Where couples live makes a huge difference

Published: Saturday, Jun. 29, 2013 - 12:00 am | Page 1A
Last Modified: Monday, Sep. 30, 2013 - 3:30 pm

WASHINGTON – In the dining room of their town house here, David Huebner and John Barabino were the picture of prosperous domesticity this week. A housekeeper padded about, work on their outdoor patio continued and their 3-year-old son, Miles, napped upstairs.

But together, Huebner and Barabino put a human face on an uncomfortable truth: Their union, although legal, is still not equal to those of their heterosexual friends, even after historic Supreme Court rulings to grant federal benefits to legally married gay couples and effectively permitting same-sex marriage in California.

While the plaintiff in the Defense of Marriage Act case, Edith Windsor, will get back $363,000 in federal estate taxes – "with interest," lawyer Roberta Kaplan said – the future is not so clear for Huebner and Barabino. They married in California (before the now-overturned ban) and adopted their son there. Their primary home now is in Utah, which does not recognize their marriage. But they live part time in Washington, which does.

They are among thousands of legally married same-sex couples, married in one state but living in another, caught in a confusing web of laws and regulations. It is a predicament the Obama administration is only beginning to grapple with: How to extend federal rights and benefits to same-sex couples when states, not the federal government, dictate who is married.

"The couples in those states also have skim-milk marriages," said Kaplan, referring to a remark by Justice Ruth Bader Ginsburg. "It's just the flip side, in the sense that they may have marriages that are recognized by federal law, but not state law."

Taxes are a big concern.

The Internal Revenue Service will determine whether Huebner, 40, a psychology professor at the University of Utah, and Barabino, 44, a former Google executive and stay-at-home father, may file jointly and claim the marriage deduction long offered to heterosexual couples. But no matter what the IRS decides, they still must file separately in Utah.

Should one die in Washington, the other would receive Social Security benefits because of the court's decision, legal experts said. But the surviving spouse would get nothing in Utah since federal law dictates payments based on the "state of domicile," not the "state of celebration." Only Congress can change that.

"There are two standards," Huebner said. Given their residence in two states, "for us, it's even more complicated."

Eliminating such cross-border inequities and making same-sex marriage the law of the land is the next frontier for gay rights advocates. A day after the ruling, Chad H. Griffin, president of the Human Rights Campaign, appeared at a gay community center in Utah – where gay couples cannot adopt and even domestic partnerships are banned – to draw a pointed distinction with California, where gay men and lesbians soon will be able to marry again.

"We cannot tolerate the persistence of two Americas when it comes to equality," Griffin said.

If the prospect of "two Americas" is a problem for Griffin, it also troubles Brian S. Brown, president of the National Organization for Marriage, a conservative advocacy group. He vowed in an interview to "roll back gay marriage" wherever it exists, adding, "Ultimately, as Lincoln said, we can't have a country half slave and half free."

There are an estimated 650,000 same-sex couples in the United States, and 114,000 of them are legally married, according to UCLA's Williams Institute. It will be easy for the federal government to extend more than 1,000 benefits to those living in states where they wed. For the rest, the path is murkier.

After their daughter Soleil was born six years ago, Mindy Stokes and Katie Rathmell left Florida for Oregon, where they registered as domestic partners. Last year, same-sex marriage became legal in neighboring Washington state. Two weeks ago, they drove across the Columbia River from their Astoria home, crossed the border and had a wedding.

Rathmell, a research associate for an oceanography group at Oregon Health and Science University, provides the family's health insurance but has been paying taxes on the benefit for Stokes and their daughter. The couple hope that will change soon. Even if it does, they still expect to pay more for other coverage, such as car insurance. Without an Oregon marriage certificate, they do not get a marriage discount.

"I have rights to visit Katie in the hospital, and we can leave property to each other, I think," Stokes said. "But it's so complicated and convoluted. It would be much easier and cheaper if it just passed nationwide."

Same-sex couples have long made decisions about where to live, work and raise children based on the legal climate. That is true of Huebner and Barabino, who met in San Francisco when Huebner was teaching there and Barabino worked for Google.

Through two moves – one to Washington, where Huebner taught briefly at the University of Maryland, and then to Salt Lake City – they kept their San Francisco home.

Once they were living in Utah, their California residency became important, Huebner said, because they needed access to the California courts to adopt a child.

When they moved to Utah, he said, "it wasn't important that the state doesn't recognize our marriage," because the federal government didn't either. But with the high court's decision Wednesday, he is beginning to wonder. "If by choosing to live in Utah we are choosing not to have federal rights," he said, "it changes my decision matrix."

When the rulings came down Wednesday, the couple took Miles to the Supreme Court to watch history being made. They joined friends there who have a baby and a 3-year-old. While the toddlers romped on a lawn across the street from the court, the parents checked their cellphones for news. A cheer went up from the crowd when the Defense of Marriage Act decision was announced.

"We're married!" Barabino said, cradling Miles in his arms. "It's crazy. Because of the soil that we're standing on now, because we stand in D.C., we're married. When we stand in Utah, we are not."

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Read more articles by Sheryl Gay Stolberg

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