Archive for the ‘Social Justice’ Category

Culhane: Gay marriage victories breeding anti-gay desperation

August 26th, 2011 15 comments

Will this never end?

That thought – unusual for me – popped into my head more than once during the past week, as I’ve been reading about a series of events and comments related to marriage equality.

On one side are the continued struggles that same-sex couples face because of the continued legal and social failure to recognize our unions. On the other side, Maggie Gallagher has lately been doubling down on her opposition, seeming increasingly disconnected from rationality or moderation. Increasingly, her statements seem more concerned about some Platonic ideal of the form of marriage rather than its reality, and its capacity to solve problems.

Let me be more specific. On this site a few days ago, it was reported that the surviving member of a lesbian couple, and the couple’s child, is suing the state of Indiana for the death of her (unrecognized) spouse resulting from the collapse of a stage at the Indiana State Fair. But Janeen Beth Urschel, the surviving partner, faces a huge hurdle in her wrongful death suit: like most states, Indiana restricts recovery under these statutes to certain enumerated classes of people: spouses and children, usually . And unmarried couples, straight or gay, are not among those entitled to sue. So the victim’s seventeen-year-old daughter might be able to recover, but not Urschel.

Urschel’s lawyer, Kenneth Allen, plans to challenge the wrongful death law. Similar challenges were successful in California and D.C., but not in New York (even though, there, the couple had gone to Vermont and obtained a civil union license). So the prospects for success are unclear.

Of course, none of this legal maneuvering would be necessary if the state would recognize same-sex marriages. Urschel and her late partner, Tammy VanDam, had been together for 10 years, so perhaps they would have married had they been permitted to do so.

The lesson is clear: With a relative snap of the fingers, marriage can solve a host of legal issues that otherwise are complex and indeterminate. Yet it can’t stop discrimination from occurring, as seen by recent high-profile cases involving alleged discrimination by Vermont innkeepers against a same-sex couple, and the story I reported last week about a bridal shop that, risibly, declared illegal the sale of a dress to a lesbian.

Today, these stories inspire more sympathy for the couple than for the discriminators. And that drives the increasingly shrill rhetoric from equality opponents like Gallagher and her organization, the National Organization for Marriage. As we well know, people generally don’t like being viewed unsympathetically. So I was only mildly surprised to read her recent column, where, after recounting the woes that equality opponents have endured for daring to oppose our “agenda,” she launched into an intellectually vacuous comparison between abortion and marriage. It’s worth quoting at some length:

“At the heart of each movement is the belief that by re-jiggering words, elites change reality itself. A human life can be redefined as a cluster of cells. Marriage can be remade to mean whatever the government decides. Reality itself can be re-mastered to accommodate sexual desires.

“But in truth, government cannot create life, and did not create marriage, and government has no business redefining either.”

Her argument depends critically on having the reader overlook a glaring fact: Gallagher assumes that her definitions of “life” and “marriage” are somehow essential, and incontestable. If you buy that, then her conclusions follow. But in the real world, we have to make complex decisions about legal and social structures. The position that a human life begins at conception is intellectually respectable, but it’s not indisputable. It assumes that the potential for something that we’d all agree is human life is such a life from the moment the zygote is created.

As for marriage, she’s much further off the mark. Government surely created the legal institution of marriage, and it’s the definition of that institution – not some natural law construct of Gallagher’s or of Robert George’s – that is up to us to define. And the idea that marriage has never been redefined is so thoroughly contradicted by the evidence as to be embarrassing to read.

As the marriage equality movement accelerates toward its inevitable victory, expect much more of this – and expect it to get worse. Reason finds no shelter in a climate of fear.

John Culhane is a law professor and a blogger.

Culhane: The gay bride who was told buying a wedding dress is 'illegal'

August 19th, 2011 8 comments

“What you’re describing in this paperwork is illegal. And we do not participate in any illegal actions.”

That was the text of the voicemail left on the telephone of Alix Genter. The caller was Donna [last name unknown], the manager of a store called “Here Comes the Bride.”

Accompanied by a phalanx of supportive family members, Alix had chosen a wedding gown at the store. It wasn’t until Donna reviewed the paperwork Alix had filled out that she figured out that the gown was for a same-sex union. And that’s what prompted the ill-advised phone call quoted above.

These events took place in New Jersey, which has a civil union law. But even if it didn’t, there would be nothing “illegal” about buying a dress! Nor, by the way, would there be anything unlawful about participating in a same-sex marriage ceremony, even in a state that bans same-sex unions.

But it’s not only the first sentence in the voice mail transcript that’s inaccurate. Because by refusing to deal with Alix, Donna and the bridal shop are, in fact, participating in an illegal activity themselves. Under New Jersey’s anti-discrimination law, it’s unlawful for any place of public accommodation to discriminate on the basis of either sexual orientation or civil union status.

It’s clear from the statute that a store held open to the general public counts as a place of public accommodation. And it seems beyond dispute that Donna is discriminating based on some mélange of the related facts that Alix is a lesbian who plans to enter into a civil union.

