|Oregon State Bar Bulletin DECEMBER 2007|
“…going to the county clerk’s office and we’re
domestic partnered/civil unioned.
Gee, I really love you. And we’re gonna get — whatever.
Going to the county clerk’s office of love.”
On Jan. 1, Oregon will join nine other states and the District of Columbia in allowing same-sex couples at least some of the legal benefits of traditional "one man, one woman" marriage.
Under the state’s new domestic partnership law, the Oregon Family Fairness Act, adult couples, at least one of whom must reside in Oregon, may register as "domestic partners" and have that relationship registered as a vital record.
"Speaking as a family law lawyer for 19 years, I think it’s about time," says Gordon Dick, chair of the bar’s Family Law Section. "States need to be recognizing these relationships. Without such laws, same-sex couples have no ability to have one, single document that — like a marriage certificate — creates all of these rights. In the past, same-sex couples needed a multitude of legal documents, such as powers of attorney and health care directives, to get the rights the new law provides."
At the same time, Dick and other family law experts say, registering as domestic partners will not be the same as having a marriage certificate.
In fact, because the federal government — and many states — have statutes that disallow recognition of same-sex marriage, Oregon’s law is another block in a nationwide crazy quilt of legislation that gives same-sex partners some rights, denies them others, and may cause their rights to change if they go from one state to another.
"It’s been sold as a panacea, and it’s not," says former bar president Mark Johnson, whose Portland practice includes family law. "It’s not a cure-all. It’s a very complicated law."
The Path to Domestic Partnerships
The crazy quilt of legislation that sanctions same-sex relationships in some states and restricts them in others began to be stitched together after 1993, when the Hawaii State Supreme Court held that the state must show a compelling interest in prohibiting same-sex marriage. That ruling prompted concern among opponents of same-sex marriage that Hawaii might legalize it and that other states might recognize such marriages performed in Hawaii.
In 1996, Congress passed the Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriages for any purpose, even if such marriages are formed in or recognized by a state. The law also says that no state has to recognize a marriage between persons of the same sex, even if the marriage was formed in or recognized by another state.
In 2004, Oregon weighed in on the issue in two diametrically opposed ways.
First, in March, the Multnomah County Commissioners ordered the county to begin issuing marriage licenses to same-sex couples, making Multnomah County the second place in the nation — after San Francisco County — where such couples could get married. (According to The Oregonian, there are an estimated 11,000 same-sex couples in Oregon.)
Shortly after the commissioners’ order, however, the Oregon Department of Justice advised Gov. Ted Kulongoski that state statutes define marriage as a union between a male and a female. That resulted in a directive from the governor’s office that the state not register the Multnomah County marriages.
To underscore DOJ’s point, in November 2004, Oregon voters adopted a constitutional amendment defining marriage as "between one man and one woman." And in April 2005, the Oregon Supreme Court held1 that the licenses issued in Multnomah County the previous year were void. (The Commonwealth of Massachusetts, which began issuing marriage licenses to same-sex couples three months after Multnomah County, is the only state in which such marriages — as opposed to civil or domestic partnerships or unions — are legal.)
The Oregon Supreme Court avoided the issue of whether the Legislature, if it chose, could provide for civil unions that were not described as "marriages."
An attempt to pass such legislation in 2005 died in the Republican-dominated House of Representatives.
But just two years later — bolstered by the recommendations of a task force on equality created by the governor in 2006 and a change in control of the Legislature — the Oregon Family Fairness Act was adopted.
What the Statute Says… and Doesn’t
The act begins with a list of "acknowledgments": that the Oregon Constitution limits marriage to "the union of one man and one woman"; that the legislature "cannot bestow the status of marriage on partners in a domestic partnership"; that it "recognizes that numerous distinctions will exist between these two legally recognized relationships"; and that "the legal recognition of domestic partnerships under the laws of this state may not be effective beyond the borders of this state and cannot impact restrictions contained in federal law." 2007 Or Laws ch. 99, § 2.
That’s a lot of caveats. So what does the law actually allow? Its key provisions, grouped together, say that:
"That section — the meat of the bill — is like a maze," says Johnson. "You know how a court’s going to deal with that: one… word … at … a … time. Only time can tell what’s going to happen."
But, say Johnson and other experts, some of the law’s outcomes are predictable, at least to lawyers.
Dick says that because the law grants domestic partners the same rights and responsibilities as married couples, "everything’s at issue" if they split up.
