Marriage Discrimination – Can an LLC Help
History has shown us that when any group is not allowed to fully participate in society, bad things happen.
Discrimination based on race, gender, religion, ethnic background, national origin, or sexual preference has run rampant throughout American history.
Women in the U.S. could not vote or run for office until 1920. Throughout history in many cultures, women and children were little more than property who could not own property.
In my native Virginia, blacks and whites could not legally marry until 1967. Slavery was moral, and a black man counted as 3/5 of a white man in the Constitution, and only in the “free” states.
“No __________ Need Apply”
Fill in your own favorites. Irish. Germans. Chinese.
Subjects like same-sex marriage evoke intense, overt, and cloaked emotional responses on so many levels as to guarantee a consensus will never be voluntarily reached.
Religious groups have a strong opinion. Governments at all levels take different stands and confuse the landscape. Individuals have their own agendas.
“Don’t ask. Don’t tell.” Don’t care?
Marriage was originally a religious ceremony and rite. Kings and queens were married by the Church, and clashed with the church when they didn’t get to change marriage to suit their taste, as any fan of the Tudors series and Henry VIII well knows.
Problems often occur when governments get involved. Most have occurred in the past 100 years with the income tax in 1913 and standing armies after World War II. I won’t go too deeply into the history, but how many financial breaks have been given to married couples in the tax code or as military dependents. The founding fathers were brilliant. Too bad we now have two institutions they would have never tolerated.
If the federal government had not created over 1,300 financial preferences and benefits available only to a one-man, one-woman married couple, same-sex marriage would not be an issue. Period. End of story.
These financial benefits were not created overnight. And as we discuss the 3 main groups who are affected by the current state of marriage in the U.S., it will become clear why the federal government will never voluntarily acquiesce regarding gay marriage.
First – some definitions:
LGBT – Lesbian, Gay, Bisexual, Transgender
GLBT – Gay, Lesbian, Bisexual, Transgender (will use LGBT as the more common term)
LGBTQ – Lesbian, Gay, Bisexual, Transgender, Questioning
SSM – same-sex marriage
Gay Marriage – marriage between biologically male-male or female-female couples
Civil Unions – state benefit for LGBT couples not recognized by the federal government
Domestic Partnerships – state benefit for opposite sex or LGBT couples not recognized by the federal government
Polyamory – two or more in open, multiple loving relationships
LLC – Limited Liability Company
When I refer to same-sex or gay marriage, I will use the term LGBT marriage to be all inclusive.
I am a white heterosexual male married to a black female who is Lawful Permanent Resident (green card holder) of the United States. (Yes, it matters. Spouses of citizens and LPR’s can immigrate to the U.S. LGBT spouses cannot, even if married in a state that recognizes gay marriage.)
My nephew is a gay white male. Together we recently formed an LLC to help LGBT couples form their own LLCs to recover some – not all – of the benefits given to marrieds.
In the past, some have claimed that an LLC can replace the marriage contract. Not hardly. But it can effectively eliminate the need for a prenuptial agreement, create a structure for LGBT couples to manage their financial affairs, and provide for a smoother transition if the relationship breaks up. And like current marriages, about half will dissolve.
The Great LGBT Debate:
Conflict over recognition of gay marriage comes down on 3 sides:
1. Traditional – one-man, one-woman of legal age, and those who believe this is the only legitimate marriage
2. Gay Marriage – include any non-traditional marriage or those who want to but who cannot legally marry
3. Non-Marrieds – all those who could legally marry but who choose not to
How do you tell the difference?
Traditional married couples get the benefits of marriage but don’t think anyone else should get them.
Gays who want to be in recognized, committed relationships believe they should receive equal benefits under the law as other married couples.
People who are single by choice believe that all citizens should be treated equally by government whether married or not.
What are the many privileges and benefits given to married couples automatically and denied to LGBT couples?
