Marriage Equality is a Myth

Transcript Transcribed by Hannah E.

Courtney: Hello, everyone, and welcome back. My name is Courtney. I’m here with my spouse, Royce. And together, we are the Ace Couple. And if you are listening to us on the very week this comes out, I would like to wish you all a very happy Ace Week. Just a reminder to those unaware, Ace Week is the longest-running Asexual pride event. It has been internationally recognized for 14 years now. And, if you’re listening to us on the very day this releases, I would like to wish you a happy Disabled Ace Day. Disabled Ace Day falls on the Wednesdays of Ace Week, which always takes place on the last full Sunday-through-Saturday week in October.

Courtney: So because it is Disabled Ace Day, I would like to talk about one of our favorite topics here on the podcast with a lightly different focus, and that is marriage inequality. There are, unfortunately, all too many people out there who believe that after Obergefell v. Hodges passed the Supreme Court, that now there is just fundamental marriage equality. Marriage equality is the law of the land. That’s a thing I used to hear people say a lot. Like, I think in the couple of years following that Obergefell ruling, I’d hear people say, like, “Marriage equality is the law of the land.” I think I’ve probably even said it, although when I say it, I tend to mean it facetiously — but I don’t know if that always lands that way, depending on who I’m speaking to. Because, of course, legalizing same-sex marriage across the entire country was a landmark decision for same-sex queer rights. It unfortunately does not address so many other aspects of marriage inequality that is just absolutely entrenched in our legal system.

Courtney: So, of course, today I’m going to be speaking about the United States. That is where I live; those are the laws I am most familiar with. But, hopefully, we can shed a little light on marriage inequality amongst people with disabilities, Asexual people, Aromantic people, and even some fascinating research that suggests there is actually racism entrenched in marriage laws as well, as it pertains to our tax code — which, everyone loves our tax code, don’t they? It’s so easy and nice and equal, everything about it.

Courtney: But let’s start with marriage equality for the disability community. This issue is not a new one. We have, of course, spoken previously before about how eugenics has deeply impacted the disability community throughout history, including most egregious examples of disabled people being sterilized against their will, being unable to marry, being unable to make their own choices. And unfortunately, that means that there are still laws on the books in several states in our country that can put roadblocks in the way of any disabled person who wishes to marry.

Courtney: Some of you may recall the episode we did where we broke down some of the marriage consummation laws in this country, where I went through, like, every single state to see which ones still had marriage consummation laws on the book — which is at least 31 of them. That’s over half. And even amongst those who don’t explicitly have marriage consummation laws, there are only eight states that do not include “lack of sex” as a legitimate reason for an annulment. So we’ve kind of got levels. We’ve got the states that say, “You need to have sex for this marriage to be legal,” and then we’ve got the states who don’t explicitly say that, but they’re like, “Yeah, but if you’re not having sex, your partner can file for annulment.” So there’s levels here in the language and in the legislation.

Courtney: And I think I probably called out in that episode that just the language around so many of these marriage laws revolve around procreative sex. And some of that language, in many of these states, also gets incredibly ableist. Because what we do have to remember is that some of the people who wrote these laws, at the time they were put on the books, did think — and unfortunately, as we’ve covered, many of the Christian nationalists in our country still believe this — that marriage should be heavily intertwined with procreative sex, and they do not think that marriage and procreative sex are two independent things, nor do they think it should be. So, of course, there are also some folks with disabilities who are unable to traditionally consummate the marriage or, if they can, there are so many laws, annulment-wise, about infertility. There’s just a number of ways that marriage laws can be phrased that could explicitly prohibit certain people with disabilities from marrying.

Courtney: And you might think that these are all only going to be a problem in the worst possible reading of the law. But some of them can even go so far as to prevent people with epilepsy from marrying. And I don’t know of any cases where that’s actually been enforced in recent years. But just think about that: having on the books — if you have epilepsy, you can’t marry in certain states? That’s absolutely absurd. Some are more of an umbrella, like “intellectual disabilities” or “mental disabilities.” Now, I do actually think, in the case of epilepsy, those epileptic-specific laws have been repealed at the state level. But there are a lot more vague sort of umbrella terms that are still on the books today for sure, like “intellectual disabilities,” “mental disabilities,” and some that even say “genetic defects,” which, there are so many genetic defects out there. I have a genetic defect!

