ANNAPOLIS – After 20 years and two children together, Silver Spring couple Ellen Kahn and Julie Drizin married in Washington in March, just days after the city began issuing marriage licenses to same-sex couples.
Under a February legal opinion by Attorney General Douglas Gansler, Kahn and Drizin’s union is recognized in Maryland like any other out-of-state marriage.
But after filing another year of taxes separately, they — along with other same-sex couples — are wondering what “recognition” will really work out to tangibly mean.
At its legal core, marriage is a contract designed to support families. It carries 1,138 federal rights and benefits, and more than 425 in Maryland alone. Spouses can inherit property tax-free, get employer health insurance for their families and make medical decisions if the worst happens. Marriage allows sick or elderly spouses to collect federal benefits connected to Social Security and Medicaid.
But for Maryland gay couples married outside the state, this social safety net is not guaranteed — mainly because the federal government doesn’t recognize same-sex marriages at all. Gay couples don’t qualify for federal spousal benefits near the end of life. They may pay more for family health insurance if it is even offered. And they still may need documents to prove their relationship in a time of emergency.
“For us, (getting married in Washington) was really about seeing this as a good thing, especially having kids together,” Kahn says. “But did we really think about what’s going to happen with our tax return? Not really.”
This frustrates many same-sex couples considering marrying across state lines, including Lisa Polyak, who lives with her partner, Gita Deane, and their children in Baltimore.
“The meaningful protections of a civil marriage come into play when people are most vulnerable — when they are dying, when they are sick and when they are unemployed,” Polyak says.
“Since we don’t know whether (Gansler’s opinion carries) all the protections that we’re hoping it does … the reality is that we can’t stop paying for our wills and powers of attorney and domestic-partner affidavits,” Polyak says.
“It’s the worst kind of second-class citizenry when you can’t trust a law to be a law, and you have to have money and access to get the same protections that other people get when they spend $35 on a marriage license,” she says.
At Gov. Martin O’Malley’s direction, state agencies will reevaluate their individual policies as more same-sex couples marry outside the state and attempt to claim spousal benefits.
But Susan Sommer, senior counsel with the national gay advocacy group Lambda Legal, says that so many state benefits are tied to federal laws that it’s still unclear how they will practically mesh.
Under the Defense of Marriage Act (DOMA), the federal government does not recognize any same-sex marriages, even those performed in the district or the five states where same-sex marriage is permitted. This disconnect puts same-sex spouses in a legal limbo.
“Tax is one funny area that is very much hinged to the federal approach,” says Jezzika Lee Perez, president of the D.C.-based firm Intelligent Tax Services. “And the federal approach is one that discriminates.”
For this reason, Maryland’s comptroller advised married same-sex couples like Kahn and Drizin to continue filing their state taxes as “single” until the office issues new guidelines.
“There are a lot of things that just aren’t very clear,” says Perez. “There’s the law that’s on the paper and there’s the law that’s actually implemented.”
“Being where we are, people move between Maryland, D.C. and Virginia all the time,” she says. “And things can change every year that could affect you in a legal sense.”
There have been some other recent moves in Maryland to extend benefits to same-sex couples. For example, in 2008, the General Assembly passed laws allowing domestic partners to make medical decisions for one another.
While such measures attempt to approximate some of the benefits that come with marriage, they fall short of the protections marriage automatically confers on opposite-sex married couples. And they come with a variety of confusing criteria.
For one, the definition of “domestic partnership” is muddy, says Lawrence Jacobs, a Maryland-based lawyer specializing in legal issues affecting same-sex couples. Maryland does not apply a consistent definition of domestic partnership across all state agencies. Couples must qualify according to the separate guidelines of whichever agency they are seeking recognition from, which vary widely. In some instances, says Jacobs, partners must present affidavits meeting up to 14 different criteria.
“These are things that a married couple would never be asked to prove,” says Jacobs. “It’s very difficult for the average couple to meet all of those tests, which is radically unfair.”
And when a couple travels outside of Maryland, Jacobs says, there is no guarantee that domestic-partnership status will hold in an emergency.
“That’s fine if you’re in Maryland,” Jacobs says. “But if you go shopping in Tyson’s Corner and get into a car accident, the fact that you’re domestic partners in Maryland doesn’t cross the river.”
