Death and taxes

In Go Forth and Multiply I looked at the reasons why marriage laws exist. I discovered that the personal qualities assessed by authorities to determine whether a couple is qualified to be married do little to ensure the integrity of the nuclear family unit, despite proponents of traditional marriage claiming that this is the purpose of these laws. The real point seems to be to ensure that the individuals entering into the marriage are actually capable of making the decision to marry and that no one is being coerced or taken advantage of through the union.

There is another important qualification that I failed to mention – that neither of the individuals is married to anyone else. This is actually a mandate from the federal government, rather than the state. From what I gather, this is the only marriage law regulated at the federal level and it originates in the Morrill Anti-Bigamy Act in 1862. This made it a criminal offense to have more than one spouse at the same time. However, the logic behind this decision wasn’t based on a moral standing or designed to protect children; it was in response to the growing property portfolio and power of the Church of Jesus Christ of Latter Day Saints as a result of pluralist marriages (the law also placed a financial limit on church and non-profit ownership).

So...is the government’s interest in marriage actually more about regulating power and money than it is about imposing traditional moral objectives?

Let’s take a look at exactly what same-sex couples are actually being excluded from by examining the aspects of civil marriage.

Civil marriage is a single legal contract that instantaneously confers a number of benefits, rights and privileges between spouses. After DOMA passed, The United States Government Accountability Office identified 1,049 federal benefits, rights and privileges that are contingent on marital status. By 2004 this number had increased to 1,138. This is further compounded at the state level where, for example, Illinois has a further 648 benefits, rights and privileges that are contingent on marital status.

Feel free to read through them all in detail, especially if you are having trouble sleeping. Alternatively, you can trust me in saying that they pretty much all whittle down to death and taxes by:

·         defining how the couple is treated with regards to employment benefits and taxation (including 179 provisions at the federal level alone) while they are married;

·         establishing rights and responsibilities for dissolving the marriage, including obligations for child and spousal support; and

·         defaulting the surviving spouse as next of kin upon being widowed, which means they are entitled to receive financial benefits (e.g. pensions), transfer of property, etc.

Some of the federal laws defer to the state definition of marriage, so if the state government legally recognises same-sex marriage then the couple will receive equal legal rights and protection. However, it is important to recognise that only 5 states and the District of Columbia are currently marriage-equal. Other states that recognise ‘domestic partnerships’ or ‘civil unions’ present a complex legal landscape that still significantly limits rights and protections for same-sex couples.

Some of the provisions can be accessed through other routes. For example, most provisions relating to criminal issues (e.g. domestic violence and sexual assault) include the terminology ‘spouse or intimate partner’, recognising the reality that alternative forms of family exist. Provisions relating to employment can be supplement where employers implement their own policies to extend benefits to same-sex couples. Many private companies choose to do this even though they are not legally obligated because they recognise and value staff diversity.

In spite of all that, there are still some incredibly disparaging issues. I take particular offence to these:

·         Federal health and welfare programmes – these are primarily designed to assist disadvantaged individuals and families. Marital status is normally significant in determining whether a family qualifies for support and what level of support they receive. This excludes disadvantaged same-sex couples from receiving adequate levels of support and all same-sex couples from receiving benefits in the event of their partners’ death.

·         Child and spousal support – these laws exist to ensure children receive adequate support in the event of divorce by obliging absent parents to provide appropriate funds to the spouse with whom the child lives. A partner left to raise children after a same-sex relationship has broken up has no legal recourse to seek child support. Equally, a parent can be left without legal recourse to gain access to a child.

Obama extended federal benefits to same-sex couples last year and, with the repeal of DADT, this will likely be extend to include military personnel and veterans. However, immigration remains exclusive as a direct result of the definition of marriage in DOMA.

The reason I can’t come home with my partner comes down to how marriage is defined...by DOMA.

If you asked 100 married couples to define marriage, I guarantee you will get 200 different answers. Ask them again in 10 years and you’ll get another 200 answers, all different from the first. What makes a marriage is unique to the individuals in it; how they conduct their relationship depends on their needs and circumstances which are constantly changing.

Marriage laws and the legal provisions extended to married couples have nothing to do with how marriage is defined to individuals and everything to do with legally defining the couple as a financially interdependent unit. The evidence required to prove the validity of a marriage for immigration purposes underlines this, by requiring couples to submit documentation showing joint ownership or property and/or documentation showing the co-mingling of financial resources.

Watch this.

I absolutely love the point Cynthia Nixon makes here, so I’m going to say it again:

Marriage equality will not re-define marriage any more than allowing women the right to vote in 1920 re-defined ‘voting’ or integrating diners in the 1960s re-defined ‘eating out.’ It will simply mean everyone has a right to sit at the same table.

