Federal Court to Hear First Appellate Arguments Challenging DOMA Wednesday

Attorney Mary L. Bonauto talks with reporters following District Court arguments in
GLAD's case Gill v. OPM in May 2010. District Court Judge Joseph L. Tauro ruled
Section 3 of DOMA unconstitutional in July 2010.

For the first time this Wednesday, a Federal Appeals Court will hear arguments about the constitutionality of the federal Defense of Marriage Act (DOMA). Seven married same-sex couples and three widowers, plaintiffs in GLAD’s case Gill v. Office of Personnel Management, will go to the U.S. Court of Appeals for the First Circuit to hear appellate arguments in their challenge to the law, which prevents them from accessing federal spousal protections as other married couples can.

GLAD Civil Rights Project Director Mary L. Bonauto will be arguing on behalf of the plaintiffs before a three-member Court of Appeals panel comprised of Chief Judge Sandra Lynch, Judge Michael Boudin and Judge Juan Torruella.

In a July 2010 ruling in Gill - the first strategic, multi-plaintiff challenge to DOMA - District Court Judge Joseph L. Tauro ruled Section 3 of the federal law unconstitutional. Republican leadership in Congress intervened to appeal that ruling, after President Obama declared he would no longer defend DOMA.

We will be posting updates on the hearing throughout the day on Twitter and Facebook, and will provide a complete wrap up – including a link to audio from the argument provided by the court – here and at www.glad.org after the hearing concludes.

For more information about the case and the plaintiffs, visit www.glad.org/DOMA

Associated Press: Battle over federal Defense of Marriage Act heads to appeals court in Mass.

Metro Weekly: Stage Is Set for April 4th Arguments in First Circuit DOMA Challenge Appeal

Hearing Details
Gill et al. v. Office of Personnel Management et al.
Wednesday, April 4, 2012
10:00 a.m. EST
John Joseph Moakley U.S. Courthouse, Boston

The Gill legal team is led by Bonauto and GLAD Legal Director Gary Buseck, with staff attorneys Vickie Henry and Janson Wu. Co-operating counsel on the case include Foley Hoag LLP (Boston), Sullivan & Worcester LLP (Boston), Jenner & Block LLP (Washington, DC) and Kator, Parks & Weiser, PLLC (Washington, DC).

Liberty and Justice for All: Marriage Equality Wins (Again) in New Hampshire

On March 21, 2012, the Republican-controlled New Hampshire House of Representatives fought back a repeal of marriage equality by a vote of 211 to 116. Staff Attorney Janson Wu, who served on the steering committee of the campaign to fight repeal, shares his thoughts on this incredible victory.

Coming back to the gallery of the New Hampshire House of Representatives for yesterday’s vote on whether to repeal the state’s marriage equality law felt like a reunion, even if it wasn’t for the happiest of occasions. As soon as I walked into the gallery, I saw Ed Butler and Bob Thompson, two openly gay former state representatives who played pivotal roles in 2009 in passing the Granite State’s marriage equality law. Soon former state representative Melanie Levesque, with whom I also worked and whose powerful floor speech in support of marriage equality I still remember vividly, joined us. She had spoken in 2009 about how 40 years ago, she, as a black woman, could not have married her white husband in at least 16 states. How, she asked her colleagues back then, can we justify the same exclusions for gay couples today?

That was again the question of the day at the State House in Concord, as marriage equality opponents tried and failed to pass repeal of the marriage repeal legislation. While our side’s original goal was simply to secure the one-third votes necessary to sustain an expected veto of the repeal bill by Governor Lynch, as the day grew closer, a path to outright victory started to open up. In the end, we were able to kill the bill outright by a margin of 2-1, in a legislative body that is three-fourths Republican. The bipartisan vote made clear that upholding marriage equality is not, and should not, be about whether you are a Democrat or a Republican, but rather whether you believe in liberty and justice for all.

Yesterday’s vote could not have happened without the strong work and support of our coalition partners, including Standing Up For New Hampshire Families, Granite State Progress, PFLAG-NH, Freedom to Marry, and HRC.

This victory also had personal meaning for me. Having drafted the original marriage equality legislation, I felt a special ownership and pride in the law, which many in New Hampshire and nationally initially thought had no chance of passing in 2009. It was also personal, because one of my closest friends from law school married her wife in Portsmouth, and I wanted to see her commitment continue to be honored by the state in which she chose to marry. (This friend also officiated my own wedding, having introduced me and my husband many years ago.)

