Leveling up after DOMA

Indiana Law Journal

Volumn 89, Issue 1, 2014, Pages 43-65

  Widiss, Deborah A ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 84893930167     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (105)

1. Transcript of Oral Argument at 85, United States V. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).
2. See Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. PA. L. REV. 1375 (2010) (discussing arguments under the fundamental rights branch of equal protection law)
3. Deborah A. Widiss, Elizabeth L. Rosenblatt & Douglas NeJaime, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 HARV. J.L. & GENDER 461 (2007) (discussing sex discrimination arguments).
4. This is a slight oversimplification. There have been a few states that have recognized out-of-state same-sex marriages even when refusing to license same-sex marriages themselves, but generally only for a relatively short period of time before expanding marriage rights within their own states. See, e.g., Windsor, 133 S. Ct. at 2689 (discussing New York's evolution on the issue). In October 2013, Oregon began recognizing out-of-state marriages, but Oregon does not (yet) permit same-sex couples to marry within the state. See Richard Gonzales, How a County Clerk Ignited the Gay Marriage Debate in MM, NPR (Oct. 22, 2013).
5. see also William Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 STAN. L. REV. 1371 (2012) (discussing how general choice-of-law principles should apply in this context)
6. Hillel Y. Levin, Resolving Interstate Conflicts Over Same-Sex Non-Marriage, 63 FLA. L. REV. 47 (2011) (discussing how conflicts principles should apply to interstate recognition of civil unions or domestic partnerships, as well as marriage).
7. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-04-353R, DEFENSE OF MARRIAGE ACT: UPDATE TO PRIOR REPORT (2004).
8. See generally Kerry Abrams, Marriage Fraud, 100 CALIF. L. REV. 1 (2012) (providing a detailed analysis of marriage fraud doctrines in various areas of law).
9. See, e.g., Windsor V. United States, 133 S. Ct. 2675, 2695 (2013) (discussing government ethics rules and student financial aid)
10. Marjorie E. Kornhauser, Love, Money, and the 1RS: Family, Income-Sharing, and the Joint Income Tax Return, 45 HASTINGS L.J. 63 (1993) (discussing tax).
11. Deborah A. Widiss, Changing the Marriage Equation, 89 WASH. U. L. REV. 721, 747-57 (2012).
12. See, e.g., M.V. LEE BADGETT, WILLIAMS INST., UNEQUAL TAXES ON EQUAL BENEFITS: THE TAXATION OF DOMESTIC PARTNER BENEFTTS (2007) (estimating that an employee with a domestic partner receiving health insurance pays on average $1069 per year more in taxes than a comparable married employee with a spouse receiving the same benefits).
13. see also Peter W. Martin, The Case for Reforming the Program's Spouse Benefits While "Saving Social Security" (Cornell Law Sch., Working Paper No. 12-67), available at http://library2.lawschool.comell.edu/facbib/ faculty.asp?facid=21&show=online (providing detailed history of spousal benefits).
14. See C. EUGENE STEUERLE & CALEB QUAKENBUSH, URBAN INST., SOCIAL SECURITY AND MEDICARE TAXES AND BENEFITS OVER A LIFETIME (2012), available at http://www.urban.org/UploadedPDF/412660-Social-Security-and-Medicare-Taxes-and- Benefits-Over-a-Lifetime.pdf. For more on Social Security spousal benefits, see infra text accompanying notes 98-102.
15. See, e.g., Stephanie Hunter McMahon, To Have and to Hold: What Does Love (of Money) Have to Do with Joint Tax Filing?, 11 NEV. L.J. 718, 719-20 (2011).
16. See, e.g., KATELIN P. ISAACS, CONG. RESEARCH SERV., RS21029, SURVIVOR BENEFITS FOR FAMILIES OF CIVILIAN FEDERAL EMPLOYEES AND RETIREES (2012) (summarizing civilian spouse survivor benefits)
17. Matthew Alex Ward, The Military Must Lead in Advocating for Marriage Equality, 37 N.Y.U. REV. L. & Soc. CHANGE 457 (2013) (summarizing military spousal benefits)
18. Healthcare Eligibility, OFF. PERSONNEL MGMT., http://www.opm.gov/ healthcare-insurance/healthcare/eligibility/ (federal employees' spouses are eligible for health insurance).
19. See, e.g., Policy Manual, U.S. CITIZENSHIP & IMMIGR. SERVICES 202 (June 10, 2013), http://www.uscis.gov/policymanual/PDF/PolicyManual.pdf.
