Connecticut Recognizes Right of Same-Sex Marriage

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

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

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

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.

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?

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

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

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

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

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."