The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Going Medieval on Gays & Marriage

Try as I might, and no matter how much the folks at TNR think some people should shut up about marriage equality, I just can’t do it. I’ve spent too much time hearing the stories of what happens to our families in the absence of marriage equality. The latest story, of a gay couple separated by immigration laws, I learned about via Chris Crain. This is one of those cases that kind of undermines the oppositions favorite “there are other legal avenues” argument. Unless there’s a legal answer here that I don’t know about, other than a sham marriage.

TIM COCO, 46, runs a successful advertising agency in Haverhill. Six years ago he met Genesio Januario Oliveira, who was visiting Boston on vacation from his home in Brazil. The two fell in love and in 2005, under rights protected by the Massachusetts Constitution, they were married. Since then, they have lived happily and quietly in a Boston suburb with their dog, Q-Tip.

Except that two weeks ago Oliveira was forced to return to Brazil under orders from the US Board of Immigration Appeals, which denied his application for the asylum status he hoped would allow him to stay in the United States with his husband. The couple needed to pursue the asylum route because their same-sex marriage is not recognized by the federal government, and federal laws supersede states’ when it comes to immigration.

According to the 2000 US Census, some 35,000 same-sex couples who list themselves as “unmarried partners” similarly include one person who is a US citizen and one person who is not. They do not all try to follow the law as dutifully as Coco and Oliveira. Indeed, Oliveira is probably rare among immigrants for complying with the BIA’s June order to “voluntarily depart” within 60 days or risk deportation, fines, and a 10-year bar from applying for another US visa. When he arrived at the US consulate in Sao Paulo to certify he had left within the 60 days, his visa was canceled. “I guess you don’t get any points for playing by the rules,” says Tim.

Nope. Not if you’re gay. In fact. playing by the rules may mean paying a higher price if you’re gay. Not just in terms of subsidizing benefits for heterosexual couples that you don’t get for your family, or shelling out enough money to pay for 20 marriage licenses while getting less than 1% of the benefits and protections afforded marriage. Even playing by the alternate rules for same-sex couples, and registering as domestic partners, ends up having a price.

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According to Rex Wockner, same-sex couples registered as domestic partners in California will have to do a lot more paper work than married couples when the time comes for them to file their tax returns.

Gay couples registered under California’s domestic-partner law will be required to file their state income taxes as a married couple April 15.

There’s just one problem: The Franchise Tax Board hasn’t figured out how to make that work.

Since the federal government doesn’t recognize gay couples in any way — be they married or domestically partnered — such couples have to file their federal taxes singly, as unmarried.

Then turn around and file in California as married.

But how does one do that, given that the first number you put on your state income tax form is a dollar amount from your federal return?

“The confusion caused by both having a two-tiered system in California [marriage and registered partnership] and inequality at the federal level can be pretty sloppy,” said Brian Chase (photo), a Los Angeles-based senior staff attorney for Lambda Legal.

How confusing and sloppy? Well, how much trouble are we in with when something like this is considered a solution.

One fix under consideration is for registered California couples to do their federal income taxes three times — their two real returns, and then a third, fake return, as a married couple. They could then use a number from the fake return to begin their joint state return.

Barrett noted that the Franchise Tax Board prefers to call the proposed fake federal return a “pro forma return.”

But the agency hasn’t decided that’s the way to go. And, besides, it creates problems of its own.

Many Californians are required to attach a copy of their federal return to their state return. But what would you attach? Your two real federal returns, or your joint fake federal return? Or all three, perhaps?

I’ve got another solution. Itemize the 1,138 (as 2004) benefits and protections based on marital status. Assign a dollar value to them, if you can. Then let gay couples add to that amount the price they pay either for not having those benefits (i.e. having to purchase health insurance instead of being carried on a spouse’s health insurance, or the total amount of pensions and social security benefits that can’t be inherited) and deduct that from whatever taxes they owe.

It can’t be anymore absurd than the “solution” suggested in California. Or the absurdity of California Attorney General Jerry Brown, so newly married that he probably doesn’t have a tan-line on his ring finger yet, dismissing marriage as “insignificant.”

In June, the high court asked lawyers on both sides to answer four supplementary questions, a request widely read as an indication that the justices take the underlying issues very seriously. Those supplementary briefs were due Aug. 17, and a quick page count suggests that the LGBT advocates took these issues as seriously as the court.

Shannon Minter of the NCLR and his colleagues turned in 66 pages, or 18,546 words in response to the court. On the other side, Brown and his staff managed just over 2,000 words, little more than a few paragraphs on each question.

