Paul McGuire | Legally LGBT
It is easy for couples living in California to celebrate their wins, enjoy the string of weddings, and forget that most states in the United States still don’t have marriage equality. The Department of Defense stated in a memorandum dated Aug. 13 that they will expand all spousal benefits to same-sex married couples.
Sadly, not all couples have equal ability to get married. A number of major military bases are in states that don’t allow same-sex marriage: Texas, Virginia and North Carolina to name a few. Same-sex military couples living in those states must travel to a state that has marriage equality to get married.
In order to provide an incentive for couples to travel to a state where they can get married, a current proposal would allow couples who live more than 100 miles away from a state with marriage equality to take non-chargeable leave so that they can travel to a state where same-sex marriage is legal.
Those within the U.S. can receive up to seven days of leave, while those outside the U.S. can receive 10 days of leave. The problem is that when the couple returns home, they will not be treated as married by the state.
Among other things, this would lead to complicated tax filings. A couple would be able to file as married federally but would have to file as single with the state. This requires couples to pay more for their tax preparation because they would have to file one return as a couple and one return as an individual.
It is unclear if the current Department of Defense proposal would also extend benefits to veterans in same-sex marriages.
To look more closely at the current situation, we must look beyond the military. Before DOMA’s section three was struck down, people who were in civil unions or domestic partnerships were, in some states, essentially equal to same-sex married couples. Neither same-sex married couples nor those in civil unions were recognized by the federal government.
In New Jersey, for example, the State Supreme Court ruled in 2006 that the state must either provide marriage to same-sex couples or a separate designation that would give couples the same rights. In response, New Jersey implemented civil unions that were recognized by the state of New Jersey as equivalent to marriage. The problem now is that the federal government does not recognize members of a civil union as spouses, a designation required to receive federal benefits.
A lawsuit is currently underway in New Jersey – Garden State Equality et al. v. Dow et al. – that seeks to force the state to provide same-sex marriage. They argue that because civil unions are no longer equivalent to marriage, and the state of New Jersey cannot force The Federal Government to recognize civil unions, New Jersey has no choice but to make marriage available to same-sex couples.
Oral arguments in the case were heard at the trial level on Aug. 15. A decision is expected in the coming months, but no earlier than September.
Beyond New Jersey, there is hope that Hawaii and Illinois will be successful in legislating marriage equality sometime in the next year or two. Oregon is currently in the process of readying a marriage-equality initiative that voters can support in the 2014 election.
Pennsylvania officials recently issued more than 100 marriage licenses to same-sex couples, even though Pennsylvania still has a ban on their books. A lawsuit is currently pending challenging the authority of the officials to issue licenses. While you enjoy the weddings of your friends this year, remember that the fight for equality is not over.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.