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Maine Governor Signs Legislature's Bill Approving Same-Sex Marriage Equality

2009-05-06T19:49:00.003-04:00

As reported by NBC's reported Domenico Montanaro, Maine Governor Maine's Governor John Baldacci on Wednesday signed a bill, which only days earlier had been passed by the Maine Senate and House, into law affirming the right of same-sex couples to marry. Maine becomes the fifth state to recognize same-sex marriage, and only the second state to do so by legislative action.

The other four states that presently allow same-sex marriage are Connecticut, Iowa, Massachusetts and Vermont. "In the past, I opposed gay marriage while supporting the idea of civil unions," Baldacci said in a statement. "I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."

The following is an Maine Governor Baldacci's full statement:

I have followed closely the debate on this issue. I have listened to both sides, as they have presented their arguments during the public hearing and on the floor of the Maine Senate and the House of Representatives. I have read many of the notes and letters sent to my office, and I have weighed my decision carefully. I did not come to this decision lightly or in haste.

I appreciate the tone brought to this debate by both sides of the issue. This is an emotional issue that touches deeply many of our most important ideals and traditions. There are good, earnest and honest people on both sides of the question.
In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to a civil marriage.

Article I in the Maine Constitution states that 'no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against.'

This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State," Governor Baldacci said. It guarantees that Maine citizens will be treated equally under Maine's civil marriage laws, and that is the responsibility of government. Even as I sign this important legislation into law, I recognize that this may not be the final word. Just as the Maine Constitution demands that all people are treated equally under the law, it also guarantees that the ultimate political power in the State belongs to the people.

While the good and just people of Maine may determine this issue, my responsibility is to uphold the Constitution and do, as best as possible, what is right. I believe that signing this legislation is the right thing to do.

Maine Senate Passes Same-Sex Marriage Bill; House of Reps to Vote Next Week

2009-05-01T07:57:00.003-04:00

On Thursday, April 30, 2009, Reuters reported that Maine's Senate has passed a bill that would make it the fifth in the country to allow gay marriage. The legislation, which will go to a vote in the state House of Representatives next week, seeks to redefine marriage as the legal union of two people rather than between a man and a women. The bill passed in the Senate on Thursday by a 20-15 margin.

The Gay-Marriage Roundup:

In November, Connecticut became the second state to allow legal same-sex weddings after neighboring Massachusetts' top court ruled in 2003 that a ban on gay marriage was unconstitutional, paving the way for the first same-sex marriages in the United States the following year.

In a single week in April, Iowa and Vermont also legalized same sex marriage. And on Wednesday, New Hampshire's state Senate approved a gay marriage bill, about a month after its House approved it. The bill needs New Hampshire Governor John Lynch's signature to become law.
Gay marriage legislation has yet to advance in Rhode Island.

Why Adoption Is Absolutely Necessary for Same-Sex Couples (Yes, Even in Massachusetts!)

2009-04-17T09:10:00.019-04:00

As tens of thousands of same-sex couples take advantage of various equal marriage laws and civil union statutes throughout the country, it is important to remember that the patchwork quilt of laws regarding same-sex families is largely unfinished.

So while there is much cause for celebration, we should remember that the federal government refuses to recognize any kind of same-sex relationship; that the nation's largest single employer (the military) will not tolerate homosexuals (much less recognize same-sex relationships); that same-sex couples are not treated equally in the application of immigration laws; and that throughout the country there are laws that ban adoption by homosexuals, that permit discrimination in employment and housing on the basis of sexual orientation, and prohibit any recognition of same-sex relationships. In response to the aforementioned laws and prohibitions, same-sex couples are forced to spend time and money on domestic partnership agreements, estate and health care planning to obtain even the most basic protections for family and loved ones. Failure to plan can have truly devastating and unintended consequences for same-sex couples and their families.

When it comes to child-rearing and parenting for same-sex couples, this national patchwork of rights, prohibitions, and outright discrimination can be catastrophic and downright terrifying. I advise my clients (and the various LGBT legal advocacy groups agree) that the only way to guarantee the recognition of their legal parent-child relationship is by petitioning the Court to grant a Co-Parent Adoption.

Your State-Sanctioned Same-Sex Marriage/Civil Union/Domestic Partnership Does Not Guarentee A Legally Enforceable Parent-Child Relationship. A recent New York case - Debra H. v. Janice R. - highlights this fact particularly well.

Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis (what we would call De Facto Parental Status in Massachusetts) to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.

However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years. The Court's reasoning is clear and unambiguous:

"Although the record indicates that petitioner served as a loving and caring parental figure during the first 2½ years of the child's life, she never legally adopted the child. ... This matter is governed by the Court of Appeals decision in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]), which provides that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70..."

The New York Court denied parental status to Debra even though it recognized that the child had been "born approximately one month after the parties entered into a civil union in the State of Vermont, and more than two months after they registered as domestic partners in New York City".

The Constitution Requires That States Give Full Faith And Credit To The Judgments Of Another State. In a recent Federal Court decision, the State of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy, and that it could refuse to issue an amended birth certificate.

Rejecting the state's argument, the District Court Judge Jay Zainey explained that the well-settled meaning of the federal constitution's "Full Faith and Credit Clause" requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. Importantly, the judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." On Summary Judgment, Judge Jay Zainey ordered the State Registrar to honor the valid New York adoption judgment and issue an amended birth certificate to the adoptive same-sex parents.

This case reminds us that although a state is constitutionally required to recognize the judgment of a foreign jurisdiction, it will not be equally compelled to recognize foreign statutory schemes or regulations (see: same-sex marriage or civil union) that violate its laws or public policy.

But Will My Spouse And Children Be Protected By Our Valid Same-Sex Massachusetts Marriage?

Yes! But only in Massachusetts.

In the case of heterosexual married couples, it has always been the case in Massachusetts that a child born during the marriage is legally presumed to be the biological child of both the husband and wife. With full legal recognition of same-sex marriage in 2004, married same-sex couples should receive the same presumption of parenthood here Massachusetts, although I am not aware of any cases that have tested this right.

Same-sex couples should not rely on the Massachusetts presumption of parenthood alone to establish a legal parent-child relationship between a non-biological parent and child. Put another way, if your only legal connection to a child is through your same-sex marriage, your parent-child relationship is only as valid as your same-sex marriage. Because only four states currently recognize same-sex marriage, the chances of ending up in a state that treats you as a legal stranger to your same-sex spouse and your same-sex spouse's child is great.

Regardless of whether your same-sex marriage is valid at the time of the birth of your children, or whether you wish to parent your same-sex partner's biological children, only a final and binding Adoption Decree will guarantee the creation of a universally recognized and legally valid parent-child relationship.

Given the uncertainty caused by a patchwork of new and untested state laws recognizing and banning same-sex relationships, same-sex couples should consult with an attorney to ensure that all of their exceptions and assumptions surrounding their rights are correct, especially if there is a child involved. Adoption is the only guaranteed method of creating a legal parent-child that will be recognized by other states. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a stressful or tremulous time can make an unpleasant situation terrifying and even dangerous.

Japan Offers Recognition of Same-Sex Marriages Abroad

2009-04-10T07:15:00.003-04:00

As reported by the AP, Japan's Justice Ministry announced on March 27, 2009 that it has begun issuing marriage-eligibility certificates to Japanese citizens who plan to marry someone of the same sex in a foreign country where same-sex marriage is legal.

For Japanese nationals, whether they are gay or not, to marry foreigners in foreign countries, they must obtain certificates from the ministry by submitting documents including their name, birth data, sex and nationality, and similar information about their marriage partner.

The ministry has so far rejected the issuance of such certificates to Japanese citizens seeking to marry same-sex partners of foreign nationality as such marriages are not approved under domestic law. Because the Justice Ministry would not issue the requisite eligibility certificate, Japanese gays and lesbians were blocked from marrying a same-sex foreigner, even if their marriage partner's country approved of same- sex marriage.

Under the latest decision, the ministry will issue a new type of certificate which will only clarify that the person has reached the legal age for marriage and that he or she is single. Under the changed policy, gays and lesbians in Japan will be able to bring a foreign same-sex spouse to live with them in Japan.

Same-sex marriage is legal in Belgium, Canada, the Netherlands, Norway, South Africa, Spain, Sweden, and the U.S. states of Connecticut, Iowa, Massachusetts, and Vermont.

Vermont 4th State in Nation to Recognize Same-Sex Marriage

2009-04-07T07:44:00.005-04:00

Update: Breaking News: Vermont 4th State in Nation to Recognize Same-Sex Marriage

As reported by the AP on April 7, 2009:

Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature's vote.
The Legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override.
The vote came nine years after Vermont adopted its first-in-the-nation civil unions law.
It's now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts.

As Expected, Vermont Governor Vetoes Same-Sex Marriage Bill; Legislature Prepares for Override Vote

As reported by the New York Times on April 7, 2009:

Gov. Jim Douglas vetoed a bill that would legalize same-sex marriage, setting the stage for an override vote by the legislature. Mr. Douglas, a Republican, announced in March that he would veto the bill, which the Senate passed overwhelmingly and the House of Representatives approved 96 to 52. The House needs five more votes for a successful override.

As reported by the AP on April 7, 2009:

As expected, the Vermont Senate has overridden the governor's veto of a bill that would allow same-sex marriage.
The House planned to take up the issue later Tuesday, but it's unclear whether there are enough votes to override the veto by Gov. Jim Douglas.

If there are, Vermont would become the fourth state to legalize marriages of gay and lesbian couples.

The others are Massachusetts, Connecticut and Iowa.

Iowa High Court Upholds Recognition of Same-Sex Marriages

2009-04-03T08:49:00.000-04:00

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In a unanimous decision on Friday, April 3, 2009, the Iowa Supreme Court held that the state's decade-long ban on same-sex marriages was unconstitutional and furthered no legitimate state interest. Before yesterday's ruling, only Massachusetts and Connecticut allowed same-sex marriage. New York has said it will recognize such unions performed in other states. California allowed same-sex marriage for about five months last year before the ballot initiative banned it.