20. See, e.g., Blake Ellis, Same-Sex Couples: Beware the Marriage Penalty, CNNMONEY (June 27, 2013, 7:07 AM), http://money.cnn.com/2013/06/27/pf/same-sex- marriage-penalty/index.html
21. Susanna Kim & Lauren Pearle, Many Same-Sex Couples May Pay More in Taxes After Marriage, ABC NEWS (June 27, 2013), http://abcnews.go.com/Business/ sex-couples-pay-taxes-marriage/story?id=19505554&singlePage=true
22. Roberton Williams, DOMA'S Demise Means Higher Taxes for Some Same-Sex Couples, FORBES (June 26, 2013, 2:27 PM), http://ww.forbes.com/sites/beltway/ 2013/06/26/domas-demise-means-higher-tax-bills-for-some-same-sex-couples/.
23. See, e.g., Dan A. Black, Seth G. Sanders & Lowell J. Taylor, The Economics of Lesbian and Gay Families, 21 J. ECON. PERSP. 53, 63 (2007).
24. See, e.g., Gregory Acs & Elaine Maag, Irreconcilable Differences? The Conflict Between Marriage Promotion Initiatives for Cohabiting Couples with Children and Marriage Penalties in Tax and Transfer Programs, in NEW FEDERALISM, at 2 (Urban Inst., Ser. No. B-66, 2005).
25. See, e.g., Lily Kahng, One Is the Loneliest Number: The Single Taxpayer in a Joint Return World, 61 HASTINGS L.J. 651, 653-55 (2010) (discussing this history)
26. Julie A.D. Manasfi, Joint Federal Income Tax Returns: If DOMA Dies and Even if It Lives the Weak Case for Distinguishing Between Same-Sex and Different-Sex Married Couples 14-19 (Mar. 14, 2013) (unpublished paper), available at http://works.bepress.eom/julie-manasfi/2/ (discussing this history and quoting a Senate Report stating that the joint return was intended to "produce substantial geographical equalization").
27. M.V. LEE BADGETT & JODY L. HERMAN, WILLIAMS INST., PATTERNS OF RELATIONSHIP RECOGNITION BY SAME-SEX COUPLES IN THE UNITED STATES 11-12 (2011).
28. Brief of Gary J. Gates as Amicus Curiae Supporting Respondent Windsor at 15-16, Windsor, 133 S. Ct. 2675.
29. See Id. at 25-26 (estimating that there were 114, 000 same-sex couples in the United States who were married); Press Release, Williams Inst., Supreme Court Rulings Strike Down DOMA and Prevent Enforcement of California's Proposition 8 (June 26, 2013), available at http://williamsinstitute.law.ucla. edu/press/press-releases/supreme-court-rulings-26-jun-2013/ (estimating 76, 000 married couples live in states that recognize the union and 38, 000 live in states that do not)
30. see also Drew DeSilver, How Many Same-Sex Marriages in the U.S.? At Least 71, 165, Probably More, PEW RESEARCH CTR. (June 26, 2013), http://www. pewresearch.org/fact-tank/2013/06/26/how-many-same-sex-marriages-in-the-u-s-at- least-71165-probably-more (documenting at least 71, 165 same-sex marriages by reviewing state marriage records, but noting the actual number was almost certainly far higher since many states had not yet reported data from 2012 or 2013).
31. In October 2013, immediately after New Jersey legalized same-sex marriage, the Williams Institute at UCLA estimated that 40% of the nation's estimated 646, 000 same-sex couples were living in a state where they could marry. Press Release, Williams Inst., Almost 17, 000 Same-Sex Couples Now Eligible for Marriage Benefits in New Jersey (Oct. 21, 2013), available at http://williamsinstitute.law.ucla.edu/press/press-releases/almost-17000-same- sex-couples-now-eligible-for-marriage-benefits-in-new-jersey/.
32. The 40% number pre-dated the addition of Hawaii and Illinois, but Illinois has been estimated to have approximately 23, 000 same-sex couples, Infographie: Illinois, WILLIAMS INSTITUTE (NoV. 2013), http://williamsinstitute. law.ucla.edu/headlines/infographic-extending-marriage-to-same-sex-couples-in-il/ ,
33. and Hawaii certainly has far fewer same-sex couples, Infographie: Hawai'i, Williams Institute (NoV. 2013), http://williamsinstitute.law.ucla.edu/ research/census-lgbt-demographics-studies/infographic-hi-snapshot/, meaning that still fewer than 44% of same-sex couples live in a state with marriage equality. Additionally, Oregon recently began recognizing out-of-state same-sex marriages, see supra note 6, but even with this addition, well over 50% of same-sex couples live in non-recognition states, and thus are categorically barred from some key federal rights premised on marriage.
