July 4th—Mom, Apple Pie, and Relationship Recognition!
We’ve heard of Gay Marriage, Domestic Partnership, and Civil Unions. What’s the difference? What’s up with Delaware?
Good questions! Though I work primarily in the area of estate planning, I recently attended a few meetings where updates on these issues were provided. According to the Human Rights Campaign (www.hrc.org):
•Marriage licenses are issued to same-sex couples in the District of Columbia and in five states: Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.
•Two states recognize marriage from other jurisdictions, but not yet in their own state: Maryland and New York.
•Five other states give same-sex couples the equivalent of state-level spousal rights (domestic partnership “DP” or civil union “CU”) to: California (DP), Nevada (DP), New Jersey (CU), Oregon (DP), and Washington (DP).
•Four states offer same-sex couples some, but not all, state-level spousal rights: Colorado (“designated beneficiaries”), Hawaii (“reciprocal beneficiaries”), Maine (DP), and Wisconsin (DP).
Marriage, Civil Unions, Domestic Partnerships…and Reciprocal Beneficiaries?
So how, exactly, does it go in Hawaii? I picture two old college friends bumping into one another in the grocery store. One says to the other: “Oh, and I’d like you to meet my reciprocal beneficiary, Jess.” Though not all of us in the gay community are comfortable with referring to our partners as “husband” or “wife,” the word “marriage” does bring with it a legal entitlement and cultural institution that no other term provides. Marriage is a set of federal and state rights and privileges. A “Civil Union,” as defined by various states, may give legal protection to the parties under state law, but not under federal law. The Gay & Lesbian Advocates and Defenders (GLAD) (www.glad.org) from Boston points out several ways in which Civil Unions fall short of marriage:
1. Portability. Generally, heterosexual marriages are recognized from one state to another. Civil Unions are generally only recognized in the few states that have legalized Civil Unions.
2. Termination of Relationship. Divorces are accessible to heterosexuals. Parties in a Civil Union cannot dissolve it without one being a resident of a state that recognizes Civil Unions.
3. Federal Benefits. Over 1,100 legal protections and responsibilities come with marriage. None come with Civil Unions.
4. Taxes and Public Benefits for the Family. Joint tax returns, pension protection, Social Security survivor benefits, and benefits such as Medicaid are available or not available, depending on whether parties have a federally recognized marriage.
5. Filling Out Forms. We’ve all been there: Check One. Married or Single. If you are in a Civil Union or in another recognized relationship category, neither applies. Depending on the context, “misrepresenting” your status could be considered fraud.
6. Separate and Unequal. GLAD points out to have a separate status for gays is inequality, even if the benefits of CUs and DPs were the same as marriage.
Federal Law and the Defense of Marriage Act (DOMA)
Under current federal law, DOMA defines marriage as a legal union between one man and one woman, and allows federal programs and states not to recognize same-sex unions. Thirty-seven states have their own DOMAs, and two more states have strong language that defines marriage as a legal union between one man and one woman. Thirty states have constitutional amendments protecting “traditional” marriage.
What about Delaware?
In Delaware, same-sex marriage is expressly prohibited under Title 13, §101. Under §102, a couple can actually be punished for holding themselves out as being in a prohibited marriage and can be fined $100, and imprisoned 30 days if the fine is not paid. This law dates back to when interracial marriage was verboten. To the best of my knowledge, the law has never been enforced against a same-sex couple. But the fact that it remains on the books, and that Delaware expressly prohibits same-sex marriage, speaks volumes. There are efforts under way to change things in Delaware, and many organizations and politicians are working together.
Although Delaware is behind the times regarding relationship recognition, there have been some positive developments. Sexual orientation is included as a protected status in hate crime legislation (but transgender is not). Delaware law also prohibits discrimination against a person on the basis of sexual orientation in housing, employment, public works contracting, public accommodations, and insurance. Similar progress has been made in the areas of second partner adoptions, hospital visitation, and issues relating to domestic violence.
I’d encourage you to check out resources to learn more about Delaware issues. Here are a few:
ACLU of Delaware: www.aclu-de.org (see their LGBT Rights section)
Delaware Liberty Fund: www.delawarelibertyfund.org (political action committee; its website has updates on the latest legislation, events and endorsements)
GayDelaware.com: www.gaydelaware.com (has a legal section)
Stonewall Democrats: www.delawarestonewall.org
Toward Equality.org: www.towardequality.org (updates on DE LGBT civil rights)
Be aware. Be involved!
This column is distributed with the understanding that the author, Old Capital Law Firm, and publisher are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters, and accordingly, assume no liability whatsoever in connection with its use.
Renna Van Oot, Esquire practices at Old Capital Law Firm in New Castle, Delaware. www.oldcapitallaw.comwww.oldcapitallaw.com