Protect Marriage Maine, the coalition opposing same-sex marriage, bases this ad in part on an interpretation of a state law passed in 2004 to allow gay couples to register as domestic partners. The ad says the law allowed rights that married couples have in “virtually all” circumstances.
“Virtually all” should come with a pretty high standard. Maine law does allow for protections in some circumstances, but there are many cases in which it doesn’t.
The anti-gay marriage coalition hasn’t fared well so far in Truth Tests, getting two falses earlier this year for claims made on its website using bad information on child-rearing studies and saying tax-exempt status could be at risk if gay marriage passes. This claim is a little more true, but barely.
“Same-sex couples already have the legal protections of marriage in virtually all matters.”
We reached out to the Maine Legislative and Law Library, and an employee there sent a 2009 fact document from Gay and Lesbian Advocates and Defenders, or GLAD, which compares Maine’s domestic partnership protections with those of marriage.
The 2004 domestic partnership law does three main things, according to GLAD’s website: It gives partners inheritance rights in the absence of a will, gives the surviving partner next-of-kin rights when determining end-of-life arrangements for the deceased partner, and gives a partner priority as guardian or conservator when a partner is disabled.
But to get that, same-sex couples would have to meet some criteria that married folks don’t: Both partners must have lived in Maine for 12 months, the law says. That, and some other things, show the law is not nearly as strong as a marriage.
OTHER LAWS THAT APPLY
Let’s start with what domestic partners are promised under other pieces of law before we get to what they aren’t.
A 2007 Maine Supreme Judicial Court interpretation of state law says same-sex couples can jointly adopt children. Another law says private health insurers must offer policies for domestic partners “under the same terms and conditions” as they offer married partners.
Maine law also says: “An adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” can also act as a surrogate for a partner in health care situations.
GLAD’s website says that in Maine custody struggles, if a non-birth or non-adoptive parent participates overwhelmingly in the parenting process, “he or she is entitled to be considered for an award of full parental rights and responsibilities.” That would suggest same-sex parents would be eligible.
The Maine Legislature also has amended other pieces of law to accommodate same-sex couples, including the Family Medical Leave Act, domestic violence laws and access to partners’ absentee ballots.
MARRIAGE ENTAILS MORE LEGALLY
But that’s not all marriage is legally about. There are some very significant ways that the 2004 domestic partnership law doesn’t come close to measuring up with marriage.
Among GLAD’s list of 10 protections of marriage that aren’t afforded to same-sex couples, some are minor and some aren’t. But it shows that references to domestic couples aren’t made in many parts of Maine law.
Some pieces refer to federal benefits, such as Social Security. We’ll ignore those for this check, because the federal Defense of Marriage Act prohibits the recognition of state-sanctioned same-sex relationships even if Maine calls one marriage. We’re focused on pieces of state law.
For example, GLAD says that although domestic partners can go on their partner’s health insurance, the originally insured person has to pay income tax on the value of their partner’s piece of the policy. Spouses don’t.
AND THEN THERE’S DIVORCE …
The document also notes difficulty at ending relationships. Divorces are necessarily only available to spouses, and GLAD calls the processes to end domestic partnership “unpredictable” and failing to provide protections available under a divorce.
The state Family Care Act allows people to take time off from work to care for only an ill child, spouse or parent.
Maine employment law says spouses and their families are entitled to death benefits in work-related deaths.
The Maine Public Employees Retirement System pays survivor benefits to spouses, dependent children or parents.
Spouses are also considered one financial unit. They’re exempt from paying taxes on property transfers, according to Maine law. A partner put on their partner’s deed for a home would have to pay the tax, GLAD’s fact sheet says.
There’s also a husband-wife privilege in state judicial law, deeming communication between husband and wife confidential in court proceedings and making it so they don’t have to testify against each other. Either spouse can invoke the privilege on the other. Same-sex couples don’t have it.
Verdict: It’s misleading to say “virtually all” benefits of marriage exist for domestic partners under law, since there are many references to “spouses” in state law. Surely individual changes to law could be made to address them if legislators choose, but approving gay marriage would allow couples to take advantage of that language in one swoop.
We rate this claim mostly false.
Staff Writer Michael Shepherd can be reached at 621-5632 or at:
Correction: This story was revised at 3:12 p.m., Oct. 15, 2012, to correct a quote: “Same-sex couples already have the legal protections of marriage in virtually all matters.”