COMMENTARY: Marriage--Unequal rights under the law

By Armene Kaye The wedding expo coming up on May 1 in Livonia, which was created for same-gender couples, demonstrates that the subject of gay marriage isn't going to go away. It's an issue that is gaining national attention and momentum. Last month, Congress introduced the Respect for Marriage Act, which would serve to repeal the Defense of Marriage Act (DOMA) of 1996. It is widely seen as balancing the scales of justice in favor of marriage equality regardless of gender-based issues, or gender-biased issues as I prefer to call them. DOMA is the federal law signed by then President Bill Clinton that allowed the federal government to narrowly define marriage as the legal union between one man and one woman. On February 23, 2011, the U.S. Attorney General announced that the Obama Administration would no longer defend DOMA Section 3 in court, which interestingly enough is the section that defines marriage for federal purposes. The following day, the Department of Justice notified the First Circuit Court of Appeals that it would "cease to defend" a pending case challenging the constitutionality of DOMA. It is quite remarkable that only 15 years separate the two Democratic presidents with such a dramatic reversal in their administration's policy toward the enforcement of DOMA. Seven jurisdictions now recognize marriage equality since the enactment of DOMA's discriminatory intrusion into the private lives of U.S. citizens. Those included are Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, and Vermont. California is also included primarily because it allowed some 18,000 same-gender couples that married in 2008 to remain legally married today. The issuing of marriage licenses in California was halted with the passage of Proposition 8, a citizen led referendum which prohibited the state from legalizing same-gender marriages. It remains to be seen whether the public at large can initiate discrimination into their state's constitution by voting on the rights of a suspect class of fellow-citizens. From this attorney's perspective, it's simply a matter of when, and not if, our government resolves to fully recognize the constitutional rights intended to be conferred upon all citizens. This would naturally include the legal ability to marry the person you love and cherish until death do you part. In the meantime, eight states have enacted benefits and responsibilities of marriage for same-gender couples. However noble that may appear, they attached a label such as civil union or domestic partnership and not that of "marriage" in their endeavor to move the issue forward. To many, including this author, it is the mark of inferiority or yet another notation further identifying a second-class citizenry amongst us. It's not just another debate in semantics, but an example of how good intentions often miss the mark. The General Accounting Office has previously identified 1,138 federal statutory provisions in the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. In essence, there are over a thousand benefits that are bestowed upon heterosexual couples with the issuance of a marriage license. It turns out that opposite-sex married people have a great deal of significant advantages in the area of estate planning, income tax, housing, pensions, social security, insurance and healthcare decisions just to name a few. It's simply astonishing how many areas that LGBT couples, otherwise engaged in loving and committed relationships, are relegated to the status of second-class citizenship. Nonetheless, gay couples can take legal measures to honor their relationships through the creation of various deeds, wills, trusts and contractual agreements. I have personally found a great deal of satisfaction in sharing my knowledge and skill with those that had given up hope on receiving any legal recognition of their status as a family. The more widespread the inequities have become, the more frustrating the wait for equality. Many years ago, I began to address key areas of concern for domestic partners. With a great deal of determination and matched effort, I tailored my legal services to those clients with unique needs such as those within the gay community. Proactive measures can be taken while waiting for equality under the law to arrive. We have the ability to offer legal documents such as a Durable Power of Attorney, Designation of Patient Advocate and Domestic Partnership Agreement to establish certain rights and responsibilities until the government offers a more permanent solution. While the aforementioned is not meant to be an all inclusive list, it is a good start. Simply put, one cannot wait for the government to grant legal recognition when there are other means to immediately establish legal rights and protections. For me, the debate ended a long time ago. It's not about gay marriage. It's about marriage, stupid. It's about couples that want to pursue a lifetime of commitment to each other with full legal acknowledgment of their relationship. No matter how hard some may try, they can't stop the inevitable progression of equal access to legal marriage. The politician and gay activist Harvey Milk said that gay rights were a "simple matter of justice." Adding to further the notion to marriage equality and rightfully so, love conquers all. "To Have and to Hold: The Same Sex Wedding Expo will take place on Sunday, May 1 from 3 to 8 p.m. at the Detroit Marriott Livonia. Information at www.pridesource.com/events.html -------------- Armene Kaye has worked in private practice since 1999 at the Law Offices of Armene Kaye, P.C., a full service law office providing legal advice and services throughout the Metro-Detroit area. Kaye also offers practical legal alternatives for the specific needs of the LGBT community statewide. She can be reached at (248) 496-9500 or goodlawyer@comcast.net. Published: Fri, Apr 22, 2011