US: Gay Couples Face Uncertain Legal Landscape

Gay Couples Face Uncertain Legal Landscape
By DAVID CRARY, AP National Writer
Dec. 4, 2005

In more than one sense, Brian Rice and Jason Kelliher are pioneers. They were among the first same-sex partners in the nation to marry legally — last year in barrier-breaking Massachusetts — and now are among the few such couples to forgo their much-prized rights by moving to another state.

Their new home, Connecticut, is among the most liberal on the issue; its legislature has approved civil unions that extend marriage-like rights to gay couples. But that option doesn't tempt Rice and Kelliher.

"We've already reached the pinnacle of what a couple can hope for — a marriage license," said Rice, a lawyer. "Civil union is a second-class citizenship. ... We don't want to take a step backward."

Yet Rice and Kelliher know that if they venture to any other state — except back to Massachusetts — their status wouldn't improve. While a few states have recognized same-sex couples, many more are strengthening bans on gay marriage. Conservatives in some places — including Michigan and Ohio — are now taking aim at existing domestic-partner benefit policies.

"There are lots of families in states where it's harder to be a strong family, where the state does everything it can to weaken you," said David Buckel, an attorney overseeing marriage issues for the gay rights group Lambda Legal. "It's challenging, it's discouraging, at some points it's enraging."

Rice, 27, and Kelliher, 29, moved from Boston in August 2004 because of a job offer for Rice in Stamford, Conn. Kelliher now works for an apartment management company, and qualifies for domestic-partner health benefits from Rice's law firm.

They initially hoped Connecticut would recognize their marriage, but the state decided otherwise. They can't file joint state tax returns, as they could have in Massachusetts, and worry that they need to execute a will because Connecticut wouldn't consider the survivor a spouse in the event one of them died.

"There are very few attorneys who specialize in these issues, and the law is very unsettled," Rice said. "If you're moving from state to state, or traveling, protections you had in one state may not be available in another."

Despite the uncertainties, the couple sense they are better off in New England than in the dozens of other states that have explicitly outlawed gay marriage. Many have enshrined such bans in their constitutions; several also forbid civil unions.

"We're fortunate not to be facing some of the challenges couples are facing elsewhere," Rice said.

Among those challenges:

_In Michigan, Republican Attorney General Mike Cox and several conservative groups are arguing in court that the gay-marriage ban approved by voters in 2004 should be interpreted as barring local governments and public universities from providing health insurance to partners of gay workers.

_In Nebraska, state officials are trying to reinstate a ban on same-sex marriages that was struck down by a federal judge and is considered by gay-rights advocates to be the harshest such ban in the nation. Approved with 70 percent support in 2000, the constitutional amendment bars virtually any legal protections for same-sex couples, including shared health benefits for gays employed by the state. The amendment "made gay people into political outcasts," said American Civil Liberties Union lawyer Tamara Lange.

_In Ohio, conservatives who helped win passage of a 2004 ban on same-sex marriages and civil unions are now suing to stop a state university from offering health insurance to employees' same-sex partners.

That Miami University program "violates state law by creating a legal status for same-sex couples designed to mimic marriage," said lawyer Jeff Shafer of the Alliance Defense Fund. "Granting special legal status to newfangled nonmarital relationships is a state policy option rejected by the voters."

Lambda Legal lawyer Camilla Taylor said the lawsuit, if successful, would validate discrimination. "I'm sure gay and lesbian families are wondering if Ohio is the right state for them to live in," she said.

_In New Jersey, one of a handful of states with a domestic partnership law, activists were dismayed by two recent cases dramatizing the law's limitations. In one case, Ocean County officials refused to approve the transfer of death benefits to the lesbian partner of a cancer-stricken law enforcement officer, Lt. Laurel Hester. In another case, also involving lesbians who registered as domestic partners, 66-year-old Betty Jordan is suing the state because of a ruling that she is not entitled to the couple's home and cars after her partner's death in July.

Steven Goldstein, chairman of Garden State Equality and one of New Jersey's leading gay activists, said he was optimistic despite the two cases.

"The Hester case proves how progressive the state is," he said. "The outrage from the entire state is unbelievable — it brings home to legislators how narrow and insufficient the domestic partnership law is."

Some other recent developments have heartened gay activists. In Alaska — one of the first states to pass a constitutional ban on gay marriage — the state Supreme Court ruled in October it was unconstitutional to deny benefits to same-sex partners of public employees. And the mayor of Salt Lake City, capital of conservative Utah, signed an executive order in September extending health benefits to city workers' domestic partners.