hunter of justice

Will marriage make a difference in will contests?

From Keen News Service:

One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass. The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up. The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits. The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents. The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley. In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.” But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act (DOMA).

DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples...Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits. Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.

Notes from Brazil

A friend writes from Brazil that two more same-sex couples have married since a state trial judge ruled that gay couples could convert their "stable unions" into marriages, as different-sex couples are allowed to do. The second of the two marriages was between a judge and her partner. So far, there have been no challenges to either one.
 
Less happily, some lower court judges are refusing to recognize stable unions between gay partners, on the grounds that they do not agree with the Brazilian Supreme Court ruling that legitimated them. These decisions will be reversed, but they function as political statements against LGBT people.
 
Unfortunaly, at the same time, Brazil is also experiencing a wave of hate crimes. One, involving a man who was almost murdered, became national news. The man was hugging his adult son, and the bashers mistakenly thought they were a couple.

Data on same-sex marriages and civil unions in the U.S.

The Williams Institute has published the data chart below. Note the dramatic jump in the number of marriages in 2008, reflecting the period during that year when same-sex marriage was legal in California. 

 

Chilean government to propose legal recognition for gay and straight unmarried couples

The government of President Sebastian Pinera of Chile will present a bill to the national legislature that would grant legal rights to gay and straight couples who have lived together for more than one year, according to La Tercera and the English-language Santiago Times. The proposed status would be called "Acuerdo de Convivencia No Matrimonial" (ACNM), translated as Non-Marital Cohabitation Agreements.  

President Pinera was elected as the conservative alternative to a more progressive incumbent. In last month's March for Sexual Diversity, demonstrators protested Pinera's failure to keep his promise to back a civil unions bill. He has now announced his intention to submit the legislation, although it was unclear whether his party (UDI) would support it. Similar bills have been introduced in the Chilean Congress since 2009. 

If the bill passes, Chile (yellow on the map, along with Venezuela, which also has pending legislation) will join Brazil, Colombia, Ecuador, and Uruguay (light blue) in having laws similar to civil unions or the French PACS for unmarried partners. Argentina has legalized same-sex marriage (dark blue).

From The Santiago Times:

Chilean President Sebastián Piñera passed his proposal that allows for gay partners who live together for at least a year to apply for civil union to members of his Alianza coalition on Monday.

After increasing demands for the president to address the issue, he released details of the “Acuerdo de Conviviencia No Matrimonial,” or Non-Marriage Living Agreement (ACNM), so that members of both the Renovación Nacional (RN) and the Unión Demócrata Independiente (UDI) parties can examine the proposal before Piñera’s team submits a formal proposal to Congress.

The preliminary text of the agreement calls it “a contract that two people, of the same or different sex, can celebrate with the idea of regulating their relationship.” The ACNM states that the couple must sign the agreement before a notary and that the contract must be validated within 15 days before the Civil Registry. One of the main prerequisites is that the couple must have lived together for at least a year.

Members of the UDI have already responded to the president’s proposal, saying that the gay community doesn’t need as much special recognition as one thinks.

“Today, the society is not prepared for this kind of thing,” UDI deputy Cristián Letelier told Radio Bío Bío. “It’s a reality; the sexual minority is largely in the more affluent sectors of society.” In that sense, Letelier said he was open to some benefits such as inheritance rights. “But to sign a document and have some sort of ceremony at the registry office, I think that does not conform to the reality of the facts,” Letelier said.

A couple of weeks ago, the UDI decided to develop its own proposal called the “Pacto de Acuerdo Recíproco” (PAR), which seeks to protect the identity of marriage. However, the president made it clear that the recognition of civil unions pledged during the campaign requires a regulation as defined in the ACNM. As a gesture, he allowed the UDI time to review his proposal before finalizing the initiative.

The proposal also stipulates that the couple won’t be approved if one of the contracting parties is already married or has already signed a pact with another person but has not legally dissolved it. The agreement can be terminated through death, marriage or a mutual agreement signed by both partners.

How same-sex marriage, without more options, can set back progressive goals

Once again, the NY Times has discovered an issue that many of us have been wrestling with for years: how to preserve alternatives to marriage for gay and straight couples who want other options.

This problem will be somewhat alleviated in 2014, when the health insurance exchanges mandated by the health reform law will come into effect. Exchanges will guarantee that every individual, regardless of marriage or other relationship, will be able to purchase a health insurance policy at group rates. But those policies are likely to be inferior to what is available through employer-sponsored insurance and will cost more than the incremental "family" premium that applies to most workplace policies. Moreover, the policies offered on exchanges will do nothing to address the range of non-workplace related issues that often come with partner or marital status, such as visitation and inheritance rights.

Now that same-sex marriage has been legalized in New York, at least a few large companies are requiring their employees to tie the knot if they want their partners to qualify for health insurance.

