Married, Sort Of: The Legal Limbo of Being Gay and Married in Texas
Photos by Max Burkhalter
Jenn and Lizzie Wigle are wandering the halls of a bridal expo, searching more for ideas than products or services. Eventually they visit three of the events, looking at dresses, invitations, cake decorators and all the other trappings of the $40-billion-a-year American wedding industry.
Most of the vendors whom Jennifer and Elizabeth visit seem easygoing and accepting, but there is one scene that plays out over and over again with only minor variations among a significant minority of them.
"When are your dates?" a vendor asks, and Jenn and Lizzie both reply that it's going to be July 7, 2012. The event will be at a Crown Plaza hotel in Houston, which narrowly beat out Omni as a venue choice.
"Oh," the vendor says. "You'll be fighting each other for guests, ha-ha."
"No, we won't," Jenn replies. "It'll be all the same people because it's the same wedding. We're getting married."
"You're sisters having a double wedding?" the vendor asks. "That's so awesome."
"No," Jenn corrects for the dozenth time. "We're getting married. To each other."
"Oh," the vendor says, settling into an awkward silence. There's no open rudeness, just a deeply uncomfortable moment.
Ultimately Jenn and Lizzie don't get much out of the bridal expos except maybe a chance to show a few more people in the industry how little difference there is between a same-sex wedding and a heterosexual one. Their coordinator at the Crown Plaza handles most of the arrangements anyway once the couple picks out what they want. There's no awkwardness at the hotel. When Jenn mentions that their wedding is for two women, the coordinator tells her how they hosted a gay volleyball league just the week before.
All this for a grand Texas wedding, but does it count as getting married? No. Well, yes. Well, kind of, but not really. Sort of?
If you ask Jenn's home country of Canada, where she and Lizzie were part of a legally binding marriage ceremony in front of a justice of the peace and Jenn's friends and family who can't afford to make the trek to Texas, then they are absolutely married. Same-sex couples have had equal marriage rights in our northern neighbor for nearly a decade.
If you ask the U.S. government, then the answer is sort of. After the repeal of parts of the Defense of Marriage Act, the federal government recognizes all lawfully performed same-sex marriages as legitimate. Jenn and Lizzie can file joint federal income tax returns, for example.
On the other hand, if you ask Texas, the answer is no, and the federal government agrees. DOMA is still law, and states aren't required to recognize same-sex marriages even if the federal government does. For official Texas purposes, they aren't married.
A federal judge who recently struck down Texas's constitutional ban on same-sex marriage says Jenn and Lizzie are married, or rather, that they have a right to be under the 14th Amendment. However, the decision was stayed as similar cases percolate up toward a showdown in the U.S. Supreme Court.
It's a confusing time to be gay and married in the state of Texas.
Before 1973, no state specifically referred to an opposite-gender clause for residents applying for marriage licenses. It wasn't until two University of Minnesota students named Jack Baker and James McConnell applied for a license in 1971 that the question arose regarding what would happen when a same-sex couple dared to attempt legal marriage.
Baker v. Nelson (the case arising from the couple suing Hennepin County District Court Clerk Gerald Nelson for denying the license) reached all the way to the U.S. Supreme Court, which sided with Nelson and denied Baker and McConnell the right to wed. Considerable media attention was given to the case nationwide, sparking much commentary on same-sex marriage and building a wave of anti-gay legislation. In 1973, Maryland became the first state to pass a law barring marriage between people of the same gender. By the time DOMA was signed by President Bill Clinton in 1996, establishing marriage as strictly between a man and a woman, nearly every state had joined Maryland, with Texas doing so in 1997 and adding a state constitutional amendment against it in 2005.
Three years after that, Hurricane Ike hit Houston and left much of the city powerless and dark. At a neighborhood gathering during the blackout, Daniel Bothwell met brian carlson. (carlson spells his name lowercase.) After four years of dating, Daniel and brian would elope to Niagara Falls in New York following the repeal of Section 3 of DOMA, the portion that defined marriage as hetero-only.
