Feature  Black and Blue:
Utah’s Fight for Gay Marriage
by Nicholas Rupp Gay and lesbian citizens nationwide celebrated earlier this year when a handful of communities across the United States began issuing marriage licenses to same-sex couples. Photos from San Francisco, the first city to issue the licenses, showed the world an image of gay people not often seen in mainstream media: as joyous spouses for life. For many gay and lesbian Utahns, the media blitz of photos was also a bittersweet reminder of something they can’t have — at least not in their home state. Some cautious gay rights advocates warned that pushing for too much too quickly could cause backlash from right-wing lobbyists and wary lawmakers, particularly in conservative states like Utah. Now, nearly three months later, that warning seems accurate: in early March, President Bush publicly supported a federal constitutional amendment to define marriage as between a man and a woman, and Utah became the first state in the country since then to place a similar state amendment on the November ballot. Though over 40 states have attempted their own amendments, Georgia, Kentucky, Oklahoma and Mississippi have followed Utah’s lead. Utah is home to hundreds of long-term, committed same-sex couples who are finding ways of making it work, regardless of the current political climate. West Valley City residents Carrie and Amy White are among a growing number of same-sex partners determined to afford their union whatever rights and protections they can. The Whites are in the process of creating a legal bond that mimics marriage rights in as many ways as possible. On their one-year anniversary in May 2003, they traveled to Vermont for a civil union. Two months later they celebrated the event with a reception at their home, and Amy took Carrie’s last name. While those gestures were largely symbolic, the mid-March birth of their daughter, Aiyana, prompted the couple to continue formalizing their relationship, this time from a legal standpoint. “Our lawyer told us that until all the paperwork was done and through the courts, I [as the non-biological parent] shouldn’t leave town with Aiyana and should be careful about going places without Amy,” Carrie said. “Through this whole thing we’ve had to think about a lot more than most straight people who decide to have kids.” Estate-planning attorney Laura Milliken Gray is the White’s lawyer. She specializes in legal issues affecting Utah’s gay and lesbian families and says that despite Utah’s legislature, gay couples are not powerless when it comes to their rights as a unit. “They can create rights through a variety of documents and contracts,” she said. “If we learn anything from this, it’s that we need to protect ourselves.” Gray emphasizes that all gay and lesbian people — in relationships or not — need to take steps toward protection, particularly because of the current legal climate. “It is vital and imperative that gay couples and individuals get protection with wills, trusts, and contractual agreements,” she says, “especially while we’re suffering a backlash in this state.” Some of the contractual agreements to which Gray is referring are much like prenuptial agreements that dictate what aspects of a couple’s individual lives will be kept separate and what aspects will be legally joined. Called “living-together agreements” or “partnership agreements,” these contracts are important in determining financial responsibilities and ownership issues, particularly when a relationship ends. “It defines the understanding about how the house is owned, who gets what furniture,” Gray says. “If you’re helping a partner pay for medical school, do you ever expect something back for that?” Gray also says that it’s difficult to get a court to resolve disagreements over joint-owned property if there is a breakup, so she recommends partnership agreements contain a procedure for resolving problems outside the court system. “If there’s a dispute, partners should go to mediation and only go to court as a last resort,” she says. “Courts are so confused right now. They don’t know what they can or cannot do when it comes to gay couples.” In addition to wills, trusts, and partnership agreements, Gray says two durable powers of attorney are essential: one for medical decisions and one for financial decisions. Durable powers of attorney differ from regular powers of attorney in that they apply only if one party becomes unable to function on his or her own behalf. Without powers of attorney, parents or siblings are often the people responsible for critical medical and financial decisions, despite the presence of a long-time partner. Drawing up a hospital visitation plan and adding a partner as a person privy to medical records and financial accounts are also good ideas, though the Whites didn’t have those things during Amy’s rather difficult pregnancy. Fortunately, most hospital personnel respected Carrie’s role as Amy’s spouse. “There was only one time someone wouldn’t let Carrie come back with me for an ultrasound,” Amy says, “It was in the emergency room. I was scared and I cried and cried and cried.” Gray emphasizes that practically all these protections require help from an attorney. In particular, the recent trend of creating wills over the Internet can be very dangerous for gay couples: “Much of estate planning must be executed in a certain way, otherwise it’s not valid,” she says. “Because we know we’re more subject to challenges, it’s so important that gay people do this correctly.” People who do have their documents properly prepared rarely have trouble. In fact, Gray hasn’t had any clients run into problems with their contracts. “Hospitals are happy to see that paperwork. They want clarity,” she says. “Some of my work is with people who haven’t done proper will planning and are now dealing with a partner’s family. It’s expensive and can be tragic, especially when you’re already dealing with devastation.” Although Gray says everyone — gay or straight — should have a will or trust, gay couples are under the added financial stress of obtaining powers of attorney and partnership agreements, which