Previous Articles - 2002

1. Introducing the Section

June 2002

Hello, Apollo Men. My name is Stephen and I'm a licensed attorney in Texas and New Jersey. Although I have a general practice, I have a particular interest in the legal issues that affect unmarried couples, gays, bisexuals and lesbians, and seniors. I am an "out" gay man, having been so for over 25 years, yet I understand the reasons and fears - some real, some imagined - that cause many Apollo Men to keep their sexual orientation quiet or hidden. There is real discrimination in the world and real hatred towards those of us who dare to love other men and in my 48 years, I have been affected by both of these things. However, not every setback in my (or your) life has been the result of homophobia or, for that matter, ageism, anti-Semitism, racism, or whatever. More importantly, not every wrong has a remedy under the law and sometimes the law (and life) can be so unfair.

Which brings me back to this new section of Apollo Men. I approached Ron in early May with the idea of doing a column similar to the Ask the Doctor section. Ron immediately liked the idea and after a few emails back and forth, the general concept of writing a combination of a legal information article and a question-and-answer column emerged. In many cases, the article will be suggested by a question or questions I receive. In other cases, I will write about issues that I believe are important, such as wills and estate planning for gay couples. These articles will be updated monthly and I'll try to keep the "legalese" to a minimum.

I'll also periodically try to answer selected legal questions submitted to me by Apollo Men but, just like the Doc, I need to set a few boundaries on these questions.

  • First, the choice of questions to answer will be, ultimately, up to me. I can't possibly answer every question or I won't have time for a life and frankly, some questions simply don't have an answer.
  • Second, try to keep questions on target. After all, this is a section for Apollo Men not "how to beat a traffic ticket." Questions about the civil rights of gay men are appropriate, as are questions about legal planning for Apollo Men and couples, etc. The basic rule of thumb should be, "would I feel comfortable asking a (non-gay) lawyer in my town?" If the answer to that is "no" then ask me. And the answer to the question, "How can I keep from getting arrested for drunk driving when I leave a gay bar?" is don't drink and drive!
  • Third, I won't second-guess your attorney if you have one. Everyone hates when a lawyer says, "it depends," but legal answers really do depend on specific facts and specific laws. Your lawyer knows your local law and, presumably, all of the facts of your case. I only know what you tell me in your question.
  • Fourth, be patient. I know your question is important but if I don't answer your question right away, it may be because it's regarding something that I have to research a bit or I may decide that it merits an article. I may also have answered a similar question previously so be sure to look at the Previous and Frequently Asked Questions. Also, see above about choosing questions.
  • Fifth, I usually can't answer questions outside of this section. Like the Doc, I'm a licensed professional and I have rules that govern my practice of law. See Question 0.1, above.
  • Sixth, questions about me, what I look like, whether I'm single are all answered on the "About the Author" page.
  • Finally, no lawyer jokes. They don't offend me but they clog the bandwidth. Besides, I've probably heard them.

This will be a new experience for me and for Apollo Network so I expect this section may change over time. But I look forward to your questions and I hope you'll look forward to my answers. Gentlemen, start your questions...

Tip of the Month:

Most state and local bar associations, as well as many community service organizations have volunteer lawyers who will provide pro bono legal assistance to people who would not otherwise be able to afford services. These dedicated folks provide low cost or no cost legal services, such as simple wills, guardianships, help with social security problems, divorces, etc. Furthermore, most courts will waive filing and other fees if you can show the court that you are financially unable to pay.

2. Essential Estate Planning - Part 1 of 2

July 2002

Earlier, I was asked how a gay man can legally protect his partner. The answer is through effective estate planning, and it is important planning even for single Apollo men. It is never pleasant thinking about our own incapacity and death and planning for it seems morbid. But if you don't make these plans, in writing, then you need to realize that what happens if you become legally incapacitated or die is determined by state law.