Leaving Texas to wed legally has become something of a rite of passage among our gay population. Mayor Annise Parker did so in January of this year when she went to Palm Springs, California, to wed her partner of 23 years, Kathy Hubbard. New York is a popular destination for a lot of reasons. There's no residency requirement, the marriage license fee is a modest $35 (less than half that of Texas), you need only a single witness and an officiant, and the wait time for processing is 24 hours. The whole thing fits well into a week of vacation.
It's also sort of symbolic. It was a New York case that led to DOMA's downfall. In 2013, the case of United States v. Windsor landed the issue before the U.S. Supreme Court as Edith Windsor sued the government, claiming she had been unfairly discriminated against regarding the ability to inherit her wife's estate tax-free upon her death. The couple had married in Toronto and were living in New York when Windsor's wife, Thea Spayer, died in 2009.
The Supreme Court agreed with Windsor and struck down the clause.
For other couples, the destination is more personal in nature. Naomi (nee Lofton) and Rachel Dvoretsky were planning a trip to New York City because they'd won an engagement photography session in a contest.
"We had a big wedding planned at the Houston Zoo," Naomi says. "It was a celebration for our family and friends, but part of me was still very 'meh' about it. I knew that to the state government, it meant nothing even if it meant a lot to us, but then the DOMA ruling came down and we were already going to New York, so we jumped at the chance to do it legally as well."
Naomi and Rachel Dvoretsky
Naomi grew up in New York. She and Rachel wed in a small park just a few blocks from her old apartment. Another couple, Tony and Veasna De Litta, returned to their home state of California to have a small wedding. In both cases, there was a sad sense of having to find two places where they could belong. There was the state they were from, which would recognize their ability to wed the person of their choosing in accordance with new federal guidelines, and then there was Texas, which would deny them that.
"We knew that it couldn't be here," Tony says. "And we never wanted to travel to a place like Iowa or Massachusetts that didn't mean anything to us. To get married in our city in front of our family and to bring some friends out to experience how different it is was amazing."
Once the honeymoons were over, the Texas LGBT couples returned to the state and began to more fully understand exactly what it meant to live within the tangled web of laws and guidelines woven by a federal government that said yes and a state government that said no.
The result was some curious snags that LGBT couples are forced to navigate. For instance, Jenn Wigle originally wanted to take Lizzie's maiden name of Allen, not the other way around. Worried that doing so would raise red flags in the immigration system, Lizzie took Jenn's name, but it wasn't until the DOMA repeal did away with the hundreds of dollars worth of court fees associated with non-marriage name changes that the couple could afford to make the change formally.
Weirdly, though all her federal documents such as her Social Security card bear the name Elizabeth Wigle, her Texas driver's license still says Elizabeth Allen, a daily reminder of the difference between Texas and the rest of the country. If they were a heterosexual married couple, a Texas driver's license name change would involve paying a small fee, making a trip to the Social Security office and notifying the Texas Department of Public Safety of the change.
The DPS website currently has a disclaimer stating, "Since the state of Texas does not recognize same-sex marriage, DPS cannot accept same-sex marriage licenses" in the section regarding name changes.
The only other option is to apply through the courts for a name change, a procedure that is both more costly and time-consuming.
In some cases, the quagmire of regulations actually costs the government money.
"In all honesty, though it does leave me indignant to contemplate the idiocy inherent in the state denying rights while requiring full participation, I admit that I've happily used the system to my advantage," Bothwell says. "As a college student who didn't have a job, I was able to get a sizable sum of money in federal grants to go to college, even though brian makes more than would allow me to get federal funds. Before DOMA was (partially) repealed, the government sided with Texas in calling us unmarried; therefore, I was just a guy with a 'sugar daddy,' and none of his income counted. In essence, Texas was costing the government more money by not recognizing the rights of its citizens."
Bothwell and Carlson now happily file joint tax returns based on their combined incomes.
