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...

Hot Mid-Summer Action! (or something like it)

Custody and Dollars

In a somewhat troubling decision, the Illinois Appellate Court has reversed a trial court and ordered that a "move-away" be permitted, where the finding that re-location was in the child's best interest was built on the economic benefit Mom  (the moving parent) would receive when she married her fiance. 
  
 L.C. has two parents who are too poor to support him. His mother, a part-time   waitress,  receives child support in the amount of $67 bimonthly from his father, who, it appears, lives in a basement room of his mother’s and stepfather’s house.   We hasten to add that there is no correlation between money and human worth and that we do not intend the least denigration of either parent. Nevertheless, such economic hardship is not to be taken lightly. Poverty can be grim and corrosive, and social mobility in the United States is not what it used to be. We do not mean to subscribe to an iron-clad determinism, but the opportunities L.C. has during his childhood probably will determine the opportunities he has for the rest of his life.
 .....
 All in all, it strikes us as unfair to L.C. to jeopardize his good fortune by diminishing the means by which [would-be step-father] can help him materially.  

Since Illinois applies a substantially higher threshold requirement in out-of-state relocation cases for the "moving away" parent than California applies, it's not clear that the result would have ultimately have been different in California.  The "economic realities" of the case were such, however, as to demand that the court disclaim doing exactly what they were, ultimately, doing, which was tying the court's custody decision to the as-yet-unrealized marriageability of Mom.


Same-Sex Marriage Dust-Up Continues

Meanwhile, the dust on same-sex marriage continues to swirl around local courthouses, and city halls (or wherever they issue marriage licenses these days).  An Ohio Federal court seems poised to determine that whether or not Ohio is required to provide same-sex marriage, it cannot refuse to recognize same-sex marriages contracted in states in which such marriages are authorized, and in Kentucky Federal court, a suit has now been filed by a pair of same-sex spouses and adoptive parents, challenging that state's refusal to recognize the marriage, and to permit the Kentucky adoption to proceed as an adoption by a married couple.

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.

Same-Sex Marriage/Partnerships in Scotland?

There's a bill pending.   Thanks and a tip of the tam o' shanter (or is it a kippeh?) to Howard Friedman at Religion Clause.

An Ad Hoc Fix of the Interstate Same-Sex Divorce Problem

has now been signed into law.

Same-Sex Marriage: The Dominoes Falling?

In the wake of the Iowa's Supreme Court's ruling, noted below, two somewhat less surprising developments:

In Vermont, the state legislature overrode a veto by the governor of that state's same-sex-marriage legislation;

and

in Washington D.C. , the Council, the city's governing body, has voted to recognize same-sex marriages contracted in other states and countries.

Iowa Supreme Court Finds Limitation of Marriage to Opposite-Sex Couples Unconstitutional

. . . or at least, under the Iowa Constitution. Those who thought that this idea was confined to the "loony Left Coast": here's the opinion, care of, and thanks to, Howard Bashman's "How Appealing".

Also, perhaps less surprisingly, Sweden has now legalized same-sex marriage.

Off and Running (at the mouth)

Herewith will begin all the news, thoughts, rumination and ranting about:

1. California family law,
2. family law, and why we have it;
   
3. law in general in this man's United States, and
4. pretty much anything else which crosses my radar

that you choose to read.

Some of the axes which will be ground, and idees about which I may be fixe * will likely include:

• Why do people get married? Why do they think they're getting married? Why should the state (both in the poli sci sense, and specifically the Golden State) be involved?
• Should it be harder to get married, and easier to get divorced?
• More people in California "go to court" about their family issues than for anything else besides traffic tickets. The California family court system, once the model for the rest of the country, is slowly being reduced to complete gridlock/system crash/meltdown. How do we make the family court system work better than it does? Why has no politician in recent memory won elective office on the campaign promise: "I'll make the family law courts work better, even if we have to spend money to do it!"?
• Why do we let folks who can't keep themselves out of jail, support themselves, or get and maintain a driver's license, raise kids, even their own? If we, as a society, think this is OK, how do we keep these folks from messing up their kids? Should we?
• Is raising a child to be a good citizen more important than raising him/her to be a good Christian/Muslim/Jew/Buddhist? Is it more important that children be happy, or successful? Is any of that the government's business?
  

So you know what you're getting. I haven't decided on a comments policy yet, but it'll be along soon, along with guest posters, links both useful and entertaining (to me, at least) and whatever else I cook up.


rfgs

*The version of the posting tool I'm using doesn't seem to feature multinational fonting, so I can make that look appropriately Francophone.