On the west steps of the state Capitol, Gov. Kulongoski called it a "truly historic day in Oregon."
With the passage of HB 2007, Oregon has now joined a handful of states offering gay people virtually all the rights and privileges available to married couples under state law. Massachusetts actually calls it marriage (it means gays can get married by a clergy member or a judge). Other states—Vermont, Connecticut, New Hampshire and New Jersey—call it a civil union. In Oregon (and California) it is called domestic partnership, but it means pretty much the same thing. (As WW readers know, this writer has opined that Oregon's decision to change the wording to "domestic partnership" instead of "civil union" wasn't exactly what he'd hoped for; see WW's Rogue of the Week, April 17, 2007.)
The new law means that starting next year, Oregon gays can go to a county clerk's office, pay $25, and register for a domestic partnership. At that time, gays can lawfully make healthcare decisions for their partners. They can buy joint health, home and automobile insurance policies. They can file joint state tax returns. When things get rough, registered gays will also have to pay court-ordered child or spousal support if their partnership is dissolved. At death, the surviving member of a domestic partnership will have the right to make the decision to donate their loved one's body organs, or to be buried in the same cemetery plot.
"How sweet it is," said former Gov. Barbara Roberts at Wednesday's bill signing. "I've never been so proud in my 70 years to be an Oregonian as I am today." Roberts was surrounded by longtime advocates like gay real-estate kingpin Terry Bean, who was one of the first to start the ball rolling for same-sex rights in this state some 34 years ago.
This week, the backlash began.
On Monday, three Southern Oregon men, including Jack Brown, chairman of the Grants Pass-based Constitution Party of Oregon, filed with the Oregon secretary of state to refer both new laws to the November 2008 ballot. They plan to send out troops of pen-pushers to gather the more than 55,000 signatures they'll need over the summer. If they succeed in gathering the signatures, the effective date of the laws will be delayed from Jan. 1, 2007, until the Nov. 4, 2008, election.
But as conservatives break out the petitions condemning the new laws as two more signs of the moral decay of our state, understand this: The passage of these two bills does not mean equality for gays. When House Speaker Jeff Merkley (D-Portland) proclaimed on the steps of the Capitol that this is "a journey to equality and fairness in our state," the emphasis should have been on "journey."
Gays are still second class citizens.
Certainly the newness of the domestic-partnership law will necessitate educating people—in the emergency room, school, office, funeral home—of the new rights for domestic partners.
But more important, there are numerous privileges that married couples have under federal law that are still not available to gays in Oregon—or anywhere else. It's a gulf that was highlighted when President Bill Clinton signed the Defense of Marriage Act into law in 1996, codifying a definition of marriage specifically written to exclude gay couples.
Want to start an argument no one can win? Try comparing the rights of gays to the history of the rights of African Americans in this country. Truth is, even after the passage of the two bills last week, gays in Oregon today are pretty much where black people were in the mid-20th century.
William Funk, a professor of constitutional law at Lewis & Clark College, says black people had it better in the mid-1950s (after the landmark 1954 Supreme Court civil-rights decision in Brown v. Board of Education) than gay people do today, more than half a century later.
"In essence, that was the declaration that African Americans have all the rights that white people have—all the rights," Funk says. "The United States as a nation, and for that matter the people and the states, haven't come to the realization or the acceptance of the notion that gays and heterosexuals are the same—and should be treated the same."
Here are just some of the ways in which gays are still treated unequally:
- A heterosexual couple in which one partner works, and the other doesn't, can file a joint tax return at considerable savings. For example, the federal income tax for a heterosexual household with an adjusted gross income of $50,000 would be $4,200 with a joint return. But a gay couple in the exact same situation is not allowed, under current law, to file a joint tax return. Their taxes, assuming the same adjusted gross income, would be $7,000. (Gay couples will be able to file only joint state tax returns under the new Oregon laws.)
This particularly grates on Jennie Bricker, a lawyer with Portland's Stoel Rives law firm. The 44-year-old has been with partner Robin Gray for 20 yearsand fully intends to register for a domestic partnership.
"We have two kids," says Bricker. "And [Gray] has stayed at home with them for the last 10 years. In the eyes of the tax law, we'd benefit the most from a joint filing. But we can't file jointly. We pay a lot more for being queer. I'm being penalized because I'm queer. It's a queer tax."
- Married spouses don't have to pay anything to estate taxes after their partner dies. The assets of the deceased transfer tax-free to the surviving spouse. Not so if you are gay and have a domestic partnership. That's why Suze Orman, the TV financial guru who came out of the closet in a New York Times Magazine article in February, was so upset about the fact her partner will lose a huge chunk of her estate after she dies. "It's killing me that upon my death [my partner] is going to lose 50 percent of everything I have to estate taxes," said Orman, whose estimated net worth is $25 million.
