Analysis by Art Leonard
Sunday, June 26, 2011
Monday, May 2, 2011
A Tipping Point for Gay Marriage? - NYTimes.com: "- Sent using Google Toolbar"
WASHINGTON — It’s not every day that a leading law firm fires a client for holding a position so extreme that it may be said to be unworthy of a defense. And it is rarer yet — unheard of, really — when that client is the House of Representatives and the position in question is a federal law.
Yet that is just what King & Spalding, a venerable Atlanta firm, did last week. Under pressure from gay rights groups and apparently fearful of criticism from the law students it recruits and the corporate clients it serves, the firm said it would not defend the federal Defense of Marriage Act against a challenge that it violates the Constitution.
The episode has so far mostly been discussed as a matter of legal ethics, and the firm has had a rough ride. But there is something larger going on, too.
For many gay rights advocates, the decision amounts to a turning point in the debate — the moment at which opposition to same-sex marriage came to look like bigotry, similar to racial discrimination and the subordination of women.
To opponents of same-sex marriage, the firm’s decision is the latest evidence that elite opinion generally and the legal culture in particular is racing ahead of popular opinion and shutting down a worthwhile debate.
“There is a big gap between elites and everyone else” over same-sex marriage, said Maggie Gallagher, the president of the Institute for Marriage and Public Policy, which supports traditional marriage. The polls and political science literature support her: What may be orthodoxy in faculty lounges remains an open question among the public at large.
Another critic of same-sex marriage said King & Spalding’s decision illustrated just how wide the divide between elite and mass opinion on same-sex marriage has become. “There is no doubting that the default position of the American academy is to dismantle the institution of marriage and remake it on a new basis,” Matthew J. Franck of the Witherspoon Institute, a conservative research group, wrote in a blog post on Friday. “The deadly combination of unchallenged liberal presumptions and casual intimidation of dissenters is probably at its worst in the most prestigious universities, which set the tone for the rest of the country, on this issue as on many others.”
Ms. Gallagher sounded bitter and besieged as she described how the nature if not the substance of the debate had shifted. “Either you’re with them or you’re a hater,” she said of gay rights advocates. “They’re trying to exclude you from the public square.”
Evan Wolfson, the president of Freedom to Marry, said he welcomed a conversation, but the arguments against same-sex marriage were so empty that they were not worthy of respect. “If you know that the only arguments that can be made for a position are discriminatory and harmful to real people,” he said, “you should think about whether you should make them.”
This latest skirmish in the culture war over marriage was prompted by the Obama administration’s decision in February that it would no longer defend in court the part of the Defense of Marriage Act that denies federal benefits to gay and lesbian couples married in states that recognize such unions. That decision was itself unusual and thus telling.
But it was only one indication of how quickly the battle lines are moving. In 2008, a federal judge in New York ruled that it was defamatory to call a straight man gay. Ten months later, a different judge of the same court, relying on what he called “a veritable sea change in social attitudes about homosexuality,” said there was no longer “a widespread view of gays and lesbians as contemptible and disgraceful.”
The second judge, Denny Chin, drew a comparison. In 1926, he said, New York’s highest court ruled that it was libelous to call a white man “colored” or “Negro.” Such rulings were common in much of the nation in the first half of the last century; they are unimaginable today in any state. The range of views that may be expressed in respectable circles can be a bellwether in judging what society is ready for, said David A. Bositis, an analyst at the Joint Center for Political and Economic Studies who has studied the politics of race.
“Part of the evolution of equality obviously includes moving from where statements are viewed as normal and accepted to being socially undesirable,” he said. “When some turning points in these struggles are reached, it becomes more and more unsavory to behave in some ways and take certain positions. In polite society, it’s no longer considered acceptable to make overtly racist statements.
“But in the case of gay rights,” he added, “those turning points still have a ways to go. I certainly can see that day coming. Compared with the civil rights movement for African-Americans, the movement for gay rights has proceeded with a remarkable degree of speed.”
Nathaniel Persily, who teaches law and political science at Columbia, says that today, a person’s education level is powerfully predictive of views about same-sex marriage. “Sometimes the norm of equality penetrates the elite levels first,” he said. In fact, the change of attitudes has moved farthest in the legal community, which has long embraced gay rights with a particular fervor, a point Justice Antonin Scalia complained about in a 2003 dissent that in a way predicted King & Spalding’s decision.
The “law-professional culture,” Justice Scalia wrote, “has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
The decision Justice Scalia was dissenting from, Lawrence v. Texas, struck down a Texas law that had made gay sex a crime.
