Among the majority of Americans, equality entails an American value articulated in the Constitution. Although the Constitution does not support discrimination, LGBT persons are denied most of the basic rights that other members of society enjoy. By virtue of being human, LGBT people should enjoy basic rights enjoyed by other Americans, despite their sexual and gender identities. With the recognition of the extent of the damage that discrimination can inflict, it is crucial for the government to ensure that LGBT people enjoy basic rights. One of the issues affecting LGBT persons that the federal government should address comprehensively is the domestic partnership benefits and obligations in a bid to achieve equality between married heterosexuals and LGBT persons in domestic partnerships.
Why people should be concerned about this matter
Similar to the married heterosexual couples, LGBT couples in a domestic partnership should not be barred from accessing civil benefits of their married partners. As the Constitution advocates equality amongst all citizens, barring LGBT couples from accessing benefits of their employed couples entails a violation of the Constitutional provision (Traiman 24). The challenge of inequality between heterosexual couples and LGBT persons emerges from the Constitutional mandate allowing state governments to control the marriage law (Li, Lec. 9A, 1:18).
Similar to the federal government, state governments recognize a marriage as a civil union between the members of the opposite sex. Initially, in a bid to protect the marriage institution, the federal government barred marriages between people of similar sex. However, with the pressure from the LGBT community, in conjunction with human rights organizations, the federal government recognized partnerships between same-sex persons (Li, Lec. 9C, 1:16).
Although the government recognizes domestic partnership between same-sex couples, LGBT people are yet to enjoy their basic rights fully. This assertion holds because the federal government has empowered states to determine marriage laws within their jurisdiction. With such a provision, there emerges a challenge in harmonizing the Marriage Act in favor of both the heterosexual and LGBT couples. For instance, domestic partnership between LGBT people may be recognized in one state, but remain unrecognized in another state (Li, Lec. 9A, 1:12).
Such a situation emerges because the state in which domestic partnership is recognized has a legislation that supports gay marriages, whereas another state lacks similar provisions. Nevertheless, the current Marriage Act favors heterosexual couples as their marriage is recognized across all states in the country (Li, Lec. 9C, 1:17).
For example, heterosexual couples married in New York maintain legal recognition of their union, despite relocating to a different state. With such variations in the provisions of Marriage Act, the federal government also encounters the challenge of administering benefits and obligations among LGBT couples across the country. This assertion holds the case as some states that recognize domestic partnership between LGBT couple and other states do not recognize gay marriages (Li, Lec. 9B, 1:16).
In mid-2009, the president advocated equality in the administration of employment benefits among federal employees. In a bid to eliminate inequality based on sexual and gender identity, President Obama further extended some benefits to homosexual partners. From this analysis, it is evident that the federal government maintained its stance concerning the powers of the states on ensuring equality between heterosexual couples and LGBT partners with reference to employment benefits (Li, Lec. 9B, 1:15).
Between 2011 and 2012, the Congress passed a bill that sought to extend employment and retirement benefits to domestic partners of federal employees. The Act further outlined legal requirements to ascertain the legitimacy of such partnerships. Attesting legitimacy of such partnerships includes filling affidavits, but such a process is not possible among states that lack laws recognizing LGBT partnerships.
Although the federal government is trying to eliminate the gap between heterosexual marriages and LGBT partnerships, it has a long way to go before achieving equality between the two forms of unions. However, the federal government has made significant milestones including repealing the third section of the DOMA-Defense of Marriage Act in a bid to extend benefits enjoyed by heterosexual couples to the legally recognized same-sex partners (Mezey 128). Some of the benefits extended to the same-sex partners include health insurance, employment, and retirement benefits entitled to the spouses who are federal employees (“Office of the General Counsel” 3).
The fight for equality in the administration of employment and retirement benefits among legally recognized same-sex partners reached its peak at the time of Laurel Hester’s case prior to her death in 2006. In her case, Hester wanted the Ocean County Freehelders to allow her to pass her pension and employment benefits to her partner, Stacie Andree. With approximately six months to live, Hester did not give up, despite the Freehelders denying her request. Finally, Ocean County Freeholders granted Hester her request, which contributed to the recognition of same-sex partnerships in New Jersey (Li, Freeheld, 1:14).
Furthermore, Hester’s case attracted the attention of the people in the judiciary and across the political divide, thus contributing to the recognition of same-sex marriages in other states. Perhaps, Hester’s case is the reason behind President Obama’s move to grant the extension of the employment and retirement benefits to the domestic partners in 2009. However, the president should advocate repealing of the clause that empowers state governments to control the Marriage Act, especially on issues dealing with the recognition of same-sex partnerships among LGBT persons.
