This Week in Gay News Roundup: 11/1 - 11/6
The week that brought us the one year anniversary of California's Proposition 8 and the passage of Maine's Proposition 1 was certainly not a celebratory one. Here is what happened this week in LGBT law in case you missed it. For for up-to-the-minute news stories, follow FamilyFairness on Twitter.
- Proposition 1, the Maine bill allowing voters to overturn the legislature's earlier passage of marriage equality, passed with a margin of 53-47. Same-sex marriage was supposed to come to Maine on September 14 this year, but was put on hold pending the results of the veto vote. Maine was the fifth state to legalize gay marriage, and the first to successfully do so legislatively (California's legislature also twice passed a marriage bill that was vetoed by Governor Schwarzenegger).
- On the same election day, voters in Washington affirmed the expanded domestic partnership law that had been passed earlier this year. Referendum 71, the voter initiative seeking to affirm legislatively expanded domestic partnerships, was approved on a margin of 52-48. Washington retains its "everything but the name" version of marriage.
- Basic Rights Oregon announced that it was seeking to repeal the state's Constitutional ban on same-sex marriage in 2012. The amendment has existed since 2004, and was passed in response to Oregon's Multnomah County movement to give marriage licenses to same-sex couples. 3,000 licenses were issued until a judge found no right to gay marriage under Oregon laws and invalidated them all. Oregon has had expanded domestic partnership laws since 2007.
- A United States Department of Justice answered Massachusetts's petition to find the Defense of Marriage Act (DOMA) unconstitutional in that it deprives Massachusetts's married citizens of federal spousal benefits. While the DoJ agreed that DOMA was discriminatory and wanted it overturned, it said that "[t]here is, however, no fundamental right to marriage-based federal benefits." Massachusetts is the first state to issue a challenge to DOMA.
- Tena Callahan, the Texas trial court judge who ruled that her state's ban on same-sex marriage is unconstitutional explained her ruling. In reference to popular support in Texas for keeping gay marriage illegal, Callahan said: "My dad always used to tell me that a billion people can believe in a bad idea, and it's still a bad idea. And that man taught me to have the courage of my convictions and to do what's right." Her opinion is expected to be overruled on appeal.
I hope voters in California, Maine, and any other state in which the people try to turn back civil equality remember Callahan's words.
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The Evils of DOMA: COBRA and Health Care
I spoke yesterday about the importance of the word "marriage" and why it was impossible to fight for the rights without also fighting for the word. Many current federal programs and benefits only recognize married partners. While we do not yet know how the federal government will deal will civil unions and domestic partnerships following the repeal of the Defense of Marriage Act (DOMA)—the statute allowing the federal government to ignore same-sex spouses—it is unlikely that the federal definition of marriage will be expanded to include these other relationships. As a result, despite states like Oregon, Washington, and Nevada offering expanded domestic partnerships with all of the rights and responsibilities of marriage, only same-sex partners married under the laws of Massachusetts, California, Connecticut, Iowa, Vermont, Maine, or New Hampshire would actually have access to these federal programs.
COBRA is a federal law that allows workers who were laid off by an employer who staffs more than 20 employees to retain their health insurance benefits for themselves and for their spouses and children. Because of DOMA, COBRA does not currently apply to any same-sex couple. This means that the gays and lesbians among the current 30 million unemployed Americans are also being denied affordable healthcare for their families. The repeal of DOMA is necessary, but will still not suffice in the states in which same-sex couples have "won" the rights of marriage but not the word.
While I appreciate to some extent those who say they support civil equality for gays and lesbians but not the conveyance of the word marriage, they must understand that domestic partnerships cannot simulate all of the rights of marriage. Even with the assistance of an attorney and every legal document he could produce, same-sex couples can not be equal until they can marry.
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California Proposition 8 Anniversary: Revisiting the (Bad) Arguments
The following is an editorial:
In the last year, we had some victories: marriage equality came to Iowa, Vermont, and New Hampshire, recognition came to Washington D.C., and Domestic Partnerships came to Nevada and were expanded in Washington. And then today, on the one year anniversary of California's Proposition 8, the constitutional amendment that took away same-sex marriage, gay and lesbian residents of Maine wake up with the news that Proposition 1 had passed and their marriage rights were revoked. The battle over Proposition 1 showed that opponents of marriage equality have not developed their arguments much since Proposition 8, but that, unfortunately, those arguments were still working. With that knowledge, I feel obligated to revisit some of the claims made in the debate surrounding same-sex marriage.