In a phone conversation with a reporter, Donna revealed that the depths of her bigotry have yet to be plumbed. I recommend reading the whole story, but the highlights include Donna accusing Alix of “stirring up drama,” opining that her use of the word “partner” on the paperwork was provocation (was she supposed to list her future wife as “groom”?), and then launching into a series of stories that might have been placed under the heading “When Lesbians and Gays Go Bad.” (Implication: straight people never do.)

Now, though, the uni-named Donna seems to be backtracking. Not surprising, given that her idiocy has provoked a quick and violent storm against the business, and her likely recognition that she might be on the wrong end of a lawsuit.

This is exactly why we need laws like this. In many parts of the country, Donna’s actions would probably be found legal. (Even absent a law protecting against discrimination based on sexual orientation, it might be possible to argue gender discrimination, but it’s a long shot.) It’s hard to gain social equality when the laws reinforce the notion that the LGBT community is served only at the pleasure of the heterosexual majority.

No one understands this better than Supreme Court Justice Antonin Scalia. In a barely civil dissent to the Court’s decision in Lawrence v. Texas, which declared laws prohibiting private, intimate sexual conduct between two members of the same sex unconstitutional, the angry oenophile tried to erase the handwriting on the wall.

He was particularly worked up over the majority’s statement that these anti-sodomy laws were “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” For Scalia, such an “invitation” should continue to be extended:

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ’discrimination’ which it is the function of our judgments to deter.”

Yep, that’s how your colleagues see it. And these constitutional, anti-discrimination principles are given more specific shape by laws like New Jersey’s.

Channeling Scalia, Donna stated: “There’s right, and there’s wrong. And this is wrong.” Finally, she’d uttered a couple of accurate sentences – even if she had the wrong “this” in mind. And the force of law is squarely against her.

Of course, as the anti-sodomy laws themselves illustrate, laws aren’t always rational or just. But in the case of laws furthering basic anti-discrimination (anti-caste, put differently) principles, the law and morality dovetail quite nicely.

There goes “Here Comes the Bride.” Good riddance.

John Culhane is a law professor at Widener University School of Law and a Senior Fellow at the Thomas Jefferson School of Population Studies. He has recently written on bullying of LGBT youth, using public health principles to advance the discussion of marriage equality, and a lawsuit against the NFL.

Culhane: What legal docs can do for gay couples – and what they can't

August 12th, 2011 4 comments

Let’s talk about what legal documents can do for you – and what they can’t.

A few days ago, 365gay editor in chief Jennifer Vanasco sent me a question from a reader asking me to “list all the legal documents same-sex couples should complete to ensure rights of beneficiary to property, benefits, etc., including provisions for children, pets, etc.”  The writer also wanted to know whether designated beneficiaries are “ever challenged by  insurance companies to avoid paying death benefit?”

And this got me thinking about how hard we have to work, compared to our straight counterparts, to secure the basic peace of mind that comes with knowing that those we leave behind will be provided for. And how, even when we do all we can, the law operates to fence us out of certain financial benefits.

First, an important lawyer’s disclaimer: Nothing that I’m about to write can or should be construed as binding legal advice. I’m a law professor, not a practicing lawyer, and in any case the law varies from state to state. That said…

Let’s start with the most basic legal document designed to protect your loved ones (not just your spouses) after you’re gone: the will. If you are legally married or civilly united in your state, then your spouse will be to an extent protected in the event of your death. While state laws vary, all assign a substantial share of the decedent’s estate to the surviving spouse in the absence of a will. But unless you’re sure that the law of the state in which you’re married will apply (did you move? where was the will drafted?), you might not even be protected in that case.

If your state doesn’t recognize your union then run – do not walk – to an attorney’s office and start working on a will now. Otherwise, your relationship will literally not exist as a legal matter, and the one left behind will get nada, rien, zippo,  from your estate.

Of course, you should create a will in any case. The state default options are clumsy approximations of what most people would want to do. But only you know that. If you want to make provisions for everything from your pets (considered personal property) to your home to your collection of Mercury dimes, do it. Your lawyer will insist that everything be specific, and clear. (You should probably also enter into agreements about what will happen if your perfect union dissolves, too.)

While you’re there, get busy on living wills and powers of attorney documents. There’s nothing like a battle with your spouse’s parents over end-of-life decision-making to add stress to an already impossible situation. These documents, properly executed, can greatly reduce the chance that someone else will get to interpret your spouse’s wishes in this most difficult time.

A quick word on private, employer/employee plans: Typically, you get to name the beneficiary(ies). A smart employer (or the administrator of the plan) will make you do this. If you’re sufficiently clear, you shouldn’t have a problem. Remember to change the beneficiaries if your life circumstances change. For example, when we adopted kids, I eliminated my nieces as contingent beneficiaries (in case both David and I are simultaneously killed in a tragic boating accident) in favor of our kids.

So, what can’t you do? Unfortunately, lots.

At the state level, most laws still fence surviving members of same-sex couples out of wrongful death laws. There’s no getting around them, either. So if one of you is killed by the negligence (or worse) of, say, a drunk driver or the manufacturer of a toxic substance, your spouse can’t sue for that. Your parents or kids might be able to, if they can show that they lost a source of support by your death. But unless you’re in a state that recognizes your marriage, then you’re stuck. The same might also apply to any state-or local benefits, such as payments for the victims of crimes or terrorism.

