By Kinna Crocker With marriage equality now coming to Illinois and Hawaii, nearly 40% of the country lives in a marriage equality state. But just how federal and state governments will navigate the still-unsettled reality (and consequences) of marriage equality remains an open question. The Supreme Court’s decisions in U.S. v. Windsor and Hollingsworth v. Perry vastly expanded the rights of the LGBT community by mandating same gender married couples have access to the over 1,000 federal rights and benefits (Windsor) associated with marriage. In Windsor, the Court held that Section 3 of the federal Defense of Marriage Act (DOMA), defining marriage as between a man and a woman, violates basic due process and equal protection rights. As a result of the Court’s decision invalidating this definition, the federal government must treat same gender married couples the same as opposite gender married couples for purposes of access to federal benefits. In Perry, the Court held the sponsors of Proposition 8, California’s constitutional ban on same gender marriage, did not have standing to appeal favorable lower court rulings on behalf of the state of California, effectively allowing same gender marriages to resume in California. In August, the Supreme Court denied Proposition 8 sponsors a final petition for review. Although Windsor invalidated Section 3 of DOMA, it left Section 2 in place, which allows states to refuse to recognize same gender marriages performed in other states. Marriages are not judgments or orders, and are therefore not entitled to equality under constitutional principles of full faith and credit among the states. If a same gender couple legally marries in a “marriage equality state” and moves or travels to a “non-equality state” (a state that does not recognize same gender marriage), the marriage has no legal meaning and ceases to exist as a matter of law in the non-equality state. This lack of uniformity in marriage equality among the states creates many questions regarding the availability of federal benefits for same gender married couples. By statute, certain federal benefits are available only if the couple is validly married under the laws of the state in which they reside, the so-called “place of residence” rule. Other federal benefits are available if the couple is considered to be validly married where the marriage license was obtained, the so-called “place of celebration” rule. The “place of celebration” rule is more expansive because the couple can obtain benefits regardless of the laws of the state in which they live. Although President Obama acted swiftly in calling on federal agencies to adopt the “place of celebration” rule to provide uniformity in the treatment of benefits for same gender couples, some federal agencies have not yet declared official positions and some have implemented the “place of residence” rule. For example, the Social Security Administration indicated Social Security benefits are available to same gender married couples if they live in a state that recognizes their legal union (the “place of residence” rule). It is unclear whether Social Security benefits will be available to same gender couples who were married in a marriage equality state and now live in a non-equality state; those applications are currently being held and not processed. Until further notice from the Social Security Administration, some same gender couples are waiting anxiously to learn whether they are entitled to benefits. Alternatively, some federal agencies clearly provide certain benefits to same gender married couples regardless of where they reside, endorsing the “place of celebration” rule. The Department of Defense, for instance, announced its plan to extend spousal and family benefits to same gender spouses of uniformed service members. Because some service members live in or are stationed in non-equality states, the Department of Defense is allowing military personnel ten days of non-chargeable leave for the purpose of traveling to a jurisdiction where same gender marriage is available in order to marry. Although six states have withheld issuing spousal cards to same gender spouses of national guard troops, the others (whether equality states or not) have begun issuing them. The Treasury Department recognizes marriages of same gender couples, regardless of where the couple lives. This adoption of the “place of celebration” rule provides for uniform treatment of all same gender married couples with respect to the filing of federal tax returns. These same gender couples can use the status of "married" on their federal returns and all federal tax provisions where marriage is a factor, including employee benefits, IRA contributions, earned income, child tax credits, and gift and estate taxes, will apply to same gender married couples. The policy explicitly does not apply to couples who are registered as domestic partners or who are in civil unions. Although the “place of celebration” rule provides uniformity in federal filing status for same gender married couples, it highlights the conflict present in non-equality states. Couples living in non-equality states must use the single filing status for state tax returns and the married filing status for federal tax returns. Since the information on federal and state returns is interconnected, these couples expend more in accountant fees in order to file tax returns correctly. The Supreme Court decisions also greatly affect the practice of family law. For example, a bizarre phenomenon now occurs where same gender couples legally married in marriage equality states, but living in non-equality states, are unable to divorce in their state of residence. This unusual circumstance has been dubbed “wedlocked” and is clearly causing problems for many couples. For example, a same gender couple married in California cannot obtain a divorce in Alaska without some creative legal maneuvering. Some Alaska attorneys are requesting annulments of these marriages, since neither marriage nor divorce is available to same gender couples, despite the fact that the elements of annulment are not satisfied. An annulment is objectionable to many same gender couples because, in effect, they are agreeing and representing to the court they were never married. Further, any federal spousal benefits to which those spouses may have been entitled after divorce are lost. For some couples, the state of domicile can resolve property division issues through property laws (although the applicability of community property laws becomes an issue) and custody disputes through laws applicable to unmarried parents. However, these couples are forced to maintain their marital status for federal purposes. The lack of uniformity among the states causes confusion and the potential for married couples to be stuck in their legal relationships with no apparent recourse. In California, the Perry decision grants legal marriage rights to same gender couples in the state. Same gender couples who were married in another state or country do not have to remarry in California to avail themselves of California spousal benefits and protections. Proposition 8 is deemed to be unconstitutional so all marriages validly performed in any marriage equality state or country, are recognized as valid marriages in California. Although parentage presumptions will apply equally to same and opposite gender married couples in California, post-Perry, it remains advisable for a non-biological parent to adopt the children of the marriage or domestic partnership. If LGBT families intend to travel across state lines, or decide to move to a non-equality state, there is no guarantee that parentage would be recognized based solely on the couple’s marital status as defined by a marriage equality state. As compared to a marriage license, a formal adoption order is a stronger legal document to possess should parentage be challenged in a non-equality state or in a state that refuses to recognize any and all rights flowing from a same gender relationship. As the law changes and government agencies provide guidance with respect to rights and responsibilities of individuals in same gender marriages, domestic partnerships and civil unions, it is important for LGBT families to continue to educate themselves. The uncertainty over when we will achieve marriage equality in all 50-states only makes this more imperative. Edited and reprinted with permission from the Bar Journal of the Sonoma County Bar Association.

