The LGBT (short for lesbian, gay, bisexual and transgendered) community’s struggle for equality may well be this country’s new civil rights frontier. The last 12 months have witnessed both historic successes and disturbing defeats. The mixed results are especially troubling since the country has enthusiastically embraced change in other areas and recently ushered in a new era for political and social reform. Yet, the LGBT community has still not attained the rights and privileges that the heterosexual community has historically enjoyed. While victories are celebrated, the specter of Proposition 8 in California, to name just one battle, serves to alert the community that the final result is far from settled.
On a positive note, in 2008, the New York law office of Vishnick McGovern Milizio LLP successfully filed and obtained what may be the first signed judgment of divorce between two gay men in New York. The outcome, and ultimately the judgment in this case, are in keeping with the recent trend and direction courts are taking in this field. In 2006, despite a New York State Court of Appeals ruling (Hernandez v. Robles) that the State of New York did not violate its constitution when it refused to allow same-sex marriage within the State, there appeared to remain the distinct possibility that an out-of-state marriage might be granted recognition. It is interesting to note that it has taken nearly 20 years since the Braschi Court held that a homosexual couple was a family for the purposes of succession rights to a rent controlled apartment, for there to be any further important decisions in this area.
Early in 2008, a Monroe County, NY court ruled that an employer’s refusal to extend healthcare benefits to an employee’s same sex spouse made that employer guilty of discrimination in the workplace based on sexual orientation. Finally, a New York County matrimonial judge held that a same sex marriage that was legally entered into in Canada is legally binding in New York. Therefore, a divorce of that marriage would seem to require a conventional divorce proceeding.
Although New York has not yet granted gay or lesbian marriages within the State, the LGBT community now appears to have certain rights protected under the Domestic Relations Law. In May 2008, New York Governor David Paterson ordered state agencies to recognize legal marriages between same sex couples conducted out of state, as well as out of the country, as equal to New York marriage. That same month, the California State Supreme Court issued a decision finding that same sex couples should be given access to civil marriage. While in September 2008, the Queens County Surrogate’s Court ruled that the parents of a deceased same-sex spouse had to be included in a proceeding to probate the decedent’s will, despite the fact that New York law provides that only spouses need be included in such a proceeding, by February 2009, the New York County Surrogate’s Court ruled the exact opposite, holding that a man married to the decedent in a valid same-sex marriage (in Canada) is the decedent’s surviving spouse and that no other persons were entitled to participate in the probate proceedings.
Two-thousand and eight, however, was not all about victory and achievements. On Election Day, while America celebrated an historic new chief executive that reflected hard won civil rights victories, same sex marriage bans were passed in Arizona (Proposition 102) and Florida (Amendment 2). Arkansas banned all unmarried couples, including gay and lesbian couples, from fostering or adopting children. And finally, Proposition 8 – the initiative to eliminate the newly won right to marry for same sex couples in California, was voted into law.
The first few months of 2009 have seen positive change. Both Iowa and Vermont have legalized same-sex marriage. New York’s Governor Paterson has introduced legislation to allow same-sex marriage in New York. Whether this bill is approved by the state legislature, or is even brought to a vote, remains to be seen. The New York State Department of Health recently determined that same-sex married couples are entitled to have both parties’ names listed as parents on a child’s birth certificate. Formally, a same sex parent was required to obtain parental rights through a formal adoption process.
This fight for equality has a significant impact on lives and livelihoods. Income tax, and other advantages heterosexual couples enjoy, remain outside the grasp of the LGBT community. Only opposite-sex spouses, for instance, can collect Social Security benefits based on each other’s earnings. Federal law allows opposite-sex spouses to make unlimited gifts to each other without incurring gift tax, while unmarried couples and same-sex spouses are limited to gifts of no more than $13,000 per year to each other without paying gift taxes. There is also no estate tax for any assets passing to a surviving opposite-sex spouse.
In New York, an opposite-sex spouse automatically inherits at least one-third of the other’s assets regardless of what a will may provide, and only opposite-sex married couples can make unlimited transfers to each other at death without tax consequences. Unlike a surviving opposite-sex spouse, a same-sex partner is not entitled to any portion of the deceased partner’s retirement account unless specifically designated as the beneficiary. In addition, alimony is tax deductible for heterosexual couples, but not for same sex couples. Only opposite-sex married couples can file joint tax returns and there are no survivor Social Security benefits or wrongful death proceeds for LGBT partners. The reason for all of the above: neither the IRS nor the New York State Department of Taxation recognizes same-sex marriages.
While it is true that these rights and privileges carry certain obligations and legal precedents that may not always be advantageous, the community must remain vigilant and forge ahead to attain equality while maintaining and protecting previously gained ground. It is our responsibility to create awareness for change. This is not a time for complacency, but rather comradery and community spirit. It is not a time to reflect on achievement, but what continues to be denied, a global warning that victory and equality is not a certainty.
Joseph Trotti is a partner in the law firm of Vishnick McGovern Milizio LLP. He practices in the area of traditional family law, as well as in the firm’s LGBT practice. Joseph G. Milizio is also a partner in Vishnick McGovern Milizio. He practices in the areas of business representation and real estate, as well as in all aspects of the firm’s LGBT practice. The LGBT practice area includes marriage and partnership matters, estate and trust planning and administration, adoptions, discrimination and all other matters affecting LGBT individuals. Both Joe T. and Joe M. can be reached at 516-437-4385.
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