The more I watch the debates on same-sex marriage and speak with people about this issue, the more I realise how little most Americans know about how and why the government regulates marriage. This realisation is what compelled me to write this blog in the first place and the comments I have received here and through private communications have confirmed this message needs to get out...

Dear Senator Durbin,

Now, let’s face it. I’m not a professional political activist. In fact I’d say I have around about a seventh-grade understanding of American government and maybe (at a push) a second-grade understanding of American history. If someone asked me how a bill becomes a law, I would tell them to search for Schoolhouse Rocks on Youtube. It’s safe to say that I have never even considered writing to a politician before.

I was really motivated to do something when I started getting these appeals from Immigration Equality on Facebook to support the DREAM Act. In short, it’s a piece of legislation that would provide the children of illegal immigrants a path to citizenship, provided they prove they can positively contribute to society by completing either two years of active military service or two years of college. The logic behind the bill is that these children are not at fault for their parents’ decision to bring them to the USA and, having lived their entire lives creating a home in the USA, it is unfair to send them ‘back’. Senator Dick Durbin, a representative from my homestate of Illinois, is one of the driving forces behind this bill.

First, let me say that, in principle, I welcome the progressiveness of this DREAM Act. I support anything that leads to a diverse and educated society. I agree that these children had no control over what brought them into the country and that it would be cruel to remove them to a context where they do not belong.

At the same time, I resent what the DREAM Act represents. I can’t help but think “How dare this bill come before legislation that would provide equal recognition for me, a legal American citizen?”  It didn’t feel right that politicians were lobbying to extend the civil rights associated with American citizenship to an entirely new genre of people, but were content to ignore the LGBT families who are excluded from the system in spite of our citizenship. I got angry and motivated.

With my sites set on Dick Durbin, I decided to do a bit of background research to understand how best to approach a letter (thanks Wikipedia!). In short:

Richard “Dick” Durbin is a Democrat Senator representing Illinois. He’s a popular lifelong politician, elected to the House of Representatives in 1982 and moving into the Senate in 1996. He became the Democratic Whip (Assistant Leader) in 2004 and serves as the chairman for the Judiciary Subcommittee on Human Rights and the Law and the Appropriations Subcommittee on Financial Services and General Government.

Brilliant! He’s high up the political totem pole, he’s chairman of the committee that currently holds the Uniting American Families Act (UAFA), he’s active in the movement to fix America’s broken immigration system and he’s not completely opposed to LGBT issues.

I sat down and wrote him a letter. It started with a paragraph showing my support for the DREAM Act and asked him to extend that support to UAFA and to use his influence to raise visibility for this important issue. I poured out, in no less than 1,000 words, just how important immigration equality was to me and my family and emphasised how the current legislation actually doubly discriminates against us. I submitted it to his website and, because it says priority is given to Illinois residents, used my mother’s postal address.

You can imagine my surprise and initial delight when I received a response in less than 24 hours.

Unfortunately it was a standard form response telling me all about the DREAM Act and thanking me for my support. The only paragraph that remotely addressed what I had asked was purely coincidence:

“There are thousands of young people across our country who believe in the promise of America. What they have to offer makes us a stronger nation. I will continue to work for the passage of immigration reforms, including the DREAM Act, that are tough and enforceable but also fair and consistent with our nation's values.”

I might be naive about a lot of things, but I knew Senator Durbin wouldn’t actually read my letter and that the response would come from a staffer. But I also believe that staffer has a responsibility to at least read beyond the first paragraph of a lengthy, heartfelt correspondence. It would be an understatement to say I was infuriated to receive a reply that not only ignored 90% of what I had written, but thanked me for supporting a bill that sort of feels like it’s slapping me in the face.

But there was a ray of sunshine way down at the end:

“Thank you again for your message. Please feel free to keep in touch.”

So, I re-submitted my original letter to Senator Durbin on the 8^th December 2010 – this time including an opening paragraph that read something like this:

Dear Senator Durbin,

I recently wrote you an incredibly heartfelt and personal letter detailing my ongoing struggle as part of a bi-national same-sex couple. Your reply was wholly irrelevant to the content of my letter and the points I asked you to address. It is clear that whoever read my letter never made it past the first paragraph. I am re-submitting my letter below in the hopes that whoever receives it this time has the respect to at least make it to the end.

I got notification that the letter had been received and am still awaiting a reply.

We the People...

I went home for Thanksgiving this year for the first time since I left the USA. My Mom and Grandma decorated the whole house for Christmas in anticipation of my arrival and baked about 6 dozen Christmas cookies. My brother and his wife put everything else in their lives aside to spend all of their spare time with me and together we had an amazing week as a family just doing normal things like going to the grocery store (every day, for some reason), playing games and watching TV. I am finally in a place to really appreciate and be comforted by being in my Mom’s home.

