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New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law

June 25th, 2011

i-heart-ny-marriage-equality-webGreat news for equality.

From the New York Times

June 24, 2011
New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law
ALBANY - Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed and giving the national gay-rights movement new momentum from the state where it was born.

The marriage bill, whose fate was uncertain until moments before the vote, was approved 33 to 29 in a packed but hushed Senate chamber. Four members of the Republican majority joined all but one Democrat in the Senate in supporting the measure after an intense and emotional campaign aimed at the handful of lawmakers wrestling with a decision that divided their friends, their constituents and sometimes their own homes.

With his position still undeclared, Senator Mark J. Grisanti, a Republican from Buffalo who had sought office promising to oppose same-sex marriage, told his colleagues he had agonized for months before concluding he had been wrong.

“I apologize for those who feel offended,” Mr. Grisanti said, adding, “I cannot deny a person, a human being, a taxpayer, a worker, the people of my district and across this state, the State of New York, and those people who make this the great state that it is the same rights that I have with my wife.”

Senate approval was the final hurdle for the same-sex marriage legislation, which was approved last week by the Assembly. Gov. Andrew M. Cuomo signed the measure at 11:55 p.m., and the law will go into effect in 30 days, meaning that same-sex couples could begin marrying in New York by late July.

Passage of same-sex marriage here followed a daunting run of defeats in other states where voters barred same-sex marriage by legislative action, constitutional amendment or referendum. Just five states currently permit same-sex marriage: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, as well as the District of Columbia.

At around 10:30 p.m., moments after the vote was announced, Mr. Cuomo strode onto the Senate floor to wave at cheering supporters who had crowded into the galleries to watch. Trailed by two of his daughters, the governor greeted lawmakers, and paused to single out those Republicans who had defied the majority of their party to support the marriage bill.

“How do you feel?” he asked Senator James S. Alesi, a suburban Rochester Republican who voted against the measure in 2009 and was the first to break party ranks this year. “Feels good, doesn’t it?”

The approval of same-sex marriage represented a reversal of fortune for gay-rights advocates, who just two years ago suffered a humiliating defeat when a same-sex marriage bill was easily rejected by the Senate, which was then controlled by Democrats. This year, with the Senate controlled by Republicans, the odds against passage of same-sex marriage appeared long.

But the unexpected victory had a clear champion: Mr. Cuomo, a Democrat who pledged last year to support same-sex marriage but whose early months in office were dominated by intense battles with lawmakers and some labor unions over spending cuts.

Mr. Cuomo made same-sex marriage one of his top priorities for the year and deployed his top aide to coordinate the efforts of a half-dozen local gay-rights organizations whose feuding and disorganization had in part been blamed for the defeat two years ago.

The new coalition of same-sex marriage supporters brought in one of Mr. Cuomo’s trusted campaign operatives to supervise a $3 million television and radio campaign aimed at persuading several Republican and Democratic senators to drop their opposition.

For Senate Republicans, even bringing the measure to the floor was a freighted decision. Most of the Republicans firmly oppose same-sex marriage on moral grounds, and many of them also had political concerns, fearing that allowing same-sex marriage to pass on their watch would embitter conservative voters and cost the Republicans their one-seat majority in the Senate.

Leaders of the state’s Conservative Party, whose support many Republican lawmakers depend on to win election, warned that they would oppose in legislative elections next year any Republican senator who voted for same-sex marriage.

But after days of contentious discussion capped by a marathon nine-hour closed-door debate on Friday, Republicans came to a fateful decision: The full Senate would be allowed to vote on the bill, the majority leader, Dean G. Skelos, said Friday afternoon, and each member would be left to vote according to his or her conscience.

“The days of just bottling up things, and using these as excuses not to have votes - as far as I’m concerned as leader, it’s over with,” said Mr. Skelos, a Long Island Republican who voted against the bill.

Just before the marriage vote, lawmakers in the Senate and Assembly approved a broad package of major legislation that constituted the remainder of their agenda for the year. The bills included a cap on local property tax increases and a strengthening of New York’s rent regulation laws, as well as a five-year tuition increase at the State University of New York and the City University of New York.

But Republican lawmakers spent much of the week negotiating changes to the marriage bill to protect religious institutions, especially those that oppose same-sex weddings. On Friday, the Assembly and the Senate approved those changes. But they were not enough to satisfy the measure’s staunchest opponents. In a joint statement, New York’s Catholic bishops assailed the vote.

“The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled,” the bishops said.

Besides Mr. Alesi and Mr. Grisanti, the four Republicans who voted for the measure included Senators Stephen M. Saland from the Hudson Valley area and Roy J. McDonald of the capital region.

Just one lawmaker rose to speak against the bill: Rubén Díaz Sr. of the Bronx, the only Democratic senator to cast a no vote. Mr. Díaz, saying he was offended by the two-minute restrictions set on speeches, repeatedly interrupted the presiding officer who tried to limit the senator’s remarks, shouting, “You don’t want to hear me.”

“God, not Albany, has settled the definition of marriage, a long time ago,” Mr. Díaz said.

The legalization of same-sex marriage in the United States is a relatively recent goal of the gay-rights movement, but over the last few years, gay-rights organizers have placed it at the center of their agenda, steering money and muscle into dozens of state capitals in an often uphill effort to persuade lawmakers.

In New York, passage of the bill reflects rapidly evolving sentiment about same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the state’s residents supported allowing same-sex couples to wed. This year, 58 percent of them did. Advocates moved aggressively this year to capitalize on that shift, flooding the district offices of wavering lawmakers with phone calls, e-mails and signed postcards from constituents who favored same-sex marriage, sometimes in bundles that numbered in the thousands.

Dozens more states have laws or constitutional amendments banning same-sex marriage. Many of them were approved in the past few years, as same-sex marriage moved to the front line of the culture war and politicians deployed the issue as a tool for energizing their base.

But New York could be a shift: It is now by far the largest state to grant legal recognition to same-sex weddings, and one that is home to a large, visible and politically influential gay community. Supporters of the measure described the victory in New York as especially symbolic - and poignant - because of its rich place in the history of gay rights: the movement’s foundational moment, in June 1969, was a riot against police inside the Stonewall Inn, a bar in the West Village.

