Gay and lesbian couples who were married at San
Francisco City Hall may still be basking in the romantic
glow, but some now face a dilemma of whether to call
themselves legally wed if they want to buy a house, have
a baby or get health coverage for both partners.
Veteran lawyers say they have never encountered a
situation such as the one confronting the more than
4,000 same-sex couples who got married in San Francisco
-- one in which the marriages are in jeopardy of being
wiped off the books.
"We understand that these licenses are in a state of
legal uncertainty,'' said Kate Kendall, executive
director of the National Center for Lesbian Rights in
San Francisco.
The California Supreme Court also seems stumped by
the situation. Earlier this month the court asked
lawyers for the city, state and anti-gay marriage groups
whether it should declare the unions void if it rules
that San Francisco officials exceeded their authority in
issuing same-sex marriage licenses.
Lawyers for the city and a group of gay couples are
urging the court to put off a ruling until the justices
decide the heart of the issue -- whether state laws
banning same-sex marriage are unconstitutional, a
decision they say is at least a year away.
In a case similar to San Francisco's, an Oregon judge
ordered Multnomah County officials last week to stop
issuing same-sex marriage licenses but told the state to
validate the marriages of the 3,000 gay and lesbian
couples to whom the county had already issued licenses.
Many of San Francisco's newlyweds have begun to
maneuver through a legal obstacle course in hopes of
protecting themselves when they refinance their home or
have a baby.
"It's wise to structure a safety net so if they're
ultimately not recognized, people will be covered,''
said Vikram Amar, who teaches constitutional law at the
UC's Hastings College of the Law. Attorneys who
represent gay couples in cases involving family issues,
property rights, estates and wills have been meeting to
map out strategies for their clients without
jeopardizing their marital status.
"We are all finding our way here, blindfolded in a
dark room,'' said Kendall, one of the lawyers for six
gay couples challenging California laws against same-sex
marriage.
"In this moment of complete upheaval, everything has
become more complicated and more expensive,'' said
Deborah Wald, a San Francisco lawyer who has spent a
decade helping same-sex couples adopt children. "I'm
trying to figure out new and professional ways to say,
'I don't know.' "
Because of the couples' tenuous legal status, experts
say those who have a child must still go through an
adoption process to ensure their parental rights. They
also may be forced to call themselves unmarried when
dealing with mortgage companies, insurers and credit
card companies. And lawyers say they should make
allowances for the fact that if one partner dies, the
survivor won't be entitled to the deceased's Social
Security benefits.
All this takes time, effort and, in many cases,
thousands of dollars in attorney fees.
There's an outside chance complications will arise
even before the California high court rules. "The first
case seeking to invalidate a marriage could be brought
by a wealthy gay person who doesn't want to share with
their now-ex-spouse,'' said Fred Hertz, an Oakland
lawyer who represents gay and lesbian couples who are
ending their relationships.
Dave and Jeff Chandler of San Francisco have spent
thousands of dollars in recent years for an array of
legal rights that married couples take for granted.
They've drawn up special trusts in case one of them dies
and paid extra money for life insurance and for getting
their tax returns done. "You can't take anything for
granted,'' said Dave, who has been with Jeff for 11
years and married him at City Hall on Valentine's Day,
their 8-month-old baby Jacob in tow.
They are buying a home, and the title company had no
problem recognizing them as married. But they had to
shop around for a homeowner's insurance company that
would recognize their union. Dave also is awaiting word
from the bank where he works as a senior examiner about
getting life insurance and long- term care benefits for
Jeff.
"Not only is it a headache, but for the life
insurance for Jeff we're paying higher premiums for less
coverage,'' Dave said.
The Chandlers are not only newlyweds but domestic
partners. It's a status that lawyers say gives them
crucial backup protection if the marriages are voided.
But there's a snag: Current law says couples can't be
married and domestic partners at the same time. That
will change once a strengthened partners law takes
effect Jan. 1. In the meantime, Hertz says, "don't break
up or die before Dec. 31."
Despite the steps they've taken, couples such as the
Chandlers are already running into problems getting
benefits that heterosexual married couples automatically
enjoy, such as health insurance for spouses.
The catch here is that health coverage for an
employee's domestic partner is included in the
employee's taxable income. Coverage for the spouse of a
married employee is tax-free.
Internal Revenue Service spokesman Jesse Weller noted
that the 1996 Defense of Marriage Act limits marriage to
heterosexual couples. "Nothing changes on the federal
side for taxes imposed,'' he said.
In fact, whenever federal laws come up, lawyers are
advising couples not to risk relying on their marital
status. When refinancing a mortgage, Kendall said,
couples should not list themselves as married because
many lending laws involve federal regulations.
One of the biggest challenges for couples and their
lawyers is figuring out how to protect their rights as
parents.
If a couple had a child before they got married,
lawyers are advising them to go through a stepparent
adoption as if they are married and as domestic
partners, in case the gay marriages are voided. It's a
relatively simple task because the procedure is the same
for both kinds of adoptions.
The more perplexing situation is if a couple marries
and then has a baby.
California law says married couples who have a baby
are presumed to be the legal parents. But lawyers
caution against gay couples relying on the law as the
only basis for their status as parents.
Margot McShane and Alexandra D'Amario, who married
Feb. 12, are expecting twins in July. Because D'Amario
is carrying the babies and McShane is the egg donor,
their lawyer is preparing a special court request to
establish the Napa couple's parental rights.
It's time-consuming and will cost several thousand
dollars, but McShane said it is necessary. The validity
of same-sex marriages "could get duked out in court for
years,'' she said. "In the meantime (the twins) both
need parents, and we'd be in a bad situation if I didn't
have equal rights and something happened to Alex.''
In the more common cases, where one spouse is both
carrying the baby and is the egg donor, lawyers are
advising the other spouse to adopt the child, using the
stepparent/domestic partner route. Regardless of whether
the same- sex marriages are ultimately upheld, legal
experts say couples should go to a lawyer and draw up
their own agreement to decide who gets the house, the
pension or the Christmas bonus if they decide to split
up or one dies.
"Every relationship ends, either in death or
disillusionment,'' Hertz said. "The couples can let the
state take control of their lives or they can take
control of it themselves.''