Courtney: So I have to assume that, for the most part, when these laws were probably written, they were probably explicitly targeting people whose, quote, “genetic defects” led to some sort of visible feature, some sort of facial difference, because otherwise, like… Well, I’m sure when these laws were written, they didn’t even know what my genetic defect was. [laughs]

Courtney: Now, the common kind of pushback that people will say: like, “Oh, that’s not a thing anymore. Disabled people can get married now.” The fact of the matter is, while it is true that more disabled people gained the ability to get married after the Americans with Disability Act came out, after federal regulations explicitly prohibited discriminations on the basis of being disabled, that doesn’t mean that a lot of those underlying laws at state level aren’t still in place. And there really, truly needs to be a better, faster, easier way of fully waiving antiquated state laws like this. Because… well, look at what we just saw after Roe v. Wade got overturned. There were so many states that had trigger laws that were explicitly banning abortion. So as soon as that federal protection was taken away, then all of a sudden, immediately, abortion is illegal in those states. They did not have to re-pass a law. They did not have to do anything else. Those laws were just sitting there, waiting for federal protections to be removed.

Courtney: And then, of course, anytime cognitive abilities come into question, there’s always the very ableist argument that says, “Well, they’re unable to make their own decisions,” which we know from history has been imposed on so many people with physical disabilities, intellectual disabilities, folks who perhaps are just nonverbal and don’t communicate in the way that lawmakers would prefer. That does not mean they do not have the will or desire or capacity to marry, in a lot of those cases.

Courtney: But even if we say, for the sake of argument, federal protections are working as they ought to; even if you’re living in a state that don’t have some of these underlying laws on the books, so it’s not even a question of “Will this law be enforced,” it’s just not there; that still doesn’t mean that every disabled person who chooses to marry is going to be treated the same way under the law. And one of the most explicit examples of this is with SSI, or Supplemental Security Income for folks with disability.

Courtney: And there are just so many issues with SSI. First of all, a lot of people with disabilities just do actually need it as a form of income. If you are a disabled person who is physically unable to work, you still need and have the right to a livable income. “Livable” is debatable, because those paychecks are very, very small, so nobody is ever getting rich off of them. But in many cases, more important than the paycheck itself is the healthcare that comes with it, because oftentimes, Medicaid is explicitly tied to your SSI.

Courtney: And so many of the things we’re talking about today, it’s like… the entire system is wrong. Our entire marriage system is wrong, and I’m well aware of that. But our entire insurance system in this country is wrong. Because even for nondisabled folks who have, you know, your typical 9-to-5 jobs, so many people have their insurance explicitly tied to their employment, and we so often get our insurance through our employers. So if you lose your job, not only have you lost your income, but you also lose your insurance. So this is kind of the same problem.

Courtney: And it’s a system that not only forces you into poverty, but it often heavily penalizes you if you were to get married, and when these penalties can be a matter of life or death, that’s not even a choice. That is not “You have freedom to get married.” Let me give you one example here that I’ve read about recently. There is a disabled woman named Tabi Haly who has spinal muscular atrophy. She is not only a wheelchair user, but she actually needs assistance from a personal care aide 24 hours a day. Someone with her disability does actually qualify to have Medicaid pay for that assistance, as well as that wheelchair, as well as the doctor’s appointments — all of these different things. But she actually is not even unemployed. She is a very successful software engineer. And software engineers tend to make good money, and in order to qualify for SSI, you can’t have money. [laughs] It’s $2,000 in savings. You cannot have more than $2,000. If you have more than $2,000, they say, “Well, you don’t need our help. Clearly, you’re fine on your own.” They will just cut off all of your government assistance if they find that you have too much money. And that can include assets as well, so you can’t own a home —

Royce: Which, that is going to be well under the recommended six months’ rent or so in savings that you’re supposed to have in case of an emergency, even for the cheapest areas of the country.

