Civil Unions: An Invitation to Discriminate

The law requires benefits for only about 50 percent of all civil unioned couples in New Jersey (0.00 / 0)

That's because the federal ERISA law covers about 50 percent of all companies in the United States, including in New Jersey.  Estimates have been from roughly 45 percent to roughly 50 percent.

What's ERISA?  That's the Employee Retirement Income Security Act, the federal law that covers many employee benefit plans -- a federal law that preempts state law.

ERISA applies to companies whose insurance plans are "self-insured," meaning companies that have custom insurance plans even if through an insurance carrier, ie when a company is big enough that, say, Blue Cross-Blue Shield, United Health Care, etc. will create a special insurance program at the company's request.

Most large companies in America, including in New Jersey, are self-insured. 

The reason ERISA affects civil unions in New Jersey is that ERISA, as a federal law, is affected by the federal "Defense of Marriage Act," the law President Clinton signed in 1996 that says the federal government may not recognize same-sex relationships. 

So companies covered by ERISA - which again includes most big companies and about 50 percent of all companies - don't have to abide by New Jersey's civil unions law.

So, you might ask, what difference would marriage equality in New Jersey make if federal law would apply anyway?  Easy answer:

The word "marriage" has enough persuasive weight where a company like UPS, per the Ledger article, has decided to give benefits to same-sex couples in Massachusetts and not to civil-unioned couples in New Jersey.

Because even with the federal DOMA, when a state calls same-sex relationships "marriage," employers can no longer hide behind the term "civil unions," ie say that federal law allows us not to recognize civil unions.  When a state like Massachusetts calls same-sex relationships marriage, companies that want to use the ERISA loophole thus have to admit they're discriminating against a couple because they're GAY, not because they're "civil unioned."

Last week, in fact, The Washington Post ran an investigation that reported very few companies in Massachusetts are choosing to use the ERISA excuse, quite unlike New Jersey. 

That's why the word marriage would make all the difference in the world in New Jersey. 

By the way, as of today, Sunday, July 8, 176 civil-unioned couples in New Jersey have informed Garden State Equality that their employers will not grant them benefits under New Jersey's civil unions law.  So the 1 in 8 failure rate, at least, continues.

And when you consider that ERISA covers about 50 percent of all employers in New Jersey and the nation, that 1 in 8 figure, in case any of you wonder, is if anything a gross, gross underestimate.  That ratio encompasses only the cases that have come Garden State Equality's way.

In fact, the New Jersey Division on Civil Rights reports it is getting 90 inquiries a month, over the past four-and-a-half months, from couples having problems with the civil unions law.

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by: Steven Goldstein, Garden State Equality chair @ Sun Jul 08, 2007 at 19:27:42 PM UTC

Semantics (0.00 / 0)

I'm convinced.  It should be marriage. How else can we fix this debacle and make sure that we don't create a new legal loophole for the unscrupulous employers like UPS.  It is distressing we had to create 60 new pages instead of changing a few words in the current law.  The simplest solution is usually the best.  Lets call it what it is -marriage. 

I personally will be boycotting UPS after hearing about this.  It's not my only beef with UPS - but it's the last straw.

What I find so incredible is that if I am with my boyfriend for a certain length of time - we are considered married - common law.  And yet the considerable anguish and heartache my same sex coupled friends need to go through to be considered married is a mountainous obstacle. That is just not fair.  I never wanted to be married and yet the law would make me so - while my friends who want to be married can't.  That is not equal under the law.  That is a travesty. 

If this battle will be fought with semantics - lets approach it this way.  Make the anti-marriage folks specifically define "man" or "woman".  There are scientifically - technically 5 sexes including folks that are literally BOTH.  How do they deal with THAT? I say if they can't define what makes a man a man or a woman a woman in all cases, they should throw out that part of ANY marriage law.

One Vote.  Yours.  It really does matter.

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by: carolh @ Sun Jul 08, 2007 at 19:40:25 PM UTC

5 sexes? What have I missed? (0.00 / 0)

Carol, I don't know about your 5 sexes, but you are correct in asserting that it seems impossible to define every person as either a "man" or a "woman".  There is certainly no uniform definition and examples such as the young Japanese man who found out to his (and his wife's) surprise that the reason his wife could not get pregnant was because "he" was in fact a woman although externally he was male.

Consider the East European Athlete who was stripped of her Olympic Gold Medal because she had a "y" chromosome and was deemed a "male" who years later gave birth to a child!
In fact here in New Jersey there are several couples I know that are in fact in a legal same sex marriage, and the sky has not fallen. However, for these folks, many in long term relationships with children there is the ever present anxiety that the state may invalidate their marriage. It's not happened in NJ, but in other jurisdictions. The most famous case was that of the noted British author, Jan Morris, who while married 20 some years with a child, transitioned to female and even though her wife wanted to stay married, British law forced them to divorce.  Such family values!