For the gay rights movement, that decision was a watershed akin to Brown v. Board of Education, the 1954 Supreme Court decision barring racial segregation in public schools, said William N. Eskridge Jr., a professor at Yale Law School and the author of several books on gay rights.
“We’re in the post-Brown era,” he said, “which for me is post-Lawrence. After Lawrence, there has been a social revolution in America.”
The analogy may be instructive in terms of timing. Thirteen years passed between the Brown decision and Loving v. Virginia, the 1967 Supreme Court decision striking down bans on interracial marriage.
“A large majority of supporters of racial integration and even nondiscrimination in the workplace did not believe that interracial marriage was tolerable,” Professor Eskridge said. “In race, the marriage issue was the very last form of discrimination struck down.”
If the comparisons are apt and the same judicial timetable holds, that means bans on same-sex marriage will fall around 2016.
Posted by Michael at 10:41 AM
A Final Push for Gay Marriage in New York State -- New York Magazine: "- Sent using Google Toolbar"
Governor Cuomo has set his sights on getting same-sex marriage passed by the end of the legislative session in June. And for the first time, four top advocacy groups have united under one banner for a final push. Together they’re signaling: This is it.
Why all the confidence? Because the landscape has shifted so favorably since December 2009, when a weak David Paterson led the charge, the gay groups were fractured, and a marriage bill failed in the State Senate 24-38. This time around, Cuomo enjoys a 73 percent favorability rating and political capital to spare. A record 58 percent of New Yorkers now support gay marriage. By that last measure alone, the bill should sail through, carried along by the virtue of won-over hearts and minds. It would be a beautiful thing.
But this is Albany, where getting things done is never pretty. A marriage-equality bill is still six votes short in the Senate, and though four senators who previously voted “no” have indicated their votes may now be up for grabs, that still leaves the tally two votes short—at least one of which will need to be Republican. The united gay groups say they are soliciting some fifteen senators, and they’re making it personal. “I’m going to talk to anybody about this issue, even if they’re down as a no,” says Cathy Marino-Thomas, board president of Marriage Equality New York, who believes she can get holdouts to see “that marriage is a right for my family.”
As a volunteer for the Empire State Pride Agenda, I’ve tried that approach, spending a sweltering day knocking on doors in Bellerose, Queens, last summer. After several hours’ work by six canvassers, we found only a dozen or so people willing to sign our marriage pledge. As I walked by a public-school campus named for then-Republican state senator Frank Padavan (a gay foe), I remember thinking we were on a hopeless quest.
So it’s a fortunate thing that even as gay people across the state are working on hearts and minds, the advocacy groups and the governor have other tools at hand. Cuomo, for example, can offer carrots on hot-button issues like rent regulation and property-tax caps. “Federally, what did Lyndon Johnson do?,” noted one gay leader. “[He said] ‘We’ll give you your federal money. You give us civil rights.’ That’s how politics works.” And then there are the sticks. If marriage passes, the wealthy gay-rights groups can lay off State Senate Republicans, instead of aiming to pick them off one by one, as they’ve been doing—as they did to Padavan, who was bounced last November. They might even support GOP senators who vote their way. In March, the Human Rights Campaign hosted a benefit for Maine’s Susan Collins to reward her for her role in repealing “don’t ask, don’t tell.”
“This is a vote that will be beneficial for Republicans,” HRC’s Brian Ellner emphasized. A majority of New Yorkers may now believe in the universal right to marry, but making that reality may come down to a select few not wanting to lose their jobs.
Posted by Michael at 8:14 AM
Wednesday, April 6, 2011
Gay Marriage Watch » Blog Archive » Ten Reasons to Say Yes to Marriage Equality: "- Sent using Google Toolbar"
Gay marriage is an extremely controversial topic. There are very strong feelings on both sides of the issue. It is an issue that entangles legal rights and religious beliefs, always a volatile mix. This article will list ten facts that are commonly given as reasons for gay marriage.
Divorce protection. Married couples who decide to end their relationship must do so through the court system. This protects the two parties from inequitable division of assets and liabilities that have been held jointly. This protection is not available to unmarried gay couples or unmarried heterosexual couples, though they can certainly enter into contractual agreements in regards to their relationships that would provide the same or better protection to their rights.
Bereavement leave. Whether it is paid or unpaid, almost every employer allows for time off from work for the bereavement of your spouse or other close family members. Couples, whether gay or straight, who do not have a marriage certificate, are dependent upon the compassion of their employers to provide them a similar benefit, should their life partner die.
