Same-sex couples still face discrimination, despite DOMA downfall
Landmark supreme court decision has not solved problems faced by couples in states where gay marriage is not legal
After a decade and a half posing as the friend, room-mate and, at a military hospital after the birth of their first child, the sister of her long-term partner, Ashley Broadway is finally being recognised by the US government and the US army as her legal spouse.
For Broadway, a teacher, and Lt Col Heather Mack, a logistics officer, the overturning of the Defense of Marriage Act (Doma) by the supreme court last week was a significant milestone in their lengthy personal battle for equality. They and their two children are now eligible for the same benefits the Department of Defense affords to opposite-sex couples, including medical insurance, family separation allowance and access to military facilities. Mack’s army records will be amended from single to married.
That status will follow them throughout Mack’s military career, regardless of where she is posted, even if it is to a state or country where same-sex marriage is not legal. But as soon as the couple, who were married in Washington DC, step off Fort Bragg base, in North Carolina, where Mack is stationed, they will be back to being considered legal strangers again.
Broadway, 39, a teacher who successfully battled for membership of an officers’ spouse club after being refused earlier this year, said of the Doma repeal: “It’s a huge, huge moment because finally in the eyes of the Federal government and the military, I would be considered Heather’s spouse. God forbid if something was to happen to her when she is deployed, but if it did, I wouldn’t have to deal with all of the legal issues not being recognised as a spouse.
“But the reality is, we live in North Carolina. And North Carolina treats me like her room-mate.”
North Carolina is one of 37 states without marriage equality, so even when the federal government recognises same-sex couples as married, the state does not. North Carolina is also among 31 states that go further, with amendments to the state constitution that define marriage as only between a man and a woman.
It is ironic that the army, which forced Broadway and Mack to live in the shadows for years, during the policy of Don’t Ask, Don’t Tell – a rule repealed in October 2011 that banned openly gay members from serving – now gives the couple a financial and legal safety net, yet the outside world leaves it with gaping holes.
That their status and rights depend on geography is just one of the anomalies thrown up by the Supreme Court ruling. It struck down as unconstitutional Section 3 of Doma, allowing federal recognition of legal marriage, but left intact Section 2, which allows states to deny marriages that are legal in other states. It has created a confusing situation where, according to Anthony Infanti, a law professor at the University of Pittsburgh law school who is a specialist in tax law for gay people, legally married same-sex couples living in a state with marriage equality can be treated as single if they move to, or even if they travel through, states that do not recognise their marriages. Infanti says:
If you have a couple who live and married in Massachusetts, but then moved to Pennsylvania, where I live, they are married for a while and then it stops. If they then moved to Iowa, they would be magically married again.
Living or travelling though states without marriage equality, said Broadway, can be fraught with hidden dangers. Experience has taught her that despite an order from President Obama prohibiting hospitals that accept Medicare and Medicaid funding to deny visitation or requests or power of attorney to same-sex couples, not all hospital staff are up to speed. The couple always have to hand a file of legal documents, including wills, powers of attorney and medical information they hope will ensure they are treated the same as any other married couple. Broadway had them with her when Mack and their newborn son, Carson, had to be rushed to intensive car in separate hospitals.
“I had to make decisions for her and him,” said Broadway. “They probably would not have let me see the baby or her.”
When the Department of Defense begin issuing benefits to same-sex couples, Broadway will be $500 a month better off, as she can go on Mack’s health insurance. Mack’s biological children, Carson and Carley, are automatically awarded the same rights as the offspring of opposite-sex marriages, as dependants. They can attend programmes at Fort Bragg and military schools.
But North Carolina state law dictates that Broadway, who gave up her job to look after the children full-time, has no legal say in their care. It does not recognise second-parent adoptions, so she is unable to legally adopt them. She is afraid that should something happen to Mack, she could lost custody of their children.
“It weighs on my mind every single day,” said Broadway, who works with the American Military Partner Association.
We see activist judges who are extremely right-wing who I fear would come in and try to take the kids. It is not just our family. I hear it all over the country.
A ‘fragile and uncertain’ life
Tim Young, 45, who with his husband Mark Maxwell, 49, adopted four boys in North Carolina, said the overturning of Doma was “wonderful news” but added: “It has done nothing for the Maxwell family.”
Young, who works in real estate, married Maxwell, his partner of 23 years, in Washington DC in January. He said they are fortunate to live in a state that offers a good quality of life. But their life is “fragile and uncertain”, he said, because of the discrimination they face as a family and because if one of them dies, the adoption laws mean the boys will be left in legal limbo.
In his Doma ruling, Justice Kennedy focused on the impact on the children of same-sex couples. Doma, he wrote, “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Young said Kennedy’s words gave him a “glimmer of hope” that down the line, families of same-sex couples will also be treated equally. He is also hoping that the federal government “do the right thing” and ensure that same-sex couples across the country get access to the social security and tax benefits afforded to opposite-sex couples.
In the meantime, he said, he and Maxwell will carry on with the expensive legal overhaul they go through every few years, to try to ensure that the other and their boys will be cared for should something happen to one of them. “We always have to think outside the box,” said Young, who said they have to ensure a trust is set up for the boys and may consider such drastic measures as filing a lawsuit against each other, to allow joint custody.
But even then, you still don’t have parental rights that supply a layer of protection to a family to say that mum, grandma, or whoever else doesn’t agree with your lifestyle could step in and say they want custody if something happens.
‘The plaintiffs are entitled to their day in court’
Among a slew of legal challenges to states that ban same-sex marriage is one from April DeBoer and Jayne Rowse, a Michigan couple who are fighting the state’s marriage amendment as well as the adoption code that denies rights and benefits to children of same-sex couples. On 1 July, the judge in the case officially denied the state’s motion to dismiss the case, citing US v Windsor, the Doma opinion, as new legal ground upon which the couple can pursue their case.
Judge Friedman said: “The plaintiffs are entitled to their day in court and they shall have it.” A court hearing is scheduled for 10 July.
While the Doma ruling leaves state power over marriage intact, marriage-equality advocates see the ruling as a powerful tool in the battle for their ultimate goal – equality across the US. Susan Somer, legal counsel for Lambda Legal, a civil-rights group for gay men and lesbians which has upcoming cases in Nevada, Illinois and New Jersey, challenging bans on same sex marriage, said that while she did not expect a rash of new legal cases, she hoped the Doma ruling would help those already under way.
“Doma puts the wind in our sails and also highlights the injustice of giving people half-measures of federal rights,” Somer said.
John Lewis, the legal director of Marriage Equality USA, said the anomalies arising from the Doma ruling could be boiled down to two sentences: “Discrimination is complicated. Equality is remarkably simple.”