[caption id="attachment_368" align="alignleft" width="112"] Boyce Hinman[/caption] Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his  Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant. NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website. It’s wonderful that same sex couples can now marry in California. But couples shouldn’t rush into marriage without considering the pluses and minuses. The purpose of this Monday Morning Marriage Memo is to advise you of some of the possible minuses that result from community property law in California. For one thing, if the marriage does not work out, couples would have to go to divorce court to end the marriage. That can be a long, painful, expensive process. And, in such cases, the divorce court could require the spouse with the greater income to pay a substantial amount in alimony each month to the spouse with the lower income. These monthly payments would not be due if the couple had not married in the first place. Many financial advisors suggest you settle who gets what in case of a divorce by signing a pre-nuptial agreement prior to marrying Note: These facts about divorce court and possible alimony payments already apply to registered domestic partners in California. Note: I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of this memo. However, I hope this memo will help you ask the right questions of people who are qualified in these issues. Another issue to consider is the fact that California is a “Community Property” state. That fact has significant consequences for those California residents who marry. For example, under community property law, all the earnings of both spouses during the marriage are considered community property. Each spouse in the marriage has the right to spend all of that income if he or she chooses to do so. And the debts of either spouse can be charged against community property by debtors. Conceivably, if you marry, your spouse could rack up debts that would wipe you out financially. However some property is not considered community property and would be protected in the above situation. The following types of property remain the separate party of one spouse or the other:

• Any property owned separately prior to the marriage,
• Any property inherited or received as a gift during the marriage by either party
• The proceeds from the rent or sale of separate property
• Items and money earned while legally or physically separated from the spouse
• Any items conveyed from one spouse to the other with the intention of designating it as separate property

As noted, a house owned by one spouse prior to the marriage remains his or her separate property. If the marriage sours the spouse who owns the home could evict the one who doesn’t. That would leave the evicted spouse without a place to live, and perhaps without enough income to pay for housing.

