• First, the Obama administration stated it would not oppose challenges to US Service Members complaints that denial of military and veteran benefits constitutes discrimination. Previously, Service Members and veterans were told they could not receive benefits, even if legally married, due to the so-called Defense of Marriage Act (DOMA). Of course, as with the litigation concerning Proposition 8, Congress could decide to act as the opposing party. The underlying issue to note here is that it would only apply to married same-sex couples. If a couple is merely registered as a domestic partner or in a civil union, they would still not be entitled to the benefits. So, when asked why does “marriage” matter, we have one more compelling reason to add to the mix. Here is a link to the story.
• Also, a federal district judge ruled DOMA unconstitutional, declaring that it violated the U.S. Constitution’s guarantee of equality. The case involved a federal court employee who was denied spousal benefits under the Federal Employees Health Benefits Program (“FEHB”), a comprehensive program providing health insurance for federal civilian employees and their family members. In its opinion, the court applied a standard of review called “heightened scrutiny,” which means that the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.” This is the first federal court case in which the court expressly concluded that heightened scrutiny must be applied. Prior to this, “rational review” has been applied, which essentially means that if there is any rational basis for upholding the law, it will be upheld, regardless of the actual reasoning behind the enactment of the law. The case is Golinski v. Office of Personnel Management and the opinion can be found at this link.
• In New Jersey, the Superior Court Reinstated a Federal Equal Protection claim in a case seeking marriage equality on behalf of Garden State Equality and seven same-sex couples and their children harmed by the state’s unequal civil union system. Last June, Lambda Legal filed a lawsuit for marriage equality arguing that barring same-sex couples from marriage and relegating them to civil unions violates the constitutional rights of those couples and their children. In November, the Court ruled that Lambda Legal could proceed to court on a claim that civil union violates the state Equal Protection Clause. Today’s ruling will allow Lambda Legal to proceed with both a state and federal equal protection claim. Read more here.
• Finally, the state of Maryland is now one signature by the Governor away from being the eighth state to legalize same-sex marriage. This week, the state Senate passed the gay marriage law after the House of Delegates narrowly approved it last week. The Democratic Governor Martin O’Malley is expected to sign it. This latest victory reflects the national trend that has shown a majority of Americans support same-sex marriage, and four national polls back that up. Read about the full story behind Maryland’s votes here. Okay, maybe this one didn’t fly below the radar, but we knew you would want to know!

Creating a Will or Living Trust is often the last thing anyone wants to do, and the truth is, if you want to protect your assets, pass your assets on to someone other than what state law dictates, or ensure they go to the individuals or organizations you choose, then creating a Will should be one of the first things you do. For LGBT adults with partners, creating a Will or Living Trust is a crucial part of protecting your partner from financial uncertainty after your death. Too often, surviving partners are prevented from inheriting by family members who use the law to excise the surviving partner from the estate administration process. A family’s prejudices about the sexual orientation of their deceased loved one can motivate them to interfere with the deceased person’s intentions. Because of this risk, Wills and Living Trusts need to be prepared by a legal professional, who can help create a document that is thorough, concise, and properly executed. This helps ensure that the deceased person’s wishes and intentions are better able to withstand a legal challenge. Also important to consider, a Will is very necessary when a lengthy and/or degenerative illness leaves an opportunity for family members to argue that a person was not of sound mind when they executed their Will or Living.

Another reason to consider creating a Will or Living Trust is to try to mitigate some potential – and often inadvertent – tax consequences to the beneficiaries of your estate. Meeting with a legal professional to assess the potential tax risks of your estate, and to incorporate tax-saving techniques in your estate plan can help alleviate potential tax burdens after you die. Same-sex couples and unmarried opposite-sex couples are particularly vulnerable to taxation after the death of a partner, because of the disparate tax treatment between State and Federal taxing agencies based on marital status, and because there are often fewer planning opportunities available.

