Civil Unions Lack Widespread Recognition

January 2, 2007

by Robert Schwaneberg
STAR LEDGER
TRENTON—The Commonwealth of Massachusetts considers Stacey and Jessie Harris married. But every April, the Harrises get a reminder the legal recognition their state extends to same-sex couples like themselves goes only so far. Although they can file joint state tax returns, they must file their federal income taxes separately.

It makes me more conscious that the federal government doesn't recognize my marriage, said Jessie, who lived with Stacey at the Jersey Shore for several years before they returned to their native Massachusetts in 2005.

Thousands of same-sex couples in New Jersey will soon learn what the Harrises already know. Although a law signed Dec. 21 by Gov. Jon Corzine promises same-sex couples who form civil unions all of the same benefits, protections and responsibilities that flow from marriage, it comes with a giant asterisk.

It really means all of the state benefits of marriage. Like Massachusetts, New Jersey is powerless to grant same-sex couples the benefits that federal law bestows on married heterosexuals. And federal law does not recognize same-sex partnerships, regardless of whether they are labeled marriages or civil unions.

There are a plethora of federal rights that are significant that remain denied, said Elizabeth Cooper, a professor at Fordham Law School.

Thomas Prol, a Lyndhurst lawyer who co-chairs the New Jersey State Bar Association's committee on gay, lesbian, bisexual and transgender rights, said the U.S. General Accounting Office has tallied 1,138 sections of federal law in which benefits depend on whether a couple meets the federal definition of a marriage: one man and one woman. The most important affect federal taxation, immigration, bankruptcy, Social Security, veteran's benefits and federal workplace protections for pensions and family leave.

Stephen Hyland, a lawyer with offices in Princeton and Westmont, said same-sex couples who form civil unions will have significantly less rights in total than heterosexual married couples.

Even so, Cooper said New Jersey's civil union law — the third in the nation after Vermont's and Connecticut's — represents a major step forward for lesbian and gay couples in New Jersey.

David Buckel, an attorney with the gay rights organization Lambda Legal, said that for most same-sex couples, the state rights associated with marriage matter more than the federal benefits. He explained that is because state law addresses very basic, elemental protections that can really make a family secure.

They include the ability to visit a hospitalized partner, to stay in a shared home after one partner dies and to obtain health insurance for the whole family through one partner's coverage. They also include the ability to sign prenuptial agreements and, should the relationship end, to have a judge determine who gets custody of the children and whether either partner is entitled to collect alimony or child support.

In all of those areas and more, the law promises same-sex couples who form civil unions "equality" with married heterosexuals.

The same-sex couples who will be most hurt by the denial of federal protections are those in which one partner is a U.S. citizen and the other is not, Buckel said

Then it's really all about the federal government, because it's a question of whether they can stay together at all, Buckel said. Under federal immigration law, American citizens who marry foreigners can bring their spouses into the country, but only if they are of the opposite sex.

And the Internal Revenue Service treats couples in civil unions differently than married heterosexuals.

Just deciding which filing box to check will be a challenge. The choices on federal form 1040 are: single, married filing jointly, married filing separately, head of household or qualifying widow or widower.

John Traier, a certified public accountant in Clifton, said couples in civil unions will not be able to file joint federal income tax returns. Depending on whether they have children, they will have to file as single or head of household, he said.

And while filing joint state income tax returns should save them money, clearly there is more to be gained by filing a joint return on the federal side than on the state side, Traier said. He explained that is because federal tax rates are much higher and the federal tax code provides more deductions than New Jersey's gross income tax.

The reason couples in civil unions will not get all the benefits of their married heterosexual neighbors is a 1996 act of Congress that changed centuries of federal law.

Historically, the federal government looked to state law to determine whether a couple was married. If Massachusetts, for example, said they were, that was good enough for Uncle Sam.

That all changed when it looked like Hawaii might become the first state to recognize same-sex marriage and opponents launched a preemptive strike. Congress passed, and then-President Bill Clinton signed, the federal Defense of Marriage Act.

It said that for purposes of federal benefits, 'marriage' means only a legal union between one man and one woman as husband and wife. It also said no state is required to recognize a same-sex marriage performed by another state.

As a result, even if the New Jersey Legislature had allowed same-sex couples to marry, those marriages would not be recognized by the federal government and would not entitle those couples to federal benefits.

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