Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Before the Maryland attorney general said that the state would immediately begin recognizing out-of-state gay marriages, insurance companies doing business in Maryland already had to give coverage to domestic partners of employees in the state if their employers requested it.

The Maryland Insurance Administration is investigating whether it now needs to update regulations about insurance sales in its state:

If the attorney general's interpretation of state law stands, then gay couples married out of state will now be treated as spouses in Maryland. The insurance administration will likely add that insurance companies must provide insurance to same-sex spouses, just as it already requires providing to same-sex domestic partners.

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Unless they live in a gay marriage state, same-sex couples don't have access to marriage laws that say how property and income brought into a relationship is treated. Instead, partners need to come up with a system to handle their finances.

Here are the most popular ways and their consequences:

As a Traditional Marriage

Under this model, couples have two sets of property:

1. Property  from before the relationship: Each person keeps their separate ownership of what they had from before.
2. Property from during the relationship: The couple treats anything that either person earns or acquires as belonging to both partners equally. Income and salaries, as well as expenses and debt, are all owned jointly. If the couple ever breaks up, they divide everything from during the relationship equally.

By Financial Ability

This model is for when couples want each other to contribute based on their ability to pay. Sometimes one partner makes substantially more than the other, and this model reflects that it would be too hard for the lower-income partner to pay just as much as the higher-income earner.

For example, let's say one woman earns $100,000 a year, and her partner earns $50,000. They would still share joint banking accounts from which they'd pay all their bills, but the higher income earner would contribute two-thirds of the joint account, while her partner would only need to contribute one-third of the amount.

As a Business

Under this model, the couple agrees to split some things, but keep other things separate. They would still open joint banking accounts and have joint credit cards, but they'd only use them for certain things.  For example, two men living in a house together might share a bank account to which they contribute a small amount for household expenses. They might also have a joint credit account they use for trips or for things they know they'll share.

Banks can help set up this model. They can label accounts by purpose and assign different shares of ownership.

As Separate Individuals

Finally, couples can agree to own everything--income, debts, property, investments--completely separately. They'll have no joint bank accounts or credit cards. Both small expenses like food and gas and large ones like mortgage payments are owed and paid for by each person individually.

So who pays what? It's up to each couple to come up with a system, which can range from complicated (a weekly spreadsheet detailing how much each person has paid) to simple ("I'll pay for the movie if you get dinner.")

Which way do you think is best? What's worked for you?

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The Maryland attorney general today said that the state should recognize gay marriages performed in other states. Here's the text [PDF] of the attorney general's opinion.

This would make Maryland and New York the only states that don't allow gay marriage themselves, but do recognize ones from states where gay marriage is legal.

But be careful what you read about this. The Lambda Legal press release, for example, says that Maryland has now joined New York in recognizing out of state gay marriages, but the attorney general's opinion has made no new law.

In fact, the opinion suggests three ways Maryland could implement this recognition:

Such marriages may be recognized in several ways. First, legislation enacted by the General Assembly could provide for recognition of out-of-state same-sex marriages generally, or for particular purposes. Second, in the absence of legislation, the Court of Appeals, applying common law choice-of-law principles, could decide that such marriages will be recognized in Maryland, either generally or in particular circumstances. Finally, a State agency may also address the recognition of out-of-state marriages on particular matters within that agency's jurisdiction, so long as the agency's action is consistent with any relevant statutes and court decisions, including federal laws that may govern the agency's activities.

I also found interesting the attorney general's list of how the marital status of gay couples married in a different state is important to the Maryland government. He said:

1. The couple could move to Maryland for employment.
2. They might take a vacation in Maryland or stop there while traveling to another state.
3. They might live in Maryland, go to another state to get married, and then return.
4. Without ever stepping foot in Maryland, their marital status might be legally significant for other people that do live there.

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A lot of times people assume that all conservatives are against gay rights and all liberals are for them.

A federal gay marriage case is risky, they say, because the Supreme Court has a conservative majority. Or, as they said before, Maine voters will uphold gay marriage because it's such a liberal state. Turned out that wasn't the case.

Political ideologies don't necessarily predict support for gay rights, as last week's Adar v. Smith  decision shows. The Fifth Circuit Court of Appeals, arguably the most conservative circuit after the Fourth, said that Louisiana must recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Conservatives tend to put precedent over public policy, and that's what the court did here. While Louisiana might have its own public policy reasons for not allowing gay adoptions, the court said that the full faith and credit clause requires the state to recognize out-of-state ones.

That's why gay rights cases relying on more conservatives arguments are more promising than ones that rely on public policy reasons. Take, for example, Gill v. OPM, the Massachusetts case asserting that marriage rights should be left up to the states, a typical conservative argument.

Especially if the Supreme Court keeps its historically conservative bent, arguments like these may have the most success in recognizing more rights for same sex couples.

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I talked about the key to a successful marriage earlier this week at my other blog, the Atlanta Divorce Law Blog. But I think the advice applies just as well to same-sex relationships.

I linked to an editorial by Leah Ward Sears, who served as a Georgia divorce judge for 26 years. She said that more than anything else, it's plain old commitment that makes a marriage last:

There is a lot of conventional wisdom on the key to a successful marriage. Marry someone you love. Marry someone who makes you laugh. Marry someone who can put up with you. Marry someone who is financially secure. Marry someone with similar values, common interests and a good education. All are good advice. But after years of thinking about and studying this country’s divorce epidemic, I now believe that the key to most successful marriages is when the couple is more committed to the health and longevity of the marriage than to each other. That way, during those times when they can’t stand each other — and those times surely will come, as no one is perfect— they have something to fall back on and remain committed to.

Leah's advice is particularly important for gay couples who can't get married. The marriage document is a tangible representation of a commitment to the other person. Most same-sex couples instead are stuck in the boyfriend/girlfriend/partner stage where the commitment doesn't have a similar tangible representation.

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The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn't get an updated birth certificate from Louisiana. Back then, Louisiana said it didn't have to recognize adoptions from other states that it wouldn't perform itself.

The Court today said otherwise. Here's a PDF of the unanimous opinion in favor of the gay couple.

Why is This Case Important?

Because it's about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don't allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith--that they shouldn't have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here's why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

• First, it recognized that the Supreme Court has said that there are no "public policy exceptions" to the clause.
• Second, it disagreed with Louisiana's argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana's policy with New York's.
• Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.

So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn't face is DOMA, a federal allow that says specifically that states don't have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won't get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

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States Where Gay Marriage Is Allowed:

• Massachusetts (2004)
• Connecticut (2008)
• Iowa (2009)
• Vermont (2009)
• New Hampshire (2010)

Special Places:

• Washington, D.C. (Coming March 2010)
• California (only if the marriage happened before Proposition 8 was passed)

States Where Gay Marriages From Other Places Are Recognized:

• New York
• California (only if the marriage happened before Proposition 8 was passed)

For a more graphical representation of all this information, check out this interactive map by the Wall Street Journal.

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Gay people make up 1-4% of the population in most cities, but are more concentrated [PDF] in metropolitan areas.

Professor Gary Gates of the UCLA Williams Institute compiled the following data [PDF] in 2006 for major cities:

Highest Number of Same Sex Couples:

1. New York, NY: 47,000
2. Los Angeles, CA: 12,000
3. Chicago, IL: 10,000

Highest Concentration of Gay People:

1. San Francisco, CA: 15.4%
2. Seattle, WA: 12.9%
3. Atlanta, GA: 12.8%

Lowest Concentration of Gay People:

1. Detroit, MI: 1.5%
2. Richmond, VA: 3.4%
3. Cleveland, OH and Memphis, TN: 3.5%

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With the 2010 Census coming up, it's good to know the most recent data on the number of same sex couples in the United States. Here's the information from the 2000 Census:

• Total Number of Gay Couples: 594,391
• Number of People in a Couple: 1.2 Million
• State With the Most Couples: California (92,138)
• State With the Least Couples: North Dakota (703)
• Highest Concentration of Gay Couple (% of all couples): Washington, D.C. (1.29%)
• Lowest Concentration of Gay Couples (% of all couples): North and South Dakota (.22%)

Keep in mind that the 2000 census did not count gay marriages directly, so the data is based on how people reported their household. It counted households with 2 members of the same sex that are unrelated. It'll be interesting to see how much these numbers have changed in ten years.

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The Georgia and Utah governors both proclaimed this week as Marriage Week, citing the benefits that marriage brings society.

However, they excluded gay couples from proclamations. For example, the Georgia governor referred to "the relationship between a husband and a wife." The Utah governor instead talked about the binding of "men and women together in a network of affection, mutual aid, and obligation."

Neither Georgia nor Utah recognize gay marriage, so it made sense for them to leave out gay couples from the proclamations. Still, using gender neutral terms instead could have had the same effect without specifically excluding gay couples from recognition.

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A couple people asked me this week what the latest data is on public support for gay marriage. The last poll taken was an NBC News/Wall Street Journal poll conducted from October 22-25 of 2009.

People were asked, ""Do you favor or oppose allowing gay and lesbian couples to enter into same-sex marriages?"

The results:

• Strongly Favor: 26%
• Somewhat Favor: 15%

• Somewhat Oppose: 9%
• Strongly Oppose: 40%

• Depends: 3%
• Unsure: 7%

Check out my earlier post for more gay marriage facts and statistics.

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News broke earlier this week that Chief U.S. District Judge Vaughn Walker, who presided over the Proposition 8 trial, is gay. David Lat over at Above the Law asked whether it matters:

It does.

It's true that the judge had to be either gay or straight--and bias from either orientation would have threatened to color his judgment in crafting the trial record. Just like in any case, it's the judge's job to minimize personal biases.

Still, even if the judge's ruling doesn't affect the ruling in this particular case, it might alter how the public will view the trial. And one of the most important aspects of this trial was publicizing the effect of marriage discrimination and the lack of evidence in how gay marriage harms straight marriage.

That's why the debate surrounding the YouTube broadcasting was such a big deal--public opinion of gay marriage was at stake.

Said one commenter on Above the Law,

The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.

In this way, the Proposition 8 trial now risks lowering, or leaving the same, public support for gay marriage where before it may have increased it.

