A Further Reason Why Separate is Unequal in Marriage
The federal Defense of Marriage Act (DOMA) still places substantial limits on gay and lesbian partnerships, even if they have a state-recognized marriage (offered, as of yet, only by Massachusetts), or other form of state-recognized union (such as a civil union or domestic partnership). The disparity in tax filing is often the most obvious, which forces gay and lesbian couples to file as unpartnered individuals on federal paperwork. LGBT families must remember, however, that any federal agency will refuse to recognize your partnership regardless of your standing in-state.
Jason Hair-Wynn, a Massachusetts 26-year-old gay HIV/AIDS educator, discovered this when he applied for to the U.S. Department of State for a passport. According to a letter he received, his passport could not be processed with his hyphenated name because DOMA barred recognition of his Massachusetts marriage. Hair-Wynn is left with only three options: provide documentation proving common and consistent use of the hyphenated name for a period longer than 5 years; use special forms to explain the inconsistencies between his identification information that uses the hyphenated name, and the passport, which would use his maiden name; or pay a $135 fee for a probate court to issue an order reflecting his name change. It is important to note that heterosexual couples need only provide a marriage certificate.
This story emphasizes the evils of federalism. A state, acting as an independent sovereign, should have absolute authority over matters of marriage. The Supreme Court's refusal to hear any case pertaining to the unconstitutionality of DOMA speaks clearly to the injustice of the system. Congress has blatantly overstepped its bounds. The facts that gay and lesbian couples are either barred entirely from certain benefits (e.g. jointly filed taxes), or must pay fees for the same rights and privileges heterosexual couples obtain for free (e.g. legal name change, power of attorney) underscore the fundamental inequity of DOMA and its violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Until DOMA is repealed or fails a constitutional challenge, or until legislation akin to a current bill which permits a state-issued same-sex marriage license for federal paperwork, gay and lesbian couples must remember that the rights that attach at marriage should not be assumed to exist in LGBT partnerships. To avoid any future complications (including a denied passport and also the terrible situation of being kept from a partner's hospital room), gay and lesbian couples should consult an attorney who specializes in the area of LGBT family law. It may take hundreds or thousands of dollars to complete all of the paperwork necessary, but you should consider the cost to be an insurance policy against unwanted surprises.
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