Arguing Equality Chapter 1: Gay Marriage as a Matter of Justice

This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included a direct link to the chapter at the end, as well as information about the author.



Imagine if tomorrow, Congress enacted a law denying Jews the right to raise children together in a legally protected relationship. Or if by act of law, African-American couples who had lived together for years would no longer be permitted joint filing of tax returns, joint policies for their home, health or auto insurance.

Of course, this is a daily reality for millions of gay Americans. While it may not be readily apparent, marriage comes with a host of legal rights — 1,049 to be exact,1 ranging from the ability to collect Social Security survivor’s benefits to the right not to have to testify against a spouse in court. Listed below is a small sampling of some of these rights and benefits, each of which are currently denied to gay couples:

  • Priority in being appointed guardian of an incapacitated spouse or in being recognized as acting for an incapacitated spouse in making health care decisions
  • The right to invoke special state protection for “intrafamily offenses.”
  • The right to receive, or the obligation to provide, spousal support and (in the event of divorce) alimony and an equitable division of property.
  • The right to receive additional Social Security benefits based on a spouse’s contribution.
  • The right to spousal benefits guaranteed to public employees, including health insurance, life insurance and disability payments, plus similar contractual benefits for private sector employees.
  • The right to survivor’s benefits following the death of a veteran spouse.
  • Numerous rights relating to the involuntary hospitalization of a spouse, including the right to be notified, and the right to initiate proceedings leading to release.
  • The right to conjugal visits with a spouse who is incarcerated in prison.
  • The right to priority in claiming human remains and in making anatomical donations on behalf of a deceased spouse.
  • The right for a non-American spouse to qualify as an “immediate relative” and gain American citizenship under federal law.
  • The right to bring a lawsuit for the wrongful death of a spouse and for the intentional infliction of emotional distress through harm to a spouse.
  • The right to file a joint bankruptcy petition with a spouse.
  • The right to 59 distinct income tax deductions, credits, and exemptions.
  • A multitude of inheritance rights, including priority in inheriting the property of a spouse who dies without a will, the right to a family allowance, and the right to dower.

The denial of these rights to gay and lesbian couples is no academic matter – it has palpable consequences in everyday lives. Take, for example, the case of Holly Gunner, who began advocating for the right to marry when she came to realize that, in the eyes of the law, lifelong gay and lesbian couples could be treated as little more than roommates.

Following the death of Eileen, her partner of fifteen years, Holly discovered that she did not have the legal authority to carry out Eileen’s wishes to be cremated. In fact, she came to discover that doctors could even have barred her from seeing her dying spouse in the hospital. At work, Holly was not permitted to take bereavement leave. Then she was forced to pay taxes on Eileen’s property without any benefit of a marital tax deduction, and to make matters worse, even though Holly inherited most of Eileen’s estate, Eileen’s family refused to permit her to be the administrator of the estate.

“As if this wasn’t [sic] all galling enough,” Holly later told a reporter, “it was happening at the most painful, awful time in my life.” Holly’s story provides a stark reminder that granting 1,049 federal rights and privileges to one class of persons and categorically denying them to another is a gross violation of fundamental principles of equality. The fight for equal access to the institution of marriage is a fight for justice. Indeed, if our constitution’s promise of “equal protection under the law” stands for anything, it surely stands for the principle that if lesbian, gay, bisexual and transgender citizens work and pay taxes, then they deserve the same financial and other benefits that all other Americans receive.

On February 27, 2004, Rosie O’Donnell traveled to San Francisco to wed her partner, Kelli Carpenter. Appearing on Good Morning America, she explained that previously, during a court battle with the publisher of Rosie magazine, O’Donnell’s attorneys requested that communications between her and her partner be excluded from testimony. Although communications between a husband and wife routinely receive this “spousal privilege,” the court rejected her request. “As a result,” O’Donnell explained, “everything that I said to Kelli, every letter that I wrote her, every e-mail, every correspondence and conversation was entered into the record. After the trial, I am now and will forever be a total proponent of gay marriage.”

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”  – U.S. Supreme Court Justice Earl Warren, writing for the majority in Loving v. Virginia

via Gay Marriage as a Matter of Justice.


Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.


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