34. *24. In October 2013, Governor Chris Christie decided not to appeal this ruling, and same-sex marriage became available statewide in New Jersey. Kate Zernike and Marc Santora, As Gays Wed in New Jersey, Christie Yields, N.Y. TIMES, Oct. 22, 2013, at A1.
35. See, e.g., Joanna L. Grossman, Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws, 84 OR. L. REV. 433, 435, 442-44 (2005). Most states recognize a "public policy" exception to this general rule but, at least since the Supreme Court held that anti-miscegenation laws were unconstitutional, it has been little invoked in any context other than same-sex marriage. See Id.
36. see also Andrew Koppelman, Same-Sex Marriage and Public Policy: The Miscegenation Precedents, 16 QUDMNIPIAC L. REV. 105 (1996).
37. See OFFICE OF PERS. MGMT., BENEFITS ADMINISTRATION LETTER NO. 13-203, COVERAGE OF SAME-SEX SPOUSES (2013) (discussing federal employee benefits)
38. Press Release, U.S. Dep't of Def., DOD Announces Same-Sex Spouse Benefits (Aug. 14, 2013), available at http://www.defense.gov/Releases/Release.aspx? ReleaseID=16203 (discussing military benefits)
39. Press Release, U.S. DEP'T OF THE TREASURY, All Legal Same-Sex Marriages Will Be Recognized for Federal Tax Purposes, (Aug. 29, 2013), available at http://www.treasury.gov/press-center/press-releases/Pages/j12153.aspx (discussing tax)
40. U.S. Dep't of Labor, Technical Release No. 2013-04, Guidance to Employee Benefit Plans on the Definition of "Spouse" and "marriage" under ERISA and the Supreme Court's Decision in United States V. Windsor (Sept. 18, 2013) (discussing ERISA)
41. Implementation of the Supreme Court Ruling on the Defense of Marriage Act, DEP'T OF HOMELAND SEC, http://www.dhs.gov/topic/implementation-supreme- court-ruling-defense-marriage-act (discussing immigration rights).
42. See, e.g., Alberto R. Gonzales & David N. Strange, Op-Ed., What the Court Didn 't Say, N.Y. TIMES, July 18, 2013, at A23 (arguing that same-sex married couples are still not eligible for spousal rights under immigration law)
43. see also Richard A. Oppel, Jr., 3 States End Resistance to Spousal Benefits Order, N.Y. TIMES, NoV. 28, 2013, at A24 (reporting that nine states initially refused to process benefits paperwork for same-sex of National Guard members on the grounds that doing so would violate state law, but that as of late-November 2013 only three states continued their opposition to the new rule).
44. See 29 C.F.R. § 825.113 (2013) ("Spouse [for purposes of the Family and Medical Leave Act] means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides."); Program Operations Manual System-GN 00210 BASIC: Windsor Same-Sex Marriage Claims, SSA.GOV (Aug. 9, 2013), https://secure.ssa.gov/appslO/ public/reference.nsClinks/08092013111040AM (providing that spousal claims will be permitted when claimant "was married in a state that permits same-sex marriage" and "is domiciled at the time of the application, or while the claim is pending a final determination, in a state that recognizes same-sex marriage")
45. Press Release, Dep't of Justice, Attorney General Holder Announces Move to Extend Veterans Benefits to Same-Sex Married Couples (Sept. 4, 2013), available at http://www.justice.gov/opa/pr/2013/September/13-ag-991.html.
46. Further analysis may be found in a detailed set of fact sheets developed by a group of advocacy organizations, discussing the likely applicability of various federal statutes to couples who are married but live in states that do not recognize the marriage and providing updates as agencies have provided more definitive guidance. These are available on the coalition's members' websites. See After DOMA: What It Means for You [hereinafter After DOMA Fact Sheets], HUM. RTS. CAMPAIGN (July 9, 2013), http://www.hrc.org/blog/entry/what-do-the-doma- decisions-mean-for-you/ (fact sheet for "Veteran's Spousal Benefits") (discussing likelihood that place of domicile rule will apply).
