Demystifying the Law: Gay & Lesbian Rights

Posted August 11, 2011 in Demystifying the Law by

Tuesday brought news of a gay Australian citizen who’s being deported from the US after getting married in Massachusetts. The US government cited the Defense of Marriage Act (DOMA)—which has been found unconstitutional by US courts and which President Obama has said his administration wouldn’t defend in court—as the reason for the deportation is that he was ineligible for a visa allowing him to stay in the US as a full citizen. Confused yet? That’s no surprise.

Today, let’s try to demystify gay and lesbian legal rights.


  • Like this article? Share it with others using this link:


Legal Rights

When you get married in the US, you immediately have certain legal rights. These include:

  • The ability to transfer property to your spouse without being taxed
  • The right to your spouse’s Social Security benefits after he or she dies
  • The right to inherit money and property from your spouse after he or she dies without being taxed (subject to certain limits)
  • Certain income tax deductions and credits
  • The right to file for joint bankruptcy with your spouse
  • The right to visit your spouse if he or she is hospitalized or imprisoned
  • The right to make certain emergency medical decisions on behalf of your spouse
  • If you divorce, consideration on child custody, child support and child visitation
  • Certain immigration benefits if a spouse is not a US citizen
  • If you divorce in some states, the right to half of the property you and your spouse accumulated while married
  • Access to certain family benefits and discounts that may be extended through work, in clubs and other organizations


How to Protect Additional Rights

Same-sex couples who marry—even in a state that has legalized gay marriage—don’t receive many of these benefits. They are specifically excluded from benefits granted under federal laws. If they live in a state that has legalized gay marriage, they should receive all of the same benefits granted to heterosexual married couples under state law. When a gay couple legally marries in one state, but lives in another, they may receive some benefits, but not others.

In some instances a gay couple can take legal action to get the benefits that married couples automatically receive.

For example, heterosexual married couples can make emergency medical decisions on one another’s behalf. A gay couple can give one another healthcare power of attorney, which authorizes their partner to make healthcare-related decisions on their behalf.

Many argue this is fundamentally unfair since it requires a married gay couple to take legal steps that a heterosexual married couple does not have to take. However, even a heterosexual couple who isn’t married would also have to take these same steps.

Defense of Marriage Act

The Defense of Marriage Act (DOMA) defines marriage as the legal union between one man and one woman. The law also says that states aren’t required to recognize same-sex marriages, and it forbids the federal government from recognizing same-sex marriages. This means, for example, that even if a gay couple was legally married in New York (which has legalized gay marriage), their joint federal tax return would not be accepted by the Internal Revenue Service.

Two courts in Massachusetts have found DOMA to be unconstitutional. In addition, the Obama administration has said it won’t defend the law in court.

Legalizing Gay Marriage

A number of states have legalized gay marriage or taken steps (short of legalizing marriage) that give same-sex couples additional legal rights.

Six states (Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont) plus Washington, DC, have legalized gay marriage. (New Jersey has also legalized same-sex unions, but stops short of calling it marriage.) In addition, Maryland recognizes gay marriages, but gay couples can’t get married in the state.

California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Rhode Island, Wisconsin, Illinois and Washington have given additional legal rights to same-sex couples in civil unions.

Trends in Gay & Lesbian Rights

A lot of progress has been made in the last decade toward granting homosexual couples the same rights as heterosexual couples. But the issue remains a hot-button topic, particularly during election season.

Those who are opposed to same-sex marriage raise a number of objections. These are often rooted in a religious context. Others relate to parenting, with opponents arguing that children are best off when raised by a man and a woman. Some follow the “slippery slope” argument. In other words, if we legalize marriage between two men, what’s next? Legalizing marriage between three people? Marriage between a human and an animal or inanimate object?

According to Wikipedia:

Public support for same-sex marriage has grown since the 1990s. In 1996, just 25% of Americans supported legalization. Analysis of the polling trends in 2010 and 2011 show that support for same-sex marriage may now outstrip opposition, although the difference is within the error limit of the analysis. On May 20, 2011, Gallup reported majority support for gay marriage by a margin that exceeded the poll’s margin of error. In June 2011, two prominent polling organizations released an analysis of the changing trend in public opinion about same-sex marriage in the United States, concluding that “public support for the freedom to marry has increased, at an accelerating rate, with most polls showing that a majority of Americans now support full marriage rights for all Americans.”

Related Resources on Lawyers.comsm

– Contact a lawyer in your area for specific legal advice, and read about Selecting an Attorney
– Need a form? Access hundreds of Business/Personal Legal Forms
– Access more information about your legal issue
– Visit the law forums
– Follow us on Twitter and become a Fan on Facebook to join the conversation about topics online
– Download the app for the iPhone or access the Legal Dictionary

Tagged as: , , , , , ,