By Karen Ocamb

Lawyers seeking marriage rights for gay and lesbian couples received an unexpected boon recently when a conservative Orange County judge ruled in an alimony case that domestic partnership is akin to cohabitation and not equal to marriage. The ruling will be added to the briefs LGBT attorneys are preparing to file with the California Supreme Court in the next few weeks.

The case was brought by Ron Garber, whose wife left him for another woman. He agreed to pay $1,250 in monthly alimony. But when Garber discovered that his wife and her new partner had registered as domestic partners, and his wife had taken her partner’s last name, Garber argued that he should not have to pay alimony, since state law says alimony ends with the re-marriage of the ex-spouse, and domestic partnership is supposed to be the equivalent of marriage.

“This is not about gay or lesbian,” Garber told the Los Angeles Times for a July 22 story. “This is about the law being fair.”

“If he had signed that agreement under the same factual scenario—except marriage, not domestic partnership—his agreement to pay spousal support would be null and void,” William M. Hulsy, Garber's lawyer, told the Times. Melinda Kirkwood told the Times that Garber had known about the relationship before signing the agreement.

According to the Times, Orange County Superior Court Judge Michael Naughton ruled from the bench in agreement with lawyers on both sides whose filings said that domestic partnership is “not the equivalent of marriage. It is the functional equivalent of cohabitation.”

To LGBT attorneys, the case underscores how California’s domestic partnership law is widely misunderstood and creates chaos and confusion over matters that would be simple if gays and lesbians had marriage rights.

“The trial court judge seems to have read and applied the law correctly, although the result is contrary to the Legislature's intention that the same rules should apply to both spouses and domestic partners,” Lambda Legal’s Jenny Pizer told IN Los Angeles magazine. “It just proves the obvious point: If you want equal rights and equal duties to apply, and you want a fair, useful system that yields consistent answers, then don't keep gay and lesbian couples stuck in a separate, confusing system. Instead, just let lesbian and gay couples marry, and have the same rules apply to everyone.

“This alimony case illustrates something the domestic partnership laws are not designed to cope with—that in society, there are not two hermetically sealed groups of people segregated by their sexual orientation. Sometimes individuals spend years married to a different-sex spouse and then come out and form a committed relationship with a same-sex partner,” which is especially confusing for bisexual people.

“The Orange County judge recognized what we all know: Domestic partnership is not close to equaling marriage,” Pizer continued. “It's not an equivalent status legally or socially. In this unusual case, there seems to be a private benefit for the registered domestic partner. But this rare situation of it being beneficial that domestic partnership is a lesser status should be seen in context, recognizing the many rights domestic partners do not have, and the widespread resistance and problems they encounter when trying to obtain even basic protections that married couples take for granted.”

But what is too often lost in the constitutional legalese over marriage rights, equal protection under the law and the right to pursue happiness, is how the “separate but equal” treatment is in reality unequal and devastating to real peoples’ lives.

Don (whose last name we are protecting) lost Dale, his partner of 26 years, to bone cancer 12 days before Christmas last year. Dale was a veteran and initially had been treated at a Veteran Administration hospital. But since Dale, 51, had no insurance and had to stay at a low income to qualify for MediCal (he received only a Social Security check), they had to go through California Rep. George Miller to get those bills paid. When the long drive to the VA hospital became too painful, Dale went to a hospital closer to their house in Concord.

They were registered domestic partners and had wills leaving the house to the surviving partner. Still coping with grief from Dale’s death, Don had to fight MediCal, which told him they did not recognize registered domestic partnerships and that Don would have to pay all the money owed for his partner’s chemotherapy, radiation and other medical treatments. The government threatened to seize his house as payment.

Don, 64, tried to re-finance the house to pay the bills, but was denied, even though the house was in both their names. He wound up having to pay an attorney to help with the re-financing.

“If we had been married, I wouldn’t have had to do that,” Don told IN. “They wanted money. They wanted his part of the house. If we had been a married couple, they would have waited until the other person died. But in my case, they want the money up front.

“I contacted Senator Dianne Feinstein, Senator Barbara Boxer and Speaker Nancy Pelosi’s office, and they told me I have to go through [Gov. Arnold] Schwarzenegger for help,” Don said, “because MediCal is a federal thing and they don’t recognize domestic partnerships. I’ve had nightmares and lost 50 pounds with all the garbage I’ve been going through.”

“California could fix that problem,” Pizer said. “Because MediCal is a federal/state program, California would have to set up a separate fund to cover domestic partners. It would be small because we are a small percentage of the population. But that’s a steep uphill fight because it involves money.” As IN goes to press, Don’s situation is still up in the air.

Mark Mitchell and his partner, Jay Wright, live in Modesto. Mitchell, who was disabled after his tour in Iraq seriously aggravated his HIV, applied for state tuition assistance for his stepson through the California Department of Veterans Affairs; however, he was denied.

“We started preparing for Jay’s son to go to college when he was 16,” Mitchell told IN. “I know the California Department of Veterans Affairs, which is separate from the federal VA, offers free tuition to children or step-children of disabled veterans. I am 100 percent disabled, and Jay is my registered domestic partner under AB 205, so we naturally assumed the state agency and state funding would apply,” with little or no federal connection. They even received a verbal confirmation from a state official in 2005.

The couple applied in January of last year. Three days later, they received a letter thanking them for their application but, the letter said, based on a review of their information, “I must deny your application,” specifically because Mitchell’s stepson was not eligible under Plan A.

“We never applied for Plan B because a married couple wouldn’t have to,” Mitchell said. “Why go for a lesser plan if you can get Plan A, which has no income limit and our son could work for spending money and not have to worry about an income cap? With Plan B you have to be at or below the poverty level to attend college for free. That’s a fairly significant difference, in our opinion.”

The couple was also seriously aggravated when the local head of the veteran services made an “irate” phone call to them asking them if they have a marriage certificate. After submitting the domestic partners registry certificate, the stepson’s birth certificate and all other required papers, the couple was told to phone the state office for Veterans Affairs.

“I’ve never met a bigger ass in my life,” Mitchell said. “He accused us of trying to make a political statement. I told him I was just trying to get our son the same benefits any other vet is entitled to.”

“I got very upset,” Wright said. “I told him this was discrimination. He hung up the phone.”

“[The stepson] was approved under Plan B,” Mitchell said. “But it’s still not fair. We were not treated equally as AB 205 says we should be.“

Mitchell said they filed a complaint under the Unruh Civil Rights Act with the state Department of Fair Employment and Housing. “They believed discrimination occurred,” Mitchell said, adding that it takes up to a year to process the complaint.

Meanwhile, Mitchell is also worried about what might happen if he is totally incapacitated. Homes for veterans allow married couples to live together. “Something tells me those rights will not be afforded to domestic partners,” he said.

“What strikes me,” Mitchell said, “is that there is a difference in people’s minds between marriage and domestic partnerships, and any agency can interpret that difference at their own leisure. A lot of people have been unwilling to help us. We are treated differently. We are not inherently equal.”