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Came across a Schoolhouse Rock-type video about how the Supreme Court banned public broadcast of the Proposition 8 trial on YouTube.

It at least has a catchy jingle. Note that while the video says that California is defending Proposition 8, both Governor Schwarzenegger and the attorney general have declined to defend the law. Instead, various political organizations took up the defense.

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Some people ask how it could be constitutional to ban gay marriage when its clearly discriminatory. The answer is that whether a law is constitutional or not doesn't depend on whether or not it discriminates. Instead, it's all about whether the government has a good enough reason for making the law.

For example, often times courts say that affirmative action laws (such as public school policies) are constitutional even though they discriminate. In those cases, courts say that the government has a good enough reason (correcting effects of past discrimination) to discriminate. Certainly, affirmative action negatively affects those races not benefited by the rules, but the laws are nevertheless legal.

That's why in the California Proposition 8 trial, the fight isn't about whether the the law discriminates or even whether the law hurts gay couples wanting to get married. Instead, it's about whether California has a good enough reason to have the law.

What does "good enough" mean?

It depends. There's 3 versions of "good enough" that the district court can use. Which of these the court should use is one of the things that the lawyers argue about. Auto-straddle, a blog covering lesbian legal issues, explains:

With strict scrutiny, Prop 8 lawyers have to demonstrate that the law is narrowly tailored to further a compelling governmental purpose.

With intermediate scrutiny, Prop 8 lawyers have to demonstrate that the law is substantially related to an important governmental purpose.

With just rational basis, [Prop 8 lawyers have] to demonstrate that the law is rationally related to any legitimate governmental purpose.

Strict scrutiny is the hardest one to show, while rational basis is the easiest.

What's a governmental purpose?

Let's take the argument that the reason to ban gay marriage is to promote families that can naturally procreate. If the court chooses the "strict scrutiny" version of "good enough," then lawyers supporting the gay marriage ban would need to show two things:

1. Proposition 8 does very little else except promote naturally procreating families and also actually does promote these kind of families (narrowly tailored)
2. Promoting naturally procreating families is a compelling governmental purpose.

But if the court chooses the "rational basis" version, then the side against gay marriage only needs to show the following:

1. Proposition 8 is rationally related to promoting naturally procreating families. So, it wouldn't have to actually be effective and it could have lots of side effects. They'd just need to make some rational argument that it's related.
2. Promoting naturally procreating families is a legitimate governmental purpose. Note the difference here: the purpose only has to be legitimate--it doesn't have to be a particularly good purpose, and especially not a compelling one.

Putting It All Together

First the court needs to decide which version of "good enough" to use. Once it does, it'll look at each reason for having the gay marriage ban and determine whether it meets that definition of "good enough."

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Opponents of gay marriage often say that gay marriage should be disallowed because children do better with opposite sex parents. But a new study says otherwise. Sharon Jayson reported last week in the USA Today about research by University of Southern California sociologists that showed that kids with same sex parents do just as well as kids with opposite sex parents.

Timothy Biblarz, one of the two researchers, explained:

Children being raised by same-gender parents, on most all of the measures that we care about, self-esteem, school performance, social adjustment and so on, seem to be doing just fine and, in most cases, are statistically indistinguishable from kids raised by married moms and dads on these measures.

This isn't the first study to claim that kids with same sex parents do just as well as kids with opposite sex ones. This past September a multi-state study reached the same conclusion.

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No matter which way the judge rules in the California Proposition 8 trial, the case will almost certainly be appealed to the 9th Circuit Court of Appeals, and then the Supreme Court.

How would the Supreme Court rule? It's hard to predict because historic political majorities of the Court wouldn't apply.

It's not so simple as dividing up the Court into conservatives and liberals. First let's look at the traditional conservative majority. Usually it falls into two camps:

• Libertarians: "People can do whatever they want--as long as it doesn't cost anything, we don't care."
• Traditional right: "If it's not moral, you can't do it."

When it comes to gay marriage, these two camps will disagree. Libiterians will say that as long as gay couples getting married doesn't cost anything and doesn't affect other people, then it's fine.  But the traditional right won't like gay marriage because they don't think it's moral.

But the historic liberal side doesn't apply to the gay marriage debate either:

• Traditional left: "The government can't restrict personal freedom."
• Liberal subgroup: "The government should prevent people from harming themselves through laws and regulation."

The traditional left will support gay marriage, because they see marriage as a personal freedom and don't think the government should interfere. But a subgroup of liberals will support banning gay marriage if there's any reason that it's bad for society. Or, they'll want to ban gay marriage if they think gay sex is particularly risky (an argument that has much rarer than it was during the AIDS crisis).

So predicting how the Supreme Court would rule on gay marriage isn't as simple as counting the number of conservatives and liberals on the Court. A perfect example lies in the lead attorney for the side in the trial supporting gay marriage: Ted Olsen, a traditional conservative and President Bush's former solicitor general. See his article in a recent Newsweek about the conservative case for gay marriage.

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Statistics and facts for same sex marriage can be hard to find. Gay marriage is in the news a lot, but a lot of people just want unbiased information before deciding how they feel about it.

Here's what you need to know:

Support for Gay Marriage

Latest statistics:

• 41% support gay marriage
• 49% oppose it.
• 10% say it depends or are unsure.

Historical trend of increasing support:

• Public support for gay marriage has increased about 1% annually over the last two decades.
• Statisticians predict a majority of Americans will support gay marriage by 2012.

Marriage Laws

Where Gay Marriage is Legal:

• Massachusetts (2004)
• Connecticut (2008)
• Iowa (2009)
• Vermont (2009)
• New Hampshire (2010)
• Washington, D.C. (Coming in March 2010)

Where Gay Marriage From Other Places is Recognized:

• New York
• California (but only if you got married before Proposition 8 passed)

Demographics

The most recent census did not count gay marriages directly, so the following are estimates based on how people reported their household. It counts households with 2 members of the same sex that are unrelated.

• Total Number of Gay Couples: 594,391
• Number of People in a Couple: 1.2 Million
• State With the Most Couples: California (92,138)
• State With the Least Couples: North Dakota (703)
• Highest Concentration of Gay Couple (% of all couples): Washington, D.C. (1.29%)
• Lowest Concentration of Gay Couples (% of all couples): North and South Dakota (.22%)

Gay people make up 1-4% of the population in most cities, but are more concentrated [PDF] in metropolitan areas.

Highest Number of Same Sex Couples:

1. New York, NY: 47,000
2. Los Angeles, CA: 12,000
3. Chicago, IL: 10,000

Highest Concentration of Gay People:

1. San Francisco, CA: 15.4%
2. Seattle, WA: 12.9%
3. Atlanta, GA: 12.8%

Lowest Concentration of Gay People:

1. Detroit, MI: 1.5%
2. Richmond, VA: 3.4%
3. Cleveland, OH and Memphis, TN: 3.5%

Resources

State by State Map of Gay Marriage Laws. The Wall Street Journal compiled information from the Human Rights Campaign, the National Conference of State Legislatures, and other sources, to compile a user-friendly interactive map.

Text of State Constitutional Amendments Targeting Same-Sex Marriage. If you're one of those people who wants to read the laws themselves to see how exactly gay marriage is outlawed, check out this collection put together by Lambda Legal.

Year 2000 Census Information on Same Sex Households. Expect these numbers to increase in 2010 more than other types of families. The 2010 census will be the first to let gay couples report as married.

Want More Info?

Subscribe to the blog or become a fan on facebook!

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The Perry v. Schwarzenegger trial was going to be recorded and uploaded to YouTube, but the Supreme Court temporarily prevented that until Wednesday so that it can consider the issue in more depth. Once it does, how will it rule?

To begin with, Judge Walker no longer wants to upload recorded videos of the trial to YouTube; instead, he wants to have a link to the videos placed directly on the court's website.

It comes down to who's supposed to make public broadcasting rules for the federal courts:

• The side wanting to prevent broadcasting of the trial says it should be the U.S. Judicial Conference, which writes the general policies for federal courts.

• The side wanting to allow broadcasting says it should be the Ninth Circuit Judicial Council, which makes policy for the Ninth Circuit, where the trial is being held.

Lyle Denniston suggested over at SCOTUSblog, which tracks Supreme Court developments, that the Supreme Court might even decide that it shouldn't meddle into the trial procedures of federal district courts:

This exchange apparently signals that, when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV “pilot project” to apply to the Prop. 8 trial. And the Justices may also have to consider the scope of their own “supervisory power” over a question of trial procedure in the federal District Courts.

Both sides filed briefs with the Court last night and this morning, so I expect a ruling by tomorrow.

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I've gotten a couple of emails asking where to get just an unbiased summary, but not a full transcript, of what happened at the Perry trial yesterday. This makes sense, as a lot people are busy and don't have time to read full transcript, but still want an unbiased recap.

Shannon Minter, Legal Director of the National Center for Lesbian Rights, provided just that at Pam's House Blend. Here's an excerpt:

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Photo of NCLR's Legal Director Shannon MinterTed Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff's first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Head over to Pam's House Blend for the full summary.

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Although I'll be covering the Perry v. Schwarzenneger trial here, check out these other great resources for commentary and trial recaps:

Proposition 8 and the Right to Marry. A law librarian with over 20 years experience, Michael Ginsborg has blogged on the topic since 2008 and always links to the best posts and news around the internet concerning gay marriage rights and California's Proposition 8.

Law Dork. Chris Geidner's insights on LGBT legal developments are always spot on. He helpfully provides links to trial transcripts and court orders as well.

Prop 8 Trial Tracker. A project by the Courage Campaign, a California marriage equality group, this blog is run by by longtime bloggers Robert Cruickshank and Julia Rosen. Check out their recent post that goes over the names and players in the trial.

Pam's House Blend. While definitely a political site, multiple contributors and readers insure that breaking news is always reported here very quickly. If you want to be the first to read about recent developments, this is the place to go. In fact, they've just added a few things to their blog to make finding breaking news about the trial even easier.

Wall Street Journal Law Blog. If you're looking for in depth legal analysis of the trial, you can't beat the WSJ Law Blog. Don't expect a post on the trial more often than once a day, but do expect for it to be engaging and to come with insightful comments by readers.

