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Archive for Sunday, February 22, 2004

Legal uncertainty accompanies gays down the aisle

February 22, 2004

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— Many of the more than 3,000 same-sex couples who obtained marriage licenses from the city said getting married was among the most joyous events in their lives. But because of legal uncertainty and political controversy, the certificates don't appear to be worth much more than sentimental value at this point.

Stacey Zartler, a San Francisco lawyer married last week at City Hall, said her ceremony was all about love, not financial or other benefits. It was a moving experience when she and Alicia Sinclair were pronounced "spouses for life," she said.

If their vows end up being nullified, "There will be a psychological toll," Zartler said. "I don't know if I can handle the disappointment."

The city began issuing marriage licenses on Feb. 12, and is now fighting legal challenges to its policy.

Mayor Gavin Newsom says he has to allow gays to marry to avoid violating the equal protection clause of the California Constitution.

Opponents say that's irrelevant and that municipal officials can't ignore state laws, and California officials say they can't officially record the city's marriage licenses. State Atty. Gen. Bill Lockyer said "state law prohibits the recognition of same-sex marriages."

Valid marriages are key to a wide variety of benefits affecting issues that include taxes, inheritance, insurance and retirement.

But until the legal fog lifts, businesses being contacted by gays and lesbians seeking new benefits probably won't acknowledge their marriages. Corporate counsels, employment law consultants and human resource departments already are devoting time and energy trying to figure out where they stand.

Testing the water

One of the first to attempt to make such a claim was Joseph Wiedman, a law student from suburban Emeryville who married his partner of nine years, Eric Chamberlain.

"It's hard to explain the feeling of waking up on Saturday and looking over at the person lying next to you and realizing you are now married to that person," Wiedman said. "It's simply a wonderful feeling."

Wiedman doesn't need to be married to get medical insurance under Chamberlain's health insurance plan. Chamberlain is a computer technician at the University of California, Berkeley, and is among the 175,000 California employees whose domestic partners can get health benefits.

Other coverage, however, is another matter.

The couple asked State Farm for the marriage-discount rate on their car insurance, and the company mailed them an acknowledgment form showing both their names.

But now State Farm says it won't give them the lower rate after all.

"At this point, as far as I know, State Farm has not recognized same-sex marriages," State Farm spokeswoman Janet Ruiz said. Other discounts are available to homosexual couples, she said.

To Chamberlain, that sounds like "we're on the cusp of being treated again as second-class citizens."

San Francisco unique

The additional cost of covering married gay couples could be negligible for the city, because San Francisco already offers domestic partner benefits so generous that even sex change operations are subsidized for the partners of city employees.

Other cities and states that don't cover domestic partners may be more exposed -- but only if they agree to consider the gay marriages valid and no state appears ready to do that. Thirty-eight states and the federal government officially refuse to recognize the validity of same-sex marriages.

"At this moment, these marriage licenses, they don't have force," said Lawrence Levine of the University of the Pacific McGeorge School of Law, an expert on sexual orientation and the law. "We haven't even decided whether they are valid in the state of California."

The comments by the state attorney general give employers "a legitimate reason for taking the position that the marriage is not valid," said San Francisco employment lawyer Jeffrey Tanenbaum.

Still, Tanenbaum said it might be prudent for California businesses to grant gay spousal medical benefits, in order to avoid any lawsuits that might come if the marriages are ultimately upheld.

The insurance industry will follow the laws in each state, said Rey Becker, a vice president of the Property Casualty Insurers Association, a coalition representing 1,000 insurance companies nationwide.

"If the law defines what is a spouse, and the coverage for the policy is for the insured and their spouse, they are covered," he said. "If the courts were to rule one way or the other, it would bring more clarity and it will allow individual insurers to have more confidence making their own business decisions."

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