SAME-SEX UNIONS: THE STATE IN THE STATES

    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.

IN CALIFORNIA

    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.

IN THE REST OF THE COUNTRY: LABELS STILL MATTER

   
    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

Same-Sex Marriage Tax Problems (Partially) Eliminated

The President has announced that the Treasury Department will give Federal recognition to same-sex marriages for tax purposes.  It's unclear whether this decision will apply to "civil unions", "registered domestic partnerships", etc.  Stay tuned...

DOMA Donesky! What Does This Mean For "Domestic Partners" and the "Civilly United"?

I'm still digesting the SCOTUS' decisions in the Federal DOMA and California Prop. 8 cases.  The short take-away is that it is probable (though I will never say certain) that the thousand-plus references to the rights/obligations of "spouses",  in Federal laws and regulations, will now include same-sex couples who are "spouses" under the laws of the state in which they contracted a "marriage".   It is not yet clear is whether or not those folks who have a state-recognized relationship which is called something other than "marriage" will fall within that umbrella.

Three More States Vote On Same-Sex Marriage/Domestic Partnerships This Month

Rhode Island, Delaware, and Minnesota.

French Civil Unions: "Marriage Lite"?

There's a reported substantial upswing, in France, of young opposite-sex couples electing to contract "civil unions" instead of marrying. The French 1999 "pacte civil de solidarité" ("civil union") statute was apparently originally enacted, (as with the "civil union" and "domestic partnership" laws of several American states), as a"sort-of-marriage" for same-sex couples, but, as the New York Times reports, as of last year, 95% of the civil unions contracted in France were between mixed-sex couples.

P.S.: My thought, two months after I originally posted this, is that I'd like to know what happened to the marriage rate for the mixed-sex couples of the same age group during this period. Is it possible that having this option available for mixed-sex couples who were reluctant to marry, as the anecdotes suggest, actually increased the number of mixed-sex couples who were willing to make some sort of formal commitment?