Courtney: Oh, absolutely. There is no emergency that you can plan well for with a cap of $2,000 to your name. I mean, just think of — if you’re someone who drives, what if your car breaks down? You need new tires. And so that is exactly what I mean when they say they enforce poverty. To be a disabled person in this country, receiving life-saving benefits is to inherently be locked out of the, quote, “American dream.” And because our healthcare system is so fucked up, this is still absolutely unacceptable, even for a disabled woman like this who does work and does make income enough to support her basic needs, if not a little extra. Because even with a good software engineer’s salary, that is not enough to pay for 24-hour at-home medical assistance. The cost of being disabled in this country is so astronomical that many people still need Medicaid. If they do not have their Medicaid, they cannot afford what they need to live. They cannot afford their medical bills. So in a case like this, this would put someone in the horrible decision where one might need to quit their job, quit their livelihood, because even a well-paying job isn’t enough to keep you alive.

Courtney: And we see much the same thing happening, not only in questions of whether or not to work, whether or not you can work — the same question presents itself with marriage. Because, like I said, you, as a single person, can only have $2,000 to your name. But if you get married, then between the two of you, between you and your spouse — aren’t they generous? — you can have $3,000. What really gets me is they don’t even double it. They don’t even double it!

Courtney: And so this is such a horrible position that so many disabled people in this country get put in. Because, with some disabilities, depending on what your specific medical bills are, depending on what your specific treatments look like, if you marry a spouse who is employed, with savings, and is a little more financially stable than this system allows you to be, that might be okay if you lose your Medicaid, as long as your spouse’s insurance covers what your individual needs are. But that is going to be on such a case-to-case basis, because every insurance plan at every employer is completely different, and a lot of those employer plans are not going to cover anything near this. There are some insurance plans that won’t even cover a wheelchair for wheelchair users, let alone home aides or any number of specialists you might need to see, procedures you might need to undergo.

Courtney: And in my case, in our case — because I’m not going to sit here and pretend like Medicaid covers absolutely everything, because it doesn’t. Because, in our case, as a self-employed individual, I am on Royce’s insurance plan, and we still need to pay a lot for my medical care. My medical care is very, very expensive. But I also know that certain treatments that I need are also just not covered by Medicaid, so that would have never been an option for me. Maybe in the future, Medicaid will expand the things that it does cover.

Courtney: So, at least in situations where you do have Medicaid paying for some of these extraordinarily expensive medical costs, you need to either independently be extraordinarily wealthy or, if you’re hoping to marry, you need to marry someone who is extraordinarily wealthy. And we aren’t just talking you make six figures. We’re talking, depending on where you live in the country, you’re going to need half a million dollars or more coming in, in order to cover all of your own medical expenses independently — even with private insurance, in many cases, on top of your other basic needs, like food and housing.

Courtney: But do you want to know something really ironic about marriage equality and the same-sex marriage ruling as it pertains to people with disabilities? In 2015, after same-sex marriage became federal law, Social Security’s wording for all of these policies was so heavily gendered with words like “husband” and “wife,” “man” and “woman,” that there was a brief window of time where same-sex disabled people jumped on getting married because that actually kind of became a workaround to losing your benefits.

Royce: So the laws were written so explicitly that they couldn’t handle a minor change like that.

Courtney: Yes. They eventually did change it, so you can’t get away with that now, unfortunately. But yeah, they eventually had to change the wording to, like, “spouse.” But right after Obergefell v. Hodges passed, it’s like, “Alright, we have to allow same-sex marriage.” So same-sex disabled couples were like, “Well, alright! That language has not been updated in Social Security yet.”

Royce: “Loophole!”

Courtney: “Loophole!”

Royce: Add that to the things that irritate me about government. Not just that legalese is dumb and unnecessary, more complicated than it has any reason to be. Didn’t you watch or read something recently that was saying, like, legalese is complicated because it doesn’t match the standards of any written or spoken language?

Courtney: Exactly, yes. I was reading about this. It is essentially not only its own language, but it’s its own language that does not… It’s not intuitive. It does not make sense. It doesn’t follow the conventions of any other known human language in the world.

Royce: But just the two or three thousand dollars. Now, the caps for that are done intentionally, I assume, by legislatures who would really like to outlaw it entirely, to not provide benefits to people entirely, so they managed to sneak something that basically undercuts the whole system in there. But things like minimum wage: monetary details in law should not be fixed dollar amounts. They should be some sort of formula that automatically updates at the, like, beginning of the year.

Courtney: Yeah! Because they’re never going to be updated fast enough.

Royce: Because inflation happens constantly.