47. Respect for Marriage Act, H.R. 2523, 113th Cong. (2013) (as of July 25, 2013, 165 cosponsors)
48. S. 1236, 113th Cong. (2013) (as of July 26, 2013, 42 cosponsors). As introduced, this bill would both establish a uniform place-of-celebration rule and repeal Section 2 of DOMA, which provides that states need not recognize other states' same-sex marriages. See Id. If the bill passed with both provisions intact, and if states did in fact begin to recognize out-of-state marriages, my concerns below regarding divorce would be mitigated. But both of those "ifs" are far from certain, since many state constitutions preclude such recognition and any change to that policy would probably be far more controversial than adopting a place-of-celebration rule for federal purposes. Moreover, even if other states did recognize the marriages, the up-front burdens, in terms of travel costs and dignitary injury, would remain a problem with a place-of-celebration rule.
49. See, e.g., Editorial, Equal Marriages-and Now Equal Benefits, WASH. POST (July 21, 2013), http://articles.washingtonpost.com/2013-07-21/opinions/ 40713630-1-federal-benefits-federal-government-nationalized-gay-marriage
50. Editorial, How Obama Can Make Same-Sex Marriage Meaningful, BLOOMBERG (June 27, 2013, 6:00 PM), http://www.bloomberg.com/news/2013-06-27/how-obama- can-make-same-sex-marriage-meaningful.html (both endorsing a place-of-celebration rule).
51. See Colleen McCain Nelson, Obama Hails DOMA Ruling, Sees Work Ahead, WALL ST. J. WASH. WIRE (June 27, 2013, 8:33 AM), http://blogs.wsj.com/washwire/2013/ 06/27/obama-hails-doma-ruling-sees-work-ahead/ (quoting President Obama as stating his "personal belief⋯ that if you've been married in Massachusetts and you move somewhere else, you're still married and that, under federal law, you should be able to obtain benefits like any lawfully married couple").
52. See, e.g., PEW RESEARCH CTR., THE DECLINE OF MARRIAGE AND RISE OF NEW FAMILIES 22-23, 28-29 (2010), available at http://www.pewsocialtrends.org/files/ 2010/ll/pew-social-trends-2010-families.pdf
53. Andrew J. Cherlin, Demographic Trends in the United States: A Review of Research in the 2000s, 72 J. MARRIAGE & FAM. 403, 404-05 (2010).
54. Windsor V. Uniled Slates, 133 S. Ct. 2675, 2689 (2013).
55. This problem has been partially addressed for some couples: some states that permit same-sex marriage now permit same-sex couples who cannot divorce in their home state to seek a divorce in the state that married them. See NAT'L CTR. FOR LESBIAN RIGHTS, DIVORCE FOR SAME-SEX COUPLES WHO LIVE IN NON-RECOGNITION STATES: A GUIDE FOR ATTORNEYS(2013), available at http://www.nclrights.org/site/DocServer/Divorce-in-DOMA-States-Attomey-Guide. pdf.
56. Other couples, however, continue to be trapped. See, e.g., Mary Patricia Byrn & Morgan L. Holcomb, Wedlocked, 67 U. MIAMI L. REV. 1 (2012)
57. Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. REV. 1669 (2011)(both discussing these issues in detail).
58. For a discussion specifically of the federal tax consequences of the inability to divorce, see Anthony Infanti, Why Gay Couples Hate the IRS, BLOOMBERG (Aug. 9, 2013, 9:00 AM), http://www.bloomberg.com/news/2013-08-06/why- gay-couples-hate-the-irs-more-than-you-do.html. For a more general discussion of state and federal law consequences, see generally Byrn & Holcomb, supra note 58; Joslin, supra note 58.
59. See Karen Parrish, Same-Sex Couples Can Claim New Benefits by October, U.S. DEP'T OF DEF. (Feb. 11, 2013), http://www.defense.gov/News/NewsArticle. aspx?ID=119260.
60. See Memorandum from Chuck Hagel, Sec'y of Def, to Sec'ys of Military Dep'ts (Aug. 13, 2013) available at http://www.defense.gov/home/features/2013/ docs/Extending-Benefits-to-Same-Sex-Spouses-of-Military-Members.pdf (stating that "the extension of benefits to the same-sex domestic partners of military members is no longer necessary to remedy the inequity that was caused by section 3 of the Defense of Marriage Act"); U.S. Dep't of Def., supra note 47.
61. The OPM proposal included different-sex partners as well. See Eric Katz, OPM Proposes Extending Fed Health Benefits to Same Sex Partners, GOV'T EXECUTIVE (Apr. 11, 2013), http://www.govexec.com/pay-benefits/2013/04/opm-proposes- extending-federal-health-benefits-same-sex-partners/62439/. Bills have been introduced that would make the same policy change.