[caption id="attachment_368" align="alignleft" width="112"] Boyce Hinman[/caption] Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his  Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant. NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website. It’s wonderful that same sex couples can now marry in California. But couples shouldn’t rush into marriage without considering the pluses and minuses. The purpose of this Monday Morning Marriage Memo is to advise you of some of the possible minuses that result from community property law in California. For one thing, if the marriage does not work out, couples would have to go to divorce court to end the marriage. That can be a long, painful, expensive process. And, in such cases, the divorce court could require the spouse with the greater income to pay a substantial amount in alimony each month to the spouse with the lower income. These monthly payments would not be due if the couple had not married in the first place. Many financial advisors suggest you settle who gets what in case of a divorce by signing a pre-nuptial agreement prior to marrying Note: These facts about divorce court and possible alimony payments already apply to registered domestic partners in California. Note: I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of this memo. However, I hope this memo will help you ask the right questions of people who are qualified in these issues. Another issue to consider is the fact that California is a “Community Property” state. That fact has significant consequences for those California residents who marry. For example, under community property law, all the earnings of both spouses during the marriage are considered community property. Each spouse in the marriage has the right to spend all of that income if he or she chooses to do so. And the debts of either spouse can be charged against community property by debtors. Conceivably, if you marry, your spouse could rack up debts that would wipe you out financially. However some property is not considered community property and would be protected in the above situation. The following types of property remain the separate party of one spouse or the other:

• Any property owned separately prior to the marriage,
• Any property inherited or received as a gift during the marriage by either party
• The proceeds from the rent or sale of separate property
• Items and money earned while legally or physically separated from the spouse
• Any items conveyed from one spouse to the other with the intention of designating it as separate property

As noted, a house owned by one spouse prior to the marriage remains his or her separate property. If the marriage sours the spouse who owns the home could evict the one who doesn’t. That would leave the evicted spouse without a place to live, and perhaps without enough income to pay for housing.

[caption id="attachment_368" align="alignleft" width="112"] Boyce Hinman[/caption] Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his  Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant. NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website. Stephanie Fairyington had an article on Martin Duberman in the September/October issue of The Gay and Lesbian Review. Duberman is one of the major players in the LGBT rights movement. As the article notes, “he has been a formidable intellectual and activist on behalf of the disenfranchised in every corner of society”. Fairyington says that “Duberman is deeply disappointed in the contemporary GLBT movement, noting that, for the past 20 years, the focus has been on marriage equality and repealing Don’t Ask, Don’t Tell.” She added that “his view is that the goal of assimilating runs counter to the Spirit of Stone Wall and Gay Liberation which sought to affirm, rather than minimize, the differences between mainstream and queer culture”. I would respectfully disagree. The drive to end Don’t Ask Don’t tell can be viewed as seeking the right to jobs and economic security. Over the past few years civilian employment has been very hard to find. For many, employment in the armed services has been an available fall back position, a way to put food on the table. Until the overturn of Don’t Ask, Don’t tell this alternative had not been available to LGBT people unless they denied who they really were. The cultures of People of Color are different than what has been the dominant White culture of this nation. And those differences add value to society. But this doesn’t mean they should be denied the right to jobs in the military or to Marry. People like Duberman say there is an essential difference in the relationships that LGBT people form compared to those in straight relationships. They often add that the institution of marriage is corrupt or sexist and LGBT people should not seek to copy it. With respect, I believe the factors that help relationships succeed or fail are basically the same whether the relationship is straight or LGBT. For example, in both situations, good negotiating skills help people successfully negotiate their differences. But that’s beside the point. Economic security is a valid reason for seeking marriage equality. Edith Windsor, who sued to overturn DOMA, had been charged over $600,000 in federal estate taxes when her wife died. That tax was due because the federal government did not recognize her marriage. Once DOMA was overturned she got that money back. That will do a lot to provide her with economic security in her old age. Married people can also qualify for spousal Medicare and Social Security benefits, VA benefits and many other federal benefits that are not available to unmarried couples, or even registered domestic partners. These benefits can do much to provide economic security and peace of mind to married couples. It is worth pursuing marriage equality.