At the federal level, we’ve got a bunch of nothin’. Because of DOMA, which the Obama Administration continues to enforce – though not defend – it’s still possible for the legally married spouse of a U.S. citizen to be deported. Indeed, it’s likely to happen to Bradford Wells and Anthony Makk soon. Makk, the Australian husband (married in Massachusetts) of Wells, a U.S. citizen with AIDS, has been denied a green card, and is soon to be shipped home. For medical reasons, his spouse can’t go with him.

And this is one of many, many federal benefits that DOMA denies the spouses of legally married same-sex couples. Social security death benefits and the right to file joint income taxes and petitions in bankruptcy are a few of the hundreds of others.

In case you’re wondering whether to support Obama in the next election, keep in mind that all the serious Republican challengers not only support DOMA, but favor a federal constitutional amendment against marriage equality. Have a nice weekend!

John Culhane is working on a book about civil unions and their place in the on-going national conversation about marriage.

Culhane: Death and Documents

August 5th, 2011 3 comments

A story about a law firm based here in Philadelphia has inspired me to come down from the theoretical and rhetorical levels of debate about marriage equality. The complicated mess is a reminder about the practical, problem-solving capacity of relationship recognition. I hope it also serves as a reminder to readers to take every single legal step they can to protect themselves, their partners, and their assets.

The linked story contains the reporter’s best understanding of what’s happened to date, so I won’t go over it in much detail. At its core, though, the depressing tale involves a battle over the proceeds of a deceased lawyer’s profit-sharing plan. The combatants are the woman’s parents, on the one side, and her spouse/life partner, on the other.

It seems clear that the deceased woman, Sarah Ellyn Farley, did not name her spouse, Jennifer J. Tobits, as a beneficiary on the form.  It’s less clear whether Farley validly named her parents as beneficiaries. The firm, Cozen O’Connor, has wisely asked a judge to rule on the issue. (Although Cozen is Philly-based, Farley worked in the Chicago office. It’s unclear whether Illinois law or Pennsylvania law would apply, but it probably doesn’t matter; read on.

Farley and Tobits were married in Canada, but of course their marriages carry no legal weight in Pennsylvania; or even in Illinois, where the civil union law that might have helped Tobits didn’t go into effect until after the events that created this controversy.

Whatever the legal status of same-sex couples, though, it should have been possible for the firm to have defined the two women as spouses for purposes of this profit-sharing plan. The firm can define “spouse” as broadly as it wishes. Tobits alleges that the couple believed that they were, in fact, married for purposes of the plan, and that Farley presented the couple’s Canadian marriage certificate to the firm in connection with a notice of her intent to claim under it. But that may not have been enough: According to the story, Tobits now concedes that “provisions in the…plan ‘might create uncertainty’ about whether [she] would be recognized as the surviving spouse.” She argues that the firm should have told Farley so.

Without more information, I can’t predict how this will turn out. But it’s safe to say that if Tobits’s main argument is based on a breach of duty to inform Farley rather than on the provisions of the plan itself, she’s going to have a tough go of it.  Once the couple “disappears” from the plan, then the parents would, generally speaking, have priority over a “legal stranger” – like Tobits.

The sad part is that, from a legal perspective, these priorities make sense. We generally value people’s decisions about what to do with their assets. When we don’t have that information, then status – as a spouse, as a parent, as a child, and so on – fills in the blanks, making an assumption about what someone would have done had they done anything at all. Under the law of intestacy, for example, the deceased’s estate is distributed among named family members according to a formula that reflects a general average – how most people would have wanted their money to be doled out, if they’d taken the time to make a will.

That’s one of the many reasons marriage is so important. Without it, the Jennifer Tobitses of the world are, potentially, no one – especially if they haven’t protected themselves.

I know, I know…if Farley – who after all was a lawyer – wanted to be sure that her intent would be honored, she should have designated Tobits as a beneficiary. Then we wouldn’t be in Legal Presumption Land, “from whose bourn no traveler returns”. (Can you identify that quote without plugging it in to Google? Hint: it’s from one of the most famous speeches in all of literature.)

But the fact that this common sense step wasn’t taken here  – where the document was staring these two women in the face – should tell us that it often doesn’t happen, for whatever reason. How many reading this column have the full set of documents needed to make sure your relationship will be recognized in every context: will, living will, power of attorney, retirement plan beneficiary designation, and so on? Not many, I’ll bet, even though we should.

Please, take care of this stuff. It’s not as expensive or time-consuming as you might think.

A coda: Without more facts, I don’t feel comfortable taking a potshot at these parents. More generally, though, I hope there’s a special, especially tight circle of Hell reserved for parents who try to satisfy their own greed while adding to the misery of those left behind. After all, these people are their children’s spouses – whatever the law says.

John Culhane directs the Health Law Institute at Widener University School of Law, and writes about LGBT rights, public health law, and torts and compensation.

Culhane: Why gay marriage matters to those who won't marry

July 29th, 2011 14 comments

Here’s a question: Is the right to marry important if we’re not going to use it?