- equitable ownership based on marriage
- marital trusts (AB Trusts)
- QTIP and QDOT trusts
- joint filing
- creating a family partnership to distribute business income
- combined gift tax exemptions
- health care decisions when spouse is incapacitated or in a medical emergency
- included in spouse’s health care insurance
- the right to visit your partner in critical care
- right to take up to 12 weeks of unpaid leave to take care of an ill partner, parent, child, or parent of partner (Family and Medical Leave Act of 1993)
- right to purchase health insurance for a spouse after the loss of a job (COBRA)
- spousal survivor benefit
- spouse with a lower monthly benefit can choose to take either their benefit or one-half of the higher-earning spouse’s benefit, whichever is greater
- larger benefits if deceased spouse had higher benefits
- lump-sum death payment to help with funeral expenses
- inheritance in the absence of a will
- inheritance when married and not mentioned in a will (pretermitted spouse)
- favorable estate tax rules
- family medical and housing benefits
- survivor benefits
- veteran’s benefits
- health care
- educational assistance
- home loan guarantees
- vocational training
- base housing/housing allowances
- separate maintenance
- relocation expenses
- survivor benefits including lost wages, worker’s comp, health insurance, and retirement benefits
- health insurance for spouse
- “sponsor” your spouse for permanent residence
- also sponsor certain children of your spouse for permanent residence
- rights and responsibilities of parenting whether through birth, adoption, or surrogacy (if not the birth mother)
- visitation rights after “divorce”
Traditional/Anti-Gay Marriage Advocates:
The 1996 Defense of Marriage Act (DOMA) limited federal recognition of marriage to opposite sex couples. In one page, the federal government codified right-wing Christian views and allowed states to ignore the Full Faith and Credit Clause of the U.S. Constitution and not recognize gay marriages performed in other states.
1. The union between a man and a woman is the definition of marriage.
– Laws are created by man, and can be changed by man. Marriage has at least 2 definitions – what your religious authorities say it is, and what your civil authorities recognize. I take that back. The religious ceremony does not count unless the government issues a license.
2. Gays are not prohibited from getting married.
– True. They are just prohibited from marrying the person they love.
3. Gay marriage promotes deviant sexual behavior.
– LGBT individuals in committed relationships are less promiscuous.
4. Homosexuality is a choice.
– If homosexuality were a choice, and given the social stigma and discrimination, who would choose it.
5. Marriage is for procreation and family.
– If true, we would deny a marriage license to the infertile, impotent, and post-menopausal.
6. Children should not be raised in LGBT households.
– Love from parents is shown to be critical in child rearing, not gender. Even a convicted felon child molester can legally marry and procreate. If the government legalizes gay marriage, can LGBT adoption be far behind?
7. Gay marriage violates the sanctity of marriage.
– Whether or not a marriage is sacred is a religious call. What is sacred for one religion is not acceptable to another. Do we recognize plural marriage for American Muslims? Sanctity is a religious concept, not civil. Our government should not be in the business of sanctifying anything.
8. SSM is a threat to the institution of marriage.
– Marriage is a threat to marriage. How does anything with over a 50% failure rate need an outside threat?
9. Gay marriage threatens the continuation of the human race.
– Has anyone noticed a shortage of people lately? Are we all going LGBT?
10. Allowing LGBT marriage would be granting special rights to gays since they can already get married (to an opposite sex partner).
– LGBT couples are advocating for equal rights, not special. People want the right to marry the partner of their choice.
11. LGBT marriage will lead to legalized incest, bestiality, pedophilia, polygamy, and who knows what.
– Classic scare technique when other arguments fail. In countries where gay marriage is common, there has been no slide down the slippery slope to other activities.
12. Churches would be forced to marry LGBT couples against their doctrines.
– I especially like this one. When the government codifies Christian principles (one-man, one-woman marriage), that recognizes religious freedom and separation of church and state. If the government codifies a different belief, then the separation of church and state is out the window and churches will be forced to celebrate gay marriage. No church is forced to perform a marriage.
13. If LGBT marriage is legal, alternative lifestyles will be taught in the public schools.
– Why is any lifestyle being taught in the public schools? Is marriage one of the 3 Rs? Is it any wonder our kids are crushed in science and math competitions? What will result is a reduction in discrimination and intolerance toward LGBT individuals.
14. LGBT couple offends everything that religion and morality stand for.
– Morality is one of the most elastic and flexible concepts invented by man. Some U.S. churches perform wedding ceremonies. Most do not. Morality has nothing to do with it. Thou shalt not kill except the designated enemy. Thou shalt not steal, unless you call it taxes. How can someone violate a morality we cannot even define?
15. Homosexuality is unnatural.
– I think of this as the Christian conundrum. God is perfect. He created the world in his image. (“God don’t make no junk.”) Since God didn’t make homosexuals, it must be a choice, like the choice to kill, steal, or be evil in general. Unfortunately, animal studies find homosexual behavior in about 450 species. Did God make that much junk?
16. The “OOOH” Factor. Just the thought of gay sex is repulsive.
– Finally a little honesty. But heterosexuals also get this feeling with unattractive members of the opposite sex. Only way to cure this one is to not think about it, which can be a problem for those still in the closet.
17. Gay marriage would violate sodomy laws.
– If marriage legalizes sex, then gay marriage and sodomy laws cannot coexist. Most sodomy laws have been shot down by the Supreme Court. Many were used against straight couples engaging in oral or anal sex. Sodomy laws are an ultimate tool for selective enforcement against homosexuals.