Recent medical studies estimate that 2% of the population has some form of intersex condition, which are people with some physical or biological characteristics of both sexes.  A couple of years ago at a Marriage Equality Conference at Rutgers I facilitated a workshop with the intersex activist Betsy Driver who spoke about the possibility of a marriage lawsuit by 2 intersex people who were assigned the same gender at birth, It would have been extremely interesting but I guess that never happened.

In New Jersey, transgender people who have surgery can have their birth certificate changed and marry a person of the opposite sex.  In Texas (a Bush appointed state supreme court) ruled that the chromosomes of the persons sex assigned at birth ruled and invalidated a transgender woman's birth certificate and her 7 year marriage.  (Of course they never tested the chromosomes, they assumed they were male). At least this ruling opened the door for several lesbian couples (where one partner was transsexual) to legally marry in Texas.

A Kansas supreme court did Texas one better in invalidating the marriage of a trans college professor to a wealthy politician when it ruled that transsexuals could not marry anyone, except maybe other transsexuals.  Make an ideologue a judge and you never know where you go!

"Discrimination caused by ignorance and fear is a tax on human progress" - Barbra Casbar Siperstein

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by: Babs NJSD @ Mon Jul 09, 2007 at 04:24:41 AM UTC

[ Parent ]

Good examples, all (0.00 / 0)

Thanks Babs. My sister in law is a toxicologist and toxicologists refer to 5 sexes.  That's where I heard it from.  They are dealing with this simply because there are so many chemical endocrine disruptors in the environment now.

5 sexes:
genetically and physically male
genetically and physically female
genetically female who develop physically male
genetically male who develop physically female
folks who are actually BOTH, having both types of sex organs
5 sexes.

The thing is the DNA strands naturally twist around each other.  Sometimes genes from one chromosome - the y or x will wind up on the other. That is how we get these natural kind of anomolies that result in the amazing diversity we see. 
This isn't even mentioning individuals who undergo gender reassignment or the development of the brain which, under the natural fluctuations of the sex hormones results in different sexual behaviors.

Logically, scientifically, genetically, physically, philosophically, intellectually, and legally, the anti-same-sex-marriage folks have absolutely no case.  If they define man or woman their whole case just breaks down to ridiculousness.

One Vote.  Yours.  It really does matter.

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by: carolh @ Mon Jul 09, 2007 at 12:41:50 PM UTC

[ Parent ]

Could Someone Please Tell Me ... (0.00 / 0)

Why no one has appealed to the Supreme Court to notify them that their order was not fulfilled by the legislature?  Or filed a suit alleging it wasn't fulfilled?  Or done something?

The right thing to do was to allow any couple to marry, and the leg fell down.

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by: huntsu @ Mon Jul 09, 2007 at 00:57:21 AM UTC

Because (4.00 / 1)

(a) The makeup of the Supreme Court is far to the right of where it was on October 25, 2006, the day of the Lewis v Harris decision;
(b) Because, tragically, the Lewis v Harris decision specifically told the legislature it could enact civil unions, using the term civil unions by name;
(c) Because the time it might take to see this through to a judicial resolution would freeze the legislature from doing the right thing - what a perfect excuse for the legislature, ie we'll just wait for the courts.  Which would be fine if we didn't have significant legislative momentum toward marriage equality.  But we really do - we're not spinning ya.

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by: Steven Goldstein, Garden State Equality chair @ Mon Jul 09, 2007 at 03:14:24 AM UTC

[ Parent ]

Say What? (0.00 / 0)

On what basis can anyone say that Rabner and Hoens represent a far right-wing shift from Zazzali and Poritz???  Hyperbole does not help this cause.  We aren't talking about Roberts and Scalito here.

In the short term, there are two major problems.  The first is that marriage equality is nowhere near having a majority in either house.  The second is that the Civil Unions Review Commission has a three-year mandate--therefore, the Legislature won't do anything until the final report comes out.

Have all of the complaints sent to GSE actually been sent to the Division on Civil Rights?

Finally, the fact that relatively few civil unions have been created is not an argument for marriage, no matter what the spin.  From the articles, even Steven doesn't know why.  I do wonder how important is marriage equality to the gay community versus other anti-discrimination measures?

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by: Creed Pogue @ Wed Jul 11, 2007 at 05:22:37 AM UTC

[ Parent ]

If you're really curious (0.00 / 0)

how important is marriage equality to the gay community? Watch these Videos (especially the bottom one).

You won't be left to wonder anymore.

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by: Jeff Gardner @ Wed Jul 11, 2007 at 14:43:20 PM UTC

[ Parent ]