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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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Seattle University Law School professor Julie Shapiro had a interesting post this past weekend on why lesbians should think twice before using a known sperm donor.

Professor Shapiro points out what's unique about a California where a lesbian couple split up five months after one woman gave birth to twins. Now they fight for custody.

Smith [the non-birth mother] is not simply opposed by Quale [her former partner, the birth-mother] but also by Wallace [the sperm donor], and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.

It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household. 

I agree. While Smith, the non-birth mother, might have a legitimate claim to keeping parental rights, I doubt the court will do anything other than award full parental rights to the birth mom and dad. Especially since the the lesbian couple split up just five months after the twins were born.

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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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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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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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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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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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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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Unfortunately in this economy, a lot of people are getting laid off. Yet if those people worked for a company with more than 20 employees, a federal law called COBRA lets the laid off employees keep their health benefits from their employers for a set amount of time.

In fact, if the health benefits covered the employee's spouses and children, COBRA lets them keep their benefits too.

But same sex spouses are out of luck. That's because DOMA prevents federal recognition of gay marriages or relationships. While gay employees can keep their health coverage under COBRA, their same sex spouses and domestic partners cannot.

It doesn't even matter if the employer covered their partners in the first place. Employers only have to continue coverage if (1) the state where the employee worked has its own state-level version of COBRA and (2) the state makes employers treat domestic partners as spouses when it comes to health benefits. The only state that qualifies? California.

Jeff Kunerth of the Orlando Sentinel reported how the lack of COBRA coverage for domestic partners affects gay couples:

For gay couples, the exclusion from COBRA means the uncovered partner must seek individual health insurance — which can be costly to find or impossible to get.

Matthew Everett started looking for insurance when his partner was laid off by Disney after 11 years. Under his partner's policy through Disney, the couple paid $128 per month for medical insurance. Everett expects to pay twice that, or more, if he can find an insurance policy.

It may be awhile before DOMA is repealed, so gay couples will have to sit out this recession without their partners getting COBRA coverage. Hopefully the next time the economy tanks, federal law will apply equally to same sex couples.

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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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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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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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