On November 18, two weeks after the passage of Proposition 8, The View featured a segment discussing the proposition and same-sex marriage generally. The show's two conservative members, Elisabeth Hasselbeck and Sherri Shepherd, took the stance against same-sex marriage. The video is to the right. I have extracted some of the two ladies' arguments to address:
"...this is minimizing [the struggle for racial equality]. To equate what's going on—and now these protests—and those situations during the civil rights moviement; it just shouldn't even be happening. It minimizes all what occurred."
Civil equality is not a competition; the winners are not the ones that suffered the greatest. Discrimination and the denial of rights should be addressed and remedied whenever it occurs, not just when it is the greatest example of discrimination. To discredit the gay rights movement in this way is to discredit the American feminist movement because women in the Middle East have it worse.
Promoting same-sex marriage does nothing to minimize the black civil rights movement. Rather, it is a continuation and the next step in the fight to win social equality regardless of race, sex, or sexual orientation.
"They should be fighting for the rights rather than the word 'marriage'. There are a lot of people who are arguing there were four judges who decided what was best for the country all of a sudden. This Prop 8 came as a result of that. These protesters, in essence, are protesting what the majority wants."
The rights of marriage and the word 'marriage' itself are entangled. It is impossible to impart all of the rights without also providing the word. This is because the concept of marriage is one that, for the purposes of law, is recognized uniformly through each of the states in the country. Civil Unions and Domestic Partnerships do not enjoy such ubiquity; a couple could not travel from Oregon to Nevada and have their relationship recognized even though both states have Domestic Partnerships. Even in states that provide comprehensive Domestic Partnerships, some benefits, like pension agreements, insurance policies, and other private offerings are available only to couples who are 'married'. So it is impossible to to fight for the rights without also fighting for the word.
Further, I believe it is a miscategorization to say that four judges decided what was best. The California Supreme Court did not make any value judgement on same-sex marriage; it simply held that the Equal Protections Clause of the California Constitution made the denial of marriage rights—a "basic civil right"—to a protected class unlawful. The ruling followed 4 years of procedural history and argumentation. To make it sound as if the judges woke up one morning and decided to judicially mandate marriage equality is misleading and dishonest.
The protestors were not protesting what the majority wanted; they were protesting the fact that a slim majority (52% of voters) could strip fundamental rights from a class of people in defiance of the state's three elected branches of government—executive, legislative, and judicial. They were protesting that the will of only 7 million voters in a state of 37 million could decide whether or not they were permitted to marry the person they love. They were protesting the frightening precedent that voters could decide civil rights. To characterize the protesters "in essence" as anti-democratic sore losers is an demeans their message.
"There are some people who go 'because I can, I want to have my dream wedding in a Church and you're saying 'no', so I might sue you because you're discriminating against me' And so you're impeding on their rights and their beliefs."
Gay and lesbian rights are no threat to religious freedom.
"If you're voting yes on Prop 8, then all of a sudden, you're a bigot."
Bigot is not a nice word, and it does not feel good to be called one. But if you did vote yes on Proposition 8, you chose to jealously keep a right that you enjoy from a group of people. It does not matter what your reasons are, because the outcome is the same. People who once could marry their partners are once again legally prohibited from doing so. Your marriage was not affected for better or worse as a result of your vote. The only thing that changed is that we could no longer have ours. You may claim no animus, but you can not strip away a right from a group of people while gaining nothing for yourself and call the action anything but malicious. You may not feel like a bigot, but your vote was one a bigot would cast. Love is not a limited commodity to be hoarded.
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Brazilian Man Denied Ability to Live with US Partner
Family Fairness discussed in March how same-sex couples were hurt by anti-gay immigration policies. Because of the Defense of Marriage Act (DOMA), a gay or lesbian United States citizen is unable to sponsor his or her partner for residency. Hope was on the horizon in May, when the Senate held a hearing on the Uniting American Families Act, a bill designed to give committed same-sex couples the ability to reside together in the country.
Unfortunately, the wheels of progress turn slowly. Last week, a Brazilian man was denied asylum to live in the United States with his Massachusetts partner, despite the couple's Massachusetts marriage license and co-ownership of a home. Because same-sex partners are not eligible for automatic citizenship when one partner is a US citizen, the couple was required to file a special asylum application. Rather than respond to their request, US Attorney General Eric Holder ignored it. The application has now lapsed, and the couple's request effectively denied.