Taxes were the heart of the issue that finally eliminated federal discrimination in same-sex marriage, and taxes may be one of the areas where the difference between how straight couples and gay couples are treated under law becomes most tangible. Shellye -Arnold is the executive director at Memorial Park Conservatory, and her wife, Tina Marie Sabuco, is the owner of Arts Alive. They met in Austin in the '80s and moved to Houston to further their careers and be closer to Tina Marie's family. They recently celebrated 25 years together.
After getting married in Maine last October, Shellye and Tina Marie sat down with their CPA and analyzed the differences in taxes that they'd been paying filing as separate single people for a quarter of a century versus what they would have paid if they'd been considered married by the federal government. The IRS allows recently wed same-sex couples to amend past tax returns, and Shellye and Tina Marie took full advantage of that. "Interesting multiplier over 25 years," says Shellye. "I consider it a 'gay tax' that we have paid, which is substantially higher than our heterosexual counterparts." Though the couple declined to give exact numbers, they indicated that the difference involved thousands of dollars.
Jenn and Lizzie also found windfalls in the lifting of the tax burden.
"It's a huge difference," Jenn says. "We will be getting a pretty big chunk of money back when it's processed."
On the other hand, Jenn also has had to learn how the health insurance benefits she receives through Lizzie's employer would affect her tax burden. Because their marriage was not initially federally recognized, they were paying for Jenn's part of the benefits post-tax, whereas straight married couples are charged pre-tax (the money paid to health benefits is taken from salary before taxes are paid, so taxable income is reduced). Since they were paying more for benefits, they were able to amend their return to get a refund on that money once the Supreme Court struck down the sections of DOMA defining marriage.
Debra Hunt and Connie Moore
The real question for a lot of married same-sex couples is, "How can we best take care of our families in the current nebulous environment?" In that regard, the news is mixed to hesitantly hopeful.
Debra Hunt and Connie Moore have been providing legal services to Houston's LGBT community for 27 years, and in 2009, they were voted the best attorneys in Houston by -OutSmart magazine. Their slogan to bring in members of the gay community used to be, "When you have legal issues, you don't have a lot of lifestyle questions."
Hunt laid out some of the problems that most affect the mishmash of legal jurisdictions between the states and the federal government's legal positions on same-sex marriage. Since the repeal of DOMA, she has by her own admission been "dusting off a lot of old marriage law books."
One area of focus for Hunt and Moore is helping couples receive health insurance benefits from their employers by recognizing their spouses as legal partners. This has become much more common in Texas, though it's by no means universal. Last November, Parker announced that because of recent court rulings, benefits would be extended to the same-sex spouses of city employees if they were married in a jurisdiction where it was legal to do so.
Under a 2001 amendment to the Houston city charter, unmarried domestic partners of any sexual orientation lacked the ability to receive Houston city benefits. Though phrased to apply to both unmarried gay and heterosexual domestic partners, the amendment was swept into law on anti-gay rhetoric by sign company owner and conservative activist Dave Wilson (now a Houston Community College trustee), who forced the initiative onto the ballot after gathering 20,000 signatures. The result was to lock out same-sex couples who lacked the easy ability to form legal unions like straight couples.
Under the wording of the amendment and following the example of federal agencies after the repeal of Section 3 of DOMA, Parker felt the expansion was legal. In a statement, she said, "Based on the right to equal protection under the law, it is unconstitutional for the city to continue to deny benefits to the same-sex spouses of our employees who are legally married. This change is not only the legal thing to do, it is the right, just and fair thing to do."
It should be noted that at the time of Parker's actions, Kathy Hubbard was not eligible to receive benefits, since she and the mayor had not yet legally wed in California.
"Having the government example is very helpful in setting up benefits for couples," Hunt says.
All the couples with whom we spoke enjoy health insurance coverage through employers that recognize their unions. This wasn't initially true for Jenn and Lizzie. When Jenn applied for coverage through Lizzie's then-employer, they were told point-blank, "That marriage doesn't count here." Lizzie's current employer, though, openly and enthusiastically offers health insurance to same-sex spouses.
"They want the best candidates for the job, no matter their sexual orientation," Jenn says. "And I think they feel the world changing and don't want to have to catch up."
