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IRS to Gay Newlyweds: Not So Fast

August 5th, 2011

From Bloomberg Businessweek
IRS to Gay Newlyweds: Not So Fast
Federal tax benefits of marriage don’t extend to same-sex couples
By Andrew Zajac

bloomberg-businessweek-logoFor all those same-sex newlyweds in New York, Lawrence S. Jacobs has a message: Enjoy the Champagne and the honeymoon, but expect no gifts from the IRS. Jacobs, a lawyer in Washington, specializes in estate planning for same-sex couples-and in delivering the bad news that their unions aren’t legal in the eyes of the IRS, a policy that will cost them time and money during tax season.

Same-sex couples in Washington, which last year legalized gay marriage, must fill out a federal return to make calculations required for their D.C. joint return. But then they must set that work aside and fill out separate federal returns because the IRS doesn’t regard their union as legal, Jacobs says. “You just spent decades getting your marriage recognized, and now the feds say, ‘No, you’re not,’” says Jacobs, who as a partner in a same-sex marriage has firsthand experience of the problem.

This cumbersome process applies to all married same-sex couples in the U.S. It comes courtesy of the Defense of Marriage Act, or DOMA, which defines marriage as “a legal union between a man and a woman as husband and wife.” The Obama Administration, saying DOMA is unconstitutional, has instructed federal agencies to do what they can under existing law to extend benefits to same-sex partnerships. Such rule-stretching doesn’t go far with the IRS, says Brian Moulton, an attorney with the Human Rights Campaign, a Washington gay rights advocacy group. “There’s a relatively small space before you bump up against DOMA,” he says. “I don’t think there’s much they can do.” The IRS declined to comment.

Filling out a “dummy” federal return can add $300 to $400 to a same-sex married couple’s tax preparation bill, according to Larry Rubin, a partner at accounting firm Aronson in Rockville, Md. As a result of DOMA, gay couples must also pay income tax on a portion of employer-provided health insurance, which isn’t taxable for heterosexual married couples.

The costliest potential consequence of the IRS’s treatment of same-sex couples involves the estate tax. A heterosexual husband or wife generally can inherit any amount of money or property from his or her spouse without paying tax. A same-sex spouse inheriting a large estate, by contrast, can face a tax bill of as much as 35 percent on anything above $5 million. That situation spurred a New York widow, Edith Windsor, to sue the government last November seeking to get the IRS to return $363,000 in taxes on an inheritance from her spouse, Thea Spyer. Windsor is working with Senator Kirsten Gillibrand (D-N.Y.) and other lawmakers to repeal DOMA. “It’s a matter of fundamental fairness,” says Rose Saxe, an attorney with the American Civil Liberties Union, which is helping represent Windsor. “The government shouldn’t be excluding one group of married couples from these important protections.”

The bottom line: Even where they can marry, gays face disadvantages such as higher estate taxes and tax-prep fees $300-$400 more than straight couples.

Zajac is a reporter for Bloomberg News.

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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
By NICHOLAS CONFESSORE and MICHAEL BARBARO
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
Speaker
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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Why a Living Will is Important

February 4th, 2011

Recently, The South Florida Gay News.com posted a significant article, “Beyond Living Well is a Living Will” by Jarret Terrill about the importance of preparing a living will. This article highlights the challenges people may face without a living will, a form of an Advance Care Directive.

Advance medical directives pertain to treatment preferences and allow you to appoint someone you trust (a family member, close friend, or partner) - to make health care decisions for you if you lose the ability to make decisions yourself.

A living will is a written document that specifies what types of medical treatment are desired. A health care proxy names a specific person to make health care decisions for you when you can’t make them for yourself.

Here is an excerpt from the article:

“Many gay men and women are faced with anti-gay family members that they would not entrust an “end of life” decision to. Without a living will issuing advance directives, Florida hospitals would be bound by law to follow the directives of distant family members over a lover’s wishes.

A living will, also known as an Advance Care Directive, is a document that tells doctors, attorneys and law enforcement which person in your life is responsible for executing decisions you’ve made about your healthcare if you are unable to speak for yourself.

Says Daniel W. Humbert, a Fort Lauderdale Attorney who has developed a specialty in estate planning,  “a General Power of Attorney is very broad in scope and tends to give the Attorney-In-Fact (the person you designate) the power to do virtually anything. A living will is quite different.”

Humbert says that a living will is “where you can express your wishes for what they call extraordinary life-saving measures. This would be particularly important for a person who becomes incompetent or goes into a coma or something like that.”

“A living will is essential for everybody, but it’s particularly important to the gay community,” says Humbert.  Laws and regulations concerning those extraordinary circumstances and the decision-making process favor family members. Since the legal definition of a family member varies from state to state, this can pose a problem if you don’t have a living will.”