Survivor benefits. Social security and many pension plans provide survivor benefits to surviving spouses, another benefit not available to unmarried couples.
Tax benefits. There are many different tax benefits that are offered to married couples, such as filing jointly, that a gay couple does not have access to without marriage. Again, the same is true for unmarried heterosexuals.
Insurance benefits. Although this has changed with a few employers and insurance companies, most insurance benefits that are available to an employee’s spouse or family members are not available to an employee’s life partner.
Sick leave to care for a partner. State and federal laws provide protection for worker’s jobs when they need to take time off to care for family members for medical reasons. Without the benefit of marriage, these laws do not provide the same protection for unmarried couples.
Stability of relationships. There are those who would argue that entering into a marriage relationship that is recognized legally, and by society in general, would bring greater stability to some gay couples. With the high rate of divorce and marriage conflict among heterosexual couples, this argument would imply that the same would not apply to gay couples, which seems unlikely.
Validation of family unit. This reason for gay marriage is much more societal than the ones that relate to monetary and legal benefits listed above. Proponents of gay marriage would argue that a legal and recognized marriage would legitimize their family unit in the eyes of society, which would be emotionally beneficial to a gay couple and any children in the household. The truth to this can only be theorized, as with any other major change to the norm of society.
Relational ties to extended family. Conventional marriage relationships become easily translated into inlaws, aunts and uncles. Non-married couples can be left without these inclusive family titles that have always come via marriage. With the increase of heterosexual couples that have chosen not to marry, this issue, again, is not exclusive to gay couples.
Cultural change. When all the reasons for gay marriage are brought together, they boil down to this one. Proponents for gay marriage believe that there needs to be a change in how modern society views and relates to homosexuals. Legalizing gay marriage is considered to be a major step in bringing about that change. It is also the reason why those who do not feel that homosexuality is acceptable, for religious or other reasons, take such a strong stand against it.
The affect of the legalization of gay marriage on society is something that can only be speculated at. First of all, no one knows how many gay couples would choose to enter into a marriage relationship, if it were available. The initial influx into the marriage ranks might be large to begin with, but whether or not the trend would continue is hard to judge. The financial impact of such a major shift in private and governmental benefits cannot be accurately calculated, but it would certainly be significant, as would the impact on society in general. The legalization of gay marriage, as shown above, would be a major cultural change that affects many more lives than the gay community itself. The debate over this issue will not be quickly or easily settled, nor should it be
Posted by Michael at 3:00 PM
Tuesday, April 5, 2011
some important info in this article about equalizing assets
Married Gay Couples "Refuse to Lie" on Tax Forms - NYTimes.com: "- Sent using Google Toolbar"
By TARA SIEGEL BERNARD
Courtesy of Equality Florida The “Refuse to Lie” campaign was created gay activists who believe that the federal government should acknowledge same-sex marriage.
What if You're Gay - Your Money - Bucks Blog - NYTimes.com
Some same-sex married couples are refusing to file their federal tax returns separately this tax season, as part of a movement demonstrating that they’re no longer content to quietly comply with the federal law that does not recognize same-sex marriage. And in some cases, these taxpayers will pay Uncle Sam more when they do so.
Same-sex couples who have married, or who have a legal status equivalent to marriage in certain states, must still file separate federal returns because the government — and therefore the Internal Revenue Service — defines marriage as a legal union between a man and a woman.
Using that definition, federal tax returns ask taxpayers to check one of five options under their filing status: single, married filing jointly, married filing separately, head of household or qualifying widow(er) with dependent child. Married same-sex partners typically file their own federal returns either as single or, if they qualify, as head of household, which has more favorable rates than the single filing status.
But many same-sex couples contend that filing as single amounts to lying about their marriage status, and that’s the message behind the “Refuse to Lie” campaign created by gay activists, which is timed to coincide with tax season.
“More people are refusing to lie on those forms, even though the government is telling them to,” said Nadine Smith, executive director of the gay, lesbian, bisexual and transgender advocacy group Equality Florida, who plans on filing a joint return with her wife, Andrea. “It would be both dishonest and deeply humiliating to now disavow each other or our marriage and declare ourselves single on our tax form.”
Nina E. Olson, the national taxpayer advocate who acts as an ombudsman for the I.R.S., acknowledged the uncertainty surrounding federal taxation of same-gender spouses in an annual report to Congress. In the report, she said that taxpayers may take a filing position without penalty if there is “substantial authority” to do so, such as a court case that hasn’t been overruled by the United States Court of Appeals. And there happen to be two such cases, which are currently on appeal.