Corning, I.B.M. and Raytheon all provide domestic partner benefits to employees with same-sex partners in states where they cannot marry. But now that they can legally wed in New York, five other states and the District of Columbia, they will be required to do so if they want their partner to be covered for a routine checkup or a root canal.

On the surface, this appears to put the couples on an even footing with heterosexual married couples. After all, this is precisely what they have been fighting for: being treated as a spouse. But some gay and lesbian advocates are arguing that the change may have come too soon: some couples may face complications, since their unions are not recognized by the federal government.

“Even with the complications, many people will want to get married for the reasons people want to get married,” said Ross D. Levi, executive director of the Empire State Pride Agenda. “But from our perspective, to hinge something as important as insurance for your family to what is still a complicated legal matter for same-sex couples doesn’t seem to be a fair thing to do.”

He said that there were a variety of reasons — legal, financial and personal — that companies should keep the domestic partnership option at least until gay marriage was recognized at the federal level. Legally speaking, getting married could create immigration issues or it could potentially muddy the process of adopting a child. In some instances, he added, an employee may work in a gay marriage state but live in a neighboring state that does not recognize the marriage. The couple may want to wait to marry until they can be legally wed in their home state.

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

The employers making the changes said they spoke regularly with their gay and lesbian employee groups and planned to phase in the requirement. Corning, based in Corning, N.Y., said it would offer a reasonable grace period, though it had not completed the details.

“After waiting so much time for that right, we want them to have the opportunity to enjoy that,” said Christy Pambianchi, a senior vice president for human resources at Corning, which put the policy into effect in New Hampshire and Massachusetts when gay marriage became legal there. She said employees did not raise concerns about the requirement. “They are delighted,” she said.

Raytheon, based in Waltham, Mass. — another state where gay marriage is legal — said it would give employees several months to comply with its marriage requirement. Like Corning and I.B.M., the company said domestic partner benefits would remain in states where couples cannot marry (Raytheon also has an exemption for active members of the military, so they are covered for benefits without having to marry. Getting married violates the “don’t ask, don’t tell” policy, which is being phased out).

I.B.M., based in Armonk, N.Y., said its workers would have up to a year to get married to maintain their current benefits.

At least for now, these companies seem to be in the minority, though it is unclear whether more employers will follow their lead. Eastman Kodak, based in Rochester, said it would continue to offer domestic partner coverage to both same-sex and opposite-sex partners.

“My impression is that there has been lots of discussion about dropping domestic partner coverage when marriage is first opened up to same-sex couples, but very few employers actually end up taking this step,” said Jennifer C. Pizer, legal director at the Williams Institute, which studies sexual orientation law and policy issues. “Some employers initially believe that it is fairer of them to impose the same marriage requirements on all employees, regardless of sexual orientation. But then employees and others explain that employees with a same-sex life partner remain in difficult circumstances due to the continuing federal discrimination.”

Whether same-sex couples marry, they will still be responsible for paying federal income taxes on the value of their partner or spouse’s benefits since they are not recognized by the federal government as an economic unit, unless the person covered is considered a dependent. Couples will not owe those taxes at the state level in places like New York that recognize gay marriage.

But it should become easier for gay employees who marry and live in New York to obtain insurance for their spouses. (There are an estimated 42,000 same-sex couples in New York, according to the Williams Institute.) Not only are the same-sex spouses of state workers eligible for spousal coverage, but the same goes for many people who work for private employers.

There could be some exceptions, however. Employers who do not contract with an insurance company but instead pay for health benefits out of their own assets — so-called self-insured plans — are not subject to the state’s insurance laws but are governed by federal law.

Most large employers have self-insured plans, said Helen Darling, president of the National Business Group on Health, a membership organization that focuses on health policies for large employers. That means they can choose to cover same-sex employees, but they do not have to. While virtually all large company plans cover legal spouses, she added, some companies offer domestic partner benefits only to gay employees who do not have the option to marry. (Some companies also extend the benefits to heterosexual unmarried couples.)

“I am getting a lot of questions about what other employers are doing,” Ms. Darling said. “I see a movement coming where marriage will be a factor where marriage is possible.”

The big hole in the Rhode Island civil unions law

Time will tell whether the new Rhode Island civil unions law was worth it. Its structure is much like that of other state civil union laws, with one major exception: it contains a dangerously broad exemption for institutions and individuals to refuse on religious grounds to recognize the validity of a couple's legal relationship. 

The key text (emphasis added):

15-3.1-5. Conscience and religious organizations protected. – (a) Notwithstanding any other provision of law to the contrary, no religious or denominational organization, organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:

(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a  purpose related to the solemnization, certification, or celebration of any civil union; or (2) To solemnize or certify any civil union; or (3) To treat as valid any civil union; if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.

