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April 4, 2011

Tax Time Extra Complicated for Same-Sex Couples

Filing tax returns is not that much fun for anyone, except maybe General Electric. But for same-sex couples, tax time is fraught with complications unique to relationships that are recognized by the state but not by the IRS--except sometimes. Confused yet? You should be.

In general, the IRS doesn't recognize same-sex marriages or marriage-equivalent domestic partnerships or civil unions for tax purposes. Same-sex spouses and registered partners must file their federal tax returns as single, even if they are allowed (or required) to file as married or partnered in the state in which they live. This results in many couples preparing dummy federal returns in order to have accurate information to put on their state returns--in other words, it results in them paying an expert tax preparer to run the numbers for a state return and a federal return that aren't coordinated.

For married or registered same-sex couples living in the three community property states that recognize same-sex relationships--California, Nevada, and Washington--things just got even more complicated with the IRS's decision that these folks must follow their states' community property rules relating to income on their federal tax returns, while still filing the federal return as single, separate taxpayers. 

This means that the couple must add up their combined incomes, divide the resulting amount in half, and each report half of the income on their federal returns. For many people this is good news, as the income averaging will mean that a higher earner might fall into a lower tax bracket. Experts say that most couples will benefit or break even, though couples who both earn close to the same amount won't benefit and will pay more for tax preparation. However, couples who do benefit get an extra break--they can go back and amend their returns as far back as 2007 using the community property numbers. For some, this will create quite a windfall. 

Most same-sex couples in community property states will need professional tax help--even self-help software Turbo-Tax recommends seeking personalized advice rather than using its tax program. 


February 23, 2011

Obama Says DOMA Unconstitutional

On orders from President Obama, the Justice Department will stop defending the federal Defense of Marriage Act (DOMA) in cases now pending in the federal courts, based on the President's conclusion that the law is unconstitutional.

Attorney General Eric Holder today sent a letter to Speaker of the House Boehner explaining that the President and the Department of Justice have re-examined the law in light of two new cases and determined that Section 3 of DOMA is unconstitutional "as applied to same-sex couples legally married under state law." Section 3 states that the federal government recognizes only marriages between a man and woman. 

The most significant conclusion set forth in Holder's letter is this one: "[T]he President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny." This means that any law that treats people differently based on their sexual orientation must meet the highest legal standards--it's not enough that the law simply have a rational basis. Instead it must meet much more rigorous Constitutional tests. 

Other courts have applied strict scrutiny in marriage equality cases, but having the support of the President and the DOJ for this level of scrutiny is an enormous step forward. It also provides the basis for the President's turnaround--in the past, Holder said, the DOJ has defended DOMA cases because the level of scrutiny was lower. Having determined that heightened scrutiny applies, the administration is no longer able to defend the law. 

This means that two cases now proceeding through the federal courts will do so without opposition from the federal government. The Huffington Post reports that the DOJ will advise the courts in these two cases of the government's policy change. Here's a link to a Washington Post opinion piece about those cases. 
February 16, 2011

Civil Unions Approved in Hawaii

The Hawaii legislature today approved a civil union bill that would provide same-sex couples with the same rights and responsibilities enjoyed by opposite-sex married couples in the Rainbow State. Governor Abercrombie has said that he will sign the bill within the next ten days; if he does, it will take effect on January 1, 2012. 

This brings things full circle for Hawaii, which was the first state to have a court ruling that excluding same-sex couples from marriage was discriminatory and illegal. This case was one of the catalysts for the original Defense of Marriage Act, enacted in 1996, and for a lengthy backlash against same-sex marriage. 
January 5, 2011

Ninth Circuit Asks California Supreme Court to Weigh in on Prop 8 Standing Question

At oral argument in January, the three-judge Ninth Circuit panel hearing arguments on the constitutionality of California's Proposition 8 (banning same-sex marriage) considered the question whether the proponents of Prop 8 even have the right to appeal. The proponents were appealing a Northern District of California ruling that held Prop 8 unconstitutional, but they were alone in doing so--both the then-Governor and the then-Attorney General of California declined to join in the appeal.