There are three things that determine what happens when you become disabled or die: (1) where you reside when this happens; (2) where your property is located; and (3) the documents you have executed prior to your incapacity or death. When you don't make these decisions, then in most states a judge or someone else in authority will have to make these decisions according to state law. Let's look first at capacity and incapacity.

Capacity generally refers to your ability to make decisions about your self (your person) and your property (your estate). In order to be considered competent to make legal decisions, the individual must be of minimum age (usually 18) and be of "sound mind," that is, to have mental capacity. Capacity is a prerequisite for making a will or creating a trust. Incapacity is a prerequisite for someone else to make decisions about your health or finances. Unlike death, you can recover capacity. For example, when you come out of a coma or, even, when you wake up from a general anesthetic, you regain capacity. If you are schizophrenic but are placed on medications, a doctor can later judge you competent - so long as you stay on your meds.

Many of the documents I recommend in estate planning require witnesses. These witnesses are not just there to attest that they saw the documents being signed, they are also there to testify to the competency or capacity of the person signing the document. What happens if the witnesses can't be found? Well, most of these documents use what's called a self-proving affidavit which is signed by a notary who is also present when the witnesses sign their statements. In most states, this self-proving affidavit means that a probate court will not have to call in the witnesses if there is a dispute.

Whether partnered or not, I recommend that all of my clients have at least the following documents:

  • Physician's Directive (a Living Will)
  • Medical Power of Attorney
  • Do Not Resuscitate (if desired)
  • Power of Attorney for Financial Matters (sometimes called a "Durable Power")
  • Declaration of Guardianship for Self and Estate
  • Disposition of Pets
Physicians Directive

This document, sometimes called a living will, is a directive to your physician that states whether or not the physician should take extraordinary measures to keep you alive (such as maintaining you on life support or intravenous feeding) or whether you should be kept comfortable and allowed to die peacefully, should you have a terminal condition. Be sure to discuss this with your doctor and give a copy to your primary care physician.

In Texas, if a doctor cannot follow your directive for moral or other reasons, he or she is required to assign your care to another physician. Also, the document must be signed in the presence of two witnesses, only one of whom can be a relative, heir or other interested party.

Medical Power of Attorney

In states without domestic partner laws, only your legal relatives can make medical care decisions for you if you are unable to do so for yourself. This document lets you assign that decision-making process to someone you trust, such as your partner or a friend, rather than someone who may not make decisions about your medical care that are in accordance with your wishes. This document does not come into effect until you are legally incompetent and, even then, if you are able to express your wishes, they must be followed. You can revoke this at any time, by writing "revoked" or something similar on the original, destroying the original, or orally. I always include a specific statement revoking any prior medical power when I draft a new one for a client.

You should provide a copy of this to your primary care physician as well as give copies to your designated agent and all alternatives. I also list in the document where the original and all copies are located. As in the physician's directive, this document must also be witnessed.

Do Not Resuscitate

If you don't want to be resuscitated, you should have this agreement. Otherwise, emergency medical technicians will try to bring you back to life.

Power of Attorney for Financial Matters

In contrast to the Medical Power of Attorney, this document lets you designate someone who will manage some or all of your financial affairs if you should become unable to do so yourself. It does not allow this person - your "agent" - to manage your medical affairs which is why you need both kinds. There are two kinds - general powers which cover all non-medical powers and specific, or "special" powers of attorney, which cover only those things that are designated in the document. Most people will want to use the general powers.

Powers of attorney can come into effect when they are signed, or they can be "springing" powers, which mean they lie dormant until some specific event described in the document occurs, such as incapacity. They remain in effect until you say they are revoked, either in language in the document, such as a specific date or when capacity is regained, or by a specific revocation, as in the medical powers. They also expire when you expire. Many people use a standard power, called a durable power, which remains in effect indefinitely. Most states have statutory form for this kind of power.

This document can be misused - after all, you're giving your agent permission to do things like sell your property, write checks, etc., - so you don't want to give them to someone you wouldn't trust with your affairs and you may want to use springing powers if you don't completely trust the person you designate as your agent.

