What A Year It’s Been!

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!

 

 

 

Opening Up the Surrogacy Door in Israel

Heterosexual couples in Israel have had access to surrogacy (at the government’s expense for the most part) for more than a decade, but the existing law on surrogacy prohibits gay male couples from hiring a surrogate mother – even at their own expense. As a result, gay couples that want to raise a child have limited options there. One of them can co-parent with an unmarried woman, either straight or lesbian, or they can wait in a very long line to adopt a child there. An increasing number of gay couples prefer to raise a child that is biologically connected to one of them, without including a third person (i.e. the mother) in their lives over the long term. For these couples, hiring a surrogate outside of Israel – usually in India or the United States – has been their only option. This is a very difficult process, involving significant expense, complex legal procedures, and practical arrangements that are not easy to negotiate. It also raises concern on the part of many of the men that the women (especially those in India) may not be treated fairly or compensated appropriately. Many of these men would greatly prefer to hire a surrogate in Israel, and they would definitely like to benefit from the public health benefits of a government subsidized procedure. They also feel that the government regulations and practices in Israel would provide assurance that the surrogates were being treated properly and fairly.

A gay couple sued the Israeli government a few years ago, claiming that the ban on gay couples using surrogates violated the basic laws of Israel (equivalent to a constitutional claim). At a minimum, argued the couples, the government should reimburse the costs they had incurred of an overseas surrogacy arrangement, if it isn’t going to be allowed in Israel. In a procedural move that is rather unique to Israel, the government responded by commissioning a study of the issue, and in response the petitioners temporarily dismissed their legal claim.

Now, after a few years of consideration, a prestigious committee of lawyers, doctors and government officials has recommended that gay couples be allowed to hire surrogates in Israel. If the recommendation is adopted by the legislature (the Knesset), presumably the process would also be covered by the national health insurance and thus be free to the participants.

However, many more steps must be followed before gay couples can start arranging for hiring surrogates in Israel. A deputy minister must approve the report, and then it will be forwarded to the legislature. Unfortunately, the report’s conclusions are not binding on the Knesset, and if they fail to act promptly to amend the current laws to meet the committee’s recommendation, the petitioners will have to re-file their lawsuit, asking the court to order the legislature to follow the committee’s recommendation.

As frustrating as the process is, there is reason for optimism, however. Many legal observers believe that the court will eventually side with the government committee, and will invalidate the current laws limiting surrogacy to heterosexual couples. If and when the court reaches that conclusion, the government will have no choice but to allow gay couples to use surrogates in Israel, at the government’s expense.

It may take another two or three years before the surrogacy door is fully opened for gay couples – but an important first step has been taken.

California Allows Non-Residents Access to Divorce Courts

I have often complained about courts in non-recognition states that have refused to grant divorces to same-sex married couples. The problem arises when a lesbian or gay couple travels to a marriage-equality state and gets married, or if a couple that formerly lived in a marriage-equality state relocates to a hostile state, and then breaks up. I would hope expected that an anti-gay judge would be glad to grant a divorce, whatever his personal biases may be. However, this is not what has happened in various states such as Texas, Oklahoma, Rhode Island. In some of the rulings issued in the past few years, a few judges on their own have refused to grant divorces. In other situations, the judges were initially open to granting the divorce, but then an anti-gay group intervened and persuaded the judge (or the court of appeals) to deny the divorce petition.

In most of these cases the petitioners were not asking a judge to grant them any property or alimony based upon their marriage, since they’ve already settled those issues, or maybe the other partner wasn’t even showing up in court to contest the divorce. Instead, all they wanted was an order of dissolution. Some lawyers have proposed that the couple could simply sign a private settlement agreement and distribute their assets, but this could create problems down the road. Being legally married could come back to haunt them if either of them relocated back to a recognition state (or if their own state started recognizing same-sex marriages), or if either of them died before they got a divorce.

Not being able to get divorced also means you can’t get remarried, which can be a real problem if either partner needs health insurance, wants to have children, or simply wants to enjoy the emotional and spiritual dimensions of marriage with their new lover. Being married to someone you don’t live with can create problems with lenders, title companies, and insurance companies as well.

