Ongoing Legal Issues for Same Sex Couples

Unfortunately, there are many examples of circumstances where same-sex couples are not treated fairly. For example:

On February 2007, a lesbian couple from Washington flew to Florida to go on a cruise together. One of the members of the couple, Lisa Mari Pond, collapsed before the cruise departed. She was rushed to Jackson Memorial Hospital. Despite having a copy of the Power of Attorney, the hospital would not let Ms. Pond’s partner Janice Langbehn in to see her.

Ms. Pond’s partner and her three children were kept from Ms. Pond for the eight hours that it took for Ms. Pond to slip into a coma and die from a brain aneurysm. She died alone, without her partner of 18 years or her children. The hospital failed to provide Ms. Langbehn with any information about her partner’s care and treatment.

A lawsuit was filed against the hospital. Despite having a legal Power of Attorney, the Federal District Court dismissed the case stating that there was no relief available for the hospital’s exhibited lack of compassion.

Constant Change

The marriage equality landscape is constantly changing. The number of states recognizing same-sex marriage has increased rapidly. Despite this, there are still thirty states that have constitutional amendments or other laws restricting marriage to one man and one woman.

Unfortunately, this legal patchwork means that same-sex couples continue to face problems including:

• Complexity in Rights to Federal Benefits
• Tax Issues for Same-Sex Couples
• Discrimination
• Interstate Recognition of Same-Sex Relationships
• Considerations Before Moving to Another State
• Specific Issues for Domestic Partnerships, Civil Unions, Committed Relationships

Complexity in Rights to Federal Benefits

Despite the Supreme Court’s June 2013 ruling against DOMA (the federal Defense of Marriage Act, which defined marriage as only between a man and a woman), complexities will persist with respect to federal benefits. Some federal benefits apply to couples based on where their marriage ceremony occurred and others are based on the state marriage laws where they reside. A couple that marries in a state that allows gay marriage but resides in a state that does not, will have to carefully assess which federal benefits and responsibilities apply to them and which do not.

HOSPITALS PARTICIPATING IN MEDICARE OR MEDICAID MUST ALLOW EQUAL RIGHTS TO SAME-SEX COUPLES

As a result of the experience of the Pond-Langbehn family, and the stories of many other couples, President Obama ordered the Department of Health and Human Services to issue regulations requiring any hospital participating in Medicare or Medicaid to allow gay and lesbian partners the same privileges and rights as heterosexual partners.

The Centers of Medicare and Medicaid Services (CMS) issued new rules in November 2010 requiring hospitals to respect the right of all patients to choose who may visit them while they are in hospital. In September 2011, CMS clarified that same-sex couples also have the same rights as other couples in terms of naming a representative who can make medical decisions on a patient’s behalf.

Tax Issues for Same-Sex Couples

Because the federal government now recognizes same-sex marriages in states where same-sex marriage is legal, like Washington State, couples who enter marriages in those states can file their federal tax return as a “married” couple.

Couples in state-registered domestic partnerships in any state cannot file their federal tax return as a married couple. The rules around domestic partnership taxes are unclear, and same-sex domestic partners should speak with a qualified tax professional to obtain tax advice. Notably, most automated tax services are not programmed to handle these complications. Furthermore, many accountants aren’t knowledgeable about the tax complexities for same-sex couples. When choosing a tax professional, it is important that same-sex couples choose someone familiar with LGBT issues.

Discrimination Still Exists

Unfortunately, even though same-sex marriage is now legal in Washington State, many same-sex couples still face discrimination.

BURDEN OF PROOF

There is often a different expectation placed on same-sex couples versus opposite-sex couples, when it comes to proving the status of their relationship to obtain their legal rights. For instance, same-sex couples often must document their relationship (using a marriage license, power of attorney, etc.) to a hospital before they will be allowed to participate in their partner’s care. Opposite-sex couples typically do not have to provide proof that they are married.

BIRTH CERTIFICATES

The 2009 “Everything But Marriage” law and the 2011 Uniform Parentage Act provides for a legal presumption of parentage when a child is born to a same-sex couple. This should mean that both parents can appear on the birth certificate in the hospital. Many couples, however, experience a problem with this—especially male couples who use a surrogate.

Talking to the hospital prior to the birth of the child may help eliminate difficulties when the child is born. If a couple is unable to get a hospital to comply, they can get an amended birth certificate to list them both as the parents of the child.

RELIGIOUS ORGANIZATIONS

Many religious organizations or officials refuse to participate in marriage ceremonies involving a same-sex couple. While this is not illegal, it is a barrier that heterosexual couples rarely have to face.

Interstate Recognition of Same-Sex Relationships

Another major hurdle experienced by couples in same-sex marriages, same-sex domestic partnerships or civil unions is the confusing nature of interstate recognition of their relationships.

The landscape of whether states legally recognize same-sex relationships and the level to which they recognize these relationships changes rapidly, making it difficult for couples travelling throughout the U.S. or internationally to know whether their legal relationship will be respected.

HOW TO PROTECT THE RIGHTS OF PEOPLE IN SAME-SEX RELATIONSHIPS WHEN TRAVELLING

Due to the existence of state DOMAs, and the reality that even with legal marriage some people and institutions may try to deny same-sex couples certain rights and responsibilities, the best practice for same-sex couples is to obtain legal powers of attorney. This is especially important if either or both of the partners/spouses intend to travel out-of-state.

Considerations Before Moving to Another State

If a married same-sex couple wishes to move to a different state for work, family, or any other reason, they will have to consider how that state’s laws might affect their family. Choosing to live in a state that does not recognize their relationship can impact property rights, inheritance rights, and over 1,000 other rights and responsibilities. It is an unfortunate reality for same-sex couples that they have to weigh potential economic or social gains of a move to a new state, against the risks to their rights and benefits because that state does not recognize their marriage.

Specific Issues for Domestic Partnerships, Civil Unions, and Other Committed Relationships

Same-sex couples often encounter problems when interacting with those who do not understand what rights and responsibilities are conveyed through domestic partnerships and civil unions. There are many stories of couples dealing with discrimination at hospitals, places of business, and even in certain government agencies. Most of this discrimination occurs because people, businesses, and agencies, do not understand the legal complexities of these unions.

The Windsor case and the ruling that DOMA was unconstitutional only addressed the issue of same-sex marriage. It did not address whether the federal government should recognize domestic partnerships or civil unions, which provide substantially similar rights and responsibilities as marriage. Since the Court did not address these issues and extension of federal rights and benefits hinge on “marriage,” couples in state-registered domestic partnerships and civil unions will not have the rights and responsibilities the federal government provides to married couples.