Volume 2, No. 1 -- Spring 2008
Online Edition
UPDATE ON THE NEW ENGLAND STATES:
Civil Union, Marriage, Domestic Partners
Lesbians and gays in the New England states have gained many strides in the area of civil unions and marriage. Vermont was the first state in the United States of America to pass civil union legislation in 2000. In 2004, an historic victory for the LGBTI community occurred when Massachusetts passed legislation to allow same-sex couples to marry. Connecticut passed its civil union legislation in 2005, followed by New Hampshire in January of 2008.
Currently, Maine offers domestic partnership benefits to same-sex couples. Rhode Island, while it does not have legislation allowing civil union or same-sex marriage, is the only New England state outside of Massachusetts where the same-sex Massachusetts marriages are recognized to varying degrees.
Organizations such as Love Makes a Family (CT), MassEquality, and GLAD are tirelessly working toward the goal of full marriage equality for the LGBTI community.
WHAT’S ON THE HORIZON?
Across New England, the push for equal marriage is on. In those states that have already passed civil union legislation, LGBT rights activists are educating legislators and the public on why civil unions are not sufficient for same-sex couples and why they are not equal to heterosexual marriage. They are working toward building support for full marriage equality.
In Rhode Island, a marriage bill has been introduced every year for the past several years. The goal is to gain enough support in the legislature to pass a full marriage bill within the next three years.
Meanwhile, activists in Massachusetts are working toward the repeal of the 1913 law that prevents many out of state couples from marrying in Massachusetts. They are also attempting to pass H1710, the Equal Access to Civil Marriage Bill, which would put explicit recognition of the right of same-sex couples to marry into the state’s marriage laws.
FYI: According to the Population Association of America, 22% of lesbian households and 5% of gay male households are raising children in the United States.
Oregon’s Domestic Partnership Law Now In Effect
A federal court ruled that Oregon’s domestic partnership law should go into effect, as it was originally scheduled to do on January 2, 2008. The law finally went into effect on February 4, 2008. Judge Michael Mosman ruled that opponents of domestic partnership did, indeed, fail to gather the necessary signatures to place the law on the ballot for referendum. While domestic partnerships fall short of full marriage rights, they do provide important protections such as hospital visitation rights, the ability to make medical decisions for an ailing partner, and estate inheritance.
The ruling is not likely to bring a close to the battle, however. The Arizona-based Alliance Defense Fund, a right-wing group who files anti-gay and anti-choice lawsuits around the country and who filed the Oregon suit, has said they will appeal the ruling.
New York Court Allows Same-sex Couple to Divorce
A New York City judge, citing Martinez v. Monroe County, 2008 N.Y. Slip Op 909 (4th Dep’t 2008), said that the ruling by the state's highest court — that found there is no constitutional right for same-sex marriage — does not apply to divorce. The ruling by Supreme Court Justice Laura Drager in the case of Beth R. v. Donna M., No.350284/07 (February 25, 2008), allows a Manhattan woman to sue for divorce from her same-sex partner whom she married in Canada in 2004. Justice Drager found that out-of-state same-sex marriages are properly recognized under New York law, and therefore the divorce can proceed.
Because there is a dispute over two minor children, the women are identified only by letters in the court action. R is seeking the divorce and the awarding of joint custody of M's two children. M had sought to have the divorce petition quashed on the grounds that New York State does not recognize same-sex marriage. In her ruling Justice Drager said that New York does not recognize an out-of-state marriage in only two instances: if it is specifically named by the Legislature as prohibited or is abhorrent to New York public policy. The written ruling noted that the Legislature has not specifically outlawed out-of-state same-sex marriages, and that the abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest.
It is likely that this case will be decided by the New York Court of Appeals, the state's highest court. An attorney for M has already announced an Appeal will be filed.
Martinez v. Monroe County (the case cited by Justice Drager in the above case) is, for now, a state-wide precedent binding on the trial courts. There are appeals pending in the 2nd and 3rd Departments that will present the question of recognition of same-sex marriages. The Monroe County Executive has announced that the County will ask the Court of Appeals to review Martinez. Until the Court of Appeals rules on Martinez, however, the current ruling is controlling.
Note that in the State of New York, the lower trial court is known as the Supreme Court while in Connecticut, the lower trial court is known as the Superior Court. This distinction often causes confusion among readers.