In Albany, there was elation after the vote. But leading up to it, there were moments of tension and frustration. At one point, Senator Kevin S. Parker, a Brooklyn Democrat, erupted when he and other supporters learned they would not be allowed to make a floor speech.

“This is not right,” he yelled, before storming from the chamber.

During a brief recess during the voting, Senator Shirley L. Huntley, a Queens Democrat who had only recently come out in support of same sex marriage, strode from her seat to the back of the Senate chamber to congratulate Daniel J. O’Donnell, an openly gay Manhattan lawmaker who sponsored the legislation in the Assembly.

They hugged, and Assemblyman O’Donnell, standing with his longtime partner, began to tear up.

“We’re going to invite you to our wedding,” Mr. O’Donnell said. “Now we have to figure out how to pay for one.”

Danny Hakim and Thomas Kaplan contributed reporting from Albany, and Adriane Quinlan from New York.

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Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act

February 24th, 2011

The Obama Administration announced that it will not defend the discriminatory federal “Defense of Marriage Act” (DOMA) in court.

Department of Justice

Office of Public Affairs

WASHINGTON - The Attorney General sent the following letter today to Congressional leadership to inform them of the Department’s course of action in two lawsuits, Pedersen v. OPMand Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.

The Honorable John A. Boehner
U.S. House of Representatives
Washington, DC 20515

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (”DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases. ii

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). iii

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, seeRichard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, seeDon’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans,517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirelyto gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrenceand Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g.,Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (”It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does not survive the overruling of Bowersin Lawrence v. Texas, 538 U.S. 558 (2003). iv Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. v And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrenceand Romer. vi But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. vii See Cleburne, 473 U.S. at 448 (”mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (”Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsorand Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsorand Pedersenof the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsorand Pedersencases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General


iDOMA Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

ii See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).

iiiWhile significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (”Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).

iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266-67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale ); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).

vii See, e.g.,H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (”Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage-procreation and child-rearing-are “in accord with nature and hence have a moral component”); id. at 31 (favorably citing the holding in Bowersthat an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romerthat “[t]his Court has no business . . . pronouncing that ‘animosity’ toward homosexuality is evil”).

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Chicago Tribune: Business Securing the future as life partners

August 20th, 2010

From the Chicago Tribune: Securing the future as life partners
If you don’t want to - or can’t - marry, it’s critical to stitch together some legal protections

By Jane Bennett Clark, Tribune Media Services
1:20 PM CDT, August 19, 2010

Julie Kurland and Marcia Diehl live in a Victorian home in Takoma Park, a leafy Maryland suburb of Washington, D.C. The couple take turns walking their dog, Cody, past the 1920s bungalows and gabled Victorians that line the streets of their neighborhood. On Sundays they wander over to the farmers market and spend the rest of the day gardening or reading on their wide front porch.

It’s a routine that befits any contented couple. But Kurland, 46, and Diehl, 56, are not married, nor would their union be recognized federally or in all but five states. And while a California court case regarding the legality of same-sex marriage winds its way through the appeals process (likely to end up before the U.S. Supreme Court), there still remains this present-day reality:

Gay couples, and straight couples who’d prefer not to marry, lack the legal structure that protects married couples’ rights on everything from property division to end-of-life decisions. Instead, they must create their own framework.

“It’s much more important for gay couples to have their documents lined up,” said Kurland. “We have to be sure we have our t’s crossed and our i’s dotted.”

Regardless of who you’re partnered to, if you commit to each other without tying the knot, these steps will help you avoid being caught in legal limbo:

Powers of attorney: Diehl’s parents, who are deceased, never acknowledged her relationship with Kurland. Had Diehl suffered a health crisis that rendered her unable to make her own decisions, “they would have thought it was their privilege, not Kurland’s, to make the decisions for me,” said Diehl. In most states, spouses and blood relatives take priority over nonrelatives in the absence of a document that specifies otherwise.

Diehl and Kurland assigned each other a health-care power of attorney, a state-specific document (available free at doctors’ offices, hospitals and on the Internet) that lets each make medical decisions on the other’s behalf. They also gave each other a durable power of attorney, which conveys the right for each to make financial and legal decisions for each other. A durable power of attorney goes into effect as soon as you sign it or upon a triggering event. Consult a lawyer about the choices.

Put it in writing: As singles, “you only have rights to something in the other’s name if there is a written agreement,” said Frederick Hertz, co-author of “A Legal Guide for Lesbian & Gay Couples” (Nolo, $34.99). A cohabitation contract, like a prenuptial, lets you formalize financial and living arrangements while you are together and spell out who gets what if you break up. Drawing up a contract can run a few thousand dollars for a simple agreement, to $25,000 for a complex one. Consult a lawyer.

Wills: Without a legal will, your estate will be divvied up according to state intestacy law, which generally favors spouses, children and other relatives, not significant others. To avoid leaving your partner in the lurch, spend the $300 or so necessary to have a lawyer draw up a will or do it yourself online.

If you are the biological parent and want your partner to raise your child after you die, be sure that you nominate him or her as the personal guardian. As with any guardianship, the court has to sign off on the nomination, but it generally respects the legal parent’s wishes, with one significant exception: The other legal parent — say, a former spouse — is willing and suited for the job.

Establish joint ownership: In some states, married couples or those with marital rights can title jointly owned property as tenancy by the entirety. Each spouse owns the entire property, and neither can sell without the other’s OK. When one spouse dies, the survivor inherits the property, avoiding probate.

Unmarried couples may own property two ways: tenancy with the right of survivorship and tenancy in common. With the first, you own the property 50-50. When one of you dies, ownership passes to the survivor automatically. You can sell or give away your half, but you can’t bequeath it to someone else. Some unmarried couples choose this setup to avoid the public process of probate or as backup to a will. Tenancy in common is more flexible: It lets you own unequal shares of the property, and, if you sell, you walk away with whatever percentage you contributed.

Keep track of gifts: Married couples in the eyes of Uncle Sam can give each other unlimited assets without tax consequences. But unmarried heterosexual couples and all same-sex couples are considered “legal strangers” for federal tax purposes, said Dana Levit, a financial planner in Boston and president of PridePlanners, a nonprofit financial-education group. That awkward status requires you to report gifts to each other of more than $13,000 a year (as of 2010). The excess counts against each individual’s $1 million lifetime federal gift-tax exemption.