Recommendations to the executive, legislature, and judiciary
First, the President should issue an executive order that prohibits employers and federal contractors from failing to pass employment and retirement benefits passed to the employee’s homosexual spouse. Failing to pass benefits to such spouses entails discrimination at the work place, thus violating constitutional provisions regarding the promotion of equality among citizens. However, with the increment in the number of states that recognize same-sex partnerships, the number of employers extending employment and retirement benefits to the same-sex couple has also increased (Mezey 88).
However, the lack of uniformity in the administration of employment benefits among same-sex couples should be blamed on the Constitution as it advocates equality and elimination of discrimination. With reference to this observation, the legislature should repeal the entire DOMA as opposed to removing some of its sections. According to the decision passed by the Supreme Court in Wisconsin, the legislation on domestic partnership does not violate the constitutional ban on same-sex marriages (Ford par. 6).
From this disclosure, it is evident that the government can rely on part of the provisions of the Marriage Act to deny same-sex partners access to some of the basic rights enjoyed by other Americans. With the Marriage Act depicting a marriage as a civil union between opposite sex individuals, the Act reveals domestic partnership between same-sex couples as a relationship that does not resemble a legal marriage (Ford par.8). With such considerations, the judiciary should compel the Congress to make changes and call for a referendum to implement constitutional amendments in a bid to achieve equality between same-sex partnerships and heterosexual marriages.
Furthermore, the legislature should amend the Constitution to ensure that the power to regulate the Marriage Act remains under the jurisdiction of the federal government, as opposed to the state governments. Such an amendment will ensure uniformity in the recognition of same-sex partnerships across the country.
Political issues at stake
With reference to unequal treatment rendered to the LGBT persons especially in the administration of employment and retirement benefits, the political issue at stake entails why the government has failed to use its political structures to promote equality. The Constitution and laws are products of political decisions. With such analysis, it is evident that the federal government can convince political leaders and citizens to vote either in support or against laws that promote same-sex marriages.
Results of a survey conducted by the University of Pennsylvania indicated that the federal government was likely to compel Americans to oppose constitutional amendments regarding the legalization of homosexual marriages (Mezey 129). Moreover, as political parties take contradicting stances concerning LGBT and their basic rights, the parties are likely to end in sharp differences, thus threatening the elimination of discrimination.
Over time, the Democrats have been at the frontline in the fight against discrimination especially based on sexual orientation and gender identities. In addition, the Democrats have been active in ensuring equal federal rights for the LGBT partners, thus promoting marriage equality (“Democrats” par.1). On the contrary, the Republicans posit that the issue of homosexual marriage depicts a matter of adhering to the legal, historical, and religious background of the country (Schwartz par. 6). Republicans stick to the definition that depicts matrimony as legal unification between opposite sex couple, as opposed to union between people of similar sex (Schwartz par. 8).
With the differences between the Democrats and Republicans, the ruling political party has high chances of influencing the Congress and the people in voting against provisions that promote marriage equality. Such a move promotes the violation of constitutional provisions concerning the elimination of discriminations. In a bid to promote democracy, it is the responsibility of the federal government to promote political decisions that advance equality among Americans regardless gender, sexual orientation, and race among other factors that contribute to discrimination.
The federal government has achieved a significant milestone in promoting justice for Americans. However, the government should recognize injustices committed against the LGBT persons. Although the president authorized to extension of employment and retirement benefits to the spouses of homosexual federal employees, some states and corporations are yet to implement this provision. The challenge arises from the provision of the Domestic Partnership Benefits and Obligations Act that require homosexual couples to have an affidavit for their partnership. In states that do not recognize homosexual marriages, a homosexual employee is barred from passing his/her employment benefits to the partner.
In solving the problem, the president should issue an executive order that authorizes employers to pass benefits to the partner as disclosed by the homosexual employee. The political issue at stake highlights the political influence by the government to regulate marriage equality.
Democrats: Civil Rights 2013. Web.
Ford, Zack. Wisconsin Supreme Court: Domestic Partnerships Don’t Violate State’s Same-Sex Marriage Ban 2014. Web.
Li, Jacob. Freeheld 2015. Web.
Li, Jacob. Lecture 9A 2015. Web.
Li, Jacob. Lecture 9B 2015. Web.
Li, Jacob. Lecture 9C 2015. Web.
Mezey, Susan. Queers in Court: Gay Rights Law and Public Policy, Lanham: Rowman & Littlefield Publishers, 2007. Print.
Office of the General Counsel: Defense of Marriage Act, Washington, DC: GAO, 1997. Print.
Schwartz, Gabriella. Priebus: same-sex marriage isn’t a civil rights issue 2012. Web.
Traiman, Leland. A brief history of domestic partnerships. The Gay & Lesbian Review Worldwide 15.4: 23-26. Print.