This Week in Gay News Roundup: 4/26 - 4/30
So much has happened on the gay rights front this week. Here is a review in case you missed anything:
- Florida's anti-gay adoption laws are being challenged in both the legislature and the court. Though the legislation is expected to die without a vote next week, the court will soon hold hearings on the issue. The case is an appeal from a lower court ruling that permitted a gay man, Martin Gill, to adopt two abused and neglected brothers. Florida's statute states that no homosexual is permitted to adopt, and is the only state law in the country that completely prohibits an individual from adopting on the basis of his or her sexuality. Via The Miami Herald.
- The New Hampshire Senate Judiciary Committee has recommended tabling a bill that would expand marriage rights to same-sex couples by a vote of 3-2. At least 12 of the state's 24 senators must now support the bill in order for a motion to pass to be entertained. Governor John Lynch, who prefers civil unions, has previously expressed opposition to same-sex marriage, but has not given an official statement on whether or not he intends to veto the bill if it survives the Senate. Via Reuters.
- Update: The Senate has passed the bill 13-11 after an amendment prohibiting polygamy and incestuous marriages was added. It now heads to the governor's desk.
- Iowa began distributing marriage licenses to gay and lesbian couples on Monday, 24 days after the Supreme Court's ruling that approved same-sex marriage. 380 couples took advantage of the law on the first day it was available, including 25 out-of-state couples. Because Iowa law requires a three day waiting period between application and receipt of a marriage license, today is the first day that these 380 couples can officially say that they are legally married. Congratulations!
- The American Constitution Society has begun distributing a new issue brief [pdf] with a novel explanation as to why California's Proposition 8 — the constitutional amendment that re-restricted marriage in the state — is unconstitutional:
[T]o the extent the rights to liberty, privacy, due process and equal protection have not themselves been changed, then the pre-existing interpretation of those rights in Marriage Cases [the suit in which the Supreme Court previously found the right to marriage] must control. Thus, even if Proposition 8 is construed as a permissible amendment (as opposed to a revision), it would necessarily violate separation of powers principles because it purports to dictate a specific interpretation of certain other — indisputably unchanged — constitutional provisions.
Essentially, ACS argues that Proposition 8 cannot simply change marriage law without also changing the fundamental basis upon which the Court found the right to marriage. To do so would unconstitutionally rob the Court of their power to interpret the constitution.
- On the heels of the Designated Beneficiary Agreement Act, Colorado's legislature has now also passed a bill allowing partners of gay and lesbian state employees to gain access to their partner's health insurance plan. The law would require that same-sex couples be in a committed relationship for at least one year before qualifying for the benefits.
- The Maine Senate Judiciary Committee has approved a bill that would open marriage to same-sex couples in the state by a vote of 11-2. The bill now moves to the full state Senate for their vote.
Did I miss anything? Let me know in the comments.
Have a question, comment, or response? Share your thoughts.The Iowa/Vermont Effect: Support for Same-Sex Marriage Up 9%
A nationwide CBS News poll conducted this week shows a comforting result: 42% of those polled believe that "same sex couples should be allowed to legally marry." This is up 9% since just last month. Those saying that same-sex couples should have no legal recognition fell 7 points to just 28%. Support for civil unions rather than marriage hovers at 25%.
Though the margin of error for the poll is ±3%, the results seem to indicate a large growth of support for legal recognition for gay and lesbian couples. In the wake of the poll was Vermont's legislative and Iowa's judicial approvals of marriage inclusion, which many believe to be the impetus for such a widespread stance reversal. As more and more people see that same-sex marriage will not bring about the earth-shattering harms that anti-marriage groups peddle, I expect support for LGB unions to continue to rise.
Have a question, comment, or response? Share your thoughts.Professor Geoffrey Stone on Civil Unions and Religious Freedom
Illinois will soon begin to discuss the Religious Freedom Protection and Civil Union Act, a bill with the dual purpose of providing legal recognition for same-sex couples and permitting religious organizations to choose not to solemnize or officiate civil union ceremonies. The bill would also recognize marriages and other legal relationships between members of the same-sex performed in other jurisdictions as civil unions. Illinois currently offers no recognition for gay and lesbian couples.
