Irish civil union bill signed
A bill to legally recognize same-sex couples was signed into law by Ireland’s president.
Irish civil union bill signed
A bill to legally recognize same-sex couples was signed into law by Ireland’s president.
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.
Culhane: Pawlenty throws gays under the bus
OK, maybe it’s just because I’ve taught Torts for so long, but an apparently minor development out of Minnesota really has me irked.
First, consider these two stories:
(1) A California woman is mauled to death by vicious dogs, under circumstances so horrific that the owner is convicted of second-degree murder. Her surviving same-sex partner sues under the state’s wrongful death law. Under a strict reading of the statute, she would lose because she doesn’t have “standing” to sue – unlike the deceased woman’s mother, who does have such standing, even though her actual financial and emotional losses are much less. Yet the court allows the claim to proceed anyway, and she collects a large settlement.
(2) A New York couple enters into a civil union in Vermont. Later, one of the men dies because of alleged medical malpractice. Instead of contesting the merits of the suit, the hospital moves to dismiss the claim because the surviving “spouse” isn’t a spouse at all – the civil union doesn’t count. A trial judge allows the case to proceed, but the appellate court holds that the case should have been dismissed.
Since those cases were decided, the laws in both New York and California have been changed to allow “registered” same-sex couples to bring their claims – not necessarily to recover, simply to have the right to try to establish their losses.
These developments had no effect on Minnesota Governor Tim Pawlenty, who has just vetoed a bill that would have given surviving members of same-sex couples the right to make decisions about the remains of their partners and the right to sue in wrongful death for negligent acts that resulted in their partners’ demise.
When Pawlenty gave as the reason for his veto that the law was unnecessary because same-sex couples can protect themselves by executing living wills, he was flat wrong – at least as to the wrongful death part of the law.
Some quick background on wrongful death law (more than you’d probably ever want to know): These state laws are designed to provide the survivor with what he or she would have been expected to receive from the deceased: In most states, including Minnesota, damages can include some of the income that the deceased would have been expected to earn (whatever the survivor could have been expected to receive), as well as the loss of emotional support and companionship.
So what’s the problem for same-sex couples? Unlike most of tort law, suits for wrongful death are based not on judge-made (common) law, but on statutes that clearly define who’s eligible to recover. And most of the statutes continue to restrict recovery to certain named classes of survivors: In Minnesota, which is fairly typical in this regard, that’s limited to spouses and “next of kin.”
So why and how did judges in California and New York hold to the contrary? By looking to the purpose of the law, which is to compensate based on real loss, and to make sure that bad conduct is deterred. Since the strict categorical requirements of wrongful death laws frustrate those purposes, judges are tempted to “get creative.”
Given the purposes of the law and what the California judge called the “insurmountable obstacle” that gay and lesbian couples face in these cases – you can’t contract around a statute – why the veto?
Here’s a thought: Pawlenty wants to be President, and has to burnish his social conservative credentials first. So everything becomes a threat, suddenly, to “traditional marriage” – however tangential the message on marriage, and however real the costs to actual people.
Here are a few questions I’d like to ask Gov. Pawlenty.. I’m going to send them to his office (unless a reader living in Minnesota would like to!), but I don’t expect an answer.
“Governor, under the law as it now stands, a murderer would owe nothing to the surviving member of a same-sex couple, even if the deceased provided most of the support for that survivor. Can you explain and justify the policy that permits this result?”
“The result of these statutes is so unfair that judges in other states have ignored their language and looked to the purpose of the law in allowing these claims. Why not simply amend the law to better reflect the compensatory and deterrent purposes of wrongful death law?
“What advice would you give to same-sex couples to protect themselves against this result?
“If the same-sex couple had adopted a child, that child’s future prospects could be negatively and even dramatically affected by her surviving parent’s inability to recover for wrongful death. Why should that child be differently affected than the child of an otherwise identical opposite-sex couple?
“You described the law as “divisive.” Can you explain why this law is any more divisive than the one you signed last year, that prevented jointly owned homes from being sold to pay medical bills when one partner dies?”
Politicians in the Pawlenty mode continue to throw us under both the express and the local bus: Marriage and the puny but necessary baby steps that are necessitated by intransigence on full equality. We must hold him accountable, now and if he seeks the Presidency.
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, 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.