Washington State Expands its Domestic Partnership Law
As of June 12, 2008, same-sex couples in the State of Washington will be granted more than 170 responsibilities and benefits previously given to married couples. This is an expansion of Washington’s Domestic Partnership law, which took effect in 2007. The expanded legislation adds domestic partners to sections of laws where only spouses were previously mentioned. This includes the areas of probate and trusts, community property and homestead exemptions, as well as guardianship and powers of attorney. The underlying 2007 domestic partnership law already provides hospital visitation rights, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.
Some of the changes under the new law include requiring domestic partners of public officials to submit financial disclosure forms, just as the spouses of heterosexual officials do. It will also give domestic partners the same spousal testimony rights that married couples have, allowing domestic partners the right to refuse to testify against each other in court. The process of terminating a domestic partnership will also change. Under the new legislation, the secretary of state may only terminate partnerships in the first five years (and there are several more restrictions relating to children, real property or unpaid debts). All other partnerships will have to be dissolved in superior court, similar to conventional divorce. To be registered as partners, couples must share a home, must not be married or in a domestic relationship with someone else, and be at least 18. As a footnote, the new law states that unmarried heterosexual senior couples are eligible for domestic partnerships if one partner is at least 62. That provision was allegedly included to help seniors who are at risk of losing pension rights and Social Security benefits if they remarry. The domestic partnership bill is House Bill 3104, which can be viewed online at http://apps.leg.wa.gov/billinfo/summary.aspx?year=2008&bill=3104.
New Hampshire’s New Civil Union Legislation Took Effect on January 1, 2008
New Hampshire's Governor signed into law “An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples,” on May 31, 2007. The law took effect on January 1, 2008. While three other states have passed civil union legislation prompted by marriage lawsuits, New Hampshire is the first state to pass such legislation without any court order. Under the law, same-sex parties to civil unions or marriages entered into ()contracted) in other states shall be recognized as a civil union in the State of New Hampshire, provided that the relationship does not violate the prohibitions of the statute. The law also provides that Canadian same-sex marriages will be recognized as a civil union under New Hampshire law. As with all civil unions, couples entering into a New Hampshire civil union are provided access to all of the state-based legal rights, responsibilities and obligations of marriage
. Other states are not obliged to recognize New Hampshire civil unions. The civil union law does not grant the 1138 federal rights associated with marriage, which includes favorable provisions regarding federal taxes, Social Security benefits, immigration, veterans’ benefits and numerous other rights. The full text of the Bill (HB437-FN-LOCAL) is available online at http://www.gencourt.state.nh.us/legislation/2007/HB0437.html.
Arizona Senate President Introduced Anti-Gay Marriage Amendment
After losing a public referendum battle to put an anti-gay marriage amendment in the state constitution, amendment proponents are backing a new proposal. On February 11, 2008, Senate President Tim Bee introduced a new proposed amendment that would define marriage as “the union of one man and one woman.” The proposal lacks the extra language banning legal recognition for any other relationships, which is cited for having caused the failure of the prior measure. Sponsor Tim Bee is running for the Republican congressional nomination in the 8th Congressional District, seeking to unseat Democratic Representative Gabrielle Giffords.
Illinois Civil Union Bill Assigned for Hearings
In February, State Senator David Koehler proposed a civil union bill for Illinois that differs from bills enacted by other states. Koehler’s bill proposes to make civil unions available regardless of the sex of the couples involved. S.B. 2436 was assigned for hearings to the Senate Judiciary Civil Law Committee. A similar proposal was introduced in the House last year by Rep. Greg Harris and received committee approval but has not received consideration on the floor of the House.
QUOTABLE QUOTES
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“You could move.” ~Abigail Van Buren, "Dear Abby," in response to a reader who complained that a gay couple was moving in across the street and wanted to know what he could do to improve the quality of the neighborhood. |
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I am reminded of a colleague who reiterated "all my homosexual patients are quite sick" - to which I finally replied "so are all my heterosexual patients." ~Ernest van den Haag, psychotherapist . |
Lesbian and Gay Legal Issues and Information
is for informational purposes only. It is not intended to be and should not be construed as legal advice. Use of the information contained in this newsletter is not intended to create an attorney-client relationship. All legal questions should be addressed to a licensed attorney.Copyright 2008 Law Offices of Irene C. Olszewski, LLC
Manchester, Connecticut Gay and Lesbian Rights Lawyer
Proudly Serving the Connecticut GLBTI community
Law Offices of Irene C. Olszewski, LLC