together can cost anywhere from $500 to $1,000 depending on the attorney and the situation. The extra financial burden is not the only downside to these protections. Even if gay couples do all they can with an attorney, they’re still afforded only a fraction of the rights that come automatically with a government–issued marriage license. For example, there is no way for the surviving half of a gay couple to receive any federal benefits, including social security, or take any legal action on behalf of a partner, such as a wrongful death lawsuit. In addition, Gray says these documents are very specific in what they grant, and courts will infer nothing more. Gay couples also have the burden of carrying that extra bundle of documents with them all the time. “It’s a real pain in the ass,” says Carrie. But without them, she’d have no proof of her rights as Amy’s partner if something happened to Amy. Besides protection for themselves, the Whites were also concerned about their respective extended families attempting to take Aiyana and future children if something were to happen to either parent. “If something happened to me,” says Amy, “my parents wouldn’t trust Carrie with Aiyana, even though I’ve told them I’d want her to remain Aiyana’s guardian.” “You just never know what people will do in situations like that,” Carrie adds, “Especially with biological grandchildren.” To help protect families with children, like the Whites, Gray recommends a co-guardianship document granting a non-biological parent equal care and custody rights as long as the guardianship is in place. Though it’s new legal territory, co-guardianships usually will also allow a child to receive health insurance and other corporate benefits from a non-biological parent’s employer. “Co-guardianships aren’t as permanent as second-parent adoptions — they don’t have nearly the same rights, and they haven’t yet been tested all the way through the court system to see if they’re completely valid,” says Gray. “But co-guardianships, when coupled with a parenting agreement, are the next best thing since the legislature banned second-parent adoptions in 2000.” Similar to partnership agreements, a parenting agreement outlines a couple’s intentions when they have a child and asserts visitation rights and child-support expectations if there is a breakup. “If they intend to have a child together and have both partners serve as parents,” Gray says, “then the non-biological parent should remain in that role regardless of the status of the couple’s relationship.” If the majority of Utah legislators have their say, these legal contracts will remain the only marriage-like option available to same-sex couples. Fortunately, Gray says that even if a marriage amendment passes a vote in November, it would not affect gay couples’ ability to enter into contracts with one another, though enforcing the contracts may become more difficult. “Generally, you can’t interfere with a person’s ability to contract, but it will be a little unclear exactly how it’s going to play out. Here’s this mandate from the legislature saying that these people should not be given these rights, but here’s this contract directly at odds with that, and a judge might say he or she’s not going to honor it,” she says. “It’s scary. It creates uncertainty and confusion.” As the fight for gay marriage continues to rage across the country, there remains a split within the gay community about accepting civil unions or pushing for same-sex marriage. “It’s not just semantics,” explains Kalina Duncan, National Field Assistant for the Human Rights Campaign. “Civil unions don’t include the 1,138 federal rights and benefits that marriages do, and they’re not portable — meaning you only have the protection of a civil union in the state in which it was granted. Civil unions are very ‘separate-but-equal,’ which we’ve already seen doesn’t work in this country.” Carrie White prefers to pick her battles, however, and for the White family this one is more about practicality than labels. “We know we’re committed. We don’t need specific words,” she says. “However we get them, we just want the benefits married couples get. We don’t want to have to fight the state over everything.” Amy agrees, but she understands the fight for the word “marriage.” “I’m pretty headstrong and I tend to stand with my hands on my hips and fight for everything,” she says, “I’ve looked into moving to Canada, to Oregon, to anywhere we’re likely to be equally protected. So if it were up to me we’d probably have a marriage license from every state but Utah on our walls.” Laura Milliken Gray agrees with both sides. To her, the fight for marriage is about fundamental fairness and allowing gay and lesbian families the very same rights as heterosexual families. “For now I don’t care what it’s called. I don’t mind the incremental approach as long as the benefits come with it,” she says. “But I believe ultimately that outcome will collapse because having two systems will prove untenable.” Watching the Whites at home with Aiyana, it’s obvious that this family does not need a two-system distinction. Just like their heterosexual counterparts, one or both of the women is up regularly throughout the night, caring for an infant not yet ready to sleep more than a few hours at a time. And like parents everywhere, Carrie and Amy have pet names for Aiyana, responding with coos and “Hi pumpkin!” at every twitch, yawn, or gurgle. During a diaper break, Amy calls calmly from the other room, “Carrie, I need your help!” and Carrie rushes over only to burst out laughing. They are noticeably partnered in raising their daughter. It turns out “pumpkin” didn’t wait for a new diaper before marking her territory on one of her moms. “This is the second time this has happened,” Amy says, now also chuckling. “Yeah, and you laughed at me!” replies Carrie. “See?” Amy says. “If people could see us in our house, they’d realize we’re not different. We’re normal parents with a newborn. We’re just a family.” That’s undeniable, with or without the Utah state legislature’s blessing. 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