Killings of gays increase in Mexico, report says
(Mexico City) Killings of gays and lesbians have risen in Mexico despite a government tolerance campaign and a law legalizing same-sex marriage in the capital, according to a report released Thursday by a coalition of civic groups.
A review of more than 70 newspapers in 11 Mexican states found an average of nearly 30 killings a year motivated by homophobia between 1995 and 2000, compared to nearly 60 a year between 2001 and 2009, the report said.
Ricardo Bucio, president of the government’s National Council for the Prevention of Discrimination, backed the report, saying it gave visibility to a lingering problem.
The government launched a radio campaign in 2005 to promote tolerance of homosexuals.
In December, the Mexico City legislature approved the first law in Latin America explicitly giving gay marriages the same status as heterosexual ones. The legislation, affecting only the capital, also allows same-sex couples to adopt children.
Mexico City’s annual gay pride parade draws tens of thousands of people, and in some neighborhoods gays openly hold hands.
But violence against gays seems to have increased as more become public about their sexual orientation, said Alejandro Brito, director of Letter S, one of the groups that released the report.
Mexico City had the most homophobia-motivated killings, with 144 between 1995 and 2009, according to the report.
Despite the federal government’s push to promote tolerance, President Felipe Calderon’s conservative administration campaigned against the Mexico City law allowing same-sex marriage.
Ruby-Sachs: Supreme Court case pits gay activists v. free speech
[1]
There is a very important case arriving in the Supreme Court tomorrow. Referendum 71 was a ballot initiative in Washington attempting to undo domestic partnership privileges for same-sex couples. Many signed the petition for the law, but ultimately their regressive bid failed. Still, gay rights groups want to release the names from the petition on a searchable website. Under Washington law, that kind of disclosure is mandatory.
But the lawyer for the other side argues that the release of names on the web will lead to the intimidation and harassment of those individuals who signed the petition.
That argument holds little water. Although courts have, in the past, found that harassment did occur against homophobic individuals in the wake of Prop 8, the objective evidence illustrates that there is not one case of harassment or intimidation resulting from the political participation of homophobic individuals. The worst we saw was a highly organized and very legal boycott of certain businesses in California – a political initiative that is the very expression of democracy in the U.S.
However, that doesn’t mean that releasing the names won’t affect free speech in Washington. Individuals who already signed the petition obviously feel that the release of their names will harm their reputation or livliehood (frankly, it should). And that feeling, that fear, results in a chill on free speech. Public petitions might discourage some from signing certain petitions calling for certain laws.
The Supreme Court has to decide if the chill on free speech outweighs the public’s right to access its political process. Is it unconstitutional free speech? If you listen to the presentation tomorrow, you will likely get a feel for how the court is going to decide. The result of this case could seriously affect the political process, certainly around gay marriage, for many years to come.
Transcripts of the oral arguments are available here [2] and the transcripts from this case will be up some time before the end of the day tomorrow.
[1] http://www.365gay.com/wp-content/uploads/news-supreme-court-top.jpg
[2] http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx
Culhane: Why do gays and lesbians care about marriage?
How did marriage, of all things, become the cause célèbre of the LGBT rights movement? Let’s face it: There are good historical reasons for us to eschew and pooh-pooh this institution, which doesn’t exactly have a glorious track record.
“Since When is Marriage a Path to Liberation?” was the provocative question that lesbian activist Paula Ettelbrick raised in an influential article more than 20 years ago. Her article slammed what was then the emerging focus on same-sex marriage as a misguided effort that would secure gay and lesbian “equality” within the stifling confines of an inherently unequal and patriarchal institution.
Yet there we were, Ettelbrick and I, together in 2007 on a panel discussing LGBT legal issues, and she was arguing for marriage equality. What happened?
I had the chance to ask her about this dramatic about-face during a cab ride to the train station after the event. Had she been possessed by the spirit of Andrew Sullivan? Well, kind of. All of the same-sex couples making their clear and passionate case to have the state recognize their unions had convinced her to value reality over ideology, and (here I’m guessing) perhaps to see that same-sex marriages have the potential to revitalize the institution, and to help transform it into a more egalitarian partnership.
