This fall, my husband Brian and I will celebrate the 20th anniversary of the day we met. Six years later, we held an outdoor commitment ceremony on a cliff overlooking the ocean in San Diego on a spectacular, sunny summer day. It was a beautiful ceremony, written and performed by a close friend, followed by a simple, but elegant, garden party. We had declared our love for one another and our commitment to each other in front of our friends and loved ones, but we remained legal strangers. None of the protections of civil marriage flowed from our commitment ceremony.
Conversely, when my sister and her husband married, they, like all opposite-sex married couples, were instantly granted more than 1,100 special rights and protections at the federal level alone, in addition to those granted at the state and local levels and in the private sector.
These special rights and privileges, reserved for opposite-sex couples like my sister and brother-in-law, affect tax rates, property rights, inheritance rights, immigration rights, community property, the rights to make healthcare decisions for each other, to visit each other in the hospital, and to share joint retirement and health benefits, among many others. Civil marriage also provides important protections for the children of married couples; many same-sex couples co-parent biological, adopted, and foster children.
In the private sector, many companies offer special pricing, or discounts, or family membership packages only to those who are legally married. And while many private employers choose to offer domestic partnership benefits these days, the extension of those benefits is treated as additional taxable income, which is not the case for married couples.
All of these special rights, privileges and benefits of civil marriage are taken for granted by opposite-sex couples, whether they marry for love, by arrangement, or just for the benefits.
So after our lovely ceremony, we engaged the services of a lawyer to draw up a complex set of documents in an effort to approximate as many of the protections of marriage as we could. It was an expensive and exhausting process and only provided for a basic subset of the protections of marriage.
And having signed those documents, we had to carry them with us whenever we traveled, so that we could be prepared to assert our rights, if need be. If one of us fell ill and was hospitalized on the other side of the country from the safe where our documents were stored, they wouldn’t do us very much good. In that case, healthcare decisions might be reserved to the healthcare provider or the state or a member of his family, since the other partner could be viewed as a legal stranger, with no standing to make those decisions on his partner’s behalf.
Another dozen years would pass before we would marry legally – in my home state of Connecticut. This time the ceremony was held in my parents’ living room with only immediate family as witnesses. This time, our union did qualify for certain rights and privileges. Certain rights, but not all. You see, we were living in California at the time, and while we couldn’t marry there, the Golden State did recognize our Connecticut marriage and granted all the rights of marriage within its powers – including the right to file our state taxes jointly for the first time in 17 years.
But the federal government, hamstrung by the so-called Defense of Marriage Act (DOMA), still did not recognize our legal union, and so those 1,100 or so federal benefits remained out of our reach. While we were able to file our state taxes jointly, we couldn’t file jointly with the IRS.
Pursuant to Article IV, Section 1 of the U.S. Constitution – the so-called “Full Faith and Credit Clause” – opposite-sex married couples, when moving from one state to another in our less-than-perfect Union, remain married and continue to benefit from those special rights conferred upon them. The Full Faith and Credit Clause requires all states in the Union to respect the “public acts, records, and judicial proceedings of every other state.”
But when we moved from California to Texas, in an instant we were legal strangers again. And we have had to re-create all of those myriad documents to protect ourselves under Texas law. Again, an expensive and exhausting process to execute documents that our lawyer cautions us can still possibly be challenged or ignored if and when we need to invoke them. That’s right, despite all the work we have done to express our intentions in writing, any relative – close or distant – may still be able to convince a judge that they have legal standing in Texas that supersedes our written wishes.
Check out this video for a heart-breaking example of what can happen to a couple without the legal protections of marriage:
Recently, the Supreme Court of the United States (SCOTUS) heard oral arguments in two landmark cases that have the potential to change all of this.
In the first, Hollingworth v. Perry, the justices are considering the fate of Proposition 8, the California constitutional amendment that rescinded the right to marriage that had been granted to same-sex couples in California by that state’s own Supreme Court ruling.
The decision in Perry could swing in one of many different ways, from a broad ruling that strikes down all the state laws that withhold marriage from same-sex couples, to one that strikes down such laws only in the western states that make up the 9th Circuit, to the more likely ruling that only restores same-sex marriage to the state of California, or even the narrowest of rulings that only applies to the two couples who filed the suit.
The general consensus among court observers is that the justices seem reluctant to hand down a sweeping ruling like the one it did in Loving v. Virginia that nullified anti-miscegenation laws across the country. Instead, whichever form it takes, the net result of their ruling is likely to let stand the 9th Circuit ruling that struck down Proposition 8, restoring same-sex marriage to California only.
The second case is the one with real federal implications. In United States v. Windsor, Edie Windsor seeks to overturn Section 3 of DOMA, which defines marriage as between one man and one woman for the purposes of “determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”
She also seeks a refund of the $363,000 in estate tax she had to pay upon the death of her spouse of 40 years, Thea Spyer. The couple were married in Toronto in 2007. As a married couple, the estate should have passed to the surviving spouse free of the estate tax. Absent federal recognition of their marriage, however, they were treated as legal strangers and the estate was heavily taxed.
Based on questioning during oral arguments, it appears that Section 3 of DOMA is likely to be overturned. No one knows how the ruling will come down, but even if it’s overturned, it’s likely that Brian and I – and some other legally married same-sex couples – will not benefit, since we were married in one state, but live in a state, like Texas, that continues to withhold marriage equality from its citizens.
A successful challenge to Section 2 of DOMA — which exempts states from recognizing same-sex marriages performed by other states, in violation of the Full Faith and Credit Clause – or a voluntary reversal of the state’s ban on recognizing same-sex marriage would be required before full marriage equality will be available to same-sex couples in Texas.
However this all works out, the SCOTUS rulings in these cases are likely to deliver some significant progress, while leaving us with a long way to go.
Fortunately, the tide is rapidly turning in the court of public opinion and in the political arena. As I write this piece, Senator Mark Kirk, Republican of Illinois, has become the second Republican Senator to come out in support of marriage equality. He and fellow Republican Senator Rob Portman of Ohio join 48 Senate Democrats in forming a working majority of the Senate in support of marriage equality for the first time in history. Vice President Joe Biden, in his role as President of the Senate, would cast a vote breaking that theoretical tie, if the question were to come to the Senate floor.
Senator Kirk’s forty-two word statement eloquently and profoundly summarizes the entire debate:
“Same-sex couples should have the right to civil marriage. Our time on this Earth is limited, I know that better than most. Life comes down to who you love and who loves you back – government has no place in the middle.”
It is that simple. And it is time. No longer should the government judge my marriage any differently from my sister’s.
Hugh Donagher is an online presence coach in San Antonio. He works with individuals, small business and nonprofit organizations to establish, maintain or improve their online presence, including websites, social media and continuous contact campaigns. He and his husband Brian reside in Southtown.
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