This document must be signed when you are competent to do so and you should provide copies to the person you designate as your agent, as well as anyone named as an alternate. This document must notarized and may need to be witnessed.

Declaration of Guardianship for Self and Estate

When a person becomes unable to care for them self and/or their estate, another person can be named as guardian. Natural or adoptive custodial parents are automatically the guardians of their minor children. However, guardianship ceases when a person is no longer a minor (usually when they are 18) and guardianship over adults involves a complicated legal proceeding that is meant to ensure that the adult "ward" truly requires a guardian and the guardian is really capable of taking care of that person. A person can have a guardian over their person and a separate (or the same) guardian over the estate.

When a permanent guardian is appointed, it cancels out the medical and financial powers of attorney you (hopefully) signed. Furthermore, unless you designate someone else, your guardian will most likely be one of your relatives, such as your legal spouse, your adult child, a parent, or a sibling. Most importantly for gay couples, this does NOT include your gay partner or friend. Therefore, I recommend that you execute a declaration of guardianship.

In this document, you first declare who you want to be your personal guardian and who should manage your estate. They can be the same person but they will be declared separately, and you should propose several alternatives, in case your first choice is incapable or unwilling to be appointed. A declaration should be thought of as a strong recommendation to the judge who decides the matter. Most states restrict who can be a guardian so make sure your choices are not legally incapable or the judge won't appoint them.

Where this document is most helpful, however, is it allows you to declare persons who may NOT be your guardian. So if you don't want your anti-gay Aunt Alma to be your guardian, you place disqualification statement in this document and, in most states, the judge cannot appoint her.

In Texas, this document does require two witnesses, a notary and includes a self-proving affidavit. Even if witnesses are not a requirement in your state, I would be sure to do this anyway.

Disposition of Pets

For many of us, our pets are like children - so why treat them with any less love because you are unable to care for them. This document simply states who should care for your pets should something happen to you. I recommend this separately from a will because it should come into effect as soon as you become incapacitated or die, thereby making sure someone is looking after them immediately. Be sure to put information about your preferred veterinarian in their and any special instructions. This document should give someone permission to enter your home and remove your pets. Keep the original with your original powers of attorney for financial matters and give copies to the same people who have copies of that document.

Most US states now follow a "model probate code" and so my comments are based on this code and my knowledge of Texas law. However, there are enough differences between the states that you need to discuss these things with a knowledgeable attorney licensed in your state to make sure these documents are valid where you live.

Next month, I'll discuss wills and trusts. Until then, keep the questions coming.

Tip of the Month:

If you get entrapped in a men's room, park or similar place, you will be pressured to plead guilty, often to a reduced charge. Although it is tempting to do so to avoid the publicity of a trial, you need to talk to an attorney first, particularly if you have a prior arrest on the same or similar charge. Some of these charges require you to register as a sex offender if you have two or more arrests and this information is now being put on the Internet and published in local newspapers. You may even be required to register if you move to another state. So, when the prosecutor starts talking plea bargain, be sure you know if this is one of the consequences. If it is, you may be better off going to trial.

3. Essential Estate Planning - Part 2 of 2

August 2002

First, some news. I've accepted a job with a law firm in New Jersey so my partner and I will be moving there in September. Be patient if you've submitted questions - I'll get to them as fast as possible. Now, on with the show.

In Part 1, I covered many of the documents that you should have, particularly if you are partnered. In this month's column, I will cover one more that I think is important to have, and I'll discuss joint ownership and other non-probate ways of leaving an estate to someone. Because we're so busy this month getting ready to sell the house, find another one and start the new job, I don't have a lot of extra time so in Part III, I'll cover wills and trusts.