Even if you’re not in the habit of writing each other fat checks, you could exceed the $13,000 limit by, say, putting your partner on the title to a house you own. Although most people never reach the $1 million limit, you lessen your risk by transferring assets incrementally, said Hertz. “Give early, often and in small amounts.”

Also be careful to document your contributions to any joint property owned as tenancy with the right of survivorship. Lacking evidence to the contrary, the IRS assumes that the entire property belonged to the first person to die and calculates the estate-tax obligation accordingly. Keeping separate bank accounts helps clarify who paid for what, said Carrie Aburto, a financial adviser at Aspen Wealth Management in Denver.

Minimize your taxes: As single filers (same-sex married couples, in states that legally permit same-sex unions, generally have to file as marrieds on their state taxes and as singles on their federal taxes), you can allocate your deductions to maximize the tax benefit. For instance, the partner who earns more income can pay the mortgage and deduct the interest, while the other partner takes the standard deduction.

“Taxes are one area in which it’s often good to be gay,” said Levit.

Likewise, if you have a child, one of you can claim the child as a dependent on your federal tax return. Assuming that the same parent provides more than 50percent of the child’s support, he or she also can file as head of household, which usually results in a lower tax bill. Couples with two kids may be able to split the difference, each claiming one child as a dependent and filing as head of household.

As singles, you have a good chance that at least one of you will fall below the income limits for tax benefits or tax-preferred accounts. Say one of you has an income that exceeds the limit for contributing to a Roth IRA, (which in 2010 is $120,000 for singles; $177,000 for married couples filing jointly) and the other has earned income that falls below the limit, the one who earns less can still establish a Roth IRA.

Provide for your survivor: You won’t have access to spousal Social Security benefits, but each of you can still name the other as beneficiary of your retirement accounts. Nonspousal beneficiaries of IRAs and 401(k) plans can take distributions from an inherited retirement account over their lifetime.

As for life insurance, leave enough so that each of you will be able to live comfortably if the other dies first. These days, term-life policies come cheap. A 50-year-old woman in good health can pick up a 20-year term policy with $500,000 of coverage for about $700 to $850 a year. A healthy 50-year-old man can buy the same for about $950 to $1,200.


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Court Rejects Same-Sex Marriage Ban in California

August 11th, 2010

From the NY Times:

Court Rejects Same-Sex Marriage Ban in California

SAN FRANCISCO - Saying that it discriminates against gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

Wednesday’s decision is just the latest chapter in what is expected to be a long battle over the ban - Proposition 8, which was passed in 2008 with 52 percent of the vote. Indeed, while striking down Proposition 8, the decision will not immediately lead to any new same-sex marriages being performed in California. Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, immediately stayed his own decision, pending appeals by proponents of Proposition 8, who seem confident that higher courts would hear and favor their position.

But on Wednesday the winds seemed to be at the back of those who feel that marriage is not, as the voters of California and many other states have said, solely the province of a man and a woman.

“Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” wrote Judge Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

Supporters of Proposition 8 said that the decision defied the will of the people of California, and could well be an issue in November’s midterm elections.

“This is going to set off a groundswell of opposition,” said Jim Garlow, the pastor of Skyline Church in La Mesa, Calif., and a prominent supporter of Proposition 8. “It’s going to rally people that might have been silent.”

Wednesday’s decision applied only to California and not to the dozens of other states that have either constitutional bans or other prohibitions against same-sex marriage. Nor does it affect federal law, which does not recognize such unions.

Still, the very existence of federal court ruling recognizing same-sex marriage in California, the nation’s most populous state, set off cheers of “We won!” from crowds assembled in front of the courthouse in San Francisco. Evening rallies and celebrations were planned in dozens of cities across the state and several across the nation.

In West Hollywood, Ron Cook, 46, an accountant who is gay, said he was thrilled by the decision. “If the court had come back and upheld it,” he said. “I would have moved out of the state.”

The plaintiffs’ case was argued by David Boies and Theodore B. Olson, ideological opposites who once famously sparred in the 2000 Supreme Court battle between George W. Bush and Al Gore over the Florida recount and the presidency. The lawyers brought the case - Perry v. Schwarzenegger - in May 2009 on behalf of two gay couples who said that Proposition 8 impinged on their constitutional rights to equal protection and due process.

On Wednesday, Mr. Olson called the decision a “victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently.”

For advocates of gay rights, same-sex marriage has increasingly become a central issue in their battle for equality, seen as both an emotional indicator of legitimacy and as a practical way to lessen discrimination.

“Being gay is about forming an adult family relationship with a person of the same sex,” said Jennifer Pizer, the marriage project director for Lambda Legal in Los Angeles, who filed two briefs in support of the plaintiffs. “So denying us equality within the family system is to deny respect for the essence of who we are as gay people.”

But Andrew Pugno, a lawyer for the defense, said Proposition 8 had nothing to do with discrimination, but rather with the will of California voters who “simply wished to preserve the historic definition of marriage.”

“The other side’s attack upon their good will and motives is lamentable and preposterous,” Mr. Pugno said in a statement.

During the trial, which ended in June, plaintiffs offered evidence from experts on marriage, sociology and political science, and emotional testimony from the two couples who had brought the case. Proponents for Proposition 8 offered a much more straightforward defense of the measure, saying that same-sex marriage damaged traditional marriage as an institution and that marriage was historically rooted in the need to foster procreation, which same-sex unions cannot, and was thus fundamental to the existence and survival of the human race.

But Judge Walker seemed skeptical of those claims. “Tradition alone, however,” he wrote, “cannot form the rational basis for a law.”

Even before appeals to higher courts, Judge Walker seemed ready to continue to hear arguments, telling both sides to submit responses to his motion to stay the decision by Friday, at which point he could lift or extend it.

How the decision might play politically was also still unclear. In 2004, same-sex marriage was seen as a wedge issue that helped draw conservatives to the polls, and Richard Socarides, who advised President Bill Clinton on gay rights issues, said that this decision could be used as a rallying cry for Republicans again. “But Democrats and most importantly President Obama will now have to take sides on whether gays deserve full equality,” Mr. Socarides wrote in an e-mail.