The couple plans to initiate a legal challenge to DOMA for its violation of immigration and humanitarian laws. However, they have already spent approximately $250,000 in legal bills over the course of their forced separation, which has lasted more than two years. Until the passage of the Uniting American Families Act or the repeal of DOMA, this story will repeat. Couples should not be denied their basic human right to be together simply because of the sex of their partner. Shame on Attorney General Holder for dragging his feet on this important issue.
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Married on the Internet - Even if your state doesn’t allow it
Professors Mae Kuykendall and Adam Candeub of the Michigan State University College of Law collaborate on a legislative initiative called the E-Marriage Project. Their latest article, E-Marriage: Breaking the Marriage Monopoly, argues that "couples can use internet communications not only to marry when separated by great distance, but also to choose which state's laws will authorize their marriage."
According to the professors, physical residence in a state has historically never been a requirement that states must impose on couples before marriage. In fact, couples with one member in the military have long taken advantage of the ability to marry by proxy, and these marriages have been legal and valid.
Though the E-Marriage Project does not suggest that a couple's home state would be required to recognize the marriage, they do support legislation in each state that authorizes out-of-state couples to marry via the telephone, mail, or Internet. A law of this type would have a great impact on the gay and lesbian community, whose marriage prospects are currently limited to six states. Many out-of-state couples traveled to Massachusetts and Iowa from the surrounding states when they began issuing marriage licenses to same-sex partners, and E-Marriage could offer a gateway to nuptials for other Southern, Mid-West, or Pacific couples who cannot physically travel to Iowa or New England.
While, for instance, an Arizona couple E-Married in Vermont would receive no formal recognition or marital benefits in Arizona, the ability to obtain a marriage license without the expense and difficulty of travel allows for a symbolic bond that cannot be replaced. Additionally, couples can perform ceremonies in their own state surrounded by friends and family.
E-Marriage may do little for same-sex partners seeking legal rights, but is a step in the right direction to break down barriers and bring marriage equality to all 50 states. Family Fairness will be keeping an eye on the project and supports its efforts.
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Mediation for Gay and Lesbian Break Ups
Family Fairness is honored to host a guest post from Family Mediator Rich Gordon. Mr. Gordon discusses the difficulties same-sex couples face when their relationships end. Unlike opposite-sex married couples, same-sex couples in long-term unions do not have the luxury of turning to the courts for assistance when determining child custody, property division, pets, bills, or any of the number of joint obligations taken on during a partnership. Instead, Mr. Gordon recommends these couples look to a family mediator for assistance:
Sarah and Beth have lived together for seven years. They intended to live happily ever after, but as too often happens, they drifted apart and their relationship started to strain at the edges. Communications was cut off. Sex was a bother rather than a pleasure. They no longer laughed together. It was time to end it and move on.
Unfortunately there were "entanglements" which had to be addressed. There was the house they purchased and decorated together. There were credit card bills to face. There were life insurance policies taken out during better times. They had but one car to share between the two of them. Who would get the dog? There was only one CD player and so many discs. The biggest issue, however, was Margo; Sarah had given birth, but both were the child's parents.
Unlike straight couples, gay and lesbian couples do not have the option of turning to the law for an answer. Straight couples can use case law and statutes to untangle their relationships and property; gay and lesbian couples cannot. The law often does not protect the individuals of a same sex marriage as it does heterosexual couples. There are no rights of spousal support, visitation, pension benefits or other community property protections.
One solution for this problem is mediation. Through this process, parties can work on solutions that are not available to them through the traditional court system. By selecting mediation, the parties in a dissolving relatcionship are choosing to take charge of their lives by maintaining their sense of dignity and self-esteem. They are saying that they prefer to end their relationship in a cooperative, forward thinking way, which minimizes the anger associated with the break up.
A skilled and experienced mediator is able to create a safe place and a cooperative environment that encourages the parties to engage in open and honest discussion. The mediator's role is that of an impartial neutral. He must identify the issues, explore each parties underlying interests, and balance the power within the relationship.
A mediator is NOT an advocate for either party, nor does he make the decisions which affect the settlement. They are trained to listen and help each of the parties to stay focused on the task at hand. During the course of mediation, the parties are encourage to discuss all of the issues and explore the various options they have to resolve their differences.
The final product of a successful mediation is a Memorandum of Understanding. This is analogous to the Martial Settlement Agreement for straight couples. The Memorandum of Understanding is a contract that sets forth the details and specifics of the mutually agreed to decisions. If either party breaches any of the terms, the other has a right to sue for enforcement in a court of law.
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