Legal Alerts-November 1999
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Great News From France

The long-awaited approval of the French domestic partnership laws, P.A.C.S., came in mid-October, as the Parliament approved a new set of laws granting legal status to unmarried couples, gay and straight. The broad range of new regulations cover property rights, public and private benefits, and housing protections, and will apply throughout France.

The P.A.C.S. laws include a presumption that property acquired after registration is jointly owned (subject to changes by written agreement), provide employment and public welfare benefits for unmarried couples, allow couples to file joint income tax returns after three years of partnership, and give some degree of immigration and inheritance protections to unmarried partners. Because French law is national rather than regional, the Parliament was able to provide coverage in employment and immigration arenas, as well as in property rights areas which in the United States are handled on a state-by-state basis.

In one of the most interesting culturally-specific dimensions of this campaign, registration will take place at the local courthouse rather than at city halls, where heterosexual marriages take place. France does not allow religious leaders to marry people (a change imposed after the French Revolution as part of the disempowerment of the Catholic Church), but local mayors strenuously opposed allowing unmarried couples -- especially gay couples -- from registering in "their" city halls.

Same-sex vs. Opposite Sex Couples

Debate continues over whether domestic partnership coverage should be limited to same-sex couples or extend to all unmarried couples, gay or straight. Many employers and local governments prefer to limit benefits to gay couples, on the grounds that the coverage should only be granted since gay couples can't marry. From this point of view, straight couples can get the benefits by getting married, so why should they be given this extra option? Some politicians believe that extending domestic partnership benefits to straight couples undermines marriage as an institution, whereas providing benefits to gay couples on an interim basis avoids this consequence.

Others contend that it's discrimination against straight couples to limit benefits to gay couples, since the law would then grant different benefits to couples based upon the gender of the partner and the sexual orientation of the couple! The first court which has considered this argument has rejected it (Foray v. Bell Atlantic, U.S. Dist. Ct, S.D.N.Y., June 8, 1999), saying that straights have the option of married and therefore they are in a different legal position than gay couples, and for that reason it isn't discriminatory to grant the benefits just to gay couples.

Apart from the legal issues -- which are bound to face further challenges in the coming years -- are the social and political issues. Many folks argue that gays should ally themselves with unmarried straight people, fighting to oppose the "preferences" given to married people. In many workplaces and cities, younger unmarried straight couples are very sympathetic to gays and lesbians, and these are allegiances which should be reinforced. Others claim that since the numbers of straight unmarried couples are often much higher than gay couples, it would be vastly cheaper for employers to limit benefits to gay couples -- and therefore much more likely that gay-only benefits will be approved.

My viewpoint is that limiting benefits to gays only is totally legal, as the court in Foray concluded. Straight people already have access to the benefits, and they can always sign prenuptial agreements if they don't like the property consequences of marriage. And, while marriage is often a religious event it doesn't have to be, as civil marriage is still a very legitimate option in this country. From a political perspective, I am very sympathetic to extending the benefits to straight couples, since it furthers the goal of broadening our political base and unifying around a rejection of marriage as it is currently structured. But both sides have credible arguments to make!

News from Lavender Law 1999

The National Lesbian and Gay Law Association holds an annual conference on legal issues facing the LGBT community, and this year's conference was in Seattle in late October. A review of the program gives a good sketch of the issues and concerns currently facing our community.

One track at the conference focuses on professional and institutional concerns, and this set of programs shows how far along the LGBT legal community has come in the past decade. Programs included choosing the judiciary as a career opportunity, hiring strategies for LGBT law students, developing appropriate professional rules of conduct for lawyers, dealing with clients in large law firms, and ways to get more involved in local and statewide bar associations.

On the family front, the key issues are parenting, property distribution, and estate planning. I attended a powerful panel on the divisive issue of legal disputes between lesbian moms, where the legal mom is using her legal status to deny her ex-lover visitation rights. Much of the discussion dealt with the ethical issue of raising such claims and the role of lawyers in arguing such defenses. I participated in a technical panel on property rights, covering the benefits of mediation and arbitration, the need to draft detailed settlement agreements with appropriate enforcement mechanisms, and the tax consequences of property settlements between unmarried partners.

Other topics included workplace rights, use of the ADA to protect people with HIV/AIDS, police brutality and hate crimes, and political discussions on the civil rights laws and the status of the same-sex marriage debate.

Next year's conference will be in October in Washington, D.C., and is sure to be a dynamic three days of presentations and discussions.

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:

http://www.glad.org
This is the site of Boston's Gay & Lesbian Advocates and Defenders, an excellent public-interest law firm serving the gay community. GLAD also recently issued Guidelines for resolving child custody disputes in our community.

http://www.yahoo.fr/actualite/societe/pacs.html
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.

http://www.NCLRights.org,
This sites features current news and articles compiled by the National Center for Lesbian Rights

http://www.qrd.org/qrd/www/usa/legal/lgln/
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:

http://www.qrd.org/qrd/www/legal/
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.

http://www.buddybuddy.com
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.

http://www.labyrinth.net.au/~dba/
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.


Legal Disclaimer

General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at samesexlaw@aol.com and make an appointment to meet with him.