Queer Justice: Nolo's LGBT Law Blog

We've Moved!

Thu, 09 Jun 2011 11:41:26 -0800

Our new home is http://blog.nolo.com/lgbtq/.

Tax Time Extra Complicated for Same-Sex Couples

Mon, 04 Apr 2011 15:25:12 -0800

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.

USCIS Hold Ends As Quickly As It Began

Wed, 30 Mar 2011 10:47:10 -0800

Just two days ago, I blogged about an announcement from the U.S. Citizenship and Immigration Services (USCIS) that it would put on hold decisions about cases involving same-sex binational couples--a seeming big step away from the discriminatory policies based on the Defense of Marriage Act (DOMA) that have previously dominated the agency's decision-making. Here's an informative Daily Beast story about the hold.

It didn't exactly seem too good to be true--that status would be reserved for an actual repeal of DOMA. However, the hold was apparently too good for something, and it has already been lifted. USCIS announced on March 30, 2011, through press secretary Christopher S. Bentley, that, "The guidance we were awaiting ... was received last night, so the hold is over," and "we're back to adjudicating cases as we always have." Bentley went on to say that USCIS would continue to "enforce the law," in other words refuse to recognize same-sex marriages for purposes of approving green card applications.

Is this the last word on the subject? Not necessarily. With the Justice Department's new position that DOMA is unconstitutional, plans by members of Congress to seek repeal of DOMA, and various cases challenging DOMA winding their way through the U.S. court system, it's likely that the Supreme Court will rule on DOMA's constitutionality within the next few years--which will of course affect green card applications for married same-sex partners.

USCIS Puts Same-Sex Partner Green Card Cases on Hold

Mon, 28 Mar 2011 15:42:01 -0800

Responding to President Obama's recent statement regarding the Defense of Marriage Act (DOMA), the United States Customs and Immigration Service (USCIS) has asked its field offices to stop proceedings in any cases involving foreign partners married to same-sex spouses. In other words, the USCIS will hold off on denying green cards in same-sex marriage cases, while awaiting further word on the status of DOMA.

In February, the Department of Justice announced it would stop defending Section 3 of DOMA in court. Section 3 is the part of DOMA that stands the way of a citizen sponsoring a same-sex spouse for a green card.

Last week, a New York immigration judge suspended the deportation of a same-sex spouse from Argentina so that the women could petition for recognition of their marriage under the new administration policy.

Discrimination by Complication: Same-Sex Parents Must Do More

Thu, 24 Mar 2011 09:57:34 -0800

Opposite-sex couples with children don't think much about what would happen if one of them were unable to care for the kids--obviously, the other parent would step in. Likewise, married couples should make wills, but even if they don't, a surviving spouse gets most or all of the deceased spouse's property.

For same-sex couples living in states where neither marriage equality nor relationship recognition (in the form of domestic partnerships or civil unions) has arrived, none of the above is necessarily true. This New York Times article describes the reality for one lesbian couple raising their children in Michigan.

New York City Issues Non-Discrimination Policy on Transgender Marriage Licenses

Mon, 14 Mar 2011 10:14:21 -0800

In December of 2009, an opposite-sex couple went to the City Clerk's office in the Bronx and asked for a marriage license. Because the clerk felt that neither would-be spouse looked like the sex listed on the drivers' licenses the two presented, they were asked for their birth certificates and when they could not produce them, were denied a marriage license.

After the Transgender Legal Defense and Education Fund filed a complaint last October, New York City responded by issuing a new policy to all city clerks. The new policy states that "City Clerk employees are forbidden from considering the applicant's appearance or preconceived notions related to gender expression when deciding whether to issue a marriage license." You've gotta figure TLDEF wrote that excellent language, right? Either way, though, it's now city policy.

In addition, the agreement requires the city clerk to apologize to the couple, institute training for employees regarding gender identity and expression, and allow the couple to marry when and where they want.

House Republicans Vote to Defend DOMA

Thu, 10 Mar 2011 09:51:39 -0800

Because apparently they've got nothing better to do despite claiming a focus on jobs and economic development, the House GOP voted to defend the Defense of Marriage Act (DOMA) in court in the wake of the Justice Department's announcement in February that the DOJ would no longer do so.

The decision could cost millions of dollars as Congress and the House general counsel will likely hire outside counsel to defend the cases now before the court--currently numbered at 10.

Seems like a questionable use of taxpayers' money while Congress struggles to pass a budget (the Republican version of which would cut services and jobs), especially given that the President and the administration's lawyer have said that they believe the law is unconstitutional and indefensible.

Obama Says DOMA Unconstitutional

Wed, 23 Feb 2011 10:27:55 -0800

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.

Civil Unions Approved in Hawaii

Wed, 16 Feb 2011 15:52:53 -0800

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.

Same-Sex Marriage: Why It Matters

Wed, 09 Feb 2011 16:16:44 -0800

This touching story about a military husband is a great example of why full marriage equality makes an enormous difference in the lives of same-sex couples. Props to the U.S. Naval Academy for treating Mr. Ketterson with the respect he was due--but it's all because he had an actual marriage certificate.