The fight here in New Hampshire is far from over. Our opponents will surely try to make marriage equality an issue at the ballot box, particularly with the Governor’s seat up for grabs. Yet, with over 60 percent of New Hampshire residents supporting marriage equality, it is reassuring to know that public opinion is moving in our direction, thanks to the thousands of Granite State gay couples who have married and shared their happiness with friends, coworkers, and neighbors. Today’s success affirmed not only the equality of New Hampshire’s LGBT citizens, but it recognizes the love and commitment of the almost 2,000 same-sex couples who have married in New Hampshire. And that is certainly cause for celebration.

Everyone’s Irish on St. Patrick’s Day! Except if you’re gay!

Gays need not apply when it comes to marching in South Boston’s St. Patrick’s Day Parade. It’s hard to believe in the year 2012, but organizers – the Allied Veteran’s War Council under the leadership of Parade Organizer Philip J. Wuschke Jr. – continue to exclude LGBT organizations from participating in the festivities. Just ask our friends over at MassEquality, whose application to march parade organizers rejected last month.

It’s not for lack of trying on our part. In the early 1990s, GLAD sued the parade organizers on behalf of the Irish-American Gay, Lesbian, Bisexual Group of Boston (GLiB), a multi-year battle that took GLAD and GLiB all the way to the U.S. Supreme Court with the case Hurley v. the Irish-American Gay, Lesbian and Bisexual Group of Boston. GLAD compiled a multi-media history of the case for our 30^th anniversary a few years back that is still available here. There are photos, an interview with GLAD founder John Ward – who, thanks to Hurley, was the first openly gay man to argue before the Supreme Court – case documents, an excellent podcast featuring GLiB members, and archival photos and news coverage.

Prior to the 1995 U.S. Supreme Court ruling, GLAD and GLiB won seven Massachusetts court rulings affirming the right of LGB Irish-Americans to participate in a public -- and taxpayer funded -- civic event celebrating their heritage, and GLiB joined the 1992 and 1993 parades under court order. It wasn’t pretty. Our podcast includes chilling recollections of the 1992 parade from several GLiB members who marched with the protection of police, a SWAT team and snipers perched on roof tops along the route – while rageful spectators hurled insults, rocks and other debris. As GLiB member David O'Connor recalls in our podcast, “It was the longest four miles of our life, but we did it.”

In a 2009 editorial referencing its coverage of the two GLiB-inclusive St. Patrick’s Day parades, Bay Windows described the scene this way:

People lined the streets holding handmade signs covered in gay slurs; our photographer Marilyn Humphries photographed a man proudly brandishing a "God Hates Fags" sign six years before Fred Phelps made the phrase famous by picketing Matthew Shepard's funeral. Our own coverage of the 1992 parade described one attendee, a white-haired grandmother holding her grandchild in her arms, shouting from the sidelines, "Kill the faggots," as the 25 brave GLIB marchers went past. A group of about ten pre-pubescent boys in Celtics hats gave the GLIB marchers the thumbs-down and muttered, "Do me up the bum." A pair of cute little girls with bows in their hair booed and chanted, "Homos" at the crowd, egged on by adults. As the GLIB marchers walked along the parade route, surrounded by dozens of police officers and two box trucks full of riot police, the crowd shouted slurs at them and pelted them with smoke bombs, fire crackers, condoms, latex gloves, beer bottles and rocks. Many in the crowd turned their backs when the GLIB marchers walked past.

Yikes. The courage of the GLiB members who marched in those parades astounds and inspires me. I prefer to dwell on their strength, rather than the ugliness of the long-ago spectators and the mean-spiritedness of the current parade organizers clinging to a bigoted past. Well at least my tax dollars aren’t paying for their prejudice anymore. That’s some consolation.

The ongoing exclusion of LGBT organizations from the Southie parade is a reminder that even in Boston – one of the most LGBT-supportive cities in one of the most LGBT-friendly states in our nation – there is still much work to be done to ensure full legal and social equality for our community. Sooner or later everyone truly will be Irish on St. Patrick’s Day (well, at least metaphorically).

