A Further Reason Why Separate is Unequal in Marriage
The federal Defense of Marriage Act (DOMA) still places substantial limits on gay and lesbian partnerships, even if they have a state-recognized marriage (offered, as of yet, only by Massachusetts), or other form of state-recognized union (such as a civil union or domestic partnership). The disparity in tax filing is often the most obvious, which forces gay and lesbian couples to file as unpartnered individuals on federal paperwork. LGBT families must remember, however, that any federal agency will refuse to recognize your partnership regardless of your standing in-state.
Jason Hair-Wynn, a Massachusetts 26-year-old gay HIV/AIDS educator, discovered this when he applied for to the U.S. Department of State for a passport. According to a letter he received, his passport could not be processed with his hyphenated name because DOMA barred recognition of his Massachusetts marriage. Hair-Wynn is left with only three options: provide documentation proving common and consistent use of the hyphenated name for a period longer than 5 years; use special forms to explain the inconsistencies between his identification information that uses the hyphenated name, and the passport, which would use his maiden name; or pay a $135 fee for a probate court to issue an order reflecting his name change. It is important to note that heterosexual couples need only provide a marriage certificate.
This story emphasizes the evils of federalism. A state, acting as an independent sovereign, should have absolute authority over matters of marriage. The Supreme Court's refusal to hear any case pertaining to the unconstitutionality of DOMA speaks clearly to the injustice of the system. Congress has blatantly overstepped its bounds. The facts that gay and lesbian couples are either barred entirely from certain benefits (e.g. jointly filed taxes), or must pay fees for the same rights and privileges heterosexual couples obtain for free (e.g. legal name change, power of attorney) underscore the fundamental inequity of DOMA and its violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Until DOMA is repealed or fails a constitutional challenge, or until legislation akin to a current bill which permits a state-issued same-sex marriage license for federal paperwork, gay and lesbian couples must remember that the rights that attach at marriage should not be assumed to exist in LGBT partnerships. To avoid any future complications (including a denied passport and also the terrible situation of being kept from a partner's hospital room), gay and lesbian couples should consult an attorney who specializes in the area of LGBT family law. It may take hundreds or thousands of dollars to complete all of the paperwork necessary, but you should consider the cost to be an insurance policy against unwanted surprises.
Have a question, comment, or response? Share your thoughts.Gay Iranian Teenager Finally Hears Good News, but Shame on the EU
Thankfully, the UK is reconsidering its decision to force a gay teenager back to Iran to be executed. I have been privately critical of both the UK and The Netherlands for their roles in this story, in which Iranian teenager Mehdi Kazemi was forced to travel between the two countries seeking asylum and was repeatedly denied. The British government has a policy not to deport people when it would be unsafe to do so, but ruled that it was not the case here. The Netherlands based on their decision on the European Union's 2003 Dublin Regulation, whereby asylum seekers must apply at the first country through which they enter the EU (in this case, the UK).
Fortunately on Thursday, Britain's Home Secretary Jacqui Smith announced that, "in the light of new circumstances since the original decision was made, I have decided that Mr. Kazemi's case should be reconsidered on his return to the U.K. from the Netherlands" where he currently is after having fled from Britain following his first denial of asylum.
While this story will likely have a happy ending, I am still left feeling nervous. While every independent sovereign undoubtedly should have the power to make individual determinations on the matter of immigration and asylum, a world which is increasingly interconnected must operate under a more ubiquitous checks-and-balances system. After all, the UN's Universal Declaration of Human Rights states that it is the responsibility of "every individual and every organ of society to promote respect for [human] rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance."
The EU's hyper-bureaucratic structure regarding the aforementioned Dublin Regulation halts any reasonable process of review. Why should The Netherlands be forced to honor an obviously erred decision from the UK? Britain claims that "new circumstances" caused their reversal, but I wonder what was initially unclear about "I will be executed if deported." Kazemi was lucky he was able to buy enough time for Britain to recognize their error. How many gay teenagers have been deported to their deaths because of European bureaucracy? And how many more will have to be before they recognize that the Dublin Regulation needs provisions to allow review in these cases?
Until human rights can be more universally internationally recognized, it is the obligation of other sovereigns to uphold their commitment to "promote respect [...] and freedoms." While the final outcome may be a welcomed relief to Mehdi Kazemi after a lifetime of fear, shame on the UK for initially failing to exercise due care in making their decision, and shame on The Netherlands for bowing to bureaucratic pressures instead of honoring their duty to protect a persecuted teenager. If the rule is unjust, then the rule must be changed.
