Culhane: How DADT repeal will help gay marriage
Depending on whom you read and rely on, the DADT ban is or is not about to be history. Many stories have been written on the proposed law, but not much has been said about this point: If the repeal does go through, the case for marriage equality becomes rhetorically stronger. Why?
First, unlike many of the laws that seek equality for the LGBT community, DADT and the ban on same-sex marriages are instances where the government itself is doing the discriminating.
Thus, the rhetoric that’s used in one case applies to the other: Government should treat all of its citizens equally. Even an unreconstructed libertarian like Rand Paul – currently in boiling water because of his statements that the government shouldn’t tell private businesses whom they can and can’t deal with (including, say, African-Americans) – should support a principle of basic fairness and equality for all citizens. (He doesn’t, of course, so his libertarianism is born of convenience, not principle.)
Second, the most-often heard argument against allowing gay and lesbian soldiers into the military is that they will disrupt “unit cohesion.” But if this argument is ultimately rejected in the one area in which it at least sounds plausible (if only because of a homophobic atmosphere that has too often come from higher-ranking military), that rejection weakens a similar argument that’s advanced by many of those who oppose marriage equality: Allowing gays, lesbians, and transgendered people to marry will weaken heterosexual marriages – disrupt their “unit cohesion,” if you will.
But if folks in the military can somehow learn to deal with gay and lesbian troops who live and fight alongside them every day, then surely straight couples can absorb the blow inflicted by living in the same society as same-sex couples.
Sometimes the argument is pitched at a slightly more sophisticated level: While marriage equality won’t immediately affect heterosexual couples, in the long run it will change the message of marriage by suggesting that the biological connection between parents and children isn’t important.
Maggie Gallagher is perhaps the anti-equality spokesperson most associated with this argument, but I’ve also heard it made during litigation. For example, during oral argument before the Iowa Supreme Court, the state’s dramatically unsuccessful effort (7-zip) to block equality leaned almost exclusively on a version of that argument.
Courts, though, are rarely impressed by such abstract arguments – especially when they carry more than a whiff of desperation. You’ll notice that the anti-equality forces haven’t been especially vocal about opposing adoption, surrogacy, or no-fault divorce laws, all of which of course sever the biological connections between parents and their children.
Nor do they acknowledge that marriage sends a bunch of other messages, too – including that one about commitment and the raising of children, together.
Against these arguments stand the obvious and debilitating discrimination against all of us – those who’d marry if we could, and those who wouldn’t but who are constantly reminded of our second-class citizenship. Faced with the balancing of that ledger, any self-respecting court should require sounder arguments for the continued exclusion of LGBT couples from the institution of marriage.
And recently, they have: Supreme Courts in California (pre-Prop 8), Massachusetts, Iowa and Connecticut have all read their state constitutional guarantees of equality to require the issuance of marriage licenses to same-sex couples.
Are there other arguments against marriage equality?
Not good ones.
Even Justice Scalia admitted, in his dissent in Lawrence v. Texas, that the marriage-procreation link isn’t a reason (we don’t require proof of reproductive capacity), and the related arguments that opposite-sex couples “need” marriage because only they can procreate “accidentally” (Oops! I Procreated Again!) is just plain dumb (even though it was accepted by the highest courts in both Washington and New York).
Religious arguments, of course, have no place in a public debate (for one thing: whose religion controls?)
So we’re left with this kind of discomfort with marriage equality – that somehow it will affect straight marriages, however indirectly and over time. Once this “unit cohesion” argument falls in the military setting, its demise in civilian life should be briskly achieved. Let’s begin to press this argument.
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, science, certain sports, pop culture, music, philosophy and lots of personal stuff) at: http://wordinedgewise.org. A fuller bio can be found here. He can be reached via email at: johnculhane@comcast.net.
Homosexuals dispel myth of “progressive”
Each year in Germany, from the end of June through August, gay and lesbian rights’ activists celebrate the “Stonewall” uprising – named after a gay bar on Christopher Street in New York, where homosexuals fought back against police brutality in 1969.
Participants in the German parades known as “Christopher Street Day” join other activists around the world who take to the streets to demonstrate gay pride and demand greater freedoms.
Some of those freedoms would include expanded civil rights. In Germany, civil unions, for instance, have been permitted among same-sex couples since 2001, but full marriages are not. Homosexual couples therefore do not enjoy the same rights as married heterosexual couples when it comes to taxes, retirement, civil servant benefits, or adoption law.
For more on gay and lesbian rights and the community in Germany, click on the links below, or listen to this week’s “Living in Germany” program to hear a more personal account of a homosexual civil union.