Until then, the local chapter of Veterans for Peace – an organization that is also excluded from the parade – is sponsoring the all-inclusive St. Patrick’s Peace Parade, which follows a mile behind the main event – apparently, that's just far enough to keep all the gay cooties and flower power from infecting the fragile fellas of the Allied Veteran’s War Council. Learn more about this great event here.

Warning: Same-Sex Married Couples and Medicare Part B

When you turn 65 you must enroll in Medicare Part B or face a 10% lifetime penalty for every year you fail to enroll. So if you wait until age 70, you will be paying an additional 50% premium in addition to the regular Part B premium for the rest of your life. However, Medicare does allow two exceptions to this rule.

First, if you are still working and are covered by either your employer’s or union’s group health plan, you can opt to enroll in Medicare Part B anytime while you are still working or during the 8 months after either your employer’s insurance or your employment ends WITHOUT incurring any penalty.

There is a second exception that involves being on a spouse’s health plan, but because of the discrimination that same-sex married couples face because of the Defense of Marriage Act (DOMA), this benefit will not apply to same-sex married couples until either GLAD wins one of its lawsuits against DOMA (for more information on GLAD’s cases see www.glad.org/doma) or Congress repeals DOMA.

On the Legal InfoLine, we have seen several cases where a same-sex spouse is on the other spouse’s employer or union health plan and thinks that he/she can delay enrolling in Medicare Part B without incurring a penalty. We have even seen situations where a Social Security employee tells the person that he/she can remain on the spouse’s health plan without incurring a penalty, showing that even some federal government employees are confused about the implications of DOMA. Later when the person decides to enroll in Medicare Part B, he/she is told that she/he is being assessed a 10% penalty for every year the person delayed enrolling after the age of 65.

So it is important when you turn 65 to enroll in Medicare Part B, unless you are still working and have group health insurance through your employer or union. You can sign up for Medicare Part B up to 3 months before the month you turn 65 and up to three months after the month you turn 65, but the later you sign up the longer you have to wait for Medicare Part B coverage to begin.

If you go to sign up more than 3 months after the month you turn 65, then you will have to wait until the “open enrollment” period, which is from January 1 thru March 31 and you will have an additional 10% penalty for every year you waited. You will also have to wait until July 1 before your Medicare Part B coverage starts.

There is more detailed information about enrolling in Medicare at www.medicare.gov. If you have any questions about this or any other LGBTQ/HIV legal issue, contact GLAD’s Legal InfoLine at 800-455-GLAD (4523) or go to www.glad.org/rights/infoline-contact.

Ask the InfoLine: Tax Time, Married Same-Sex Couples & DOMA

It’s tax time, and for married same-sex couples the federal Defense of Marriage Act (DOMA) can cause a number of problems. The first involves just filing your taxes. Because the federal government does not respect your marriage, you must file two separate returns using “Single” as your filing status. We encourage couples to in some way indicate on their return that they are in fact in a same-sex marriage so that there is no question about their relationship status if the tax return is used for some other purpose, like applying for a mortgage.

If you live in a place that recognizes your marriage, then in most cases (you should verify this for your place of residence) you MUST file as married, either as married filing jointly or married filing separately (which is different from the “Single” filing status). However, since state tax forms require that you bring over information from your federal form, you will need to create a “dummy” federal tax form as married that you use to bring over your figures onto the state form. The “dummy” federal form never gets filed anywhere—it is just used to create your married state form. For more detailed information about this see GLAD’s publication, Navigating Income Taxes for Married Same-Sex Couples.

The second issue that some married same-sex couples face, is that IF they could file as married they would pay less federal taxes than the current requirement of filing two “Single” returns. When GLAD wins one of its DOMA lawsuits, same-sex married couples should be able to file as married from that point on, but is there anything that can be done to get back some of the taxes that have already been paid out? Possibly.

Generally speaking, the IRS allows you to file an amended return up to three years from the date you filed your return. So if that time period has not expired, you can go back and file an amended return as married. Of course, that return should be denied because of DOMA, but you can keep appealing the IRS decision administratively until they will finally give you a “right to sue” letter in federal court. The idea is to keep your appeal going for as long as possible hoping that we will defeat DOMA while your appeal is still active. So you would want to stretch out each time limit as much as possible but still make sure that you take that step within the allowable timeframe. There is much more detailed information about this in our publication, Tax Time and Preserving Your Federal Rights.

If you have questions about any of this, the best place to go is GLAD’s Legal InfoLine at 800-455-GLAD (4523) or www.glad.org/rights/infoline-contact.