Hospital Visitation Declaration

Even though you and your partner have named each other in your medical power of attorney, you should have this document, which declares who may visit you and who can make decisions about who visits you, should you be in the hospital. Most hospitals won't need this, but sometimes they can make it difficult for you to visit your partner, particularly if there are legally recognized family members who object to your presence. There isn't any set format for this document - I simply put in there that the declarant designates some individual as the person who is given first preference for visitation in a hospital or other medical facility unless the declarant himself tells the staff otherwise. If you have particularly obnoxious relatives, you could also put a statement in there that person or persons should be specifically excluded from visitation unless you say otherwise.

I have this document witnessed and, in Texas, I use a self-proving affidavit which has the legal effect of not requiring the appearance by the witnesses.

Probate Laws and Probating Wills

When someone dies, their estate is disposed of in a special process called probate. If the deceased has a will, the probate judge will generally follow the wishes expressed in that will. If the person dies without a will (that is, they die intestate) the judge will have to follow the state's laws regarding determination of heirship and disposition of the person's property. With the exception of Vermont, which covers this area in its civil union law, gay partners are not considered heirs unless specifically designated in a will.

Even if you have a will, it can be contested in a probate proceeding. These will contests can be real messy, particularly if the decedent's family is hostile to the gay relationship. These days, most judges will not overturn a will simply because a person left everything to his gay partner but you don't want to give someone a reason to overturn or modify a will by not having a well-written will.

Joint Tenancy and Other Non-Probate Dispositions

One way to avoid having property disposed of via the probate proceeding is for couples to own property jointly. Any property can be held jointly - including cars, houses, boats, etc. However the requirements are slightly different depending upon the type of property. The more property that is passed this way, the less that passes through a will. There may also be some tax savings since you would at least avoid estate taxes on this property. Be sure to talk to a tax advisor if you have a lot of property. Joint ownership is often called joint tenancy, particularly when it involves real estate, and it is not restricted to two people - there can be multiple joint tenants.

Simply owning property jointly is not enough, however, to avoid probate. If a gay couple jointly own a house, for instance, when one person dies, the deceased's undivided share of the house (usually half) becomes part of that person's estate unless the property is owned jointly with a right of survivorship. That last phrase is key and must be used in all jointly owned property situations unless you intend for the share to go to someone based on your will.

Personal property, such as art work, furniture, or anything else of that nature, can be secured by use of a joint ownership agreement. This is simply a document that describes the property and declares that it is held "jointly with a right of survivorship." Although this should be witnessed, the document doesn't need to be filed anywhere and can be put in any safe location, such as a safe deposition box or fireproof safe, along with other important papers. For cars, boats and other property that require a certificate of title, you can list both names on the title, although there is no requirement to do so.

For real estate that is jointly owned, such as a house or other building, a phrase like "to be held in joint tenancy with right of survivorship" must appear in the deed, so be sure to check this even if you think it's there. If it isn't, a real estate attorney can file a new deed for you with the modification - it's considered a minor change. Alternatively, you can have a deed held in escrow transferring the undivided share to the living partner, subject to a joint ownership agreement. The escrow company would hold the deed until one partner died and then transfer that person's share to the remaining partner. I like the first method better - it's cleaner and doesn't require the remaining partner to do anything after the other partner's death.

Other types of things that are non-probate dispositions are naming someone as a beneficiary. For example, if you take out an insurance policy and name your partner (or anyone else) as beneficiary of the policy, the insurance company pays the beneficiary and not the deceased's estate.

If you have a joint bank account or other shared account, you will often find that the bank or brokerage firm will set this up as jointly owned "with right of survivorship." But be sure to check. For non-joint accounts, such as your personal checking account, you can make these "payable on death" (or POD) to a particular person. In a POD account, the person you designate is issued a check for the remaining balance in the account upon showing proof of the account holder's death. Just remember a POD account is closed at this time and, unless the account holder has given the designated person signing authority, they can't issue checks.

Finally, although you may have financial power of attorney over a person or may be a guardian of a person's estate, these rights cease when that person dies. This means you no longer have the right to handle financial or other matters for that person and bank accounts you may have used are no longer available to you.

