Nevada’s domestic partnership register isn’t enough

John Cereso

Sunday, April 17, 2011 | 2:01 a.m.

It’s been almost a year and a half since the Nevada Domestic Partnership Registry launched. In and of itself, this law provided gay and lesbian residents of Nevada with a tremendous step forward in terms of recognition of their relationships, but it isn’t enough.

The federal government in 1996 passed the Defense of Marriage Act, and many states have either passed laws or amended their constitutions — as was the case in Nevada — that closely follow the federal law, which essentially says that only marriages between a man and a woman are recognized, even if validly performed in another state. (For the sake of simplicity, I’ll often use the term DOMA — Defense of Marriage Act — when generally describing these types of restrictive laws.)

By and large, the domestic partnership ordinance in Nevada takes care of the state recognizing gay and lesbian relationships for state law purposes and limits DOMA’s effect. However, domestic partnerships fall far short of full marriage equality.

Under the Nevada Domestic Partnership law, registered partners can be denied access to health care benefits offered by employers, probably the most tangible spousal benefit. Employers and insurers are able to simply say “you’re not legally married, so we don’t have to cover you.”

Under federal law, more than 1,100 rights and benefits to marriage exist, none of which is available to gay and lesbian couples. Yes, you can do some complicated estate planning, but virtually all of the rights marriage conveys on a federal level are simply unavailable without full marriage rights.

Social Security and survivor benefits, tax benefits, Family and Medical Leave Act, immigration rights, estate taxes and equal access to a spouse’s retirement and benefits packages, including health care, are the obvious choices, but many of the federal rights of marriage are things most people never think of, such as spousal immunity in federal prosecutions.

What I really find repugnant is that the entire basis for DOMA-type laws on both a federal and state level is by and large fictitious. Gay marriage in no way threatens or impinges on anyone else’s rights.

If DOMA-type laws were to disappear tomorrow throughout the United States, no negative effects would be felt by anyone. For Nevada, a state which embraces gambling and prostitution, to pass a DOMA-type amendment is the height of hypocrisy.

If more than half of all straight marriages end in divorce, then what is it that we are protecting? Anyone can come to Las Vegas, get married in a flash, and divorce weeks or months later. Where is the “sanctity” in such marriages?

Perhaps more important, marriage, historically, has always been a state issue. If a given state decides that gay couples should be permitted to marry, then no other state or the federal government should be able to deny that couple their legally joined union under the full faith and credit clause of the Constitution. So, again, why was DOMA passed federally and still argued for by some?

I can answer this easily: money. Although studies have shown that gay marriage would be a financial boom to a number of states and businesses, when the uber-conservative politicians or the radical religious right wing want to raise funds, all they need to do is slap a picture of a gay couple with their adopted child in a wedding, and the money just pours in. They print all types of misleading and outright lies in their mailers such as “Gays want to destroy your marriage,” “Gays want to recruit your children” or other such nonsense; and the uninformed and uneducated open their wallets.

DOMA-type laws are unconstitutional at both federal and state levels. By every constitutional standard we have, DOMA-type laws fall far short of meeting any of the tests that would uphold such laws, no matter how they came into being.

We have, at last count, five states and the District of Columbia that have full marriage recognition of gay and lesbian couples. A bunch more states have domestic partnership or civil union laws. As gay marriage becomes a reality in more states, the weight to repeal DOMA federally will increase, and the Supreme Court will likely weigh in.

So, why have the courts or the legislatures failed to repeal the federally passed DOMA? That’s a complicated question. Ultimately, I believe that DOMA will be overturned, likely by the U.S. Supreme Court. Just recently, the Respect for Marriage Act was introduced in Congress, which would repeal DOMA at a federal level.

For those who support DOMA-type laws, I say this: Same-sex couples live in more than 99 percent of U.S. counties nationwide, according to the latest census data, and an estimated 3.1 million couples are in committed same-sex relationships.

The DOMA-type law repeal train is leaving the station. The only question is this: Can Nevada be a leader in equality for gay and lesbian couples, or will we be forced into providing basic civil rights to our citizens?

John Cereso is a lawyer whose practice includes family law. He is a member of the National Lesbian and Gay Lawyers Association.