The Iowa Supreme Court decision upholds a lower court's ruling which declared that a 1998 state law defining marriage as a union between a man and a woman violates the equal protection clause of the Iowa Constitution.

"We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective," the justices wrote.

The decision will take effect in 21 days unless a rehearing is requested. Attorneys for Polk County, which challenged the earlier ruling, indicated that the county will not request a review, meaning that same-sex couples will be able to apply for marriage licenses in Iowa in three weeks. The only other recourse for overturning the decision is a state constitutional amendment, which would take at least two years to be adopted.

Click here for a copy of the entire opinion of the Iowa Supreme Court.

For more information from a local Iowa news affiliate, click here.

Vermont House Passes Same-Sex Marriage Bill; Seeks Senate Approval Friday - then to Governor

2009-04-03T07:13:00.003-04:00

As reported by the Burlington Free Press:

MONTPELIER — The Vermont House voted 95-52 on Thursday night to allow same-sex couples to marry in Vermont. The tally suggests it might be difficult for the House to override a promised gubernatorial veto of the bill that would need 100 votes, though supporters said they would push for that.

The vote came at 9 p.m. Thursday after four hours of impassioned debate on the bill in a chamber filled with supporters and opponents. Rep. Bill Lippert, D-Hinesburg, chairman of the House Judiciary Committee, spoke on the House floor about gays and lesbians in his community — carpenters and nurses and maple sugarers — and of his own relationship with his male partner.

“That’s who we’re talking about here today,” he said. “These couples are living everyday lives of ordinary and extraordinary significance.” Lippert declared that the civil unions law he helped craft nine years ago could not provide complete equality. “People know what it means when you say you’re married,” he said.

Rep. Johanna Donovan, D-Burlington, agreed. “There’s only one thing truly equal to marriage and that’s marriage,” she said. “Now is the time to give civil unions a respectful burial.” Like Lippert, several legislators who are gay or who have gay family members spoke emotionally of their own circumstances.

“I didn’t choose to be gay,” Rep. Steve Howard, D-Rutland, said. “God made me gay. I begged him not to make it so,” he said. “I stand because nobody should be ashamed of how God made them.” With his voice breaking from emotion, Rep. Jason Lorber, D-Burlington, described seeing the notice about his union with his partner under the heading “civil union” in the newspaper. “Why do we have to be off to the side,” Lorber said. “Why do we have to say you are different? Why can’t we just say congratulations?”

Rep. Tim Jerman, D-Essex Junction, said he hopes his daughter, a lesbian, will be able to come home to marry when the time comes.

There were a few surprises from legislators. Rep. Kurt Wright, R-Burlington, said he was undecided going into the debate. Quoting a letter from former Sen. Peter Brownell, who lost his seat over civil unions but didn’t regret his support, Wright said he would support the bill.

Other legislators spoke about why they could not support the bill. “It’s not easy to speak against this bill,” said Rep. Thomas Koch, R-Barre. “Marriage in my understanding has for the ages been one man and one woman. Now we take it upon ourselves to change that definition.” Rep. Albert “Sonny” Audette, D-South Burlington, apologized for voting no. As a Catholic, he said, he could not vote to change marriage.

Efforts to derail the bill failed. Rep. Robert Helm, R-Castleton, argued for putting the issue to an advisory public referendum next March, asserting that the public has not had sufficient time to debate the issue. The measured failed by a vote of 96-52.

Rep. Anne Donahue, R-Northfield, succeeded in amending the bill to clarify the distinction between civil and religious marriage. She was among five Republicans who voted for the bill. She was joined by Wright and Reps. Rick Hube, R-South Londonderry, Patti Komline, R-Dorset and Heidi Scheuermann, R-Stowe.

It was unclear Thursday night whether supporters of the bill could muster the 100 votes that would be needed to override a veto that Gov. Jim Douglas has said is coming. Some of the 11 Democrats who voted against the bill have said they would change course and vote for an override.

The House holds a final vote on the bill today. It then goes to the Senate, which passed the bill 26-4 last week, but would need to either concur with changes the House made or work the differences out in conference committee to send the bill to the governor.

Douglas would have five days from receipt of the bill to act on it, but has said he plans to veto it quickly. Beth Robinson, who led the push for the bill with the Vermont Freedom to Marry Task Force, counseled supporters after the vote that they need to keep calling people and knocking on doors to persuade lawmakers to vote for an override.

Sweden's Parliament Affirms Same-Sex Marriage

2009-04-02T07:17:00.005-04:00

The Swedish Parliament voted overwhelmingly on Wednesday to recognize same-sex marriage, becoming the seventh country worldwide to do so.

The new law passed on Wednesday by a vote of 226 to 22, and will become effective beginning May 1, 2009. Sweden will join the Netherlands, Belgium, Spain and Norway, Canada, and South Africa, and the US states of Massachusetts and Connecticut, in recognizing same-sex marriage.

Sweden was one of the first countries to give gay couples legal "partnership" rights, in the mid-1990s, and allowed them to adopt children from 2002.

As reported by BBC News:

"The decision means that gender no longer has an impact on the ability to marry and that the law on registered partnership is repealed," the government said on its website.
Six of the seven parties in parliament backed the bill, while the Christian Democrats, one of four parties in the governing coalition, refused.
The Lutheran Church, the largest church in Sweden, has offered to bless gay partnerships since January 2007, but has still not given formal backing to the term "marriage", and will allow individual pastors to refuse to carry out gay weddings.

Today is Transgender Visibility Day!

2009-03-31T12:39:00.005-04:00

March 31, 2009, marks the first annual International Transgender Visibility Day, with various events scheduled to take place around the globe.

According to Rachel Crandall, the creator of created Transgender Visibility Day, and head of Transgender Michigan explains the need for a day of celebration:

Unlike Transgender Day of Remembrance, Crandall said, the day of visibility aims to focus on all the good things in the trans community, instead of just remembering those who were lost. "The day of remembrance is exactly what it is. It remembers people who died," she said. "This focuses on the living. People have told me they love Remembrance Day but it really focuses on the negative aspect of it. Isn't there anything that could focus on the positive aspect of being trans?"

An article first appearing on March 26 in Issue 1713 of Between the Line News explains:

Though the event was borne out of Michigan, events all over the country and even world have popped up since Crandall put the word out on Facebook. Maryland Equality is holding an event. Members of a high school Gay Straight Alliance in Washington, D.C. are painting the transgender symbol on each other's faces. A group in Minnesota is holding a whole weekend of workshops and discussions surrounding the topic.

And in Michigan, the Ruth Ellis Center and youth trans group GenderSpark also have plans in the works to be involved with the day.

To Crandall, the enormous and viral growth of the events proves that people in the community were waiting for something just like the Transgender Day of Visibility. "I think sometimes people are thirsty for something and we may not even know it until we take the first step," she speculated. "I took the first step and people are just hungry for it."

One big change from usual events, Crandall was proud to report, is that the Transgender Day of Visibility was done all on a grassroots level, without backing from any large organizations. So more than just big events that raise money, Crandall hopes that the day will allow people to get involved as individuals - from coming out to their friends, family or coworkers, to just wearing a ribbon to show support.

"I've heard people say that if it wasn't for this, they wouldn't be doing anything out," she said. "...I think a lot of trans people are just looking for an opportunity to actually do something, not only to write a check. They want to actually do something and I think this day is giving them something to actually do."

In a March 27 article by author, professor, and lecturer John Corvino discusses the need for a Transgender Day of Visibility, on his perspective as a gay man.

Some gay people wonder why we get lumped with the transgender community at all. Sexual orientation is one thing, they say, and gender identity is another.

That’s true as far as it goes, and perhaps it’s better to talk about our overlapping communities than about a single GLBT community.

Still, the alliance makes sense insofar as both (overlapping) groups suffer from rigid social expectations about sex and gender. Compare “If you’re born biologically male, you should grow up to be a man” with “If you’re born biologically male, you should grow up to love a woman.” The similarities between the two inferences seem to outweigh the differences.

Then there are those who question whether linking GLB to T might slow down GLB political progress, insofar as society has a harder time with trans issues than sexual- orientation issues.

Even if you find those who raise such questions insensitive, it’s hard to argue that they’re being irrational. In general, society does have a harder time with trans people than gay, lesbian, or bisexual people, which is one reason why the trans community needs and deserves our support.

The bottom line is that there are a lot of us who could benefit from frank and open dialogue about all of these issues. Transgender Day of Visibility is an important step in that direction, and gays—and everyone else—should support it.

Contact your local LGBT Community Center to learn more or if there is no events planned, why not start one!

For more information, including events, about International Transgender Visibility Day, check out the facebook page of Rachel Crandall, one of the founders of the day.

Same-Sex Marriage Bills Gain Ground in New England, to Become "Marriage Equality Zone"

2009-03-27T07:50:00.011-04:00

The states of Vermont, New Hampshire, and Maine each moved closer this week to becoming the next New England state to recognize same-sex marriages after Massachusetts and Connecticut.

NEW HAMPSHIRE - The AP reported on Thursday March 26 that the New Hampshire House has voted 186-179 in favor of recognizing the right of same-sex couples to marry. The bill now moves to the New Hampshire Senate, where its future is uncertain.

Democratic Gov. John Lynch has said he opposes gay marriage, but hasn't said whether he would veto the legislation if it made it to his desk. Two years ago, New Hampshire gave gay couples the right to enter into civil unions.

According to the AP, the first attempt to pass the gay marriage bill in New Hampshire fell one vote short in the House, but opponents were unable to kill it. The House then reconsidered and passed the measure Thursday.

VERMONT - Vermont, the first state in the Nation to succesfully (cf. Hawaii) introduce civil-union legislation back in the 1990s, voted Monday March 23 on a bill to recognize same-sex marriage equality in the state. The marriage bill, which passed the Vermont Senate by an overwhelming majority vote of 26-4, now heads to the Vermont House for a vote in the coming days.

