I’ve just finished the revision to Nolo’s Legal Guide for Lesbian & Gay Couples, and I did the revision for Making It Legal’s 3rd Edition just a few weeks ago. It’s been a joy summarizing the amazing developments that have occurred in the past year. The legal lives of same-sex couples are still fairly complicated, but in a much better way.
Marriage: Wow! Marriage is now available to lesbian and gay couples in Hawaii, Illinois, New Jersey, Minnesota, California and soon, in Illinois. Each of these states have endured hard fought battles, in the courts and the legislatures, and in the public arenas, and the political efforts by the marriage equality advocates have been truly impressive. Minnesota is especially significant – not just because it’s my home state – as that is where the first legal action to allow a gay couple to marry was launched, more than 40 years ago. And Hawaii is equally important, as that is where the current campaign for marriage equality was launched, more than 15 years ago. As for California, it’s been a roller coaster ride for the past ten years, and it’s great to have the access to marriage be finally resolved, hopefully for good this time!
Federal Benefits: The Supreme Court’s invalidation of Section 3 of DOMA is perhaps the most important step in this long journey, for both symbolic and practical reasons. As the nation’s highest court, its opinions are closely followed, and the analysis in the Windsor case really was wonderful to read. It’s clear that the opinion has already had a significant impact on how legislators and politicians approach this issue, and it sends a strong signal of the political direction this country is headed towards. On the practical level, it immediately opens up the plethora of federal benefits to same-sex married couples – in many instances, even for those living in non-recognition states. The most dramatic of these benefits is the immigration privileges extended to married spouses, and it’s been a joy to see the smiling faces of new green-card holders everywhere. Federal tax and Social Security benefits now apply to married same-sex couples, as well as benefits for spouses of federal employees.
Remaining Issues: the biggest areas of legal confusion involve married couples living in non-recognition states, and the status of marriage-equivalent civil union and domestic partnership registrants. Some federal laws only apply to couples living in recognition states (the state of residence rule) while others apply to all couples, wherever they reside (the state of celebration rule). It will take some time for the multitude of federal agencies to work out their rules for same-sex couples, but if you live in a non-recognition state you can not assume you will obtain federal benefits. As for the marriage-equivalent registrations, most federal agencies will not treat these couples as married, and so spousal benefits won’t extend to those couples. In many instances (such as tax and immigration purposes) a couple can get married and get the benefits, and in many states the partnership is “upgraded” to marriage by statute.
It will take some time for all the legal complexities to be worked out, and the problems in non-recognition states will be especially difficult for some time to come. But there is much to celebrate this year!