Global Family Law Services

An Argument for the Legalization of Same-Sex Marriage

| May 6, 2011 | Divorce, Same-Sex Marriage

People like to talk about principle. Clients will often walk through our doors and say that “the principle is worth fighting for, regardless of the cost.” And some principles really are worth fighting for. But is this always true? Does principle always outweigh the cost? Consider same-sex marriage. People have all sorts of principles that make them either for or against it. In fact, more often than not the subject is considered only through the very narrow lens of principle. Opponents consider it to be a matter of religion or morality. Proponents consider it to be a matter of discrimination and civil rights. But both sides are missing a significant point – there is a very real financial impact.

Each and every taxpayer bears a financial burden when same-sex marriage is not legally recognized. It doesn’t matter whether you are for or against same-sex marriage, it is regardless of your sexual orientation, and it is irrelevant if most of your friends are gay or none of them are; YOU are subject to a negative financial impact when the law does not recognize same-sex marriage.

Individuals chose to get married for a number of reasons. It may be for love. It may be for money. It may be for religious reasons or to please one’s parents or because of an unplanned pregnancy. But, especially for couples who are already cohabiting, one of the primary reasons two people marry is to save money.
Simply put, it costs less to live as a unit than to live apart. The mortgage or rent is halved. The grocery bill is cut. Utility costs are shared. Only one lawnmower need be purchased. Instead of maintaining two households, the couple need only maintain one. On top of that substantial cost savings, employer-subsidized insurance is frequently offered to employees’ spouses and, more recently, domestic partners. It is not difficult to see why a couple in a committed relationship would opt to get married to take advantage of these benefits, as well as tax breaks, surviving spouse benefits, and so on.

For love, money, or any other reason, it is a fact that many gay and lesbian couples will chose to cohabit even if they cannot be married in a legal sense. True, opposite sex couples are going to cohabit as well, but experience shows that the vast majority of couples who may legally marry will do so rather than cohabit indefinitely, making this more of an issue in same-sex unions. And, just as legally married couples grow apart and opt to divorce and go their separate ways, cohabiting same-sex couples will break up and go their separate ways. This is when it affects you.

When a legally married couple divorces, the family law practitioner relies on the specific laws, court divisions, court personnel, and processes that have been put in place to deal with such cases. Divorce courts are equipped to handle the division of all assets and liabilities, support awards, and children’s issues in the context of one lawsuit. No jury is involved, and only one judge is engaged in deciding all issues necessary to fully and finally terminate the union. But a couple that is not legally married cannot get divorced. Such laws do not apply to them.

When a same-sex couple splits we, therefore, do not have access to the domestic relations process and must rely on ordinary civil tools to separate the couple. And while divorce cases can continue for many months or even years, the domestic relations process is substantially streamlined as compared to the blunt tools that must be used to separate an unmarried, cohabiting, financially intertwined couple.

Where a married couple may be divorced via one lawsuit, the issues raised by an unmarried cohabiting couple are potentially so different from one another that several actions may need to be filed just to split everything up. If the couple owns real property, a partition action may be needed to determine each side’s interest. Tort or contract lawsuits may be filed over personal property. A separate action might be filed to split a jointly owned business. If children are involved, a juvenile case will be necessary. What could have been resolved in one suit were the couple legally married might suddenly require four or more lawsuits. Each suit bogs down an already clogged court system, and costs significantly in terms of court time, court space, jury seating, and the like, expenses that are ultimately borne by the taxpayers. (And this doesn’t account for the engorged court docket that will slow down your case should you find yourself in civil court!)

Even further, outside of the domestic relations court there is no mechanism to provide spousal support to a party. In a divorce case, if one party has a substantially higher income than the other, spousal support may be appropriate to provide a lower income spouse with the means to pay his or her living expenses. When dissolving a same-sex partnership, the lower income spouse won’t receive support, and very well may end up on public assistance as a result.

And while we’re talking about public assistance, were same-sex couples permitted to marry they would more likely have access to health insurance through their spouse, keeping those without other means of obtaining insurance from having to turn to taxpayer-funded programs like Medicare and Medicaid. Perhaps worse, it might force the insured to seek basic medical treatment at the emergency room and forego all preemptive care, practices that clogs the system and substantially raises costs for everyone.

The issue of same-sex marriage is a very polarizing one, and both sides generally feel very strongly about their respective principles. Regardless of which side you are on, though, it is worth comparing the value of the principle to the financial cost. It is difficult to rebut the argument that the prohibition of legally recognized same-sex marriages, or some variation like a civil union providing the same rights, affects us all. And the most efficient and beneficial use of taxpayer dollars should be important to everyone.

Have thoughts or comments on this post? Do you agree or disagree with this argument? Please don’t hesitate to contact us!