"The first time I tell a gay client, ‘You have exposure to spousal support,’ they’re not going to believe it," he says. "As a family law attorney, I’m not so sure that same-sex partners understand all of the legal ramifications if they go through this procedure (of registering as domestic partners)."
And Leslie Harris, professor of family law at the University of Oregon School of Law, says that registered domestic partners now will have to make sure their wills express their new status, tying up the same loose end that heterosexual spouses have to tie up.
"Oddly enough, some of the people who may be affected are same-sex couples who have done planning," says Harris, who has written law review articles on nontraditional families. "Under will and trust law, your will is automatically revoked at marriage unless it expresses a clear intent to the contrary. Lawyers who have worked with same-sex couples are going to have to say, ‘You need a codicil.’"
Crossing State Lines
In addition, while the law may present few issues for couples who register and remain in Oregon, its effect if they leave the state is far less certain, a problem that it seeks to mitigate by requiring both partners to submit to ongoing jurisdiction in Oregon even if one or both of them moves elsewhere.
The problem, says Johnson, is that while the U.S. Constitution requires that each state give "full faith and credit" to the public acts, records and judicial proceedings of every other state, a "once-obscure aspect of the case law interpreting that clause holds that public acts and records can be held to a different standard from judicial proceedings."
The result, says Johnson, is that one state can decline to recognize another state’s public acts and records — including the other state’s marriage certificates and registered domestic partnerships — based on its own public-policy considerations.
For example, Oregon doesn’t recognize common-law marriages that were established in Oregon. But if someone comes here from a state that does allow for the establishment of a common-law marriage, Oregon will recognize that.
However, the possibility that another state may not recognize rights and responsibilities arising from a domestic partnership registered in Oregon is enhanced by the fact that many states have statutes or constitutional amendments explicitly stating that such relationships are contrary to their public policies.
"Some states that have enacted domestic partnership or civil union laws have statutes that say they will recognize same-sex relationships from other states," says Harris. "And in states that prohibit both same-sex marriage and civil unions, it’s clear they won’t recognize a domestic partnership from another state. Then there’s a group of states that have statutes prohibiting same-sex marriage, but are silent on civil unions and domestic partnerships. In a couple of those states, courts have been asked to recognize civil unions or domestic partnerships, but the courts have tended to refuse, saying, ‘We don’t know what this thing is.’"
Kathy Graham, a Willamette University College of Law professor and associate dean who has written an extensive law review article on conflicts of laws as they pertain to same-sex relationships, echoes Harris’ analysis.
"What if the couple goes to live in Utah or Idaho?" she says, pointing to two states that have constitutional prohibitions against same-sex marriage and no authority for alternatives such as domestic partnerships or civil unions. "I think the courts there are going to say, ‘No dice: go back to Oregon (to get your dissolution or whatever).’ There’s case law suggesting that may be the approach in some states."
"What if both people have moved to Kansas (another state that constitutionally bars same-sex marriage and has no alternative provisions)?" asks Graham. "It may be a hardship for them to come back to Oregon (to resolve their issue), but they may have to. What if Mary and Betty register a civil union in another state, come to Oregon and split up and Mary registers as part of another domestic partnership in Oregon? She can’t be a bigamist (bigamist is from the Latin for "twice married"), but she would be a bi-unionist. How is the state going to handle that?"
"These are," Graham says with understatement, "interesting questions."
The problem of judgment versus other public acts and recordings is why Beaverton lawyer Robin Pope, whose practice is limited to adoption, assisted reproductive technology and related matters, says she will continue to advise same-sex couples to get judgments when they adopt children.
Such adoptions, says Pope, can arise in a number of ways: when a woman becomes pregnant and her female partner wants to become the child’s legal parent; when male partners use the sperm of one and a donor egg to create an embryo, carried by a gestational carrier, and both want to become the child’s legal parents; when one partner wants to adopt the other’s biological or adopted child; or when both partners want to adopt a child together.
Pope says she sees same-sex partner adoption as "a growing area, because Oregon has become very user-friendly for gay couples."
"I got a call from an attorney in Nebraska: ‘Can you do these?’" she recalls. "Answer: ‘Piece of cake.’ The couple actually moved to Oregon."
Pope says that while Oregon hadn’t changed its adoption laws, its Department of Human Services "has been very friendly and changed its administrative rules" in ways that accommodate same-sex adopters.
For example, Pope says that DHS usually waives home studies for persons trying to adopt their same-sex partner’s child: "They say it’s like a step-parent adoption."
