League of Women
Voters of Maryland
January 2007
Benefits and Burdens of Marriage Under Maryland Law:
An Equal Opportunity Study
Introduction
In light of the increasingly controversial public debate
about marriage, the 2005 State Convention of the Maryland League of Women
Voters approved a two-year study “of legal disparities between married and
unmarried partners under state laws,” with an outlook for work that would
include but not be limited to laws relating to family, support, death, real
estate, and health. As such, the study is to include both unmarried
heterosexual partners and same-sex partners. The controversy in Maryland,
as well as at the federal level and in other states, has dealt almost entirely
with same-sex partners, and very little or not at all with unmarried heterosexuals
who live together as a family. As explained in this “fact sheet,” however, the
legal status of an unmarried heterosexual couple is identical to that of a
homosexual couple. Although a heterosexual couple may choose to marry,
they have no rights or duties as a couple until they do so.
Maryland’s 2005 debate centered on a state law defining marriage as between
a man and a woman, seemingly prohibiting any recognition of same-sex
relationships. By 2005, several counties and a large number of employers
had decided to extend health insurance or similar benefits to the “domestic
partners” of their employees. A lawsuit was brought on behalf of several
same-sex couples who asserted that the statute limiting legal recognition of
marriage to opposite-sex unions violated a provision of the Maryland
constitution prohibiting discrimination based on sex. A judge of the
Baltimore City Circuit Court ruled in favor of the plaintiffs. The court
found that a person married to someone of the opposite sex was allowed benefits
that were not provided to a person whose partner was of the same sex, thus
creating discrimination based on the sex of the partner. This ruling is
now on appeal to Maryland’s
highest court. Even before the Baltimore
ruling, efforts were made in the General Assembly to amend the Maryland
Constitution to prohibit both same-sex marriage and civil unions.
Expressly prohibiting same-sex marriage would have nullified the court decision
from Baltimore, but prohibiting the
legal recognition of civil unions would also have cast doubt on the status of
the employee benefit programs offered by private employers and local
governments. When the proposed constitutional amendment was changed to
allow legal recognition of civil unions, the amendment’s sponsors objected to
the change, and the bill was defeated in committee. Thus, the current
controversy involves both the definition of marriage and the legal status of
civil unions.
Although the controversy about marriage is rooted in
differing views about the moral and religious meaning of marriage, this study
focuses on the practical effects that the marriage laws have on the individuals
involved and the communities in which they live. We recognize that many
same-sex couples desire legal recognition of their marriages as a symbol of
social approval and that there are other citizens who want to withhold such
recognition in order to signal disapproval. Often overlooked are those
widows and widowers who are dependent on survivorship benefits from their former
spouse and are deterred from remarrying by the loss of those benefits.
These people are also affected by the definition of marriage under Maryland
law. Although the current debate is concerned with whether or not to
extend to same-sex couples the legal rights and duties of marriage, the study
committee did not attempt to reach an agreement on that question. Knowing
that the advocates and opponents of same-sex marriage would be presenting
arguments for and against such a change in the law, and that a great deal of
passion would be generated by both sides, the study committee chose to describe
as clearly as possible the benefits and obligations that Maryland law creates
for married people. Our goal is to present the facts in a neutral style
in order to contribute to an informed debate on this issue.
Because this study focuses on the marriage laws of Maryland,
we will not address the many federal laws that also affect marriage. The
most familiar is the federal income tax, as the rules for married people filing
jointly are different from those applied to single persons or married persons
who file separately. Many federal programs, such as Social Security and
veteran’s benefits, provide separate benefits for the spouse of the insured
person. The recent immigration debate has also brought attention to
federal laws that grant automatic entry for the spouse of a United
States citizen but provide no status to a
domestic partner. The interaction of state marriage laws and the federal
laws can be complex. For example, there are advantages to an employer
providing benefits to spouses of employees but that spouse may also have a tax
liability based on the value of those benefits. Similarly, some federal
benefits for a widow or widower are terminated if the person remarries, so that
the state’s legal recognition of the new marriage results in the end of the
federal recognition of the earlier marriage.