Republican Governor Jim Douglas has said he disagrees with the bill, and has expressed his intention to veto the bill if given the chance. The bill would require a 2/3 majority vote in both the Senate and the House in order to survive the Governor's veto.

If the bill becomes law, Vermont will become the first state to legalize same-sex marriage without being forced to do so by the courts.

MAINE & RHODE ISLAND - Next month Maine lawmakers plan to hold a legislative panel for the purposes of hearing a bill to recognize same-sex marriage, just as Rhode Island did back in February.

Nationwide, only the states of Connecticut and Massachusetts allow gay couples to marry.

Beware the Generic Health Care Proxy: Potential Problems and Unforseen Consequences

2009-03-10T13:18:00.012-04:00

Attorney Todd Ratner of the Western Massachusetts law firm of Bacon\Wilson recently wrote an article about the possible dangers of filling out a generic Health Care Proxy at a hospital or clinic. The message to clients: not all health care proxies are equal.

Potential Problems. Hospitals often encourage or direct patients to complete a generic Health Care Proxy upon arrival to an emergency room or in advance of an operation. While the boilerplate form supplied by a hospital is legally sufficient and simple to complete, it does not necessarily cater to your specific circumstances and needs.

Furthermore, your admission to a hospital is not necessarily the best time to consider and make decisions regarding a possible terminal illness or to consider and select your health care decision-maker. It is obviously better, if given the opportunity, to contemplate and make important health care decisions in a less stressful situation and prior to the occurrence of a stressful or emergency medical event.

It can also be a problem if you have already executed a Health Care Proxy as part of your overall estate plan, and you then hastily fill-out and sign the hospital form. Execution of the new form revokes your prior Health Care Proxy, thereby stripping you of the carefully thought-out intentions provided for in the prior, now revoked document.

A Well-Drafted Health Care Proxy. The best Health Care Proxies are not simply forms, but are powerful legal instruments that address your unique concerns and intentions. A well-drafted Health Care Proxy should address the following:

Living Will Language: Whether or not you wish to be kept alive by machines in the event that independent physicians concur that you are in an irreversible coma or other terminal condition with no chance of recovery
Organ Donation: Whether or not you wish to be an organ donor
Creation or Burial: Whether or not you wish to be cremated or buried
Burial Instructions: Where and how you wish to be buried
HIPPAA Sufficient Language: Authorizing another to review, request, and receive your medical documents while you are incapacitated
Statement Regarding Same-Sex Marriage: A provision that prevents a hostile jurisdiction or change of law with regard to your same-sex marriage from revoking the entire instrument

If you already have a well-drafted Health Care Proxy. If you already have a well-prepared Health Care Proxy, be sure to ask the hospital whether they require you to fill out their generic form. If they do not, then instruct them that they should consult your existing Health Care Proxy. If you have a well-drafted Health Care Proxy sitting in your home or office file cabinet, prepare a letter to your primary care physician instructing her to place the instrument in your medical file; they are required to do so by law upon request.

If you do not have a well-drafted Health Care Proxy. An experienced estate planning attorney can provide you with the alternatives and options available to make the document suitable for your situation so that you do not have to rely on a boilerplate form filled-out under less-than-ideal circumstances.

What is a Health Care Proxy?

Live Blogging from inside California Supreme Court on Proposition 8

2009-03-05T14:30:00.005-05:00

The California Supreme Court hears arguments today on whether Proposition 8, the anti-gay-marriage initiative, should be upheld and, if so, whether the marriages of an estimated 18,000 same-sex couples should remain valid.

Follow the LA Times streaming blog reported from inside the California Supreme Court.

Massachusetts Married Couples File Federal Suit Challenging the Federal Defense of Marriage Act (DOMA)

2009-03-04T09:39:00.011-05:00

Several married same-sex couples filed a lawsuit in Federal District Court in Boston on Tuesday, March 3, challenging the 1996 Federal Defense of Marriage Act (DOMA).

Specifically, the plaintiffs in Gill, et al vs. Office of Personnel Management, et al challenge Section 3 of the Act which overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs. Under DOMA, the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to an opposite sex husband or wife. The law suit does not seek to force states to recognize gay marriages performed in other states, but demands that the federal government treat all married couples, as defined by the states, equally under federal law.

The plaintiffs each allege they have suffered a real and tangible harm under DOMA, including: (i) the denial of a passport in married name; (ii) denial of income and other tax benefits; (iii) denial of retirement and pension benefits; (iv) denial of social security benefits, and other federal rights and protections.

According to GLAD:

The federal rights and protections denied to committed gay and lesbian married couples and surviving spouses include some of the critical legal safety nets that couples count on when they marry and that help them fulfill their responsibilities to one another as they plan their lives and futures, have children, cope with the loss of a spouse, and for which they contribute their American tax dollars. It harms them, their children and their other dependents.

According to Scott Wu, one of the lead GLAD attorneys for the Plaintiffs:

Our legal argument is that [the portions of section three targeted in the lawsuit are] a violation of our federal government’s guarantee to treat citizens equally by refusing to recognize the marriages only of same-sex couples, and that principle of equality should apply in other contexts if we’re successful," said Wu. While GLAD believes the suit stands a strong chance of reaching the Supreme Court, Wu said it was too soon to tell how long it might take to get there.

You can meet the various plaintiffs by clicking here.

Regina Spektor and the California Courage Campaign: "Please Don't Divorce Me"

2009-02-10T14:13:00.003-05:00

The "Courage Campaign" has joined up with singer Regina Spektor and more than 18,000 married same-sex couples and their families in California to urge the California Supreme Court to strike down Proposition 8 as unconstitutional and restore marriage equality in California.

"Fidelity": Don't Divorce... from Courage Campaign on Vimeo.

The Supreme Court will hear oral arguments in this case on March 5, 2009, with a decision expected within the next 90 days.

To read the Courage Campaign's letter and sign the Petition to the California Supreme Court, click here.

Judge: New Jersey Recognizes Same-Sex Marriage for Purposes of Divorce

2009-02-08T13:43:00.006-05:00

As reported by the Associated Press on February 6, 2009:

A state judge has ruled that gay marriage is recognized in New Jersey for the purpose of divorce.
The wider implications of Friday's ruling aren't immediately clear. But State Superior Court Judge Mary Jacobson says New Jersey has a long history of recognizing marriages that are valid where they were performed. New Jersey doesn't let gays marry but does allow civil unions, which extend the benefits of marriage to gay couples.
La Kia and Kinyati Hammond were married in Canada in March 2004 and lived in Maryland. La Kia Hammond says she needs a divorce recognized in Canada so she can marry another woman there.
The state has not said whether it will seek an appeal.

Barring an appeal of the ruling by the state, same-sex couples from states like Massachusetts, Connecticut, and California may also seek a divorce in the New Jersey courts.

Registrar of Motor Vehicles: Proof of Surgery No Longer Needed to Change Gender Marker on ID

2009-02-05T09:23:00.008-05:00

According to a January 21, 2009 letter sent from Massachusetts Registrar of Motor Vehicles Rachel Kaprielian, individuals will no longer be required to provide proof of completed sex reassignment surgery in order to change the gender marker on driver's licenses and IDs.

Under the new policy, individuals will be allowed to specify the gender with which they identify without providing proof of sexual reassignment surgery or an amended birth certificate. In her letter, Kaprielian calls the changes "fair, reasonable and sensible".

According to the letter sent directly from Kaprielian to MassEquality's Marc Solomon:

"Under this new policy, it is no longer necessary to submit medical proof of sex reassignment surgery. The agency understands that this requirement is often very difficult, if not impossible, for many individuals to satisfy.
Under the new policy, an individual who wishes to change the gender marker will submit an updated application together with a Gender designation Change Form, signed by him or her and a medical provider attesting to the gender that the individual considers himself or herself to be.
In addition, the Registry of Motor Vehicles will no longer require an individual to provide an amended birth certificate in support of the new gender designation marker."

The RMV letter to MassEqualty announcing the new changes can be viewed here.

Columbia's Highest Court Grants Same-Sex Couples Equal Rights

2009-01-30T15:12:00.004-05:00

As reported in the Latin American Herald Tribune January 30, 2009:

BOGOTA -- The Colombian Constitutional Court has recognized the civil, political, social and economic rights of same-sex couples.

The president of the high court, Humberto Sierra Porto, told reporters that to make possible the recognition of these rights, parts of the criminal and civil codes, as well as some parts of military regulations, will have to be modified. The ruling means that property of homosexual couples that is considered part of the family possessions, including the home, can not be embargoed or distrained.

On the other hand, if a foreigner enters into a same-sex union with a Colombian in Colombia, he or she may obtain Colombian citizenship if and when that union has been under way for more than two consecutive years. Members of same-sex couples cannot be forced to testify against their partners.

Regarding public officials, when one takes the oath of office, that person's same-sex partner - if any - will also take the office.

As reported by 365Gay.Com January 30, 2009:

(Bogota) Colombia’s Constitutional Court has upheld a lower court ruling that the government must provide same-sex partners with all of the rights that opposite-sex couples have. Last year, LGBT rights groups went to court seeking health and other government benefits. Last April, a lower court ruled that same-sex couples are implicitly covered under the constitution’s guarantee of equal rights for all citizens.

The ruling also said that to exclude same-sex partners would violate the principle of non-discrimination and human dignity as the expression of personal autonomy, protected by international law. The Constitutional Court decision means same-sex couples will have pension, survivor and property rights.

[...]

All legal progress made in the last five years in Colombia has been accomplished through decisions by the Colombian Constitutional Court.

"Until Death Do Us Part": Texas Denies Couple Gay Divorce

2009-01-26T08:32:00.000-05:00

In a predictable move, the Texas legal system has just thrown out the case of a gay Dallas couple seeking to file for divorce. The petition, which was filed on Jan. 21 in Dallas County’s 302nd District Court, sets up a legal showdown over whether courts will grant divorces to same-sex couples who’ve married legally in another state.

