforded equal treatment for legally married same-sex couples will provide many important health and financial benefits. Evidence suggests that marriage confers health benefits to individuals and families, yet a sizable proportion of individuals do not experience these health benefits because of their sexual orientation. Additional data suggest that same-sex couples who live in states with bans on same-sex unions experience adverse health outcomes. Civil marriage is currently available to same-sex couples in only thirteen states and the District of Columbia and honored by one state. The American College of Obstetricians and Gynecologists endorses marriage equality for same-sex couples and equal treatment for these couples and their families and applauds the Supreme Court’s decision as an important step in improving access to benefits received by legally married same-sex couples. However, additional efforts are necessary to ensure that same-sex couples in every state can receive these same benefits.


Background

Same-sex marriage (also known as gay marriage) is marriage between two persons of the same biological sex or gender identity. Legal recognition of same-sex marriage is often referred to as marriage equality. Same-sex marriages can be performed in a secular civil ceremony or in a religious setting.

Definitions

Civil marriage—in the United States, civil marriage, established through a license issued by a state government, grants both legal rights and obligations to two individuals (1). Until recently, civil marriage, as recognized by the federal government, must be between a man and a woman; however, the federal government now must recognize legally married same-sex couples (2, 3).

Religious marriage—religious marriage is a sacrament or rite that provides recognition by a specific religious group. Religious organizations have rules and requirements that are separate from those established for civil marriage (1). Although judges and other public officials have the authority to establish civil marriages, a member of the clergy also has the authority to endorse a civil marriage, leading to significant confusion between the civil and religious aspects of marriage. The legal status of civil marriage comes from the state, not from religious groups.

Civil union—a civil union has a more limited legal scope than civil marriage. A civil union is a legal status designed to confer to a same-sex couple state-based benefits, protections, and responsibilities similar to civil marriage (4). These legal arrangements are not reciprocally recognized in most states, and are not recognized by the federal government.

Domestic partnership—a domestic partnership is a legally recognized partnership between two individuals, who may or may not be of the same sex. A domestic partnership does not provide the same rights, benefits, and protections as a civil union or a civil marriage; advantages conferred by a domestic partnership vary by jurisdiction (1, 5). These legal relationships also are not recognized by the federal government or most other jurisdictions.

Federal and State Legislation

In 1996, the Defense of Marriage Act passed both houses of Congress and was signed into law. Under the law, no U.S. state or political subdivision was required to recognize a same-sex marriage from another state. In addition, this act codified the nonrecognition of same-sex marriages for all federal purposes including, insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns (2, 6). However, in a landmark decision, the Supreme Court struck down section 3 of the Defense of Marriage Act that denied the 1,138 protections and responsibilities of marriage to legally married same-sex couples (3). This decision affirms that all couples who legally marry deserve equal legal respect and treatment (3). As of 2013, civil marriage is available to same-sex couples in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia (5, 7). New Mexico honors out-of-state marriages between same-sex couples (5, 7). Despite the Supreme Court’s ruling, it is important to note that in states where same-sex marriage is not allowed, these states are not required to reciprocally recognize same-sex marriages performed by other states where it is legal (3). It still needs to be determined when legally married same-sex couples living outside of states where same-sex marriage is legal will be able to share the same federal protections, responsibilities, and programs as married heterosexual couples (3). Thirty-six states have passed laws or constitutional amendments prohibiting civil marriages between persons of the same sex (5, 7). As a result, the negative effect of the lack of marriage equality on health and financial health will still remain for many couples. Same-sex couples are vulnerable and must piece together a patchwork of legal and financial documents. For updated information on individual state laws visit www.hrc.org/campaigns/marriage-center or www.freedomtomarry.org.

The Effect of Marriage Equality on Health

Positive health outcomes are associated with marriage for heterosexual and same-sex couples (8–10). Same-sex couples in legally recognized relationships experience fewer depressive symptoms and lower levels of stress compared with those in similar long-term relationships that lack legal recognition (11).

Lesbian, gay, and bisexual individuals living in states with constitutional amendments banning same-sex marriage have significant increases in mood, anxiety, and substance use disorders (12). Living in states where same-sex relationships have legal recognition appears to diminish mental health differentials between heterosexual and lesbian, gay, and bisexual individuals (13).