Rights of Contribution

Joint tenants own undivided shares of the jointly held property unless they have a written agreement that states otherwise. Without such an agreement, for example, one joint owner could rent the property to someone else, without the permission of the other owner and collect rent. It also means that partners who contribute unequal shares may feel a little "cheated" by the other partner if they have contributed more than one-half of the cost of the property. Fortunately, the laws associated with joint tenancy provide a "right of contribution" under which the joint tenants can even things out. The following example should explain this concept in the most common scenario for us, where two gay partners buy a house together.

Let's say the two partners (we'll call them Hans and Franz after the bodybuilders from Saturday Night Live) buy an $80,000 house for $50,000 down and a mortgage of $30,000. Hans, who has a few more personal training clients, puts down $45,000 and pays $650 monthly. Franz, who's not doing as well but is a great carpenter, puts down $15,000 and pays $450 monthly toward the mortgage. I'll ignore closing costs here.

Franz adds on a room and does some other improvements and Hans buys the building materials. Two years later, they sell the house and, after paying off the mortgage and costs, they net $80,000. If they had both contributed equally, they each would have equity of $40,000. However, Hans put down $45,000 so he should at least get the additional $5,000 from Franz's share. In addition, Hans was paying almost 60% of the mortgage and Franz was only paying 40%. To be fair, Hans should be getting slightly more of the increase in value of the house than Franz. Since the total equity in the house increased in value by $20,000 (80,000 - down payments of 45,000 and 15,000), Hans' share of this would be $12,000 and Franz's would be $8,000. Thus, the fair split of the equity would be $57,000 for Hans (45,000 plus 12,000) and $23,000 for Franz (his 15,000 down payment plus 8,000).

Now that doesn't reflect non-cash, or "sweat" equity. Franz personally added on a new wing to the house that added much of the value of the house. Even if Hans paid for the building materials, what is the value of Franz's labor? Just because two people have different incomes and are therefore unable to contribute an equal financial share doesn't mean that these things don't equal out in other ways. In other cases, a partner with more money may decide that his contribution of a larger share is a "gift" to his partner and that equals the shares.

When two partner buy and hold property jointly, they need to agree upon how they will split the equity and what right of contribution each has. If the shares are equal, you don't have to do anything but if they are not, then decide how you want to split these things and have a local attorney draw up a joint tenancy agreement that details this agreement. That way, each of you is protected from debts or judgments that the other partner may incur and, if you break up, it's one less thing to fight over.

Debts, Liens and Joint Tenancy

In all cases, the surviving partner takes the deceased partner's share in the jointly held property subject to any liens on the property (such as IRS liens, judgement liens or mortgages). If the deceased partner had unsecured debt, such as credit card debt, it's possible that the creditor can bring a claim against the deceased's half of the jointly held property. However, you may be able to persuade them to go to the probate court, where the judge will settle the debts out of the remainder of the estate. One exception, though, is federal guaranteed student loan debt - this debt is erased when you die.

However, a creditor doesn't have to wait for a joint tenant to die before attempting to collect a debt. If you default on a non-secured debt, for example, the debtor can eventually get a judgment against your property, and this includes your share of any jointly-held property. That's why you need to get a written agreement on any right of contribution you may have because otherwise, your share (and your partner's share) of the jointly held property are equal and a debt-free partner could end up in a bankruptcy proceeding because of his partner's failure to pay debts.

One thing I suggest partners do is write down their agreement regarding joint ownership. The statement on the deed is sufficient to pass ownership of one partner's share to the other, but this should be subject to any right of contribution, just in case a debtor gets a judgment against the house. See a real estate lawyer and have this drawn up. He or she should file this wherever your deed is filed so that any creditors would be on notice that they will only be able to go after the debtor's equity in the house. That may not stop them from going forward - they could still get a judgment lien against the property - but it would only be against the debtor partner's share and the non-debtor would be less likely to have to "prove up" his share in court.

