Straight Couples & Civil Unions: Cutting Off Your Nose Off to Spite Your Face?
On March 29, 2012, I was given the honor to speak at the Black Women Lawyers’ Association of Greater Chicago (BWLA) CLE program on LGBT Employment and Relationship Rights Discrimination. My commentary addressed the challenges DOMA creates for members of the LGBT community and those providing them with needed services. If you\’re unfamiliar with the so-called Defense of Marriage Act, or DOMA, the statute’s language states that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or wife.” DOMA also states that this definition of marriage is the legally recognized definition for any federal or congressional law, “ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” Accordingly, if a federal law or regulation concerns married persons, the definition of ‘marriage’ used to determine the applicability of the law or regulation will be DOMA’s definition, despite what state law says. DOMA is the first time since Loving v. Virginia that a branch of our government defined what a marriage can look like, and, although the court in Loving got it right, Congress and President Clinton with DOMA got it wrong. Consequently, because of DOMA, gay or lesbian couples cannot take advantage of the more than 1,000 benefits afforded straight married couples by the federal government, even if the couple resides in a state that recognizes same-sex marriages. This unfair result is the basis of current court challenges: Gill v. OPM, Windsor v. U.S., and Golinski v. OPM. Each case involves the denial of federal benefits, such as retirement, social security, and estate tax refunds, to LGBT couples. Consequently, it should be easy to see how this discriminatory law has caused significant and unnecessary implications for American citizens and the estate planning community. One BWLA program attendee asked if straight couples could benefit from the Illinois Civil Union Act that affords LGBT Civil Union partners all the obligations, benefits, responsibilities, and protections of Illinois married couples. Ironically, a recent article in the Illinois Bar Journal espoused the benefits straight couples could glean from entering into a Civil Union instead of getting married. My colleague used the Alternative Minimum Tax calculation to support her argument, dismissing the marital deduction and portability “issues” because these techniques are applicable to the very wealthy and impliedly are outliers. This is a reasonable argument for lower-income families; however, repeating the response I gave at the program, suggesting heterosexual couples enter into Civil Unions is questionable guidance because of the more than 1,000 federal benefits attached to marriage. Thus, if a heterosexual couple is considering a Civil Union and is not approaching or is not in retirement, a careful balancing of income tax liabilities and other assets and future income should probably be performed before considering a Civil Union. What may be gained in an income tax refund may be lost several times over in employee, health, and other benefits.
Constitutional Discrimination against Love & Marriage
I recently participated in a discussion about Judge Parker, a lesbian judge in Texas who is refusing to marry straight couples because of her allegiance to the belief in marriage equality. The following is my commentary: This discussion is indicative of why [the subject of gay marriage] is so contentious. First, I agree, the judge is not doing her job and others are paying for it. Moreover, because as a judge she is held to a much higher standard of responsibility than most, I am sure she is going to suffer the consequences of her conviction. However, staying true to one’s convictions even when technically “wrong” is one of the historical methods individuals have used to fight discrimination, which brings me to my second point. Gay marriage is a constitutional issue on 2 and possibly 3 separate premises. Marriage in the United States is a religious, financial, and social status. Those who believe in the religious doctrine that marriage should only occur between one man and one woman (or man and woman) have the support of the Constitution with respect to religious freedom in that no one is being or will be forced to participate in the religious ceremony of a gay or lesbian couple. Yet, like a soldier cannot wear his Yarmulke while in uniform and Catholic agencies can\’t sustain contracts with the State of Illinois when they refuse to allow gay couples into their foster care registries, this judge cannot continue refusing to marry heterosexual couples without penalty because our freedoms are not boundless. Those who believe that marriage should occur between sober, consenting adults irrespective of their sexual orientation have the support of the Constitution with respect to the Fifth Amendment because there are approximately 1100 federal benefits given to spouses, which are not given to unmarried individuals despite their gender, e.g., the marital deduction in the federal estate tax system. However, because of DOMA, marriage is now conclusively defined by the federal government as a union between “one man and one woman” and those benefits are absolutely proscribed from gay and lesbian couples, be they married or Civil Union partners. Before Loving v. Virginia, African Americans and white individuals could not marry in Virginia or many other southern states. The issue of gay marriage is no different, unless one believes that individuals choose to be lesbian or gay and that’s another matter entirely. Like it or not, the fact is that DOMA has created a platform by which the federal government is discriminating. Finally, marriage is a social status. When a man and a woman enter a B&B and tell the desk clerk, “We’re married and would like a room for the weekend,\” no one questions them. When they show up at PTA meetings, no one questions them. When they show up in the intensive care unit, no one questions them. Their expressions of their union go without question. Yet, couples who marry in Massachusetts, if they happen to be the same gender, often cannot express the fact of their marriage verbally or on paper without question, without fear of discrimination, or without fear of worse. Consequently, being unable to express the fact that you are in a loving relationship with another consenting adult possibly implicates the other cornerstone of the First Amendment, freedom of speech. As an African American, female, how can I not, irrespective of my liberal ideology, recognize and acknowledge the fact that DOMA is a discriminating piece of legislation that should be repealed, just like that Virginia law was, more than 30 years ago.
