Petrelis Files

1,138 Federal Provisions,
Not Benefits, Due to Marital Status

Over lunch at Cafe Flore the other day, a friend asked me what exactly were all of the 1,138 federal benefits given to straight married couples, that were denied to gays. His question got me curious, and I soon learned that there are _not_ 1,138 such benefits.

This is from the Gay Life section of About.com, and is a perfect example of misinterpretation of what is actually in federal statutes, emphasis mine:

[H]ere are a few of the 1,138 benefits the United States government provides to legally married couples [...]

According to a 1997 General Accounting Office report, initiated at the request of the late conservative, and no friend of gays, Rep. Henry Hyde, there were more than 1,000-plus instances when marital status was taken into consideration:

In connection with the enactment of the Defense of Marriage Act, you asked us, in your September 5, 1996, letter, to identify federal laws in which benefits, rights, and privileges are contingent on marital status. Your staff agreed that we should identify more generally all those laws in the United States Code in which marital status is a factor, even though some of these laws may not directly create benefits, rights, or privileges.

To find laws that meet these criteria, we conducted searches for various words or word stems ("marr," "spouse," "widow," etc.), chosen to elicit marital status, in several electronic databases that contain the text of federal laws. From the collection of laws in the United States Code that we found through those searches, we eliminated (1) laws that included one or more of our search terms but that were not relevant to your requests and (2) as agreed with your staff, any laws enacted after the Defense of Marriage Act. The result is a collection of 1049 federal laws classified to the United States Code in which marital status is a factor. [...]

I had always thought there were more than 1,000 actual and tangible benefits at the federal level for married persons. Now, I'm enlightened about the nuances behind the figure we gays bandy about as the number of federal benefits denied to gay married couples. I will no longer make the mistake of saying so many benefits exist based on marriage.

To make sure I was getting the clear picture, finally, on this matter, I asked Jenny Pizer, gay attorney at Lambda Legal, for her opinion:

I generally do think it's better to say 1,100+ places in federal law where one's marital status matters or "is a factor," and that's the way I usually phrase it. I think it's more accurate and if/when lists are made of the rights and obligations at stake, most people probably wouldn't think of all the numerous tax rules as different rights/obligations.

So my view about what's better is based on my judgment that it might not be helpful in the long if some people argue the 1,000+ number is inflated, thereby possibly undercutting the force of the solid arguments about how devastating and unjustifiable federal discrimination is in Social Security, immigration, certain federal taxes, etc etc. The cruelty of the discrimination isn't really a function of how many minute subsections there are in statutes (e.g., in the IRS code), but rather about when and how the different treatment affects people's lives.

That got me wondering if there had been an update from GAO since the Henry Hyde-initiated report was issued in 1997. In 2004, the GAO provided a revision on the figure, and this report came after conservative and anti-gay Sen. Bill Frist asked for an update, which said:

We have identified 120 statutory provisions involving marital status that were enacted between September 21, 1996, and December 31, 2003. During the same period, 31 statutory provisions involving marital status were repealed or amended in such a way as to eliminate marital status as a factor. Consequently, as of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.

Provisions do not equal benefits, and this is important to remember when we discuss gay marriage and federal benefits. I wrote to Jenny that it was strange to think our GOP adversaries, Hyde and Frist, in getting the GAO to carry out the reports, which help us. Jenny writes:

And it is interesting -- telling, really, about how recent it is that we have serious support for DOMA repeal in Congress -- that it was anti-gay leaders that requested these reports. Maybe the right word is ironic because neither requestor sought to provide a tool for gay rights advocacy, obviously, and it probably didn't occur to either of them that these reports would help us, just as the same probably didn't occur to those on our side working in Congress.

The funny thing is that, while the reports have been somewhat helpful as research references, we have known the issue areas (and statutory citations) that cause most harm for those who are, or have been, in same-sex relationships. The main new information those reports provided is the big number which, as you are pointing out, has rhetorical power but easily becomes somewhat misleading when used to emphasize the point in a broad-brush way.

There's an irony in that, too, given how pervasively, and destructively, some noisy anti-gay crusaders distort information -- well, actually, not distort. They lie outright and outrageously. And that practice often serves them badly, for example, in many of our cases, even though they still get away with it a lot in political campaigns and media.

Thanks, Jenny and Lambda Legal, for the fuller understanding about the statutes and benefits, and best ways to use the figures and reports.

Here's a radical notion. Let's get a Democratic member of Congress to ask for another update on the GAO's information. After all, it's been six years since the last revision happened, and we sure could use more current information. Would also be great if this time we had a Democrat take the initiative to use the GAO to our advantage.