Passport Applications to Recognize the Reality that Same-Sex Families Exist

Thu, 13 Jan 2011 10:48:40 -0800

Parents applying for passports for their minor children will find a change starting February 1. Instead of simply having spaces for "Mother" and "Father" to state their names, the forms will say "Mother or Parent 1" and "Father or Parent 2." The Washington Post reported last Friday that references to "mother" and "father" would be removed entirely, causing a fuss from conservatives. In response, Secretary of State Hilary Clinton apparently decided to include both a gendered and a gender-neutral designation for each parent.

It's cool to see the federal government adjusting its most important identity document in this way. Every step the feds take toward accepting the reality of same-sex families makes those families' lives a little bit easier and brings us a little bit closer to full equality. Given the post-election reality of state legislatures, these small steps on the federal level may be all we get for a while.

Extra Taxes on Health Benefits for LGBT Employees--Where Do We Stand?

Fri, 07 Jan 2011 10:38:52 -0800

There are many hidden costs to being gay, and one of them is that employees who work for companies that offer domestic partner benefits must pay taxes on the value of those benefits unless the partner is considered a dependent (not a very common scenario). A married employee whose spouse is covered on the company insurance plan pays no tax on the value of the spouse's benefits.

Recently, Internet behemoth Google, Inc. began to reimburse its LGBT employees for the extra taxes, and a few other large companies followed suit. A New York Times blogger now provides a chart showing corporate progress on this issue, with a promise to update it periodically.

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

Wed, 05 Jan 2011 10:18:52 -0800

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.

North Carolina Supreme Court Voids All Second Parent Adoptions

Mon, 03 Jan 2011 13:51:12 -0800

In a shocking and destructive opinion issued on December 21, 2010, the North Carolina Supreme Court ruled that a non-biological lesbian mom who adopted the son born to her partner was no longer the child's legal parent--her adoption is void, and so is every other second parent adoption granted in North Carolina in the past.

Yes, for real. Hundreds of North Carolina children went from having two legal moms to having only one, all as the result of the efforts of Melissa Jarrell. Jarrell isthe biological mother of an 8-year-old son who, until this opinion, was also the legal son of Jarrell's former partner, Julia Boseman

When Jarrell and Boseman split up, Boseman sought custody of her son, and Jarrell argued that Boseman was not a parent and had no right to custody. The basis for the argument was that the adoption should never have been granted, because North Carolina's adoption laws require that a legal parent give up rights to a child in an adoption unless the legal parent is married to the person adopting the child. In other words, unless the adopting parent is a stepparent, the legal parent can't retain rights.

The Supreme Court agreed that the adoption should never have been granted, and that all such adoptions previously granted were also void from the outset. The horrible result for the other children of lesbian parents in North Carolina, as concisely described by Nancy Polikoff in her Beyond Straight and Gay Marriage blog, is that those children "now lose the economic and emotional security of having two legally recognized parents."

The irony in this case is that the court still held that Boseman has a right to seek custody of her child under a "best interests of the child" standard, because Jarrell voluntarily created a family unit with Boseman and their son. This means that Boseman retains joint custody of her son, and the same is likely to be true for the other parents whose adoption decrees have become void. But because Boseman and these other parents are no longer legal parents, their children have lost the right to Social Security and other types of survivors' benefits, and may lose insurance coverage and other benefits. Nor will they be able to inherit from these non-legal parents in the absence of a will.

In short, Melissa Jarrell failed in her primary goal, which was to keep Boseman from parenting their son. However, her selfish efforts to achieve that goal have harmed hundreds of North Carolina children in significant ways.

Some other states that have faced this question of consent and termination of rights have ruled the same way the North Carolina court did (without voiding past adoptions), but then turned around and solved the problem with legislation allowing second parent adoptions. With a Republican majority set to take control of the North Carolina legislature, no one's too optimistic about this happening in North Carolina.

In case you are wondering how bad this really is, check out Nancy Polikoff's followup post here.

Don't Ask, Don't Tell Repealed

Mon, 20 Dec 2010 22:08:42 -0800

On Saturday, the United States Congress finally voted to repeal the 17-year-old Don't Ask, Don't Tell policy that has barred LGBT servicemembers from being open about their sexual orientation. The final vote was 65-31, with eight Republicans voting in favor of repeal. The bill next goes to President Obama for signature--a given, as the President has clearly stated his support of repeal.

The discriminatory policy technically remains in effect until 60 days after the President and Joint Chiefs of Staff declare the military ready for repeal. Implementation will take place over time, according to the New York Times.

While this is welcome news, DADT was hardly "the last bastion of legal discrimination based on sexual orientation," as claimed by the San Francisco Chronicle on Sunday. Unless I slept through the establishment of full marriage equality, the end of employment discrimination, and the hundreds of other events that would need to occur to create full equality for LGBT citizens in this country.