Next Month: either Part III of this article or an article on gay immigration (if my friend get's his article done in time.) Also, I had lunch with a great bankruptcy attorney here in Dallas who said she'd be glad to contribute an article about the upcoming changes in the bankruptcy laws.

Tip of the Month

I've had quite a few questions about bankruptcy in the last few months and, given the terrible economy, quite a few people are considering this option. You should be aware that Congress is changing the bankruptcy laws in ways that significantly favor the credit card companies. In most cases, people who might have been able to discharge all their debts under the current law may not be able to do so under the proposed new law. I promise you, you will not like the new law unless you are one of the credit card companies, who paid $60 million to lobby for passage of this bill even while they were sending credit cards to everyone in your household including your cats. This law is very close to passage and the President has stated he will sign it. I expect the law to be passed in the next 60-90 days but I don't know when it will go into effect. If you are considering filing bankruptcy, you should meet with a competent bankruptcy attorney now. Most will not charge you for an initial consultation.

4. Sodomy and the Supremes

October 2002

First, my apologies for not getting an update online since August. As those of you who read this know, my partner and I moved from Texas to New Jersey, where I'm from, and where I've joined a small practice near Trenton. Between the packing up in Texas and getting the house ready to sell, the move up here with two cars and two dogs, and then starting the new job, I haven't had a lot of extra time. Worse, both my partner and I have had a nasty bout with bronchitis, which I am still getting over after five weeks. This is the first time I've really had enough time and energy to work on the column and I thank you all for your patience. Thank you to all of you who've written us with good wishes for the new job and move.

Despite the colds and the hassle of moving, we're having a lovely time in New Jersey. I've been out with my family for many years but I've often thought it was easier for them to accept this when I lived far away. It's really a pleasure to be able to spend time with them without having the hassle of airports and rental cars and I'm particularly enjoying having my nieces and nephews getting better acquainted with my partner. Kids today are so much more knowledgeable and accepting of gays and lesbians than they were when I was a teenager. When my big sister sat her two kids down and told them I was gay, they said "Duh, Mom, like we didn't know." It's also the first time I've lived in a state where (a) sodomy wasn't illegal and (b) there was a law that made discrimination on the basis of sexual orientation illegal. Which leads me to some legal news.

As some of you may know, homosexual sodomy is illegal (a misdemeanor) in Texas. About two years ago, two gay men were arrested in Houston when police entered the one man's house and caught the two "in the act." After several appeals, during which the heavily right-wing Republican Party of Texas placed a significant amount of pressure on the judges hearing the case, the law was upheld by the Texas Court of Criminal Appeals, which is the highest court for criminal matters in Texas. The case was appealed to the United States Supreme Court on two grounds - that it violated equal protection under the Federal Constitution and that it violated the right of privacy.

Now, the process of appealing to the Supreme Court requires the party appealing the case to ask the Supreme Court to grant a writ of certiori. If four judges on the Supreme Court vote to grant cert, then the case is placed on the Supreme Court docket, where it is argued before the Supremes. The Court then renders its opinion which, because they are the Court of last resort in the US, can throw out (or uphold) state laws such as this. The last time the Court heard a sodomy case was the Bowers v. Hardwick case in which the court upheld Georgia's sodomy law by a 5-4 vote, ruling that there was "no right to homosexual sodomy," and dealing quite a setback to gay rights in the US. As someone said afterward (I believe it was Larry Kramer), "can you imagine, it is illegal for us to make love?"

On the first Monday in October, which is traditionally the first day of the Supreme Court's term, they announce the cases they will hear during the upcoming term. Naturally, I checked the list to see if they were going to hear this case. After all, if they refused cert - that is, they refused to hear the case - it would be a considerable loss for gay rights, since that would be tantamount to upholding the Texas sodomy laws, which, by the way outlaws only homosexual acts. However, the case was neither on the list of cases they were going to hear nor on the list of cases refused.