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The Supreme Court this morning temporarily stopped the uploading of the Perry v. Schwarzenegger trial to YouTube. The trial will still begin today--it just won't be broadcasted or recorded.

Defenders of the Proposition 8 ban had said that the broadcasting shouldn't be allowed because it would intimidate witnesses at the trial. The Supreme Court said that it needs time to consider the arguments before making deciding whether the court hearing the case should be allowed to upload videos of the trial. Until it makes that decision, the court won't be allowed to.

If you were looking forward to watching the trial on YouTube, don't be discouraged. The Supreme Court's order temporarily stopping the broadcasting doesn't mean that the Court will ultimately disallow it. However, it does mean that the first few days of the trial will be unavailable. Because the Supreme Court's order includes prohibiting cameras in the court room, it's not possible that videos of the trial during this temporarily ban could be uploaded later.

I'll be dissapointed if the Court does decide later that the California federal district court hearing the case can't be recorded and uploaded. The YouTube broadcast would have been a step forward not just for federal gay marriage litigation, but for transparency of our country's judicial process overall.

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Ted Olsen, the famous conservative lawyer for the gay couples in Perry v. Schwarzenegger, laid out what he called the "conservative argument for gay marriage" in this past weekend's Newsweek.

Because conservatives often say that allowing gay marriage would require an activist interpretation of the Constitution, Olsen spent time spelling out why it would not.

The Argument

Olson said that marriage is a Constitutional right:

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

While the Court traditionally has considered marriage in terms of heterosexual relationships, Olsen said that "the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals."

So Is That It?

No. Even though the Constitution guarantees equal protection under the law, both state and federal governments are allowed to deny equal protection if they have legitimate reasons for doing so. So what it comes down to is whether the federal government (and California, in regards to Proposition 8) has legitimate reasons for denying equal marriage rights to gay couples.

But Olsen said that the reasons that gay marriage opponents usually give are not legitimate:

• It's tradition. "Simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons."

• States need to encourage procreation. "Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex."

• It threatens the institution of marriage. "I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples?"

Not Everyone Agrees

Despite Olson's argument, some people say that marriage should still be left to the states. So even if a state doesn't have legitimate reasons for disallowing gay marriage, that doesn't mean that the federal government has to . Jonathan Adler, a professor at Case Western Law School, agreed with Olson that marriage would benefit gay families, but said:

I remain deeply skeptical of the constitutional argument.  I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law.

In other words, just because the federal government should recognize gay marriages performed by particular states doesn't mean it has to make all the states recognize them too.

This brings us to Perry v. Schwarzenegger, where defenders of Proposition 8 ban will try to show that California has legitimate reasons for unequal treatment.

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With all the attention yesterday about how Perry v. Schwarzenegger will be the first non-criminal federal trial publicly broadcasted (and on YouTube), it's smart to take some time to go over some basics.

Who's Challenging the Ban?

Perry: Perry is the last name of Kristin Perry, who was denied a marriage license with her partner Sandra Steir. The two join Paul Katami and Jeffrey Zarrillo, who were also denied a license. The court uses the name "Perry" to refer to all four of them. They're challenging Proposition 8, which bans gay marriage, in federal court because they say it violates the U.S. Constitution.

Famous Lawyers: Representing the people challenging the gay marriage ban are two famous lawyers, former U.S. Solicitor General Theodore Olson and trial lawyer David Boies. You may have heard of them--they represented President Bush and Al Gore in the 2000 Supreme Court case that ended up deciding the presidential election.

Who's Defending the Ban?

Schwarzenegger: Although the case name says it's versus Governor Schwarzenegger, the governor isn't actually defending Proposition 8. He said he's neutral. Moreover, the California attorney general agreed that the law should be struck down.

Instead, a bunch of religious and conservative groups have gotten together to defend the ban in the governor's place. The main lawyer for this side is Charles Cooper.

What's a Bench Trial?

A bench trial is mostly just like a jury trial, except that it's in front of a judge. On one hand, this means that the trial might seem more boring, because the lawyers won't have to ham it up for a jury. On the other hand, the lawyers do know that the trial will be made public, so maybe they'll try to make it interesting. The bench trial starts this Monday, January 11th.

What's Each Side Trying to Prove?

In general, the Constitution says that states can't make discriminatory laws unless there's a good enough reason. So Perry's lawyers will try to prove that there isn't a good enough reason for the marriage discrimination, while the lawyers on the other side will try to show why there is.

That's why they're having the bench trial. The trial will first determine what the effects of gay marriage are, such as the effects on children of gay parents and the effects of gay marriage on heterosexual marriages in general. If it finds that gay marriage has negative social effects, the court may decide that the state trying to prevent those effects by banning it is a good enough reason.

What's at Stake?

Because the case is in federal court and is about whether a state gay marriage ban violates the U.S. Constitution, the case could eventually be appealed the the U.S. Supreme Court. If the Supreme Court hears the case, then its decision could affect all state marriage bans, not just California's.

For more information, keep up with the court's special website for the case, or check back here.

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Most changes in gay rights are made in the courts. But none of the federal court cases about gay rights has ever been publicly broadcasted.

Until now. The trial of Perry v. Schwarzenegger, the high profile federal case challenging the constitutionality of California's Proposition 8 ban on gay marriage, will be videotaped and uploaded to YouTube for the world to watch.

Chief U.S. District Judge Vaughn Walker's decision to share the trial via YouTube is important for several reasons:

• Court staff, not a media company, will be controlling the cameras. Media companies had asked the judge for broadcast rights, but the judge preferred this way because it lets the court control the cameras.

• People can watch the trial whenever they want. Most people are busy during the day and don't have time to sit and watch a trial on TV. Also, a lot of times trials have boring parts, and you can't fast forward through a live broadcast. Having the trial on YouTube lets people watch the trial when they have time to, and they can stick to the interesting parts.

• It will be the first non-criminal federal trial ever publicly broadcasted. The Ninth Circuit approved public broadcasting late last year, anticipating that the gay marriage trial would be a great case to try it out.

• It makes the judicial process more transparent. Judge Walker already started this, creating a separate website about the case and setting up a special email announcement list for case updates.

• It sparks online discussion. When a trial is broadcasted on TV, you can't link to it. You can't share a video of it on facebook. Your comments about it are heard by your coworkers and family, not by millions of internet users.

The bench trial begins next week.

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Many times when a law is passed it doesn’t take effect until later on. That’s the case with two laws granting more rights to California gay couples that the state passed last year: (1) the Marriage Recognition and Family Protection Act and (2) the LGBT Domestic Violence Programs Expansion Bill.

Dana Rudolph over at Mombian, a blog centered on LGBT parents, explained what the two laws do:

The Marriage Recognition and Family Protection Act, which states that same-sex couples married in any state or nation anytime before the passage of Proposition 8 must be recognized as married spouses in California. The new statute also confirms that same-sex couples married outside of California after November 5, 2008, must be given all of the rights, protections and responsibilities of married spouses under California law, with the sole exception of the designation of “marriage.”

The LGBT Domestic Violence Programs Expansion Bill, which expands access for LGBT service providers to a state fund within the California Emergency Management Agency, which supports LGBT-specific domestic violence programs across the state. The new law also allows for more than four organizations to apply for programmatic funding each fiscal cycle and eliminates the requirement for providers to offer shelter – impediments to many smaller LGBT organizations.

Hats off to Equality California for also summarizing the laws.

Because there’s so many gay couples living in California, the first law in particular grants substantially more rights. Same sex couples living in California that were married elsewhere, at any time, will be treated as married spouses by the state.

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Mexico City legalized gay marriage late last year, becoming the city in Latin America to do so.

Lots of gay couples near Canada already go there to get married. I expect same sex couples in southwestern states to head to Mexico for the same reason. But will their Mexico gay marriage be legally recognized when they come back?

It depends on where they live. If they're from one of the six jurisdictions that allow gay marriage--Iowa, New Hampshire, Connecticut, Massachusetts, Vermont, D.C.--then their marriage from Mexico will be recognized. But if they're from one of those places, they probably aren't going to trek to Mexico to get married anyway.

The only other places that will recognize a gay marriage from Mexico City are California and New York, both of which passed laws last year to recognize same sex marriages from other jurisdictions.

New Yorkers live pretty far from Mexico, so I don't expect to see many of them head down to Mexico just to get married, especially when they live next door to three states that where they could do the same.

For Californians, on the other hand, Mexico City legalizing gay marriage means there's now a relatively easy way to get gay marriage rights. The combination of Mexico City's new gay marriage law and California's new recognition law means that all a gay couple in California has to do to get marriage rights is take a day trip to Mexico. Mexico City lets U.S. residents get married there as long as they bring the right paperwork.

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I like science fiction. One of my favorite TV shows was the remake of Battlestar Galactica, which ended last year. Launching this month is a prequel series to the show, called Caprica, in which gay marriages will be common.

Even though it's science fiction, a TV show featuring gay marriages as normal would be unheard of just a few years ago. I encourage all you fellow science fiction fans to give the show a look when it premiers on January 22.

Thanks to Scott at Gay Marriage Watch for pointing this out.

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Although the New Hampshire legislature legalized gay marriage last year, in 2009, the law didn't actually take effect until today. Gay couples were using the new law to get married as early as this morning, as Kris Alingod of All Headline News reported earlier.

Be sure to wish an extra happy new years to your gay friends and family from the state.

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Here's the conclusion of the top 10 stories of 2009 in gay couples law. Despite the political setbacks towards the end of the year, it's hard to complain when 3 states that didn't allow gay marriage now do.

5. California Supreme Court Upholds Proposition 8

Most of the legal battle surrounding Proposition 8, the voter referendum that overturned California gay marriage, happened in 2008. But it ended this year when the Supreme Court upheld the referendum. Still, Governor Schwarzenegger did sign a bill recognizing the marriages of gay couples from before Proposition 8 was approved.

4. Washington Passes Everything-But-Marriage Law, Citizens Affirm Through Referendum 71

If all that happened was that the state legislature passed Bill 5688, granting domestic partners in the state the rights of married couples, this story would still have made the list. But who can forget the Referendum 71 legal war, making national news with battles over whether the referendum could be blocked, whether signatories could be revealed, whether the signatures were even valid, and whether its wording was too confusing. But at the end of the day, state voters approved the referendum, letting the domestic partnership law stand.