If you are a married man and you die, your wife is qualified to receive your full Social Security benefits. If you are gay and die, however, the registered domestic partner you've lived with for, say, 30 years gets squat.
"This is really worrisome," says Bricker. "I have to purchase more life insurance because Robin can't have this benefit. We were together before I went to law school. She encouraged me to go to law school. She took up all the slack when I was working during the day and going to law school at night. She's been incredibly supportive in the way any spouse would. She's a great parent, she's making this huge investment, and she's not having her own income, so she's not getting her own Social Security. From a federal law perspective, she's in a terrible situation, and there's not much you can do about it, except purchase more life insurance for me."
- "Just by being the spouse of a U.S. citizen, someone can become a U.S. citizen," says Thalia Zepatos, director of organizing and training for the National Gay and Lesbian Task Force. "One of the main purposes of immigration law is to make our families whole. The refusal to treat same-sex families equally under our current immigration policy means thousand of bi-national families are forced to live separate or live in exile."
This could be remedied by the Uniting Families Act, introduced May 8 by U.S. Rep. Jerrold Nadler (D-New York) and Sen. Patrick Leahy (D-Vermont). This bill would allow citizens and legal residents in same-sex relationships to sponsor their partners for immigration purposes.
Until then, one local gay couple, who declined to give their names, must face the fact that one of them could be deported at any time.
It's not about love for them. It's about fear.
"If the authorities were to find out that he was here illegally, he would have to go back to his country," says "Zach" about his partner, "Keith," who has overstayed his visa by several years.
"It's always in the back of our mind," says Zach. "Especially when it feels like the immigration service is cracking down after 9/11."
- "Every morning when I wake up, I have a feeling: When is it going to happen to me?" says Keith. "When are they going to discover I am here illegally?"
"It's a big pressure on our relationship," says Zach. "We can't travel out of this country, even to visit Keith's family. We can't go through the process of buying a home together. And, as a matter of fact, we will never be able to apply for domestic partnership."
Even those protections afforded to a same-sex couple through a domestic partnership are available only within the borders of the state of Oregon, except in Great Britain, which recognizes other countries' domestic partnerships. "A same-sex couple traveling to another state or country will have none of the protections granted by Oregon's domestic partnership," says Bryan Boyd, a spokesman for Basic Rights Oregon. "They would be strangers in the eye of the law."
So let's say a gay couple went to the farmers market in Vancouver, Wash.—which is less than five minutes from the Oregon border—and one of them started choking on an elephant ear and had to go to the hospital. Since their domestic partnership in Oregon isn't recognized in Washington, the healthy partner would have no rights to hospital visitation, end-of-life decisions or even to move the partner to a hospital in Oregon, where their legal relationship is recognized.
- Gay men still can't give blood. The U.S. Food and Drug Administration passed a rule in the mid-1980s stating that no one can give blood who responds "yes" that they have had sex with men who have had sex with other men. The reason for this policy is concern about HIV. But the policy is absurd, if not downright homophobic, because all blood is tested for HIV. So if blood is tested for HIV, why automatically reject donations by gays?
There is a local irony to this issue. Thomas Bruner was recently named CEO of the Oregon Trail Chapter of the American Red Cross. Bruner is gay and once was the executive director for Cascade AIDS Project. Oddly enough, he can't donate blood to the very organization that he now works for. "The policy as it exists is outdated, it's discriminatory," says Bruner, who pledges to change it.
Given the limitations of Oregon's new Domestic Partnership Bill, one could lift an eyebrow at Gov. Kulongoski's comment that "our Oregon is a better Oregon" today as it "moves from exclusion to inclusion."
Zepatos, the National Gay and Lesbian Task Force organizer, says the new Oregon laws are laudable but bring to mind the dreaded term "separate but equal." "For me, it all comes down to this: Do straight people believe that love between a same-sex couple can be equal to the love that they feel for their own spouse?" says Zepatos, who fought multiple anti-gay ballot measures while working in Oregon. "Why create a whole separate category of rights for one group of people? It doesn't make sense. But it refers to where we are as a society in terms of accepting people as equals."
That said, the development last week in Oregon was a historic one.
"The classic pattern of civil-rights advance in America is patchwork," says Evan Wolfson, a civil-rights attorney and the founder and executive director of Freedom to Marry, a national nonprofit organization that's working toward full marriage equality. "We want marriage. And we are now in that predictable, classic, historical period of patchwork, in which state by state, conversation by conversation, demographic by demographic, generation by generation, we are moving toward marriage equality. When Oregon takes the step towards partnership, joining New Hampshire with civil unions, Washington with a similar first step to partnership bill, and other indications of momentum, all of that creates a context in which the next state can get to marriage. That creates waves and opportunities for other states. And in this sort of back-and-forth contribution to one another, with our eye on the prize, over a patchwork period—that's how we're going to get there."