62. See Domestic Partnership Benefits and Obligations Act, H.R. 3485, 112th Cong. (2011)
63. S. 1910, 112th Cong. (2011)
64. H.R. 2517, 111th Cong. (2009)
65. S. 1102, 111th Cong. (2009) (would provide "marriage"-based employment benefits and obligations to federal employees in domestic partnerships)
66. see also Social Security Equality Act, H.R. 3050, 113th Cong. (2013) (would provide Social Security "spousal" benefits to same-sex couples in state-recognized legal statuses such as domestic partnerships or civil unions).
67. The Human Rights Campaign maintains a list with links to dozens of different domestic partner registries. City and County Domestic Partner Registries, HUM. RTS. CAMPAIGN, http://www.hrc.org/resources/entry/city-and- county-domestic-partner-registries.
68. For example, the Dayton, OH registry requires partners to affirm that they "share a common residence" and "have a committed relationship and share responsibility for each other's common welfare." Domestic Partner Registry, CITY OF DAYTON, http://www.daytonohio.gov/cco/Pages/ Registry.aspx.
69. See Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1772-73 (2005) (noting that marriage "in many respects licenses greater flexibility and less state intrusion into family life" than domestic partnership requirements and critiquing domestic partnerships on those grounds)
70. see also Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 CALIF. L. REV. (forthcoming 2014), draft available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=2286320 (showing how domestic partnerships were modeled on marriage, although ultimately they also helped redefine marriage).
71. These arguments were advanced most fully in an amicus brief submitted to the Court by several prominent federalism scholars. See Brief of Federalism Scholars as Amici Curiae in Support of Respondent Windsor, United States V. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 860459.
72. See, e.g., Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297 (1998).
73. See generally Courtney G. Joslin, Windsor, Federalism, and Family Equality, 113 COLUM. L. REV. SIDEBAR 156 (2013) (discussing and critiquing federalism arguments in Windsor).
74. See, e.g., NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE 146-207 (2008)
75. [hereinafter POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE] (arguing for reconsidering the use of marriage as a prerequisite for receipt of many government benefits, rights, and obligations)
76. Elizabeth M. Glazer, Civil Union Equality, 2012 CARDOZO L. REV. DE NOVO 125, 133-36, http://www.cardozolawreview.eom/Joomlal.5/content/denovo/Glazer. DOMA.2012.Final.PDF (discussing personal or religious reasons why different-sex couples stated they preferred to form a domestic partnership under Illinois law than to marry)
77. Nancy D. Polikoff, "Two Parts of the Landscape of Family in America": Maintaining Both Spousal and Domestic Partner Employee Benefits for Both Same-Sex and Different-Sex Couples, 81 FORDHAM L. REV. 735 (2012) (arguing that domestic partner benefits should be available for both different-sex and same-sex couples).
78. See William N. Eskridge Jr., Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules, 100 GEORGETOWN L.J. 1881, 1943-44 (2012) (cataloging available statuses by state)
79. Jessica R. Feinberg, Avoiding Marriage Tunnel Vision, 88 TULANE L. REV. (forthcoming 2014), draft available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=2247552, at 50 (discussing ease of ending a French civil union)
80. Scott Sayare & Maia de la Baume, Bliss for Many French Couples Is Now Less Marital Than Civil, N.Y. TIMES, Dec. 16, 2010, at A1 (reporting civil unions could soon outnumber marriages in France, and that they are also available in several other countries).
81. COLO. REV. STAT. ANN. § 15-22-101, et seq. (West 2011)
82. HAW. REV. STAT. § 572C-4 (2008)
83. VT. STAT. ANN. tit. 15, § 1301. For a detailed description of these state laws, and how they relate to legal statuses for same-sex and different-sex couples, see Feinberg, supra note 76, at 6-16.
84. See, e.g., Kerrigan V. Comm'r of Pub. Health, 957 A.2d 407, 480 (Conn. 2008)
85. Ops. of the Justices to the Senate, 802 N.E.2d 565, 571 (Mass. 2004) (both concluding separate status was impermissible).
86. But see, e.g., Lewis V. Harris, 908 A.2d 196, 221 (N.J. 2006) (concluding separate status was permissible). A more recent New Jersey case held that now that the different state terminology deprives couples of federal rights, the state was required to permit same-sex couples to marry.
