From the Concord Monitor

Civil limits in Vermont

Gay couples learn that union isn't the same as marriage

by Sarah Liebowitz

Sunday, May 6, 2007

Every time Bobbi Cote-Whitacre puts off a doctor's visit or pays full price for prescription medicine, she's reminded of the limitations of civil unions.

Cote-Whitacre's health coverage ended when she retired to care for her ailing mother. Under Vermont law, Cote-Whitacre, 60, could have joined the health plan of her partner, Sandi Cote-Whitacre. But Sandi's employer -- the federal government -- doesn't recognize civil unions. So each month, Cote-Whitacre shells out nearly $175 for full-price prescription medicines. And she hopes that she'll escape illness or injury.

In the seven years since Vermont became the first state to create civil unions, couples have uncovered countless ways in which same-sex unions differ from heterosexual marriage. Because the federal government doesn't acknowledge civil unions, same-sex couples miss out on the federal benefits afforded heterosexual married couples. And because many states have conflicting laws, a couple's rights can evaporate when they cross the state line.

"Even though it's touted as being the same, it's not," said Mary Bouvier of Jeffersonville, Vt., who established a civil union in 2000 with her longtime partner, Moira Donovan. "Once we got our civil union, if anything happened to either one of us in this state, we were great. But if we were in another state, it didn't have to be recognized."

"In a lot of ways, it hasn't affected us as necessarily a benefit," Bouvier said.

New Hampshire is poised to become the fourth state to establish civil unions, extending to same-sex couples the same "rights, responsibilities and obligations" as heterosexual marriage. The House and Senate have both passed a bill establishing civil unions for same-sex couples, and Gov. John Lynch says he intends to sign it into law.

But as Vermont's experience lays plain, civil unions don't eliminate the legal disparities between heterosexual and same-sex couples. Although same-sex couples in New Hampshire will soon be able to access benefits at the state level, federal benefits -- including income tax benefits and Social Security survivor benefits -- will elude them.

Benefits out of reach

The 1996 Defense of Marriage Act, signed by President Clinton, marked the first time that the federal government enacted a law limiting marriage to heterosexual couples, said Tobias Barrington Wolff, a University of Pennsylvania Law School professor. Ever since, the federal benefits afforded heterosexual married couples have been out of reach for same-sex couples.

"Gay and lesbian couples -- whether they're married, enter into civil unions or a domestic partnership -- are discriminated against across the board on the federal level," Wolff said.

The lack of federal benefits affects couples in myriad ways. They complain about tax season: They file state returns together and federal returns separately. They worry about the future: If one member of a same-sex couple died, the other partner would be forced to pay estate taxes on any inherited property, Wolff said.

Vermont attorney Beth Robinson recently represented a woman who found herself in dire financial straits when her partner died in a car accident. After the couple established a civil union in Vermont, Robinson's client gave birth to their child and became a stay-at-home mother. Her partner was the family breadwinner, said Robinson, who represented three same-sex couples in the case that prompted that state's civil unions law.

The federal government eventually agreed to transfer Social Security survivor benefits to the couple's child. But because the government doesn't recognize same-sex partnerships, Robinson's client was barred from reaping survivor's benefits for herself. The loss of income proved too much of a burden, Robinson said. She was forced to sell her home.

Health benefits are also murky territory. Because Sandi Cote-Whitacre works for the federal government, she's prohibited from adding her partner to her health plan.

It's unclear whether all same-sex partners will be covered by federal health continuation benefits, such as COBRA, according to a 2002 report by the Vermont Civil Union Review Commission, which studied the law's implementation. Continuation benefits allow employees and their spouses and dependents to receive insurance by paying for it themselves after they lose employer-sponsored coverage.

And seven years after Vermont's law took effect, "it's still very much an open question as to whether employers in the state are going to be required to offer health benefits to partners in civil unions," said Gregory Johnson, a professor at Vermont Law School.

Even when employers extend health benefits to same-sex couples, civil unions differ from heterosexual marriage.

After establishing their union, Stan Baker joined Peter Harrigan's health plan. "We did that for a couple of months, and then I realized that we were being taxed on that," said Baker, who lives with Harrigan in Shelburne, Vt.

Baker reverted to receiving benefits through his own employer. For heterosexual married couples, the federal government generally excludes the value of employer-provided health coverage from an employee's income.

"There are all these funny places that come around to bite you," Baker said.

Legal papers in the car

When the Cote-Whitacres leave the state, they do so armed with decades-old legal documents, which they drafted years before Vermont passed its civil unions law. If one were to fall ill or suffer an injury outside of Vermont, she would want the other to make medical decisions on her behalf. Most states don't recognize their civil union, so they need legal documents that spell out how their medical decisions should be made.

"We used to say, once we drive over the bridge from White River Junction to West Lebanon, all of our rights cease," Harrigan said. "It's sort of daunting to think that you'd have to carry a set of legal papers with you in your car."

In addition to defining marriage as between one man and one woman, the Defense of Marriage Act let states deny legal recognition to same-sex couples who married in another state. The vast majority of states -- 41 -- now bar same-sex marriage or the recognition of same-sex marriages established elsewhere, according to the National Conference of State Legislatures. More than half of all states define marriage as a heterosexual relationship in their constitutions.

For some couples, differences in state laws are an anxiety-inducing inconvenience.

Robinson tells of a friend who was having a child with her partner. When the partner developed preeclampsia, a disorder that can occur during pregnancy, the logical place for the couple to go was Dartmouth-Hitchcock Medical Center, just over the border from their Springfield, Vt., home. But "they were so scared at the thought that the civil union might not be recognized in New Hampshire" that they drove more than an hour to a Vermont hospital, Robinson said.

Discrepancies in state law also prompted one highly publicized dispute involving a lesbian couple who established a civil union in Vermont, had a child and then split up.

The child's biological mother then moved to Virginia and asked that her former partner be denied parental rights. Years of legal battles in Virginia and Vermont ensued. Now the case is before a Vermont court. Last month, the U.S. Supreme Court declined to hear an appeal by the child's biological mother, who disagreed with earlier Vermont court rulings.

As more couples establish civil unions, more legal questions will emerge, attorneys said. In Vermont alone, more than 8,000 couples have joined in civil unions since the law took effect in October 2000. The vast majority of those couples -- upwards of three-quarters -- don't live in Vermont. Nearly 140 of those unions have since been dissolved, according to the state.

"So far we haven't seen a rush of cases like that," Johnson said of the Virginia case. But "I think it's emblematic of cases that we're soon to see."