Click here to read the entire article>>

Without legal documents you are at risk of not having your wishes carried out in the event that something unexpected occurs. If you are in a committed relationship, you may want your significant other to be able to make medical and legal decisions for you, should you unable to make them yourself.  You would like to plan for the future of your family to ensure they are taken care of when you are gone. Even if you are not in a committed relationship, you want to make decisions about your own life and future without unwanted intrusions from others.

Prepare Legal DocumentsLegalOut’s online resource center provides the LGBT community with affordable legal document solutions.  We provide easy-to-use tools for customizing your documents online, in the privacy of your own home, at your own pace and provides hundreds of do-it-yourself legal documents including living wills, domestic partnership agreements, power of attorney documents, last will and testament, and many others.

By planning now you can feel comfortable that you, your family and your future are taken care of exactly the way you envision.

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Give the Gift of Estate Planning!

December 17th, 2010

Christmas GiftsThe 2010 holiday season is upon us which means holiday dinners, holiday travel and shopping for gifts. A gift to consider this holiday season is the gift of estate planning. Legal documents provide you and your loved ones with a peace of mind.

LGBT individuals especially need to be proactive to ensure that their plans for the future reflect their own wishes and are not dictated by laws that do not fit their life and relationships. Did you know that unless otherwise specified in many states, probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years and the state determines who gets your assets, not you. Without an estate plan, your loved ones would have the burden to decide what your wishes are in times of crisis. Preparing legal documents will secure your wishes and help loved ones know what your intentions are during times of crisis.

Give the gift of estate planning for yourself or loved ones and you’ll have peace of mind for many holidays to come.

Let LegalOut help you give the gift of estate planning, visit our legal documents center.

Top Reasons Individuals Put Off Preparing Legal Documents

Often times, people put off creating legal documents. We know we need to do something, but we wait. Why do we wait? Here are some common reasons why we defer making a decision:

  • We do not want to think about dying or being incapacitated.
  • We do not know where to begin.
  • We think we do not have any assets. People assume they have to be rich or married with children to create a Will.
  • We procrastinate- people know they need to create an estate plan but put it off.
  • Legal costs are high.

Can you identify with one of these reasons of putting off estate planning? Without legal documents you are at risk of not having your wishes carried out in the event that something unexpected occurs. If you are in a committed relationship, you may want your significant other to be able to make medical and legal decisions for you, should you unable to make them yourself.  You would like to plan for the future of your family to ensure they are taken care of when you are gone. Even if you are not in a committed relationship, you want to make decisions about your own life and future without unwanted intrusions from others.

LegalOut can help you avoid putting off creating legal documents. LegalOut’s online resource center provides the LGBT community with affordable legal document solutions.  We provide easy-to-use tools for customizing your documents online, in the privacy of your own home, at your own pace and provides hundreds of do-it-yourself legal documents including living wills, domestic partnership agreements, power of attorney documents, last will and testament, and many others.

By planning now you can feel comfortable that you, your family and your future are taken care of exactly the way you envision.

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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.

———

Check out LegalOut’s affordable online solutions to start your estate plan - get started now for a piece of mind! Through our simple, easy-to-follow online tools powered by RocketLawyer.com, you’ll quickly and easily create affordable legal documents — all in the privacy of your own home.

Knowledge is the first step to protection. For more information visit LegalOut - Protection 101 or click on the legal documents below for more details:

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Are you one of the 70%?

August 11th, 2010

Did you know that national statistics indicate that over seventy percent (70%) of Americans die without creating a Last Will and Testament or other estate plan? This is a staggering statistic; it means that 70% of adults are letting others make decisions for them.

Are you one of the seventy percent? Do you really want someone else to make tough decisions on your behalf in times of crisis?

Here are some reasons why people do not create a Will:

  • Do not want to think about dying or being incapacitated.
  • Do not know where to begin.
  • Think they do not have any assets. People assume they have to be rich or married with children to create a Will.
  • Procrastination - people know they need to create an estate plan but put it off.
  • Legal costs are high.

What happens if you do not have a Will or Estate Plan:

  • State determines who gets your assets, not you.
  • Probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.
  • Not having a Will may cause disagreements or lawsuits between your partner and your family.
  • Your loved ones would have the burden to decide what your wishes are in times of crisis.

Legal DocTypes of Estate Planning Documents

No one wants to think about his or her own death, but taking the time now to complete some basic documents can save you and your family much heartache later. You’ll get more peace of mind knowing that your wishes will be followed and your family and friends will be taken care of. Listed below are some basic estate planning documents:

Last Will and Testament
A Last Will and Testament allows you to set out your specific wishes for how you want your property and assets to be divided upon your death. It also designates who will assume guardianship responsibility of any minor children if neither parent can serve as guardian. You can use a will to make bequests to charities. Wills are easy to prepare, but are subjected to probate process, which, depending on the size of your estate, could take some time.