In California, it could also affect the race for governor. Jerry Brown, a Democrat, has been vocal in his support of same-sex marriage in his current role as California attorney general and hailed the decision on Wednesday. Meg Whitman, a Republican, has taken the position that marriage should be between a man and a woman - in line with the language of Proposition 8 - though she says that she strongly supports the state’s domestic partnership laws, which afford many of the same rights as marriage.

Gov. Arnold Schwarzenegger in a statement on Wednesday supported the ruling, saying it “affirms the full legal protections” for thousands of gay Californians.

Some gay rights activists initially feared the case, believing that a loss at a federal level could set back their more measured efforts to gain wider recognition for same-sex marriage, which is legal in five states and the District of Columbia. But those concerns seemed to fade as the trial began, and on Wednesday, the mood was of elation and cautious optimism that Mr. Boies and Mr. Olson’s initial victory might change the debate.

Kate Kendell, executive director for the National Center for Lesbian Rights, said that she believed that there were members of the Supreme Court who “have a very deep-seated bias against L.G.B.T. people,” meaning lesbian, gay, bisexual and transgender. But, she added, “This legal victory profoundly changes the conversation” by involving “folks in the legal world and the policy world who were previously unmoved by this struggle.”

For those who had actually filed the suit, Wednesday’s victory, while measured, also seemed sweet.

“This decision says that we are Americans, too. We too should be treated equally,” said Kristin M. Perry, one of the plaintiffs. “Our family is just as loving, just as real and just valid as anyone else’s.”

Jesse McKinley reported from San Francisco, and John Schwartz from New York. Malia Wollan contributed reporting from San Francisco, and Rebecca Cathcart from West Hollywood, Calif.

This article has been revised to reflect the following correction:

Correction: August 5, 2010

An earlier version of the multimedia presentation running with this article reversed the surnames of the plaintiffs Paul Katami and Jeff Zarillo.

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From the Irish Times: “Civil to One Another”

July 2nd, 2010

Civil to one another

Fri, Jul 02, 2010

As the Civil Partnership Bill goes through the Dáil, Fiona McCann talks to three couples about how it will affect their relationships

‘We consider ourselves to be as good as married, so we consider this to be almost ticking a box’

Michael Walsh, partner in the law firm BryneWallace, and Des Crowley, doctor, have been together for 12 and a half years. They plan to become civil partners, and have a civil partnership ceremony already organised for later this month, with a blessing in the Unitarian Church followed by a meal and celebration for friends, family, colleagues and business associates.

Ceremony already organised for this month: Des Crowley (left) and Michael Walsh. Photograph: Alan Betson

Des Crowley (left) and Michael Walsh. Photograph: Alan Betson

MICHAEL : We consider ourselves to be as good as married, we consider ourselves to be family . . . so in some respects we consider this to be almost ticking a box. But going through a process of preparing for the Civil Partnership ceremony has been an enlightening experience for us because it actually has brought new definition to our relationship, and brought about a renewed commitment.

DES : Initially, for me anyway, it was about just protecting the legality of the relationship . . . but I have been really surprised how the experience of the last month or six weeks has actually changed that and how much more important it has become to me.

MICHAEL : There have been certain elements of the LGB community who might have rejected the whole notion of civil partnership because it’s not full marriage. And whereas I agree in part with the sentiment that what will be provided for in law doesn’t go far enough, it certainly goes far enough for us to be acceptable, particularly in our own individual circumstances.

DES : Ultimately it is down to the practical issue of our home together, the tax situation, the pension situation, and what is really important for us is our next of kin. Because it’s extraordinary that . . . even though you may be living with a person for 12 years, if anything was to happen to you and you were unable to make your own decision, that the people that they turn to is your parents.

MICHAEL : For me the ceremonial aspect of it is really important, and although we are together 12 years, we haven’t yet stood in front of our nearest and dearest and said ‘this is it’. And to have the opportunity now to do this and for it to also mean something from a legal point of view is fundamental.

DES : While it would have been preferable if the legislation had included the rights for gay parents to adopt, there is an expediency about it as well. If you continue the next five or 10 years fighting for that right, in the meantime so many other situations are not regularised, and some people do not have the luxury of time. They’re unwell, or they’re elderly, and there are a lot of complicated legal issues that need to be sorted out for these couples.

MICHAEL : I’ve been writing to the Minister every fortnight, explaining to him the date of our blessing and how important it is that the Bill would have cleared through the main house of the Oireachtas before our date . . .What is important to us is the certainty that it will happen, so we decided to press the button with the sense that it was effectively a done deal . . .

I’m sure we’ll look back in years to come and wonder why it took so long for the State to finally recognise that it isn’t a bad thing to recognise love between consenting adults and a love that’s about long-term commitment and the creation of family.

‘This Bill is not going to do anything for us, for our family. And legally, our family doesn’t exist’

Orla Egan-Morley and Catherine Egan-Morley have been together for more than eight years, and have a four-year-old son called Jacob. Catherine is director of Southside Travellers Action Group, and Orla is training and development officer with BeLonG To youth services.

ORLA : It should be a day for celebration and I just feel really disappointed that the politicians haven’t had the courage to legislate for equality and take a child-centred approach to the legislation. [This Bill] is not going to do anything for us, for our family. And legally, our family doesn’t exist.

CATHERINE : I feel let down for my son because it doesn’t acknowledge his place; It doesn’t make any reference to his rights to have two parents, which he has . . . It hits me very deeply because I am his non-biological parent. It hits me on an equality level, but it also hits me on a gut level.

ORLA : Jacob asked me recently, “What’s marriage? What’s a wedding?”. And I said, “Sometimes when people love one another very much it’s a ceremony they do to mark that love.” He looked at me and Catherine and said “We all love one another, why can’t we get married?” How do you explain to a four-year-old that there are some people who think your family is not worth protecting? . . . I don’t care about the money stuff; I care about the rights of my child. I could get up in the morning and take him away from one of his parents and neither he nor she would have any right to fight back.

CATHERINE : We’ve been living together for almost eight years. We own our home together. . . it only takes one person to look at the letter of the law, and if I have him in the hospital and he has a broken leg, I won’t be allowed to make any decisions because I’m not his legal parent or guardian. Right now in the eyes of the country we live in, in the place that we’re committed to, where we bought our home and live our lives, Orla is a lone parent and I’m a single woman . . . The most public commitment we could ever make to each other is have a child together.

