Getting Hitched: A Legal Guide to Same-Sex Marriage in Oregon (Just Out: February 2, 2013)

Unfortunately for Tex Clark and Anna Campbell, returning home to Portland after the wedding meant their marriage was legally non-existent. “According to Oregon law,” says Clark, “we’re nothing. We’re just roommates.” Clark, who is a public defender officially employed by the federal government, tried to add her wife to her health insurance plan when they returned home. “Two weeks later I got a letter back telling us ‘no,’ that it was illegal for them to give us benefits.” Recounts Clark, “My request had been declined due to gender and sexual orientation. I grew up in Texas, and I’m familiar with hostility to queer people. But it still made me cry to get that letter.”
Many Portlanders, regardless of sexual orientation, believe that because Oregon has legalized domestic partnerships there is full equality for same-sex couples under the law. In some areas, that’s true. And with the recent electoral decision legalizing same-sex marriage in neighboring Washington, as well as several others states, Oregon LGBTQ couples would seem to have increased options for cementing relationship commitments.

IT’S NOT THAT SIMPLE. (IS IT EVER?)

Each additional state that adds marriage equality, it presses the issue and increases the likelihood of gay marriage on a federal level within a generation. But without federal approval, the state-by-state checkerboard of marriage equality leaves many LGBTQ folks stuck in limbo. Fortunately, Portland is home to many marriage equality activists and attorneys who can help illuminate the labyrinth of bureaucracy that committed couples face.

Looking to get hitched this year? A destination wedding to Canada or a marriage equality state is exciting, but be prepared for the fact that a marriage performed elsewhere is legally naught on Oregon soil. To help navigate the process, Just Out talked with several Portland-based attorneys who offer advice to help fill the gaps.

LEGAL IN OREGON: DOMESTIC PARTNERSHIP

According to attorney Marlene Findling, “Domestic Partnership here grants rights and responsibilities that are identical to marriage. This includes things like paying joint state taxes, receiving joint employer benefits, and name changes.” Findling says that registration offers too many benefits to name — many of them seemingly small things, like being able to drive a car your partner has rented.
But almost every one of the perks has a flipside. For instance, family law attorney Beth Allen points out, “If I die today and bequeath my property to my registered Domestic Partner, she isn’t going to have to pay state taxes — but she is going to pay federal taxes.” Findling uses social security as a sobering example: “If you are [heterosexually] married, you’re entitled to your spouse’s social security, but since it’s federal, domestic partners are not. Anything that’s federal, it’s as if you don’t exist.”

Regardless of the paperwork maze, terminology itself can provoke emotions. Allen becomes clearly annoyed by the term ‘register’ and says, “People register to take classes, they register to get a driver’s license. Not to marry!” Former Oregon State Bar President Mark Johnson Roberts agrees. “It doesn’t have the same gravitas, or portability. The whole purpose of the existence of domestic partnership is to deny that gravitas, deny that reality.” The second-class, separate-but-equal status offered by domestic partnerships is something that both lawyers hope to see challenged at the ballot in 2014.

WASHINGTON STATE AND BEYOND: DESTINATION WEDDINGS

Getting married in Washington State is a new option for Oregon couples that previously might have traveled to Canada for a legal marriage. But unless you move to Washington, you will still need to file for a domestic partnership in order to receive any legal recognition of your relationship.

The upside is, Washington included a “recognition” statute in their marriage equality law; same-sex couples married in other legalized jurisdictions like Canada and Massachusetts will find their marriage status holds in Washington as well. According to Allen, this can get tricky: “There are many couples now who have married in a variety of jurisdictions, and registered as domestic partners as well. The problem that has occurred for a lot of people is that if they decide to divorce, they will have to follow the procedures of those jurisdictions one by one.” Automatic recognition is a comfort to some Oregon couples that previously wed elsewhere. Campbell states excitedly at the time of this interview, “We are married in Washington as of last night!”

DOMA DOWNER: THE FEDS BLOCK GAY MARRIAGE

At the time this article is being written, the Supreme Court is reviewing a major case that challenges DOMA, the Defense of Marriage Amendment that makes federal recognition of same-sex marriage illegal. For the past several years, same-sex couples that wed in marriage-equality states have been effectively blocked from receiving the types of federal benefits that heterosexual spouses get. “The Windsor case,” explains Johnson Roberts, “Asks whether the federal government can officially block marriage contracted under state law. If that case is favorably decided, what it means is that married couples in places like Washington can access federal benefits like social security.” There’s also a good chance that the fall of DOMA would persuade legislators in states that currently offer domestic partnerships to immediately legalize same-sex marriage: “The suggestion is that if DOMA were to fall, the fed might look at Domestic Partnership as equivalent to a marriage,” says Johnson Roberts.

In the meantime, DOMA prevents a range of benefits from trickling down to both legally married couples and registered domestic partners.

JUST IN CASE: COVER YOUR ASS ACROSS STATE LINES

As Allen points out, extra paperwork is especially vital for same-sex parents, even those who are endowed with automatic second-parent status under the Oregon registered domestic partnership. “If a [registered] lesbian couple has a child using a sperm donor,” Allen says, “The non-birth mom will be on the birth certificate also, and they have equal status as parents under the law. The problem with that is if you step outside of Oregon, not all states will recognize the second mom. Registered or not, all couples should do a second parent adoption. A birth certificate is not a sufficient federal document.” Same goes for other rights endowed by marriage and domestic partnership, such as power of attorney in case of illness. If you want it to be recognized outside of the state, you need to make sure to consult with a lawyer and do the extra paperwork necessary to make sure those rights are in place wherever you travel. Johnson Roberts tells his clients to “think of it like a flashlight — in one state it’s on, then you go to another state and it turns off. It’s a crazy system, but it’s what we’re stuck with for the time being.”

THE ELEPHANT IN THE ROOM: SEPARATION AND THE GAY DIVORCÉE

Ironically, Johnson Roberts says most of his clients these days need help splitting up. The more convoluted the process of legalizing same-sex partnership becomes, the more complicated it is to get divorced. Let’s say there’s a lesbian couple who is married in Canada, registered as domestic partners in New York, registered in Oregon, and who also took extra steps to make sure they were covered in each other’s wills and property on a permanent, nationwide level. If that couple finds that they want to separate, they now need to dissolve every one of those contracts separately. That can be made especially complex given the residency requirements of some jurisdictions; for example, to get divorced in Canada you must reside in Canada for a minimum period of time. Each area is going to have its own unique requirements for separations and dissolutions, so an exit plan is an important part of marriage, despite the fact that most newlyweds aren’t exactly thinking about divorce. “For us, it was kind of a plus not to be able to get divorced,” says Clark. “We pretty much considered it a permanent thing.” Indeed, there are other reasons a couple might not give much thought to the divorce process — after all, if your marriage isn’t even legal under federal law, then the marriage is purely symbolic, right? But this will become a larger problem as the country gets closer to repealing DOMA, and as more states add gay marriage. It is also something to be concerned about in regard to future partnerships. Regardless of the reasoning, understanding the whole course of action is essential before getting hitched.

 

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