The question of standing has to be answered before the court addresses the constitutional issues, because if the proponents don't have standing, there's nothing to consider--the most likely outcome is that the case is over and Judge Walker's ruling stands. However, the Ninth Circuit judges decided that the issue of standing is one of California law that the California Supreme Court should answer, and they "certified the question" to the California Supremes--that's lawyer talk for asking another court to rule on something. 

The California Supreme Court must now decide whether it will accept the Ninth Circuit's request--most likely, it will do so. Both sides will submit more briefs, and there might be another round of oral argument. There's no required time frame for the Supreme Court to issue a decision, so this case will be significantly delayed compared to how long it would have taken if the Ninth Circuit had simply ruled on the issue. We can hope, however, that the Supreme Court will move quickly to help resolve an important issue in a case that involves the legal rights of thousands of LGBT citizens. 
August 9, 2010

Mexico Supreme Court Upholds Same-Sex Marriage

Same-sex couples celebrated as the Mexican Supreme Court upheld a new law permitting same-sex marriage in Mexico City, ruling that individual states should not be allowed to make their own decisions about whether to permit same-sex marriage. The court will rule soon on two other aspects of the law: whether gay couples can adopt children, and whether the marriages in the capital city must be recognized in other districts. 
August 9, 2010

Prop 8 Update

Quite a lot has happened in the few days since Judge Walker issued his opinion in Perry v. Schwarzenneger, holding that Proposition 8 violates the 14th Amendment to the Constitution and that same-sex couples have the same right to marry as opposite-sex partners.

Pretty much concurrently with issuing the opinion, Judge Walker also issued a temporary stay that means the ruling doesn't go into effect right away. He asked for written briefs from the parties about whether he should extend the stay until the losers have a chance to appeal the decision, and those were submitted on Friday, August 6. There's no word on when the judge might rule on the issue.

If Judge Walker decides to keep the temporary stay in place, wedding bells will remain silent in the Golden State for some years to come while the case makes its way to the Ninth Circuit Court of Appeals (which has already created a special page for documents related to the Perry case, even though nothing's been filed with them yet) and then, presumably, to the United States Supreme Court. And if he lifts the temporary stay and says that same-sex couples can marry, the other side could appeal that decision to the Ninth Circuit on an "emergency" basis. (Bet you didn't know the possibility of you marrying your same-sex partner could be an emergency, did you?)

Somewhat surprisingly, both Attorney General Jerry Brown and Governor Arnold Schwarzenneger asked Judge Walker to lift the stay and allow same-sex couples to begin marrying immediately.

In the plaintiffs' request to lift the stay, attorneys make an interesting argument. During the trial, the actual defendant in the case, the State of California, declined to defend Prop 8 in court. Instead, a group called "defendant-intervenors," consisting of pro-Prop 8 groups and individuals, defended the proposition at trial. The plaintiffs now argue that the defendant-intervenors, because they are not the original defendants, do not have standing--meaning they don't have the right--to bring an appeal. Professor Arthur Leonard explains this much better than I could at his Leonard Link blog, so I direct you there for the full scoop. If Judge Walker and the Ninth Circuit agree with this analysis, then the opinion will stand--good news for California and for the couples who want to marry right away, but not necessarily for anyone who wants to see the Supreme Court rule on same-sex marriage soon.

Stay tuned for further developments.    
August 4, 2010

Judge Rules Prop 8 is Unconstitutional

Judge Vaughn Walker issued his opinion today in Perry v. Schwarzenegger, the federal challenge to Proposition 8, which in 2008 took away the right of same-sex couples to marry in California. Judge Walker's 136-page opinion holds that Prop 8 does not pass constitutional muster because it "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."  The court held that the right to marry applies to all persons regardless of gender, and that the right to same-sex marriage is not a new right, as defendants claimed, but the right to have their relationships recognized for what they are: marriages.