Texas, which has a constitutional amendment defining marriage as the union between a man and a woman, doesn’t recognize the same-sex marriages of other states. In 2003, the state Attorney General’s Office ruled that a same-sex couple from Beaumont couldn’t use a Texas court to dissolve the civil union they obtained in Vermont.

Attorney Peter Schulte represents one of the the two men, who were married in Massachusetts in 2006, "My clients want to move on with their lives," Schulte said, "but they've got to do it so there's no financial or political burden left on them with having this marriage kind of sitting out there."

If the men were to attempt to file for divorce in Massachusetts, where they were married, the Family and Probate Court would also throw out their case, but for a different reason. Under these circumstances, Massachusetts requires that one party to the marriage establish residency for a period of 1 year in order to bring the marriage (and therefore, the divorce) within the jurisdiction of the court.

The Massachusetts residency requirement presumes that if neither of the parties to the marriage has lived in the state for at least 1 year, another state is probably the more appropriate forum for the divorce action. This presumption places an undue burden on same-sex couples, who often cannot obtain divorce in the state where they reside.

The ramifications of this legal dispute go well beyond the couple's own marriage. Same-sex marriage opponents in Texas are correct to assert that by allowing same-sex divorce, the courts are impliedly recognizing same-sex marriage. After all, one of the prerequisits for filing divorce in any state is that the parties did, indeed, have a valid marriage to begin with.

Peter Schulte, who represents the plaintiff, has stated that he will appeal the case and argue that the United States Constitution dictates that states must recognize valid out-of-state same-sex marriages for the purposes of granting divorce.

While this case is a first for Texas, it is not the first nationwide. Recently, a same-sex couple in Rhode Island was denied a divorce for the same reason. Another same-sex couple in Iowa was successful in obtaining a divorce from a local court there.

VT, NH & ME Consider Equal Marriage Rights Legislation

2009-01-16T15:28:00.006-05:00

From the AP at Bay Windows on January 16, 2009.

According to a report by the Associated Press, and published by , State Sen. Dennis Damon (D-Trenton) said he is introducing a bill to rewrite Maine’s existing statute that defines marriage as between one man and one woman, instead defining it as a union between two people. In addition, it recognizes gay marriages from other states.

"Currently there is discrimination. Heterosexual couples who have decided to spend their lives together are treated differently than same-sex couples who have ... that same commitment to each other," Damon said. "I don’t see the fairness of that. I don’t see the need for that, and this bill will put an end to that."

Maine currently has a domestic partnership registry that’s open to same-sex couples. But that’s not enough for gay marriage supporters. Damon says it’s time to "fully end discrimination in Maine."

In New Hampshire, a bill has been submitted to the legislature to replace the term "civil union" with "marriage" in the state's 1-year-old civil union law. Vermont, the first state in the nation to permanently establish civil unions is now also likely to consider a gay marriage, or marriage equality, bill.

Currently, full same-sex marriage rights are recognized in only Massachusetts and Connecticut. New Jersey, California, New Hampshire, and Vermont currently have civil union statutes.

Changing Your Legal Documents to Reflect Your Sex: Part 5 of 5

2009-01-07T15:11:00.006-05:00

Part 5 of 5: Obtaining a New Massachusetts Driver's License.

For a relatively nominal fee of $15.00, an individual can request that the Registry of Motor Vehicles issue a new driver's license which reflects their appropriate name and sex designation. It should be noted that an individual need not change his or her name in order to change their sex designation.

Name: The applicant must go in person to the local Registry of Motor Vehicles to request a change of name on their license (a list of local Registry branches can be found here). The applicant must present the clerk with (a) old license, (b) paperwork certifying your new name, and (c) the new name, as found on the individuals social security card.

Sex Designation: In order for an individual to change the sex designation on his or her license, he or she must provide the following (a) a notarized physician's statement indicating completion of sex reassignment surgery, (b) paperwork certifying your new name, and (c) an amended birth certificate.

It might be helpful to review the Massachusetts RMV's Application for Change of Information prior to going into your local branch. For additional help, information and support, visit the Massachusetts Transgender Political Coalition website.

Connecticut Considers Transgender Antidiscrimination Protections

2009-01-06T17:13:00.006-05:00

The Hartford Courant reported today that Connecticut legislators will introduce a Transgender Anti-discrimination Bill sometime during this legislative session. The proposed bill would seek to prevent discrimination on the basis of one's gender expression or identity.

As the Courant points out, Connecticut has long prohibited discrimination based on gender and sexual orientation, and was one of the first states in the Nation to outlaw bias against gays and lesbians. Still, similar bills have been proposed and failed in Connecticut over the last several years, the most recent one in 2007. According to the article:

The proposal would extend those protections to people whose appearance doesn't mesh with gender stereotypes, such as women who favor traditionally "masculine" clothing or hairstyles, or men who appear effeminate.Such individuals would be protected even if they don't view themselves as transgendered.

The term transgender covers a wide variety of people, including: transsexuals, who physically alter their gender through surgery or other means; cross-dressers; and intersex individuals who are born with ambiguous genitalia.

The organization Love Makes a Family has long been a key part of the coalition behind the gender identity bill. "This is something that's been a priority for our organization for several years now," said Carol Buckheit, associate director of Love Makes a Family. "Certainly, we're going to redouble our efforts in support of this legislation."

The article can be read in its entirety by clicking here.

Changing Your Legal Documents to Match Your Sex: Part 4 or 5

2009-01-06T14:19:00.004-05:00

Part 4 of 5: Obtaining an Amended Birth Certificate in Massachusetts.

After an individual has completed sex reassignment surgery, and has had his or her name legally changed in the Probate Court, he or she may apply to have his or her birth record amended to reflect the newly-acquired sex and name.

Name: The applicant must submit to the appropriate clerk a certified copy of the legal name change court order.

Sex Designation: The applicant must then provide to the clerk with an original notarized statement indicating completion of sex reassignment surgery. It is important that the physician use the words "completed sex reassignment surgery" with regard to your surgery, not merely that s/he "performed" surgery.

Fee: According to Massachusetts Registry of Vital Records official website, "The fee for amending a record at the Registry is $50.00. Before you come in to the Registry offices for an amendment or correction, you must speak with a Registry representative first. That way, when you come in, you will be prepared with the necessary evidence or paperwork that will allow the correction to be made. Call: (617) 740-2603 or email: vital.regulation@state.ma.us

Registry of Vital Records
150 Mount Vernon St.
1st Floor
Dorchester, MA 02125-3105

Vaughn-Martel Law Has Moved!

2008-11-30T11:07:00.020-05:00

Vaughn-Martel Law has moved its offices to a new address in the heart of Boston's South End neighborhood:

530 Tremont Street
Boston, MA 02116
617-357-4898 Tel.
617-357-4899 Fax.
866-606-4188 Toll-free
E-mail attyvm@vaughnmartel.com
Web www.vaughnmartel.com

Vaughn-Martel Law was founded as the Law Office of Christopher Vaughn-Martel in 2006, and continues to serve individuals, families, and small businesses throughout Massachusetts.

For contact information, maps, and directions, click HERE.

California Supreme Court Agrees to Hear Proposition 8 Challenge

2008-11-19T19:05:00.021-05:00

On Wednesday, the California Supreme Court agreed to hear three legal challenges to Proposition 8, according to the AP.

Proposition 8, the ballot initiative which amended the California Constitution to limit civil marriage to opposite-sex couples, passed on election day with the support of 52% of California voters amended the California Constitution.

All three cases argue that Proposition 8 violated the fundamental civil rights of a vulnerable minority group.

A copy of the order granting review of petitioners' cases can be viewed here: http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/S168047_S168066_S168078-11-19-08_ORDER.pdf

California Voters Approve Proposition 8: Same-Sex Marriage Rights Revoked

2008-11-06T09:49:00.012-05:00

Election Day, November 5, 2008: Proposition 8, which limits marriage in California to heterosexual couples, passed Tuesday with 52 per cent support, only 5 months after the California Supreme Court legalized same-sex marriage last earlier this year.

Since the Supreme Court recognized same-sex marriage in June, it is estimated that more than 18,000 same-sex couples obtained marriage licenses. Although the California Attorney General will recognize those marriages which tool place between June and November, their legal status is far from settled. What is clear is that same-sex couples will no longer be able to obtain a marriage license in the state of California.

Many commentators have suggested that the California Amendment is singularly unique, in that it strips away the fundamental civil rights of a minority group by a vote of the majority electorate.

Three lawsuits have already been filed in the state of California to challenge the Amendment on procedural grounds. Any challenge to the substance of the Amendment is likely to fail before the California Supreme Court, which is bound to interpret the Constitution as written. However, there is a chance that one or more lawsuits on the issue of same-sex marriage rights will make it's way before the United State Supreme Court.

It's likely that same-sex marriages which were granted in California between the months of June and November, when the Amendment was approved, will be recognized in other states that either grant or honor same-sex marriages, like Massachusetts, Connecticut, and New York.

Changing Your Legal Documents to Match Your Sex: Part 3 of 5

2008-10-23T16:52:00.026-04:00

Part 3 of 5: Name Change in the Massachusetts Probate Courts.

Changing one's legal name in Massachusetts is designed to be a fairly easy and straightforward process. Under Massachusetts law, a name change "shall be freely granted unless such change is inconsistent with public interest". Massachusetts General Laws Chapter 210 Sec. 12. All paperwork and fees should be submitted in the Probate Court in the county where you currently reside.

1. Obtain, prepare and submit a Change of Name Petition (CJP-27). This form can be downloaded and printed directly from the Probate Court website, or by requesting one from a clerk of the Probate Court;

2. Submit a copy of birth certificate or naturalization papers;

3. Pay a court filing fee of $165.00;

4. Publish a notice of name change in the local newspaper.

Each county probate court maintains its own specific procedures, so it is important to check with the court clerk before sending in any paperwork.