3. Wisconsin Passes Domestic Partnership Law Despite Constitutional Ban on Gay Marriage

This state’s passage of a domestic partnership law was particularly important because the state’s constitution bans same-sex marriage. It showed how a state legislature could work against a constitutional ban on gay marriage to still provide gay couples with legal rights enjoyed by married couples. This is important, because many states have such a ban in place. The legislature had to provide fewer rights to gay couples than it wanted to prevent domestic partnerships from looking too much like gay marriages, which the state constitution bans. As a result, Wisconsin gay couples don’t get everything-but-marriage, but they still have more than they did before.

2. Maine Passes Same Sex Marriage Law, Voters Overturn It

Back in May, it looked like Maine would be the 6th state to allow gay marriage. This would have been the first state to legalize gay marriage through the legislature instead of through the courts. But state voters said otherwise. Just like every other time gay marriage has been put up to a popular vote, they approved a referendum that overturned the law.

1. Iowa, New Hampshire, and Vermont Legalize Gay Marriage

While the same sex marriage law in New Hampshire won’t actually take effect until the new year, gay couples in Iowa and Vermont can get married today. The addition of three states to the list of those allowing gay marriage makes 2009, despite setbacks in other states, overall a very good year for legal rights of gay couples.

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A lot happened in 2009 in gay couples law. Both on a state and national level, the year brought many changes, good and bad, for same sex relationships. Here's Part 1 of my list of the top 10 stories from 2009. 

10. Obama Extends Some Health Care, Other Benefits to Domestic Partners of Federal Employees

Under fire for not doing anything for the gay voting bloc that supported his election, Obama finally made his first overture by extending some benefits to federal employees. Still, the move was mostly political and didn’t substantially affect federal employee rights. For that, stay tuned next year on the Domestic Partnership Benefits and Obligations Act, which just got voted out of committee in Congress. 

9. Congress Amends the Hate Crimes Act to Include Sexual Orientation as Protected Class

While not specifically affecting gay couples rights, the amendment nevertheless was the first federal law that granted, instead of took away, gay rights. The move showed that Congress might further expand gay rights and eventually repeal DOMA. 

8. Colorado and Nevada Pass Limited Domestic Partnership Laws

Nevada became the 17th to recognize domestic partnerships. While it's not entirely everything-but-marriage, (the state doesn't make employers provide benefits to the domestic partners of employees, for example), the law does give domestic partners most of the benefits of legal spouses in the state. The legislature had to override the governor's veto to get the law through. Colorado, on the other hand, passed an even more limited law, granting gay couples some estate planning benefits. 

7. New York Senate Rejects Gay Marriage

Both the New York state assembly and the governor said gay couples should be able to get married. But in December the state senate said no. As New York has one of the highest gay populations in the country, gay marriage there would have been almost as important as marriage in California. 

6. D.C. Council Votes to Legalize Gay Marriages and Recognize Ones From Other States

Lots of people in D.C. are from somewhere else. That made the D.C. out-of-state gay marriage recognition law passed in May more important than those kind of laws usually are. But not content to let other jurisdictions have all the fun, the D.C. Council voted to legalize gay may marriages performed in the district too. We won’t see the outcome of this second law until next year after opponents of same sex marriage sue to block it.

Check back tomorrow for the top 5.

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Gay couples in New Jersey can form civil unions, but can't get married. This month, the state legislature debated, but didn't vote on, full marriage equality for same sex couples.

Because couples in that state can already form civil unions with the full rights of married couples, some wonder what letting them get married would even do.

The answer is that, when it comes to benefits, employers treat couples called "marriages" differently than couples called "civil unions. Steven Goldstein, CEO of New Jersey gay rights organization Garden State Equality, explained:

About half of all employers in New Jersey are self-insured and therefore fall out of the purview of state law, including the state’s civil union law. No state may penalize companies that comply with federal laws.

As a result, many self-insured employers in the state don't provide benefits to same sex partners of employees. But if New Jersey legalized gay marriage, employers would be more likely to provide these benefits. Steven talked about what happened it Massachussets, as an example:

In Massachusetts . . . the overwhelming majority of employers have chosen not to invoke the federal loophole. Employers there understand and respect the power of the word “marriage.” Without the term “civil union” to hide behind, Massachusetts employers are loathe to discriminate against their gay employees. They would have to admit the reason for their discrimination.

This difference in insurance benefits is not the only way that civil unions are different than marriages in terms of rights. I've talked before about other problems, especially regarding out-of-state recognition difficulties.

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The Washington D.C. Council voted yesterday to legalize gay marriage in the District. In D.C., laws passed by the council have to be approved by Congress before becoming law. Once the D.C. mayor signs the bill, both Congress and the president must vote to block the bill within 30 days--otherwise it's automatically approved. Here's the full text of the bill [PDF], entitled the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. 

This requirement for Congressional approval might give the D.C. gay marriage law more staying power than state laws. In some states, residents can put a measure on a ballot and vote to overturn a gay marriage law passed by their state legislators. If that happens, as it did in Maine, no further legislative approval would be needed.

Some organizations will sue to allow D.C. residents to vote on the gay marriage law, an effort that the governing council rejected before. Even if they win their lawsuit and vote to overturn the new law, Congress would still have the right to reject that overturning. This difference makes it harder for people against gay marriage to overturn the law.

Nevertheless, Congress will not stay liberal forever. Once conservatives are back in power, they will be free to overturn the D.C. gay marriage law without regard to the D.C. Council. Already the top Republican on the Congressional subcommittee overseeing the District has said that Republicans will work to block and eventually overturn the new law.

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There's been a lot of media attention on the recent failures to legalize gay marriage. First Maine voters rejected a marriage law, then the New York legislature did too. Now the media's talking about a vote for gay marriage in New Jersey.

Meanwhile, gay couples that aren't getting married are getting more rights. Ashley Surdin of the Washington Post noted how non-marriage legislation has consistently over the last few years granted gay couples more health, employment, and other state benefits. The article points out a few examples from just this year:

• A New York court upholding benefits to same sex spouses of employees married out-of-state.
• The Washington "everything but marriage" law.
• U.S. House approval of benefits for federal employees.
• California court rulings granting benefits to same sex spouses.

And the article doesn't even mention the many state court rulings recognizing gay custody, parental, and adoption rights.

Still, even in states with "everything but marriage" laws, the inability to get married means gay couples must continue to use nontraditional legal means to make up for the absence of federal marriage benefits.

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Steve Sanders, a Chicago appellate attorney, pointed out a new study by the UCLA Law Williams Institute finding that same sex couples subject to the estate tax (people with more than $3.5 million at death) pay on average $3.3 million more in taxes than straight couples.

The study [PDF] says that the tax disadvantage stems from IRS non-recognition of gay marriages due to the Defense of Marriage Act. Other findings include [PDF]:

The estate tax penalty will cost same-sex couples $237 million in 2009 and nearly $620 million in 2011, if the exclusion limit falls back to $1 million.

If current estate tax law is not changed, by 2011 the estate tax disadvantage will have cost same-sex couples more than $3.5 billion over the last decade.

The loss to federal tax revenue of equalizing the treatment of same-sex couples would be less than one twentieth of one-percent (.05%) of total federal government revenue.

Still, with around $2.5 trillion in revenue, .05% is about $1.25 billion. Congress would need to come up with a way to pay for the lost revenue if they let the IRS recognize same-sex relationships.

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Tara Siegel Bernard, a reporter with the New York Times, told me about a new feature on the paper's personal finance blog, Bucks. It's called, "What If You're Gay" and explores the complex financial issues that gay families face.

The first two posts in the series talk about gay divorce, including the higher costs associated with gay divorce and tips on how relationship laws affect couples breaking up. For example, the first post talks about a hypothetical couple getting divorced in Massachusetts:

But even a couple who marries and divorces in a state like Massachusetts — where gay marriage is legal — can face higher costs. The Internal Revenue Service hasn’t issued any guidance, but gay couples may not be entitled to the same tax-free division of assets as their heterosexual counterparts (at least as far as federal taxes are concerned) because of the Defense of Marriage Act, which bans federal recognition of same-sex marriage. Dividing the proceeds from a $500,000 home, for instance, could potentially translate into a $250,000 gift, subject to federal gift taxes (or at least use of part of your $1 million lifetime gift-tax exemption). For wealthy couples, the stakes are even higher.

Because I've gotten several questions about how being domestic partners affects insurance options, I suggested to Tara that the blog cover that topic. I'm looking forward to more posts in the series.

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Earlier this month Washington voters passed an expansion of dometic partnership rights for gay couples living in the state. While this is good for those living in Washington, couples in other states might benefit as well. In particular, the law might encourage politicians in other states to enact a similar expansion of rights.

Take Rhode Island, whose conservative governor Don Carcieri has long stood against gay marriage and state recognized domestic partnerships. Yet last last week, as Katherine Gregg of the Providence Journal reports, he said he might support a law modeled after the one in Washington.

Citing as a possible model the “everything but marriage” referendum that won approval in the state of Washington earlier this month, Carcieri said: “I don’t know enough, yet. All I am saying is I understand the circumstances. I understand the difficulties. Maybe it’s something we should consider."

Still, the governor's motives may not be genuine. His announcement in support of a domestic partnership comes just two days after he vetoed a law that would have let domestic partners make burial decisions for each other.

Regardless, domestic partnership laws, such as the one in Washington, let politicians appeal to both sides of the marriage debate.

First, the laws are sexuality neutral, so politicans can say they are expanding rights for everyone, not just gays and lesbians. This aspect in particular appealed to Rhode Island's governor, the Associated Press reports:

Carcieri said Friday that domestic partnerships are different from civil unions because a partnership system benefits gay couples and other nontraditional households, for example, two widows living together to save money.

Second, the laws give gay couples more rights, but at the same time reserve the "marriage" label for heterosexual couples. This pleases religious and moral objectors to gay marriage, because it preserves its traditional definition.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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The people of Maine voted yesterday to repeal a law that would have allowed gay marriage, but the vote will not slow increasing public support for gay marriage overall.