"I’m on the list serve for the American Academy of Adoption Attorneys, so I get all this chatter about these different issues," says Pope, who spoke at an Oregon Law Institute CLE in September on developments and issues in adoption law. "Florida’s bad for same-sex adoptions. Texas is bad, Nebraska’s bad; some states in the South."
For that reason, she says, she’ll continue to recommend that same-sex couples, even those in registered domestic partnerships, continue to get judgments of adoption or, in the case of children conceived through assisted reproductive technology, declaratory judgments of paternity to firmly establish their rights, especially if one or both moves out of state.
According to Johnson, the judgment versus other public acts and recordings issue means that even just traveling to another place can impose risks for domestic partners.
"Quoting (Willamette Week columnist) Byron Beck, ‘You can register your partnership in Oregon, but if you go to the Clark County Fair and choke on an elephant ear, you’re on your own,’" says Johnson. "We do know that there are states that refuse to recognize this relationship. Until they do, people are taking a chance by traveling. It’s important for people to realize they still need to attend to family planning issues. Of course, gay couples have been doing that forever."
Some Clarity on Benefits and Taxes
Two areas in which the new Oregon law is clear — and in ways not favorable to registered domestic partners — are its effect on federal benefits and federal tax returns.
Because of the federal DOMA’s ban on federal recognition of same-sex marriages for any purpose, even if such marriages are formed in or recognized by a state, domestic partners registered in Oregon are not eligible for each other’s federal benefits.
"Social Security, joint tax returns, federal pension benefits governed by ERISA, anything else you can think of that’s a benefit based on federal law," says the University of Oregon’s Harris. "Oregon can’t do anything we’ve been told not to do under DOMA."
However, the Oregon Family Fairness Act explicitly allows registered domestic partners to file joint state tax returns. That creates an interesting issue for tax attorneys, because Oregon taxes are calculated, at least in part, on information contained in federal tax returns.
"The difficulty comes in deciding what entries to bring to that joint Oregon return," says Brian Haggerty, a Newport attorney who practices both family and tax law. "I think a ‘dummy’ federal joint return will be needed for partners filing the long form, Form 40, but not necessarily for partners filing 40S. I think that at least some calculations separate from the dummy return will need to be done in order to correctly compute items for the Oregon return. I would bet, the tax code being the Byzantine affair it is, that there are other special calculations that will have to be done to move back and forth between single federal returns and a joint Oregon return."
Regardless of how these and other issues ultimately are worked out by the courts in Oregon and elsewhere, Willamette’s Graham and Family Law Section Chair Dick say that the legislature’s adoption of the Oregon Family Fairness Act didn’t surprise them.
"I think attitudes (towards same-sex couples) are changing," says Graham, who is in her late 50s. "In my era, people were much more suspicious. Younger people are less suspicious."
Dick, who was on the Family Law Section’s executive committee during Multnomah County’s short-lived extension of same-sex marriage licenses, recalls that as being "very political. We talked a lot about the potential ramifications."
But, he says, he doesn’t expect similar buzz around the Oregon Family Fairness Act. "When shows like ‘Will and Grace’ de-stigmatize same-sex relationships, this law was one of those things that was going to come soon or later," he says. "Family law is constantly evolving. This is just part of that."
At the same time, both say, the law is going to raise some interesting questions.
"The law’s not entirely clear," says Graham. "It’s going to be hard to give advice; it’s going to be a headache until it’s straightened out. But it’s an exciting, really interesting issue. I think we did the right thing."
Says Dick: "We’ve had domestic partnerships, both heterosexual and same-sex, recognized in Oregon for years. Part of me questions what has really changed."
On the other hand, he says, registration of domestic partnerships may change what he calls the perception, on the part of some people, of "the gay lifestyle as very responsibility-free." And some people may question why the law was written specifically for same-sex couples. "We’ve been debating whether that’s going to be the first challenge to the law," he says.
"I think all of this is going to be very interesting," Dick concludes. "The Legislature has given us this statute, but how it’s going to work, we’ll be learning for years to come. It’s a brave new world for family law practitioners."
1 Li v. State of Oregon, 338 Or 376 (2004).
2 From The Oregon Family Fairness Act, Section 9 (1) and (2). These provisions also apply to any rights or responsibilities arising from being an "in-law" as a result of marriage or domestic partnership.
Military personnel risking their lives in the Middle East are discovering that they may face a different loss at home: their children.
As deployments stretch far beyond their originally expected lengths, some custodial parents are fighting to get their kids back from the noncustodial parents with whom they’ve left them to go to war.