Setting aside Larry Kramer’s mistimed grumpiness, gays and lesbians and our straight allies were literally or figuratively dancing for joy last week when the first same-sex weddings were performed.

In a typically eloquent and undeniably moving piece for Newsweek, Andrew Sullivan joined in the celebration. Shutting people out of marriage, he wrote, takes a toll on our developing sense of self:

“At the very moment you become aware of sex and emotion, you simultaneously know that for you, there is no future coupling, no future family, no future home. In the future, I would be suddenly exiled from what I knew: my family, my friends, every household on television, every end to every romantic movie I’d ever seen. My grandmother crystallized it in classic and slightly cruel English fashion: ‘You’re not the marrying kind,’ she said.

I had an eerily similar conversation with my grandmother, so I get it. But was the younger Andrew Sullivan that he’s calling up in this essay really concerned about the legal right to marry?

The most direct answer to that question has to be “no.” State approval isn’t required in order for us to couple, or to create a family and a home. And presumably the film and literature worlds aren’t blocked from creating, say, Brokeback Mountain or Tales of the City by the state’s refusal to recognize gay couples as such. Kids – even those like me, who end up in law school – don’t really focus on the legal question, anway.

What he sensed – what most of us sensed, accurately – was his coming exclusion from the social norms around home and family. There were very few models to whom we might have aspired, and only an underground and hard-to-find literature presented views of healthy gay men and women. (Is the homosexuality on view in a book like Forster’s “Maurice” a healthy depiction? Discuss.)

Yet there were some gay and lesbian couples, of course, as Sullivan acknowledges toward the end of the piece, referring to long-term, committed couples who were “effectively married.”

So why didn’t those couples serve as an alternative model? I can think of a couple of reasons. First, they weren’t that visible. There were far fewer of them, yes, but I really mean they were invisible. They were “friends” or “roommates” – not spouses, partners, or (in the gay community) “lovers.” This vocabulary of obfuscation was a coerced bargain between the mainstream and the “homosexual” community (to use the nicest term current when Sullivan and I were growing up).

A second and related point is that these couples weren’t conventional. Sullivan is (always was?) an assimilationist, so it’s not surprising that these conventions would have had deep resonance for him, but I’d bet that most kids – wherever in the radical queer to Father-Knows-Best-simulacrum spectrum they ended up as adults – felt the same way. I did, anyway, and I’m much more critical of marriage than Sullivan.

Now, of course, the country is lousy (in a good way) with models of gayness, in all shapes and sizes, in reality and in an ocean of written and visual fiction. (Sometimes comically: I recall listening to a side-splitting review of an LGBT film festival a few years ago where the critic was ridiculing the check-every-box approach to the films chosen.) So – setting aside for a moment the benefits issue – why does Sullivan need marriage now? More to the point, why would a kid growing up today need legal marriage in order to imagine a family-centered future?

We might as well ask why the many LGBT people who have no intention of marrying, ever, were celebrating right along with those who raced to obtain marriage licenses last Sunday.

Because rights matter, whether or not we choose to exercise them. Although comparisons to the issue of interracial marriage are dangerous because of the very different histories of oppression the two groups have faced, here’s one that I think works: Loving v. Virginia, which declared unconstitutional state laws that banned interracial marriage was important not only because of the comparatively few couples it benefited, but because it recognized that the ban was motivated by racism. In the Court’s words: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

That’s right. Similarly, the arguments against marriage equality have by now been revealed as nothing more than a sometimes inarticulate desire to keep same-sex couples out and thereby affirm (weirdly) the superiority of opposite-sex ones. And this brings us back to Sullivan’s essay.

No, the boy he describes so vividly wasn’t thinking about the right to marry, at least not in those terms. But the denial of that right helped to create the social environment he describes, at the same time that it was a product of that environment. Rights matter, almost as much for those who choose not to exercise them as for those who do.

John Culhane is a law professor, a blogger, and a contributor to Slate Magazine. (His “slatest” piece discusses a point of similarity between the actions of the NFL and Big Tobacco.)

Culhane: Of laws and families, politics and waterparks

July 22nd, 2011 2 comments

There’s a connection – not an obvious one, though – between two recent stories.

The first, which has generated a good deal of angry comment on this web site, is the news that President Obama supports the Respect for Marriage Act (“RMA”). The writer was vilified for a misleading (and since amended) headline that said that the President favors a federal right to marry.

The headline was misleading, yes, but less so than most thought. By supporting the RMA, Obama has quickly gobbled up most of the remaining gap between his former position and full-on support for marriage equality. And it turns out that he does favor something like federal gay marriage.

The RMA would repeal both parts of DOMA – both the federal definition of marriage as restricted to the union of one man and one woman (section 3) and the unnecessary provision that states need not recognize same-sex marriages performed in other states (section 2). (It’s close to redundant because the U.S. Constitution’s full faith and credit clause already gives states the authority to do just that).