The Court is under no obligation to investigate or inquire into the motive or reasons that prompts one to change his or her name, so long as the name change is not for an unlawful, fraudulent or dishonest purpose. Assuming that no person files an objection to your petition and the court finds no reason to refuse it, the name change will be approved without a court hearing.

Once approved by the court, it is important to request at least four (4) certified copies. You will need certified copies in order to amend your birth certificate, obtain a new license, etc. Generally, an ordinary copy will suffice for things like checking and savings accounts, shopping clubs, and credit card accounts.

A list of the probate courts in Massachusetts, together with contact and other helpful information, can be found here.

Connecticut Recognizes Right of Same-Sex Marriage

2008-10-15T15:24:00.018-04:00

On Friday, October 10, 2008, the Connecticut Supreme Court held in the case of Kerrigan & Mock v. Dep't of Public Health, that same-sex couples have the right under Connecticut state law to enter into marriage.

The Supreme Court decision overturns the ruling of a lower court which had held that state-sanctioned civil unions offered the same rights and benefits to same-sex couples. The decision of the Supreme Court, Connecticut's highest court, cannot be appealed, and will go into effect on October 28, 2008.

By way of history, the Connecticut legislature enacted a statute in 2005 creating civil unions similar to those created in Vermont, New Hampshire and New Jersey. In 2007, when a similar bill came before the legislature which would provide full marriage equality, the legislature tabled it. Meanwhile, eight same-sex couples had brought a lawsuit against the State of Connecticut after each had attempted to apply for a marriage license in the town of Madison, and was denied. The plaintiffs argued that civil unions were constitutionally inadequate, and provided for the unequal treatment of gay and lesbian citizens.

Justice Richard Palmer, who wrote the majority opinion for the court, wrote that the "segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm," in light of "the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody."

Connecticut is now the third state in the nation to recognize the right of same-sex couples to marry, following Massachusetts in 2004 and California in May of 2008. Just like the states of Massachusetts and California, the Connecticut decision only allows gay couples the state benefits of marriage. The Defense of Marriage Act, which was passed in 1996, continues to deny gay couples federal recognition of their marriages, including rights and benefits in connection with Social Security, taxation, immigration and others.

To read the opinion of the justices of the Connecticut Supreme Court in Kerrigan & Mock v. Dep't of Public Health, click here.

To view an interactive map of states that permit civil unions and same-sex marriage, click here.

The above photograph is credited to Shana Sureck for The New York Times.

Changing Your Legal Documents to Match Your Sex: Part 2 of 5

2008-10-04T21:19:00.027-04:00

A passport is an essential legal document for every citizen. Without it, an individual will be unable to travel outside of the United States, including to Canada and Mexico.

Part 2 of 5: Passports. Because passports are issued by the federal government, the procedure to obtain a new United States passport that accurately reflects one's name and sex designation is uniform regardless of your state of residence.

To obtain a passport for the first time, an individual must go in person to one of the more than 9,000 passport acceptance facilities located throughout the United States. In order to locate a passport acceptance facility nearest to you, click here. You will need two photographs of yourself, proof of U.S. citizenship, and a valid form of photo identification such as a driver’s license.

In order to effectuate a change of name and sex designation on a passport, a person must obtain and fill out the appropriate form from the United States Department of State website. If it has been less than one year since a current passport was issued, a person can request a new passport free-of-charge by filling out Form DS-5504. If it has been over a year since a current passport was issued, a person must fill out Form DS-82 and pay a $67.00 fee.

In order to obtain a change of name on a passport, an applicant must enclose a certified copy of the court decree granting the name change. For a change of sex designation on your passport, an applicant must enclose a certified copy of his or her new birth certificate, reflecting the change of sex. Certified birth records can be obtained by filling out a Request Form and sending it to the Registry of Vital Records and Statistics.

For further information, visit http://travel.state.gov or visit the National Passport Information Center.

Changing Your Legal Documents to Match Your Sex: A Five-Part How-To Series

2008-09-30T20:39:00.035-04:00

INTRODUCTION. For better or worse, our legal IDs and documentation define who we are. Whether it is a social security card, a passport, a driver's license, or employee security badge, our legal documentation provides us with rights, privileges and access to society, travel, emergency assistance, health care, education, and other important social and governmental institutions. It tells the world who we are and affirms who we know ourselves to be.

The following five-part series is meant to provide a basic framework for transgender persons whose legal documentation no longer reflects their actual sex/gender identity.

PART 1 OF 5: SOCIAL SECURITY CARDS. Because Social Security cards are issued by the federal government, the procedure for obtaining a new Social Security card is the same in every state. To apply for a Corrected Card, you must obtain and fill out Form SS-5 by calling 1-800-772-1213, visiting www.ssa.gov, or by visiting your local Social Security office.

In order to effectuate a change of name, you will need to provide at least one document that shows your old name and at least one document that shows your new name. If possible, it is best to provide either photographic documentation or documentation which contains sufficient information (name, age, date of birth, parents' names, etc.) to identify you.

Documents acceptable to the Social Security Administration include a driver's license, employer ID card, passport, adoption record, marriage/divorce record, school ID card, health insurance card, etc. Documents must be either originals or copies certified by the issuing agency. All documents will be returned to you.

There is no fee for changing the name on your Social Security card, and you should receive your new card within two weeks.

In order to change the gender designation on your Social Security card, you must be able to provide a letter from an attending physician or surgeon verifying that "sex change surgery has been completed". This requirement is not uniformly enforced, and a letter from a health care provider stating that the applicant is undergoing treatment may suffice.

Go to the next in the Series, Part 2 of 5: Change of Name in the Probate Courts.

The information contained in this article is derived largely from the Transgender Legal Issues pamphlet published by GLAD, which can be viewed in its entirety here.

DOJ Ruling Undercuts DOMA: Children of State-Recognized Same-Sex Relationships May Collect Federal Benefits

2008-08-27T20:44:00.010-04:00

The federal Defense of Marriage Act, passed in 1996, prohibits the federal government from extending (or forcing states to extend) rights or benefits to same-sex couples and their children, even if those relationships enjoy marriage, domestic partner, or civil union status under state law.

However, as states across the country begin to affirm the rights of same-sex couples and their children - including access to the institutions of marriage, divorce, spousal benefits, and child support and custody - the justifications and practical workability of DOMA is being directly challenged. Notably, a recent ruling issued by the US Department of Justice (DOJ) instructed the Social Security Administration (SSA) that it must extend federal benefits to the non-biological child of a woman in a Vermont civil union.

In this ruling, the DOJ considered the case of Monique and Karen, who had obtained a civil union in Vermont in 2002. In 2003, Monique gave birth to a little boy named Elijah. Karen did not formally adopt Elijah because, under Vermont's civil union statutory scheme, he was considered a child of both Monique and Karen. The same year Karen, Elijah's non-biological parent, began receiving social security disability benefits. Then and now, DOMA prohibited general recognition of a legal parent-child relationship between Elijah and Karen.

Under existing SSA regulation, children of adults who receive benefits have traditionally been entitled to benefits in their own right. Previous SSA regulations define a "natural child" based on "the law on inheritance rights that the State courts would use to decide whether [the individual] could inherit a child's share of the insured's personal property if the insured were to die without a will". 20 CFR §404.355(b)(1)(2007). In other words, if an individual would be considered the child of a benefits recipient under his own state's inheritance laws, the individual would be considered an eligible child for federal social security benefits purposes.

In this case, the SSA was in a quandry. Although Elijah was a "natural child" of Karen under Vermont law, the parent-child relationship was derived from a same-sex civil union statute that the federal government was expressly prohibited from recognizing under DOMA. The SSA was unclear whether it could distribute federal benefits to Elijah, who was only related to Karen by way of her same-sex civil union to Monique. The DOJ decision deftly circumvented DOMA, and directed the SSA to distribute federal benefits to Elijah since Elijah was considered Karen's "natural child" under Vermont's intestacy statutes.

The Elijah ruling is signifigant because the SSA was instructed to treat Elijah as Karen's son even though he was related to Karen under Vermont's intestacy laws only by way of Karen's same-sex civil union to Monique.

The full impact of the DOJ ruling has not been adequately reported or commented on. After all, it is only a small crack in the expansive and largely untested Defense of Marriage Act, which denies thousands of federal rights and benefits to same-sex families and children. However, the ruling seems to indicate that federal benefits that are granted according to state definitions of family and parentage (including states that recognize same-sex marriages and unions) will not be denied despite the fact that DOMA specifically prohibits federal recognition of those same-sex relationships.

It is important to note that the Elijah decision will not provide benefits for non-biological children of same-sex parents in states that refuse to recognize the marriage or civil union of the parents. For example, even Elijah's benefits would terminate if Karen and Monique were to move their family to a state that did not recognized their union. Same-sex parents of children can avoid this result by speaking with an attorney and making sure that both spouses have legally adopted their children and have created a flexible estate plan to fill the gaps created by DOMA and similar discriminatory state laws.

The full text of the opinion can be found on-line at http://www.usdoj.gov/olc/2007/saadomaopinion10-16-07final.pdf.

Out of State Same-Sex Couples Cleared to Marry in Mass.

2008-07-31T20:01:00.005-04:00

On Thursday, July 31, Massachusetts Governor Deval Patrick signed a bill repealing a 1913 law which was being used to deny out-of-state same-sex couples the ability to legally marry here in Massachusetts. The repeal passed swiftly in the Senate earlier this month on a unanimous voice vote, after passing in the House on a vote of 118 to 35.

