May 13, 2015 12:24PM

When Are You Going to Get Married?

The Wall Street Journal today reports a policy shift that I had predicted and recommended 20 years ago. Rachel Emma Silverman writes:

Amid a push that has made same-sex marriage legal in 37 states and the District of Columbia, some employers are telling gay workers they must wed in order to maintain health-care coverage for their partners. About a third of public- and private-sector employees in the U.S. have access to benefits for unmarried gay partners, according to a federal tally, but employment lawyers say the fast-changing legal outlook is spurring some employers to rethink that coverage.

“If the Supreme Court rules that suddenly there is marriage equality in 50 states, the landscape totally changes,” says Todd Solomon, a law partner in the employee-benefits practice group at McDermott Will & Emery in Chicago, who has been tracking domestic partnership benefits for nearly two decades.

Such a decision will likely result in more employers dropping same-sex partner benefits in favor of spousal benefits, according to Mr. Solomon.

Over the past decade, a growing share of companies has offered coverage for gay employees and their partners as a way to provide equal benefits for couples who couldn’t legally wed. Others companies offer coverage more broadly to unmarried domestic partners, regardless of sexual orientation. 

Now, some employers who offer benefits targeting same-sex partners say it is only fair to require those couples to marry where legal, just as their straight co-workers must do to extend coverage.

I anticipated that eventuality in a January 4, 1995, op-ed in the New York Times, as the movement for marriage equality, civil unions, and domestic partnership was just beginning:

In 1992 Stanford University extended benefits to domestic partners of homosexuals (but not heterosexuals) because “their commitment to the partnership is analogous to that involved in contemporary marriage,” said Barbara Butterfield, a university vice president.

Governments invariably get this wrong, while businesses usually get it right. Every city that has adopted domestic partnership laws has included both same-sex and heterosexual couples, and in almost every case more heterosexuals than homosexuals have filed for partnership status.

But many private organizations—including Stanford, Montefiore Medical Center, Lotus Development Corporation and the Public Broadcasting Service—have extended benefits only to same-sex couples. Most of these companies have said that if homosexual couples are allowed to legally marry, these policies would be ended—which is as it should be.

Actually, I had made the point somewhat more bluntly a year earlier in Liberty magazine (not online apparently, but cited here):

Once again, businesses get it right and governments get it wrong:  Businesses are taking the appropriate position that "if you want the benefits of marriage, get married; but if the state won't let you get married, we'll be more progressive."  Governments just see domestic partnership as one more goodie to hand out; businesses see it as a way of remedying an unfairness, not to mention retaining valued employees.

I was wrong about businesses. Eventually, most large businesses did offer partnership benefits to same-sex couples, but a large percentage of them also made the benefits available to heterosexual couples. There are no doubt more unmarried heterosexual partners working at most businesses than unmarried gay partners, so eventually the "marry if you can" standard didn't hold out. 

But now, as the Journal notes, if marriage equality becomes universal, companies are likely to start returning to the policy of offering spousal benefits only to actual spouses.