Many business and other private organizations provide
benefits based on marriage. These include pensions and health insurance
for the spouses of employees, discounted membership fees for married couples,
and tuition benefits at many colleges. Many companies and clubs now grant
the same or similar benefits to same-sex partners of employees, but some will
not extend the benefits to an unmarried heterosexual couple on the theory that
those couples have the option of legal marriage. In any dispute over such
benefits, the availability of legal records recognizing a marriage makes it
easy to prove coverage for a traditionally married couple. Partners who
establish a civil union may be able to create documents to provide legal proof
of their marriage, but the effectiveness of these documents is much less clear
than the standard marriage license. That is why some states, such as Vermont
and Connecticut, have created a
public registry for the recording of civil unions. A bill to create a
similar registry for health care decisions in the state of Maryland
was passed by the legislature, but vetoed by the governor in 2006.
At the heart of the current debate about marriage is an
assumption that legal recognition leads to social acceptance. Many people
on both sides of this debate believe that if the laws of Maryland
are amended to recognize same-sex relationships - whether that legal
recognition is called “marriage,” “civil union,” or “domestic partnership” -
same-sex couples will be accorded greater respect than they currently
receive. Members may want to discuss what is the proper
role of government in shaping society or in reflecting widely-held views and
values. This study paper will help to anchor that discussion in an
understanding of the specific benefits and burdens created by the marriage laws
of Maryland.
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Marriage and the Laws of Maryland
Marriage was not created by the law of Maryland,
as people were marrying one another long before the government of Maryland
was established. As we reviewed laws of Maryland
that govern marriage, it became obvious that the institution of marriage has
changed over the past several hundred years. When Maryland
was established as a colony in 1632, married couples who arrived on Saint
Clements Island assumed that their marriages would be governed by both English
common law and the canon law of the Roman Catholic Church. Under English
common law in the colonial era, the husband controlled all property and a wife
could not own property in her own name. The law changed as social
attitudes changed, however, and Maryland
law now provides that a married woman may hold, use, and dispose of property as
if she were unmarried. In 1664, Maryland
adopted a law prohibiting interracial marriage, reflecting the attitudes of
that time - including concern that there would be legal controversy over
whether the children of an interracial marriage would be slave or free.
That law was not repealed until 1967, the same year that the United States
Supreme Court threw out a Virginia
court conviction of an interracial couple decision in Loving v. Virginia.
Perhaps the most important point about Maryland’s
marriage law is that only those who have a marriage license are recognized as
married. There is no “common law” marriage in Maryland,
so it is no longer possible to form a legally-recognized marriage by simply
living together for a certain number of years. The law of Maryland
once required that a marriage ceremony be performed by a Christian
minister. That was later changed to permit a ceremony to be conducted by
anyone authorized to do so by a religious organization, and in 1964 the law was
amended again to permit court clerks and their designated deputy clerks to
preside at marriage ceremonies.
Other provisions in Maryland
laws relating to marriage reflect the vast changes from the agricultural
economy of the colonial era, transition first to the industrial economy and
then to a mix of information technology, service, and manufacturing in the
modern era. For example, employers who provide group health insurance for
employees must also cover the spouse and children of an employee. Under
current law, an employer is not required to provide insurance to a same-sex
partner or the children in that family, but a growing number of firms choose to
do so.
In discussions about marriage law, many people focus on the
benefits that the married couple receives as a result of the legal recognition
of their relationship. Of equal importance are the advantages that a
society gains from the committed relationships of marriage. People would
almost certainly choose to marry one another even if there were no legal
advantages because of their own desire for a companion as well as the moral
commitment to care for one’s spouse. There can be little doubt that the
state’s decision to grant legal rights to married couples is based, in part, on
a desire to formalize the religious and cultural customs supporting
marriage. Nonetheless, the government grants those rights in part because
the community enjoys the benefits produced by couples committed to caring for
each other.