So Obama’s support for our equality goes beyond the challenge to section 3 that the Administration has mounted in a number of federal cases – an advance noteworthy in itself. But the RMA does much more. In order to reduce the confusion sure to arise once section 3 is repealed (or declared unconstitutional), the act would make a valid same-sex marriage “stick,” for federal purposes – forever.

What’s a “valid” same-sex marriage? Any state, territory, or country where you can get one, basically. So your Canadian marriage is as good as your New York one (as of this weekend, anyway) – and it doesn’t matter where in the U.S. you live!  Oklahoma or Arizona residents: Flee the state for your Niagara Falls wedding and honeymoon (on either side of the Falls!) and the feds will recognize your union – forever, even if your local laws may, as they say, vary.

As a practical matter, then, if the RMA passes, anyone who wants to get married for federal purposes can do so. And we’d be almost there at that point, with the states having a smaller and smaller role in keeping us roped off from the equality that others don’t often need to think about.

Obama is quickly running out of ways to evolve. Consider his position: states should decide on marriage equality; the federal government should respect the states; I myself don’t favor marriage but do favor the virtual equivalent. I can’t see any new places to “evolve” except to support of full marriage equality.

If he gets there some time soon after January 20, 2013, I’m OK with that. I don’t want to think about the alternatives, at least among most of the Republican candidates.

The second story comes from the juxtaposition of a couple of kid-related things. This morning, we were looking at the rules for a water park in Western Pennsylvania that we decided was the only thing to do on a day when it seemed we were living on Mercury. One “rule” banned “controversial political messages.”

What, exactly, does that mean? I mused about whether we could be turned away for wearing shirts that said: “Love Makes a Family.” And the lawyer in me wondered: Who are the solons of family-friendliness who are charged with enforcing this cloudy edict?

We own no such shirts. But the fact that there’s even a need for this shirt is the problem here. Indeed, our presence at the park (especially given the clientele) was almost as much of a statement, in and of itself, as the (perhaps) banned shirt would have been.

At some point, of course, kids figure out that not everyone thinks their LGBT-headed families are OK. Depending on the kid, some of this negativity can start to seep into their own sense of self-esteem, insidiously corroding it. For that reason, there are GLBT-family oriented national and local organizations, and now – Camp Highlight.

As a story on this site noted, the new camp is for the children of LGBT parents, and will be in Wernersville, Pa – not a bad drive from our home in Philly. Coincidentally, the news came as David and I had been discussing whether this sort of camp might be something worth sending our kids to when they get a bit older. (We were familiar with a similar effort, Camp Mountain Meadow in New Jersey, which I’ve written about, but which was forced to suspend operations for the current year. I wish them a speedy reboot.)

I’m not crazy about the ghettoizing of our community – by others or by us. Won’t kids do better by figuring out how to get along in a complex world? But my kids might feel differently in a few years. To an extent, their views are shaped by what their President says and thinks about the dignity and equality of their families.

John Culhane is concluding a nice, long vacation! His work, though, can be read at any time.

Culhane: A gay rights travelogue

July 15th, 2011 6 comments

I’ve been on a vacation with the family for the past couple of weeks, and our path has led us through the magical wonderland of Gay Marriage Laws.  Here are some thoughts on our experiences, in a state-by-state travelogue style:

It begins, as ever, in my home state of Pennsylvania. Leaving Philadelphia for the vast Plain of Inequality that is the remainder of the state often makes me wish that we were living in somewhere else. We have no state-wide laws that offer even the most basic protections: no anti-discrimination law; no hate crimes law (well, we did have one – until it was declared unconstitutional by the state supreme court); and certainly no relationship recognition. In fact, our biggest “triumph” has been in keeping the law against marriage equality from going to the voters in order to be converted into a constitutional amendment.

There is, though, joint adoption for same-sex couples. In our lives, that’s the most important legal right. But the state is shameful, overall.

When we finally wriggled out of the hours-long traffic snarl that held us captive in the Keystone State for far too long, we emerged in the legal paradise called…

New York: We’re now in that one-month period between enactment of the marriage equality law and its full implementation, and there’s a blanketing buzz that covered us everywhere.

I was especially struck by my reaction to an early exchange. We spent our first night in Syracuse, where we were “entitled” to a complimentary breakfast. As we ate, I sensed that the older, “traditional” couple at the next table were discussing us, and I was relieved when they got up and left.

A few minutes later, though, the woman came up to our table, leaned over and said: “You have a nice family.”

After I’d mumbled a thank-you and she’d shuffled off, I said to David: “And the next feeding will be at noon.” I do sometimes feel like an exhibit at a zoo when I hear this kind of comment, however well-intentioned.

This time, though, I had a second – and much more positive – reaction. What if she was one of the many New Yorkers who’d supported marriage equality and was heartened to see it passed? Maybe this was her way of being supportive. Under the circumstances, I felt charitably inclined.

Our travels through Republican-dominated Western New York continued to buoy me, and ultimately to convince me that there really is no chance that the state will go back on its fresh commitment to equality. Just a couple of telling examples:

David’s cousin is married to one of the most conservative people I know. We’ve bored and chased away scores of relatives with our animated debates about health care (to which he does not believe there’s a basic right), social welfare, and the like. Yet he was fully supportive of the recent legislation. He’s also in Senator Mark Grisanti’s district. Grisanti, remember, was not only one of four Republicans to vote for the bill, but he had openly “evolved” on the issue – turning away from his campaign pledge to vote against any such measure.

