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The Byrne Report

Partner Trap

By

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JOE ALFANO and Frank Capley have a weekend home in the forested outskirts of Monte Rio. It's not fancy, just an old house in need of paint and some concrete work. But thanks to years of sweaty Saturdays, their hilly third of an acre is terraced, lush with fruit trees, roses and vines.

These guys are not dotcom kings, just ordinary workers. In San Francisco, Joe is employed as a handyman, Frank repairs elevators. But under the stars of Sonoma County, they are the lords of their modest little manor.

Well, there are a few snags. Joe, 34, wants to put Frank, 30, on the deed of the house which he owns. But a new domestic partnership law makes that an expensive proposition, indeed.

Joe and Frank gravitated toward San Francisco City Hall last year to watch the gay and lesbian couples get hitched. They watched for days. It was fascinating. It was powerful. But marriage was not for them--or so they thought.

"We said we do not deserve it. We've only been together four years, these other couples have been together 30 or 40 years!" Joe explains. "A friend said, îIf you were straight, you'd be married and expecting kids by now.'

"But our minds were telling us that we would never be happy, that we could never have a long-lasting relationship. By denying the cement of marriage, society was telling us that we were doomed as a couple."

Ding! The sun of matrimony rose inside their heads. They rushed into the county clerk's office and tied the knot. Filled with "a newfound sense of civic pride," Joe volunteered as a deputy marriage commissioner--officiating at the ceremonies of straight, gay and lesbian partners. He and Frank were inspired to register themselves under California's domestic partnership law, Assembly Bill 205, which as of January gives same-sex couples almost all the same rights and benefits of marriage extended to heterosexuals.

When the California Supreme Court abruptly invalidated their marriage in August, Joe stopped marrying folks. His civic pride was replaced with outrage. Like thousands of couples who had been overjoyed by a city government's sanction of their love, they found themselves in the position of relying upon AB 205 to protect their newly solemnized relationship. They got less than they bargained for--a lot less.

Assembly Bill 205 extends dozens of rights and responsibilities to gay couples, including hospital visitation privileges death benefits, and community property rights. The only state benefit not allowed to gay couples is the right to file a joint state income tax return. Half of any wealth earned by one partner automatically becomes the property of the other partner. Should a couple split up, a divorce court will divide their assets and order child or spousal support when necessary.

Sounds good so far. But one glaring problem with AB 205 is that the federal government does not recognize same-sex marriage. In fact, Congress passed the Defense of Marriage Act in 1996 to define marriage as only between a man and a woman. For tax purposes--and for the purposes of 1,138 other federal marriage rights and responsibilities--gay and lesbian families do not exist.

This is a real problem when you put your true love on the house deed. That's no big deal for heterosexual couples, who are not liable for capital gains realized in an interspousal deed transfer. But in Sonoma County, putting your domestic partner on the deed will trigger a reappraisal of your house to market value, increasing the property tax, as well as your state and federal income tax bite.

In fact, since AB 205 declares that you must share community property if you are registered domestic partners (unless you have a helluva prenupt), you may be liable for capital gains tax even if not on the deed.

Joe and Frank were hit with another ugly reality when the national elevator workers' union sent Frank a letter last April stating that the trustees of the union's pension and health plan rewrote the bylaws to define marriage as "only a legal union between one man and one woman," and defining spouse as "only a person of the opposite sex who is a husband or wife."

This action excluded Joe from being added to Frank's union-sponsored health and dental care plans and from receiving an array of benefits accorded to spouses of other union workers. It turns out that while AB 205 applies to state and local governments, and to companies that contract with them, it does not necessarily apply to unions.

"Domestic partnership has not helped us at all," Frank observes.

The couple laud S. F. Superior Court Judge Richard Kramer's recent ruling declaring the state's prohibition of gay marriage to be as unconstitutional as antimiscegenation laws. Assembly Bill 205 is throwback to the doctrine of separate but equal, which, Joe remarks, is inherently unequal.

While homophobes call for amending the state constitution to legalize discrimination based on sexual orientation, Joe and Frank are traveling to rural counties to educate the populace by coming out--as husband and husband.

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From the March 30-April 5, 2005 issue of the North Bay Bohemian.

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