Have a question, comment, or response? Share your thoughts.On the Legalities of “Male Eggs” and “Female Sperm”
Modern science is moving ever closer to the reality of male eggs and female sperm, truly a reproductive breakthrough for same-sex couples seeking genetically related offspring. Already scientists have been able to artificially create sperm cells from bone marrow, and eggs from embryonic stem cells. And though the reproductive viability of each of the sperm and eggs created has yet to be formerly tested, most are optimistic that success is within reach.
However, same-sex couples should hold their excitement until after visiting some of the potential legal implications.
Political and ethical objectors may halt this scientific advancement through legislative authority. After all, though human cloning is still not outright banned by the federal government, several states have enacted bans. And while this technology exists in a legally and legislatively unexplored nebula somewhere between reproductive assistance and cloning, the scope of several states' bans could easily be interpreted to include this technology as well.
Further, artificial reproduction technologies similar to this one have been addressed on point in other countries, such as the United Kingdom's explicit ban on artificial sperm. While the United States has not legislated in such a way, it would not be surprising if it were to revisit its stance should this new science become more viable. A morally charged voting bloc could wield more than enough power to sway a Congressional majority.
Finally, perhaps the biggest hurdle comes in the form of surrogacy and adoption issues. Male same-sex couples would still require a female surrogate. Laws vary from state-to-state, but many do not recognize the legitimacy of a surrogacy contract. This means that the surrogate mother would be legally recognized as the birthmother while the sperm contributor partner would be recognized as the sole father. It would then become necessary for the second partner to adopt the child. With several prohibitions on same-sex adoption, this portion becomes murky.
It is unclear how female same-sex couples would be implicated given that one partner could carry the child and there would be no male sperm donor to be declared the "father". Unfortunately, given the gendered nature of many birth certificates, many states would still likely require that a male step forward to claim fatherhood, even though the sperm actually came from the partnered female. That both female partners would be the child's biological parents confounds this analysis. With no legal precedent, we may have to wait and see how a court would rule in the competing interests of biological parenthood and state male-female gendered parental requirements before making a conclusive determination. However, the Morals Voters still may step in at this point to complicate matters even further.
So while "male eggs" and "female sperm" may become a scientific reality in the near future, couples may have to wait much longer for them to also become legal realities. It is truly an uphill battle that same-sex parents must fight, but one that may ultimately conclude with two male or two female partners having the ability to produce genetically related offspring.
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Washington governor Chris Gregoire signed the recently expanded domestic partnership bill into law yesterday, saying: "This bill is about protecting and helping Washington families. It simply gives these families the same rights as everybody else. It's the right thing to do." While the bill grants rights which stop short of marriage, Washington domestic partners will now enjoy 170 additional rights thanks to the legislation.
Washington Representative Jamie Pedersen, who sponsored the bill, recognizes that there are still crucial rights missing. A large amount of protections, including those typically granted by the Federal government, but also several extended by the state to married couples, do not exist in Washington's domestic partnership law. But Pedersen is optimistic, saying that the new bill is the "next step in addressing that injustice."
The movement toward marriage equality is, indeed, merely a series of steps. It is comforting to know that Washington is continuing to take them.
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On March 4, 2008, the California Supreme Court heard oral arguments in In re: Marriage Cases. Shannon Minter, attorney and Legal Director for the National Center for Lesbian Rights, argued on behalf of the same-sex couples. The suit challenges the constitutionality of state laws that discriminate against gay and lesbian couples in marriage.
You can now listen to the oral arguments online, or watch them on archived video. (Both links are external links directly to the media).
Have a question, comment, or response? Share your thoughts.Attempt to Ban Marriage in California
Equality California alerts that a group of anti-LGBT organizations are gathering signatures for a November 2008 ballot initiative to write prohibitions against gay and lesbian marriage into California's constitution. Their tactics thus far have been less than upstanding. A northern Californian reports of a conversation he had with a signature gatherer:
I asked him not to turn in the signatures that he had already gathered. He said that if I donated to his church, he would give me the petitions to rip up. Underneath his card table he had a little bucket for money donations to his church. He said for $7 I could have the petition, which already had about six or so signatures, and I could destroy it. I told him that I would not do this, because it could be against the law to pay to destroy the signatures.
The press release also recounts a southern California community college employee's story of a signature gatherer's attempt to trick her into signing the anti-gay petition by combining its forms with those of other unrelated causes.
The Equality for All campaign is calling for help from Californian allies to counter these efforts. Visit their website to find out ways you can help. Always remember that you should not engage in debate with petitioners. If conversation ever feels tense, you should leave the situation immediately.
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