My erstwhile adversary said that people understood the Senator’s change of view, and believed him when he talked about the need to separate his religious from his civil duties. Would the switch cost him reelection? Probably not, thought this rock-ribbed Republican.

Meanwhile, the Niagara Gazette was running front-page stories about how the beleagured City of Niagara Falls was planning a major advertising campaign to get same-sex couples to plan their honeymoon visits there. I couldn’t find any trace of nay-saying in any of the pieces: The deal is done, and now – in the true American spirit – folks are trying to figure out how to make a buck from it.

I’ve rarely been happier to be in the state where I was born. But of course even New York lags behind…

Canada. Last Sunday, we headed across the Rainbow Bridge – everything’s gay! – to that other Niagara Falls, and then across Ontario. We hugged the northern shore of Lake Erie on our way to visit friends in Chicago. (BTW, if you ever get the chance to visit Pelee National Park, do it.)

By now, Canada has had marriage equality for so (comparatively) long that the only squabbles take place at the periphery: For example, how much (if any) accommodation should be made for religious belief?

And this ho-hum approach is what I most noted. Sometimes I tend to think that all Canadians are serious folks who have read (and maybe even understood) the logical positivists.  But several instances of comedic incompetence by people in the service industry put an end to that fallacy. They’re not brighter, more serious, or better educated than we are. But they know unfairness when it’s in front of them, and set about to fixing it.

After that, it was a vertiginous descent through anti-gay purgatory. We came across through Windsor, Ontario into Detroit. We then darted across Michigan, a state so anti-gay that its supreme court was compelled to hold that its “marriage protection” law disabled the state from offering benefits to the partners of its gay and lesbian employers.

We then careered through Indiana, just nicking the northernmost, and most dismal, part of the state. They legislature just passed an anti-equality amendment along to the voters. It will probably pass. Let’s get out of this state.

I’m writing this column from Illinois, staying with friends whose family resembles our own to an eerie degree – two dads, twin girls. Civil unions came to the state recently, and our friends added that legal cement to their seventeen-year relationship last month. It’s not marriage, and they still wear their rings on their right hands in protest of their continued second-class citizenship.  But it’s not bad.

My takeaway from this polyglot of rules and statuses is that it’s just not sustainable. You can’t be married in half the states you drive through, but not in the others. It might take awhile to get this sorted out, but eventually we’re going to get there. Meanwhile, I need to find a way to parachute into friendly states without driving through these other places.

John Culhane teaches in the areas of family law, public health law, and torts at the Widener University School of Law. His new book, Reconsidering Law and Policy Debates: A Public Health Perspective, is now available in various e-book formats.

Culhane: Gay Sports Teams and "Expressive Association"

July 8th, 2011 20 comments

Many people have asked me this question:

Should a gay softball team be able to restrict the number of straight players on the squad?

The subject has been in the news recently, and not just in the “gay news.” Last week, the New York Times picked up the story of a San Francisco softball team that had been disqualified from the Gay Softball World Series when it was determined that there were more than the maximum two “heterosexual” members on the team.  Three members of the second-place team were deemed ineligible, and they’ve sued the North American Gay Amateur Athletic Association (“NAGAAA”), which sponsors the event.

The story raises a host of interesting and inflammatory legal and social issues, and, from what I can tell, most folks are pretty unsympathetic to the league that disqualified the team. But the story is more complicated it seems (and more than has been reported in some usually reliable places).

First, the legal issues. Judge Coughenour ruled that the NAGAAA has the right to set this “three straights you’re out” rule. And his rationale for doing so led me to say: “Touche!”

In Boy Scouts of America v. Dale, the U.S. Supreme Court ruled that the Scouts had a First Amendment right to exclude James Dale from a leadership role. Even though the local anti-discrimination law (of New Jersey) covered the Boy Scouts as a “place” of public accommodations, that law was deemed overwhelmed by the organization’s right to “expressive association.”  The right to convey a message by picking whom you’ll associate with was thought, by a bare majority of the Court, to justify excluding gays in order to promote the Scout’s murky message about honor and, I don’t know, anti-gayness.

At the time, I criticized the ruling as giving too much deference to a message that the Scouts hadn’t even really articulated until they tried to boot Dale. But the case remains good law, so what’s sauce for the Scouts is surely sauce for the NAGAAA:  If the Scouts can bar gays, then surely a gay softball league should be able to bar straights to further its own message. Right?

And if anything, the pervasive history of LGBT discrimination – particularly acute in sports – should make the need for a gay-positive image more compelling than whatever rationale the Scouts were using as a cover for their discrimination.

But what is the message that NAGAAA is trying to convey, exactly? That members of the LGBT community need a dedicated (safe) space to compete? That, in defiance of the stereotypes, we can do just as well (better?) than straight-identified teams? (This excellent article explores these possible messages, and the case, in clear detail.)

