• Legal Issues Facing Gay Men
– and their personal and community connotations
Because part of the issues for this Salon really require expertise, we will have a longer-than-usual introduction of thirty to forty-five minutes before moving on to our usual small group dialogues. Our speaker will be well-known attorney, Frederick Hertz, advisor to marrying and divorcing gay couples, and author of multiple books on married and unmarried gay and lesbian couples; see also < http://www.nolo.com/products/making-it-legal-lgm.html>
Prop 8 has been invalidated and the 3rd section of DOMA also has been ruled unconstitutional (hurrah!); in California same-sex couples are now free to marry and enjoy all of the rights AND duties of marriage under both state and federal law. This includes the tax exemptions given to married couples, the right to Social Security benefits for spouses and survivors of a marriage, and the ability to transfer assets -- both investment and retirement assets, either upon death or dissolution of the marriage. The legal complexities and difficulties that same-sex couples faced in the past have now been eliminated.
Thus, the question for same-sex couples is no longer one of access to marriage -- rather, it is the question of whether marriage and the accompanying legal rules are right for you and your partner. Now we CAN do it, but SHOULD we? The marital law system is based upon a notion of a couple as a single economic unit, sharing assets and debts and taking on long term financial responsibilities. In many respects it is a profoundly heteronormative system of rules, a kind of "marital" relationship that is very foreign to many couples in our community.
Couples must now decide whether they wish to marry, and if so, whether they wish to deviate from the standard marital rules by signing a pre- or post-marital agreement. Our speaker has said that, from his experience dealing with many same-sex couples, the customary marital rules developed from a heteronormative system are not the right fit for many of us -- yet dealing with coupling issues and developing our own standards can be very difficult.
Some key questions to be addressed by our speaker:
1. For each particular couple, what are the marital rules and benefits that are most relevant? For which sorts of couples is marriage a "good" option, and which couples should be cautious about getting married?
2. What aspects of the marital rules are unwelcome to either or both partners? How does community property work in California? Are couples legally required to share their incomes equally?
3. What can a married couple accomplish in a pre- or post-marital agreement?
4. Do the legal rules for marriage require monogamy and punish adultery or infidelity? Even it they don’t, do these issues enter into judge, jury or arbitrator decisions for a couple in divorce or other conflicts?
5. What are the legal rules for gay NOT-married couples around such issues as hospital visitation, wills, right to make decisions for a non-competent partner?
Some small group discussion questions:
1. What constitutes a couple in our own and our community’s perspectives? What are the economic relationship couples now follow, and how might getting married change these arrangements – AND their relationships?
2. Should a couple have a pre-nuptial agreement? What are the advantages and disadvantages? What does having such an arrangement say about their relationship
3. How do gay men and lesbians feel about community property, shared debt responsibilities, sharing their incomes? What perspectives are desirable for the individuals; for the gay community culture?
4. What are the obligations - legal, moral or other - of the higher income/higher asset partner towards his or her partner?
MAKING DECISIONS / HAVING DISCUSSIONS:
5. How can an unmarried gay couple most effectively discuss and decide upon such a momentous issue as marriage – or is it not “such a momentous issue”?
6. In thinking about getting married, how can we go about evaluating the likelihood that our relationship will last?
7. Would marriage mean -- for you -- reconceptualizing the very nature of "our relationship”? Does it involve changing how we view both each other and the relationship? – (E.g., that it’s not entirely about love or lust but more issues of committing to a “life partnership” in our time on this planet?)
8. How do we reconcile our desire for social acceptance and legal benefits with our reluctance to embrace the marital law system in its entirety?
9. What does being “a couple” mean to yourself, your partner, our community? Is it likely that marriage for same-sex couples will change marriage, or will it more dramatically change our relationships?