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Financial Security of the Partners
The most obvious benefit that marriage provides to the
community is that marriage can prevent an individual from falling into poverty
and becoming a burden on the welfare system. Even the most skilled and
hard-working person can suffer a disabling injury or illness that prevents them
from earning a living. A person who has a spouse who can provide basic
medical care, prepare food, and earn an income sufficient to maintain a minimal
standard of living is far less likely to turn to public assistance than a
single individual in the same circumstances.
This expectation of mutual support is reinforced by Maryland
law that provides that a spouse may not willfully refuse to provide support to
the other, and a spouse who refuses to provide support may be fined $100,
imprisoned for up to 3 years, or both. While the statute is phrased in
the negative (it authorizes punishment for a person who refuses to support her
or his spouse rather than stating a positive requirement to provide support),
it reflects an assumption that Maryland
law makes about marriage: the partners in a marriage will support each other.
Many other provisions of the code reflect the assumption that a person will
support his or her spouse. For example, Maryland law provides: a special
rule for a spouse to carry on a real estate business if the owner dies;
requirement for the consent of a spouse for a person to assign a share of his
or her wages to satisfy a debt; authority to award alimony to a spouse in the
event of a divorce; authority to award an ownership interest in a pension,
retirement, profit-sharing, or deferred compensation plan in the event of a
divorce; the right of a person to bring a wrongful death action on behalf of a
spouse; and that a spouse is automatically considered appropriate for
appointment as guardian of a disabled person. Each of these statutes
reflects an assumption that a person will be supported by her or his spouse
and, if divorce ends the marriage, benefits are allocated between former
partners.
Maryland laws
also recognize that death ends the support furnished by a spouse and so
provides a legal means to obtain financial support or (through ownership of a
business) the means of financial support. Prior to the industrial age,
nearly all people made their living by farming. Much of Maryland’s
law affecting property rights of married couples is designed to ensure that the
survivor has a means of obtaining a living by ensuring continuing ownership of
property that was held jointly. For example, married persons
automatically inherit from the estate of a deceased spouse if the deceased
person did not have a will, while the estate of the deceased partner of a
non-married childless couple reverts to his parents, if alive, or
siblings. Other provisions of Maryland
law reflect the same principle applied to modern circumstances. For
example, a spouse succeeds to any right to compensation from an employer on the
death of an employee.
The right to own property, particularly a home, is also
affected by marriage. Although two unmarried persons can purchase
property as joint owners, with the survivor owning the entire property, only a
married couple can have “tenancy by the entirety,” which prohibits either
partner from selling his or her interest in the property without the consent of
the other partner. In a related area, when a married couple leases a property,
the landlord can claim the property of either partner in the event of a failure
to pay rent. If a renter has an unmarried partner, however, the landlord
can levy only on the property of the person who signed the lease and thus has
less security.
Maryland law
also provides protection for people who are unable to manage their own
property, whether due to physical or mental disability, by making it a crime to
exploit a vulnerable adult in the management of his or her property. That
provision does not apply, however, when a person makes a good faith effort to
assist a vulnerable adult at the request of that person’s family. Because
unmarried partners are not recognized as family, a person who manages the
property of a disabled partner may face liability if a dissatisfied
relative accuses him or her of mismanagement.
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Laws Supporting the Relationship Between
Partners
Some provisions of law are designed to protect the marriage
relationship from outside pressures. For example, married individuals may
not be compelled to testify against their spouses and are not considered
permitted to disclose confidential communications that occurred between the
spouses during the marriage. A spouse cannot be compelled to testify
against a defendant spouse as an adverse witness unless the charge involves
child abuse or assault in which the spouse is a victim. These provisions
appear to be intended to encourage open communication between spouses.