87. *24 (N.J. Super. Ct. Law DiV. Sept. 27, 2013).
88. Existing proposals for federal registries, see supra text accompanying notes 62 & 64, suggest incorporating the couple's domicile's rules on such matters. However, sometimes it may be difficult to determine whether a couple has a single domicile and, if so, what it is. See Susan Freiich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. DAVIS L. REV. (forthcoming 2014).
89. My thanks to Courtney Joslin for flagging this issue for me. See also Courtney G. Joslin, Marriage, Biology, and Federal Benefits, 98 IOWA L. REV. 1467 (2013) (providing detailed discussion of Social Security and military benefits that flow to children through, in part, recognition of marital relationships).
90. But several states have simplified divorce procedures that are available to couples with limited assets and no children. See, e.g., CAL. FAM. CODE § 2400 (West 2004)
91. MINN. STAT. 518.195 (2012).
92. James Esseks, Expanding the Freedom to Marry: Here's What's Next, ACLU (July 9, 2013), http://www.aclu.org/blog/lgbt-rights/expanding-freedom-marry- heres-whats-next (announcing the ACLU's goal of increasing the number of states permitting same-sex marriage to twenty by the end of 2016).
93. Id. at 27. As Melissa Murray observes, there was a significant spike in domestic partner dissolutions immediately prior to the effective date of California's expansion of the status to full marriage rights, suggesting that some couples preferred the more limited option and did not want to commit to full marriage rights and obligations. Melissa Murray, Paradigms Lost: How Domestic Partnership Went from Innovation to Injury, 37 N.Y.U. REV. L. & Soc. CHANGE 291, 302-03 (2013).
94. See, e.g., CASEY E. COPEN, KIMBERLY DANIELS & WILLIAM D. MOSHER, U.S. DEP'T OF HEALTH & HUMAN SERVS., NATIONAL HEALTH STATISTICS REPORTS NO. 64, FIRST PREMARITAL COHABITATION IN THE UNITED STATES: 2006-2010 (2013) (finding nearly one-half of women cohabit prior to marriage)
95. PAULA Y. GOODWIN, WILLIAM D. MOSHER & ANJANI CHANDRA, U.S. DEP'T OF HEALTH & HUMAN SERVS., VITAL AND HEALTH STATISTICS SER. 23 No. 28, MARRIAGE AND COHABITATION IN THE UNITED STATES: A STATISTICAL PORTRAIT BASED ON CYCLE 6 (2002)
96. OF THE NATIONAL SURVEY OF FAMILY GROWTH 11 (2010) (collecting data showing various sequences of cohabitation and marriage).
97. JOYCE A. MARTIN, BRADY E. HAMILTON, STEPHANIE J. VENTURA, MICHELLE J.K. OSTERMAN, ELIZABETH C. WILSON & T.J. MATHEWS, U.S. DEP'T OF HEALTH & HUMAN SERVS., NATIONAL VITAL STATISTICS REPORT Vol. 61 No. 1, BIRTHS: FINAL DATA FOR 2010 (2012).
98. For proposals to retool at least aspects of federal marriage benefits to better match the variety of family forms and other close relationships, see generally, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 226-36 (1995)
99. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE, supra note 75, 123-214
100. Laura A. Rosenbury, Friends with Benefits, 106 MICH. L. REV. 189, 220-33 (2008)
101. Robin West, The Incoherence of Marital Benefits, 161 U. PA. L. REV. ONLINE 179 (2012), http://www.pennlawreview.com/online/161-U-Pa-L-Rev-Online- 179.pdf.
102. See supra text accompanying notes 76-78 (discussing jurisdictions that have adopted marriage alternatives). For similar arguments endorsing a "menu" of options for families, see, e.g., POUKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE, supra note 75, at 132-45
103. see also Goodwin Liu, Social Security and the Treatment of Marriage: Spousal Benefits, Earnings Sharing, and the Challenge of Reform, 1999 Wis. L. REV. 1 (discussing the history and rationales of spousal benefits and proposing reforms).
104. Brian Bond, New Rules Require Equal Visitation Rights for All Patients, WHITE HOUSE BLOG (NOV. 17, 2010), http://www.whitehouse.gov/blog/2010/ll/17/new- rules-require-equal-visitation-rights-all-patients.
105. There is a comparable policy specifically for the military. See Memorandum from Chuck Hagel, Sec'y of Def., to Sec'ys of the Military Dep'ts (Feb. 11, 2013), available at http://www.defense.gov/news/Same-SexBenefitsMemo. pdf.