ORLA : We spent a long time planning to have Jacob . . . we changed our names by deed poll so that we all shared the same surname, Egan-Morley. We made sure we had our wills in order, we took as many legal steps as we could, but the bottom line is that there is no legal relationship there between Jacob and one of his parents . . . We don’t want to go somewhere else to get married and not have that marriage recognised here.

I want to be able to get married, and have Jacob have a formal legal relationship with both of his parents in the country where he lives.

‘The ritual, the declaration, it’s an affirmation. People forget that. Everyone should be entitled to that’

Don McClave and Wil Matthews have been together for seven years. Don is an Apple Mac specialist and technical support operative and Wil is a public servant. They had a Civil Partnership ceremony in Belfast earlier this year.

DON : It was pretty much love at first sight - we moved in together after about six months. We’d both been aware of marriage and civil partnership as a political issue, but around the time we were five years together, we said we’d really like to do this. We decided that if we waited for the pace of legislative progress here, we’d all be dead and buried.

We could have gone to Spain or Canada and gone for a full marriage, but that wasn’t practical for economic reasons, and since such marriages weren’t going to be recognised here - we’d been following the Zappone-Gilligan case - we thought we’d be more realistic about it. Civil partnership in Belfast was doable.

WIL : We went up to lodge our petition to have our Civil Partnership in December, and we had it on the 17th of April . . . We had some family members who were not getting any younger and we wanted them to have the day out, and we wanted to be able to get up in front of our loved ones and make a declaration of love for one another . . . It was a really joyous occasion. And even though we’ve been together seven years, our relationship feels different now.

Even though we’re not recognised here, we’ve no legal standing, to us it just feels different. The ritual, the declaration, it’s an affirmation. People forget that. Everyone should be entitled to that and everyone should be entitled to having that celebration with family and friends. It’s not a gay right; it’s just a fundamental human right.

DON : Every step is progress, and we welcome this Civil Partnership Bill, but even so, it’s not enough. We want marriage: not gay marriage, just marriage for all . . . [with this new Bill] presumably when we can present our certificate and have it recorded and acknowledged, we can look at practical things.

There have been some situations where Wil’s been in hospital and I haven’t been able to go through with him to the A&E procedures. So having that kind of recognition, that would give some measure of protection with a hospital official . . . And in the areas of social welfare, inheritance, next-of-kin rights, immediately we have some kind of status.

WIL : While this bill is fantastic and we do welcome it, we will gain some rights and entitlements, but not all, and we’re very clear about that: there’ll be many that we won’t be entitled to.

DON : They’re picking and choosing where they confer equality, but you can’t have equality where you are creating a separate legal classification for same-sex couples.

© 2010 The Irish Times

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For same-sex couples, a patchwork of marriage laws

May 12th, 2010

David Crary’s article, “For Same-sex Couples, a Patchwork of Marriage Laws” highlights the importance of preparing legal documents to protect your wishes and loved ones, especially if you are in a same-sex relationship. Marriage laws for same-sex couples vary from state to state, county by county, without any legal documents it will be harder to protect your wishes such as direct who you want to visit you in the hospital in case of an emergency; name a specific person to make health care decisions for you when you can’t make them for yourself or state the medical treatments you desire in times of a crisis.

Estate planning is an opportunity to protect your wishes and loved ones - LegalOut provides you with affordable solutions to start your estate plan - get started now for a piece of mind!

For Same-sex Couples, a Patchwork of Marriage Laws

The Associated Press
Monday, May 10, 2010; 12:00 AM

PHILADELPHIA — When government forms inquire of her marital status, Isabelle Barker sometimes resorts to an asterisk and an explanatory note.

Cara Palladino (left) and Isabelle Barker (Matt Slocum/ Associated Press)

She and her wife, Cara Palladino, got married five years ago in Massachusetts. Six months later, for job reasons, they moved to Pennsylvania - one of the majority of states that do not recognize same-sex marriages.

Hence the asterisk.

“I’m not single. I’m married in Massachusetts, but I’m not married in Pennsylvania, I’m not married in the eyes of the federal government,” she said. “It’s this weird limbo, this legal netherworld.”

Pictured left: Cara Palladino (left) and Isabelle Barker (Matt Slocum/ Associated Press).

Barker and Palladino, and their 15-month-old son, Will, have plenty of company across the United States as gay and lesbian couples confront an unprecedented and often confusing patchwork of marriage laws.

Historically, such laws have been the jurisdiction of the states, not the federal government, and the common practice throughout U.S. history has been for any given state to recognize a marriage performed legally in another state.

The advent of same-sex marriage in 2004 has changed all that.

Five states - Massachusetts, Connecticut, Vermont, New Hampshire and Iowa - and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. California had legal same-sex marriage for about five months in 2008.

However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states, including Pennsylvania. Even with a valid out-of-state marriage license, gay and lesbian couples in those states face uncertainty, extra legal bills and inevitable rebuffs that straight couples avoid.

Barker and Palladino, who began dating in 1998, moved from New York to Massachusetts in 2004 and married in February 2005 in a low-key ceremony at a Northampton coffee shop.

They had previously exchanged commitment rings - the chief motive for marrying was to obtain health insurance for Barker through Palladino’s job at the University of Massachusetts.

Later in 2005, Barker’s own academic job ended and she was offered a postdoctoral fellowship at Bryn Mawr College outside Philadelphia. The couple decided to move, though they knew there’d be drawbacks.

“In Massachusetts, people understood what our relationship was,” Palladino said. “I miss being able to say, ‘Oh, we’re married’ and not having to explain it any further.”

Barker elaborated.

“When you’re in Pennsylvania, you’re constantly having to wonder, “Do they get this? Do they not get this?’” she said. “You get these looks of befuddlement.”

Day to day, there’s plenty of support from friends, neighbors and employers - Barker coordinates summer programs at Bryn Mawr, Palladino is a fundraiser at the University of Pennsylvania. They feel comfortable in their diverse Philadelphia neighborhood, Mount Airy, and send Will to a day-care center patronized by several other lesbian couples.

But frustration was evident as they told of the hoops they had to jump through, at extra cost, to amass legal documents they wouldn’t have needed in Massachusetts - including a second-parent adoption giving Palladino parental rights along with Barker, who is Will’s biological mother.