In addition to creating a Will or Living Trust, individuals and couples can execute the Oregon Advance Directive – and Physicians Orders for Life Sustaining Treatment (“POLST”) in certain circumstances – to name someone to direct your healthcare when you are unable to do so yourself, and to leave additional information and instructions about end-of-life preferences. This can be especially important when a couple is unmarried or not in a Registered Domestic Partnership where, in the absence of an Oregon Advance Directive, neither partner has a statutory right to direct the health care of the other partner.

Make 2012 the year you map out your estate planning documents – Wills or Living Trusts, Advance Directives or Health Care Powers of Attorney, Financial Powers of Attorney, etc. – and see an attorney who specializes in estate planning to help you create a plan that will protect your wishes and your loved ones. If you wish to speak to someone at Beth Allen Law, please feel free to contact us.

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

Now, almost 20 years after that Clinton-era law, state laws across the country are beginning to fill the FMLA gap by extending coverage to gay and lesbian couples, thereby placing a new emphasis on acceptance of all families. Both Oregon and Washington states have family leave laws that explicitly include same-sex partners as legitimate family members: the Oregon Family Leave Act (OFLA) and Washington State Family Leave Act (FLA). Here are the basics of all three laws:

To learn more about the efforts to extend equal rights for family leave at the federal level, visit the Human Rights Campaign (HRC) and read more about their efforts to get the Family Leave Insurance Act (FLIA) passed. A description of FLIA from HRC reads: “FLIA would grant essential benefits to working families by providing twelve weeks of paid FMLA coverage to employees seeking to take leave to care for their families, including leave to care for a domestic partner and their children.”

If you feel your rights have been violated with regard to your taking a qualified leave of absence under FMLA, OFLA, or FLA, please contact us.

* Applies to employers with 50 or more employees in the current or past year.

** Applies to employers with 25 or more employees.

Resource Links:

• Information on HRC’s FLIA
• Information on Oregon’s OFLA
• Information on Washington State’s FLA

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

These cases usually arise in the context of a lesbian couple in which one woman gives birth via assisted reproduction (i.e., using donor sperm). In the West Coast states, lesbian couples face no obstacles to adoption by the non-birth mother of the child born by the other mother. But, many states do not allow second-parent adoptions. Or, even though adoption may have been available when the child was born, the couple may have decided that adoption was too expensive, or delayed obtaining one for some other reason, including the mistaken belief that their parentage would be recognized. For example, in Oregon and Washington, couples that are in Registered Domestic Partnerships that have a child will have both names showing on the birth certificate.  That assures the recognition of both mothers as parents in Oregon. But, that is not sufficient for parental recognition throughout the country. Also, due to anti-gay sentiment a lesbian or gay male couple may not jointly adopt in foreign countries. Because of this, often a couple will choose to have one of them adopt, usually with the intention that the other will adopt when financially or legally feasible. If a separation occurs before the second parent legally adopts, the legal adoptive parent may use his or her rights as a sole legal parent to deny parentage or visitation.

Thus, where parentage has not been established by adoption, one could be caught in a legal trap by her vindictive ex-partner. This has the result of not only denying legal recognition of the other partner’s parentage, but also limits custody and visitation options. In some cases, mothers are ordered to stay away from their children until they reach the age of 18, regardless of how long they have been a parent and regardless of how it will affect the children. This is wrong for the mother whose parentage has been denied, for the children as well, but also for the entire community.

Although a few attorneys are unwilling to take a case where one parent is trying to deny a fit parent her parentage and rights to see the children, there are lawyers who would take this type of client and not realize, or not care about, the damage done to the children, the other parent, and the LGBT community as a whole. Fortunately, in Oregon and Washington, most of the time the non-legal parent is ultimately able to establish parentage, but only after a long, often ugly and very expensive fight in the court room. But it is not just lawyers who must accept responsibility for what they are doing. We, as a community and as individuals, raise hell at the injustice when non-LGBT people refuse to recognize our families, yet too often stand by silently when we see it in our own community. It takes courage to speak out when a friend uses anti-gay laws for his or her own selfish purposes. However, silence empowers the legal parent to continue down a damaging path.

The key message here is to be responsible to your children even if you feel you’d rather not see your ex-partner again. Honor the relationships your ex-partner has with your children. If there are issues regarding the quality of parenting, focus on the visitation, but do not deny the parentage.  This is what straight parents do where there is disagreement over who should have custody or the circumstances of visitation. Do not use anti-gay law to deny parentage recognition.