Professor Geoffrey Stone of the University of Chicago Law School, like 60% of Americans according to recent polls, supports the legislation and wrote a very interesting opinion piece in the Chicago Tribune. He opines:
There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.
The rights for each of these groups have come incrementally. For instance, women won suffrage in 1920, employment nondiscrimination in 1964, and school nondiscrimination in 1972. Professor Stone believes the incremental approach to legalized same-sex marriage is appropriate as well, saying, "it is a reasonable compromise at this time in our history."
I disagree. 'Reasonable compromises' are what have led many people to believe that the fight for women's equality ended in 1970 with the Equal Pay Act when, in reality, women today are still paid 15-40 percent less than their male colleagues. By taking an incremental approach and settling for civil unions, we run the risk of fostering a perception that the problem has been fixed by a separate-but-equal institution. So why not go straight for full marriage equality? Professor Stone points to fears of losing religious liberty:
The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle. It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.
I agree with Professor Stone on this point and I believe he has articulated it beautifully. However, we diverge in opinion on the appropriateness of the "Religious Freedom Protection" part of the Act. While he regards the language as "a respectful and very substantial acknowledgment of legitimate religious liberty interests," I see it as a merely symbolic and unnecessary inclusion simply for political appeasement.
The case that has spawned the fervor over religious liberty took place in New Jersey, where a religious organization refused to allow a lesbian couple to use a pavilion it owned. As a result of their decision, the New Jersey Department of Environmental Protection took away a tax break given to the organization for opening the pavilion to public use. This was a case involving not religious freedom, but a bland and straightforward taxation principle: you may not receive a public accommodation tax exemption on a location that is not actually accommodating the public.
I do not believe that the Illinois provision would have affected this outcome. Section 15 provides only that the law does not "interfere with or regulate the religious practice of any religious body" and that an organization "is free to choose whether or not to solemnize or officiate a civil union." However, this is already the state of the law in all 50 jurisdictions; no religious institution is forced to recognize any marriage it does not want to. Many Catholic churches, for instance, do not perform marriage ceremonies for divorcees, while Orthodox Jewish temples may refuse to join a jew and a gentile. No provision of law could be read to force religious organizations to conduct same-sex civil union ceremonies.
What an organization cannot do, however — and what they still cannot do even with Illinois's provision — is accept a public accommodations tax credit for a building that is not a public accommodation.
We are left, then, with a component of the Religious Freedom Protection and Civil Union Act that is superfluous and merely symbolic. I do not assert that religious organizations should be denied the ability to observe whatever tenants it wishes, I simply do not believe that Section 15 is necessary to achieve this end. I also fear what the law may be implying. If the legislature specifically exempts organizations from being forced to perform civil union ceremonies, is the implication that they can be required to perform marriages between divorcees or between jew and gentile? Why codify only a single exception while leaving other exceptions up to mere 'common understanding'?
Finally, I believe Section 15 reinforces the misunderstanding that civil rights are zero sum. The truth is that we can make one group — gays and lesbians — equal without making a second group — the religious — unequal. Equality is not a limited resource, but rather something we all can and should share.
In the end, both Professor Stone and I support the Religious Freedom Protection and Civil Union Act, albeit I with less gusto. I believe the Act is a step above nothing and is certainly a welcome relief for Illinoisan same-sex couples, but is absolutely not where Illinois should stop. A "compromise," as Professor Stone calls this bill, is not equality; equality is equality.
Have a question, comment, or response? 3 people do.Couple Raises First Amendment Claim Against Anti-Gay Marriage Amendment
A Louisiana couple is challenging their state's anti-gay marriage amendment in federal court by claiming a violation of the Establishment Clause of the First Amendment. While the couple is also claiming violations under the Fifth and Fourteenth Amendments — the amendments that guarantee equal protection — this is the first time to my knowledge an Establishment Clause claim has been raised against a state's marriage amendment, and one of the few times the federal constitution has been invoked. The previously won court battles in Iowa, Connecticut, Massachusetts, and California had all been based on equal protection within their respective state constitutions.