My partner didn’t come with me this time and her absence didn’t go unnoticed. We celebrated Christmas on Thanksgiving Day, because we haven’t had a Christmas together since 2004. I passed along presents from C and her family and received presents for her from everyone else. My Grandma, a woman of many talents, even made clutch purses for C’s mother, sisters-in-law and niece. Funnily enough, Grandma didn’t think C was a clutch-purse kind of gal, but she did get her a nice plaid shirt from American Eagle. My brother and sister-in-law got us matching fleeces and socks. Ironically, I don’t think they know how incredibly lesbian that is, which made it even more endearing.

On the day I returned to the UK, my Grandma told me I must have a screw loose – because why else would I want to live in a cold, rainy country? She told me if I moved back to the USA she would buy me a house and a car, and she wasn’t joking. She misses me desperately – they all do. The short bursts of time we spend together are vital emotional recharges that get us by, but it never seems like enough time. We always feel like we’re saying goodbye.

I’ve never actually spoken to my Grandma about the nature of my relationship with my partner, but I know she understands. She stopped warning me to “Stay Away from Boys” many years ago. Just before I got on the bus to O’Hare, Grandma gave me a big cuddle and said to tell C she was counting down the sleeps until our visit next March, and that we should take care of each other between now and then. While I talk to my Grandma almost every weekend, and we occasionally Skype, moments like that can only ever happen in person.

It’s only recently that I’ve tried to explain to friends and family, and now complete strangers, exactly what it feels like to not be able to go ‘home’. I struggle with finding the words to accurately reflect the layers of emotions around the subject, but I think one of the main reasons it is so hard to get the message across is because most of the people I talk to do not fundamentally understand the significance of the barriers in place. In fact, it’s taken me a long time to really understand these, mostly because the legislative system in the USA is messy and complex.

Please bear with me while I summarise it here. I know this is the boring bit, but it is incredibly important to understand the basic legal context. I’ve kept this as short and simple as possible.

In the US, some issues are regulated at a federal level and some are delegated down to state level.

The basis for the federal government, including how it can create and implement laws, is defined by the US Constitution. In general, the federal government is concerned with issues that transcend state boundaries. For our purposes here, this includes defining federal-level spousal rights, responsibilities and benefits as well as immigration laws.

All 50 states are autonomously governed, which means each has its own constitution and can make their own laws, including those relating to state-level spousal rights, responsibilities and benefits.

In 1996, Bill Clinton signed the Defense of Marriage Act (DOMA) into law. Section 3 of DOMA defines ‘marriage’ as a legal union between one man and one woman and ‘spouse’ as only a person of the opposite sex. This definition applies to any ruling, regulation or interpretation of federal law. So, when immigration laws permit American citizens or permanent residents to sponsor their spouse to come and live in the US, ‘spouse’ is as defined by DOMA.

DOMA cannot prohibit states from legalising same-sex unions (that would require an amendment to the US Constitution), but it does ‘protect’ states from being ‘forced’ to recognise unions legalised by other states. The issue of same-sex unions is fiercely controversial in the US. At the time of writing, California, Colorado, Connecticut,  Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New York, Oregon, Rhode Island, Vermont, Wisconsin, Washington and the District of Colombia have laws in place that extend spousal rights to same-sex couples in some form.

Regardless of what happens at the state-level, though, DOMA prevents American citizens and permanent residents from sponsoring same-sex partners to come and live in the US.

DOMA was fast-tracked through a Republican-controlled Congress under a Democrat president – not dissimilar from the situation we’re now in following the mid-term elections in November. I voted absentee in that election and made sure to carefully select candidates who reflected my own priorities and values. Unfortunately, not all of my preferred candidates won. At the time I didn’t think much of what the consequences of that actually meant.

So, after coming home from Thanksgiving, I did a bit of research into the people representing me in Congress to see if I could appeal to any of them to advocate for immigration equality for same-sex couples. Here is what I found out:

Representative Tim Johnson (R-Illinois) voted in favour of a Constitutional amendment to prevent recognition of same-sex unions, he voted against laws to protect gays from being discriminated against in employment and he has consistently voted against repealing Don’t Ask Don’t Tell. I don’t think I can really consider him an ally.

There is speculation around newly-elected Senator Mark Kirk’s (R-Illinois) sexuality. He’s made some rather insensitive comments in the past that make me think that, whether he is or isn’t, this speculation is not a good thing. Let’s just say he doesn’t want to fuel the fire by advocating for LGBT issues, so no help there at the moment either.

Senator Dick Durbin (D-Illinois) has a more moderate voting record for LGBT issues. He voted for DOMA, but against amending the Constitution. He’s also a sponsor of the DREAM act, which proposes a route to citizenship for the children of illegal immigrants. I figured if anyone could understand my situation, he was probably my man. So, I wrote him a heartfelt letter...