If you feel you need counsel for yourself on this topic and wish to speak to someone at Beth Allen Law, please feel free to contact us.

Resource Links:

• http://www.hrc.org/resources/entry/legal-documents-to-protect-your-family
• http://www.leg.state.or.us/ors/106.html
• http://sos.wa.gov/corps/domesticpartnerships/

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

Basic Rights Oregon’s Legal Group, of which Beth Allen is a member, spear-headed the effort to get Oregon lawmakers to enact a statute in 2009 that requires all public schools in the state to have a policy in place that covers bullying related to actual or perceived sexual orientation. In addition, the law specifies that each school have a designated person who is in charge of investigating bullying incidents. This policy applies both for the children and the parents of a household with same-sex or transgender parents. Although some schools still have not met this obligation, most have adopted policies, again with the help of the BRO Legal Group.

Regardless of whether your children’s school has a policy and procedures in place, the more involved you can be with your child’s education, the more likely you would be to see an issue as it arises and be able to address it as soon as possible. If you are concerned about this issue occurring in your child’s school, talk to the school counselor and address this, especially if your child has heard any negative comments directed towards him or her, or even if any school assignment does not allow for the inclusion of your family. Speaking to a school administrator and the designated person in charge of investigating issues should also be on your list of things to do. If you suspect that a law was broken and wish to consult with someone at Beth Allen Law, please feel free to contact us.

Parents, Families and Friends of Lesbians and Gay (PFLAG), along with Gay, Lesbian and Straight Education Network (GLSEN), are working hard on the issues of equal treatment in schools for all children in the GLBT community. Both organizations have teamed up to work on passing a federal anti- bullying law. Follow the links below for more information on Safe Schools initiatives from those organizations and the Safe Schools Improvement Act.

The good news is there has been a lot of progress in the area of equal treatment by schools for GLBT families, and for preventing, identifying, and stopping bullying in schools. But, there is still much to do.

Resource Links:

• http://www.stopbullying.gov/community/state_laws/key_components.html
• http://www.oregonsafeschools.org/
• http://community.pflag.org/Page.aspx?pid=1274
• http://www.glsen.org/cgi-bin/iowa/all/student/index.html
• http://community.pflag.org/Page.aspx?pid=1274

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

The California bill’s other provisions eliminate many of the remaining differences between marriage and registered domestic partnership such as:

• Elimination of the common residence requirement
• Allowance of people under 18 to register with parental consent or court order on the same terms as with marriages
• Provision of a process for registering a confidential domestic partnership on the same terms as with marriages)

For those interested in the actual legal language of the bill as it affects the GLBT community, here is the section with the divorce details:

S.B. 651, SEC. 4. (amending Family Code Section 2330) (effective Jan. 1, 2012) Section 2320.

(a) Except as provided in subdivision (b), a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.

(b) (1) A judgment for dissolution, nullity, or legal separation of a marriage between persons of the same sex may be entered, even if neither spouse is a resident of, or maintains a domicile in, this state at the time the proceedings are filed, if the following apply:

• (A) The marriage was entered in California.
• (B) Neither party to the marriage resides in a jurisdiction that will dissolve the marriage. If the jurisdiction does not recognize the marriage, there shall be a rebuttable presumption that the jurisdiction will not dissolve the marriage.

(b) (2) For the purposes of this subdivision, the superior court in the county where the marriage was entered shall be the proper court for the proceeding. The dissolution, nullity, or legal separation shall be adjudicated in accordance with California law.

Resource Links:

• http://leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html
• http://www.aroundthecapitol.com/Bills/SB_651/20112012/

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

Now the question can be asked, what does this new state of the military mean to me?  Here is a brief synopsis of the freedoms the GLBT community now have:

• Anyone from the GLBT community is free to enlist, as long as they meet the long list of qualifications that range from physically fit to mentally sound.
• Active servicemembers in the U.S. Military can now be truthful about their orientation, at their own pace and if they want to. No prosecutions will take place going forward.
• Former serving personnel who are GLBT can reenlist as long as they still meet the enlisting qualifications and if they were discharged only under the DADT policy, and nothing else.