Louisiana voters amended their state constitution in 2004 with 78% of the vote to restrict marriage to one man and one woman. A challenge to the amendment failed in 2005, when the state Supreme Court upheld its constitutionality.
The First Amendment's Establishment Clause, which states that "Congress shall make no law respecting an establishment of religion" has been broadened to apply to state governments as a result of the Fourteenth Amendment. A claim is generally evaluated by examining the purpose of the law being challenged. In order to survive a challenge, the law must have a secular legislative purpose and must not advance any religion. Kristoffer Bonilla, who is one half of the plaintiff couple and is representing himself pro se, alleges that the law violates this test. He claims:
Moreover, the supporting Louisiana provisions run afoul of the Establishment Clause of the First Amendment by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself. By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the State has necessarily established a wholly religious civil institution.
Though the argument is interesting and cuts to the core of anti-gay marriage amendments, I do not expect it to succeed. Unlike equal protection challenges that have required a law to be rationally related (or, in some cases, narrowly tailored) to a legitimate governmental interest, an Establishment Clause claim requires only a showing of a secular interest. The states that have acted as defendants in these cases have already put forward a number of secular interests served by their marriage amendments, the prevailing one being an interest in raising children in heterosexual, two parent homes. Though such a claim is subpar in an equal protection analysis, it and other advanced secular purposes will likely be sufficient to defeat an Establishment Clause claim. The First Amendment does not require that there be no religious motivation, just that the secular purpose dominates. There is likely not sufficient proof that the state was primarily motivated by religion, or that the primary effect of the law was religious advancement.
I do not believe the plaintiffs in will win much headway fighting Louisiana's law in federal court. Even if they win at trial, I doubt that the current US Supreme Court would be amenable to their arguments. While I believe in the right for any individual to fight to win their rights in court, I fear that Mr. Bonilla will not prevail with his claims. There will be a time that an equal protection challenge will succeed under the federal Constitution, but I do not think that this time is yet upon us.
There has been no public commentary yet from the large impact litigators like HRC or Lambda Legal about this case, and it does not appear that they are involved in any way. And while Forum for Equality — the organization that led the failed 2005 challenge — has made a statement about Mr. Bonilla's petition, they do not appear to be participants in the suit either.
Have a question, comment, or response? 4 people do.Maine Inches Ever Closer to Full Gay Marriage Rights
Maine state senator Dennis Damon received a standing ovation yesterday at a public hearing on LD 1020, a bill extending marriage rights to Maine's same-sex couples. Damon, the bill's sponsor, believes his legislation is important because it "recognizes the worth of every man and woman among us." Though Maine has provided domestic partnerships for same-sex couples since 2004, the rights fall short of those received through marriage. Companion bill LD 1118, also a topic of yesterday's hearing, would expand domestic partnerships to offer all the rights of marriage.
While passage of either bill is uncertain, many commentators are hopeful, and cite the bills' 60 co-sponsors and its positive reception in the state legislature as good signs. Although Governor John Baldacci has previously stated that he would not support marriage rights for gay and lesbian couples, he has indicated that he is keeping an open mind about the bill. It was expected that Baldacci would veto the bill if it passed the House and Senate, as happened in both California and Vermont.
A Bangor Daily News poll of 400 Maine residents asking their "position on the issue of marriage for gay and lesbian couples and civil unions" indicates some more positive news:
- 39.3% selected: "Support for full marriage rights for gay and lesbian couples."
- 34.5% said they, "Support gay and civil unions or partnerships, but not gay marriage."
- 23% said they, "Oppose any legal recognition for gay and lesbian couples."
The poll shows a 9% increase since 2004 in those supporting full marriage rights.
The bills' reception is important due to Maine's referendum process, which allows voters to effectively veto a law passed by the state's legislature. Such an initiative could resemble California's Proposition 8, the 2008 proposition reversing the California's Supreme Court ruling that extended marriage rights to same-sex couples.
While both bills still have a long way to go before coming law, many are still hopeful that the goal to bring full marriage equality to New England by 2012 is still within reach.