The legal origin of these problems stems from what is referred to as the “domicile” rule, which means couples ordinarily can only get divorced in the state in which they reside at the time of their break-up, regardless of where they lived when they got married. The purpose of this rule, which goes back more than a century, is to prevent nasty husbands (or wives) from evading the divorce rules of the state they live in, by simply hopping across the state line to get a divorce in another state. For example, if a husband in New York didn’t like the property rules imposed on him by the New York court, it would be unfair to his wife if he could simply drive a few miles away to a more lenient state and file for divorce there.

Some folks think these rules don’t make sense any more, in our mobile society, but for straight couples the rules don’t create any real problems. Sure, every once in a while it is unclear where the couple really lives, or where their primary residence is, and that can lead to disputes when the different states have different divorce rules. But the real problems are for the gay couples in non-recognition states. Few of us can afford to move to another state just to get a divorce – especially because funds are usually even tighter during a divorce. Some lawyers have even questioned whether the out-of-state divorce would be valid in the non-recognition state,if there was a problem with an ex-spouse or a creditor.

Fortunately, the California legislature has just passed a bill (which was signed into law on October 9th by Governor Jerry Brown) that resolves this problem, at least for those who got married here in 2008, before Proposition 8 was passed. It will also help those who may in the future get married in California, if and when Proposition 8 (which bans same-sex marriages) is repealed (by the voters) or ruled to be unconstitutional (by the federal courts). The bill is titled SB (Senate Bill) 651, and the full text can be found at: http://leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html

The new law will go into effect in January 2012. It provides that if a couple got married in California but live in a state that won’t grant them a divorce (which is presumed if the state doesn’t recognize their marriage), the California court will have jurisdiction to grant them a dissolution. The divorce case will be filed in the county where the couple got married, and the dissolution is supposed to be adjudicated “in accordance with California law.”

There’s are a few more features of the new law which aren’t about divorce, but are equally helpful. Currently a domestic partnership registration requires that the couple live together, whereas marriage doesn’t have that same requirement. This can be a serious problem for those in commuting relationships, and the new law removes this discriminatory restriction. The new law also allows for confidential domestic partnership registration, another “benefit” of marriage that was not included in prior versions of the domestic partnership registration system.

There is a lot that remains unresolved in this new legislation, especially just what it means to adjudicate a divorce in accordance with California law if the spouses are not residents. But for those who have been able to reach their own private settlement agreement, this will enable them at least to obtain a formal dissolution. And, while there is also some uncertainty on the details, chances are the dissolution will be honored in other states, even non-recognition states. This will allow the ex-spouses to enter into contracts as a formerly married person, and to be treated once again as an unmarried person.

It’s a long ways from full marriage recognition in every state, but at least the couples that married in California will now be free to get divorced, wherever they live!

Great News From New York

The recent passage of a same-sex marriage bill in New York – and its near instant signature by Governor Cuomo – is extremely important, for several reasons. First, it more than doubles the number of United States residents who have the option of legally marrying, and probably doubles the number of same-sex couples who now have that option. That alone is a dramatic improvement in the legal lives of New Yorkers. Second, New York State is not a particularly liberal place when it comes to these sorts of issues – and this has been a hard fought battle and it was won vote-by-vote. Prevailing in New York is a powerful sign of how the politics of this issue have improved in recent years.

But there is a subtler way in which this is an important turning point. New York City is the nation’s center of commerce, journalism, and wealth. Changing the legal rules in New York means that stock brokerages, national corporations, newspapers and the like will all have to change their practices to recognize same-sex couples who have gotten married. Forms will change, personnel rules will change, and the treatment of the New York employees and residents will change. This will pave the way for easier changes nationally, and most likely will open up the minds of a powerful force of influential decision-makers – especially in corporate America. Moreover, the writers and publishers who work in New York will be witnessing the change, and this will lead to positive stories nationally.

Congratulations to the hard working political activists who made this change possible!

One minor word of caution: New York’s rules of marriage are particular onerous, especially when it comes to getting divorced. So while we all must celebrate this important new right to marry, the decision to actually get married should not be taken lightly. Please, don’t let your major contribution to the New York economy be the fees you have to pay to lawyers to end your same-sex marriage – at least not anytime soon!

Fantastic News on the Coming Demise of DOMA

Many of my colleagues are referring to the recent announcement by President Obama and Attorney General Holder as the “tipping point” in the lifting of the federal ban on recognition of marriages of lesbian or gay male couples. The announcement was direct and powerful: President Obama has determined that the key element of DOMA (Defense of Marriage Act) is unconstitutional, and therefore he has ordered the Justice Department to cease defending it in court.

