Denise M. Beauregard, Estate Planning Representative
On Nov. 2, 2004 eleven states passed proposals banning same-sex marriages. The fact that they passed is not surprising, but the margins by which they prevailed illustrated the current political climate of the country.
Since the national elections, other states with similar laws on the books have seen either judicial confirmation or judicial correction of their state statutes (depending upon your political persuasion). A day after the California Supreme Court affirmed the New California Domestic Partnership Law (AB 205) as valid, the Montana Supreme Court ruled that same-sex couples could not be treated differently than unmarried heterosexual couples by public universities with regard to the extension of benefits. A further repudiation came when an Arkansas Circuit Court judge ruled unconstitutional the prohibition against placing foster children with gay persons or in a family with a gay member stating it had nothing to do with protecting children, but was instead an attempt to publicly regulate morality.
In Michigan, one of the eleven states that passed proposals banning same sex marriage or “similar unions for any other purpose,” the odds just increased that eventually some portion of the proposal will ultimately be struck down as unconstitutional and discriminatory, considering recent rulings in the conservative Western Plain states.
President Bush and Senator Kerry both expressed their opposition to same sex marriage, preferring instead the alternative of “civil unions” to extend partnership rights to same-sex couples, but whose version of that concept should prevail? The question at this point is purely hypothetical since neither party nor its leaders have shown either willingness or a sense of urgency for introducing civil union legislation.
California is ahead of the curve and the rest of the nation with its new Domestic Partnership Law, whereby same-sex couples legally prohibited from marriage and heterosexual couples uninterested or unreceptive to matrimony now have a binding set of rules and laws, by which committed domestic partners should love, live, split and die regardless of sexual orientation. In the state that innovated palimony and pre-nuptial agreements, common law partnerships were never this structured or well defined with legal rights, privileges, responsibilities, and penalties spelled out chapter and verse down to the last dollar.
Supporters and opponents both admit the law is tantamount to marriage without the ceremony, but where is the harm in having a body of law that governs committed domestic partner relationships (regardless of sexual orientation) as the state does marriage, parent-child, and other such relationships that often come before the courts? The law applies to California only, but if either political party is serious about addressing the needs of domestic partners (gay and straight) and their relationship rights, the California law is the perfect prototype. If ever members of Congress give the California law a fair read they would see it for what it is; a set of rules designed for unmarried couples to live with both partners equally and fully protected. There would be no need for Congress to reinvent the wheel, since the California law deals with everything from benefits, property rights, inheritance and estate, child custody, and dissolution of relationship issues. Domestic partners still cannot enjoy the tax advantages of married couples and must file separate tax returns. Moreover, the California law applies only at the state level, so no rights regarding immigration or federal taxation accrue to the couple and the rights are not recognized in others states. Adopting California’s law as the national standard would also prevent the judicial activism conservatives so often complain about, since the courts would have a clearly defined set of laws to follow and apply in hearing cases.
If truly one respects it, and expects the rule of law to prevail in American society to all things criminal and civil, the California Domestic Partnership Law should be the example for the nation to follow. Realistically, religious objections and protests will keep same-sex marriage from becoming a reality soon. From devotedly pious believers to the occasional religious observer (regardless of faith), the voting margins reaffirmed the widespread opposition to same-sex marriage. Equally important, many people with no religious objections just do not believe that marriage should be an option for same-sex couples.
However, the financial affairs of unmarried couples, gay or straight, are often more complicated and involved than those of married couples. Nevertheless, they are just as legitimate and equally deserving of acknowledgement and protection under the law as any partnership agreement between friends or strangers. In the continued absence of a body of law to protect the participants (gay and straight) in domestic partner relationships, sound estate planning on the part of both participants will have to suffice.