In addition, Judge Walker ruled that California's domestic partnership laws do not satisfy the state's obligation to allow citizens to marry. "Domestic partnerships exist solely to differentiate same-sex unions from marriages... California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples."

The judge's ruling includes a permanent injunction against enforcement of Proposition 8, which in theory means that same-sex couples can marry again in California. But the Prop 8 supporters have already asked Judge Walker to issue a stay of the opinion and prevent any same-sex marriages from taking place while the case is on appeal to the Ninth Circuit, its next destination on its way to the U.S. Supreme Court. It's likely the stay will be granted and no marriages will actually take place; watch this blog and the website of the National Center for Lesbian Rights for updates.

The decision comes after Judge Walker heard two weeks of testimony in January, and closing arguments in June. The end result is not surprising, given that the Prop 8 supporters presented very little evidence to support their position--as Judge Walker noted, "the minimal evidentiary presentation made by [Prop 8 supporters] does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest."  On the other hand, the plaintiffs and their counsel, Ted Olsen and David Boies, put together a powerful case that included not just the emotional testimony of the plaintiffs themselves, but also the testimony of experts in sexual orientation, and child development, all of which went to prove that Prop 8 was a product of animus toward same-sex couples.

Despite the inevitability of the appeal, the LGBT community and justice-loving folks everywhere can enjoy Judge Walker's eloquent defense of our constitutional right to participate fully in society. Full equality is coming; it's just a matter of time.

March 8, 2010

Same-Sex Marriage Now Legal in District of Columbia

Tomorrow, Tuesday, March 9, same-sex weddings will begin in the District of Columbia after more than a hundred couples lined up last Wednesday to get their marriage licenses and start the three-day waiting period. Washington, D.C. became the sixth United States jurisdiction to allow same-sex marriage, joining Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.

Five other states (California, Nevada, New Jersey, Oregon, and Washington) offer marriage-equivalent relationships for same-sex couples, while Colorado, Hawaii, Maine, Maryland, Rhode Island, and Wisconsin all provide certain limited rights and benefits to same-sex couples who register with the state. 

At this point, nearly half of all American citizens live in a place where there is some sort of recognition of same-sex relationships, whether it's marriage, marriage-equivalent, marriage-lite, or simply the recognition of marriages performed in other states. Given how much confusion is created by the federal government's failure to recognize any of these relationships, we can only hope that a repeal of the federal Defense of Marriage Act will be coming soon. 
January 28, 2010

Prop 8 Trial Testimony Completed

Yesterday was the final day of testimony in the federal trial challenging Prop 8, which took away the right to marry from same-sex couples in November of 2008. The plaintiffs put on a powerful case and made a thorough record of the ways that marriage matters and the reality of discrimination against LGBT folks, while the defendants offered...well, not much. There's nothing I could write that would be as articulate and complete as the daily commentary offered by Shannon Minter, Legal Director of the National Center for Lesbian Rights, at Pam's House Blend blog. The link here will take you to the Day 12 blog post, and at the end of that post are the links for all of the other days. Enjoy. 
July 2, 2009

Marriage Equality in New York Up in the Air Despite Governor's Support

New York Governor David Paterson is a stalwart supporter of same-sex marriage rights, and he has the grand marshal chops to prove it -- yesterday, Paterson was the first-ever Governor of New York to serve as a grand marshal in New York City's annual Pride parade. The Governor expressed his disappointment, however, that the Pride revelers weren't able to celebrate the coming of full marriage equality to the Empire State. The problem is with the New York legislature's inability to get just about anything done in the midst of a battle over who controls the Senate. The same-sex marriage bill passed, 89-52, in the Assembly, but the Governor now isn't sure when he will introduce the same-sex marriage bill in the Senate.