Same-Sex Relationship Milestones
Oct. 1, 1989: Denmark recognizes the first legal modern same-sex civil union, called a "registered partnership."
June 11, 1992: The District of Columbia authorizes same-sex domestic partnerships, but congressional prohibitions prevent the law from going into effect until 2002.
July 8, 1997: Hawaii's reciprocal-beneficiaries law allows any two adults access to limited spousal benefits on the state level.
April 25, 2000: Vermont Gov. Howard Dean signs HB 847, allowing same-sex civil unions with the same benefits and responsibilities under state law as marriage.
Dec. 21, 2000: Queen Beatrix of the Netherlands signs into law the first-ever bill extending full marriage rights to same-sex couples.
June 1, 2003: Belgium begins granting full marriage rights to same-sex couples.
June 10, 2003: The Ontario Court of Appeal rules that the province must allow same-sex couples to marry.
July 14, 2003: Croatia grants limited spousal rights to same-sex couples.
Nov. 18, 2003: The Massachusetts Supreme Judicial Court rules in Goodridge v. Department of Public Health that the state may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry."
Feb. 12, 2004: San Francisco Mayor Gavin Newsom issues the first same-sex marriage certificates in the U.S. They are later nullified by the state Supreme Court.
March 3, 2004: In Oregon, Multnomah County Chairwoman Diane Linn orders county rules changed and begins granting marriage licenses to same-sex couples. Benton County quickly follows suit.
March 11, 2004: San Francisco is ordered by the California Supreme Court to cease issuing marriage licenses to same-sex couples.
March 24, 2004: Benton County stops issuing marriage licenses to all couples until the state weighs in.
April 20, 2004: Circuit Court Judge Frank Bearden orders a halt to same-sex marriages in Multnomah County, but orders the state to recognize the 3,000 marriages already performed.
May 17, 2004: The first legal same-sex marriages are performed in Massachusetts.
July 14, 2004: The U.S. Senate blocks a constitutional amendment to prevent same-sex couples from marrying.
July 30, 2004: Maine's domestic partnership law goes into effect.
Nov. 3, 2004: Constitutional amendments prohibiting same-sex marriage pass in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon and Utah.
Nov. 17, 2004: The United Kingdom allows same-sex couples to obtain civil partnerships.
Dec. 8, 2004: New Zealand passes civil-union legislation.
Jan. 1, 2005: The California Domestic Partner Rights and Responsibilities Act of 2003 goes into effect.
April 20, 2005: Connecticut legalizes same-sex civil unions.
May 12, 2005: A federal judge in Omaha rules that Nebraska's ban on same-sex marriages, civil unions and domestic partnerships violates the 14th Amendment.
July 3, 2005: Spain extends full marriage rights to same-sex couples.
July 5, 2005: Uganda joins Oregon with a constitutional ban on same-sex marriage.
July 19, 2005: Canada extends full marriage rights to same-sex couples.
Nov. 8, 2005: Texas passes a constitutional ban on same-sex marriage.
March 15, 2006: The Czech Republic legalizes same-sex civil unions.
July 23, 2006: Slovenia legalizes same-sex civil unions.
Oct. 25, 2006: The New Jersey Supreme Court rules unanimously in favor of marriage equality.
Nov. 9, 2006: Mexico City recognizes same-sex civil unions.
Nov. 28, 2006: South Africa extends full marriage equality to same-sex couples.
Jan. 1, 2007: Switzerland recognizes same-sex civil unions.
April 21, 2007: Washington state legalizes domestic partnerships.
April 26, 2007: New Hampshire legalizes same-sex civil unions.
May 3, 2007: Oregon's HB 2007 passes the Senate, legalizing domestic partnerships in Oregon.
—Compiled by Ben Waterhouse
Oregon and 25 other states have constitutional amendments restricting marriage to one man and woman.
Only five states and the District of Columbia do not have some form of law restricting marriage to one man and one woman. Of those, New Jersey and New Mexico have proposed constitutional amendments.
The National Gay and Lesbian Task Force calculates that after this year's legislative sessions, more than half of the U.S. will live in a place that offers protection from discrimination based on sexual orientation.
For a list of the top 100 rights and responsibilities accorded to couples who register for a domestic partnership, visit basicrights.org.
WW's Byron Beck and his partner, Juan Martinez, plan to sign up for a domestic partnership with the Multnomah County Clerk.