Law professors Patrick Egan and Nathaniel Persily discussed in an article the growth in public support of gay marriage over the last two decades. Their research showed a steady rate of increase of about 1% annually--even in those with court decisions that impacted gay rights.

That's because individual political events have not affected the long term support trends. The professors explain:

The public’s approval of same-sex marriage has exhibited a slow but steady upward trajectory over time. . . . The most likely outcome in the future is consistent change: a steady movement in opinion caused by larger cultural and demographic forces that overwhelm any individually salient political events.

In fact, support for gay marriage already surpasses the historical level present when courts and legislatures have given minorities marriage rights.

Take for example interracial marriage. Not until 1994, 27 years after the Supreme Court outlawed bans on interracial marriage, did a majority support it.

In contrast, the professors predict that a majority of Americans will support same gay marriage by 2012.

The Maine vote may have disappointed advocates and pleased opponents of same sex marriage, but it won't stop the trend of more people every year wanting to let gay couples marry.

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Gay marriage statistics are hard to find. That's because the U.S. Census, the primary tracker of demographics, has never counted them. In fact, gay couples who reported as married on the 2000 census were changed to unmarried by the Census Bureau.

That will change next year. Erik Fowle reports on the San Diego News Network:

Next April, when gay couples record themselves as being married, or as unmarried partners to persons of the same sex, their original answers will be retained. The 2010 Census marks an unprecedented level of accuracy with regard to measuring the true number of same-sex couples in the United States.

The published statistics will probably increase legal protections for gay couples because they'll change from a vague demographic to a countable one. For example, politicians could better estimate the effect of allowing gay couples to adopt children.

Yet the gay marriage statistics that come from the Census next year will likely be inflated. Statisticians expect many gay couples who can't get married in their own states to report as married even if they're not. Unlike in 2000, where gay marriage wasn't offered anywhere, in 2010 couples can get married in another state. Therefore, the 2010 Census will still record them as married even if they live in a state without it.

The inflated statistics could make legislatures think that there's more married gay couples than they're actually are. However, if the statistics are inflated because unmarried couples feel it's not worth it to get married out of state, then the statistics could still reflect the overall demand for laws allowing gay marriage.

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Video conferencing and remote connection technologies could make it easier for same sex couples who live in states that don't allow gay marriage to get married in states that do.

Professors Adam Candeub and Mae Kuykendall, who run the E-Marriage Project over at Michigan State Law School, said in an article that couples shouldn't have to physically be in a state to get married under its laws. Instead, they should be allowed to use remote connection technologies to get married by proxy.

The professors note that states let out-of-state residents use their laws all the time. For example, people can form businesses in other states or write provisions that make another state's law govern a contract.

Even with marriage, states have previously let people get married without actually being there. A press release about the article explains:

The couple's physical presence within the particular state authorizing their marriage has never been a requirement the states must impose in order to marry couples. Couples have for centuries married by proxy, mail, and telephone. The military has for many years recognized such marriages as legal for purposes of spousal allowances and death benefits.

Would these marriages be recognized in the couples home state? Probably not, unless there's already a law recognizing out of state gay marriage.

But statistics show that same sex couples in states without gay marriage are willing to take advantage of states that do. For example, since Iowa legalized gay marriage, almost half of same sex marriages there have been for out-of-state residents.

Yet sometimes it's too inconvenient for a couple to get married under another state's laws. If states with gay marriage passed the laws suggested by the E-Marriage Project, then a couple in a state without gay marriage could more easily get an official stamp on their relationship, even if it's just symbolic.

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The federal government Friday denied asylum to a gay Brazilian man who married his partner in Massachusetts. The man must now stay in Brazil.

Normally, foreign citizens can become U.S. residents if their spouse is a U.S. citizen. But because of DOMA, immigration law doesn't recognize same sex marriages.

Passing on Chance to Help

The asylum application gave the federal government a chance to bypass immigration law and let the Brazilian man become a U.S. resident regardless. But Eric Holder, the U.S. Attorney General, didn't respond to the application in time, effectively denying it.

The couple even got Massachusetts Senator John Kerry to plea their case to the attorney general, which raised the couple's hopes. The Associated Press reports:

Coco [the U.S. citizen] said he thought there was ''no way'' the Obama Administration would deny Oliveira's asylum request after Kerry made his plea to Holder.

''We are profoundly sad,'' said Coco. ''This is more than any married should have to face.''

The struggle highlights the difficulty for foreigners married to U.S. citizens to become U.S. residents. Because the government won't grant marriage-based visas to same sex couples, foreign spouses generally must rely on an asylum application, the general visa lottery, an employment-based green card or visa, or a student visa.

Any hope?

The Uniting American Families Act, already introduced to the Senate and House, would let "permanent partners" of U.S. citizens beome U.S. residents. While a version of the bill has floated around since 2000, it's possible Democratic majorities in this Congress mean it will pass.

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Rosie O'Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more. Rosie and Kelli live in New York, but married in California.

Their split shows many of the issues that come up during a same sex divorce.

Getting Divorced

Only a few states and countries allow gay marriage. So a lot of couples take a trip to get married out of state and then go back to where they live.

But if their marriage doesn't work out, they may have trouble getting divorced.

As an example, Emma Ruby-Sachs, an attorney with Ruby & Shiller, writes at the Huffington Post about what would happen for a hypotethical Montana couple that goes to Toronto to get married:

As a resident of Montana, you cannot get a divorce in Toronto. Toronto, like most states with the exception of Nevada and a few others, has a year-long residency requirement for a divorce. In Montana, your relationship was never legally any different from two roommates. And so, you must complete a divorce, with all its entanglements and difficulties, without the assistance of the law.

Because Rosie and Kelli live in New York, they'll be able to get divorced. Though New York doesn't allow gay marriages, they do recognize them from other states for the purpose of getting divorced.

Custody and Visitation Issues

Rosie and Kelli have three adopted children and one child born to Kelli through sperm donation. If Rosie and Kelli had lived in a state that disallowed second parent adoption, only Kelli would have legal rights to the child she gave birth to.

Without being the legal parent, Rosie's visitation rights to Kelli's child would also depend on what state they lived in. In Montana, for example, the highest court

that non-legal parents do have visitation and decision rights to a child from a same sex relationship.

Alimony

When married straight couples get divorced, one person often has to give the other person spousal support payments. That way the person with less income doesn't suffer an immediate drop in lifestyle. Along with spousal support, the person with more income would also have to give child support if the other person keeps custody of any children.

But if a same sex couple can't get divorced, then the person with lower income will lose these legal protections. It's possible, for example, that someone who left their job to take care of the house and family will not get any help from their ex-partner to help maintain his or her lifestyle.

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Last Thursday, while everyone else was watching a balloon, Keith Bardwell, a Louisiana justice of the peace, was refusing to give a marriage license to an interracial couple or to officiate their wedding ceremony because he didn't "believe in mixing the races that way."

The official's decision and subsequent justification triggered a nasty response across the internet over the weekend:

• "The denial of personal bigotry reaches epic proportions." -Nationally recognized political commentator, Pam Spaulding.
• "It is an example of the ugly bigotry that divided our country for too long." -Louisiana Senator Mary Landrieu.
• "Disciplinary action should be taken immediately." Governor Bobby Jindal.

But when it comes to gay marriage, officials deny marriage licenses based on their own personal beliefs without accompanying media attention. Several state and municipal laws let officials who don't "believe in mixing the genders that way" refuse to give gay couples marriage licenses or to perform their wedding ceremonies.

Upcoming bills to allow gay marriage are particularly likely to include these provisions to help the laws pass. Without them, many state lawmakers won't vote for the laws because of people like Thomas Messner from the conservative Heritage Foundation, who warns that

those who support the tradi­tional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender.

Take, for example, the recently introduced bill [PDF] that would legalize gay marriage in Washington, D.C. It lets officials refuse marriage licenses to gay couples based on their own religious beliefs: "No official. . .shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion."

Public criticism of the Louisiana official may reduce these religious objections to gay marriage licenses.

Remember that Loving v. Virginia, the unanimous Supreme Court decision that ended outlaw of interracial marriage in the U.S., was a product of the Civil Rights Movement. The Court said that the civil rights of interracial couples trumped the first amendment freedoms of licensing officials. Just as denying interracial marriage licenses for religious reasons was disallowed then, gay rights organizations could argue that denying gay marriage licenses for religious reasons should be similarly disallowed now.

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A bill [PDF] to allow same sex marriage in Washington, D.C., was introduced to the D.C. Council last week. It's expected to pass.

As D.C. has one of the largest gay populations in the country [PDF], the bill affects many couples who couldn't marry before.

But the law has its drawbacks. While it allows gay marriage, it discontinues domestic partnership registrations. This discontinuance will create relationship recognition problems when these couples want to travel or move to another state.

Nancy Polikoff, professor at American University Law School, explains:

There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.

I've written before about how the name of a relationship affects the rights it confers, and it's even more important here. People living in D.C. tend to come from somewhere else. Depending on where they go, couples might rather have a domestic partnership than a marriage when they move out of the district. 

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Governor Schwarzenegger last night signed a law that makes California recognize gay marriages performed out of state.

All same sex couples married out of state at any time will have all the rights of married straight couples in the state. But the law tries to play it both ways when it comes to what to call these relationships.

Couples married before November 5, 2008 (the day Proposition 8 banned gay marriage in the state): they'll called spouses and their relationships will be called "marriages."

Couples married after November 5, 2008: they won't be called spouses and their relationship will be called "domestic partnerships."

What a mess!

Dan Smith reported this morning in the Sacramento Bee why the law treats out of state marriages differently based on when they took place:

In a signing message, Schwarzenegger said California will not recognize the couples as married but will "provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states."

Gay marriage law is already hard to understand because different states plus the federal government have differing laws covering same sex relationships. California's law now means that same sex couples may not even be governed the same within a single state.

Names are legally significant when it comes to same sex relationship rights. Don't be surprised if the set of rights that a California gay couple married out of state has depends on whether their relationship is actually called a marriage.

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The New York Times featured on Friday the results of a two month study on the extra lifetime costs of being gay.

The reporters, Tara Bernard and Ron Lieber, tested the finances of hypothetical same sex couples in the three highest gay population: Florida, New York, and California. Their test couples paid from $40,000 to $470,000 more in their lives for being unable to marry.

