Same-Sex Canadian Marriages in Jeopardy? Not Yet.

This morning, reports from Canada caused a ripple of anxiety throughout the United States when a Canadian government attorney put forth the position that Canadian marriages of same-sex couples from places where same-sex marriage is not legal would not be considered valid in Canada, either. The issue arose when a lesbian couple sought a divorce in Canada. Neither of them lived in Canada when they married–one was from Britain and the other from Florida–and the government attorney argued that because the marriage would not be legal in either of those places, it is not legal in Canada, either, and therefore the women could not get a divorce.

Anyone who married in Canada and lives in a non-recognition state should take a deep breath, because your marriage is valid and likely to remain so. As stated in a press release issued by a consortium of LGBT legal groups today, “The position taken by one government lawyer in a divorce is not itself precedential. No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before or during the eight years that same-sex couples have had the freedom to marry in Canada.”

Moreover, Prime Minister Steven Harper insists that his government does not wish to reopen the debate over same-sex marriage, and he was apparently unaware of the argument made by the government attorney. However, the government is also intervening in an Ontario case by arguing that two Canadian men who entered into a same-sex civil partnership in the UK, a status which is legally equivalent to marriage, also can’t get a divorce in Canada because they are not legally married there.

Not having marriage equality sure does make things complicated. There will surely be more information forthcoming on this story, but for now, if you have a Canadian marriage, you are still married.

Heartbreaking Will Contest for Widow of Chicago Lesbian

The National Center for Lesbian Rights has a new client, Jennifer Tobits. Jennifer’s case is tragic, symbolic, and legally significant. It’s tragic in its human dimensions–a grieving widow is forced to contend with her late partner’s homophobic and heartless family and their efforts to erase her legal marriage. It’s symbolic in its demonstration of why same-sex couples need legal protections and how DOMA is still being used to challenge our legal relationships–and in a way, of how the more things change, the more they stay the same. (Remember Sharon Kowalski and Karen Thompson, anyone? That was more than 20 years ago.) And it’s legally significant in that it requires a court to decide whether DOMA applies to a private company as well as whether the couple’s Canadian marriage will be recognized in Illinois. Read this great post by Professor Nan Hunter about the legal details, and this blog by Kate Kendell providing some context for the case.

“I” is for Intersex

Today’s post is to let you know about a non-profit organization doing important legal advocacy work on behalf of a group that many people know only as the “I” on the end of “LGBTQI.” Just for the record, that stands for lesbian, gay, bisexual, transgendered, and questioning—and the “I” is for intersex.

A person born with an intersex condition or DSD (differences of sex development) may have genitals that don’t look like most people’s; the person’s sex chromosomes or reproductive organs may not fit medical expectations. Sometimes, doctors aren’t sure whether an intersex baby is a boy or a girl, leaving the doctor and the parents confused about what to do.

Unfortunately, all too often the response is to perform irreversible “normalizing” surgeries, based on a belief that “correcting” the child’s gender assignment will benefit the child—and sometimes on a belief that the gender assignment will prevent the child from growing up to be gay or lesbian. In fact, these unnecessary and nonconsensual surgeries cause enormous harm to children.

Advocates for Informed Choice (AIC) is the only organization in the U.S. to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions. In the short time AIC has existed, the organization has:

  • · Published extensively on intersex and the law
  • · Established ongoing advisory relationships with treatment teams at leading hospitals and universities.
  • · Facilitated apologies from leading hospitals to an intersex adult for harm resulting from childhood medical care.
  • · Advised parents about their rights on legal issues ranging from medical malpractice to school bullying.
  • · Catalyzed three federal investigations of human research involving intersex children.

I’m sharing this information because I’m appalled by the current standard of care for intersex children and impressed by AIC’s tactics and plans for changing it. I want people to notice, support, and spread the word about this important legal work on behalf of a ridiculously underserved part of our community.


Same-Sex Marriage in New York, Just in Time for Pride Weekend

The annual LGBT Pride Celebration in New York City will be a festive one this year in the wake of Friday’s passage of a same-sex marriage bill in the Empire State.  New York, the country’s most populous state, joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia in offering full marriage equality to same-sex couples. New York’s  addition to this list doubles the number of American citizens living in marriage equality states.

Governor Mario Cuomo called New York “a beacon for social justice” after succeeding at bringing together Republican donors and reluctant lawmakers to gather the votes needed to pass the bill in a Republican-controlled Senate, ending up with a 33-29 vote.  A number of Republican lawmakers changed their votes from the last time New York voted on this issue in 2009, including state senator Roy McDonald, who resisted pressure from his party and did what he called, in a strong statement, “the right thing.”

New York has no residency requirement to get a marriage license . New Yorkers, and any same-sex couple traveling to New York, can marry there beginning July 24. That’s less than a month from now, so good luck to the wedding planners.

Financial Roundup: Bankruptcy and Taxes and Benefits, Oh My!

There really is never a dull moment for same-sex couples trying to go about their financial lives just like everybody else. In some cases, that’s working out okay. In others, not so much.

First, bankruptcy. In a surprising move on Monday, June 13, 19 of the 24 judges in the Central District of California bankruptcy court Los Angeles signed on to a decision holding that the federal Defense of Marriage Act is unconstitutional. The opinion allows Gene Balas and Carlos Morales, who were legally married in California in 2008 , to file jointly for Chapter 13 bankruptcy protection to deal with their joint creditors after dealing with a prolonged period of unemployment and illness. This decision is significant because it gives added power to two existing decisions out of the Massachusetts federal court (Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Public Health), and because of the number of judges that signed on. The case is only binding in the this court’s jurisdiction, but it will have impact well beyond that. For more about the bankruptcy aspects, see Nolo’s Bankruptcy Blog.