At their lawyer’s advice, the two women have stored their legal forms on flash drives that they carry constantly.

“We’re 12 years into our relationship,” Palladino said. “I’d just like to know when we’re done proving it over and over. … To have to work harder and save harder to make up for what everybody else gets just as an entitlement does really make me angry.”

Same-sex couples in non-recognition states received a modest boost from President Obama in April, when he ordered new rules providing such couples with visitation and medical decision-making rights in any hospital participating in Medicaid or Medicare.

Evan Wolfson, who heads the advocacy group Freedom to Marry, called the directive “a small, but welcome step forward.”

“Of course, the real cure is to end exclusion from marriage,” Wolfson added. “Piecemeal steps, addressing one protection at a time, will take up a lot more time than either the administration or American families can afford.”

Wolfson says the current patchwork not only discriminates against gay families, but also causes headaches for employers who have to consider the diverse laws as they weigh transfers of employees with same-sex partners.

Gay and lesbian couples who turn to the courts when they break up are getting mixed results in non-recognition states. Judges in Oklahoma and Pennsylvania recently denied divorces to same-sex couples who had married in Canada and Massachusetts, while New York and New Jersey have granted such divorces even though they don’t allow same-sex marriage.

In Texas, Attorney General Greg Abbott is appealing the decisions of judges in Dallas and Austin to grant same-sex divorces. In Arizona, some lawyers have succeeded in getting out-of-state same-sex marriages annulled on grounds they were never legal under state law in the first place.

The Alliance Defense Fund, a conservative legal group, represented the speaker of the Oklahoma House of Representatives in a recent unsuccessful lawsuit by a woman who’d had a same-sex wedding in Canada and sought to divorce in Oklahoma.

“The government cannot issue a divorce for a marriage it doesn’t recognize,” said ADF senior legal counsel Austin Nimocks.

The uneven legal landscape poses daunting challenges for lawyers who work with same-sex couples - not only on divorces but also on estate planning, parental rights and other matters.

“It seems like every state has a different law,” said Phoenix lawyer Kathy Gummere. “We have people who are married in some states and not married in others, which, in this day and age of everybody moving around all the time, is ludicrous.”

For some couples, among the most galling problems is trying ensure that both are legally recognized as parents of their children. Many states allow second-parent adoption for same-sex couples, which addresses this situation, but many other states do not.

That’s been a problem for Cari Searcy and Kim McKeand of Mobile, Ala. They married in California in September 2008 during the brief period before same-sex marriages were banned there by a ballot measure, Proposition 8.

It was a whirlwind wedding trip, and the couple promptly returned to Alabama - a state unlikely to recognize same-sex unions without some sort of federal mandate that for now seems far away.

Even with a marriage license, Searcy has been unable to complete a second-parent adoption and is not recognized by Alabama as a legal parent of the couple’s son, Khaya, whom McKeand gave birth to in 2006. Yet despite that rebuff, there’s no talk of moving out.

“We’re from the South - this is our home,” Searcy said. “If everybody moves to states that recognize, it, how are we going to change?”

Day to day in Mobile, there’s little practical benefit to being married, Searcy said, though she and McKeand enjoy referring to each other as “my wife.”

“One of the biggest things - now that Khaya is talking - he’s constantly going around telling people, ‘My mommies are married,’” Searcy said. “He’s really proud of that. Seeing that through his eyes, that’s pretty special.”

Carrington Mead, a lesbian attorney from Jacksonville, Fla., struggles with the complex array of laws both in her practice and in private life. She considers herself married, based on a civil union obtained in Vermont in 2008 - but Florida doesn’t recognize the relationship.

“I feel I’m beating my head against the wall,” said Mead, a Navy veteran. “It’s frustrating to be an officer of the court, charged with upholding the law, and sit there realizing you have fewer rights than the people you’re serving.”

Attorney Tiffany Palmer counsels gay and lesbian couples in Philadelphia, helping them sort through the array of legal protections they might need in a state that doesn’t recognize their unions.

When clients raise the possibility of an out-of-state marriage, “I often advise them, it’s probably better that they don’t,” Palmer said.

“But there are so many things attached to marriage beyond legal conditions,” she said. “They go forward anyway, even though it’s not necessarily an easy path.”

Indeed, Palmer and her partner of 10 years plan to ignore the legal cautions themselves and get married July 4 in Vermont. Their 3-year-old daughter will be the flower girl.

“She’s starting to learn and understand what marriage is,” Palmer said. “Now she knows that two adults who love each other, even if they’re two women or two men, can get married.”

Unlike Alabama, Pennsylvania is receptive to second-parent adoptions, so same-sex couples can fairly readily establish that both are legal parents of any children they have.

Tracy and Mia Levesque, Philadelphians who got married in Canada in 2003, said the marriage license helped speed a second-parent adoption after the birth of their 3-year-old daughter, Josephine - with the judge seeing no need for detailed questions about their relationship.

On other fronts, though, lack of marriage recognition can be grating - for example, when they file separate tax forms, with separate deductions, despite raising a daughter together and jointly owning a website design firm.

“It’s ridiculous,” Tracy Levesque said.

Another Philadelphia couple, Gisele Pinck and Kathy Coyle, has been going through tri-state legal gyrations.

They own a house in Massachusetts, where they married in 2004 and still spend the summers. They work and pay taxes in Pennsylvania, which won’t let them file jointly. And last year, they decided that Pinck would give birth to their son in New Jersey because that state’s laws - unlike Pennsylvania’s - allowed them both to be listed as parents on the original birth certificate.

They still felt a need to spend roughly $2,500 for Coyle to go through a second-parent adoption in Pennsylvania so she’d have parental rights there.

“In some ways that doesn’t seem fair,” Pinck said.

On the other hand, Pinck and Coyle say their employer, a Quaker secondary school, fully supports their relationship. That’s a trend nationwide, as more employers respect the marital status of gay and lesbian workers even if state governments don’t.

In Lawrence, Kan., Dave Greenbaum and Mike Silverman say there are upsides and downsides to being husbands in a state which voted by a 70 percent majority in 2005 to ban recognition of any same-sex union.

