Opinion : Will the Supreme Court Defend Health Care for Same-Sex Spouses? - by Jesse Milan Jr.

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June 7, 2013

Will the Supreme Court Defend Health Care for Same-Sex Spouses?

by Jesse Milan Jr.

An HIV-positive AIDS policy expert on the health benefits of marriage.

Jesse Milan Jr.
Jesse Milan Jr.

Within the next few weeks we will know the U.S. Supreme Court’s rulings on the federal Defense of Marriage Act (DOMA) and California’s Proposition 8. These laws prohibit recognition of same-sex marriage. The Court’s rulings on these will have an impact on the health care rights and medical benefits of same-sex couples. No one knows this better than me.

In 2008, the California Supreme Court overturned as unconstitutional that state’s existing ban on same-sex marriage. Upon hearing the news from the California, my partner turned to me and said, “I think we should go to California and get married on our anniversary!”  It was not quite the proposal most people dream of, but it was good enough for me, and we embarked on planning our wedding.

My partner Bill and I had been together 19 years and nine months when the California court announced its ruling, so we were looking forward to celebrating our 20th anniversary as a committed same-sex couple. Though Massachusetts had made same-sex marriage legal, it had a residency requirement that we did not meet; being loyal Americans, we didn’t want to go to Canada or to any of the other small number of countries that permitted same-sex marriage. A trip to California to get legally married seemed just the ticket.

Once settling on having a legal wedding, I decided that I did not want to have an inauspicious ceremony in front of a mere county clerk. I wanted my wedding to be performed by a high ranking government official. If I couldn’t reach Governor Schwarzenegger himself to do it, I thought I might try for a mayor.  As it happened, the Honorable Ronald Dellums, a former U.S. Congressman and then current mayor of Oakland had as his special assistant for HIV/AIDS policy a colleague of mine. I called her. “Do you think the mayor would marry us?”  Two weeks later, Mayor Dellums’ secretary called me and said the mayor would be honored to officiate at our wedding. Bill and I set a time for getting legally married by Mayor Dellums on the date of our 20th anniversary, September 10, 2008.

On September 10, we arrived at Oakland City Hall. The mayor’s office was aflutter with excitement as his staff had invited the press to publicize the event. Mayor Dellums appeared at the appointed hour looking Lincoln-esque standing over 6-feet tall as a real life high ranking public official.  He greeted us warmly and said, “There are many things I have to do as mayor; today I’m doing something I want to do as mayor!”  And he did. He married us. Standing before the fireplace in Mayor Dellums’ ceremonial office, Bill and I vowed to love and cherish each other in sickness and in health. We were legal for now, and for always. And we remain so.  Despite California voters overturning the state court’s decision by the passage of Proposition 8, the California Supreme Court ruled the following year that all 18,000 same-sex marriages which occurred during the five months in 2008 when same-sex marriage was legal in California will remain forever valid.

A few months after our wedding and on the same November day Proposition 8 was passed, President Barack Obama was elected.  Soon after his first inauguration, I found myself in contention for the position of director of the White House Office of National AIDS Policy. Marriage truly changes your perception of yourself, because every decision, personal or professional, is legally no longer about you alone. In my conversation with the White House staff, I said that I has very concerned about taking a position with a discriminatory employer that would not provide health care benefits for my same-sex spouse. There was stunned silence. My employer, Altarum Institute, provided those benefits for my spouse, and I said I was reluctant to give up that benefit to work for the federal government. The Defense of Marriage Act which prohibited my spouse from having health benefits through me as a federal employee was in my mind not defensible. How could our federal government care about the health of all federal employees’ families if it did not provide all their legal spouses with equal health benefits? 

President Obama recently joined those who believe the Defense of Marriage Act is unconstitutional and not defensible and directed his administration to seek to overturn it.

We who work in health care know how important a marital partner can be for the health of a spouse. The heartbreaking film “Amour,” winner of this year’s Academy Award for Best Foreign Picture, depicts an aging heterosexual couple where one spouse is dying from a stroke while the other provides endless loving care to her. I had already lived that very story myself with my late partner who died of AIDS in 1985. He received endless loving care from me. However, the patchwork of legal papers he and I had to sign that assured that I was legally responsible for his care were not nearly as valuable as the single piece of paper that my husband, Bill, and I now held that was issued to us by a jurisdiction in California. That license should assure where ever we live that we each have the legal authority to make health care decisions for the other should one of us be unable to make them for our self. Yet despite having made innumerable medical decisions for his care, on the day of my late partner’s death, the teaching hospital where he died informed me that the autopsy I had  authorized be performed on him to help medical research understand the awful new disease called AIDS would require a confirmation - from his father!  I was stunned. Not being his legal spouse I was not his next of kin for making that decision.  

Awaiting the U.S. Supreme Court’s ruling on DOMA, I find myself not thinking about the fabulous weddings that might take place to make more couples legal like my husband and me, who will soon celebrate our Silver Anniversary (or if you prefer, our Wood Anniversary, which is the traditional gift for five years of legal marriage). On the day the Court issues its ruling on DOMA and Proposition 8, I will be thinking about all the couples, heterosexual or gay, who look to their spouse for the love and protection that spouses throughout history  have vowed to provide each other  in sickness and in health until death they do part. All we countless couples across the centuries know that the person we choose to have and to hold as our spouse is our first line of defense in protecting our health and well-being; and we vow to provide the same for him or for her.   

High ranking government officials like President Obama and Mayor Dellums know how important marriage is for supporting the health of all spouses. I hope America’s highest court defends the right of all to marry, and by doing so, assures the right to health care benefits for every couple as well. We will know the Court’s ruling very soon.


Jesse Milan Jr., JD, is vice president of the Altarum Institute and director of its Community Health Systems Group. He has held numerous roles in AIDS policy over the years, such as cochair of the CDC/HRSA Advisory Committee on HIV and STD Prevention and Treatment, director of the AIDS Office for the City of Philadelphia Department of Public Health and board chair of the Black AIDS Institute. This article was originally published at the Altarum Health Policy Forum.

Search: Jesse Milan, Defense of Marriage Act, DOMA, marriage


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