As the U.S. Supreme Court handed down decisions on the Defense of Marriage Act and California’s Proposition 8, questions immediately arose when it comes to legally married gay and lesbian couples in states like Utah that do not legally recognize the relationships.
As for marriage itself in Utah, the future will likely play out in federal court, where several couples have joined a lawsuit challenging Utah constitutional amendment 3 that defines marriage as between a man and a woman and forbids recognition of civil unions.
But what about the myriad of other federal benefits that come with marriage, such as immigration issues, insurance, Medicare and even how state taxes are to be filed when a same-sex couple files their federal returns jointly?
Embattled Utah Attorney General John Swallow is leading the charge on defending Utah’s Amendment 3, and has stated that the DOMA and Prop 8 decisions will mean little to the state of Utah. He believes Utah still has the right to define marriage as it “sees fit.”
“In a nutshell, DOMA will not affect us,” he said.
But that may not be entirely true.
Within days of the decisions, the U.S. Citizenship and Immigration Services was ordered to consider same-sex marriage visa petitions, even in states that don’t recognize the unions.
“I have directed U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,” U.S. Homeland Security Secretary Janet Napolitano said in a statement.
According to the new procedures, USCIS will look to the law of the place where the marriage took place in determining its validity in immigration law. That means if a couple was married in a U.S. state that recognizes same-sex marriage, but lives in a state that does not, the couple’s petition for an immigration visa will still be considered.
According to estimates based on U.S. Census data, this will affect 30,000 same-sex, binational couples.
A landmark immigration reform bill passed by the U.S. Senate almost stalled out because of a proposal to allow U.S. citizens and legal permanent residents to sponsor their same-sex spouse for immigration. Democratic Sen. Patrick Leahy withdrew the amendment after opponents threatened to kill the entire bill. The Supreme Court decision makes the point moot.
The Internal Revenue Service released a statement saying it’s reviewing the Supreme Court decision and “will move swiftly to provide revised guidance in the near future.” Currently, the IRS has based its decisions about married couples on the their current state of residence, but that policy isn’t written into law and could be changed, says Brian Moulton, legal director for the Human Rights Campaign. So, the IRS could release new policies that would be more friendly to same-sex couples, particularly those living in states that don’t recognize same-sex marriage.
“It appears that same-sex spouses who live in states that do not recognize same-sex marriage will continue to be treated as unmarried by the IRS, and may not file joint tax returns. This is because the IRS uses the taxpayer’s state of residence to determine whether he or she is married for tax purposes. For example, a same-sex couple who were married in Massachusetts but later moved to Florida, would be treated as unmarried,” said Stephen Fisher of NOLO. “However, this needs more clarification and could change.”
Estate taxes after a partner’s death are also likely to change after the Court rulings.
Officials at the Utah State Tax Commission are waiting on a ruling by the IRS before developing their own policies.
The New York Times included Utahns David Huebner and John Barabino in a story on the grappling between federal and state leaders after the rulings.
“[T]ogether, they put a human face on an uncomfortable truth: Mr. Huebner and Mr. Barabino’s union, although legal, is still not equal to that of their heterosexual friends, even after historic Supreme Court rulings to grant federal benefits to legally married gay couples and restore same-sex marriage in California,” the story explained.
Huebner, a University of Utah psychology professor, and Barabino, a former Google executive, were married in California before Proposition 8 and adopted their son there. Their primary home is in Utah, which does not recognize their marriage, but they live part time in Washington, which does. They are among thousands of couples in similar positions caught in “a confusing web of laws and regulations.”
“It is a predicament the Obama administration is only beginning to grapple with: how to extend federal rights and benefits to same-sex couples when states, not the federal government, dictate who is married.”
The battles continue
It is the next battlefield for the Human Rights Campaign, said its president Chad Griffin at a speech in Salt Lake City the day after the Court decisions. He announced HRC’s new goal of bringing marriage equality to all 50 states in the country, including the state of Utah.
“We can’t tolerate the persistence of two Americas when it comes to equality,” Griffin began his speech at the Utah Pride Center. “Right now, in one America, in places like Iowa, New York and California, marriage equality is the law of the land. All families receive the full recognition of the law, and everyone is protected from discrimination on the job … But in the other America, in the 37 states without marriage equality, like my home state of Arkansas, or right here in Utah, even the most basic, statewide legal protections are nonexistent.”
“In one America, yesterday’s victories felt like the final step forward in a legal and social transformation toward a just and equal future. But in the other America, still stuck behind the dark walls of discrimination, those victories are only a headline – progress that belongs to someone else, somewhere else.”
“While strides have been made in Utah,” he continued, “you only need to walk into a clerks office as a gay couple and try to get a marriage license, to know which of those two Americas we are in today.”
“Every moment of delay has a real life consequence. Every single day in these places, a child is born, a parent dies, or a loved one is rushed to the hospital,” he said. “And the inability to access the basic protections of marriage ruins lives and destroys families.”
Families, adoption, estate planning
Indeed it’s families, adoption and the ramifications of the death of a partner, on which the Court’s decisions have little effect. The maze of laws across the country will continue to have gay and lesbian couples crossing state lines for “greener pastures.”
Utah attorney Laura Milliken Gray told the New York Times that she goes through “all kinds of gyrations” for couples who “want to achieve family equality that their straight brothers and sisters have.”
Gray advised computer network salesperson Craig Crawford to write all possible heirs — his parents, siblings and their children — out of his will to ensure that his property could be left to his husband, who is technically not next of kin under Utah law.
“When you have to write your mother’s name down and disown her,” Crawford said, “that is really harsh.”
But even legal arrangements such as this one is not a foolproof guarantee that your wishes will be agreed upon after one’s death. Such cases can find themselves in bitter court battles for years and are definitely not a slam-dunk.
But for one Utah couple, at least when they are standing on D.C. soil, they were excited enough to see the rulings come down that they took their son, Miles, to the Supreme Court to watch history being made. While the toddler joined others and played on a lawn across the street from the Court Building, the parents kept checking their cellphones for news until cheer erupted as the Defense of Marriage decision was announced.
“We’re married!” Barabino said, cradling Miles in his arms. “It’s crazy. Because of the soil that we’re standing on now, because we stand in D.C., we’re married. When we stand in Utah, we are not.”