Over the last few years Obama has tried to stay “on the fence,” saying he opposed DOMA politically but would continue to defend it legally, until Congress chose to repeal it. Now, he is jumping off the fence, on to the right side of the debate. He is also going out on a fairly dramatic political limb, by instructing the Justice Department to act according to these principles.

There are two dimensions to this policy shift. On the technical legal side, the government is withdrawing its appeal of several trial court decisions that ruled that DOMA was unconstitutional. Individual members of Congress probably will hire private lawyers to defend the appeals, but with the President weighing in on the side of the opponents and the government no longer officially defending the law, there is a very high probability that the appeals will be defeated. It may take a year or two for this drama to play out, but there is a far greater likelihood now that DOMA will be judicially overturned.

But perhaps of great importance is the change in the political and social policy atmosphere. For the President to take this stand is to say to the political mainstream, the times they are a-changing. And we are already seeing how the tide of change is flowing. Hawaii’s governor has signed their domestic partnership law, which will extend marriage benefits to same-sex couples as of January of next year. The Maryland Senate passed a marriage equality bill, and there is a decent chance the other house of government will pass it — and the governor has said he would sign it. And, just this week, the influential Senator Dianne Feinstein from California has introduced legislation to repeal DOMA, parallel to similar legislation launched in the House of Representatives. As with the repeal of “don’t ask don’t tell,” a strong sense that the courts are going to impose this change may turn the tide in Congress in advance of such a ruling.

It will still be several years before the legal ramifications are sorted out, especially as the repeal of federal non-recognition will still leave couples in the dozens of non-recognition states in legal limbo. But the light at the end of this long tunnel has grown significantly brighter this week.

Good News From Hawaii

Both houses of the Hawaii state legislature have passed a strong marriage-equivalent domestic partnership bill, and the newly elected governor has stated that he will sign the bill within the next ten days. Effective January 1, 2012, Hawaii couples will be able to register as domestic partners and enjoy all of the rights (and obligations) of marriage under Hawaii law. They will not be able to get legally married and none of the federal rights of marriage will be extended to them, but still, this is a great victory.

It’s especially significant in light of the 15 years of marriage debates in Hawaii. Hawaii was the first state to bring a challenge to the ban on same-sex marriage; interestingly, it was brought by a couple represented by a straight lawyer from the local ACLU, because the established gay legal community had mixed feelings about fighting for marriage. The initial court victories were very significant, but as had been feared, they triggered a terrible backlash. A voter approved initiative prevented the courts from allowing lesbian and gay couples to marry, and even worse, it spawned a fear of gay marriage that led to the passage of the federal Defense of Marriage Act.

The legacy of that fight has lingered for a long time, and so this latest success is a sweet victory for Hawaiians. It is important that we recognize the practical value of extending marriage benefits to same-sex couples in Hawaii, and also acknowledge the meaningful political victory that this law represents.

We now have five states and the District of Columbia that allow full legal marriage, and seven states that have marriage-equivalent registration. And, there are three states that generally recognize the partnerships and marriages entered into in these other states. That makes 16 states where there is some form of formal recognition of same-sex marital rights.

And that is good news!

The Importance of Obama’s Order

President Obama has recently issued an executive order that requires that all hospitals that accept Medicare and Medicaid (which includes nearly every U.S. hospital) must accommodate a patient’s instructions to allow same-sex partners visit them in the hospital. While patients with health care powers of attorney (or medical directives as they are called in some states) already have this right legally, such instructions are not always followed, and many gay and lesbian pateints haven’t filled out such directives. This order should insure that all of those patients will have their wishes honored.

Even if the number of obstructionist hospitals may be small in number, the Executive Order is important in several respects. First, it applies “top down” pressure on those hospitals to do the right thing in the future, which should lead to greater compliance with these legal requirements. Second, it brings the human dimensions of this issue to the forefront — especially because of the personal call that President Obama made to the woman who was denied access to her dying partner in a Florida hospital. Third, it demonstrates that the President can indeed make change and help our community, in small ways and big ways, without waiting for Congress or the Supreme Court to take a stand. This is important in terms of political symbolism, far beyond the specifics of this one narrow ruling.

Hopefully there will be minimal backlash, and that this will open the door for broader change and more enlightened social policy from this administration!