DW-WORLD.DE
Audios and videos on the topic
See Homosexuals dispel myth of “progressive” Germany Deutsche Welle
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UK Roman Catholic church-funded marriage agency backs gay and unmaried parents
Terry Prendergast, the chief executive of Marriage Care, claimed there is “no evidence” that children do better if they are brought up in a traditional two-parent family.
He claimed that those who live together out of wedlock are trying to lead good lives but find themselves “consigned to the dustbin” by the church.
His comments – to be made this weekend to Quest, a group of homosexual Catholics – go directly against the church’s teaching, which holds that homosexuality is sinful and that families should be based on the marriage of a man and a woman.
Mr Prendergast said: “We see, for example, that statistically children do best in a family where the adult relationship is steady, stable and loving – you should note here perhaps that I stress adult, not married, since there is no evidence that suggests that children do best with heterosexual couples.”
He claimed that God was present in the relationships of married, homosexual and cohabiting heterosexual relationships where there was “commitment, consent and covenant”.
He went on: “They want to live good lives according to the precepts of the Gospels. They are an advert for the Church, an advert that the Church often ignores or consigns to the wastebin.”
See Catholic church-funded marriage agency backs gay and unmaried parents Telegraph.co.uk
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LA Times Editorial: A court battle California doesn’t need
The Supreme Court’s ruling last week in the case of a grandiosely unethical West Virginia justice opened a new field of constitutional review — the high court may now consider when an elected state court jurist has been so tainted by politics that due process requires him to recuse himself from a case.
In West Virginia, a coal executive spent more than $3 million to unseat a sitting state Supreme Court justice; it was money well spent, as the justice was defeated by voters and replaced by Brent Benjamin. Benjamin then did what was expected of him and cast a deciding vote in overturning a $50-million jury award against the executive’s coal company.
Indeed, California has wrestled with this problem before — and quite possibly could again.
California’s system for selecting Supreme Court justices is much better than West Virginia’s. Candidates for the court here are nominated by the governor, confirmed by a state commission and then placed on the bench. They must periodically stand for retention, but they are not, as they are in West Virginia, subject to direct challenge by rival candidates. A retention election can cost a justice his or her seat, but it does not let voters kick out one justice and install their own replacement.
California’s rules have helped balance the judiciary’s independence with the public’s fair insistence on accountability, but even this state’s reasonable retention process has been subject to tilt. Most notable was the 1986 retention election that removed Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin. Much reflection has gone into that race in the decades since, and opinions differ on its merits. Two truths, however, stand the test of deep inquiry: The forces arrayed against Bird were not motivated solely by her opposition to the death penalty — that was cover for a second complaint, which was her defense of consumer rights against corporate power — and Reynoso and Grodin were victims of a special-interest crusade against a vulnerable chief.
Would that we could relegate that episode to California’s history. In fact, the state rumbles with discontent over its high court and chief, and those stirrings contain alarming echoes of the battle of 1986.
At issue are the court’s rulings on same-sex marriage and Proposition 8, and its chief justice, Ronald M. George. In May 2008, the court overturned the state’s ban on gay marriage, striking a victory for civil rights in the grandest tradition of constitutional protection of minorities. A few months later, after voters approved Proposition 8 and amended the state Constitution to ban the same institution that the court had upheld, George and his colleagues upheld the amendment. Both times, George wrote for the majority. He thus angered opponents of gay marriage in 2008 and supporters of it in 2009.
By California’s rules, George faces a retention election in 2010, and some predict that he could face challenges from either side — or even both — in this polarizing debate.
That would be a shame for the state’s judiciary, an unfortunate attack on judicial independence and an unfair castigation of one of this state’s most principled and admirable public officials. In the gay-marriage cases, George’s votes demonstrated conscience, professionalismand restraint. He voted to uphold same-sex unions out of the strong conviction — which this page shares — that the Constitution does not allow society to deny the protection of marriage to gay couples any more than it once denied it to those united across race. The ruling was right on the law, and will certainly be validated over the long march of history.
Months later, voters tacked in the other direction, narrowly rejecting gay marriage and amending the Constitution to allow California to recognize only the unions of heterosexual couples. That was challenged, naturally, and the lawsuit offered the court the opportunity to extend its earlier ruling, though on shaky constitutional grounds — advocates for same-sex marriage argued that Proposition 8 was such an affront to the rights of Californians that it revised the Constitution rather than merely amending it. Scholars split on the merits of that argument, and although the strong consensus of legal opinion rejectedit, an opportunistic justice might have seized the chance to solidify his legacy.
Instead, George subordinated his politics — as evidenced by his writing — to the weight of constitutional opinion. He voted to uphold the proposition, even though it undid his own work. Permitted latitude within the strictures of the Constitution in the first case, George was able to vote his conscience; bound by the Constitution in the second case, he yielded.