Have a question, comment, or response? 1 person does.Three Estate Planning Strategies for Same-sex Couples
Though no one likes to think about ones own mortality, it is important for same-sex couples to do some advance planning in the event of their death or incapacitation. Those couples living in states that no not permit marriage — or do not offer civil unions or domestic partnerships that include inheritance rights — especially need a will. Keep in mind that when there is no legal recognition of same-sex unions, gays and lesbians are often left with nothing upon the death of their partner. To avoid losing your home, your personal belongs, and, in some cases, your children, ensure that both you and your partner begin the estate planning process as soon as possible.
First, two common questions:
What is estate planning?
The process of estate planning merely refers to making decisions in life about what will happen at death. In addition to enabling you to control the disposition of your assets so that your belongings will go to the people you want, estate planning documents are also useful for naming the individual you want to make legal decisions for you should you become incapacitated, outlining your wishes when it comes to medical treatment, and indicating who you would like to parent your children should you pass away.
Isn't estate planning just for the rich?
Absolutely not! The word 'estate' tends to evoke imagery of mansions and diamonds, but the truth is that everyone, even you, has an estate. In legal terms, an 'estate' simply describes the collection of all your property at death. This includes your car, your house, any bank accounts, stocks, a stamp collection, your clothing, your pet, and anything you can think of that you own. The value of ones estate can be as small as a few thousand dollars, or as large as several billion; you do not have an 'estate' just because you are rich. While the wealthy tend to take estate planning more seriously as there are taxes they wish to avoid, same-sex couples also need to seriously consider this process because your partner often has no legal rights or claims in the event of your death.
Incorporating the following three strategies in an estate plan helps to ensure that all of ones goals are met:
- Choose an attorney who will work with you
- Plan for a system to update your estate plan
- Include a living will
Choose an attorney who will work with you
Be wary of so-called "will mills" that act as legal document services and offer to send you a prepared will after answering a few questions about your plan. Estate planning is about more than just drafting a legal document; it is about a competent attorney figuring out what your plans are and what will be best for you and your family. Many estate planners simply focus on reducing your tax liability, but a good counseling-oriented lawyer will interview you and make sure to incorporate appropriate and tailored protections for catastrophic disability, divorce or separation, remarriage or re-partnership, a plan for any minor children, and other considerations that go beyond simple property distribution. If you feel that you do not have an attorney who is listening to your needs and goals and ensuring that these needs and goals are reflected in your estate plan, pick another attorney.
Finding a lawyer with experience in gay and lesbian estate planning is wise as well. Same-sex couples face a few hurdles that opposite-sex, married couples do not, and an attorney who is unaware of this may leave gaps or errors in your estate plan. Any mistakes your lawyer makes will not become apparent until you are deceased and it is too late, so avoid the future headaches and select an experienced LGBT estate planner.
Plan for a system to update your estate plan
Many individuals make the mistake of drafting their estate plan and then never updating it. Changes in your wishes, the property you own, and your relationships (marriage, divorce, or separation) should be reflected in updated documents. Not all changes require a complete re-execution of your will, but some may. This is another reason a competent attorney is preferable to a "will mill". Many estate planners offer a service where, for an annual fee, you can return to your attorney to make changes to your estate plan. Your attorney will also update your will to comply with changes to the law. While an annual fee may sound undesirable, especially to a 30-year-old not planning to die for a while, the expense is usually less in the long run as you do not have to later pay for an entire redrafting if your situation ever changes.
Include a living will
The horror stories you hear about gay couples being denied the ability to be together when one is in a hospital room can usually be avoided with a living will. Often also called "medical powers of attorney" or an "advanced directive", this document enables you to name the person you would like to make medical decisions for you in the event of your incapacitation. Many bitter battles have been fought between an LGBT individual's family and his/her partner when there is a disagreement about whether or not to 'pull the plug'. You can save a lot of heartache by making your wishes clear and naming an individual you can trust to carry out your wishes. This person will also make decisions for organ donation and the disposal of your remains.
While it is easy to write off estate planning as necessary only for the elderly or terminally ill, remember that tragedies can happen in an instant. Many gays and lesbians have had to deal with legal troubles in addition to their personal grief when a sudden accident strikes their partner. You can give both you and your loved ones additional peace of mind by taking care of your estate plan early.
Have a question, comment, or response? 1 person does.