Courtney: Yeah! That’s why people are still pushing for a $15 minimum wage, even though that would have been acceptable years ago! [laughs] Is the federal minimum still $7.25?

Royce: I have no idea. Probably. It was a little under $6, I think, when I got my first job.

Courtney: Yeah, it is still $7.25 per hour, is the federal minimum wage, unless you’re a service worker.

Royce: And in that case, it’s like $2-something, right?

Courtney: $2.13. Okay, I found this study. Edward Gibson, an MIT professor of brain and cognitive sciences: “Legalese somehow has developed this tendency to put structures inside other structures, in a way which is not typical of human languages. Lawyers also find legalese to be unwieldy and complicated. Lawyers don’t like it, laypeople don’t like it, so the point of this current paper was to try and figure out why they write documents this way.” And so they’ve called this hypothesis the “magic spell hypothesis,” because they say it’s like casting a legal spell, saying that, culturally speaking, “If you want to write something that’s a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there. We think maybe center-embedding is signaling legalese in the same way.” And it does go on to talk about how, like, so many lawmakers, people who write these laws, are not themselves lawyers. A lot of them have never had any legal training, and yet, even those people write in legalese, having never been taught it. So it’s just sort of a cultural vibe of, “This is how laws sound. If we want to write a law, it must sound this way,” and there’s no reason for it!

Courtney: And, you know, before we get into all of the benefits and rights you acquire upon getting married, I do want to take just a second to point out just how startling it is when you understand this through the lens of disability benefits forcing you into poverty. Because how many times have we looked into conservative organizations and what their ideologies are and what they want to do in legislation? Most recently, that’s been reviewing Project 2025. But this started years ago, back in 2022, when the Respect for Marriage Act was on the table. Not only were there organizations explicitly saying, “We can’t let this pass because it will allow for platonic marriage, could you imagine?” but when you dig into those organizations saying that, time and time again, they were saying that marriage is the foundation of a healthy society.

Courtney: And marriage was their answer for so many of society’s ills. It was their answer for poverty. It was their answer for food insecurity. Because, in their mind, even — healthcare concerns? Well, get married. Because, in their mind, once you get married and form your own little family unit, they want that to function as, like, a welfare microcosm. They don’t want a welfare state in the sense of “The government is providing benefits to ensure that everybody can have basic dignity in their life.” They want individual family units — in their eyes, straight, cis, hetero, allo nuclear family units — to be the answer. Husband and wife get married; they take care of each other. They have kids; they take care of their kids. They get old; their kids take care of them. Rinse and repeat. That was, over and over again, their answer for everything. So if, in their eyes and in their ideology and in the very tax code of our country, we say, “The way to financial security is to get married,” then think about what that actually says when we’re taking an entire demographic of people and saying, “No, you can’t have this.”

Courtney: And it’s really hard to not think back to history that was not that long ago, saying, “Disabled people can’t get married. You can’t get married if you have these conditions.” I mean, forced sterilization was happening in this country within my parents’ lifetime, [laughs] if not my own. I haven’t looked into the exact dates, like, the last documented one has transpired, but this was not that long ago history. And so it’s really important to remember that history — understand what’s currently at stake and the flaws in the system — now, as we go into November 5th, Election Day, right around the corner. We have been over Project 2025 time and time again. So we have seen how, right on the first page of 2025, marriage is one of their top priorities, and how marriage is the answer to so many of their concerns, and how they want to roll back any legislation that doesn’t incentivize marriage. But marriage for whom?

Courtney: And so, what are the actual marriage benefits in this country? What are the things that people who do not get married do not have access to? Well, for one, in the case of disability, a major one is hospital visitation rights. Disabled people are more likely to be hospitalized more often than able-bodied people, for hopefully obvious reasons. There are hospitals that will deny visitation rights if you are not legally married, even if you are living together, even if you are otherwise partnered, even if you have paperwork for power of attorney, advanced directives, things of that nature. So it’s not all just tax benefits, it’s not just all in the tax code — although that’s a part of it.

Courtney: And when I say “tax code,” it’s also a little more expansive than just “What do you owe in taxes every single year when you file?” because you may or may not get a break on it, depending on what your individual marital situation is and what your tax bracket is. But the ability to open a spousal IRA, for example — a retirement account that is just completely not even available to you if you are not married. There are other tax-deferred things like that: tax accounts, other means of investing and building wealth that are only accessible through marriage. Access to a partner’s social security benefits, as another example.