Such is the lot of a principled judicial officer, but those concerned only with results already have signaled their unhappiness with George. The moneyed interests that supported Proposition 8 last fall are considering whether to finance a campaign against George next year. Supporters of gay marriage, who championed his heroism in 2008, were bitterly disappointed when the court upheld the hateful initiative.
This is not West Virginia. Corporate interests are not knocking off justices who disagree with them and seating more accommodating replacements. But intimidation has no place in our judicial life any more than it does in Appalachia. The 1986 campaign against Bird and her colleagues now stands for many as a reminder that well-intentioned systems of accountability may be hijacked by special interests, a lesson learned too often and at great cost in California. It was misguided in its first iteration; it would be regrettable in its second.
See A court battle California doesn’t need
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And the Gay Tax is? $1820 per year
NPR contributor Nancy Goldstein has calculated the “gay tax” — the amount gay couples must spend to receive the same services that married heterosexual couples can count on everyday. In a column, she writes:
The cost of love isn’t an abstract concept in my household: It’s precisely $1,820 per year. That’s the “gay tax” we shell out for me to be on my wife’s health insurance plan, because her company must treat that benefit as additional taxable income.
Goldstein adds that “The media’s primary focus on the morality debate around same-sex marriage means that most of the public, gay or straight, knows little about the very real economic costs of inequality.”
The largest costs of marriage inequality also tend to be the easiest to quantify: Social Security survivor benefits denied, joint tax returns not filed, and many, many other cost savings that most married couples probably don’t even think about.
It’s this side of the gay marriage debate that has led the normally middle-of-the-road financial guru Suze Orman to wade into the debate. See And the Gay Tax is? $1820 per year WalletPop * Tags = gay men gay news lesbian news transgender bisexual
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How Hospitals Treat Same-Sex Couples
For same-sex couples, a ring and legal papers may not be enough to navigate the health system.
During a medical emergency, a patient’s husband, wife, parents or other family members often are close by, overseeing treatment, making medical decisions and keeping vigil at the bedside.
But what happens if the hospital won’t allow you to stay with your partner or child?
That’s the challenge many same-sex couples face during health care emergencies when hospital security personnel, administrators and even doctors and nurses exclude them from a patient’s room because they aren’t “real” family members. The issue is addressed in a new report from The Human Rights Campaign Foundation, a gay, lesbian, bisexual and transgender civil rights group, and the Gay and Lesbian Medical Association. The groups have created a Healthcare Equality Index for hospitals that focuses on five key areas: patient rights, visitation, decision-making, cultural competency training and employment policies and benefits.
This year, 166 facilities across the country agreed to participate in the report, about twice as many as last year. The group says nearly 75 percent of the hospitals have policies to protect their patients from discrimination on the basis of sexual orientation. However, sometimes the policies aren’t correctly implemented by hospital workers. Some examples of unfair treatment of gay couples cited by the group include:
- A Bakersfield, Calif., couple rushed their child to the emergency room with a 104 degree fever. The women were registered domestic partners, but the hospital only allowed the biological mother to stay with the child. Although hospitals typically allow both parents to stay with a child during treatment, in this case, the second parent was forced to stay in the waiting room.
- An Oregon man whose registered domestic partner was unconscious was told to leave the hospital room because it was time for family members to make decisions about his care. He was forced to plead his case before hospital administrators before being allowed to stay with his partner, who was dying.
- A woman from Washington collapsed while on vacation in Miami. Although her partner had an advanced health care directive, hospital officials told her she wasn’t a family member under Florida law. The woman spent hours talking with hospital administrators to prove that the document from her home state was, in fact, still valid in Florida. Although she eventually prevailed, her partner’s condition deteriorated and the woman died. Because of the problem, the children the patient had been raising with her partner weren’t able to see her before she died.
While heterosexual couples typically don’t have to provide marriage licenses to hospitals in order to prove they are husband and wife, same sex couples often must document their relationship to hospital officials before being allowed to take part in a partner’s care.
“There is a real disconnect between what might be a good written policy or state law and actual implementation of that policy or law,” said Ellen Kahn, family project director for the HRC. “If you’re presenting as two men in a couple and you say, ‘This is my partner. I’ll make medical decisions,’ you’re asked a lot of questions. Who is this person to you? Do you have legal documentation that verifies that? A parent, sister or nephew could have more rights under the law than a same-sex partner who has been together 20 years.”
Although many hospitals have improved their treatment of same-sex couples, partners are advised to keep legal documents close by in the event of a medical emergency. Friends should also have ready access to documents so they can fax or e-mail them if necessary.
For couples who don’t have documentation or are worried that their relationship might not be recognized during a medical emergency, the solution often is to pretend to be a sibling in order to ensure access to a partner.