The law repealed by Governor Patrick on Thursday was originally passed in 1913 as an effort to prevent couples, including interracial couples, from obtaining a marriage license in Massachusetts if they could not legally obtain one in their home state. The old law was dusted off with the help of former governor Mitt Romney, who used the law to prevent out-of-state same-sex couples from obtaining marriage licenses in Massachusetts in the wake of the Supreme Judicial Court's landmark decision in Goodridge v. Dep't. of Public Health (2003). The constitutional validity of the law was later affirmed in the Supreme Judicial Court's decision in Cote-Whitacre v. Dep't of Public Health (2004).

The traditional waiting period for new legislation was waived, making the repeal effective immediately. Out-of-state same-sex couples who are otherwise qualified to marry can begin to apply for marriage licenses in Massachusetts as early as Friday, August 1, 2008. The change in law here in Massachusetts will not have any direct effect on whether and how other states choose to treat married same-sex couples. It remains to be seen whether the rights and obligations of divorce, custody, child and spousal support, and property distribution will be available to these married couples upon their return to their home states.

With an estimated 32,000 out-of-state same-sex couples poised to take advantage of Massachusetts marriage equality in the next three years (according to a study commissioned by the state Executive Office of Housing and Economic Development), litigation and civil rights suits will undoubtedly follow these couples as they return to their home states, challenging the complex network of state and federal laws and amendments which currently prohibit same-sex marriage.

Massachusetts is now the second state in the Union (following California's recent court case) in which out-of-state gay couples can obtain a valid marriage license, even if same-sex marriage is illegal in their home state.

What is a Homestead Declaration and Can it Protect my Family?

2008-07-02T14:46:00.006-04:00

Whether it is a house, a condo, or a townhouse, our homes are more than just where we live - they are often our largest single asset and our most significant investment. For that reason, it's important that homeowners take advantage of the Massachusetts Homestead Act, which offers homeowners and their families significant protection from creditors.

How it Works. A homeowner who files and records a Declaration of Homestead with the appropriate Registry of Deeds acquires an Estate of Homestead, which the equity value of your primary residence, up to $500,000 above any mortgage on the property, from the reach of creditors. Only homeowners who record a Declaration of Homestead for their residence are eligible for these protections. And time is of the essence, as the protections afforded by the Declaration of Homestead will apply only to debts or claims that arise after the Declaration is recorded.

What it Does (and Doesn't) Protect Against. A Declaration of Homestead might come into play in the following scenarios: (i) where a homeowner gets into a car accident and the injured party seeks an attachment against the home; (ii) where an unsecured creditor seeks to obtain an attachment or pre-judgment lien against the home; or (iii) where the homeowner is a business owner, lawyer, or medical professional who is subject to professional liability or other law suits.

A Declaration of Homestead will not protect against all debts or claims, however, and the most significant exclusions include: (i) debts or claims acquired by the homeowner prior to the recording of the Declaration; (ii) for debts arising out of the Homestead (like mortgages); (iii) a judgment execution issued by a probate court to enforce the payment of support to a minor child or spouse; and (iv) it will not prevent the recording of a tax lien or the sale of the homestead for debts in the nature of local, state, or federal taxes.

Will it Protect Same-Sex Couples and their Families? The Homestead act protects the owner of real property (whether a sole owner, joint tenant, tenant-by-the-entirety, or tenant-in-common) and his or her family. Under the Act, a "family" may consist of (i) a sole owner, (ii) spouses, (iii) a parent and his or her children, and (iv) spouses and their child or children. Because the Act is a creation of Massachusetts law, and federal tax and marriage laws to not apply, the protections afforded by the Declaration of Homestead apply equally to same-sex couples and their children as to opposite-sex couples.

When an individual who has recorded a Declaration of Homestead passes away, the law continues to protect the primary residence until the youngest child, if any, turns 18 or becomes married and until the surviving spouse, if any, dies or remarries. Even though the same-sex spouse of an owner is protected by the Homestead Act, any biological children of the non-owner spouse should be properly adopted by the owner spouse to ensure the full protection of the residence for their benefit.

Legislation has been filed which would make the Homestead protection available automatically to the owners of real estate. If and until such legislation passes, owners must prepare and record a Declaration of Homestead in order to protect their property. Usually, an attorney can prepare this relatively simple form for a small flat fee (in addition to the court filing fee of $35.00) and record it in the appropriate registry.

California Gay Marriage Primer

2008-06-14T10:30:00.003-04:00

Now that gay marriage is set to become legal in California on June 17, 2008, how will it actually work? The following is a short list of articles and resources to help guide prospective brides and grooms in the state of California:

Online LGBTQ magazine EdgeBoston has posted a very brief Q & A on the practical details of gay marriage in California: "Cali Gay Marriage 101". For example, "QUESTION: What’s required [to get married]? ANSWER: All that’s required of straight couples: A valid ID proving you’re both 18 or older. Most counties accept walk-ins, but appointments get speedier service.And the cost? In Sacramento County, for example, it’s $77 for a marriage license; $86 for a ceremony."
A June 13, 2008, Los Angeles Times article outlines in greater detail some of the logistic and practical questions facting clerks, advocates, and those seeking to obtain a same-sex marriage in California, including whether same-sex marriages performed in Massachusetts, Canada, or Spain will be automatically recognized by California on June 17, 2008.
The California Department of Public Health website has published updated Marriage License Information, including an update which includes updated marriage forms, and an open letter of instruction to all the county clerks and recorders.
The website WeddingVendords.com is posting updated information on same-sex marriage in California, including the cost of a license, residency requirements, change-of-name information, as well as a directory listing the addresses and telephone numbers of each of the county clerks in California.
About.com has posted an article with more information on applying for a marriage license in the state of California.

To all those who plan to take advantage of marriage equality in California when it becomes legal on June 17, 2008, and the countless others who may choose to do so in the future, congratulations!

Domestic Violence in the Gay Community; Information and Resources

2008-06-07T14:07:00.006-04:00

The Gay Mens Domestic Violence Project in Cambridge, Massachusetts, estimates that 1 in 4 gay men will experience some sort of abuse in the context of an intimate relationship with another man. A 2002 study conducted among approximately 2,881 men in the cities of San Fransisco, Los Angeles, New York, and Chicago, reported the following rates of abuse among men in relationships with other men:

Psychological/symbolic battering 34%
Physical battering 22%
Sexual battering 5%

The Massachusetts Abuse Prevention Act (M.G.L. c. 209A, commonly referred to as "209A") defines abuse as the occurrence of one or more of the following acts between family or household members:

attempting to cause or causing physical harm;
placing another in fear of imminent serious physical harm; or
causing another to engage involuntarily in sexual relations by force, threat of force or duress.

Chapter 209A protects victims of abuse regardless of the gender of the victim or perpetrator. According to the GMDVP website, some examples of the types of relationships covered by "209A" include: an ex-lover/partner, a lover/partner living in the same household, a lover/partner living in a different household, a spouse or an ex-spouse, a roommate/housemate, a caregiver living in the same household, a person with whom you had or have a dating-type relationship, for a while.

As the Gay Mens Domestic Violence Project website points out, domestic violence can affect victims in almost every aspect of their life, including Housing, Education, Employment, Immigration, and Child Support/Visitation.

One option for victims of abuse, although not always the most effective, is to obtain a restraining order against their abuser in the Probate and Family Court or District Court. A person may seek a restraining order, regardless of sexual orientation, age, gender, or marital status, to prevent future incidents of abuse. Violation of a restraining order by the abuser is a criminal offense in Massachusetts, and there are no court costs for victims in obtaining one.

Through a restraining order, you can ask a judge to order any or all of the following:

that the abuser not abuse you from now on (typically known as “refrain from abuse”)
that the abuser leave the apartment or house if you live together (a “vacate order”) regardless of whether the abuser’s name is on the lease or mortgage; (an order requiring the abuser to leave his or her leased apartment or owned home will be temporary)
that the abuser surrender weapons (guns), ammunition and/or Firearm ID Card, etc.
that the abuser stay a certain distance away from you; that the abuser have no further contact with you, whether directly or through a third party (for example through friends, co-workers, or family members)
that you be granted temporary custody; temporary child support; reimbursement for expenses related to the abuse
that the abuser return items that they possess which would grant them access to you, including keys, garage door opener, etc.

The GMDVP publishes a two-page Domestic Violence Services Brochure, which can be downloaded here in its entirety, and which contains information on identifying abuse, getting emergency help, safety and legal resources, and support.

California Supreme Court: Gay Marriage Ban Unconstitutional

2008-05-15T13:35:00.003-04:00

On Thursday, May 15, 2008, the California Supreme Court struck down California's ban on same-sex marriage and ruled that the state's current Domestic Partnership laws were constitutionally inadequate in an historic 4-3 decision.

The cases under review were brought by the city of San Francisco, two dozen gay and lesbian couples, Equality California and another gay rights group in March 2004 after the court halted San Francisco's monthlong same-sex wedding march that took place at Mayor Gavin Newsom's direction.

The legal issues involved in the California case differed slightly from court cases brought in other states, like Vermont and Massachusetts, because California's statutory Domestic Partnership scheme already provides same-sex couples access to essentially all the rights, privileges, and responsibilities as opposite-sex married couples. In this way, the dispute was less about substantive tangible rights, which same-sex couples already theoretically enjoyed in California, and more about the constitutionality of providing a separate-but-equal statutory scheme for same-sex couples.

As the Court put it, "the question ... is whether ... the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution."

Also of interest is that the California Court (unlike Massachusetts) framed its constitutional equal protection analysis of classifications or discrimination on the basis of sexual orientation as one deserving a greater scrutiny, or "strict" judicial scrutiny, requiring the state to demonstrate the classification to be "necessary" for the purposes of some "compelling state interest".

The court reasoned that, in "Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest."

In reaching its decision, the Court drew heavily from the tradition of cases overturning laws barring interracial marriage, (like Perez v. Sharp and Loving v. Virginia) when it proclaimed that "Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."

The Court decided in its majority opinion, "that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

In practical terms, the court issued a Writ of Mandate directing all state and local officials and clerks to take the steps necessary to carry out the ruling of the Court, and to perform their duties in a way that is consistent with the Court's decision. The Court remanded the decision to the Appeals Court for further necessary action consistent with therewith.

