Summary
When politicians say they support civil unions but not marriage for people of the same sex, what do they mean? We find three main differences between civil unions and marriage as it's traditionally viewed:
The right to federal benefits. States that allow some type of same-sex union are able to grant only state rights. The Defense of Marriage Act passed in 1996 prohibits same-sex couples from receiving federal marriage rights and benefits.
Portability. Because civil unions are not recognized by all states, such agreements are not always valid when couples cross state lines.
Terminology. "Marriage" is a term that conveys societal and cultural meaning, important to both gay rights activists and those who don't believe gays should marry.
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The Government Accountability Office lists 1,138 federal laws that pertain to married couples. Many in that long list may be minor or only relevant to small groups of citizens. However, a number of provisions are key to what constitutes a marriage legally in the United States:
Taxes. Couples in a civil union may file a joint state tax return, but they must file federal tax returns as single persons. This may be advantageous to some couples, not so for others. One advantage for married couples is the ability to transfer assets and wealth without incurring tax penalties. Partners in a civil union aren't permitted to do that, and thus may be liable for estate and gift taxes on such transfers.
Health insurance. The state-federal divide is even more complicated in this arena. In the wake of the Massachusetts high court ruling, the group Gay & Lesbian Advocates & Defenders put together a guide to spousal health care benefits. GLADÂ’s document is Massachusetts-specific but provides insight into how health insurance laws would apply to those in a civil union in other states. In general, GLAD says, it comes down to whatÂ’s governed by state law and whatÂ’s subject to federal oversight. If a private employerÂ’s health plans are subject to Massachusetts state insurance laws, benefits must be extended to a same-sex spouse. If the health plan is governed by federal law, the employer can choose whether or not to extend such benefits.
Social Security survivor benefits. If a spouse or divorced spouse dies, the survivor may have a right to Social Security payments based on the earnings of the married couple, rather than only the survivorÂ’s earnings. Same-sex couples are not eligible for such benefits.
Other federal areas in which couples in civil unions don't have the same rights as married couples include immigration (a partner who's a foreign national can't become an American by entering into a civil union with someone) and veterans' and military benefits (only opposite-sex spouses have a right to pensions, compensation for service-related deaths, medical care, housing and the right to burial in veteransÂ’ cemeteries). Gay couples, however, may actually benefit when applying for programs such as Medicaid or government housing that require low-income eligibility. A spouseÂ’s income is included in such applications, but a same-sex partnerÂ’s income is not. One change has been made in federal law: A provision in the Pension Protection Act of 2006 allows same-sex couples to transfer 401(k) and IRA earnings to partners without penalty.
Brad Luna, director of communications at Human Rights Campaign, says there have been several unsuccessful lawsuits filed by same-sex couples who wish to receive federal benefits. “It’s going to have to take the repeal of DOMA or a federal civil union law that would grant them that kind of federal recognition,” he says.