"People serving their country and putting themselves at risk, and coming back and losing their kids, is not good public policy," says Dale Koch, the immediate past-president of the National Council of Juvenile and Family Court Judges and Multnomah County’s presiding judge. "But judicial officers look at the best interests of the child. If the custodial parent has been gone a couple of years, and the child has been living with the other parent, you can understand why maybe the child wouldn’t want to go back."
Articles by MSNBC and the Associated Press that quoted Koch earlier this year both reported on cases in other states in which custodial parents ended up in custody battles after they were deployed and left their kids with ex-spouses or other relatives.
Portland attorney Charles Williamson says he represented one such servicewoman through his pro bono work for the bar’s Military Assistance Panel.
"The couple was not divorced, so there was no custody order," says Williamson, who also is a past president of the bar. "The mother had custody. The father lived in Texas and had only seen the child two or three times. When the mother was deployed to Iraq as part of the Oregon National Guard, she left the child, a first-grader, with her parents. Then the father came up from Texas and demanded the child. The grandparents called the police, and the police said, ‘You’re the child’s father.’ They made a court-like decision."
Williamson says that after the mother got special leave to come home and handle the crisis, lawyers with the Oregon National Guard directed her to the OSB’s Military Assistance Panel. He and another attorney from his office, Robin Runstein, then contacted the military in Texas, which put him in touch with Texas’ equivalent of the panel. Through that, he says, "a member of a very large Texas firm personally handled the Texas part of the case. She raised the issue of jurisdiction in Texas. Texas had no jurisdiction. An Oregon court ordered the child returned, and the father complied."
But, says Williamson, he can envision a fact situation in which a custodial service man or woman could lose custody because he or she doesn’t have a definite return date.
"The government has instituted a de facto draft," he says. "It’s a tremendous hardship on these people’s careers, their families and their kids."
Between late November 2003 — when the Military Assistance Panel started making referrals — and late August 2007, 52 percent of the 116 referrals made to attorney members of the panel were related to family law issues, according to George D. Wolff, the bar’s referral and information services administrator. Wolff says his office does not track whether the referrals involved divorce, child custody and/or other family law issues.
On a national level, 74,000 single parents serve in the "regular" military and another 68,000 serve in Reserve and National Guard units, according to the MSNBC article.
According to that article, divorce among service personnel
"Sometimes pending deployment brings some of these (divorce and child custody) issues to the front," observes Deschutes County Circuit Court Judge Alta Brady, who says that her court tries to move such cases up on its docket, especially when children are involved. "They don’t know how long they’re going to be gone, but it’s usually 18 months," says Brady.
When child custody issues arise after the custodial parent is deployed, family law judges are faced with a conflict between federal and state law.
The federal law is the Servicemembers Civil Relief Act, signed into law in December 2003, as a revision of the Soldiers’ and Sailors’ Relief Act of 1940.
Under the new law, active service members — including those in Reserve or National Guard units — generally are entitled to stays of no less than 90 days in any civil action or proceeding, with additional stays available at the court’s discretion.
The federal law, which — like its predecessor — was enacted to protect service personnel from eviction, foreclosure and other financial losses arising from military service, doesn’t specifically address child custody issues. But most states have laws that say that child custody is to be determined based on the best interest of the child and provide for changes in child custody if circumstances have changed since the previous court order.
According to the Associated Press article, some family court judges say that determining what’s best for a child in a custody case is simply not comparable to deciding civil property disputes and the like. They have ruled that family law trumps the federal law protecting service members.
To circumvent that conflict in Oregon, State Sen. Vicki L. Walker, D-Eugene, says she proposed an amendment to Oregon’s child custody statute, ORS Chapter 107, during the last legislative session.
Under ORS 109.056, a custodial parent who is on active duty can delegate the care or custody of his or her child for the term of military service, plus 30 days.
Walker’s amendment says that in a proceeding to reconsider child custody, such temporary placement of the child by the custodial parent with the noncustodial parent, as a result of the custodial parent’s military deployment, is not by itself a change of circumstances for purposes of determining custody.
However, any other fact relating to the child and the parties that has occurred since the last custody judgment may be considered by the court when determining whether circumstances have changed.
"It was a small change (to existing law), but very complicated," says Walker, who says she’d read about cases in other parts of the country but was not aware of any in Oregon. "We didn’t want to make it so you couldn’t take children out of a home having trouble, but didn’t want people to lose their kids because they were deployed. I worked my tail off on that bill."
The amended law is effective on Jan. 1.
1 Amending ORS 107.135
ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.
© 2007 Janine Robben