Gay Couples Seeking Marriage:
For LGBT adults seeking to proclaim their commitments to each other, marriage is more than legalized sex.
Reasons to legalize LGBT marriages:
1. Equal rights.
The right to marry the person of your choice is considered a fundamental human right. Coercion is considered wrong, whether it is to a person your family forced you to marry or to a person of a gender you are not attracted to.
2. Legal rights.
One of the most troubling situations for LGBT couples involves emergency and terminal medical care. In most states, with a Durable Power of Attorney for Healthcare, a same-sex partner can make no decisions about the partner’s health care. Family members who disapprove of the relationship can even deny visitation to the patient in the hospital.
At this time, a partner is not considered a “spouse, or next of kin.”
Without an explicit directive in a will, a long time partner could be shut out of funeral arrangements and inheritance, even for property that was jointly held.
One would assume that adoptions will also increase as individuals who want a family but who cannot procreate take on the responsibilities for children in need.
3. Financial benefits.
Same-sex couples are denied 1,300+ benefits available to straight married couples. Why are they paying more in taxes and receiving less in benefits? Discrimination exposes the major flaw of democracy – mob rule.
Financial advantages that apply to male-female marriages should apply to all marriages.
Prohibition against LGBT marriage is another form of discrimination against minorities that is currently acceptable to the majority.
Before 1967, it was illegal for a white man to be married to a black woman in Virginia (Loving v. Virginia). The couple was legally married in D.C. and arrested when they lived as man and wife in Virginia. (As with DOMA, no Full Faith and Credit Clause recognition of the D.C. wedding, as is the case today if the couple were gay and had married in Massachusetts.)
Discrimination over our history has been shown to dehumanize select members of our society and to damage our society as a whole.
Same-sex attraction is biologically determined. Love is what counts. Why should LGBT individuals be forced to deny their nature?
6. Advantages for society.
LGBT couples are more stable and responsible and help society in general. Risky, promiscuous behavior is curtailed. More parents are available to adopt orphans in need. Strong family values benefit everyone.
Allowing gay marriages helps, not hurts, society.
Marriage is a commitment between 2 individuals. How does it hurt others outside of the relationship? Again, we see how adding religion or the government as a third party to the contract causes problems.
My opinion is that when we stop making gay marriage such a big deal, it won’t be such a big deal?
Single, divorced, widowed, never-married, and don’t want to be married have a simple agenda.
Stop screwing us.
Get rid of all preferences for marrieds over unmarrieds.
Just stop it.
Equal protection under the law. Then all of the other issues go away.
DINKS are an advertisers dream. Dual income, no kids. The LGBT community is America’s wealthiest consumer demographic.
I hate to say it, but I believe that the economic success of the LGBT community is a golden goose the USG will not kill.
Follow the money.
In a bad economy, how much tax revenue would the government lose if LGBT couples were given all the financial benefits given to male-female marrieds? How many more federal and state benefits will LGBT couples receive if treated fairly?
I don’t see the government giving in any time soon.
The LLC Solution
In all fairness, I should say it’s a temporary and partial solution. Nothing can replace all of the financial benefits of marriage except complete LGBT marriage or complete elimination of benefits to marrieds.
The red states are too numerous and politically connected to offer social equality.
In the meantime, LGBT couples can use a Limited Liability Company to recover some of the rights given automatically to male-female married couples.
Can an LLC replace a marriage contract? Of course not, but it’s your financial base. It could easily take the place of a prenuptial agreement even in states where gay marriage is recognized.
An LLC is NOT a:
- complete substitute for marriage
- contract for sex
- personal services contract
What an LLC can do:
- clarify your financial rights and responsibilities
- serve as a public declaration of your commitment to each other
- determine what cash or property each party will contribute to the LLC
- determine how profits from the LLC are to be distributed
- specify how the property will be divided in case the LLC is dissolved
- avoid arguments if the relationship breaks up and the LLC is terminated
- keep separate property distinct from joint property
- shift liability for debts from the individuals to the LLC
- can provide benefits like health insurance
- may provide additional tax benefits and deductions
An LLC accomplishes many of the aspects of a prenuptial agreement without the personal negative connotations. An LLC is a business – no “if you really loved me you wouldn’t ask me to sign a prenup” drama.
In the event that same-sex marriage becomes the law of the land, your financial affairs are already in place.
LGBT couples can use an LLC as a base. This is where you want to keep your joint property. You may have individual LLCs or other entities like trusts and partnerships, but save this base LLC for property you own jointly with your partner.