One should still fill out the legal documents necessary to empower one’s partner to make medical decisions and have the right to hospital visitation — but hopefully, if this hasn’t been done, the Executive Order will provide the protection we all deserve.

Good News From Two Capital Cities

There have been major positive developments both in Washington, D.C. and in Mexico City in the past few weeks. The D.C. city council has passed a landmark same-sex marriage law, building upon the recent enactment of marriage-equivalent domestic partnership registration. It has been signed by the Mayor, but it remains subject to a potential Congressional override some time in the coming month. Historically Congress has not interfered with this sort of local legislation, but as we all know gay marriage is not business-as-usual. Nonetheless, the strong Democratic majority in both houses and the tradition of deference should assure safe passage for this breakthrough. One of the most interesting aspects of this news is that D.C. is in the midst of some fairly conservative geography, such as Virginia and Maryland, and if marriage is legalized in D.C. the surrounding jurisdictions are going to have to deal with a rush of married couples living in their states.

One of the best “benefits” of this development is that members of Congress will be in the neighborhood for many same-sex weddings, which is bound to have an indirect impact on the national legislation and policy formation.

In Mexico City, the assembly passed with a comfortable margin of victory, and the Mayor is expected to sign the legislation soon. Mexico’s laws are complicated in the marriage arena, with some areas covered by national law. But the local marriages will extend adoption rights, inheritance benefits, and many financial and insurance protections for same-sex couples. This advancement in Mexico follows on the heels of positive legislation in the larger cities of Argentina and Brazil and in Uruguay as well.

Marriage-Equivalent: Yes; Marriage: Not Yet

The election results in Maine and Washington state send a discouraging message: marriage-equivalent domestic partnership registration appears reliably sound, but full and equal marriage is not yet within reach in many jurisdictions. In both instances the state legislatures had enacted favorable laws, but they were subject to a “popular” vote because of an initiative campaign. On election day domestic partnership was affirmed in Washington while marriage was defeated in Maine. While the political dynamics of each state differs, the trend seems pretty clear to me. Moreover, this sort of compromise is consistent with what is happening in other states, including California.

Maine still has a “marriage-light” domestic partnership registration that offers some, but not all of the benefits of marriage, but it is unclear if Maine will recognize civil unions or marriages entered into in other states. Similar non-recognition problems are arising in many of the marriage-equivalent states, although California recently enacted legislation that provides full recognition for our-of-state marriages.

The main challenge for couples living in these states is figuring out whether to sign up for the marriage-equivalent (in Washington) or marriage-light (in Maine) registration , get married out of state, or rely solely on private contracts and estate planning documents — or all of the above. Moreover, many of the tax and benefits problems that plague so many of the marriage-equivalent situations apply to couples living in Maine and Washington. Making It Legal provides a useful guide through this difficult decision-making process, and we urge couples to carry on despite the disappointing political news, to make sure that their own personal affairs are still in good legal order.

Regional Movements Towards Marriage Equality

I recently spent a week lecturing and meeting with lawyers and financial planners in Boston, New York, Baltimore, Philadelphia, and Washington D.C., and it is evident that the evolving legal protections for same-sex couples are especially complicated in these multi-state regions.  In Massachusetts, the key issue is whether or not all out-of-state partnerships and civil unions will be fully recognized, as equivalent to legally-recognized marriages.  In New York, out-of-state marriages are being recognized in most instances, though in some arenas (probate and tax regulation, most notably) there is no clear legal guidance, and it is remains unclear if civil unions or domestic partnerships will be recognized as marriage-equivalents.

An even more dynamic landscape is emerging in the multi-state region of Maryland, D.C., Virginia, Delaware and New Jersey.   The District of Columbia grants domestic partnership status and recognizes out-of-state marriages for “state-law” purposes, but cannot offer federal recognition at this time — and may or may not authorize marriages to take place there.  Not surprisingly, there are couples who work in D.C., live in Virginia, and own property in Maryland — and it is going to take many years for the precise legal rules to be developed.  Maryland’s activists are hoping that their Attorney General will issue a ruling extending recognition to out-of-state marriages and partnerships, but it remains uncertain when, or even if this will happen.

Couples in these regions need to be especially careful in making decisions about marrying or registering, and when making decisions about parentage, property acquisition, and financial obligations — and they need to make a special effort to seek out legal and tax professionals who have a solid understanding of these legal complexities!