Federal Same-Sex Marriage Is Coming
There is no disputing that the tide of public opinion on same-sex marriage has turned in favor of allowing federal marriage rights to gay and lesbian couples. On the heels of the landmark decision in California and the legislative initiative in Washington State, both Maryland and New Jersey are also paving the way to allow same-sex marriage.
“This is further evidence that Americans are changing their minds as they think about why marriage matters and who gay families are,” says Evan Wolfson, president of Freedom to Marry and author of Why Marriage Matters: America, Equality and Gay People’s Right to Marry. “We see this in public opinion polls and in stories of political leaders who change their minds, people like Bob Barr and Bill Clinton.”
Experts believe that federal same-sex marriage is an inevitability and that it will result in some interesting legal implications for gays and lesbians. Besides having their marriages recognized across all jurisdictions due to the Full Faith and Credit Clause in the U.S. Constitution, gays and lesbians will see additional rights and protections when it comes to areas such as employment, healthcare and estate planning.
“Federal marriage equality will come about a lot faster than anyone imagined a couple years ago,” says Camilla Taylor, marriage project director at Lamda Legal. “I am absolutely certain it will happen within our lifetime.”
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According to a May 2011 Gallup poll, for the first time in history, more Americans were in favor of providing same-sex marriage rights to gays and lesbians than were against it, with 53 percent of poll participants pro same-sex marriage. This percentage dramatically increases among poll participants who are under the age of 50. In fact, 70 percent of those 18 to 34 were in favor of same-sex marriage, up 16 percentage points from 2010. Even the senior population seems to be shifting, with 39 percent in favor in 2011, up 6 points from 2010.
“There is an overwhelming generational momentum in favor of the freedom to marry,” Wolfson says. “But you can also see that across demographics where part of the public are more resistant, there is declining opposition. Older people are changing their minds.”
Taylor attributes this dramatic shift in public sentiment to the greater visibility of gays, lesbians and their families in society. She credits the Supreme Court Case Lawrence v. Texas, which struck down state sodomy laws, as being a watershed moment for gay and lesbian rights.
“These criminal laws justified people being fired from their jobs or not being able to be foster parents or adopt,” Taylor says. “Once these laws were swept away and the High Court recognized the equal humanity and dignity of gay people, it enabled people to be more visible and more openly proud of who they are.”
In addition, as gays and lesbians have become more visible as people, they also have become more visible as parents. According to the most recent U.S. Census data, an estimated one quarter of same-sex households are raising children.
“People are becoming more aware that when you discriminate against same-sex couples, you are discriminating against their children, which hurts the kids as much as it hurts the parents,” Taylor says.
A Patchwork of Laws
Wolfson estimates that, granted no viable challenges prevent same-sex marriage in California and Washington State, well over a quarter of the U.S. population will be living in a state that has ended marriage discrimination. Although considered a huge victory for proponents of same-sex marriage, the scattered laws across the U.S. pose a variety of difficulties, not just to same-sex couples, but to society at large.
“The antigay campaigners who are carving out gay exceptions from the way in which Americans normally treat married couples has made the country a house divided,” Wolfson says. “And this doesn’t work for businesses, banks, mortgage holders, families, children and anyone else that deals with couples.”
Furthermore, the current state of same-sex marriage laws creates some rather absurd scenarios, especially for those couples planning to travel outside their home jurisdiction.
“If you are a same-sex married couple in Iowa and you take a road trip to Illinois, you will now be treated as if you have a civil union,” Taylor says. “Then in Indiana, you will have no legal couplehood in the eyes of the state, but when you hit New York, you’d be married again.”
As a result of this patchwork of laws, same-sex couples must often go through the bureaucratic process to achieve the same rights as opposite-sex spouses. For instance, same-sex couples who have children together often have one partner perform a second-parent adoption to obtain legal recognition as a parent on a federal level. This process, which is unnecessary for heterosexual spouses, can cost a same-sex couple thousands.
There is some speculation that the recent ruling in the 9th Circuit striking down California’s Proposition 8 voter initiative may wind its way to the Supreme Court. If it does land before the High Court, the justices can theoretically do away with the current confusing patchwork of legislation by permitting federal marriage. However, because the 9th Circuit ruling was tailored very narrowly to apply specifically to California’s unique circumstances, experts believe the Supreme Court may refuse to hear the case.
“The 9th Circuit ruling was very precise and focused on what California did with stripping away the rights to marry of one group,” Wolfson says. “It did not go on to address the fundamental freedom to marry. This may make it less likely for the U.S. Supreme Court take up the case. However, if the court does, it can come at the case from a different angle.”
Some Things Change, Others Don’t
If federal marriage equality is achieved, same-sex couples will see dramatic changes in certain areas of their lives on a national level. For example, employers—many of whom are already implementing policy changes to give equal recognition to same-sex couples—will be obligated to provide identical benefits to both heterosexual and homosexual spouses.
In addition, issues such as designating a health care power of attorney will no longer require the filing of additional paperwork. Instead, the same-sex spouse will automatically be considered the health care proxy by virtue of the legal marriage.
“If there is no healthcare power of attorney, by law the spouse always first in line,” says Jeffrey Marsocci, an attorney who practices estate planning. “If a couple cannot get legally married, then they have to have the legal document designating a health care power of attorney in place.”
Another benefit that federal same-sex marriage would provide is the ability to avoid federal and state gift taxes. The federal gift tax requires the donor of a gift in excess of a certain amount to file forms and pay a tax. However, legally married couples receive an unlimited deduction, which means money and property may be transferred to one another without taxation.
“When you put your partner’s name on the deed to a house, you are giving them half the house, so there are gift taxes associated with that,” Marsocci says. “Federally-recognized married spouses can just put each other’s names on these assets and suffer no gift tax consequences.”
But even though federal same-sex marriage would simplify much for same-sex couples, there are still estate-planning issues that these couples, and their heterosexual counterparts, should consider.
“No matter whether you are married or not, straight or gay, you should have your will done and updated along with your papers designating power of attorney and your living will,” says Joanne Fanizza, an estate planning attorney.