I quickly emailed Mitchell Katine, a Houston lawyer, former professor of mine, and good friend who has been representing this case since the men were arrested to ask if he'd heard anything. Mitchell quickly told me that the Court had asked the State of Texas to submit a brief defending its position which it does if it is likely to hear the case but hasn't quite made up its mind. So the good news is, there is no further news on the case, but I'll keep you all posted as soon as I hear something.

This is an important case for us in the US. If the Court hears this case, it will be given the opportunity to revisit its decision in Bowers v. Hardwick. If it overturns the Texas law, it will very likely spell the end of sodomy laws in the US - a big step forward for our rights. However, it could also go the other way - especially with judges like Clarence Thomas, Antonin Scalia, and Chief Justice Rhenquist on the bench. Cross your fingers on this one - either way, it's going to be a close vote.

5. Immigration Reform

November 2002

Well, I've been promising for some time to have a guest column by a friend of mine who specializes in GLBT immigration law. I'm pleased to introduce John Nechman, with whom I went to law school and who was among the group of us who founded the GLBT group at law school. John lives in Houston with his partner, Ritchie, and his two dogs. He has been very active in the GLBT community as an attorney, including stints as head of the GLBT lawyers' association in Houston and, now, President of the GLBT Section of the State Bar of Texas. I highly recommend him as a great lawyer and as a good friend and I'm pleased to have him fill in here.

H.R. 690--Permanent Partners Immigration Act (PPIA) Primer

JOHN A. NECHMAN
ATTORNEY AND COUNSELOR AT LAW
1314 TEXAS AVENUE, SUITE 1700
HOUSTON, TEXAS 77002
(713) 650-0570
(713) 650-0577 FAX

Currently, U.S. Citizens may marry their opposite sex foreign partners and petition the Immigration & Naturalization Service (INS) to allow their partners to become legal permanent residents (receive green cards). However, U.S. Citizens in same sex relationships cannot do so, regardless of how long they have been together or how committed their relationships might be. To remedy this injustice, New York Congressman Jerrold Nadler introduced HR 690B, the Permanent Partners Immigration Act (PPIA). The PPIA would simply add the words "and permanent partner" next to the word "spouse", wherever that word appears in the context of spousal benefits under the Immigration and Nationality Act (INA). Doing so would allow U.S. Citizens in same sex relationships to sponsor their partners the same way Americans in opposite sex relationships do.

This bill is imminently fair in that same sex relationships are treated no differently than opposite sex relationships (other than the marriage requirement for opposite sex couples). To be a permanent partner entitled to immigration rights, the foreign national would need to be at least 18 years old, in an intimate relationship (with a U.S. Citizen) intended to be life-long and with financial interdependence (like sharing a bank account or mortgage), not involved or married or in a relationship with any other person, and unable to marry legally his/her U.S. Citizen partner in the United States. Evidence required by INS to prove the relationship would be no less stringent than the evidence required of opposite sex couples. Also, just as required of opposite sex couples, a foreign same sex partner would be placed on a 2 year conditional residency and be required to attend an INS interview with his/her U.S. Citizen partner before INS would grant a green card, and couples would be subject to severe criminal penalties for fraud or other systemic abuse.

You can write letters to your Congressperson and your two Senators in Washington and ask that they support the PPIA. You may also visit their local and Washington offices in person and call their offices by telephone. If you are not sure who your Congressperson and Senators are, you can call 202-224-3121 or log on to www.house.gov/writerep/ and www.senate.gov/senators/index.cfm. To track the bill's progress or see the entire wording of the bill, you can log on to thomas.loc.gov and type "HR 690" into the "search by bill number" space at the top.