“If you’re on the road and have a crisis, the word on the street is just say, ‘This is my sister,’ or ‘This is my brother,’ ” Ms. Kahn said. “Most people won’t raise an eyebrow about it unless you look very different. It’s sad that we have to think about that. Am I going to be better off saying this is my sister or this is my life partner?”
How Hospitals Treat Same-Sex Couples
May 12, 2009
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Harkin: Gay couples can be good parents
Iowa Sen. Tom Harkin said today he prefers children to be adopted into heterosexual marriages, if all other factors are equal, but that some gay couples are better parents.Harkin’s mixed feelings disappointed some longtime supporters in Iowa’s gay community and raised the question of how other elected officials who support the Iowa Supreme Court’s ruling allowing gay marriage feel about same-sex adoptions.
“I’m just saying that, if everything was equal, I guess my proclivity would be to have a heterosexual couple, Harkin said during a conference call with reporters.Harkin had previously said he preferred adoptions by heterosexual couples. He was asked today if he still felt that way, in light of the ruling allowing same-sex marriage.He said heterosexual couples do not always make better parents than same-sex couples.“I don’t want to practice armchair psychology here or anything like that. I guess it’s my own feelings on that,” Harkin said. “But I’m saying there may be times when that is not the best — because I’ve known gay couples who have raised children, and they’ve done great in doing that, and the children did not grow up to necessarily be gay or lesbian.” See Harkin: Gay couples can be good parents
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More than 450 gay couples seek licenses
More same-sex couples sought marriage licenses in Polk County than any other large Iowa population center in the first week after a court ruling went into effect that legalized gay marriage in the state, county numbers show.
Polk County Recorder Julie Haggerty said 116 gay and lesbian couples had applied for licenses by Friday afternoon. More than two-thirds arrived on Monday, when the Supreme Court’s April 3 decision took effect, and dwindled as the week progressed. The proportion of same-sex couples compared with heterosexual couples also dropped later in the week in Polk County. By Friday, Haggerty said, only eight of the 25 couples who applied for licenses were of the same sex.
The Des Moines Register’s survey of county recorders offices indicates more than 450 same-sex couples sought marriage licenses last week. No state agency keeps track of marriage applications on a real-time basis. The Register contacted all 99 county recorders offices on the first day that same-sex couples could seek licenses and received updated tallies from selected offices on Friday.See More than 450 gay couples seek licenses
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Gay marriage debate puts Lynch in hot seat
Dear Gov. John Lynch: On Wednesday the Senate passed a bill allowing gay couples the right to a civil marriage. The vote came after a lengthy process including the testimony of dozens of New Hampshire residents supporting the right to marry just as heterosexual couples have that right. The Senate received the bill only after the same process took place in the House. In addition to all those testifying, hundreds of letters, e-mails and calls were received by House and Senate members urging them to vote for this equal rights issue. Polls show a majority of New Hampshire residents support gay marriage. Your initial reaction upon hearing of this bill’s passage was to state through your spokesperson that there is no difference between civil unions and gay marriage until the federal government changes its laws about gay marriage. If there were no difference, why would thousands of people support gay marriage? I believe your statement is similar to saying that you’d see no difference between living with your wife Susan and marrying her. Imagine if you weren’t allowed that choice. You had the privilege of marrying her and acted on it. It had nothing to do with federal legislation. Many people are asking you to have the courage to sign this bill. I don’t believe an act of courage is needed. You have a 70 percent approval rating, the majority of people in New Hampshire support gay marriage, and the bill’s careful crafting and amending ensures that no religion or religious person has to perform a gay marriage. It is more an act of humility that is now required of you: the recognition that you don’t know better than the majority of your constituents what is in the best interests of gay and straight New Hampshirites. We lived for two years with your predecessor who with arrogance and pride ignored the interests of those he served and did what he wanted in major decisions affecting this state. Please continue to bring back the dignity of the office of governor and sign this bill which may not reflect your personal opinion but does reflect the majority of those you serve. Thanks for your consideration and support of equal rights. (Carol Moore lives in Concord.)
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Gay Marriage Arrives In Sweden
Gay and lesbian couples may marry in Sweden starting today. Swedish lawmakers approved a gay marriage bill in April, making it the seventh country to legalize gay marriage. The measure was approved in the Swedish Parliament by a wide margin – 261 to 22, with 66 lawmakers abstaining or absent. The legislation repeals a 1987 law defining marriage as a heterosexual union. A recent poll found that nearly three-fourths of Swedes (71%) approve of the new law.
Sweden has recognized civil unions for gay and lesbian couples since 1995. The union offered gay couples the same legal status as married heterosexual couples, including the right to adopt. The Lutheran Church, which was the state church until 2000, offered a separate religious blessing for gay unions.
See Gay Marriage Arrives In Sweden
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