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Retirement Planning > Saving for Retirement

What Fiduciary Advocates Can Learn From SCOTUS Ruling on Gay Marriage

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Last week’s Supreme Court ruling on same-sex marriage ends a long legal struggle. Same-sex marriage’s journey from minority status to the law of the land offers important lessons about gaining broad-based public support that fiduciary advocates can gain from.

The Court’s 5-4 ruling is highlighted by the Wall Street Journal’s (WSJ) Jess Bravin:

“The ruling in Obergefell v. Hodges, follows a rapid shift in legal and societal acceptance of same-sex marriage over the past decade and reflects more generally how gay rights in the course of a generation have moved to the front line from the fringes of a national debate over the meaning of equality.”

Much attention focused on how rapidly public opinion changed. A WSJ/NBC News poll reports 57% of the public support the Court’s decision; a 19% point increase since just 2009.

Justice Kennedy, who wrote the opinion for the Court, noted that in recent years, “Same –sex couples began to lead more open and public lives and to establish families” and that the issues reached the courts because of an “extensive discussion of the issue in both governmental and private sectors,” and a “shift in public attitudes toward greater tolerance.”  The WSJ / NBC poll seems to capture of the result of “more open and public” lives: reporting that today 77% of Americans know someone who is gay or lesbian. 

On National Public Radio in March 2013, Dawn Baunach, a sociologist at Georgia State University, noted how today gay marriage is no longer a theoretical concept. It’s personal for many Americans. Baunach says that now, “They can think about it on a more personal level… Jane is a great person. I like her, I’ve met her girlfriend and it seems personally reasonable that they should be able to get married.” 

In 2013 Ohio Republican Senator Rob Portman said he had reversed his view against gay marriage after learning his son Will is gay. Portman wrote in an op-ed in the Columbus Dispatch, about his wanting Will “to have the same opportunities to pursue happiness and fulfillment as his brother and sister.”  

The Court and (at least) some commenters agree on this point: the personalization and public discussion of the issue fueled the fast-paced evolution of marriage equality from minority status to law of the land. An abstract intellectual concept came to have immediate personal meaning. Public support grew. The Court acknowledged the importance of public opinion.   

Fiduciary duty personifies an abstract concept. A concept that appears, for investors (and some advisors too), to be vague and aspirational, yet implies a standard of high ethical conduct.

The Administration’s case for strengthening ERISA via the Department of Labor’s proposed conflict of interest rule is compelling. It quantifies the macro level harms in billions of dollars to millions of retirement account holders. Yet there is too little candid personal discussion from individual investors about their concerns. This silence is not because investors are unconcerned. Far from it.  

Two recent surveys suggest why. First, a December 2014 Wells Fargo/Harris Poll survey of middle class Americans reveals the median savings is just $20,000. The median savings for those in their 50s is $20,000 and for those 60–75 is $25,000.

Second, a Fidelity Investments survey of couples released June 24th revealed “disconnects on retirement expectations, Social Security – and even how much the other half makes.” The survey found that 43% of married people do not know their spouses income. 

Deeply held views discourage open and personal discussion about personal finance just as discussion of sexual orientation was once considered taboo. Yet new attitudes have started to undermine old taboos.

Some financial services firms’ advertising now addresses (though indirectly) retirement savings shortfalls. Further, the rise of digital investment “advice” shines additional light on how investment expenses matter. Most importantly, research reveals millennials are more skeptical and questioning when compared to their baby boomer parents. 

This generational clash is featured in a Charles Schwab ad. The ad shows a millennial daughter talking with her father (jogging together on a country road) about the brokerage firm he uses and the fees he pays. 

Daughter: “Do you and Mom still have money with that broker?” and “What do you guys pay in fees?”

Father replies that he doesn’t know what he pays.

Daughter: “If you are not happy do they have to pay you back?”

Father: “It doesn’t really work that way.” 

The Supreme Court essentially says that same-sex marriage is the law of the land because extensive discussion of a once taboo topic moved public opinion. A new investor-driven public discussion of retirement and personal finance can likewise move public opinion and make fiduciary advice as inevitable and accepted. 


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