Representative Susan Davis co-hosted a Marriage Equality Town Hall Tuesday night at The Center in Hillcrest. The event was designed to help members of the LGBT community understand and navigate the changes in federal and state laws in a world without Proposition 8 or the Defense of Marriage Act (DOMA).
Proposition 8, which made same sex marriage illegal in California, and section three of DOMA, which made it illegal on a federal level, were both struck down in June by the United States Supreme Court. The end of DOMA affected over 1,000 federal laws and benefits.
Davis started the evening by thanking the audience for their active role as citizens of San Diego.
“The LGBT community has been at the heart of the community, and the heart of my support,” said Davis.
Davis had a victorious tone when discussing the struggle for LGBT equality; quoting House Minority Leader Nancy Pelosi, Davis said, “Progress is when the inconceivable becomes the inevitable.”
However, reporting to the audience that the Department of Veterans Affairs announced that it will not award benefits to same sex couples yet, Davis emphasized the need to keep fighting.
“The end of DOMA is a step toward equality, but we cannot rest on our laurels,” said Davis.
Next to speak was City Council President Todd Gloria, who joked with the audience that he was happy the government was no longer his biggest impediment to getting married.
“Now it is my personality and my looks,” said Gloria, who will be Interim Mayor as of Aug. 30 at 5 p.m. when Bob Filner resigns from office. This will make San Diego the largest city in the country with an openly gay mayor.
Gloria then got serious and spoke of the importance of empowering the community through information.
“It is not enough to rally and to march,” said Gloria. “We have to take those rights and exercise them. We have to show our neighbors who are not LGBT what it’s like to be fully married and fully equal under the law.”
Moderated by Kevin Keenan, executive director of the San Diego and Imperial County chapter of the American Civil Liberties Union, the panel consisted of three experts in different aspects of the law.
Eric Issacson, of Robbins Geller Rudman & Dowd LLP, spoke to the constitutional aspects of the law changes.
Issacson explained that the decisions in the Prop 8 and DOMA cases were based in the 5th Amendment, passed in 1791, and the 14th Amendment, passed in 1868, which guarantee due process in the states and equal protection under the law.
“Sometimes it takes a while to figure out what these things mean,” Issacson joked.
“We have evolving definitions of equality,” Issacson said. “We recognize the legal rights of more groups than we did in 1791.”
Ginger Jacobs, of Jacobs & Schlesinger LLP, spoke to the changes brought about in immigration law.
“All language in the Immigration and Nationality Act is gender neutral,” Jacobs explained. “So there is no regulatory dead end period before this goes live like there is with other agencies. All the changes went into effect immediately. So whenever you see any reference to any immigration benefit referencing a spouse or marriage, it automatically includes same sex couples….A marriage is a marriage is a marriage.”
The United States Customs and Immigration Services (USCIS) recognizes the validity of a marriage based on the law in the jurisdiction where the ceremony is celebrated. Therefore, marriages performed in California and other states and countries where marriage equality legal are considered legitimate when immigrants are petitioning for a marriage based adjustment of status or for protection from domestic violence under the Violence Against Women Act.
Jacobs went on to explain that although most aspects of these changes are simple, proving same sex couples are in legitimate relationships could be more complicated.
“I think USCIS is going to have to be more flexible view of what’s normal when it comes to the types of proof they expect couples to provide,” said Jacobs. “You know, maybe one of the partner isn’t out at work or maybe they’re not out socially, so they might not have the typical documents that immigration expects to see from a married couple. So we are having to think creatively and work individually with couples…not every LGBT couple has the same checklist of documents that the normal straight couple in middle class Midwest America would have.”
Larry Conway, founder of the Conway Law Group, spoke to the changes in the tax code and Social Security that would affect same sex couples.
“The biggest single benefit in the tax world is the marital deduction for the gift and estate taxes,” said Conway, explaining that before DOMA was struck down, there was a tax liability to same sex couples when a partner died.
Conway explained that many complications in the tax code and federal benefits that have not been worked out yet in regards to same sex couples. For example, is the marriage defined by where the couple was married or where the couple lives? It depends on which agency the couple is dealing with. Social Security is based on domicile; the IRS looks at place of celebration.
Before DOMA and Prop 8 were struck down, same sex couples who where registered domestic partners or got married in 2008 (after same sex marriage was legalized in California, but before Prop 8) had to file joint returns for their California taxes, but split their income in half and file separately for the IRS. Conway described this as a nightmare complication for couples and tax preparers.
“As a lawyer, I’m supposed to tell you not to rush into marriage, but as a tax preparer, please please get married!” Conway joked with the audience.
Conway then went on to explain other changes in the law that benefit same sex couples, such as the ability to own community property, get survivor and spousal benefits from Social Security, and the ability to deduct alimony in the case of divorce.
There are changes that will cost couples more money. Conway explained that because filing taxes jointly will likely bump couples up a tax bracket from when they had to file separately, they will likely pay more money to the federal government. He also said that Medicaid will require the depletion of both spouses’ wealth, since they will no longer be able to declare individual income.
In the grand scheme of things, complicated as it may be, Conway said the end of DOMA is a big victory on the federal level, but there is still a fight to be had in the states.
“I used to say that maybe in my lifetime DOMA will fall,” said Conway. “I’ve lived long enough.”
After Conway finished the event was turned over to a question and answer session with the audience. Immigration and tax questions ruled the evening.
Brain Kelly, who was at the event with his partner of 34 years, expressed satisfaction with the information presented to the LGBT community.
“From a tax and community property standpoint, this event was very helpful,” he said.
Along with Representative Davis and Councilman Gloria, California Assembly Majority Leader Toni Atkins, Supervisor Dave Roberts, The San Diego LGBT Community Center, San Diego LGBT Pride, ACLU of San Diego and Imperial Counties, the American Constitution Society and the Greater San Diego Business Association also sponsored the town hall.