Other state laws, like New York's new marriage statute, provide an opt-out on religious grounds from events related to the solemnization or celebration of a same-sex relationship. In Rhode Island, religiously-affiliated organizations and their employees are exempt from recognizing that the couple has any legal status.  This could affect medical care, social services, employment and a range of other transactions. (Religiously-affiliated hospitals, however, will still be bound by the new HHS rules for hospitals receiving Medicare that concern issues such as partner visitation.)

If this exemption is still in place in three years or so, I hope someone does a study of whether and how religious entities in the state utilized it and what the impact would be if this language were to be more widely adopted, as I'm sure its proponents will seek.

European Parliament presses states for recognition of same-sex marriages and unions

The European Parliament has adopted a resolution calling for all EU member states to engage in "the mutual recognition of the effects of civil status documents." In effect, this is a declaration that EU members should recognize the marriage certificates of same-sex couples, but not a requirement that they must do so.

The Parliament said it "strongly supports plans to enable the mutual recognition of the effects of civil status documents" and "stresses the need to ensure mutual recognition" of them. The next step in the process is for the European Commission to propose ways to achieve mutual recognition of all partnerships and marriages throughout the EU.

Source: Pink News

Election Day 2009 preview: Maine and Washington

An analysis by Lisa Keen, from Bay Windows:

In what is being described as perhaps the "narrowest margin ever for qualifying for the ballot," the Washington State Secretary of State’s office announced Monday evening that opponents of gay relationships in that state collected enough valid signatures to secure a ballot measure this November. The measure, which will be known as Referendum 71 or R-71, seeks to overturn Washington’s domestic partnership law, which provides same-sex couples with "everything but marriage."... And meanwhile, the Maine Secretary of State [has announce] that a ballot measure seeking to overturn that state’s newly minted equal marriage law has been certified for the ballot there this November.

Washington: Referendum 71

...Washington Families Standing Together, a group seeking to preserve the domestic partnership law, filed a lawsuit August 27 challenging the Secretary of State’s signature validation process. The lawsuit asked a state court to stop the Secretary from certifying the petitions, contending that the Secretary accepted some petitions that do not meet state requirements. A King County judge refused Wednesday, September 2 to interfere with certification of the ballot measure, and the Secretary of State then certified Referendum 71.

The group seeking to overturn the domestic partnership law, Protect Marriage Washington, also filed a lawsuit -- in federal court -- seeking to seal the petitions from public scrutiny. The group claims that pro-gay activists will harass voters who signed the petitions. The state Public Disclosure Commission has already rejected the group’s request to conceal the signatures and a federal judge issued a temporary order stopping release of the signatures, pending a final decision.

The Washington Secretary of State’s website has been making daily reports about the count process and the lawsuits during the past month as election officials examined each of 137,689 signatures turned in by Protect Marriage Washington. The group needed 120,577 to qualify for the ballot. Early indications suggested the rejection rate of signatures might be high enough to prevent the group from reaching the requisite number. According to the website, the rejection rate on petitions has been about 18.5 percent historically, but Protect Marriage handed in a much smaller number of signatures, meaning it had to reach a rejection rate that was under 12.4 percent to qualify. In the end, its signature rejection rate was 11.8 percent.

And then there’s Maine

Having enough signatures has not been in question in Maine. There, a coalition of groups called "Stand for Marriage Maine" turned in more than twice the 55,000 signatures they needed.... [A] measure to repeal the state’s newly passed marriage equality law has been certified for November’s ballot. That puts the law, which was set to go into effect this month, on hold.

The battle against same-sex marriage licensing in Maine is being led by anti-gay newcomer Bob Emrich, pastor of an independent Baptist Church in Plymouth, Maine -- population 1,257, according to the 2000 census. Emrich is also director of a group he calls the Maine Jeremiah Project, a 501(c)(3) named after a passage from the Book of Jeremiah that urges exiles to pray for "peace and prosperity" in their own city because if the city prospers, "you too will prosper." According to his website, these words call on him to focus on "public policy and contemporary culture."

He’s part of a coalition called Stand for Marriage that includes his group and 10 others. Marc Mutty, director of public affairs for the Roman Catholic Diocese of Portland, Maine, is chairman of the coalition group, that includes the diocese, several Catholic fellowship groups, and several national conservative organizations. Among the latter is the National Organization for Marriage, the Eagle Forum, Concerned Women of America, and Family Watch International.

Since forming its campaign committee in June, the Stand for Marriage Maine coalition has taken in $343,690 in contributions -- 99.7 percent of which has come from only three entities: the National Organization for Marriage ($160,000), the Portland diocese and affiliated groups ($152,000), and the state chapter of Focus on the Family ($31,000).

