How Much Is That Gay Marriage in the Window?

Sometimes you hardly notice how much things have changed. Thirty-nine years and a couple of weeks ago, a series of violent confrontations between the New York City Police Department and a motley bunch of drag queens and cruising homosexual men became the first really public event in which homosexuals demanded the right to be homosexual. These confrontations became known as the Stonewall Riots after the bar on Christopher Street that had been the focus of the confrontation. Forty years ago, gay men couldn’t legally be served alcohol in New York City because they were, by definition, “disorderly”; now, in recognition of its place in the fight for equal rights for homosexuals, the Stonewall is on the National Register of Historic Places.

Of course, what does “equal rights” mean in this context? Gays can buy liquor openly now, and not just in Greenwich Village. But there are still controversies, the most significant recent one being the question of “gay marriage,” precipitated by controversial court decisions in Massachusetts and California. I don’t propose to try to go through the whole history of the question or the decisions — that could fill a hundred articles — but because of some recent blog publications, I became interested in one of the arguments against establishing a legal recognition of marriage between people of the same sex: the argument that there really is no “equal protection” issue about forbidding gay marriage, because same-sex couples can get nearly the same legal protections through existing contract law.

So, I wondered, how much would it cost to make a “marriage” using contract law instead of family law?

Now, by comparison, it costs $20 here in Colorado to get a marriage license, so that’s our baseline for comparison. I called my favorite local lawyer here and talked over the implications, and here’s what I came up with.

Owning property

So let’s assume a gay couple — call them Todd and Bruce, just to be specific. Todd and Bruce are in love, and want to marry but they can’t. So they decide to move in together and form a legal commitment, but using contract law since they can’t “marry.” Bruce moves into Todd’s $250,000 house in Denver, and since they’re merging their assets, Todd wants Bruce to be a co-owner of the house. They go to their real estate lawyer and make a contract, establishing that Bruce is now a co-tenant (with rights of survivorship, which is going to come up again). Cost to do the paperwork: between $2,500 and $5,000.

Bruce has a big art collection and a Harley with a sidecar; he can re-register the Harley fairly cheaply, but if he wants to give half ownership in the art to Todd, things will get complicated. (Think gift tax.) If he just wants to have the art and bike pass to Todd if he dies, he needs a will. In fact, both of them need a will; that helps nail down other shared property, like the house. The possibility of one of them dying is also why they need the rights of survivorship on the deed, and the will isn’t sufficient; without changing the deed, until the will was probated, ownership of the house would be in question and the survivor might have to find a new place to live for awhile.

This will isn’t going to be the kind you can get from the Internet; there will be a bunch of legal issues depending on the state. Cost of making the will: $3,000 to $5,000 each.

In case of emergency

They also want to be able to act for the other in case of an emergency, like a car wreck or something. That means they need a durable power of attorney for both of them. Again, you can find the forms on the Internet, but if you want to nail it down for your state, with an unconventional relationship like that, you’d better have a lawyer do it. Luckily, that’s relatively easy: only $500 to $1,000. Each.

Of course, they’d both better carry copies of the paperwork with them at all times; otherwise if Bruce crashes that bike, his Dad is the apparent next of kin and Dad doesn’t like Todd anyway (why couldn’t he have found a doctor?), so he may not have the chance to act on Bruce’s behalf, or even see him before he dies, power of attorney or no.

Don’t move

If Todd gets a new job and they decide to move to another state, you have to do it all over again.

Don’t win

If Bruce wins the Powerball — he just bought the ticket because it’s a contribution to wildlife, he never really thought he’d win — the trouble really starts. He’s going to pay taxes on his winnings, of course. Now, if they were an opposite-sex couple and married, Todd would automatically be entitled to half. If Bruce wants to give Todd half, gift tax kicks in again. On everything over $10,000. Of course if Bruce decides he’d rather have a condo on Beacon Hill and live a life of abandon in San Francisco (the bitch!), Todd’s more or less out of luck. In fact, any time they want to break up, it’s going to get complicated.

Don’t “divorce”

Now things get really interesting. They’ve been together for ten years and they decide their differences are too great, they have become irreconcilable, and they want to break up. They have the house they moved into together in Denver, which is now a joint rental property; they have the apartment they bought in New York City, when Todd got that great job producing on Broadway (and by the way, they also bought a country home while Todd was making immense amounts of money on his hit play.) Bruce, on the other hand, has been a “housewife” — he’s taken over the house, domestic duties and all, and followed Todd’s career. He doesn’t even have any recent job experience.

It’s an amicable split, but it’s still trouble: if Todd wants to give Bruce his half share, they’re going to have to deal with gift tax, sales tax, property tax, and syntax. If Todd doesn’t want to, Bruce gets an attorney. So does Todd. The attorneys get rich. Bruce and Todd get poorer. It takes years.

So let’s say they looked ahead and made a pre-“nuptial” agreement — except it can’t really be a pre-nuptial agreement because there weren’t any nuptials. We’re back to contract law, and the contract gets a little hairy. A “contract” basically requires a few things to be valid:

• an agreement, or “meeting of the minds”;
• an exchange of considerations (or an “estoppel,” at which point the legal arcana were too much for me; basically, either you have to exchange considerations, or one party has to have lost something based on the assumption there was, or would be, a contract);
• and some formalities, something to provide evidence that the contract actually exists.

So, the agreement and the formalities are easy; they’re written out, no problem. Todd and Bruce’s lawyers look at the agreement, though, and Todd’s lawyer says “this isn’t enforceable.” Why? Well, there was no exchange of considerations; companionship isn’t enough, and at least in some states admitting that the companionship included sexual relations might be admitting to a felony. There might be estoppel. Maybe not. Lawyers get rich.

Oh, and every time there’s any significant change in their situation, they have to hire an attorney and renegotiate the pre-“nup.” Lawyers get rich.

Death and taxes

In fact, it’s such a horror trying to get “divorced” that Todd and Bruce reconcile; they live together until one day Todd keels over in the health club. Sudden cardiac death, nothing they could do.

Now what? Okay, Todd had a will and they have a lot of property. If Todd and Bruce were legally married, there are some exclusions that they could take advantage of; otherwise, Bruce’s estate taxes are much greater than they would have been. If Todd got rich enough, his first cousin, who is now Todd’s next of kin, challenges the will, saying it’s invalid, claiming undue influence, saying the relationship is “against public policy.” Bruce probably wins. Eventually. Lawyers get rich.

So what?

So let’s just go back through the list. Instead of buying a $20 marriage license and an overnight to Vegas, we have:

Of course, that doesn’t include all the lawyer fees in case of unfortunate events (see above, every time I said “lawyers get rich.”) The point is that for an opposite-sex couple, they can get all the legal protections of all these contracts and more, for $20. For the gay couple, it’s going to cost them tens of thousands of dollars, and they lose legal protections and legal precedents; for Todd and Bruce, it might cost them hundreds of thousands of dollars more.

As we’ve seen in other situations, it often turns out that “separate but equal” isn’t as equal is you might think.

Acknowledgments: Thanks to the folks at Bookworm’s Room, whose discussion shaped a lot of these thoughts, and to Stephanie Nelson, who helped me think about the legal issues and costs. Needless to say, I’m not a lawyer, and Stephanie isn’t responsible for any errors I’ve made in the legal discussion.