These financial costs have social consequences. Andrew Sullivan, senior editor of the Atlantic Magazine, explains:

The effect of these policies is to encourage gay people not to form stable, lasting relationships (relationships that have been shown to increase people's health, happiness and productiveness). It is to exact a communal price on anyone who actually does embrace the responsibility of marriage.

Still, the article notes that "nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage." Because it's unlikely that the federal government will soon legalize gay marriage, it may seem that gay couples have to put up with these costs for awhile. 

But actually all the government has to do is get rid of Defense of Marriage Act. With DOMA gone, most of the costs of being gay would go too.

Take for example health insurance. When employers cover domestic partners, the extra costs from being gay stem from the tax consequences of domestic partner coverage. These tax consequences are because DOMA doesn't allow the IRS to recognize gay marriages.

In the Times article, health insurance posed the biggest cost unique to same sex couples. But the cost is only so large when one partner, not covered with his own job, must buy private insurance because his partner's job doesn't have domestic partnership coverage.

Or, look at the differences in social security benefits or IRA contribution limits. Gay couples pay more in these areas because of DOMA, not state laws. Other areas the article discusses--tax preparation, estate taxes (especially important for wealthy couples)--would similarly have little effect if DOMA were repealed.

While DOMA repeal may not happen soon, it will certainly come before the federal government even thinks about nationally legalizing gay marriage. As a result, gay couples may not have to put up with these extra costs for too long.

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Surprise!

A judge in the conservative heartland of Texas struck down yesterday the state's constitutional ban on gay marriage.

But it's actually not so surprising. The judge, Tena Callahan of the 302nd Family District Court, is a Democrat, elected in 2006. Her decision doesn't represent a shift in cowboy thinking--rather, it's just the product of a recent left-leaning election.

And it won't mean anything for Texans. Michelle O'Neil, a Dallas attorney with over 18 years of family law experience, helps put things in perspective:

[T]he Dallas Court of Appeals is considered to be one of the most conservative courts in the State. Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties. Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long.

Because the case will be appealed, the Texas constitutional ban on gay marriage isn't going away anytime soon.

But while the opinion won't help gay couples in Texas, it still has two important effects:

1. Spotlights the issue.

The 302nd Family District Court of Texas does not nationally influence the law on gay marriage. Nevertheless, in less than 24 hours after the decision, national mainstream media outlets have covered the story, including the Associate Press, Reuters, and the Wall Street Journal. Evidence suggests that the more people talk about gay marriage, the more support it gets.

2. Shows a new way to challenge gay marriage bans.

Most states, like Texas, ban gay marriage. Lawsuits in these states challenging the bans outright usually fail.

But the Dallas case was unique because the person bringing the suit argued not for the right to get married, but for the right to get divorced. The judge ruled on a jurisdictional issue. She said that because the full faith and credit clause gives her court "jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction," the state ban on gay marriage that disallows her court from doing so must  violate the U.S. Constitution's equal protection clause.

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

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Married gay couples often worry about whether they can keep their marriage benefits when they travel or move to another state. They are smart to worry, because out of state gay marriage recognition is uncommon.

But here the law can help. Nancy Van Tine, a Massachusetts attorney with over 30 years of domestic relations experience, discussed in the July issue of Boston Spirit magazine [PDF] how married gay couples with proper planning can keep their benefits across states:

A prenuptial agreement can make gay marriage portable state to state. . . . A prenuptial agreement can contemplate these additional tax burdens [from the effects of DOMA] on a payor and help couples plan accordingly. A prenuptial agreement is also extremely important because the federal government will not recognize a same-sex partner as the recipient of retirement and pension benefits under ERISA and other federal laws governing benefits. A prenuptial agreement is the best instrument to plan for the property, tax and benefit issues arising out of the federal government's decision to deny same-sex marriages.

For straight couples, just a single marriage certificate makes automatic the many benefits given to them in all states. While gay couples can't get these benefits so easily, prenuptial agreements help simulate many of the same effects.

They aren't just for married gay couples either. Often same sex couples have to settle for whatever their state offers. Written agreements about property and income still lets these couples operate more like marriages.

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The American Psychology Association last week published a comprehensive study on whether having same sex parents affects child development. The conclusion: it does not.

The research, by Dr. Abbie Goldberg, differs from previous publications by conducting a full analysis of all previous research on the well being of children with gay parents. While other studies have summarized the prior research, Dr. Goldberg is the first to write a book-length review of it.

Not only that, but the study broadens the scope of research on gay families, as the Windy City Times reported yesterday:

Also included are topics rarely discussed in the research studies to date, such as: divorce/relationship dissolution in lesbian/gay-parent households; the perspectives of non-heterosexual children of lesbian/gay parents.

I think that this kind of research, combined with upcoming 2010 census numbers on same sex families, will make families with gay parents seem more normal and less threatening. This normalcy will help shape laws to accommodate these families.

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Nevada gay couples can take advantage of the state's domestic partnership law next week on October 1. The new law gives couples everything-but-marriage partnerships, just like the law that Washington State recently passed.

But they shouldn't plan on traveling. At least, if they want to keep their domestic partnership benefits. Mike Blasky of the Las Vegas Review-Journal explained:

[A]lthough domestic partnerships will be recognized in Nevada, they might not be recognized in states without domestic partner laws — or by the federal government. . .Other states don’t have to recognize it.

I'd use a stronger word than "might." It's very unlikely. And it all has to do with terminology.

When it comes to out of state recognition of gay relationships, words are important. States with gay marriage will recognize other gay marriages, but not usually civil unions or domestic partnerships. Similarly, states with everything-but-marriage domestic partnerships will usually not recognize marriages or domestic partnerships from other states.

You would think that a state would recognize legal relationships from other states that give the same or less rights. But they don't.

I think the tendency to not recognize other state's relationships, outside of marriage states recognizing other state's marriages, is because of the sheer variety of gay relationship laws. In some states, like Nevada and Washington, a domestic partnership gives full marital rights. In other states, like Wisconsin, a domestic partnership gives far less.

As long as different states offer different bundles of rights all called "domestic partnerships," it will hard for states to recognize these relationships from other states. Out of state recognition of gay relationships may therefore always be limited to marriage.

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Denise Lavoie of the Associated Press reported today about the Justice Department's response to a Massachusetts lawsuit seeking to overturn portions of DOMA, the law that bans federal recognition of gay marriage.

The government defended the law, but at the same time called for its repeal:

In court documents, the Justice Department makes it clear the Obama administration thinks the law is discriminatory and should be repealed. But the department, calling the law "constitutionally permissible," said it has an obligation to defend federal laws when they are challenged in court.

This stance isn't new. The department did the same thing a month ago in a different case.

While the government's stance may frustrate people disappointed with the Obama administration's (non) efforts to repeal the law, the government is correct here. The executive branch cannot pick and choose which laws it defends in court. Ultimately it is up to Congress to change the law.

Still, the government's tone in the brief is much different now than compared to June. Back then, a Justice Department brief in another case compared homosexuality to incest and made no comments about wanting to see the law overturned. The outrage at that brief probably led to the change in tone here.

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It’s easy to find books about marriage. A quick search on Amazon will net you hundreds of results. But not so for books about gay relationships. Only a small handful exist, and constantly changing laws make them often outdated.

Into this near void come attorneys Frederick Hertz and Emily Doskow. Their book, “Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions,” gives not just an overview of gay relationship laws, but practical advice about the issues in setting them up, breaking them apart, and everything in between.

To understand how gay relationships work, you have to start with the basics. That’s why the book begins with a brief history of marriage as well as an overview of the general rights and benefits afforded to married couples in the U.S.

It’s at the end of this section where the authors address why marriage is so sought after by same sex couples. While the legal benefits get the usual attention, a discussion of the non legal benefits probably hits home for a lot of people:

I’m constantly struck by how often couples tell me that getting married has transformed their relationship, giving them a social recognition by their family and the wider community as well as an emotional solidity that they previously lacked. There’s a lifting of a mantle of disregard and oppression that may have created an atmosphere of invalidity, in ways that many partners had not even been fully aware of. There is the imprimatur of social approval, the resonance of emotional commitment, and the security of legal interconnectedness, all of which work together to strengthen the relationship.

But the heart of the book is its guidance to same sex couples that want to formalize their relationship, whether that’s through a domestic partnership or actual marriage. I was pleased to see an entire chapter devoted to prenuptial agreements, something that I’ve recommended that gay couples should always implement.

Of course, any overview of marriage and domestic partnerships is incomplete without a companion discussion of divorce and dissolutions. Not just limiting their discussion to married couples or those in a domestic partnership, the attorneys also give advice to couples with no formal agreement whatsoever. That’s important, as same sex couples, unfortunately, don’t often create agreements governing their relationship.

Sprinkled throughout the book are stories of couples that show the benefits of following the book’s advice, as well as the dangers of going against it. The experience of a woman adding her partner to title on her house before working out a co-ownership agreement demonstrates why it’s important to delay relationship decisions until both parties are sure of the consequences. Later, a story about a man who gave his partner his half interest in a house and who later had difficulty getting it back illustrates why it’s better to transfer property through a will or trust.

In a medium often devoted to rights and equality, Hertz and Doskow have given gay couples something more practical. Regardless of what the law should be, the authors show couples how to best use the law as it is today. By making so clear how marriage and domestic partnership laws actually work, the book becomes not just a useful tool for same sex couples, but an essential one.

You can find more information about the book, including links to other resources, at the book's website.

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In 2010, for the first time, the U.S. Census will count same sex marriages, publishing the number the following year.

The Washington Post discussed on Sunday why the published numbers will be important for gay rights advocates:

Particularly at the state and local levels, gay advocacy groups say census data on income for same-sex couples will show the need for more protections against job discrimination. Statistics on households with children will help them challenge laws limiting gay adoptions and legal guardianship. With raw numbers to illustrate the need, it will be easier to demand services, they say.

Yet the number of married gay couples will probably include many couples that aren't actually married. That's because same sex couples in states where marriage is unavailable will likely call themselves married anyway.

No states allowed gay marriage back in 2000. Yet almost half of all same sex couples identified in the 2000 census as married. The 2000 census even offered an "unmarried partner" option," but so many couples checked the spouses box regardless.