For Naomi and Rachel Dvoretsky, receiving benefits from Rachel's work at Chevron wasn't just a matter of taking care of each other; they have infant children to guide through the world.
Hunt and Moore were the attorneys whom Rachel and Naomi consulted when they decided to start a family through in-vitro fertilization and wanted to be assured that the rights and privileges automatically bestowed on wedded fathers in a heterosexual marriage would apply to Rachel once their twin boy and girl, Dexter and Ever, were born.
The first barrier they faced was monetary. Between name changes done through the court system, second-parent adoption for Rachel and estate planning, Naomi estimates that she and Rachel racked up approximately $6,000 in fees closing legal loopholes. To the couple, it was worth it for Rachel to be able to have hospital visitation rights, the ability to inherit and other marriage benefits.
To get those court rulings with any kind of reliability, Hunt and Moore took Naomi and Rachel's case outside of Houston to San Antonio.
"San Antonio has more Democrat judges than any other metropolitan area in Texas, and Democrats typically rule more favorably for same-sex couples," says Hunt. San Antonio's open-docket system also allows more flexibility in picking judges who sympathize with your case, making it a surer bet for same-sex couples who fear being stonewalled by a conservative judge.
The greater toll can be emotional. The birth of a baby to a heterosexual couple is a day of hope. There's worry, but not many couples are thinking at that moment about what would happen to them if their spouse died or divorced them.
In Texas, where same-couples do not enjoy the same protection, they have to begin thinking of what-might-happens immediately. Once their children were born, Rachel and Naomi sat down with Hunt and Moore and went through a long list of possible tragedies that, if they occurred, might result in no legal standing for one or the other. If Naomi, the biological mother, died, they had to ensure that the children would stay with Rachel. If the couple divorced, would Rachel be able to see her son and daughter?
"Nobody else really has to plan a worst-case scenario like that," Naomi says. "The attorneys made us go over all of this. It definitely takes away from the magic and the joy of committing to someone you love and starting a family. It didn't stop us, of course."
Even if you don't have children of your own and aren't planning on having any, these inequalities can still loom. Shellye and Tina Marie are godmothers to two children of family friends.
"The explicit desire of their parents is that we parent them together if something were to happen to them," Shellye says. Such arrangements have already been made in their friends' wills, but how it would play out in real life should the unthinkable occur is dicey. They would be adopting two children to whom neither is biologically related, and even with last wills and testaments, it would be possible for other relatives of the children to challenge their parenthood.
Hunt has a term for these sorts of loose arrangements that don't have the full force of marriage: skim-milk marriages.
"We've got recognition, but it's piecemeal," Hunt says. "Being recognized as married before you have children is hard, but when you have children and they're not automatically recognized, it's even harder."
The good news for same-sex couples looking to adopt is that the process of doing so is now easier than ever, according to Hunt. Some of that is due to changes in attitudes regarding same-sex parents, and some of it is due to the nature of modern adoption itself.
Orphanages are on the wane, and the practice of completely closed adoption, where neither party knows the other's identity, is rare these days. In most cases of adoption, straight or gay, all the people involved know exactly with whom they are dealing. The truly hard part is the same for heterosexual or homosexual couples: simply finding a child to adopt in the first place.
Texas has no specific restrictions on same-sex adoptions, and while the Texas Courts of Appeals have not definitively ruled on the matter, the Third Court of Appeals in Austin did rule that lower courts that had granted adoptions to same-sex couples had not fundamentally erred in doing so when the case of Goodson v. Castellanos was brought before the court in 2007.
On the other hand, a supplemental birth certificate for adoptive couples cannot be issued to two men or two women, only to a man and a woman. Bills filed by state Representative Rafael Anchia of Dallas to rectify this have been consistently defeated in the Texas Legislature. The most recent defeat was in 2013.
International adoption is often closed to same-sex couples these days (Goodson v. Castellanos involved a child adopted from Kazakhstan in 2001), but to be fair, international adoption from many countries is closed to heterosexual couples as well. Tony and Veasna De Litta had hoped to adopt a child from Cambodia, since Veasna is Cambodian. That country doesn't allow international adoption at all.