While such communication can be seen primarily as a benefit to the quality of
marital relationship, it may also have benefits for the community - a partner
who is trusted with your deepest feelings may be able to discourage you from
engaging in crime or other harmful behavior. Thus, the society gains from
the greater emotional stability of the individuals in the partnership.
Maryland law
also provides that when spouses are both hospitalized they should be permitted
to share a room. This provision reflects awareness that the emotional
well-being of a patient depends in large measure on the support of a partner.
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Health Care
Maryland law
has many provisions that assume that spouses will care for one another’s
health. Prior to the 2006 amendments that eased the requirements for
obtaining an absentee ballot, for example, a person who was caring for an ill
spouse was automatically qualified to obtain an absentee ballot. If a
person is enrolled in the Maryland
program to provide medical care and prescription drugs for the indigent, the
spouse is obligated to pay the program’s healthcare costs to the extent of his
or her ability.
Maryland law
also authorizes a spouse to make certain decisions about medical care when the
other spouse is unable to do so. If a person is unconscious, decisions
regarding life-sustaining medical treatment may be made by a surrogate, and
under Maryland law a spouse has
priority over other family members. Each hospital in the state is
required to establish an advisory committee to assist in making decisions
regarding life-threatening illnesses and end-of-life medical care, and the
spouse of a patient may file a petition to raise an issue regarding treatment
for that patient. A spouse may be authorized by the court to approve
medical procedures for a disabled person even when those procedures pose a
substantial risk to the life of the person. Although an adult child,
adult brother or sister, or parent of a person could also make these types of
decisions; this may prove difficult if family members live in another
state. These provisions of Maryland
law not only provide legal rights to spouses, but also provide guidance to
doctors and other medical professionals and protect them from legal liability
for difficult decisions regarding treatment for patients who are unable to
communicate their wishes.
Organ transplants have become an increasingly important part
of health care decisions, and Maryland
law has several provisions protecting the rights of spouses to participate in
these highly personal decisions. A spouse or an adult son or daughter of
a person may donate organs for transplant to other patients. A hospital
or doctor who receives a gift of a transplanted organ may not bill the estate
of the donor or any family members of the donor for the costs of the removal of
the donated organ. By providing clear legal authority to spouses and
other family members, these laws facilitate prompt decisions regarding
time-sensitive organ donations. While these laws can be seen as
benefiting marriage in that married people have assurance that their spouses
will be able to carry out an intention to help others after their deaths, it
may be that the receiving patients and the community are the main beneficiaries
of these laws. Where a person has a domestic partner in a relationship
not recognized by Maryland’s
marriage law, transplanting of organs will be more difficult as officials will
be required to take time to locate other family members to make this decision.
Health insurance plans are regulated by state law, which
sets minimum standards for the types of coverage that must be offered by any
insurer through the “comprehensive standard health benefit plan.” Such
plans must include family planning and infertility services, though in vitro
fertilization is not covered. To the extent that eligibility for these
and other insurance benefits is determined by marital status, an insurer would
be expected to rely on Maryland
law to determine what type of coverage was required.
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Housing
Housing is another area of business activity that is
regulated by the state. Any program that receives state funds must not
discriminate based on marital status. An apartment or other housing
complex that received no state funds, however, could exclude unmarried
couples.
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Protections for Children
Maryland law
states that each parent has an equal duty to provide for a child’s support,
care, nurturing, and general welfare, and these
protections are extended whether the child is born to those parents or is
adopted by them. A child who is born or conceived (naturally or by
artificial insemination) during a marriage is presumed to be the legitimate
child of both spouses. To facilitate health care decisions, the medical
records of a minor child must be made available to an adoptive parent.
Under current law, unmarried partners do not have the same obligations toward
their children. Although it may be possible for one parent to adopt the
children of the other partner, the state’s interest in ensuring support for
children is jeopardized if such an adoption has not been arranged and the legal
parent becomes disabled or dies. The child would then be left with no one
who had a legal obligation to provide care and support.