“That’s the bizarre, ‘Twilight Zone’ part of this,” he says. “If you’re in an ambulance, who wants to be having the discussion about whether we qualify to be domestic partners, or whether the document will be useful in Virginia or Oklahoma? ? If someone’s in a coma, no one is going to be going back and signing domestic partner affidavits.”
Nationally, there have been several high-profile cases where couples’ binding legal documents have been ignored by hospital staff or county officials.
Washington state resident Janice Langbehn was kept from the bedside of her partner of 18 years, Lisa Pond, in the last hours of her life after Pond collapsed from a brain aneurysm while on vacation in Florida in 2007.
In 2008, Clay Greene and Harold Scull, partners for more than 20 years, were forcibly placed in separate California nursing homes after Scull became injured in a fall. The county then gained possession of the couple’s home and auctioned its contents.
There has been some recent federal change on this issue. President Obama has directed the Department of Health and Human Services to begin drafting new guidelines prohibiting hospitals receiving Medicare or Medicaid funding from restricting visitation for same-sex couples regardless of marital status.
According to Lambda Legal, Gansler’s opinion “should” extend all standards of spousal recognition to married same-sex couples in Maryland hospitals.
It should also allow same-sex spouses to qualify for spousal insurance coverage, shoring up divides presented by current domestic-partner policies.
Maryland state employees are eligible for domestic-partner health coverage, but that covers only about 177 to 300 of the state’s 15,600 same-sex households, according to data from the Department of Legislative Services and the U.S. Census Bureau. Some city and county governments also extend similar benefits.
Spousal coverage helps single-income couples in particular, covering their families when one spouse leaves work to care for children full time. According to the U.S. Census Bureau, nearly half of same-sex couples raising kids in Maryland have a single wage-earner and about a quarter are raising kids under 18.
Nationwide, private employers may choose to extend health benefits to the domestic partners of gay employees, but are not legally required to, according to the Urban Institute. And unlike with heterosexual couples, any family benefits offered to same-sex partners are counted as taxable income.
The average same-sex couple covering one partner through a domestic-partnership medical plan pays about $1,000 more per year than a heterosexual couple according to Gary Gates, a demographer with the Williams Institute, a research group at the UCLA School of Law.
Gansler’s opinion could also change the way same-sex couples can own their family homes. Right now, Maryland married couples are exempt from the state’s inheritance tax and from state and federal estate taxes when property is transferred between them because they can own property as one legal entity, or as “tenants by the entirety.”
“When they talk about the 1,001 benefits of marriage, that’s a biggie,” says Jacobs.
The General Assembly passed a limited exemption in 2008 allowing domestic partners who own a residence jointly to waive the state’s inheritance tax. But Jacobs says the exemption may not apply to couples who have a trust or live in a home owned by one partner.
While Gansler’s opinion opens many doors for same-sex couples planning their families and futures in Maryland, many significant federal marriage-related benefits — including spousal Social Security and Medicaid benefits — are still restricted to opposite-sex couples. This would remain so even if Maryland were to legalize same-sex marriage outright.
“The truth is, state recognition doesn’t remedy many of these areas,” Williams Institute demographer Gates says. “The big remedies are federal.”
Medicaid guidelines allow married, opposite-sex couples to divide assets in a way that makes a sick spouse eligible for nursing-home coverage while allowing the other to remain in the family home. DOMA precludes this option for same-sex couples.
Same-sex couples are also not allotted spousal Social Security benefits after a spouse dies, and private employers are not required to extend pensions to surviving same-sex spouses. When pensions are extended, higher withdrawal penalties may be levied. Surviving spouses lose around $5,700 yearly in benefits available to opposite-sex spouses, according to the Williams Institute.
These are the gaps that make Polyak less than enthusiastic about the benefits that an out-of-state marriage license would offer her and Deane.
“I’m worn out from all the special nooks and crannies that we have to climb into simply to get the same protections that every other citizen in Maryland has,” Polyak says. “How many documents do I have to read? How many lawyers do I have to consult to find out if I can get treated the way the person next door to me gets treated?”
Polyak says she and Deane would marry in Maryland if they were legally allowed to. About 7,800 other same-sex couples would as well, according to estimates by the Williams Institute based on U.S. Census data.
For couples like Kahn and Drizin who have already taken the plunge in neighboring Washington, only time will tell how the benefits of state recognition will play out.
“Like many folks, we were just eager to have added legal protections and participate in this historic moment — to be legally married,” says Kahn. “But we didn’t call an attorney or accountant to find out what it would really mean.”