Nothing so ambitious, it turns out. The mission statement of the NAGAAA is pretty general fare: to “promote[] amateur sports competition, particularly softball, for all persons regardless of age, sexual orientation or preference, with special emphasis on the participation of members of the gay, lesbian, bisexual and transgender (GLBT) community.”

That “special emphasis,” the court effectively held, could be furthered by the “three straights, you’re out” rule.

The case isn’t over. The plaintiffs are claiming that they were ridiculed and humiliated at a hearing to determine their sexual orientation, and the judge has declined to rule on these claims before trial. Not every action in defense of a constitutionally valid rule is justified, and the plaintiffs might be able to show that the league’s actions were nasty and intrusive enough to support an action for damages.

I have mixed feelings about this idea of group identity as justifying exclusion . I thought that the Dale decision did real harm to boys – straight and gay alike – who might have benefited from a good gay role model (having met Dale, my sense is that he had been a great one). And here, I’m sympathetic to the view that allowing straight men and women into these competitions will lead to good things for us and for them. I’m mostly an assimilationist by nature, if not politically.

Yet I hesitate. When it comes to straight men and women in sports leagues that identify as for LGBT athletes, I speak from some experience. And from that perspective, I’m skeptical.

For the past seventeen years or so, I’ve been swimming for the Philadelphia FINS. Look at the website, and you’ll see that the team is quite LGBT-identified. When I was using the team as an important part of my coming out process, it mattered to me that virtually everyone else on it had gone through something universally similar, however different the stories were in detail.

I even timed the “declaration” to my parents to take place shortly before a scheduled workout, so that I could flee for both exercise and moral support if things didn’t go well. (They didn’t, but that’s a lifetime ago in our relationship.)

And the swim meets! Even more gay men (lesbians, not so many) than at…a “regular” swim meet! But unlike at other meets, everyone was out and comfortable. So comfortable, in fact, that the highlight of the meet was an event called The Pink Flamingo Relay. As you might guess from the fact that it’s based on a John Waters movie, this is a purposely tacky, irreverent burlesque. Just watch one for a few minutes. What else are you doing?

But the Pink Flamingo is fading. Fewer and fewer teams have been participating. I’m not suggesting that this is happening because there are more straight men and women on the teams – including the FINS – now. But the two shifts are part of the same phenomenon: As “the gay” becomes more mainstream, the felt need to define ourselves in opposition to a repressive culture fades. I’m delighted to have the straights on our team, and, to be honest, no one else seems to have a problem with it, either. Soon, the gay meets will really feel like another other meet. (The pain of swimming the 400 yard individual medley doesn’t vary, in any case.)

Yet…Oklahoma City isn’t Philadelphia, and Topeka isn’t San Francisco. In some places, and for some sports, it remains important for the LGBT community to send powerful messages, and to create safe spaces. If the NAGAAA thinks it needs to limit straight participation for a while longer in order for those goals to be achieved, maybe we shouldn’t second-guess them. (And they’ve now changed their rules to prevent a re-run of the Star Chamber approach – a self-declaration of sexual orientation will now suffice.)

Or maybe we should apply another litmus test: Teams can limit straight participation until at least two professional athletes from each of the major team sports – baseball, hockey, basketball and football – come out. While they’re still playing.

How long do you think that will take?

John Culhane writes and speaks on many different issues: LGBT rights; compensation of disaster victims; and the relationship between law, policy and public health.

Culhane: But are they "bigots"?

July 1st, 2011 19 comments

It’s been much remarked lately that those who oppose marriage equality have been trying to stand the facts of the world on their heads. In a move that’s been at least partially successful, some of them claim that what we’re trying to do is to silence them, to drive their views from “the public square” (one could create a drinking game based on Maggie Gallagher’s use of that term), and to label them “bigots.”

So they are the “victims” – not those of us who are denied basic equality. Read this recent interview with Gallagher in the wake of the New York victory – it won’t take you long to find the words “bigotry”, “silenced,” and – of course – “public square.” [Glug.]

This strategy makes sense, from their perspective. As it’s become glaringly apparent that they don’t have convincing legal or policy reasons for excluding us from the benefits of and protections of marriage, they attempt to shift the terms of the debate by labeling us intolerant.

Broadly speaking, this move generates two responses. One is to try accommodating this view by compromising with civil unions and religious exemptions. That this move can be effective is shown by current events in Rhode Island, where the governor seems poised to sign a civil unions bill with exceptions so broadly written that they erode existing state anti-discrimination law. This is hardly progress, and in any case doesn’t appease the oppositions – the Rhode Island arm of NOM still opposes the measure.

The other is to yell back: “Well, yes, you are bigots! Own it!”

This is tempting. It’s worth noting that many of the marriage equality opponents have resisted every single advance in LGBT rights along the way, not just marriage. Gallagher, for example, once wrote a column in which she belittled the idea of passing the Employment Non-Discrimination Act by enclosing the word “discrimination” in ironic quotation marks.

But to those of us insistent on full equality yet determined to be respectful to our opponents (no matter whether such decency is reciprocated), this primal response also seems unwise. But is it?

Let’s take a hard look at the word “bigot.”