Important Points to Remember When Writing or Talking to Your Elected Representative
  1. Immigration laws have historically had as a basis the uniting and strengthening of families; however as currently written, they often destroy families of same-sex couples. The PPIA would correct this.
  2. Currently, 15 other nations provide same sex immigration rights, including the United Kingdom, Canada, most of Western Europe, all of Scandinavia, Israel, South Africa, Australia and New Zealand. The United States is one of the only Western industrialized nations that does not provide such rights.
  3. We are regularly losing some of our best and brightest minds because many same sex binational couples are having to leave the United States (often to Canada, which even allows for binational couples to apply for residence when neither partner is Canadian).
  4. GLBT couples would be required to fulfill the same stringent proof standards with INS and be subject to the same severe criminal penalties for abuse as heterosexual couples.
  5. Both Republicans and Democrats have signed on to the PPIA (97 co-sponsors as of August 19, 2002).
  6. The Government's position has long been that immigration helps the economy tremendously. Thus, the H1-b cap has been increased (H-1b visas allow highly skilled foreigners to work here). Many partners of GLBT couples are here on such H1-b or similar visas, and allowing them to receive permanent residence under the PPIA would free up additional H1-b work permits so other talented workers to come and benefit our economy.
  7. INS already recognizes the same sex relationships of those here on H-1b and other long-term non-immigrant visas. A same sex partner of such visa holders may enter on a tourist visa (if otherwise eligible for one), which can be extended as necessary for the length of time the partner remains in long-term non-immigrant status. If INS can recognize the same sex partners of non citizens and allow them to stay here based on their relationships (albeit for temporary stays), why can't INS do the same for same sex partners of US Citizen.
  8. (Though I hate this point) Because the PPIA does not require same sex couples to be married, it does not interfere with the already-passed Defense of Marriage Act (DOMA), which proclaims that for federal purposes (including immigration), the Government will not recognize same-sex marriages.
What More Can Be Done?
  1. Support and attend local meetings of the Lesbian and Gay Immigration Rights Task Force (LGIRTF): National Chapter. (e-mail: Info@LGIRTF.org, web site: www.lgirtf.org)
  2. Support the efforts of the Human Rights Campaign. (www.hrc.org).
  3. Support Lambda Legal Defense Fund's Marriage Project initiatives and challenges to DOMA (after all, if same sex couples received the same rights from marriage as opposite sex couples, we would not need PPIA). (www.lambdalegal.org)
  4. Ask your elected City and State officials to do what many other cities have already done to show support for binational same sex couples-introduce and pass resolutions in support of the PPIA.
  5. Support your friends who are in binational relationships or who are otherwise adversely affected by the discriminatory laws currently in place.

Take this matter personally, even if you are not in a binational same sex relationship! Current discriminatory laws are just one more way that GLBTs and others are treated as second-class citizens. MAKE NO MISTAKE, THIS IS EVERYBODY'S ISSUE!!

6. Season's Greetings

December 2002

My partner and I have finally found a house to rent where we can have the dogs. It's in the small town of Flemington, New Jersey, a town some older Apollonetwork members may remember as the site of the Lindbergh kidnapping trial. We took some Irish cousins to dinner las week at the Union Hotel, where Clarence Darrow (the defense attorney), the jury, Walter Winchell and other luminaries of the day reported on the trial. The trial was quite a sensation in its time, probably similar in coverage to the O.J. trial a few years ago. I'm looking forward to arguing a case or two in the same courthouse, not just because of that historic trial but also because my father has argued cases there as well.

I received a number of interesting questions in the last few weeks. However, the most poignant was one about two partners dealing with a major illness, which points out how the lack of legal support for our relationships introduces a great deal of tension that straight married couples don't have. We are happy to be with our partner in health, but how many of us are prepared to deal with the stress of a long-term illness or the decline that often comes with old age.

On another subject, I wrote recently about the Texas sodomy law being appealed to the US Supreme Court. The Court has agreed to hear the case and will hear and decide the case in the spring or summer. I'll have more to say about this next month, when I'll do a wrap-up of the gay legal highs and lows of 2002. 'Till then, have a wonderful holiday - whatever you celebrate - and a happy and healthy New Year!