Living Will
A Living Will is a legal document used to specify your wishes for end-of-term health care decisions. It states that you do not want life-prolonging treatment if there is no hope of recovery, for example in the event of terminal illness or irreversible coma. Having a Living Will lets others know what your wishes are when you are unable to communicate them yourself.

Durable Power of Attorney
You can grant a Power of Attorney to another person (called your agent) for any case where you cannot represent your own interests. For example, you can send an agent to an important meeting you are unable to attend, and they may act on your behalf for the duration of that meeting. A Durable Power of Attorney, on the other hand, remains in effect if you become incompetent. In cases of terminal illness or permanent unconsciousness, you can set out health care directives for your agent, much like in a Living Will.

Hospital Visitation
This authorization is used to give visitation rights to a person who is not a legally recognized family member, should you become unconscious or unable to communicate yourself. You should have this document if you want your partner or someone who is not considered a family member by the state to be able to visit you in the hospital, should you become unable to communicate for your wishes.

Domestic Partnership Agreement
The Domestic Partnership Agreement is a document that a couple can enter into to dictate their contractual rights as a couple.

You can find all these legal documents and other estate planning forms on Legalout.com. Our online interview makes it easy to create these important documents - get started now for a piece of mind!

Online Legal Wills Provide an Affordable Solution
Everyone should have a Last Will and Testament, and the document should be reviewed and updated on a regular basis. Preparing and maintaining your Will doesn’t have to be time consuming, difficult, or costly. Knowing that an hour of an attorney’s time can cost $200 or more, many people put off preparing their Wills. However, you don’t have to use the services of an attorney to create an effective Will. You and the other members of your family can create your own Online Legal Will easily and inexpensively.

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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
By JESSE McKINLEY and JOHN SCHWARTZ

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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Protecting Your Wishes: Importance of Preparing Legal Documents

July 2nd, 2010

The LGBT community has seen great strides in equality the past couple of years, with certain states passing marriage equality laws for same-sex couples. However, there is still a federal ban, Defense of Marriage Act, (DOMA), that restricts about 1,138 benefits from same-sex couples and many states do not recognize any form of same-sex couple marriage benefits.

For example, did you know that unless otherwise specified in many states, only legal spouses or family members - not lifelong partners - can visit you in the hospital should you be unconscious? Or that vital decisions like power of attorney can default to a biological family member who doesn’t even know what you wishes are or they may not “agree with” your sexual orientation.

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.

family

Advance legal planning protects an individual’s right to make their own health care and financial choices and prevents unnecessary suffering for families who may struggle with these decisions later on. It is a proactive process that enables the individual to make decisions about their future, along with family members, health care providers and counsel, prior to their physical and cognitive decline.
If you are in a committed relationship, you may want your significant other to be able to make medical and legal decisions for you, should you unable to make them yourself. You would like to plan for the future of your family to ensure they are taken care of when you are gone.

Even if you are not in a committed relationship, you want to make decisions about your own life and future without unwanted intrusions from others. By planning now you can feel comfortable that you, your family and your future are taken care of exactly the way you envision. Because, unfortunately, LGBT individuals cannot rely state and/or federal laws to take care of them.

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, Power of Attorney, and Domestic Partnership Agreement.

Often times, people put off creating legal documents, we know we need to do something, but we wait. We defer making a decision. Why do we wait? Our reasons are different. Some reasons are:

  • lack of time
  • budget concerns
  • not knowing exactly what we need
  • we don’t want think about death or crisis situations
  • we don’t want to have the conversation.

But such planning is essential for gay, lesbian, bi-sexual, and transgender individuals and couples, whose basic civil rights, depending on state legislation, can be severely restricted. LGBT individuals need to be proactive to ensure that their plans for the future reflect their own wishes and are not dictated by laws that do not fit your life and relationships or individuals who are not involved in your life and relationships. Legal documents can provide you legal and emotional security in the event that something unexpected occurs.

Once you have prepared legal documents, there’s one more essential step that many people don’t think about until there’s an emergency - you need to keep those documents somewhere safe, yet easily accessible. Make sure to give copies to your health care agent, trusted family member, your partner or anyone you trust that should have your directives. It’s also vital to carry them with you, especially if you are traveling throughout the United States or going abroad. In case of an emergency you want to make sure you have your documents on hand to show hospital staff or any other person that may need to see proof of your wishes.

Marriage Recognition:
• State issues marriage licenses to same-sex couples (5 states and the District of Columbia). Connecticut (2008), District of Columbia (2010), Iowa (2009), Massachusetts (2004), New Hampshire (2010) and Vermont (2009).

• State recognizes marriages by same-sex couples legally entered into in another jurisdiction (2 states) Maryland (2010) and New York (2008).

• California had legal same-sex marriage for about five months in 2008.

LegalOut provides you with affordable solutions to start your estate plan - get started now for a piece of mind!

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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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