Courtney: And I don’t happen to have an up to date number on this. But since we’ve recently covered the Respect for Marriage Act extensively, let’s go a little back in history to the Defense of Marriage Act, which essentially provided the definition of a marriage, the definition of a spouse — which, back in the ’90s, did not include same-sex couples. But as a result of that original Defense of Marriage Act, it sort of solidified definitions that have a very specific meaning, which means, no matter where you look in federal law, in regulation, if a word “marriage,” if a word “spouse,” comes up, that has tighter implications. And when researchers looked into what this actually meant for American citizens, as of December 2003, they identified 1,138 federal statutory provisions in which marital status is a factor in determining or receiving benefits, rights and privileges. So that’s not even how many times is it cited in federal provisions. That is over a thousand rights, privileges and benefits granted to someone just because of their marital status.

Courtney: So, aside from the emotional component that often does come along with modern marriages, there are real, tangible legal reasons why a couple might want to marry. But I also say “a couple.” We know that these rights, under the current system, are never going to be extended to Asexual and/or Aromantic people who do not want to be partnered, do not want to be married. It is not going to extend to polyamorous people who wish to be married to more than one person. We know that this is out of reach for so many disabled people. And in many cases, there are conservatives who are trying to make the point — and there are judges out there, there are legal scholars out there, who do not believe that an Asexual or a platonic marriage is a legally binding one. So even the case of an Asexual person who does want to get married and consummation is [laughing] not on their to-do list, these rights can also be out of reach.

Courtney: And aside from the basic wealth-building benefits — I think is what we’ll call the not only tax breaks but accounts and inheritance and whatnot — there are immigration rights to consider. Also, in our marriage consummation episode, we talked about how invasive questions about one’s sex life are asked when applying for a green card or seeking asylum in a country. But also parental rights, adoption rights, custody, and even housing. There are instances of either just single, non-cohabitating people being refused housing from private landlords. But couples who just aren’t married, or even platonic but opposite-sex roommates who want to rent a place together: landlords in many states just have the ability to refuse any of these folks because the only federal protection for familial rights applies to kids under 18. So, a landlord can’t discriminate against you because you have a kid. That is about it. There are no federal protections for people who are unmarried, for people who do not have families or are not trying to start a family. I have heard, time and time again, that there are landlords out there who would prefer to rent to a nice family, and for some reason, that is just legal to do.

Courtney: And when it comes to housing, I hope I don’t have to point out all the additional issues that can come from individual experience. A disabled person on SSI requiring Medicaid for life-saving healthcare isn’t making a lot of money, doesn’t have a lot of wealth, definitely is already incredibly limited as to what their housing options are. We’re talking about, more often than not, low-income housing, which is already not prevalent enough. So if we’re already narrowed down to such a limited number of places you can live, if you then start running into landlords who don’t want to rent to you, don’t want a single person, or maybe you want to live with your partner, but “Oh, well, you’re not married, and I don’t want unmarried people living in sin under my roof,” legislation like this puts people in such an impossible place. And, yes, of course, some of those people are not going to desire marriage. Some of those people will be completely happy being alone and independent, despite the system working against them there. But it’s also just as tragic for people who do want to get married but just literally can’t.

Courtney: And perhaps in the future we’ll do a more in-depth deep dive into tax benefits versus tax penalties as it pertains to marriage. But, like I’ve alluded to, not everybody does get tax benefits upon getting married. And it’s very, very interesting when you start looking into the research, because Black married couples face heavier tax penalties than white couples. There is a study on this by the Urban Brookings Tax Policy Center called “Racial Disparities in the Income Tax Treatment of Marriage,” and it kind of shows that the demographic who is most likely to get the most tax benefits is one high-earning spouse and another stay-at-home spouse — which, demographically speaking, is usually a white man being the earner of the household and a wife who is staying home, presumably with the children. That is the couple that is most likely to get the lion’s share of tax benefits. The sort of demographic of married couple that’s most likely to get a penalty for getting married and filing jointly are two spouses, both working full-time, who both earn about the same amount. They’re actually going to end up paying more in taxes than if only one of them was earning. And, as studies like this show, that is more common in Black marriages than white ones.