The full text of the California Supreme Court decision, In Re: Marriage Cases, can be viewed here in its entirety.

Mildred Loving, Plaintiff in Interracial Marrige case (Loving v. Virginia) Dies at 68

2008-05-05T18:13:00.001-04:00

In 1967, Mildred Loving and her husband, Richard, pictured left, successfully challenged Virginia's laws prohibiting marriage between persons of different races. The unanimous landmark Supreme Court decision in Loving v. Virginia (which can be viewed here in its entirety) not only struck down state anti-miscegenation laws like the one in Virginia, but would also become an essential tool in the legal fight for same-sex marriage equality.

In striking down Virginia's law, which made it a criminal offense to marry a person of a different race, the Court drew on both Equal Protection Clause and Due Process Clause principles.

The Equal Protection Argument

The Court found that, "there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race."

The Court would reason that, "At the very least, the Equal Protection Clause demands that racial classifications, ... if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate."

The justices concluded there were no articulable rationales for the law other than hateful and invidious discrimination on the basis of race. The Court held that without such a permissible (or even rational) state objective, anti-miscegenation laws worked to deprive the plaintiffs' of their Constitutional guarantee of equal protection under the laws.

The Due Process Argument

The Court's Due Process Clause analysis in the Loving Decision is also significant to those who continue to advocate for a continued expansion of marriage equality.

In its Decision, the Court examined the very institution of marriage itself, and described it as one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)." The Court went on to reason that, "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

The last paragraph of the Decision proclaims that, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

This Constitutional declaration would reverberate and resurface decades later as same-sex couples presented their families and relationships to the Courts for legal recognition and protection.

The Fight for Expanded Marriage Equality

Although numerous important cases would provide fertile soil for the groundbreaking Massachusetts same-sex marriage case of Goodridge v. Dep't of Public Health (Griswold v. Connecticut, Romer v. Evans, Lawrence v. Texas, Baehr v. Lewin, Baker v. State of Vermont, etc.), the powerful and analogous Loving v. Virginia decision would provide a narrative backdrop for the Massachusetts decision.

For example, the Court observed that, "Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

And just as the Supreme Court had done in the Loving case, the Massachusetts SJC waded through the State's proffered rationals for a prohibition on same-sex marriage and found that: "The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

The Court concluded that "Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."

Talking to Children About LGBTQ Familes A Free Online Resource

2008-04-25T14:14:00.001-04:00

Even before children are old enough to understand verbal language, they are learning about and observing human relationships, identity, and family structures. For all parents, it can be challenging to communicate difficult concepts such as marriage, reproduction, adoption, and human relationships.

For LGBTQ parents, we may find it especially difficult to talk about and explain our families and relationships to children in age-appropriate ways. Consider the following: "Where do I come from?" - "Why am I the only brown one in our family?" - "Some kids asked me if my mom is a lesbian. I don't know what to do." - "Why does Maria have a mom and a dad?" - "Everyone uses 'gay' as an insult and the teachers don't say anything."

The Boston based Family Equality Counsel has produced a free six-page publication entitled Talking to Children About our Families to help LGBTQ parents talk about and explain their families to children of various ages. Download it here. The publication contains age-appropriate language and examples of the type of questions you might expect from your own children or other children in your life.

As the publication explains:

"The presumption of a mother and father creating a child (which may be valid for some of our children) is one with which our children will be saturated through their daily interactions with children’s books, the media, school personnel, peer discussions and exposure to various family models. It is your job as a parent, whether you identify as part of the LGBTQ community or not, to teach your children about different family constellations."

and goes on to point out that:

"Very young children are not naturally inclined to make judgments about family structure. They see family configurations as a matter of fact. As children become a part of the larger peer culture, they will be exposed to other peoples' judgments of their families. The earlier children are given appropriate information about their lives and their families, the easier it will be for them to understand and appreciate them."

Ten Thoughts on Advanced Health Care Planning

2008-04-04T17:43:00.002-04:00

None of us ever expects or plans to become ill or injured. However, it is likely that each of us will - at one time or another - be unable to make or communicate our own health care decisions. Whether the medical condition is temporary or permanent, each of us has the opportunity while we are alert, competent, and healthy to appoint another person as medical decision-maker just in case. Often this takes the form of meeting with an attorney to execute a Health Care Proxy and perhaps a Living Will. For gay, lesbian, bisexual and transgender people, the need to spell out our wishes and appoint an appropriate health care decision-maker is an absolute necessity.

The Forum for Massachusetts Law (http://www.malawforum.com/) recently posted Ten things to consider when contemplating or planning your advanced health care plan:

"1. Executing a Living Will is not enough. Although Living Wills are useful documents, they are not statutorily recognized in Massachusetts, and doctors and hospitals are not required to adhere to the wishes expressed in your Living Will. You need to execute a Health Care Proxy that names an Agent who will enforce your wishes.

2. In addition to identifying the Principal (you) and your Agent, your Proxy must state that you intend to grant to your Agent the authority to make health care decisions on your behalf; describe any limitations you wish to place on your Agent; and indicate that your Agent's authority becomes effective only if you subsequently lose capacity to make medical decisions. (Also, it is wise to include the addresses and telephone numbers of your Agent and Alternate, so they can be located quickly).

3. Your Proxy must be signed by you or at your direction in the presence of two adult witnesses. The witnesses must then sign and affirm that you appear to be at least eighteen, of sound mind, and under no constraint or undue influence. (It's a good idea to follow these rules if you execute a separate Living Will.)

4. The witnesses cannot be named as an Agent or Alternate Agent. And an operator, administrator, or employee of a medical facility where you are, or may be, a resident or patient cannot be your Agent, unless she is also related to you by blood, marriage, or adoption.

5. Do not hide your Proxy and Living Will in a safe. Execute five or six originals, one for your primary care physician (with oral and written instructions to place the documents in your medical records), one for your medical records at the hospital you are likely to end up at in an emergency, one for your Agent and one for your Alternate, one for your own records, and a copy for your lawyer's safe.

6. If you spend a lot of time in another state (winters in Florida, for example) you should consult an attorney in the second state to ensure that your Proxy will also be recognized there.

7. If your Agent is your spouse, and you divorce or are legally separated, your entire Health Care Proxy is revoked. In other words, your Alternate Agent cannot step in and take the place of your spouse. In this case—or if you revoke your Proxy orally or by drafting a substitute—you should collect your old documents, destroy them, and distribute your new Proxy.

8. Select your Agent and Alternate carefully. Make sure they understand your wishes and are willing to do all they can to ensure they are honored. Communication is vital.9. Express your wishes as clearly as possible in your Proxy and Living Will. Clarity and brevity will help your Agent, family, and doctor understand your wishes.

10. Communicate, communicate, and communicate.

a. Talk to your family about the wishes you have expressed in your Proxy and Living Will and tell them who you have selected as your Agent and Alternate. Surprise, hard feelings, or controversy around your hospital bed may create an unpleasant situation and could result in your wishes not being honored.

b. Talk to your doctor about your Proxy and Living Will. Make sure she, and the facility at which she enjoys staff privileges, are willing to honor your wishes."

Inside Proposed Transgender Civil Rights Legislation, Massachusetts House Bill 1722

2008-03-04T09:40:00.000-05:00

On January 10, 2007, legislative sponsors in the Massachusetts House of Representatives unveiled House Bill #1722, entitled: "An Act Relative to Gender-Based Discrimination and Hate Crimes". The Bill proposes specific statutory legal protections for transgender and gender non-conforming persons. While the Bill has a long way to go before it becomes law, it has received the support of a number of well-known state Reps, Massachusetts Attorney General Martha Coakley, and Representative Barney Frank.

The proposed Act, which can be read here, amends Massachusetts's existing discrimination laws, including the hate crimes law (M.G.L. c. 22C sec. 32), non-discrimination in education laws (M.G.L. c. 71 and 76), non-discrimination in employment and housing laws (M.G.L. c. 151B), and non-discrimination in public accommodations law (M.G.L. c. 272), to include a proscription of discrimination on the basis of "gender identity or expression".

The proposed Act defines "gender identity or expression" as "a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth." Currently, there are no laws explicitly protecting transgender persons and other persons facing discrimination or violence either (i) because their gender identity differs from their assigned sex, or (ii) whose gender identity, behavior, or appearance clashes with society's stereotypical gender expectaions.

In the absence of specific statutory authority, some lower state court judges in Massachusetts have begun to use existing non-discrimination laws which prohibit discrimination on the basis of "gender" or "disability" to find needed protection for transgender persons. According to the Massachusetts Transgender Political Coalition (MTPC), "[t]ransgender people derive some protections from ... various MCAD and court rulings but they are not explicitly protected by our laws.

The inclusion of gender identity and expression in our non-discrimination and hate crime laws achieves three important goals:

It makes a clear statement of statewide policy.
It makes clear the scope of coverage to anyone who reads the laws or encounters materials related to them.
It affirms the Commonwealth's commitment to fair treatment and freedom from discrimination, crime, and violence for all its citizens."

The Joint Committee on the Judiciary will hold a public hearing on the proposed Bill at the State House on March 4, 2008.

Civil Unions. What They Are; What They Aren't.

2008-02-26T12:31:00.001-05:00

On January 1, 2008, New Hampshire became the fourth state in the nation to grant civil unions to same-sex couples. Currently, civil unions are recognized in Vermont, New Jersey, and Connecticut, while both California and Oregon offer Domestic Partnership Laws, which offer substantially similar rights and protections.

What is a Civil Union? Civil union laws attempt to create a legal status parallel to that of marriage. The New Hampshire legislation creating civil unions is entitled, "An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples". The idea is to provide separate-but-equal rights, protections, and obligations for both same and opposite-sex couples.