But why is it so important for the state to recognize our unions in the first place? Let’s start by considering the alternatives. The first of these is a religious union. For many lesbian and gay couples, getting married in their church, synagogue, or mosque is deeply meaningful. But it’s not enough. Some (straight and gay) couples don’t derive spiritual nourishment from such ceremonies. And even for those who do, “the power vested in” clergy to legally solemnize marriages can’t solemnize theirs.
So what about a “secular substitute” for marriage, such as the civil union, that confers all the benefits of marriage but not the title?
Do I really need to ask this question?
First, the civil union doesn’t confer all of the benefits of marriage. It’s not recognized at the federal level, so that even if the obnoxious Defense of Marriage Act were repealed, couples in a civil union wouldn’t have any of the federal benefits of marriage, which are the most significant ones.
But it’s not just about the benefits, either. In some paradoxical way, the civil union is worse, because it’s pure discrimination. The state has given up all of the arguments against equality in conferring the civil union status, but still insists on a separate label. In In re Marriage Cases, The California Supreme Court hit the bull’s-eye in rejecting this kind of “virtual equivalence:
“[A]ssigning a different designation for the family relationship of same-sex couples…poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”
By this point, some of you are likely muttering: “OK, marriage, fine. But what about discrimination, social justice, and the real economic barriers to equality? Aren’t these the things that should be concerning us instead of this mostly abstract equality debate?”
Well, you probably didn’t mutter exactly that, but the point is fair anyway. Why all this emphasis on marriage?
First, many of us are, at heart, assimilationists who want to fit in with the most traditional structures. Think marriage and – the prom! Those gay and lesbian teens [1]who demanded to attend their proms are radical and traditional at the same time, as are those seeking marriage equality. It’s that scary incursion of the outlandish into “safe” structures that explains, at least in part, the sometimes vicious resistance we find in everyone from Maggie Gallagher to those parents who engineered the fake prom [2] that Constance McMillen was sent to.
The other part of this fight for equality has to do with the government’s role in the discrimination. Remember that many of the most important achievements of both the civil rights and women’s movements were ending government-sponsored discrimination in voting, unfair marriage laws, and segregated public facilities and schools. If government is willing to declare that members of a group are second-class citizens, then private and social discrimination is fair game.
Since laws prohibiting same-sex intimacy have now been declared unconstitutional, the most important state-sponsored formal discriminations we face are DADT and the ban on our marriages. So, while marriage may never be a path to liberation – much less to robust social and economic fairness – it’s a vital part of our rights as citizens. That’s why it matters.
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, sports, pop culture, philosophy and lots of personal stuff) at: http://wordinedgewise.org. Here’s a fuller bio [3]. He will be blogging the week-long Equality Forum [4] from Philadelphia later this month.
[1] http://www.365gay.com/blog/ruby-sachs-prom-politics/
[2] http://advocate.com/News/Daily_News/2010/04/05/ACLU_Investigating_Fake_Prom/
[3] http://law.widener.edu/Academics/Faculty/ProfilesDe/CulhaneJohnG.aspx
[4] http://equalityforum.com
Poll: California residents support gay marriage
The latest Los Angeles Times/USC [1] poll found more evidence that the majority of Californians support same-sex couples’ right to marry.
The poll found 53 percent of the state’s residents support same-sex marriage, while 40 percent oppose it.
[2]
The results are similar to previous polls. The poll cited divisions along party lines, with Democrats and liberals supporting marriage equality and Republicans and conservatives opposed.
In addition, age appeared to be a factor – most voters younger than 30 voiced support; those older than 64 were opposed to marriage equality.
Does mean this that Proposition 8 would be rejected if voted on now? Not exactly. Older voters are more likely to turn out on Election Day than younger voters, a problem gay rights advocates must contend with.
[1] http://latimesblogs.latimes.com/lanow/2010/04/majority-in-california-support-gay-marriage-times-usc-poll-finds.html
[2] http://www.365gay.com/wp-content/uploads/news-tuxedo-boys-top.jpg
Videos urge LGBT participation in Census
Ten new videos released by the U.S. Census Bureau urge the LGBT community to fill out and return Census forms [1].
“What I tell folks in the bureau is that this is a powerful, important part of American society,” Tim Olson, a Census Bureau assistant division chief helping to oversee the campaign, told the Associated Press [2].
[3]
“We have to reach out and engage this part of the population. Anything less than that is a failure.”
