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

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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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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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.

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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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A study by Naoimi Goldberg of the UCLA Law Williams Institute says that same sex couples have less retirement income than straight couples, but only if they're women. The study was the first to look exclusively at elderly (65+) gay couples.

The study makes numerous findings, but three of them particularly interested me:

1. Female couples rely less on employee-sponsored pension plans.

They're offered the plans less: while 50% of female same sex couples have at least one member eligible for such a plan, 56% of straight couples and 79% of male same sex couples do.

And they participate in the plans less too: only 46% of female couples have one member participate, compared to 52% in opposite sex couples and 69% in male couples.

2. Female couples rely more on social security for income.

Social security makes up 36% of female couples' income, but only  33% of straight couples' and 31% of male couples'.

Even then, female couples get about 15% less in social security payments. Overall, female couples make about 20% less than opposite sex ones.

3. Male same sex couples make more money during retirement.

But this doesn't come from retirement income (social security, retirement plans, rentals, and dividends). Male couples are 21% less likely to have income from those sources.

On the other hand, they're 60% more likely to to have wage income at retirement age. This suggests they don't retire as early as opposite sex and female couples.

Check out the study [PDF]  to read about more about the differences in retirement income between male and female same sex couples.

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Many attorneys think they don't need to keep up with laws affecting gay and lesbian rights if their practice doesn't involve those laws.

They're wrong. Here's why:

1. Gay clients like attorneys that understand their unique legal needs.

Gays are a picky demographic. They are more likely to buy services from firms that target them specifically or that have a good reputation in the gay community. Gay people respond better to attorneys who care about them by keeping up with laws that affect their rights.

Even if your practice area has nothing to do with same sex family law and estate planning, you will earn a gay client's loyalty by showing that you follow the laws that personally affect him.

2. Gay clients are less likely to reduce spending on legal services in a recession.

The recession has reduced demand for most services, but gay people have reduced spending less than straight people. Don't be surprised if gay clients want legal work more often than straight ones as the recession continues.

Keeping up with the laws affecting their rights makes them loyal, coming back to you instead of going to your competitors.

3. Metropolitan legal centers are more gay than the rest of the country.

Gays make up 1-4% of the population in most cities, but are more concentrated in the country's major legal centers:

San Francisco - 15.5%
Seattle, Boston, Atlanta - 13%
NY, LA, Chicago - 6%

Other metropolitan areas are similarly concentrated. Your clients are more likely to be gay if you practice in a big city.

4. Gay people are better conduits of social media.

Gay people read blogs more than straight people and are more likely to seek professional advice on the internet. They're also more likely to share information through Facebook and Twitter, and are almost twice as likely to be on LinkedIn.

Smart lawyers build reputations through blogging and social media. They'll get more bang for their buck if they get gay influencers to listen to them.

5. Laws affecting gay people impact various practice areas.

Court decisions on gay family rights frequently affect the rights of straight couples.

Tax decisions, especially regarding filing rules and wealth transfer taxes, affect the rights of all unmarried households, including brother-sister, roommates, parent-child, and pre-married ones.

With Democrats in charge, expect new laws to spur litigation in various practice areas:

• This past weekend, the President said he'd end the military's "Don't Ask, Don't Tell" policy. When he does, military litigation will pick up.
• If the Senate expands the federal hate crimes law to protects gays (the bill already passed the house), expect litigation that affects hate crimes generally.
• Employment attorneys should watch the Employment Non-Discrimination Act. Its passage would make courts address legal issues about a new protected class.
• A DOMA repeal would mean constitutional litigation on state vs. federal rights, as many states have their own versions of DOMA.

Attorneys don't have to be experts in laws affecting gay rights. But they'll benefit from spending a few minutes to follow them as they develop.

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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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A decade ago, same sex couples raising children were rare. It would have been stupid for an attorney back then to focus on same sex estate planning: there was no demand.

How times have changed. 

An article by ABC News explains what is being called the "gayby boom":

Just under one percent of all couples in the U.S. -- or 594,391 people -- identify themselves as gay, lesbian or transgender, and about 20 percent of them are raising children under the age of 18.

Not only has the number of gay families increased, but so has legal recognition of their relationships. This new recognition means that more gay couples will need tailored legal advice.

For example, an article in the Wisconsin Law Journal discussed the new opportunities for lawyers created by the recently enacted Wisconsin domestic partnership law:

[T]he addition of Ch. 770 in the Wisconsin Statutes may be encouraging more same-sex couples to explore their options when it comes to estate planning. . . [A]s more couples register, they will evaluate whether to change their estate planning documents, wills and trusts to incorporate the benefits of the law.

Attorneys should not wait for national legal recognition before marketing to gay couples. Not only are various cities and states passing their own domestic partnership laws, but the complexity from having so many different laws in various jurisdictions only increases the need for creative services that attorneys can provide.

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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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