They got married in California in 2008 but never seriously considered abandoning Lawrence, where Greenbaum runs a computer business.

“Even in a state like Kansas, unless someone is a complete bigot, they’re going to respect the intent behind the marriage license even if they can’t officially recognize it,” Silverman said.

Then there’s the nomenclature benefit.

“Until our marriage, I’d get semi-awkward questions from people - ‘What do you call Mike? Your partner? Your spouse?’” Greenbaum said. “Now it’s easier for family and friends. ‘OK, he’s your husband.’ It’s a framework that everyone understands.”

But the acceptance doesn’t carry over to tax season.

“Any time you’re filling out a tax form, you have to lie by declaring yourself single even though you’re married, so you don’t get in trouble with the government,” Silverman said.

Jennifer Pizer, marriage project director for the national gay-rights group Lambda Legal, says attitudes and laws affecting same-sex couples vary widely across the country - generating an evolving flow of “incredibly interesting legal questions.”

If a married same-sex couple wants to move to a non-recognition state, “it’s important to do everything they can do, with private legal documents and commitments from employers, to protect their families,” she said.

“It’s going to keep happening. People don’t decide whether to walk down the aisle or not based on the intricacies of interstate family recognition.”

On the Net:

Visit the Task Force to learn about State Laws Prohibiting Recognition of Same-Sex Relationships

Create a Basic Estate Plan:

At a minimum, any basic estate plan should include the following documents (click the link to learn more about the document):

Safeguard your relationship, secure your financial, property and health care rights by taking action now with LegalOut’s estate planning legal documents.

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How Relationship Coaching Can Help You

March 24th, 2010

coach_sappho_logoLGBT Spotlight: Coach Sappho

Are you a single individual looking for a meaningful relationship but dread dating? Are you in a relationship looking to enhance your connection with your partner? Relationship coaching will help you find the answers and provide the tools to spruce up your current relationship or attract your life partner.

LegalOut is pleased to feature expert relationship coach, Barb Elgin, MSW, LCSW, (AKA ‘Coach Sappho’) a Certified Singles Coach, dating and relationship coach, with over 20 years of professional experience. In addition to practicing independently for over 15 years, and earning bachelors and master’s degrees in psychology and social work, she has received specialized training in relationship coaching with the Relationship Coaching Institute, as well as personal, corporate and business coach training with Coachville.

Barb founded Coach Sappho in 2001, and was one of the first ‘out’ lesbian coaches, specializing in helping lesbian women find, grow and sustain ever more amazing love relationships. Coach Sappho has inspired hundreds of lesbians through her transformational coaching.

Barb Elgin comments on relationship coaching, “Great coaches help clients create grand visions, achieve satisfaction and savor the journey, from conception to fruition to harvesting! Great coaching inspires clients to both feed their souls and their real world needs and desires, by aligning purpose with action, and challenging clients to make real decisions and commitments to who they will be and what they will achieve in this lifetime.”

Whether you are…

  • single and looking
  • happily single, not looking for romance now, but seeking friendship or networking, personally and/or professionally
  • dating
  • in a relationship of one year or many years and you aren’t happy (or, even if you are)

Coach Sappho’s coaching services will help:

  • You learn secrets to creating a more satisfying LIFE, which is vital to attracting a more satisfying love life
  • Single individuals learn secrets to attracting the relationship one desires
  • Couples discover keys to enhancing their relationship satisfaction and longevity

Get connected with Coach Sappho:


Visit Coach Sappho

Looking for Advice?
Check out Coach Sappho’s Blog - updated frequently with information and tips specifically for women-who-love-women. A must read for great relationship tips.

Sign up for Coach Sappho’s Podcast
- Real, live, lively talk about lesbian dating, mating and relating.

Mention that you heard of us through ‘LegalOUT’ and receive 10% off your next purchase or service.

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The Story of Joy & Beth

February 12th, 2010

Joy and her partner, Beth, were together for six years living in Decatur, Georgia sharing everything from home, a business and expenses. In a tragic accident Beth passed away.

Beth fell off a ladder and was unconscious by the time she made it to the hospital, unable to communicate her wishes to family members. Joy was told to leave the hospital room because it was time for family members to make decisions about Beth’s care.

Since Joy and her partner did not have any legal documents, Joy had no legal rights to make any decisions on behalf of her partner. Joy was not allowed to visit Beth, since many states only allow legal spouses or family members - not lifelong partners. Beth’s family highly disapproved of her relationship with Joy and told the hospital staff not to admit Joy.

Joy was finally able to visit Beth after she pleaded with Beth’s family for a chance to see her partner of six years. Joy was not allowed to be part of any decision-making regarding Beth’s treatments even though Joy knew Beth’s preference for life-saving procedures, she could not instruct the medical staff, as she had no legal authority.

After Beth passed away, Joy was kicked out of her home. Without a will and Joy’s name was not on the deed, Beth’s family took everything.

If you die without making a valid will, you leave what is known as” intestacy”. Each state has different laws, but follow the same general pattern of how your estate is distributed, first to a legal spouse, children and biological family. The state of Georgia bans same-sex couple marriage. According to Georgia’s law, Joy’s relationship to Beth was not recognized.

Joy’s message to the LGBT community, “Please get legal documentation to protect your wishes. Families can be the worse and you never know until something bad happens. Losing your partner is hard enough to deal with but not being able to be there in her time of need was devastating. Do not keep putting off preparing legal documents.”

LegalOut, thanks Joy for her courage in talking to us about her experience. Joy is determined to share her experiences with the LGBT community in hopes she can help others avoid the similar situation she faced without legal documents.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will. It is far less expensive, financially and emotionally; to plan now to make sure that your property goes to the people or charities you choose. At a minimum, any basic estate plan should include the following documents: Hospital Visitation Authorization, Living Will, Health Care Power of Attorney, Last Will and Testament, and Power of Attorney.

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Maine: Same-Sex Marraige Law Repealed

November 4th, 2009

The passage of Question 1 in Maine (a referendum vetoing the state’s law recognizing same-sex marriages) feels like one step forward and two steps back. Opponents of the state’s marriage equality law campaigned on fear and misinformation. We must not let our spirits be broken but continue to to fight for equality.

Read The Lesson in Losing by Cody Daigle on what we can do as a community to reach marriage equality.