Who Takes the Eggs? ART and Estate Planning Considerations
As technology’s digits crawl through the nooks and crannies of our physical world and cyberspace, the legal consequences and questions emerging keep even us non-IP lawyers quite busy. Considering assisted reproductive technology (\”ART\”), family law was the premier practice area for getting caught in ART\’s web. Few lawyers realized the effects ART would have on estate planning and, even as the effects became clear, only a fraction of states passed laws providing legal guidance. Fortunately, Illinois is a state that considered ART in its laws and included laws for in vitro fertilization in the Parentage Act. Additionally, the Probate Act states that children born after a parent’s death (“posthumous” children) are to be considered having been born during the parent’s lifetime. So, what does all this technolegalese mean? Well, in terms of inheritance and/or estate planning laws, it means conversations should be had between Illinois spouses if conception is a challenge or an impossibility for one or both spouses.* The conversations are necessary because of 2 vital estate planning tools often used by couples, Health Care Powers of Attorney (“HCPOA”) and Property Powers of Attorney (“PPOA”), which can also provide instruction for ART cases. Yes, lawyers love acronyms. In Illinois, a posthumous child born via ART typically emerges in 1 of 3 ways: Use of frozen sperm; Use of a frozen embryo; or Use of a frozen egg. Furthermore, obtaining frozen sperm or eggs may not only occur after incapacity but also may occur after death, which is when estate planning mechanisms are triggered. When creating an estate plan, couples usually consider a bunch of “what ifs,” e.g., “what if I become disabled while we’re still in the “prime” of our lives and haven’t had kids yet?” A HCPOA is a tool that requires making those decisions but, consequently, eases the fears associated with the “what ifs.” Accordingly, when considering ART, a HCPOA could, for example, authorize the implantation of frozen sperm or eggs. Of course, other considerations would naturally follow, such as, how one abled-parent and one disabled parent would raise a child. Still, ART combined with the law creates a reasonable and protected possibility for having a family, when that likelihood, outside of adoption, didn’t exist before. Another equally interesting issue relates to the PPOA. But, you say, “That’s about property.” Yes, it is. In a 1993 California decision, Hecht v. Superior Court, which is used by several states, the Court determined that frozen genetic reproductive material, such as sperm and eggs, is property for the purpose of leaving a gift in a will (aka “devise”). Here, you might think the conversation would be easy – women can leave their eggs to their partners; but, not so fast. What if the eggs are frozen, then the relationship is legally dissolved, the donor spouse remarries, and then passes away? Who gets the eggs if the second spouse doesn’t want any (more) kids? She could disclaim them and pass them to her descendants or siblings; that would be interesting. The future brothers and sisters of the former partner? Should the reproductive material be destroyed? Who do you think should get the eggs? * The term “spouses” and \”partners\” are interchanged in this context because the terms are synonymous in Illinois law.
What the Illinois Civil Union Act Means . . . to Many
I apologize because today’s blog was supposed to be about why caution in choosing a trustee is important. However, recently I’ve received a number of questions regarding the affects of the Illinois Civil Union Act. Now that the fact that people are free to join who they want in the legal status of a loving union has sunk in some, questions and issues are surfacing. Individuals, not just from the LGBT community, but from other corners of humanity are interested and want to know more. Additionally, a business boom has started, which I think is a good thing, but I’m going to address a few questions first. Q: My boyfriend and I live together [heterosexual couple] and are considering a civil union now and getting married later, how are civil unions dissolved? A: Civil unions are dissolved just like a divorce, so it’s probably not worth it for heterosexual couples to enter into a civil union and then get divorced in order to get married. Q: What are the practical implications for LGBT couples? A: LGBT couples in Illinois, and states that recognize civil unions as legally equivalent to marriages, have all the benefits and obligations of married couples in state. Because the federal government does not recognize civil unions, (see Defense of Marriage Act, a.k.a., DOMA, which archaically defines marriage as a union between a man and a woman) a multitude of benefits – about 1,138 if an LGBT couple resides in Illinois – are provided through the federal government and, as a result, are not available to partners in a civil union. Likewise, if an LGBT couple travels to a state that doesn’t recognize the union, benefits that are available in Illinois, such as a spousal share through our intestacy code or rights to visit a partner in intensive care, would not be available in that state. Q: What couples benefit the most from the Civil Union Act? A: Elderly couples on Medicare who had to live independently from each other because living as a couple would jeopardize their benefits, can now be together as a civil union and maintain their benefits for the very reason partners of most civil unions can’t enjoy federal benefits – their union isn’t recognized by the federal government. Q: What about domestic partnerships in Illinois? A: The Illinois domestic partnership registry is no longer open and domestic partners are encouraged to obtain a Civil Union certificate. Now, a bunch of businesses are booming (well … seeing a significant increase of revenues; I couldn\’t resist the alliteration): The Civil Union Act has brought divorce lawyers an entire new market. But let’s hope that particular fruit of this tree for my colleagues won’t ripen for a while. Civil Union ceremonies require flowers, catering, music, officiants – all the things that weddings would – at least for those partners who want that type of celebration. (For some reason the baby shower of an episode of the Real Housewives of Atlanta springs to mind.) So the hospitality industry is very happy with the new law. P.S. I can recommend a great officiant if you need one – she may even toss in a Celtic hymn if she really likes you! Computer programmers and organizational gurus are enjoying themselves as well because systems and forms have to be replaced or upgraded. So, the Illinois Civil Union Act has ultimately placed a lot of smiles on citizen’s faces. Now, if Congress would just repeal DOMA. Thanks for allowing the digression. Part 2 of \”Why There\’s a Trust in \”Trustee\” will be available next week.