In July 2010, the Federal District Court in Massachusetts declared the Defense of Marriage Act — the federal law known as DOMA that defines marriage as between a man and a woman — as unconstitutional in two cases. They are now being appealed in the First Circuit. “Thus, there may be substantial authority for same-gender spouses to take certain tax positions as married as long as the Massachusetts district court’s opinions stands,” Ms. Olson said in the report.
The “Refuse to Lie” Web site warns same-sex couples of the risks of filing jointly, and explains different options to both adhere to the law while expressing that they disagree with it. One way to do that would be to put an asterisk by the “single” box, and then indicate at the bottom of the tax form that you are “only single under DOMA.” Another option, the site says, is to attach a note with a similar message.
The campaign also explains on its Web site how to file a joint return while avoiding penalties. In the first method, each partner would file their own single return and include an attachment stating that they’re married, and then file an amended return jointly. “Once the I.R.S. rejects the amended return, or if six months passes and they do nothing, the taxpayers who file an amended return have the right to file suit in Federal District Court claiming the refund,” the activists’ site said, adding that this option would avoid penalties because your original return would be filed according to the law.
Another method suggests filing two returns: one filed jointly (and showing the tax due on the joint return) and one filed as a single taxpayer (showing the tax due on that return). Pay whatever is due on the single return — which means you will not have underpaid — and then ask the I.R.S. which return to accept. But if the I.R.S. accepts the joint return and issues you a refund, “there is no way to know what will happen if you are later audited,” the site said.
“People who follow this example need to do so with a clear head about the decision they are making and that what could happen is unclear,” Ms. Smith, of Equality Florida, said. “It’s not without risk.”
But there’s another way to preserve your right to collect any refunds due to you if the law is eventually struck down. Patricia Cain, a professor at Santa Clara Law and an expert on sexuality and federal tax law, said that couples who would benefit from a joint filing — that is, couples who would pay less in taxes or receive refunds — can file a protective claim using I.R.S. Form 843. (File separate returns in accordance with the law, then attach the form to an amended joint return).
“If you state on Form 843 that your claim is based on the unconstitutionality of DOMA, which is an issue pending in current litigation, it is more likely that the I.R.S. will do nothing until the issue is finally determined,” she added. “And if DOMA is struck down as unconstitutional, you should be entitled to the refund on the amended return.”
Although she generally recommends that same-sex married couples file their own returns in accordance with the law, she said that couples living in Massachusetts might be able to better justify filing their returns jointly because of the two court cases there.
“The question is whether that is sufficient as substantial authority to avoid being assessed penalties if you were audited by the I.R.S. and found to have filed incorrectly,” Professor Cain said.
She also said that she knew some same-sex couples in several different states who had filed joint returns and received refunds. “It’s because the returns are handled by machines,” she said, adding that the 1040 forms don’t have any gender markers on them. “That doesn’t mean they won’t be audited sometime. But honestly, I think the I.R.S. has bigger fish to fry than figuring out where same-sex couples filed jointly.”
Taxpayers who don’t pay the proper amount of tax will be levied a 20 percent penalty on top of the amount of tax owed. An I.R.S. spokeswoman said the agency followed the federal Marriage Act and declined further comment.
But for Kate Kendell it’s about more than the money. Ms. Kendell, executive director of the National Center for Lesbian Rights, said she and her wife, Sandy, who have been together for 18 years and have two children, are going to file as married this year (they married in California during the brief window in 2008 when same-sex marriage was permitted there).
“As a lawyer and a legal advocate for the L.G.B.T. community, I am often in a position to advise people to exercise great caution and to comply in most cases with the letter of the law, even when that means denying who we are,” she said. “This is my small way of saying, where we can, we are not going to play the game anymore.”
In their case, the move is going to cost the couple more than $5,000.
If you’re part of a same-sex couple and would like to file jointly, how far would you go to show that you disagree with the current law? And what does everyone else think about this effort?
Posted by Michael at 2:06 PM
Monday, April 4, 2011
Read this about married couples and tax filings Look especially at last question from bottom. Could be very important to couples http://www.wnyc.org/articles/its-free-country/2011/mar/30/lgbt-tax-prep/
Tax Answers for Same Sex Couples - WNYC: "- Sent using Google Toolbar"
With the tax filing deadline approaching, Tina Salandra, CPA and principal at Numerical, LLC, offers advice for LGBT families on how to prepare their tax returns.
