By SUSAN SILBER
As an attorney who’s been active in the LGBT community for 35 years, the results of Maryland’s election were profound and demonstrated that long arc towards justice that Martin Luther King, Jr. so eloquently spoke of (“the arc of the moral universe is long but it bends towards justice”).
I was reminded of when I first became a lawyer, and being gay automatically rendered you unfit by many people’s standards. Being gay made it difficult, if not impossible, to get a security clearance for work with the federal government. Let alone that there were no legal structures to create and end our relationships, or to protect our families, other than what we could creatively cobble together into a patchwork of legal structures with a limited foundation and framework.
As a long-time Marylander, I watched the slow and steady progress, small steps chipping away as we have fought for equality for our families. It took a little over 10 years from when we expanded the statewide anti-discrimination act in 2001 to include sexual orientation protections against discrimination in housing, public accommodations, lending, and employment, until we finally secured marriage equality this year. It’s interesting to note that every state that has granted marriage to its residents, also had an anti-discrimination statute first. It’s gratifying to know all of those incremental steps along the way, including passing the hate crimes act, health care advanced medical directives, burial decision rights, inheritance and transfer tax exemptions, helped build to our success.
While there is much to celebrate with our historic win, including the pervasive and overarching feeling of inclusion and equality in knowing that a majority of our neighbors understand the value of our families, we also enter a new territory unfamiliar to our community. As we contemplate marriages and all their celebration and joy, we also need to pause and ask ourselves some questions. Let’s start with a basic one – should we get married? It’s an age-old question that straight couples have had to ask themselves, but our community has often not had this decision. Of course, we made serious and long-term commitments to our partners and families. But now we must consider the legal aspects of choosing to get married as well. Are we prepared to divide our property, which might be considered “marital” property, upon separation and divorce? Am I willing to pay my partner alimony if we divorce? If we choose to end our relationship, are we prepared to go through the necessary divorce process? Should we enter into prenuptial agreements that customize the legal arrangement by a formal contract? For example, should we promise to use collaborative procedures if we break up? Legalizing our relationships puts our “outlaw” break-ups now within the purview of the potentially adversarial court system.
Because of the Defense of Marriage Act, we are now stuck in an inherent legal contradiction: We will be legally married and receive most of the benefits that straight married couples receive from the state, but our marriages will not be recognized by the federal government, as DOMA defines a spouse as one of the opposite sex. This can trigger numerous problems and are worth consideration before marrying. It creates significant inequities that burden all same-sex couples (for example, tax implications, lack of Social Security spousal benefits, or standard health insurance coverage as an employment benefit), but some of these issues have the potential to create immediate harm for individual families. Some examples:
• Immigration. Marrying a same-sex spouse residing in the U.S. could result in the denial of the granting or an extension of a non-immigrant visa. The marriage could be viewed as the non-resident spouse’s intent to remain permanently in the U.S. The federal government won’t recognize the marriage for any beneficial purposes, but will recognize it to deny the non-resident their visa.
• Needs-Based Public Assistance. If you or your partner are receiving public assistance and you choose to marry, then the spouse’s income will be included in determining eligibility.
• Adoption. Aside from DOMA, there are other possible implications. For example, if you want to adopt a child, particularly internationally, your marital status could keep you from having a child placed in your home. Many countries will not permit adoptions to gay couples, and if you are married, you would not be able to submit an adoption application as an individual.
Maryland will begin issuing marriage licenses in January of 2013. As you begin to think through what this might mean for you or other loved ones, I also encourage you to visit the Equality Maryland website, where we’ve attempted to answer some of your questions (http://www.equalitymaryland.org/).
There is a lot of unchartered territory for us to figure out together over the next few months. I encourage couples considering marriage to think through the implications, and to talk to an attorney if you want to clarify what marriage will mean for you.
Susan Silber is an attorney who practices in D.C. and Maryland with Silber, Perlman, Sigman & Tilev. She is a board member of Equality Maryland. Reach her at silber@SP-law.com.