Currently in flux are two main issues: benefits for GLBT service members (and their partners and families) and the right to sue for wrongful military discharge in violation of the U.S. Constitution. The former issue is being affected by the Defense of Marriage Act (DOMA). DOMA clearly prevents the military branches from recognizing marriages between same-sex partners.  Registrations and Civil Unions are not recognized because they’re not marriage, which is the ticket to many benefits, such as on-post housing or housing allowances, military pension benefits and partner/spouse (and often children too) access to health care. The denial of these and other benefits is especially visible in the military when troops serve in close teams and see and hear very clearly what benefits their heterosexual colleagues are receiving.

The reason the latter issue is important is that the current repeal of the ban could be short-lived. There is nothing preventing a new president or Congress from reenacting DADT or even a complete ban. The only way to be certain about that is to get a ruling that DADT (and any ban) is unconstitutional. The Log Cabin Republicans had a case in the 9^th Circuit seeking such a ruling, but the issue was deemed “moot” due to the repeal. In other words, until banning gay people from serving in the military is ruled unconstitutional, uncertainty remains. For those who come out of the closet in the meantime, the risk is serious. Further, it is unclear whether servicemembers discharged under DADT will have their military records cleared.  It is fairly certain at this point that they will not be compensated for the losses they incurred as a result of being wrongfully discharged.

For more information on this issue or to keep up with the latest developments, follow any of the links below. Contact Beth Allen Law if you have further questions or concerns.

Resource Links:

• http://outserve.org/
• http://www.servicemembers.org/
• http://marketplace.publicradio.org/display/web/2011/09/30/mm-gay-servicemembers-demand-greater-equality/
• http://www.sldn.org/blog/archives/Making-Sense-Ninth-Circuit-Decision/

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.

• If you were Washington or Oregon Registered Domestic Partners (RDP) when your child or children were born, you have full legal rights as parents in the state of Oregon.  However, be aware that if your child leaves the state for a field trip or some other school activity, the other state may not recognize the parentage of the mother who did not give birth.  For that reason, and many others, it is advisable to obtain a second-parent adoption.
• If you resided in Washington or Oregon as unregistered domestic partners (city and county registration does not count) when your child or children were born, then you both may have rights as legal parents, but the mother who did not give birth may need to take additional legal action to obtain evidence of that relationship (a Declaration of Parentage, finding of “de factor” parentage, or an adoption).  As long as you continue to live together, the non-birth mother would likely have, at a minimum, rights as a step-parent.
• If you registered as Oregon or Washington RDPs with someone who already has children, then you will legally be considered a stepparent in Oregon and Washington.
• If you are new to Oregon or Washington and adopted your child in another state, you have full legal rights as a parent.  Keep a copy of the adoption judgment available, just in case that parentage is questioned.
• If you moved to Oregon or Washington and your partner had children from another relationship, and you now parent those children, you will be recognized as a step-parent if you register as domestic partners. Or you may be able to adopt to receive full parental rights.

For same-sex couples who have gone through a divorce or separation and have children, it is crucial that both parents’ rights are maintained as legal parents. Having a legal Declaration of Parentage or a finding of “de facto” parentage could be important. Contact us for advice on the correct route for you if this is your situation.

Recently, the Portland Public School District changed its forms from “Mother” and “Father” to “Parent” and “Parent” in response to the State’s broader legal recognition of family. If you are uncertain about whether you a legally recognized as a parent in Oregon or Washington, you may contact us to help you make this determination.

As with any travel with your child, we recommend you take your legal paperwork with you if you leave the state as a chaperone on a school trip with your child.

Visit the following resource links to learn more about this issue, and contact us with any questions you may have.

Resource Links:

• http://www.hrc.org/issues/pages/schools
• http://www.hrc.org/resources/entry/school-resources-for-parents
• http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/332-1.PDF

Find us on Facebook, where we post event information for the LGBT community and updates of our recent activities.