Five states and Washington, D.C., have legalized same-sex marriage, but the Census Bureau encourages any same sex couples who consider themselves to be married to check the “husband” or “wife” boxes. And “unmarried partner” box is also available.
Conservatives are angry about the move because they feel it legitimizes and redefines marriage.
Watch all of the videos at Logo Online [4].
[1] http://www.365gay.com/news/get-counted-why-the-census-is-crucial-to-gays/
[2] http://hosted.ap.org/dynamic/stories/U/US_GAYS_CENSUS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
[3] http://www.365gay.com/wp-content/uploads/news-census-pie-top.jpg
[4] http://www.logotv.com/video/misc/499724/ben-de-guzman.jhtml?id=1635376
Neff: Gay news through the looking glass
Perhaps you’ve heard of the new fad at churches, fight nights — heavyweight bouts intended to bring more young people into the house of the Lord.
But have you heard of porn night at a church?
In mid-February, Uganda pastor Martin Ssempa hosted a porn show at a church service in Kampala to rally support for a bill that elevates homosexuality to a capital offense punishable, in some cases, by death.
Several hundred people watched Ssempa’s pornographic slideshow about gay sex. The Guardian newspaper quoted Ssempa as saying that he wanted people to know “about what homosexuals do” because “in Africa, what you do in your bedroom affects our clan, it affects our tribe, it affects our nation.”
Porn at church.
I began waiting for word that at a subsequent Bible study class Ssempa led the men in the group in a circle jerk to prove some point. As I scanned headlines for notice of such a news report, I came across a few other stories — closer to home — of interest:
• The Washington Post ombudsman Andrew Alexander reported that the newspaper received a flood of complaints, including some subscription cancelations, after publishing a page one photograph of two men kissing the day the District of Columbia first issued marriage licenses to same-sex couples.
One reader wrote The Post an e-mail: “That kind of stuff makes normal people want to throw up. People have kids who are being exposed to this crap. I will be glad when your rag goes out of business. Real men marry women.”
• Florida state Rep. Stephen Precourt recently introduced legislation to provide tax incentives to lure filmmakers to the Sunshine State.
Precourt, however, wants to apply a restriction — the incentives would only go for entertainment industry projects with “family friendly” themes that do not contain sex, nudity, smoking, profanity or LGBT characters.
Precourt said he wanted Florida to be known for making “Disney movies for kids and all that stuff.”
• The school board in Itawamba County, Miss., canceled a high school senior prom rather than allow a lesbian couple to attend.
The board’s statement said the April 2 dance was canceled “due to the distractions to the educational process caused by recent events.”
The local mayor said, “I think the community as a whole is probably in support of the school district.”
Wouldn’t you like to give some folks a shove through the looking-glass into a wonderland where everyone gets mushy over the lesbian kiss, gets hot over the gay-sex scene and goes “yuck” and “ick” when a man and woman embrace?
In that wonderland, 99.9 percent of romance stories on TV, in film and on the bookshelves would be about LGBT people and Janis Joplin wouldn’t have pretended the Bobbie McGee she was singing about was a dude.
Down with straight supremacy.
Down with this attitude that everyone, gay and straight, wants to sit through 120-minutes of Hollywood dribble about the boy who romances the girl or the girl who tricks the boy, but only gays find gay-themed movies relevant or entertaining.
Down with this attitude that gay and lesbian youth must sit in the bleachers and cheer on their hetero peers as they dance away their senior prom.
Down with this attitude that a same-sex kiss is acceptable only when it’s played for comedy, and that we all should swoon over the deeply romantic gesture of a man and a woman exchanging tongue.
And down with this ridiculous attitude that gay porn proves a case for sentencing gays to death. I mean really, what would a presumably straight congregation think about watching “Deep Throat” during a church service?
At one point during his pornographic slide presentation, Ssempa pointed out to his church audience, “This one is eating another man’s anus.”
I’m pretty sure that if I looked hard enough, I could find an image of a man and a woman engaged in this act.
In fact, before I go on, I’ll search Google to see.…
I’m back, yes, I can find such images — no shortage of them.
You know what? I didn’t enjoy looking at those images — probably even straight supremacists would say “ick” or “yuck” at the photos. I wouldn’t want to see those images during a church service, but an act worthy of a death sentence?
Porn at church.
We don’t need to tumble through the looking-glass or into wonderland to encounter a mad hatter.
