“It is unjust to use marriage as the sole trigger for familial employment benefits, denying to unmarried families fundamental protections of which they have equal need.” So wrote Lambda Legal, the nation’s largest LGBT rights legal organization, in a 2000 amicus curiae brief submitted to the Seventh Circuit in Irizarry v. Board of Education of the City of Chicago. Milagros Irizarry was an employee of the Chicago public school system with an unmarried, different-sex partner of more than twenty years. After the Chicago Board of Education instituted domestic partner benefits, but only for employees with same-sex partners, Irizarry sued, claiming that the benefits scheme was unconstitutional because it excluded her partner.
Lambda’s participation as amicus curiae in 2000 came four years before the first same-sex couples married in the United States in May 2004. But Lambda’s brief foresaw such marriages. In Irizarry, the Board of Education argued that heterosexual employees could obtain the benefits by marrying their partners. Lambda responded as follows:
For plaintiff, the structural exclusion from benefits on the basis of marriage is primarily a matter of whether the state can force her to marry–that is, to change her decision about the exercise of a fundamental right that is available to her–as a condition of providing equal employment compensation and greater health security for her family. Lambda is very sympathetic to this dilemma and expects that many lesbian and gay citizens may one day share her predicament and be put to the same choice. No one’s family health and security should depend on their constitutionally protected choice of whether to marry or not.
Judge Posner, writing for the Seventh Circuit panel that rejected Irizarry’s claim, found Lambda’s brief surprising. But breaking down rigid distinctions based on marital status had been a longstanding part of the lesbian and gay rights agenda. This is evidenced by Lambda’s support for the right of unmarried, heterosexual couples to adopt children, for the parental rights of a non-biological father who raised a child with his unmarried female partner, and for including unmarried couples within the definition of a family for rent control purposes.
Outside of the litigation context, advocacy organizations such as the National Gay and Lesbian Task Force had been a part of the Coalition of Families that formed in conjunction with the 1979 White House Conference on Families. That coalition of about fifty organizations stood for, among other things, the “elimination of discrimination and encouragement of respect for differences based on . . . diversity of family type.” Given this history, Lambda’s support for Irizarry was not at all surprising.
Over a decade later–now that lesbians and gay men have won the right to marry in nine states and the District of Columbia, there is formal recognition of same-sex couples in seven additional states, and access to marriage is at the top of the gay rights agenda–Lambda Legal and other national gay rights legal and political organizations no longer affirmatively endorse the position that they asserted in Irizarry. I can find among them no contemporary statement that distinctions between married and unmarried couples are unjust because they deny fundamental protections to unmarried families. Instead, they argue, such distinctions are unjust only where same-sex couples cannot marry and only because same-sex couples cannot marry. And in those places, the distinctions are unjust only as applied to same-sex couples.
This shift turns its back on a sizable LGBT constituency-those who do not marry in a jurisdiction where marriage is available and who do not want to marry even if it becomes more widely available-in other words, the Milagros Irizarrys of the lesbian and gay community. As a practical policy matter, it is in the area of access to employee domestic partner benefits-the very issue raised in Irizarry–that this change is most evident and, given the importance of access to health insurance, extremely troubling. In the next section of this essay I briefly describe the origin of domestic partner policies. Then I compare three written statements by LGBT rights groups, spanning eight years, articulating why employers should continue providing such benefits even after same-sex couples win the right to marry. Finally, I attempt to explain the shifting justifications contained in these statements, and then I urge a recommitment to the values that once spurred unqualified support for unmarried families.
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