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Brides & Prejudice

October 2nd, 2009

We are delighted to present the second of several installments featuring the “Brides & Prejudice” series by Kirsten Ott Palladino from The Sunday Paper.

Kirsten is the Life & Food Editor for The Sunday Paper, a popular weekly newspaper. In her “Brides & Prejudice” series she openly shares the happiness and heartbreak that she and her then-fiancée (now wife) experienced in planning a same-sex wedding in Georgia. While reporting from the frontlines, Kirsten also shares advice on wedding-planning topics from wording invitations to floral arrangements. She and her wife recently wed in an intimate ceremony at the Mary Gay House in Decatur.

Choosing a venue, a day and a photographer

cover_sunday_paper Planning a gay wedding is no easy feat. Maria and I will tie the knot in June, and we’ve had plenty of hurdles to leap—many of which were outlined in my cover story in the March 15 issue of The Sunday Paper. The first challenge we had to contend with was the where. Deciding the venue is of the utmost importance. It usually determines the when, as well as the theme, if any. We knew we wanted a spring or summer wedding, and we wanted to get married in Atlanta. Because we’re a same-sex couple, choosing some remote setting wasn’t plausible. Our top priority in planning our wedding has always been to find people who will treat us with the decency and respect that we deserve, and that usually means working with vendors inside the Perimeter. Of course, some gay-friendly wedding spots do exist beyond the walls of Atlanta proper.

For example, Serenbe in Palmetto, Ga., offers an extraordinary setting for vow exchanges out in a beautiful meadow overlooking a serene lake. However, Maria and I definitely wanted an in-town affair with close access to a bevy of posh hotels for our guests and very accessible for all of our vendors.

We also wanted metropolitan-minded folks who wouldn’t snub our guests. Since we’re both fans of the arts, we looked at the High Museum of Art as a venue. But we didn’t want to be on display for museum-goers. (You know how people stare at something they don’t see every day.) I’m a bit of a vintage girl, with an appreciation for antiques and history, so we chose an antebellum home just outside of Atlanta, but still within the Perimeter. It’s a smaller venue, perfect for our 75 guests. The home is already decked out in Federal Period furnishings, which sets the theme of romance. And the perfectly proportioned brick patio is ideal for a late spring wedding.

Since the venue is of prime importance for so many other key decisions-you can’t confirm other vendors until this one is settled-we did this first. Our venue had so many open dates when we booked that we had the struggle of having too many Saturdays to choose from. We whittled down the days by conferring with family members. Maria has a niece graduating from high school on June 6, so that was out. Mother’s Day weekend wasn’t ideal, nor was Memorial Day weekend, as so many people travel during that time. April made us choke-much too soon! Early May is my father and stepmother’s wedding anniversary. The end of June is much too hot for me, and I get really cranky in the heat. My late father settled the matter when he picked June 13. I asked him if he didn’t think that was an unlucky date. “Not at all,” he replied. “It’s never unlucky when two people in love get married.”

Yes, lucky in love is how I see Maria and myself. We’ve had the normal challenges any couple faces-gay or straight-but all in all, we’ve gotten through the first five years unscathed. We had a terrific get-to-know-each-other stage-Atlanta really is the perfect place for that, with all its fantastic restaurants. We’ve successfully bought and sold houses together in this rotten housing market. Maria gave me a whirlwind romantic proposal in Central Park. She was-and still is-my rock while I grieve my father. No matter how cheesy it sounds, I proudly admit that she’s my soul mate, through and through.

Hence, it was very important that we hire a photographer who could capture this on film. Gone are the days of still shots of the entire wedding party looking directly at the camera, saying, “Cheese!” Now, wedding photography is part photojournalism and very artistic. Upshots of the happy couple on a balcony, a close-up of the shiny wedding rings, the gown hanging on a door, the mother of the bride misty-eyed as she places her knowing hand on her daughter’s shoulder, a quickly snapped shot of the attendants clapping with glee. This art form certainly isn’t cheap, but it’s well worth it. So parents and grandparents sometimes suffer sticker shock, thinking the photography should be less costly. But it can sometimes be just as much as catering. It all depends on what your priorities are when planning your wedding day. For us, photography and catering were most important.

We got quotes from tons of photographers. In every e-mail I sent out, I started it with, “My girlfriend and I are getting married.” If they didn’t respond, I knew immediately they wouldn’t be ideal for shooting our wedding. Others wrote back but were hesitant in their wording or something just wasn’t jibing. In my business, I’m familiar with so many photographers, and so I already knew of Our Labor of Love photography. But I didn’t think we could afford them at first. A husband-and-wife team, Jesse and Whitney Chamberlin moved to Atlanta from California about six years ago. They’re hip, fresh and really cool. Their photography is almost ethereal, as they’re quite the masters of light. Maria and I explored their Web site and were hooked. Once we saw that they’d recently photographed other lesbian weddings, we knew they would be kind to us. It only took one meeting to confirm this, so we booked them right away. Our engagement photo session took place one chilly afternoon in November all over Decatur, with an industrial background setting the stage for a modern-day romance. The Chamberlins were so good about putting us at ease, too.

One of the many challenges of being a gay couple is that Maria and I are always hypersensitive to being snubbed in public when we’re even remotely affectionate. So to have a straight couple encouraging us to hold each other and open up in front of them was liberating. And once we got our photos back, we knew they were going to knock it out of the park on our wedding day. SP

Read the third installment of “Brides and Prejudice” in the next LegalOut newsletter.


More about Kirsten Ott Palladino

Covering a diverse array of topics ranging from travel, weddings, the GLBT community, art, fashion and beauty to food, wine, design and luxury living, Kirsten contributes to a myriad of publications, including Art & Antiques, The Atlantan Brides, ARTnews, Atlanta, Executive Traveler, Southern Voice, Steinway & Sons, Rolls-Royce Owners Club Desk Diary and The Sunday Paper.

Kirsten believes that community is all about continuity. In addition to her benevolent service history at homeless shelters, soup kitchens and other outreach programs, Kirsten is committed to providing up-and-coming journalists and media specialists with an honest and trusted mentor. She is a frequent guest lecturer at her alma mater, Kennesaw State University.

For more on Kirsten Ott Palladino, visit www.kirstenott.com

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