Individuals in same-sex couples are far less likely to receive employer-sponsored dependent health care coverage compared with married heterosexual individuals (14, 15). With lower rates of employer-provided health care coverage, same-sex couples are more than twice as likely to be uninsured as married heterosexual couples (14). Policies supportive of same-sex marriage may be effective in reducing health care use and costs among sexual minorities (16).

Discriminatory practices have resulted in individuals in same-sex relationships being prohibited from seeing their partners in the hospital, even with legal documents such as a durable power of attorney (1, 17). However, in 2011, the U.S. Department of Health and Human Services announced new guidance that protects hospital patients’ right to choose their own visitors during a hospital stay, including a visitor who is a same-sex domestic partner (18). The guidance also supports the right of patients to designate the person of their choice, including a same-sex partner, to make medical decisions on their behalf should they become incapacitated (18). Same-sex couples can be prevented from providing consent for medical care or authorizing emergency treatment and health care decisions for nonbiological children or children who are not jointly adopted (1).

Prior to the Supreme Court decision, unless an individual was defined as a spouse or parent under state law, an individual in a same-sex relationship did not have access to the federal Family Medical Leave Act, which allows those eligible to take up to 12 weeks of unpaid leave each year to care for immediate family members (spouse, child, or parent) (1, 19). Now non-federal employees and their same-sex spouses who are legally married can receive this benefit if they reside in a state that recognizes same-sex marriage (20). Same-sex couples who are not defined as legal spouses do not have protections and compensation for families of crime victims in state and federal programs (1, 21). A surviving partner in a same-sex relationship who is not legally married may not be able to sign for the release of the partner’s body from the hospital for funeral or disposition arrangements, even when prior legal arrangements have been made (22, 23).

The Effect of Marriage Equality on Financial Health

A multitude of financial protections are granted to legal spouses, and now to legally married same-sex partners living in states that legally recognize the marriage. Financial protections include differences in taxation, eligibility for Social Security benefits, and rights to shared property. Financial security is intimately tied to access to health care and the health and well-being of women and their families.

When same-sex couples living outside of states where same-sex marriage is legal are able to arrange for domestic partner benefits, the value of the benefit is considered taxable income to the employee under federal law. The only exception is when a domestic partner qualifies as a dependent of the employee under Internal Revenue Service definitions. Because this amount also is considered income, the employer must also pay payroll taxes, such as Social Security on the amount. Additionally, employees cannot use pretax dollars to pay for a domestic partner’s coverage (15). Same-sex couples who are not legally married cannot file joint tax returns and are not eligible for additional federal tax benefits and claims (21).

Legally married same-sex couples living outside of states where same-sex marriage is legal are not eligible for the Social Security and Veteran’s survivor benefits of the deceased partner (21). A surviving partner may not have access to spousal benefits under Worker’s Compensation. They cannot roll a deceased partner’s 401(k) funds into an individual retirement account without paying income tax and, in many states, inheritance taxes on those funds. In many states, the surviving partner is required to pay inheritance taxes on the partner’s portion of any shared assets (24–26). Also, in many states, a partner is not eligible to inherit property if there is no will upon a partner’s death; instead, it passes to the legal next of kin (27). In only a few states, those with marriage equality laws and some domestic partnership laws, can a same-sex partner sue for wrongful death of a deceased spouse (27). Citizens of the United States in a same-sex relationship who are not legally married cannot sponsor their partner or their partner’s family members for immigration and citizenship (1, 28, 29).

Conclusion

The American College of Obstetricians and Gynecologists (the College) advocates for the health and well-being of all individuals and believes that no individual should experience discrimination, including those in same-sex relationships (30). Lack of marriage equality has a negative effect on the health and well-being of women in same-sex relationships and their families (1, 31, 32). The College, therefore, joins numerous other health organizations in endorsing marriage equality for same-sex couples and equal treatment for these couples and their families (33–40). The College applauds the Supreme Court decision on section 3 of the Defense of Marriage Act as an important step in improving access to benefits received by legally married same-sex couples. However, additional efforts are necessary to ensure that same-sex couples in every state can receive these same benefits.

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Copyright September 2013 by the American College of Obstetricians and Gynecologists, 409 12th Street, SW, PO Box 96920, Washington, DC 20090-6920. All rights reserved.

ISSN 1074-861X

Marriage equality for same-sex couples. Committee Opinion No. 574. American College Obstetricians and Gynecologists. Obstet Gynecol 2013;122:729–32.