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The events of Sept. 11 illustrated how our society’s failure to recognize same-sex marriage creates personal and financial stress for such couples. The survivors in many same-sex couples were left impoverished after Sept. 11. If Larry Courtney had been married to Eugene Clark, his partner of 13 years, when Clark was killed at the World Trade Center, Courtney would have been eligible for workers’ compensation benefits for life. But eligibility for workers’ compensation, like Social Security and most other government survivor benefit programs, relies on marital status. There have been attempts to help gay and lesbian Sept. 11 survivors. In the immediate aftermath of the attacks, New York Gov. George Pataki signed an executive order making gay and lesbian partners eligible to receive compensation from New York’s Crime Victims Board. And, after nearly eight months of vigorous lobbying and the passage of special state legislation, the federal September 11th Victim Compensation Fund of 2001 agreed to compensate surviving lesbian and gay partners. But this latter-day recognition imposes significant costs on government, which must cobble together a series of partial fixes. And its limited, unpredictable nature means that lesbians and gays in long-term relationships risk having their futures unravel when disaster strikes. DIFFICULT ALTERNATIVES Without recognition of their marriage rights, lesbian and gay partners must try to protect their families through a complicated patchwork of wills, domestic partnership agreements and custody agreements — a patchwork that is partial at best, and unavailable to people who can’t afford lawyers. The patchwork also generates expensive litigation over the meaning of such arrangements, since there are no clear pre-existing rights. When same-sex couples don’t put that patchwork in place — sometimes due to the ordinary human reluctance to think about mortality — the survivor may face catastrophe. In our society, marriage protects family relationships even when people don’t plan for mortality, entitling spouses to act for each other in health care decisions and to receive pension payments. With those rights come responsibilities, such as liability for a spouse’s debts and for child support, which provide social glue for stable relationships without imposing additional burdens on the welfare state. As President Bush recently emphasized, the benefits and responsibilities of marriage have great emotional, social and financial benefits for the couple and for our society as a whole. That is why, as part of its new welfare plan, the Bush administration plans to invest hundreds of millions of dollars to promote “healthy, stable marriages” nationwide. The same logic argues for supporting same-sex marriages: The more stability that same-sex couples have, the less social disruption and need for government intervention. Worldwide, there has been an increasing trend toward recognizing same-sex relationships. The Netherlands recently legalized gay marriage, Germany just passed a law allowing official registration of same-sex partnerships, and at least 13 other countries, mainly in Europe, have given same-sex couples significant legal protections. In the United States, Vermont has recognized civil unions granting gay and lesbian couples virtually all of the rights of marriage that a state can offer, while California recently established domestic partnerships. And in January, the Democratic National Committee advocated Social Security benefits for same-sex couples, noting that seven out of 10 Americans support this measure. Indeed, a recent Harris poll showed that the majority of Americans believe same-sex couples are entitled to most of the same rights as legally married couples. Opponents of same-sex marriage argue that marriage, by definition, is a union between a man and a woman for the purpose of having and supporting children. But this argument rings hollow in a society where half of all marriages end in divorce, and has striking parallels to the earlier myth of marriage as a bastion of racial purity. Before the U.S. Supreme Court’s decision in Loving v. Virginia more than 30 years ago, many states banned interracial marriage as unnatural or immoral. Today, the vast number of interracial marriages and their ordinariness make those past prohibitions seem ridiculous. Nor is marriage uniquely linked to having and supporting children. Many heterosexual couples never have children, but millions of lesbians and gays do, with a huge birth and adoption boom over the last decade. If opponents really care about nurturing children, they should support same-sex marriage, which will increase the number of stable two-parent homes for the millions of children now languishing in foster care. Marriage is about society’s recognition of intimate bonds and the need for human beings to nurture each other. Lesbian and gay couples want to legalize the commitments that they have already made and want to join society fully with all of the rights and responsibilities that marriage entails. Laws that prevent them from marrying are discriminatory and outmoded. It is time states changed their marriage laws to recognize families that already exist and explicitly allow same-sex marriage. Leslie Rubin is acting chair of the Association of the Bar of the City of New York’s Committee on Sex and Law. Jay Weiser is an associate professor of law at Baruch College’s Zicklin School of Business.

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