Ask the InfoLine: LGBTQ and HIV/AIDS Resources for You

Thanks to the work of two of our interns, Richard Luedeman and Allister Chang, GLAD now has a Resource List for each of the six New England states. You can either access the list online (see individual links below) or we can mail you your state’s Resource List in printed form- just contact GLAD’s Legal InfoLine.

Wherever possible we have included “umbrella” organizations that maintain lists of other local organizations that provide services in the area. For example, in some states there is a statewide HIV/AIDS organization that has a list of other local HIV/AIDS service providers. These “umbrella” organizations should have more up-to-date lists as changes occur.

We hope that you find these useful. We welcome suggestions of other agencies to include and would appreciate receiving any corrections or updates that need to be made. Changes, suggestions and comments can be sent to us here.

In addition to these Resource Lists, GLAD has a large number of publications on the various legal issues that affect the LGBT and HIV+ communities in the six New England states. Just contact the Legal InfoLine, and an experienced volunteer can guide you to the publication(s) that provide the information you need.

New England LGBTQ and HIV/AIDS Resources by State

Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont

Mass. Appeals Court Gets It Right in Same-sex Couple’s Custody Dispute

We love to see headlines like the one atop a story in today’s Boston Globe: Same-sex parents share role, court says The story details a ruling by the Massachusetts Appeals Court which said that state law gives two people equal legal standing when a child conceived by artificial means is born during a marriage, despite the fact that the law specifically refers to a “husband” and a “married woman.”

“We do not read ‘husband’ to exclude same-sex married couples, but determine that same-sex married partners are similarly situated to heterosexual couples in these circumstances,’’ the court wrote in its brief, unsigned opinion.

The decision marks the first time that an appellate court in Massachusetts has squarely addressed the issue of a child’s parentage when they were born into the marriage of a same-sex couple since GLAD’s historic Goodridge victory made it possible for same-sex couples to marry here starting in 2004. When the Supreme Judicial Court ruled in favor of our Goodridge plaintiffs, it made clear that Massachusetts law must apply in the same way to married same-sex couples as it does to married different-sex couples, and that includes children born into those marriages.

That’s the good news. What’s disappointing about this ruling is the circumstance that brought it about: a divorced couple (identified in the ruling as Gabriella Della Corte and Angelica Ramirez) in which one of the parties attempted to exploit an inadequacy in the law against her same-sex ex-spouse. The Appeals Court’s opinion notes that Della Corte and Ramirez jointly decided to have a child through artificial insemination. Della Corte, with the consent and involvement of Ramirez, became pregnant through insemination two months before the couple married and later gave birth to their child. Although she had admitted that their child was a child “of the marriage” during the divorce proceedings, Della Corte later tried to argue in a complaint to change their post-divorce custodial arrangement that Ramirez should not be considered the child’s parent, arguing that her ex-wife didn’t legally qualify because she could never be a “husband” as stipulated in state law. In other words, despite the fact of their legal marriage, Della Corte tried to pull the plug on Ramirez’s parental rights over the obviously outdated terminology of the law in question. Obviously, as a woman, Ramirez isn’t a husband. But she is a parent based on the fact that a child was born into her marriage to Della Corte.

The phenomenon of same-sex partners exploiting the lack of legal protections for LGBT families – or laws that are outdated or don’t use LGBT-inclusive language, as in this case – isn’t new. GLAD and other LGBT organizations have been waging battles on behalf of LGBT parents whose exes use homophobic laws to try to cut them out of their children’s lives for decades. I’ve blogged about it at GLAD and reported on it in my previous life as a journalist. It’s also why, back in 1999, we created the document “Protecting Families: Standards for LGBT Families” in conjunction with other LGBT legal advocates and practitioners. The standards call on the members of our community – and their lawyers – to fight fairly and do their best to avoid damaging custody disputes. When we published an updated version of the standards last year, we created an online pledge so LGBT parents and legal practitioners could publicly commit to upholding them in an effort to further awareness of the need to ensure that children are able to continue healthy relationships with both of their parents in the unfortunate event that the parents split up.

It would also be helpful if our legislature – for the benefit of all our citizens, straight and gay – would give attention to modernizing our laws around reproductive technologies and parenting to provide more careful and precise guidance and comfort to everyone around these important issues.