Other laws protecting children in the event of a divorce are
also limited to situations involving a marriage recognized under Maryland
law. For example, a court may exercise its power to ensure that children
can continue to live in the environment that is familiar to them in the event
that their parents divorce. The court may provide for the continued occupancy
of the family home and the possession and use of personal property (for
example, a family car) to the custodial parent. This right does not adhere to
the children of unmarried partnerships if the non-custodial parent is sole
owner of the home.
Maryland has
established programs to assist lower income families in difficult emotional and
financial times, including counseling, health care referrals, and instruction
in household management and budgeting. Unmarried couples are not eligible
for these services because they are not included within the law’s definition of
“family.” For services provided to adults and their children, the
children must be legally adopted by the adult. Similarly, children and
spouses of active duty military personnel may pay in-state tuition for Maryland
state schools, but non-married partners and children not legally adopted by the
armed forces member are not eligible for these benefits, which are intended
both to protect the children of soldiers and sailors and to serve as an
incentive for military service.
Although parents’ authority over their children is generally
protected from interference by others, Maryland
law recognizes exceptions when a child’s health or safety is endangered.
Thus, although a person is prohibited from removing a child from his or her
lawful custodian, a parent or other relative of the child may file a petition
stating that a clear and present danger to the child exists. If the
unmarried partner of a parent witnessed abuse or another danger to a child,
however, the partner would not have a legal right to protect the child because
he or she is not recognized as a “relative” of the child.
In Maryland,
issues relating to family law (such as divorce, juvenile delinquency, child
custody, adoption, etc.) are assigned to the circuit courts. The courts
use special procedures in these cases in order to protect the interests of
children and to encourage mediated settlements rather than hard-fought
litigation. Increasingly, the courts rely upon the Department of Family
Administration of the Administrative Office of the Courts, a state agency, to
secure counseling services to assist families to resolve problems
amicably. Maryland courts
have approved two-parent adoptions even where the partners are not married.
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Protecting the Community from Risks Arising from Marriage
Although most of the marriage laws clearly relate to
benefits that the partners or the community receive from the legal status of
the marriage relationship, other laws recognize that the obligations of
partners to one another can be in conflict with their obligations to
others. For example, a cemetery trustee is not allowed to use funds from
the cemetery trust to purchase anything from his or her spouse or to invest the
trust funds in any business controlled by the spouse. There are also
special rules to protect debtors where loan paperwork is sold for less than
fair market value to a spouse or other relative. A hospital may have a
lien (a claim based on debt) on any amounts recovered in a lawsuit, even if the
injured person has died and the money from the lawsuit would be paid to a
spouse or other relative. Other provisions of law protect organizations
from a concentration of power in the hands of a married couple – where a husband
and wife are joint members of a cooperative, only one may serve as an elected
director. Each of these provisions of law recognizes that a married
couple often acts as a single entity to serve the mutual interests of the
spouses, potentially to the disadvantage of others who deal with them.
Under current law, there is no such protection from the shared interests of an
unmarried couple, whether both partners are the same sex or of opposite sexes.
Some laws prevent married partners from taking unfair
advantage of state benefit programs. For example, Maryland
charges fees to realtors to create a “Guaranty Fund” to protect people who may
be defrauded by a licensed realtor, but the law prohibits the spouse of an
accused realtor from making a claim. The domestic partner of a realtor
could make such a claim, however, without violating the law.
Maryland law
prohibits nepotism, the practice of favoring family members for employment or
other benefits, and also prohibits government officials and employees from
participating in decisions that may affect the business or other financial
interest of a spouse or other family member. Consistent with that
principle, the spouse of a teacher or school administrator cannot be elected to
a board of education. This principle is reinforced by requiring state
government officers and employees to file financial disclosure forms each year
that list the financial interests of the filer’s spouse and other family
members. As Maryland law
does not recognize marriages between persons of the same sex, these laws would
not apply to the same-sex partner of an official or employee, even though the
public might be concerned about the risk that the employee would engage in
favoritism toward that partner’s business interests.