Fifty states, two levels of government, an incredibly complex tax code—you'd be hard-pressed to find a more tangled case study of bureaucracy than in the challenges that same sex couples face every April.
Filing income taxes at the state and federal levels gets tricky for a couple that isn't legally allowed to marry everywhere, and whose legitimate marriage in one state isn't grounds for recognition from the national government. Though President Obama recently ordered the Justice Department not to defend the Defense of Marriage Act (DOMA), the law stands, and will remain standing until it's successfully challenged in court. That means that for the time being, a homosexual couple wed in Vermont still can't file their federal income taxes as a married couple, even though they're allowed to file their state taxes that way.
What's more, the variety of partnership allowances for gay couples further complicates the matter. Certain states (California, New Jersey, Oregon) have banned same sex marriage in favor of civil unions and domestic partnerships, but still allow those couples who were joined in another state to file their state taxes as a unit. Then there's New York, which doesn't allow gay marriage, but recognizes and extends marriage rights to gay couples from out of state—then still doesn't let them file together.
"New York state has not changed any of their tax laws relevant to same sex couples, at least not for the 2010 filing season." said Tina Salandra, a CPA with experience filing same sex tax returns. For tax purposes, married gays in the state of New York aren't married at all. Contrast that with New Jersey's example: Salandra says the state actually requires every couple in a civil union to file as married; they don't even have the option to file single, as they're required to for their federal return.
"You either file 'married/civil union' or 'married filing separately/civil union filing separately," she explains. "It's actually neutral for the family bottom line."
What do same sex couples need to know as they prepare to file their state taxes?
The first step is to double check your state tax laws regarding same sex partners. The most obvious consequence of being allowed or forced to file together is that a couple's combined income could bump them into a collectively higher tax bracket than the one in which either individual would otherwise land—the "marriage penalty," as it's known.
That can only happen to gays at the local level, in states that permit joint filing. But Tina Salandra said that ultimately, a couple's state tax return isn't going to look remarkably different whether they file separately or not.
"States have such a narrow range of tax brackets—let's say five to nine percent—that there often isn't the same disparity for filing single or married as there is with federal tax return," she said. The difference gets more pronounced at the national level, where there's a wider range of tax rates.
How can these couples better manage their money to come close to the same deal heterosexual marriages enjoy?
Salandra fielded several questions regarding specific situations and provisions in the federal tax code. Right off the bat, gay couples shouldn't even think about filing their federal taxes jointly; fraudulent statements constitute a felony. For the finer points of financial maneuvering, here's what Salandra had to offer:
→ If you co-own property, can both homeowners get the mortgage interest deduction?
You can both get the mortgage interest deduction so long as you are both legally liable for the mortgage debt. You can allocate that interest any way you like within couple: split it 100-0, 90-10, 60-40, etc.
→ What if one partner stays home with child while other works? in a marriage, working spouse can take a dependent deduction for stay-at home spouse. can one aprtner be deemed as dependent?
Possibly. A partner can be deemed a "dependent other" if the working partner and taxpayer provides more than 50 percent of their support and the nonworking partner earns less than $3,650—the dependent exemption. That figure doesn't just have to be wage income; it includes interest, dividends, capital gains; none of that can exceed $3,650.
→ Could a same sex couple form an LLC, or incorporate legally, and then file corporate taxes? Treat your relationship as a business?
That's a very complex question, and depends on a lot. You can certainly form a corporation and put your jointly held assets in there, but some other complexities that could be negative. I wouldn't be able to answer that without knowing a lot of other information.
→ What if one partner makes more than the other, but it all goes into the same pot? Do you have to worry about the $13,000 gift tax limit?
There's a temporary tax law in place that allows a lifetime exemption of $5 million through the end of 2013. That's a new law that came into play January 1, 2011. That's an opportunity I see for same sex couples to gift half an apartment that one owned before they got together, half a brokerage account, etc., to make things a little more level in the relationship.
→ It's too late to change aspects of co-ownership or financial responsibilities for their 2010 return, but what can people do in the coming year to make it easier to file their 2011 taxes?
They should combine their assets legally, make sure they're both on the deed of their home and liable for the mortgage, and should have joint bank accounts. Likewise, if possible in the state they're in, if they have children, they should make sure to both be legal parents, whether they're adopted or biological.
However and wherever you file, tax day is April 18th this year. Same sex couples with questions can turn to specialists like Lambda Legal, Salandra's Numerical LLC, and the planning firm Christopher Street Financial.
Posted by Michael at 8:58 AM