This unusual concentration of funding -- only a few hundred dollars coming from individual donors -- set off the bells and whistles for one pro-gay California activist. Fred Karger, founder of Californians Against Hate, contacted the Maine Commission on Governmental Ethics and Elections Practices. He suggested it could be a sign that the organizations are "trying to hide the true identities of those contributing to the campaign," which could run afoul of state election funding laws.

Jonathan Wayne, head of the commission, said a ballot question committee, like a political action committee, must accurately report the source of its contributions. He said his commission has asked Karger to "reformulate his request" to provide more specific information before it proceeds. The commission has also given Stand for Marriage an opportunity to respond to Karger’s concerns.

Meanwhile, the key group working against the referendum, "No on 1: Protect Maine Equality," has raised $143,290 -- only $35,000 of which has come from national groups ($25,000 from the Human Rights Campaign and $10,000 from the ACLU). Equality Maine, another group working to defend the equal marriage law, has raised $63,561 -- of which $20,000 came from a national group, the National Gay and Lesbian Task Force....

The Blankenhorn-Rauch peace proposal on marriage

In today's N Y Times, there is a jointly-authored proposal for a compromise on marriage by David Blankenhorn (self-described liberal anti-gay marriage advocate) and Jonathan Rauch (self-described gay conservative). There's probably a good chance that you've already read it, given the placement and the strange bedfellow authors; if not, you should. The op-ed is likely to be the beginning of an effort to build support for this approach. Look for a panel on it later in the spring at Brookings, where Rauch is a fellow.

Blankenhorn and Rauch call for a federal law that would make these changes:

• Recognize as civil unions all same-sex couples who have married or registered in their states for civil unions, and extend federal marriage benefits and duties to this group;
• Condition this recognition on the states according "robust religious conscience exceptions" for religious organizations that object to same-sex marriage; and
• Enact new federal provisions that shield religious organizations from federal law penalties if they refuse to recognize same-sex marriages.

First, credit where credit is due: this proposal will break the ice and hopefully start a useful conversation that focuses on a federal law geared to benefits. And, it cannot have been easy for these two voices to have reached agreement. I credit them both with good faith and good intentions.

That said, I've got problems.

As I’ve said before, I support federal recognition of civil unions as the best next step to take on relationship recognition. And I also support some degree of opt-out, in some situations, for churches/synagogues/mosques and the next concentric circle out of sectarian organizations. But there  are two big pieces of this proposal that I can’t go along with. 

First, if federal law is going to continue to follow state law for the purpose of defining who is eligible when a federal program requires marriage, then it should recognize as marriages  – not as civil unions – the Mass and CT and other same-sex marriages that are legal under state law.  Following the status recognized by the state has always been the federal approach.

If that is going to change, as Blankenhorn and Rauch propose, then federal law should create a federal civil union status - independent of state law - as the eligibility requirement for federal programs. It would, as a federal status, be open to couples who qualify regardless of whether their state of residence recognizes civil unions. And note that I didn't say "gay couples" - a federal civil union status should be open to both straight and gay couples.

Second, satan is truly in the details of their proposal for a “robust” exception for religious belief. It was  striking to me that the op-ed completely omitted any discussion of the impact when non-church (etc) entities – like charities or hospitals with a religious affiliation –  accept public funds. When all of our tax dollars are supporting these organizations, then all of us have a legitimate concern about the services they provide.

Consructing a fair op-out system should reflect the spectrum of American social institutions from the wholly religious faith group or congregation, on one end, to public agencies and the marketplace on the other. We need ways to allow for religious zones in a secular culture, without imposing religious litmus tests on public functions.

The most important aspect of the Blankenhorn-Rauch proposal is that it implicitly establishes what I agree is the right threshold for moving out of gridlock: support for civil unions that are materially equal to marriage, paired with some degree of opt-outs for entities that are thoroughly religious.

I also agree with creating a national legal landscape in which gay couples living in states that recognize marriage equivalents like civil unions can get federal as well as state equality as to the material aspects of marriage.  LGBT rights advocates can still pursue access to marriage itself on equal terms, which I also support, since the difference in designation is obviously intended to function as a signaling device for communicating second-class status. But those battles would be fought against a background and baseline of having had the material benefits already equalized. The outcomes will continue to be different in different states until the Supreme Court weighs in.  Don't hold your breath.

Of course, neither my nor their proposal does anything to deal with legal recognition for non-marriage-like relationships, like those found in extended families or when non-sexual partners make serious commitments to each other (often among elders).  But I have come to  believe that unknotting the marriage issue is a necessary first step.  For better or worse (sorry), I don’t think that we will ever get to the other issues until after the frenetic sugar-high anxiety and  emotion of  the marriage issue seems more resolved than it is now. Once  that  happens, there will be more political and cultural space to think beyond marriage.