The United States is the largest recipient of children adopted from abroad, making up nearly 50 percent of all adoptions, mostly from China, Ethiopia and Russia. However, international adoption rates have dropped from a peak of 22,884 per year in 2004 to just 8,668 in 2012 due to tighter restrictions in home countries worried about sending orphaned children abroad.
Earlier this year, Russia instituted a ban against homosexual couples from abroad who wanted to adopt children from that country. It's a moot point, really, since Russia passed a ban in 2013 on adoptions to the United States. China prohibits only single homosexual people from adopting. Ethiopia has no restrictions on same-sex couples, and adoption from that country is on the rise.
"Adoption remains difficult for same-sex couples," says Hunt. "But it's difficult for everyone, really. A lot of kids come through the foster system, for example, or there are agencies that are willing to work with you just like any other couple."
In going through second-parent adoption, Naomi and Rachel found at least one positive quirk to smile about.
"The legal process actually charges the same for twins as for single children," Naomi says. "We got two for the price of one!"
Jenn and Lizzie Wigle
In February, U.S. District Judge Orlando Garcia ruled in favor of two couples (Cleopatra De Leon and Nicole Dimetman of Austin and Vic Holmes and Mark Phariss of Plano) when they filed an injunction calling for our state's amendment banning same-sex marriage to be found unconstitutional. Garcia stayed lifting the ban while the state appeals the decision, but in a sense, the barrier between same-sex and heterosexual marriage has already been declared unfair in Texas.
"Texas's current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason," Garcia said in his opinion. Every single state in the country currently has such a case slowly working its way toward the Supreme Court.
"We're seeing such a rapid movement now, with cases finding 100 percent for same-sex couples," Hunt says. "In Texas, the powers that be aren't happy about it. Part of it is a fear of change. You see that in a lot of areas. You see it in gun control and immigration. It's not just same-sex marriage. There just is a segment of society that doesn't think it needs to change."
Jenn and Lizzie Wigle also see that segment of society, but they see it consistently in only one place: officialdom.
"I've been here a long time, and despite the laws, people are pretty awesome," Jenn says. "Maybe it's the age group. All those older people still fighting against us is the problem. The people I run into every day are good people."
There is still a significant backlash against movement toward more rights for LGBT people in Houston. In early July of this year, a coalition of faith-based groups calling themselves "No Unequal Rights" dropped off what they said was 50,000 signatures petitioning the city to put its recently passed Equal Rights Ordinance on the ballot in November rather than simply treating it as a measure to be passed by City Council.
The ordinance bans discrimination against people based on "sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy." Opposition to the ordinance stems primarily from fears that allowing transgender people to use the bathroom they are most comfortable using would open the door to sexual predators.
At least 17,269 valid signatures are required to place the issue on the ballot.
Thanks to DOMA, Jenn was finally able to apply for a green card to receive married permanent resident status in the country. Her status had previously been difficult to maintain and had made her ability to remain in America after graduation doubtful. After three years with the green card, she can apply for full citizenship.
People still frustrate Jenn when they see her and Lizzie holding hands and give her strange looks or assume a familial relationship. The most recent was a department store clerk who asked if they were sisters.
"No," Jenn said for the who-knows-how-many-th time. "We're married." The clerk simply stared at them in confusion, as if she couldn't understand what their marital status had to do with their being sisters.
Still, Jenn admits the state of her life in Texas has never been better. The federal government recognizes her marriage, as does her wife's employer. They have plans for children and a well-trod path toward that goal blazed by lawyers and parents. And according to Hunt, 100 percent of all legal challenges filed against same-sex marriage since the DOMA decision have resulting in rulings in favor of same-sex couples.
"I have a feeling that every other thing is going to start falling into place over the next couple of years," she says. "We'll get there soon. Overall, we love Houston and plan to continue our lives here. We no longer feel like a lesser version of our straight counterparts."
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