Similarly, the 2007 American Community Survey, a smaller operation of the U.S. census, reported over 300,000 same sex marriages, although only around 10,000 gay couples had actually been legally married, all in Massachusetts.

Therefore, as the Post article notes, in the 2010 census, "demographers expect hundreds of thousands to report they are spouses -- even though legal same-sex weddings in the United States number in the tens of thousands."

This may just be an unexpected result the general unavailability of same sex marriage. Perhaps gay couples that want to, but cannot, get married nevertheless self identify as spouses to say, "We're not married, but we would be if we could."

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Public support for gay marriage has increased in every state over the last ten years. However, Katherine Franke, a professor at Columbia Law School, notes that public support increases most in states where cases about same sex marriage have reached the highest court:

In states where same-sex marriage cases have reached the top courts, residents support same-sex marriage at higher levels than in states with no court rulings. . . . The three states that have had pro-gay decisions in place the longest – Massachusetts, Vermont and New Jersey – have had steeper rises in support of gay marriage than the national average.

I think there's a couple reasons  why public support is higher when marriage laws are challenged.

First, judicial challenges raise public awareness of the issue. When a case reaches the state's highest court, It puts the topic in everyday conversation, forcing people to take sides. Perhaps people don't want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.

Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.

I'm interested in whether public support is also more likely when laws other than marriage are challenged. Would public support for gay marriage increase with court cases about gay adoption and domestic partnership rights?

I suspect it would.

Such cases, even when not about marriage itself, probably put all the "gay rights issues" in public conversation. Further, cases about these side issues could reflect situations where state constitutions make gay marriage laws difficult to change judicially.

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A Democratic congressman will introduce on Tuesday a bill to repeal DOMA, the law that (1) prohibits federal recognition of gay marriage and (2) lets states ignore gay marriages performed in other states. 

It won't pass.

The bill infringes on state rights too much to get enough political support. Not only would it allow federal recognition of gay marriages in states that allow them, but it would also let couples married in these states keep their benefits when they travel to states that don't recognize their marriages.

Certainly, gay couples would love to keep federal rights when traveling to other states, an ability heterosexual couples take for granted. But states without gay marriage would oppose the federal intrusion on their laws.

Because there's no way the bill will pass, even Barney Frank, the openly gay chairman of the House Financial Services Committee, will oppose it:

If we had a chance to pass that, it would be a different story, but I don't think it's a good idea to rekindle that debate when there's no chance of passage in the near term.

Instead, Congressman Frank suggested that lawsuits challenging DOMA, such as Gill v. Office of Personnel Management, are the best way to repeal the bill.

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An Iowa man married to his partner sent me an email with some questions about the tax treatment for 529 college savings plans for gay couples. Specifically, he wanted to know

1. Can he set up a 529 plan with his same sex spouse as a beneficiary?
2. If so, can he deduct contributions to the plan for state income tax purposes?
3. Will distributions from the 529 plan to his same sex spouse be subject to federal tax penalties?

The short answer is that same sex beneficiaries pose no issues for setting up a new 529 plan. The beneficiary does not need to be related to the contributor. So same sex partners, married or not, are fine.

Whether contributions are deductible depends on a particular's state plan. For the Iowa 529 plan, Iowa residents can deduct up to $2,800 per beneficiary from state income tax. But no deductions are allowed for federal tax purposes.

Finally, distributions made to same sex partner beneficiaries will not be subject to federal tax penalties as long as other requirements of 529 plans are met.

So when does family relation matter?

The Iowa man would face problems if he were to change the beneficiary of the 529 plan from his same sex partner to himself or someone in his immediate family.

Federal law allows people to change the beneficiary of 529 savings plans without tax penalty, but only if the new beneficiary is a members of the original beneficiary's family. Spouses count as family members, but the IRS does not recognize married same sex couples as spouses.

The in-laws of the beneficiary count as well, but again, the non-recognition of gay marriage means that the new beneficiary could not be one of these people without tax penalties.

But members of a family do include people that both (1) live with the beneficiary and (2) are part of the beneficiary's household. Clearly, the Iowa couple lives together. But are they part of the same household?

Maybe, maybe not. Head of household rules have nothing to do with spouses, but rather children and siblings. On the other hand, federal law only says that someone will not be considered as a member of someone else's household if the relationship violates local law.

Ultimately, I think a same sex couple that lives together could successfully argue that they are members of a family and could change the beneficiary between themselves without penalty.

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Same sex marriage in Iowa became legal in April. But since then, half of these marriages have been by out-of-state residents, the Associated Press reported on Sunday:

[S]tate data show about 45 percent of Iowa's same-sex marriages were between out-of-state couples.

Of the 676 same-sex couples, 312 couples weren't from Iowa. They were from neighboring states.

Data show 57 couples were from Illinois, 38 were from Nebraska, 37 were from Missouri and 36 were from Minnesota.

So gay couples from other states have been going to Iowa to get married. But when they come back home, their marriages will have no legal status whatsoever. Their certificates will be just pieces of paper to hang on the wall.

So why do they do it? 

Perhaps these couples anticipate that their home states will one day pass out-of-state recognition laws. It's certainly easier for a state government to pass these kinds of laws than granting full marriage rights. See New York and D.C., for example.

But I don't think that's the reason. Instead, I think getting married gives couples a feeling of legitimacy and comfort that has nothing to do with the legal rights effects of marriage.

Take a look at what happened in California when gay marriage was briefly legalized. Thousands of gay couples got married, even though domestic partnership laws in the state already granted them all the legal rights of marriage. They had their rights, but they got married anyway.

The same is probably true for couples now flocking to Iowa and other gay marriage states. It's just another reason why "everything but marriage" laws, while a good substitute on paper, do not actually give gay couples the same benefits.

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The Florida district court of appeals last week heard arguments on a case challenging the state's gay adoption ban. The state said that the ban is justified because gay couples are more prone to domestic violence, psychiatric disorders, and breakups.

These arguments may sound familiar--they are the same ones used by opponents of same sex marriage. In particular, gay marriage opponents say that higher rates of separation in gay relationships threaten marriage as an institution.

Self-Fulfilling Prophecy

But the arguments against gay marriage only perpetuate the statistics against same sex couples. The inability for gay couples to get married increases the risk of domestic violence and breakups, the same aspects used to deny them marriage in the first place.

Unable to get married in most of the country, gay couples are stuck in an endless state of cohabitation. And as Fox News reported in July, a study published in the Journal of Family Psychology this year showed that cohabitation without getting married creates commitment problems:

Those who moved in with a mate before engagement or marriage reported significantly lower quality marriages and a greater potential for split-ups than other couples.

While this study is recent, the downsides of cohabitation have long been documented. Research consistently shows that cohabitation relationships lead to increased domestic violence, infidelity, and financial strife.

Because gay couples can't marry in most states, the most they can usually do is live together. Even when their state, through domestic partnership laws, gives them some marital rights, the lack of a full union still makes their relationship a glorified cohabitation.

As a result, Florida has created the very circumstances it uses to justify its gay adoption ban. The state has (1) put a ceiling of cohabitation on gay relationships and now (2) argues that the effects of this ceiling mean that gay couples shouldn't adopt.

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Daniel Clement, a divorce attorney that has practiced law for over 20 years, wrote about an upcoming New York law that prevents someone getting a divorce from financially sabotaging the soon-to-be ex-spouse:

In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly. . . .

[The] new law makes the motion unnecessary. The law automatically enjoins parties from transferring property, relocating children, secreting assets, canceling insurance or running up debts.

So what will this mean for New York gay couples? Couples in a domestic partnership or civil union are out of luck. The automatic stay law will only apply to matrimonial actions:

• marriage annulments
• divorces
• separations
• declarations that a marriage is void
• proceedings about distribution of marital property after an out-of-state divorce

Not included: domestic partnership and civil union dissolutions.

However, the law will probably affect married gay couples getting a divorce. While New York doesn't offer gay marriage directly, the state does recognize marriages performed out of state. And just this year, a New York court granted a same sex divorce of a couple married somewhere else.

If gay couples married out of state can continue to get divorced in New York, the automatic stay law will apply to them. Their divorces will be matrimonial actions.

Daniel thinks that the benefits of the automatic stay law include "lowering the costs of litigation, protecting the parties, while lowering level of animosity." It's good to know that these benefits will help gay couples too.

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In general, when someone loses money, they can use that amount to offset their income. That means they only have to pay taxes on the amount that their income exceeds their losses.

Now imagine if you could create unlimited losses out of thin air. You then use the artificial losses to offset any income you receive.

Sound too good to be true? For most people, it is. But for same sex couples, it's just another gay tax shelter. 

How it works

People use one of two accounting methods: cash and accrual.  Peter Pappas, a CPA and tax attorney that publishes the Tax Lawyer's Blog, has a nice summary of the differences between the two methods. The basic difference lies in when to recognize income and losses.

• Cash method: you have income when someone pays you and have losses when you pay someone else.
• Accrual method: you have income when someone owes you money and have losses when you owe someone else money.

Under the accrual method, you can have income even if you haven't actually received any money yet. Similarly, you can incur a loss even if you haven't actually paid anyone.

Individuals and businesses choose which accounting method they use. Most people use the cash method, and most businesses use the accrual method. Businesses using the accrual method often do transactions with individuals using the cash method.

Straight Couples

So let's take a hypothetical married couple, Amy and Bob. Amy owns a business. Her business makes an obligation to make a deductible payment of $10,000 to Bob. No money actually changes hands--Amy's business now owes Bob $10,000.

Because Amy's business uses the accrual method of accounting, her business immediately recognizes a loss of $10,000. That's because her business recognizes losses when money is owed, not given.

But Bob, using the cash method, hasn't actually gotten any money. So Bob doesn't recognize any income. Since Amy and Bob pool all their money together anyway, Bob isn't ever going to make Amy's business actually pay him.

All of the sudden, Amy's business has a $10,000 loss to offset any income it has received. The loss isn't real--it's just on paper.

Unfortunately for Amy and Bob, the IRS won't let married heterosexual couples create losses out of thin air. Instead, because Amy and Bob are spouses, Amy's business can't recognize a loss until Bob recognizes the income.