In an ironic twist, Brown himself got married during the course of this long litigation. Why?

“Well, first of all, she wanted a ring,” the former governor joked to the media a couple of years ago. No doubt the future Mrs. Brown wanted the “insignificant” “m” word as well.

Not only did the state’s legal team actually say with straight faces (pun intended) that there are no differences between domestic partnership under state law (our side noted 17 distinctions), but followed up with this in answer to the question, “What exactly does the right to marry encompass?”

The state, by contrast, wrote that although marriage was a “reciprocal and binding contractual commitment of mutual support,” it did not have to include any particular rights. In other words, the legislature would be free to revoke any and all statutory marriage rights if it had a good reason.

I’d like to see them try, if only to watch heterosexual couples in California trying to fill out their tax forms afterwards. But who am I kidding? People already think that letting gay couples have the same rights and protections means their own marriages will be instantly annulled.

Brown and his team can think what they want. My guess is that a legislative attempt to “revoke any and all” benefits and protections granted to heterosexual spouses would result in an entirely new legislature next election cycle, if not riots in the streets. Then we’d see how “insignificant” it really is.

Question three asked whether the terms “marriage” or “marry” have any constitutional significance, or whether perhaps the legislature could just rename the institution at will? That would be fine, said the state in a ludicrous one-paragraph answer.

“The state submits that the words ‘marry’ and ‘marriage’ have no essential significance under the California Constitution,” wrote Brown’s staff blithely.

If this is the best argument that the state can come up with, I wonder what the California Supreme Court is going to think when it compares the two sides’ answers.

The writer of the Gay.Com piece suggested that the state’s answers were the result of questions that seemed designed to force the state to “detail the assumptions behind its arguments in support of the status quo.” My guess is that their lack of detail comes from the reality that the state couldn’t argue to the court that the oceans would boil, the mountains would crumble, and civilization as we know it would come to a quick and gory end if Tim Coco and Januario Olivera were allowed to be together like any other married couple in the same situation, if same-sex couples filed joint tax returns, or if any other form of legal recognition is bestowed upon same-sex relationships.

Because it’s never been done before. Except that it has.

Civil unions between male couples existed around 600 years ago in medieval Europe, a historian now says.

Historical evidence, including legal documents and gravesites, can be interpreted as supporting the prevalence of homosexual relationships hundreds of years ago, said Allan Tulchin of Shippensburg University in Pennsylvania.

If accurate, the results indicate socially sanctioned same-sex unions are nothing new, nor were they taboo in the past.

“Western family structures have been much more varied than many people today seem to realize,” Tulchin writes in the September issue of the Journal of Modern History. “And Western legal systems have in the past made provisions for a variety of household structures.”

For example, he found legal contracts from late medieval France that referred to the term “affrèrement,” roughly translated as brotherment. Similar contracts existed elsewhere in Mediterranean Europe, Tulchin said.

Of course, it’s a reality that reaches far beyond just Western culture. As William Naphy wrote in the conclusion of Born to Be Gay: A History of Homosexuality.

…[H]omosexuality is clearly a very real characteristic of the human species taken as a whole. The presence of gay people is, in other words, a natural part of humanity — it is a normal feature of the human condition. Most societies throughout history have accepted this with varying degrees of toleration, albeit with similarly varying degree of disapproval. Most cultures have found a way to construct some sexual interaction between members of the same sex in a way that allows for some scope of sexual activity and real emotional bonding.

And to those for whom the grand sweep of history (all 6,000 years of it) comes to a dead stop at the stories they’ve been told about Sodom and Gomorrah, in a book that opens by describing, in a chapter entitled “Before Sodom and Gomorrah (Pre-1300 BCE),” rock paintings done by Africa’s San people thousands of years ago some of which depict same-sex activity between men, Naphy closes with this.

The reality, though, is that the vast majority of cultures have accepted that same-sex attraction is simply a facet of the human condition. Christianity, on the other hand, has chose to construct sex, sexual acts and sexuality in a manner wholly at odds with the pattern which has been adopted by almost all other human cultures throughout recorded history. In other words,in the context of human history and culture, it is the (Judeo) Christian response to homosexuality that is abnormal and unnatural.

Well, that and the way gay couples are apparently going to have to file their taxes in California. A twisted approach to human reality produces a twisted system which produces results that even more twisted. Getting around the reality of tens of thousands of years of human civilizations requires some serious contortions, after all.

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