Next, taxes. If it’s surprising to find a passel of bankruptcy judges going to bat for a gay couple, it’s even more shocking to find the Internal Revenue Service apologizing to them. But that’s exactly what happened in California, where approximately 300 same-sex couple taxpayers who filed joint tax returns listing their status as married received letters from the IRS rejecting their returns because the return included “income or tax liability for more than one taxpayer, other than husband and wife.” Under California law, same-sex couples who are married or registered domestic partners must file as married, so these letters were entirely inappropriate, as the IRS acknowledged in its followup letters saying the original notices were sent in error. As Professor Pat Cain notes in her blog post on this subject, the problem isn’t really the IRS. It’s the Defense of Marriage Act. Yes, that one that the bankruptcy judges declared unconstitutional (see above), a belief shared by President Obama and his Justice Department. And me.

Last, benefits. Another unfair aspect of DOMA is unequal taxation of employee benefits. Thousands of gay and lesbian employees provide domestic partner or spousal health insurance coverage to a partner through their jobs. Many have done so for years, and each year, those employees have paid taxes on the value of those benefits, because the Internal Revenue Service, as an agency of the federal government, does not recognize same-sex marriages or marriage-equivalent relationships like domestic partnership or civil unions. Employers also take a hit in the form of additional payroll taxes—or face problems if they don’t know about the discriminatory rule. Guess what? None of this happens when opposite-sex spouses are in the same situation. Now, a bipartisan bill recently introduced in Congress would end that practice and treat health care benefits the same for same-sex and opposite-sex married couples.  The bill appears to be in part a result of pressure from businesses, which find the differential treatment inconsistent with their desire to attract the best employees by providing competitive benefits. Let’s hope it makes its way through the legislative process quickly and that this discriminatory practice ends soon.

Tax Time Extra Complicated for Same-Sex Couples

Filing tax returns is not that much fun for anyone, except maybe General Electric. But for same-sex couples, tax time is fraught with complications unique to relationships that are recognized by the state but not by the IRS–except sometimes. Confused yet? You should be.

In general, the IRS doesn’t recognize same-sex marriages or marriage-equivalent domestic partnerships or civil unions for tax purposes. Same-sex spouses and registered partners must file their federal tax returns as single, even if they are allowed (or required) to file as married or partnered in the state in which they live. This results in many couples preparing dummy federal returns in order to have accurate information to put on their state returns–in other words, it results in them paying an expert tax preparer to run the numbers for a state return and a federal return that aren’t coordinated.

For married or registered same-sex couples living in the three community property states that recognize same-sex relationships–California, Nevada, and Washington–things just got even more complicated with the IRS’s decision that these folks must follow their states’ community property rules relating to income on their federal tax returns, while still filing the federal return as single, separate taxpayers.

This means that the couple must add up their combined incomes, divide the resulting amount in half, and each report half of the income on their federal returns. For many people this is good news, as the income averaging will mean that a higher earner might fall into a lower tax bracket. Experts say that most couples will benefit or break even, though couples who both earn close to the same amount won’t benefit and will pay more for tax preparation. However, couples who do benefit get an extra break–they can go back and amend their returns as far back as 2007 using the community property numbers. For some, this will create quite a windfall.

Most same-sex couples in community property states will need professional tax help–even self-help software Turbo-Tax recommends seeking personalized advice rather than using its tax program.

USCIS Hold Ends As Quickly As It Began

Just two days ago, I blogged about an announcement from the U.S. Citizenship and Immigration Services (USCIS) that it would put on hold decisions about cases involving same-sex binational couples–a seeming big step away from the discriminatory policies based on the Defense of Marriage Act (DOMA) that have previously dominated the agency’s decision-making. Here’s an informative Daily Beast story about the hold.

It didn’t exactly seem too good to be true–that status would be reserved for an actual repeal of DOMA. However, the hold was apparently too good for something, and it has already been lifted. USCIS announced on March 30, 2011, through press secretary Christopher S. Bentley, that, “The guidance we were awaiting … was received last night, so the hold is over,” and “we’re back to adjudicating cases as we always have.” Bentley went on to say that USCIS would continue to “enforce the law,” in other words refuse to recognize same-sex marriages for purposes of approving green card applications.

Is this the last word on the subject? Not necessarily. With the Justice Department’s new position that DOMA is unconstitutional, plans by members of Congress to seek repeal of DOMA, and various cases challenging DOMA winding their way through the U.S. court system, it’s likely that the Supreme Court will rule on DOMA’s constitutionality within the next few years–which will of course affect green card applications for married same-sex partners.


USCIS Puts Same-Sex Partner Green Card Cases on Hold

Responding to President Obama’s recent statement regarding the Defense of Marriage Act (DOMA), the United States Customs and Immigration Service (USCIS) has asked its field offices to stop proceedings in any cases involving foreign partners married to same-sex spouses.  In other words, the USCIS will hold off on denying green cards in same-sex marriage cases, while awaiting further word on the status of DOMA.

In February, the Department of Justice announced it would stop defending Section 3 of DOMA in court. Section 3 is the part of DOMA that stands the way of a citizen sponsoring a same-sex spouse for a green card.
Last week, a New York immigration judge suspended the deportation of a same-sex spouse from Argentina so that the women could petition for recognition of their marriage under the new administration policy.

Discrimination by Complication: Same-Sex Parents Must Do More

Opposite-sex couples with children don’t think much about what would happen if one of them were unable to care for the kids–obviously, the other parent would step in. Likewise, married couples should make wills, but even if they don’t, a surviving spouse gets most or all of the deceased spouse’s property.

For same-sex couples living in states where neither marriage equality nor relationship recognition (in the form of domestic partnerships or civil unions) has arrived, none of the above is necessarily true. This New York Times article describes the reality for one lesbian couple raising their children in Michigan.