Courtney: And the research did also find that even when Black couples do end up with marriage bonuses, it is, on average, smaller than white couples who receive marriage bonuses/benefits. And the really interesting thing with that is that the IRS doesn’t publish racial demographic information. So, these are relatively new studies, this is a rising conversation being had, but researchers studying this don’t have easy access to this information. And even though we have — under the Biden administration, there are executive orders that are very pro-Diversity, Equity and Inclusion that does sort of order all of the individual agencies to make sure that what they’re doing is promoting racial equality, there are certain blind spots. There are agencies, like the IRS, who never even consider what all of the individual laws and individual codes have amounted to, because they think, “Oh, well, this, this is colorblind. This has nothing to do with race. This is just pure money, dollars and figures, just numbers, doesn’t have anything to do…” And that’s just not always the case. And if we don’t have the actual statistics readily available, it can take a long time to learn about these underlying inequalities.

Courtney: So, I suppose, where do we go from here? At the risk of going too far down any of these directions — because I feel like there’s so much more that could be said about the disability marriage inequality, the Black marriage inequality, the Asexual marriage inequality, some of which we’ve previously covered — I guess I just want everybody to keep in mind that marriage equality in this country is a myth. And even if it became fully realized, where every marriage was equal under the law and only provided marriage benefits as opposed to marriage penalties, that is still not true equality for all people. Just as we should have the right to marry whomever it is we desire, we should have an equal right to refuse marriage and stay a single person for life without then being penalized for that decision. So, really, everything just needs to get overhauled. Our tax system needs to be overhauled. Our marriage system needs to be overhauled. Our Social Security system, disability, needs to be overhauled. Our insurance system. It’s all bad. Just redo all of it. [laughs]

Courtney: But I will leave you with some more reading, some more listening. In the show notes, I’ll put a bunch of articles to a lot of the things we’ve talked about so you can read, yourself, further. If you are looking to listen to more episodes discussing some of these same themes, I can recommend going all the way back to Episode 5, our first ever Disabled Ace Day podcast, called “The Complicated Intersections of Disability and Asexuality.” Last year, we also had a Disabled BIPOC Aces panel with several guests, and we had a wonderful conversation. For the more politically-minded listening playlist: Episode 33, “Umm...Did Shawnee, Kansas Ban Roommates!?” Episodes 45 through 48: That was our four-part series on the religious political attacks against Asexual marriage. We go very deep into a lot of the organizations who are coming for platonic marriage in the aforementioned Respect for Marriage Act fight. Episode 94, “Marriage Consummation Laws: ‘Sham’ Marriages, Immigration, and Asexual Inequality.” Episode 106, “Housing Discrimination: An Unfortunate Update on the Shawnee Co-Living Ban.” And, of course, for the political latest, our series on Project 2025. A one-off episode from April: “Project 2025 paints a bleak picture of our future if Trump wins.” And then, of course, our latest series, Episodes 155 through 158, where I suffered through all of the Project 2025 training videos for you — which inadvertently kind of became the sequel series to the Respect for Marriage Act debacle, because I feel like, a couple years removed, that ended up being the realization of all those previous concerns that we’ve just been begging people to pay more attention to, but unfortunately it rarely gets out of our little Aspec bubble. Since we can’t very quickly or easily overhaul all of the systems, hopefully, that will give you a little listening playlist in the meantime, until such a day.

Courtney: But for now, being as though it is Disabled Ace Day, I felt it only appropriate that today’s featured MarketplACE vendor be one of the Disabled Ace creators that we love. And today, that is Art of Nicky Rodriguez. Nicky is a Puerto Rican member of our community. And all the links to find the shop will be in the show notes, but there are some fabulous zines here that talk about not only Ace experience, but disability experiences. There’s one that I bought years ago called “I’m too Ace for this.” Very relatable, of course. And you can also find some zines about various medical conditions, such as migraines and occipital neuralgia. And for our Spanish speakers out there, there are even some zines in Spanish here. Lots to choose from. And there’s a Ko-fi, so you can head on over there and give Nicky a tip and say, “Happy Disabled Ace Day” or “Happy Ace Week.”

Courtney: And I wish you listeners all a happy rest of your Ace Week, and we will talk to you all next time. Goodbye!