Same-Sex Marriage – “‘Separate but equal’ sometines isn’t as equal as you might think.”

Charlie Martin provides over at “PajamasMedia” an intriguing study of what same-sex couples might encounter with and without the protection of a legally sanctioned marriage.

Charlie provides, in part:

Sometimes you hardly notice how much things have changed. Thirty-nine years and a couple of weeks ago, a series of violent confrontations between the New York City Police Department and a motley bunch of drag queens and cruising homosexual men became the first really public event in which homosexuals demanded the right to be homosexual. These confrontations became known as the Stonewall Riots after the bar on Christopher Street that had been the focus of the confrontation. Forty years ago, gay men couldn’t legally be served alcohol in New York City because they were, by definition, “disorderly”; now, in recognition of its place in the fight for equal rights for homosexuals, the Stonewall is on the National Register of Historic Places.

Of course, what does “equal rights” mean in this context? Gays can buy liquor openly now, and not just in Greenwich Village. But there are still controversies, the most significant recent one being the question of “gay marriage,” precipitated by controversial court decisions in Massachusetts and California. I don’t propose to try to go through the whole history of the question or the decisions — that could fill a hundred articles — but because of some recent blog publications, I became interested in one of the arguments against establishing a legal recognition of marriage between people of the same sex: the argument that there really is no “equal protection” issue about forbidding gay marriage, because same-sex couples can get nearly the same legal protections through existing contract law.

So, I wondered, how much would it cost to make a “marriage” using contract law instead of family law?

This is a good read. Thanks Charlie.

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6 Responses to Same-Sex Marriage – “‘Separate but equal’ sometines isn’t as equal as you might think.”

  1. chasrmartin says:

    Well, thanks for the kind words!

  2. georgeindenver says:

    My pleasure, Charlie. Your piece got me to thinking. After twenty-six years together–our assets commingled, wills and powers of attorney intact, the house and car in both our names–wouldn’t any probate of either of our estates (if one of us passes) provide the reasonable conclusion that, even in the absence of a legal marriage, the surviving “partner” in what was clearly a “meeting of minds” for a period of twenty-six years, be recognized as the sole beneficiary? That the commingling of assets had become so intertwined, so indistinguishable that no court of competent jurisdiction could untangle them for the benefit of other claimants?

    Just a thought.


  3. chasrmartin says:

    IANAL, but my understanding from Stephanie is “wouldn’t it be pretty to think so?”

    Make a will.

    Even better, just don’t die.

  4. Even better yet, vote only for candidates with a PROVEN VOTING RECORD >FOR< human rights. Pretty basic. 😀

  5. ohwilleke says:

    Shameless plug by a local estate planning attorney (me). The work that is quoted in the article at $13K-$28K, I would do for closer to $4K-$8K.

    I do about a quarter to a third of my estate planning/incapacity planning/domestic agreement work for same sex couples and have taught it as a professor of estate planning to scores of graduate students.

    Also, the article doesn’t make this fact clear, but even in states with gay marriage or domestic partnerships legally equivalent to marriage for state law purposes (CA, MA, and CO, for example), this does not apply for federal tax law purposes and primary consideration in significant asset estate planning for same sex couples is federal tax law.

  6. chasrmartin says:

    Pop over to the original article and leave the comment there as well (I think the comments are still open.) Still a helluva lot more than $20 for a marriage license.

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