The Volokh Conspiracy

According to this article, the Boston Globe will soon require its gay employees to get married in order to keep their same-sex partners' benefits:

A memo sent to the Globe's Boston Newspaper Guild members, and obtained by the Herald, states that Massachusetts gay Guild employees can extend their benefits to their partners only if they marry.

"An employee who currently covers a same-sex domestic partner as a dependent will have to marry his or her partner by Jan. 1 for the employee benefits coverage to continue at the employee rates," the memo states. . . .

Benefits for domestic partners were originally offered to gay employees because they couldn't legally marry, said Ilene Robinson Sunshine, a lawyer at Sullivan & Worcester.

Now that gay marriage is legal in Massachusetts companies that offer benefits to gay employees' partners risk hearing cries of discrimination from unmarried straight couples. . . .

The Globe does not extend benefits to live-in partners of its heterosexual employees. Like many companies, it offered benefits to partners of gay employees because marriage was not an option for them. . . . . Paul Holtzman, an attorney specializing in employment law at Krokidas & Bluestein, said you can expect more local companies to change their policies.

"There is a trend towards doing what the Globe did," he said. "A number of employers have taken the position that now that same-sex marriage is an option there is no longer a need to offer domestic partner benefits."

While it's hard to be cheerful about the prospect that anyone would lose health coverage, this is on the whole a salutary development. My view has been that an incremental approach to gay marriage — involving first the recognition of domestic partnerships and/or civil unions — is ordinarily the best path. It is good policy and good politics. Critics of this approach, including Jon Rauch (who favors gay marriage) and Stanley Kurtz (who opposes it), have countered that such incrementalism creates a host of alternative statuses that risk making marriage less attractive. (Some people welcome this development since they'd like to knock marriage off its pedestal.) Their fear is that once a constituency develops for these alternative statuses it will be nearly impossible to end them.

The apparent trend in Massachusetts, however, suggests that interim marriage-lite statuses can be created for same-sex partners before gay marriage is recognized and then ended once full marriage is achieved. The reasons, I suspect, are both legal and political. There is first the fear of a sex-discrimination claim if a business or government continues to offer unmarried same-sex domestic partners benefits while not offering the same benefits to unmarried opposite-sex domestic partners. That discrimination could have been justified as long as gay partners could not be married, but the legal defense will be harder once they can be. There is second the political difficulty of justifying the continuance of same-sex-only domestic partners benefits once those partners have the marriage option. Heterosexual employees (and citizens in general) will want to know why gay employees and their unmarried partners should continue to get what will now look a lot like "special rights" to domestic partners benefits unavailable to anyone else.

Much harder to dislodge — after gay marriage is permitted — will be domestic partnerships and other marriage-lite statuses that, pre-gay-marriage, were made available both to unmarried heterosexual and unmarried homosexual partners. The equitable objections to continuing such alternative statuses will be unavailable, since everyone can access them.

The incrementalist conservative approach to gay marriage, therefore, has to emphasize that interim alternative statuses (like domestic partnerships and civil unions) should be available only to same-sex couples who do not yet have the option to marry. Alternative statuses can be limited to gay partners by emphasizing (1) the stronger equitable claim of gay partners who can't marry and by emphasizing (2) the enormously higher cost of including unmarried heterosexual partners in such statuses, since unmarried heterosexual couples always impose the lion's share of the costs when these statuses are available equally to them. Same-sex only interim alternative statuses will, ironically, have to fend off sex-discrimination and other claims. But this has so far not been difficult to do.