No Fixed Legal Definition. Marriage creates a familial relationship between two persons which is recognized across cultures, religions, and around the world. The institution of marriage is ubiquitous and needs little explanation. In contrast, civil unions exist in only a handful of places around the world, are not imbued with universal meaning, and have no fixed legal definition. In other words, the definition of a civil union is whatever the granting state's legislature decides it is: there is no guarantee that State A will grant the same rights and benefits to a same-sex civil union as State B. And while all states have a framework for marriage creation and dissolution, not all states have a framework in place for civil unions.

Civil Unions Provide Some Tangible Benefits. Civil union laws dramatically underestimate the social and cultural significance of the institution of marriage. Even a civil union law which provides all the economic and legal rights and benefits of a marriage still deprives same-sex couples of the rich social and cultural benefits, as well as dignity and security, attached to the word 'marriage'. For an eloquent discussion on the intangible benefits associated with marriage, read the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Dep't of Public Health.

Civil Unions Provide only State Rights and Benefits. A civil union provides only some of the state rights and benefits granted to married persons, and do not confer over 1,000 rights and benefits conferred by the federal government. And while the 1996 Federal Defense of Marriage Act (DOMA) currently denies federal recognition of same-sex marriage, the likely repeal of DOMA will entitle same-sex married couples to the full spectrum of federal rights and privileges. As presently drafted, the civil union laws of Connecticut and Vermont grant only state-level rights, and do not contemplate the provision of any federal rights and privileges.

Civil Unions Invite Unequal Treatment. Same-sex marriages originating in Massachusetts are quickly spreading throughout the country. As same-sex marriages cross state lines, new states are being challenged to apply their existing marital structure to these couples, including laws relating to inheritance, divorce, adoption, spousal and child support, access to health and financial records, etc. Without a historical and legal tradition of recognition, state courts and legislatures may not be as compelled to extend reciprocal rights to civil unions. Same-sex married couples may be in a better position to challenge the federal government's unequal treatment of their marriage compared with opposite-sex marriages. Civil unions, as a separate legal institution, are susceptible to unequal treatment.

A Civil Union is Not Marriage. Although civil unions represent a momentous practical step forward for same-sex couples living in the states that grant them, a civil union is a political compromise. A civil union is not marriage.

(Given the current patchwork of various state and federal laws relative to the recognition of same-sex relationships, couples considering entering into a civil union or a marriage should consult with an attorney first, as a change in status could effect property ownership, inheritance, immigration status, adoption rights, military benefits, etc.)

Domestic Partnership Agreements

2008-01-09T15:21:00.001-05:00

A Domestic Partnership Agreement (DPA) is a contract between two persons which describes how property and assets are owned, how finances are held and managed, and how any property should be divided in the event that it becomes necessary (much like a Prenuptial Agreement). A DPA can help prevent disagreements about property and finances before they arise by encouraging communication and understanding between the parties. In the event of break up or the death of a party, a DPA can greatly ease the division and distribution of property.

Same-sex couples who choose to become married in Massachusetts are automatically subject to the well-established laws and principals governing marriage, including dissolution, property ownership and division, spousal financial support, etc. But for those couples who either choose not to be married or are unable to marry in their state, these "default" set of marriage rules do not apply.

Couples should consider creating a DPA which sets out, in writing, the intentions and expectations of both parties regarding their relationship. An Agreement of some kind is most important for couples in long-term relationships who will likely mix their assets and property, and who share expenses and other responsibilities. Even couples who find themselves to be completely broke would benefit from a written DPA which sets out how property or income will be handled when it does arrive.

You should have an attorney draft these important Agreements, especially if significant assets are involved or if a disparity exists in income or assets between the parties. A court will not enforce an agreement where one party has taken advantage of the other party, or where one party hides property or assets from the other party. To increase the chances that a court will enforce your agreement, each party should have the DPA reviewed by his or her own attorney, and a full disclosure of assets and liabilities should be made.

Pets and Estate Planning?

2007-12-20T11:05:00.002-05:00

A 2003 study conducted by GL Census Partners found that gays and lesbians are more likely to own a pet than their heterosexual counterparts. In fact, the study estimates that nearly 2 out of 3 GLBT people have a pet of some kind! And as anyone with a pet (or animal companion) will tell you, they are truly a part of your family. You vacation with them, you buy them fashionable sweaters, and care for their health and well-being.

So what does this have to do with estate planning? Well, you probably already have an estate plan in place to protect your property and your spouse or partner if something were to happen to you. But how will your loyal pets be cared for in the event that you are no longer able to look after them? Below is a brief list of options you might discuss with your attorney as you create or update your estate plan in the new year:

If you already have a will, consider including a specific bequest of your animal to a trusted caretaker, together with a sum of money to provide for the care of the animal. This is a great option for smaller estates and where you have a trusted caretaker in mind.

You might also consider creating a pet trust to provide for the care of your pet. More than 30 states have laws in place that recognize some variation of the pet trust. Although Massachusetts does not (yet) recognize trusts created for the benefit of an animal, it may be possible to create a trust for the benefit of the individual you have chosen to look after your pet or animal companion.

For short-term care in the event that you are incapacitated, you might consider drafting a limited power of attorney, which gives another person the right to act on your behalf with respect to certain property (like your animal companion), and certain assets which may be used in the care, feeding, and shelter needs of your pet.

It may also be possible to contract with an orgnization to provide a sum of money in exchange for providing shelter and medical care during the life of your pet, and/or to locate and arrange care by a foster family.

A modest life insurance policy naming your intended animal caretaker as beneficiary, either individually or in connection with a trust, could effectively be used to provide funds for the medical care, shelter, and maintenance of your animal companion if you die.

This is a new and deveping area of estate planning law, and creative solutions and options do exist. Don't forget to talk about "Spot" or "Fi-Fi" with your attorney at your next 'legal checkup'.

What is a "Health Care Proxy"?

2007-12-19T16:41:00.003-05:00

Massachusetts law allows every individual 18 years or older to appoint another person as her Health Care Agent. A Health Care Proxy is the legal instrument that appoints your trusted Health Care Agent and enables them to make and communicate important health care decisions on your behalf in the event you are unable to do so.

Whether you are unconscious for a period of hours or days as the result of an automobile accident, or incapacitated for longer periods of time as the result of a stroke or other debilitating illness, your doctors will turn to family members to make important medical decisions.

Without a Health Care Proxy, painful disagreements about your medical care can arise between family members and a spouse or partner. For example, who will be permitted to visit you in the hospital? In the event that you are in need of long-term care, should you be treated close to your same-sex partner, or close to your parents back in Connecticut? Would you want to be kept alive using 'heroic' measures such as artificial breathing and feeding, and for how long?

Even same-sex and opposite-sex married couples must prepare Health Care Proxies to prevent other family members, like parents, from attempting to take control of the medical care and medical decision-making process. (We all remember the tragic case of Terry Shiavo several years ago). Unfortunately, individuals in same-sex relationships will often have family members who are (or who may become) hostile to a spouse or partner, and who may refuse to acknowledge your relationship. This can have painful and tragic consequences during an already difficult time.

With a carefully prepared Health Care Proxy, you can ensure that your partner or spouse is legally entitled to make important and intimate medical care decisions in the event that you are no longer able.

When Should I Update My Health Care Proxy?

2007-12-11T13:48:00.006-05:00

Assuming I have a current Health Care Proxy and Living Will in place, when or how often should I have these important health care instruments reviewed or updated?

The American Bar Association’s Commission on Law & Aging suggests updating your health care wishes whenever any of the “Five Ds” occur:

DECADE – when you start each decade of your life;
DEATH – whenever you experience the death of a loved one;
DIVORCE – whenever you experience a divorce or other major family change;
DIAGNOSIS – when you are diagnosed with a serious health condition; and
DECLINE – when you experience a significant decline or deterioration of an existing health condition, especially when it impacts your ability to live independently.

In addition, I would recommend updating your health care wishes if you move to a new state, or if you are spending long periods vacationing in another state.

For same-sex couples, updates should be made whenever important changes occur in the law with respect to the legal recognition of your relationship, or if you spend substantial periods of time traveling in states that do not afford the same legal recognition or rights as Massachusetts.

Lastly, you should update your health care wishes in the event that your previous documents no longer reflect your current wishes or outlook.

Always speak with an attorney regarding the proper way to revoke or make any changes in a prior Health Care Proxy or Living Will.

Just Married? Time for a New Will!

2007-12-06T15:19:00.003-05:00

If you are one of the many same-sex couples that took advantage of the legal recognition of same-sex marriage in Massachusetts, you probably think that you've done everything you can to protect your spouse, your children and your estate. Not so fast.

If you recently got married, those wills you and your partner created years ago to protect one another are no longer valid. That is because in Massachusetts a marriage automatically revokes any wills previously made, unless the will clearly indicates that it's being made in anticipation of an upcoming marriage. Have your current wills and estate plan reviewed and updated by an attorney today so that you and your family are protected in the event of the death or disability of either spouse.

Will Massachusetts Recognize my Same-Sex Marriage?

2007-12-06T10:23:00.004-05:00

I was legally married in another country. Will Massachusetts recognize my marriage?

Yes, and congratulations! Canada, along with Spain, Belgium, the Netherlands, and South Africa all recognize the right of same-sex couples to be lawfully married. On May 17, 2004, Massachusetts became the first U.S. state to recognize same-sex marriage. Under the Supreme Judicial Court’s opinion in Goodridge v. Department of Public Health, Massachusetts must issue marriage licenses to otherwise qualified same-sex couples. The decision also means that Massachusetts must give equal treatment to same-sex couples who obtained a valid marriage license issued by another state or country, including those mentioned above.

One important caveat is worth mentioning. Due to the federal Defense of Marriage Act, often referred to as DOMA, the United States government may still discriminate against your valid marriage with respect to any of the more than 1,000 federal rights and privileges, including those relating to Social Security benefits, family and medical leave, taxation and spousal gift-giving, and many others.