Gay Couples

What about gay couples? According to the IRS, gay couples, even if legally married, are unrelated. That means the IRS treats gay couples making this kind of transaction just like it treats a random business owing money to a random person.

With enough planning, gay couples could take advantage of this technique and create phantom losses whenever they want.

Just another way it can pay to be gay.

[This post appeared today as a guest post over at the Bilerico Project, the web's largest LGBTQ group blog with 50 lesbian, gay, bisexual, transgender, and queer contributors.]

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Repealing the Defense of Marriage Act is not just about equality--it's also about encouraging socially beneficial behavior in gay relationships.

Fred Silberberg, a Los Angeles attorney that has practiced family law for over 20 years, wrote in the Huffington Post about the unnoticed effects of the Defense of Marriage Act.

Specifically, he talked about a problem a male client was having with alimony payments to the client from the client's same sex ex-partner. Because the IRS doesn't recognize gay relationships, the alimony is not deductible. But if the client had been married to a woman, his wife would be able to deduct alimony payments she makes to him.

The government allows people to deduct alimony payments to encourage ex-spouses to make support payments. The deduction gives one spouse a financial incentive to support the other after a breakup. Fred writes:

It is the tax-deductibility aspect of spousal support that allows us, as lawyers, to try to come up with creative ways to address the issue if at all possible. We try to maximize the tax benefit and use it in a way that reduces overall income tax liability to maximize the dollars that exist to benefit the now-separated family.

The impact to Fred's client and his ex-partner was particularly large because their income levels were high enough that they were paying federal income tax at the maximum rate. Because his ex-partner has no tax incentive to make alimony payments, the client may not receive the support he needs to continue his lifestyle after the dissolution.

But deducting alimony payments is just one of the many income tax deductions available to married (and divorced) couples. These deductions encourage couples to do things that the government believes are good for each other and society in general.

Because the IRS doesn't recognize gay relationships, the government can't give the same encouragement to same sex couples. Repealing DOMA, then, would not just put same sex and opposite sex couples on an equal footing--it would also allow the government to use tax laws to encourage gay couples to make socially beneficial choices.

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When paying federal taxes, it can pay to be gay.

The IRS doesn’t recognize gay marriage because of the Defense of Marriage Act. Even if you’re officially married in one of the states that allows it, you still have to file as single for your federal taxes.

This unequal treatment, however, lets gay couples take advantage of their single-filer status by using tax-avoidance techniques that married straight couples, who have to file jointly, can’t use.

Today I’m going to focus on just one of these techniques: deferring the recognition of gain on the sale of your property.

What happens when you sell property

Normally, when you sell property, you have to recognize as income how much the property has increased in value. So if you buy a house for $50,000 and sell it later for $100,000, you must recognize and pay taxes on $50,000 of income.

Alternatively, you could sell the $50,000 house to someone who promises to pay you $100,000 in 10 years. In that case, you won’t have to recognize the income until the buyer pays you 30 years from now. This is called an installment sale.

Deferring income by selling to your spouse

A married couple might think to defer the recognition of gain on their property by combining these two ways of selling property.

Consider a married couple: Amy and Bob. Amy gives a house she bought for $50,000 to her husband Bob in exchange for a promise by Bob to pay Amy $100,000 in 30 years. Bob now owns the house.

Then, Bob sells the house (now worth $100,000) to some third party for $100,000 in cash. Bob has no income on this sale because he gave up something worth $100,000 (the house) in exchange for the same amount in cash.

Taken together, the couple has gotten rid of their $50,000 house for $100,000, but doesn’t have to recognize the $50,000 of income until 30 years from now.

Sound too good to be true? It is. The IRS prevents married couples like Amy and Bob from doing this kind of transaction. Specifically, the IRS doesn’t recognize any gain or losses in transactions between married couples.

So what actually happens is that when Amy gives Bob the house, Amy never reports any income on it, and Bob will own a house still worth $50,000, not $100,000. When Bob sells the house to that third party for $100,000, he must recognize $50,000 in income immediately. The end result is the same as if Amy had just sold the house herself to the third party.

But what if you’re a gay couple?

Gay couples can exploit the tax code to defer recognition of property gain. Because the IRS treats gay couples as unrelated people, the rules that prevent married couples from using the above technique don’t apply to them. Therefore, gay couples can structure their property transactions to defer income tax on any property one of them owns that has increased in value. In the $50,000 house example, the couple could sell the house for $100,000 without recognizing the $50,000 of income for years.

[This post appeared today as a guest post over at Queercents, a personal finance blog serving the lesbian, gay, bisexual, and transgender (LGBT) community.]

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Six states have "everything but marriage" laws, which grant same sex couples the same rights the states give to married opposite sex couples. The idea is to give gay couples everything marriage includes except for the actual name.

It doesn't work.

The Lewiston Sun-Journal reported the findings of a New Jersey commission that the state's civil union law creates second class citizens:

The commission held three public hearings last year at which the majority of the testimony came from people who were in civil unions and said they were still not being treated the way married couples are by government agencies, employers and others. . . [It found] that gay couples in Massachusetts, the only state that now allows same-sex marriage, do not experience some of the legal complications that those in New Jersey do.

The second class status has real effects. Insurance companies governed by federal laws will sometimes deny joint coverage to gay couples in a civil union, but will grant that coverage to couples married in states like Massachusetts.

The commission also found that everything but marriage laws hurt children, making it difficult to grow up with gay parents or accept their own sexuality.

Joanna Grossman, law professor at Hofstra Law School, explains the two major disadvantages to the second class status that everything but marriage brings:

The creation of a "separate but equal" status often visits stigma and insult on those who partake in it, and civil unions are no exception. . . Second, couples who entered into civil unions encountered practical difficulties stemming from the newness and the scattered out-of-state recognition of the status.

I've written before about the out of state recognition difficulties that couples in domestic partnerships and civil unions face.

The combination of problems shows that everything but marriage laws lack more than just the marriage label.

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Continuing the weekly Basics feature, this week is all about automobile insurance.

How gay couples handle car insurance depends on their legal relationship.

Married Couples and Civil Unions:

Insurance companies will generally treat gay couples in a legal marriage, civil union, or "everything but marriage" domestic partnership the same as married straight couples when it comes to car insurance.

However, car insurance is governed by state law of where you live. If a gay couple entered into one of these relationship in one state, but live in a state that doesn't recognize their relationship, then a car insurance company doesn't need to treat them like a married straight couple.

Everyone Else:

You're going to end up paying more than a married straight couple.

Let's say you and your partner each own your own car. You will each have to get a separate insurance policy, naming your partner as a secondary driver. This is more expensive than having a single policy for a married couple.

Alternatively, one person could sell (or give) the car to his partner. Then, the person owning both cars could get a single policy and name his partner as a secondary driver.

If you'd rather keep actual ownership separate, but still have one policy, you could try transferring title while documenting ownership separately. But this is risky, and a car insurance company may use this as evidence of fraud to deny coverage.

Secondary Coverage:

Car insurance usually covers people not just for when they drive their own cars, but also for when they drive rental cars or any other car they don't own. But typically this secondary coverage only applies to the policy holder and her family members.

So, couples in undocumented relationships, domestic partnerships, and anything less than "everything but marriage" relationships will find it hard for a single policy to cover both partners for unowned vehicles.

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When it comes to out of state recognition of same sex relationships, names are important. Laws that recognize out of state "gay marriage" do not necessarily also recognize "civil unions" and "domestic partnerships."

Even when these unions and partnerships give gay couples everything but marriage in name, they are still at risk of non-recognition from other states because they are called something else.

Joanna Grossman, a law professor at Hofstra Law School, explains what can happen with out of state recognition laws:

Even within the few jurisdictions that do or may recognize same-sex marriages, many same-sex couples will find themselves unprotected. New York's broad pro-recognition stance, for example, does not apply to other statuses like civil unions.

As a result, New York granted recognition of a Canadian gay marriage, but denied recognition of a Vermont civil union. The fact that Vermont civil unions provide the same rights as marriage does didn't matter because the relationship was not called a "marriage."

Even in Washington, D.C., the most recent place to pass a recognition law, civil unions and domestic partnerships from one of the many states that offer them will probably not be recognized.

These conflicts over names show that providing gay couples with the same rights as married couples, but not the marriage name, does not really give them the same benefits. Married opposite-sex couples have no problems with out of state recognition. But gay couples in an "everything but marriage" domestic partnership or civil union may have to leave their rights at home.

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Tomorrow, on August 1, Wisconsin will begin recognizing same sex domestic partnerships. Ironically, by giving these partnerships only a few rights, the recognition will probably survive a lawsuit challenging its constitutionality.

Like most states [PDF], Wisconsin has a constitutional ban against gay marriage. Despite the ban, however, the Wisconsin legislature wanted to give same sex couples rights traditionally held by married couples.

The state faced a tricky situation:

• Its constitution bans not just gay marriage, but anything that looks "substantially similar" to marriage.
• If the state were to give domestic partnerships too many rights, they would look too much like marriage and be unconstitutional.
• But grant them too few rights, and gay couples would still be left without family protections used by married couples.

So as much as it wanted to, the legislature couldn't pass an "everything but marriage" law, such as the one Washington state passed in April.

Instead, Wisconsin’s solution was to give domestic partners hospital visitation and inheritance rights, but not most tax, property, and divorce rights. All together, domestic partners will receive about 40 of the more than 200 rights the state gives married couples.

Dale Carpenter, a  civil rights professor at the University of Minnesota Law School, thinks some states with constitutional bans on gay marriage will use the Wisconsin law as a model to give gay couples more rights:

The Wisconsin law...begins a process by which state legislatures around the country will be testing the reach of some of the recent state constitutional amendments banning [same sex marriage] and civil unions.

But I see two problems if Dale is right.

First, laws like this make it hard for domestic partners to understand their rights. Same sex couples in these states will ask, "Which rights do we get? Which rights are left out?" The Wisconsin law may give more rights to domestic partners, but it does nothing to ease the legal uncertainties that they commonly face.

Second, these laws could increase the differences among states in domestic partnership rights. The handful of rights that one state chooses may be different the handful that another state chooses. These laws will make traveling or moving to another state more difficult.

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