Laws and court decisions establish rules for dissolving a
marriage, including determination of ownership of joint property (including
pension benefits in which a spouse may have the right to claim a share),
responsibility for debts jointly incurred, and child custody and support.
It is no longer assumed that a woman automatically receives custody of the
children and alimony payments from her former husband. Instead, the court
is required to consider the best interests of the children in awarding custody
and will consider the relative incomes of both partners and any evidence of
their expectations in deciding whether to award alimony. While these
principles are well-settled for married couples, there is much less certainty
about the rights of non-married partners, whether of the same sex or opposite
sexes.
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Comparison to Other States
According to the website of National Center for State
Legislatures, there were 41 states with laws defining marriage, 20 states with
a constitutional provision defining marriage, six states with neither, and
eight states with constitutional measures on the ballot for 2006. Seven
of those ballot measures, including the one in neighboring Virginia,
were approved by the voters. The state of Massachusetts
now recognizes marriage between same-sex partners while Vermont
and Connecticut recognize
domestic partnerships but not marriage for same-sex couples. The supreme
court of New Jersey has ruled
that the legislature must grant to same-sex couples the same rights available
to married couples, but the legislature had not met at the time of this
report. The District of Columbia
recognizes limited rights (primarily health care decision-making) for domestic
partners.
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Conclusion
The current debate about marriage has focused on the
benefits gained by the partners, but under Maryland
law, marriage is a bundle tying together rights and responsibilities.
These rights and responsibilities govern not just the relationship of the
partners, but also affect dependent children, medical care providers,
employers, and the community at large. By linking these rights and
responsibilities, the law of marriage ensures that a person who wants to claim
the rights of marriage is also bound by its responsibilities. It is
possible for individuals to take on some of these rights and responsibilities
through separate legal documents relating to health
care, financial interests, and other matters, but securing these arrangements
is somewhat complicated. The current debate focuses on whether the people
of Maryland would be better
served by authorizing some form of domestic partnership or an expansion of
eligibility for marriage to ensure that the combination of rights and
responsibilities serves the needs of both the individual and the community.
On the question of legal status leading to social approval,
an important principle of democratic government is that the government should
not control all aspects of life. Although many other nations have
established a particular religion, in our society we have the freedom to choose
our own religious beliefs and to organize churches, synagogues, mosques,
schools, and other entities to carry on those beliefs. Similarly, artists
and authors are free to create their works without obtaining licenses from the
government. We have chosen to create a government with limited powers
that intervenes only when one person’s conduct affects the ability of others to
enjoy the same freedoms. While other governments have the power to
regulate personal morality and to determine the types of music, movies, poetry,
or books that people may hear and see, government in America
focuses on the practical questions of how one person’s behavior may affect
other citizens. For example, no one says that you cannot eat pork, but
you cannot allow pigs to run free in the streets. You may personally
dislike people of another race or religion, but once you enter the marketplace
to buy or sell products, you must treat all potential customers without
discrimination. Perhaps this perspective would help to ensure that the
debate about marriage will generate as much light as it has already generated
political heat.
Additional Resources
Marriage, a History: from Obedience to Intimacy or How
Love Conquered Marriage, Stephanie Coontz, Viking 2005
Living Together: A Legal Guide for Unmarried Couples,
Toni Ihara, Ralph Warner, and Frederick Hertz, Nolo
Press 1999
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Consensus Questions
1. Should the legal status of marriage be more clearly
distinguished from the religious institution of marriage so that it is more
consistent with the principle of separation of church and state? If so, how?
2. Should the League of Women Voters support
legislation to permit unmarried couples (whether same-sex or heterosexual) to
choose a status of domestic partnership or civil union that includes legal
rights and benefits similar to those now applicable to marriage? Why or
why not?
3. Should Maryland
recognize the civil unions and same-sex marriages of other states (such as Vermont,
Massachusetts, or New
Jersey)?