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    April 15, 2008

    Accessing those 1,200 federal benefits (II)

    Posted by: Andoni

    If you remember, I was delighted to learn that both Democratic candidates, Hillary Clinton and Barack Obama, advocate extending the 1,200 federal benefits of marriage to gay couples who are in civil unions -- even though neither supports gay marriage per se.

    But I wondered why we haven’t heard any follow-up on this or seen any action from our national organizations, especially since the two candidates themselves gave us an opening. I also wondered what the best way to implement those 1,200 federal benefits would be.

    After e-mailing my questions to all our national organizations, I heard back from my friend Matt Coles, Director of the Lesbian & Gay Rights Project of the ACLU. He told me to stop fretting; they are prepared.

    He said the best way to start the ball rolling is for Congress to repeal "part 3" of DOMA, which prohibits the federal government from recognizing state sanctioned same-sex marriages. That would immediately make the gays married in Massachusetts (and those New Yorkers who married in Canada) eligible for those federal benefits --- everything from filing joint tax returns, to inheriting property better treatment under the estate tax, to obtaining surviving spouse social security benefits, to immigration rights, etc. -- all 1,200 of them.

    Matt also feels that soon there will be two to four more states that will recognize gay marriage, so we're talking about a significant number of people here who would benefit.

    Repealing DOMA "part 3" will not help those gays in states that have civil unions, however. For these people to gain federal benefits, a relatively simple (but not as easily passed) federal law would say: the term “marriage” in all federal laws includes civil unions and domestic partnerships created by states that have substantially the same definition, obligations and rights as a marriage in that state does. That would do it for states with civil unions and their equivalent domestic partnerships, as their called in California, Washington state and Washington, D.C.

    So there you have it.

    Unfortunately, all those (including your's truly) who live in states that don't have civil unions or even enacted constitutional amendments that prohibit same sex marriage, are basically out of luck . It would take a massive overhaul of federal law to cover us. The federal government would have to get into the civil union business; heretofore marriage and civil unions have been a state issue. Making a federal civil union law and having it mesh into all the state laws would be a nightmare.

    For me, the best answer would be to simply move to another state rather than wait for this to happen.

    The problem with this entire strategy, from repealing DOMA onward, is that Matt believes it would take a very active president, making these issues a very high priority and pushing hard to get them through. He believes none of it will happen before universal health care reform, which is a top priority of both Democrats, or ENDA, which remains the top priority of the Human Rights Campaign and congressional Democrats.

    As Chris noted today, ENDA unfortunately is hobbling all our other efforts. My own view is that ENDA has become our community's Iraq. It was supposed to be small, limited in scope, quick and easy and here we are 14 years later stuck and going nowhere -- or even backwards.

    It's using up movement resources and in spite of the obvious failure, no one at our national organizations will admit it and come up with a new federal strategy. At this point, I would even welcome a "surge" to get this done this year, so we can move on to better and more important things in the next Congress.



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    1. Chris on Apr 15, 2008 11:11:41 PM:

      Great post, Don, but how crazy is it that it took you tracking folks down to get someone who knows to spell out the path for federal legal recognition of our relationships. It's way beyond time for a public debate and some accountability from the national LGBT groups about (a) how they see things going, and (b) why these other agenda items (ENDA, hate crimes, trans rights, military, federal DP benefits, etc) are a higher priority.

    1. Brian Miller on Apr 16, 2008 10:17:34 AM:

      There will be no incentives for Senators and Congressmen to introduce legislation to achieve these ends, if you endorse and support them for higher office despite their complete legislative inaction on this point.

      Dennis Kucinich is a Democrat who has voted his convictions on these issues and taken big risks politically to get these issues on the legislative calendar. In exchange for his political courage, he's been slammed by the gay establishment (and ignored by our activist organizations).

      Meanwhile, Clinton and Obama talk about policies they "support," while taking literally no actions at all to facilitate these policies through legislative action. Just a bunch of empty promises -- but boy, their fans latch on to every empty word!

    1. Marc on Apr 20, 2008 8:33:57 AM:

      Thank you for raising the question. I agree that EDNA is becoming the community's Iraq. Other legislation, such as the equal benefits bill that would exclude from federal income taxes and FICA taxes all benefits provided by an employer to an employee's beneficiary, while we fight over whether ENDA should be trans/gender identity inclusive. The equal benefits act would create tangible tax benefits for domestic partners in every state and eliminate a huge disincentive for employer to provide domestic partner benefit. Our Iraq has side lined this positive legislation.

      A question, is it true that granting federal rights to individuals in civil unions would only affect those who live in a state that recognizes such unions? Couldn't a couple from Virginia get civilly united in New Jersey and have that civil union recognized by the federal government even though it would not be recognized by Virginia? Perhaps the answer will be in how Congress drafts the legislation recognizing civil unions for federal benefits.

    1. Andoni on Apr 20, 2008 12:27:41 PM:

      You make a really good point here.

      The language in the legislation that Matt Coles suggests ("The term "marriage" in all federal laws includes civil unions and domestic partnerships created by states that have substantially the same definition, obligations and rights as a marriage in the state does.")

      sounds like it is only tied to a legal piece of paper, done legally in a state that recognizes civil unions. It does not have any geography requirements. So, it sounds to me like you are correct.

      Of course if you get unioned in good state and begin getting both the state and federal benefits, and then move to a bad state, you will obviously lose those state benefits, but I don't think you should lose those federal benefits.

      I'm asking Matt and when I find out, I'll post an answer.

    1. North Dallas Thirty on Apr 20, 2008 1:16:57 PM:

      The amusing thing, Marc, is that other people have been proposing what you're talking about for quite some time now.

      The tax law you talk about is actually a very simple and straightforward change that would apply to everyone, regardless of location, and would only require some standardization of the term "beneficiary" at the Federal level, which would have additional advantages. Furthermore, since it would benefit people other than gay couples, i.e. unmarried heterosexual couples, children taking care of elderly parents, single moms with college-age children, it has much broader potential support and a much greater likelihood of passing.

      But it's not ideologically pleasing, nor does it grant special status to gay people, so of course, the ACLU Lesbian and Gay Rights Project has no interest in it.

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