Here’s a fairly standard definition of the word, drawn from my Webster’s Collegiate Dictionary: “a person obstinately or intolerantly devoted to his or her own opinions and prejudices.”

Let’s concede (maybe not accurately) that at least some of the oppositionists aren’t “intolerant” – that’s a fuzzy word, anyway.

But the definition provides a choice: to meet the definition, devotion to an opinion can be either intolerant or obstinate. — it doesn’t need to be both. And I do think that at least those whose opposition is based on religious can fairly be called “obstinate.”

Here’s the first definition of obstinate: “…adhering to an opinion, purpose, or course in spite of reason, arguments, or persuasion.”

That exactly what’s going on with those who insist that opposite-sex marriage is “God’s plan” or who rail against (sigh) “Adam and Steve.” Nothing will persuade them otherwise, because religious belief isn’t based – isn’t even supposed to be based – on reason or logic. It’s based on…belief. And that applies across the political spectrum. Whether religious folks are for us, or agin’ us, to the extent they base their views on religion, they don’t ground them in “reason, argument, or persuasion.”

Is this perverse? The dictionary says it is; I left that adverb out of the definition above in order to discuss the point without characterizing it. I’d say that some of those who aren’t religious find this impermeability to reason perverse; religious folks, of course, disagree.

Does that mean that everyone who opposes marriage equality is a bigot? Not at all. But it does mean that anyone who opposes it without “reasons, arguments, or persuasion” – in short, based on belief alone – is, in fact, a bigot.

Deal with it.

John Culhane is a law professor, a blogger, and a contributor to Slate Magazine. He is also the editor of, and a contributor to, Reconsidering Law and Policy Debates: A Public Health Approach.

Culhane: Analysis (and Celebration!) of the NY Marriage Equality Law

June 25th, 2011 16 comments

Marriage equality is coming to New York! The bill was signed within about an hour of its passage through the legislature, and marriage licenses will start issuing in 30 days.

It’s hard to write a column when all you want to do is scream and dance. I’m in Pennsylvania, not New York, but I grew up there and am still enough of a NY snob and realist to know that this is a

Only the more populous California rivals New York in legal and symbolic importance. The state’s financial and cultural clout are exported around the world. Now this news about marriage will be, too, and I expect other states and nations to use this development as powerful ammunition for their own marriage equality movements.

Our opponents – especially the National Organization for Marriage – know this, too.

When they’re being honest with themselves, they also know that their tactics at best delay the inevitable. That defensive game just got a lot tougher, especially since it was Republicans that made the difference in the state senate: Sen. Skelos, the majority leader, allowed the measure to come to a vote; and in the end four Republicans put the measure over the top.

Consider the two whose votes were declared only last night: Mark Grisanti, who represents the Buffalo-Niagara Falls area; and Steve Saland, from the beautiful Hudson Valley part of the state.

These are exactly the kind of measured, moderate voices that quietly voice the doom of the anti-equality effort. Saland has a reputation as a thoughtful (if dull) legislator, but he spoke with confidence and conviction about his vote, declaring that his emotional journey towards recognizing the dignity and equality of gay couples was now at its end. He knew, somehow, that his parents would be proud of him

It was Grisanti, though, who is going to have the Catholic-inflected NOM et al. scrambling for a new playbook. He’s a real Catholic (check out his bio to see how very Catholic he is), yet was, in the end, able to separate his religion from what he concluded the law must allow.

Both Saland and Grisanti, significantly, are lawyers. I know, I know – a law degree doesn’t confer infallibility. But when it comes to legal rights, any attorney should be able to articulate a reason to exclude a class of people from equality. And Grisanti said: “I cannot legally come up with an argument against same-sex marriage.”

Others have, though. It’s worth recalling that the New York Court of Appeals ruled in 2006 that the state could ban same-sex weddings, using some of the worst arguments you will ever see in a body of such stature. This win more than makes up for that serious misstep, and is more satisfying, in a way.

This brings me to the one part of the law about which I have serious reservations: the religious exemptions. I’m well aware that the bill wouldn’t have passed without them, so the question is: Was it worth it? Are the exemptions too strong? Are they justified? Or should we have waited for a better law, bearing in mind that this version of marriage equality is likely to be ferried from state to state, going forward?

On balance, I think the exemptions are tolerable – but just barely.

First, they’re not the broadest – and dumbest – exceptions that have been suggested by a small, seriously misguided, group of law professors. These folks lurch from state to state arguing that businesses should be able to refuse to cater, photograph, provide flowers for, or put up guests for same-sex weddings if their objection is based on religion

This has been, and will continue to be, a non-starter. Although ostensibly limited to transactions connected to the wedding, in fact the restriction is impossible to police and would result in the rollback of anti-discrimination protection in states that have worked so hard to get it.

But the exemptions that are in the bill remain troubling. They go beyond what the state law and the U.S. Constitution already require, which is that no religion is forced to solemnize any marriage that violates its tenets. Under the amendments – released, maddeningly, just hours before the vote – neither these religious organizations, nor any non-profit organizations they control, nor any other “benevolent association” (think Knights of Columbus) has to have anything at all to do with a same-sex wedding.

As a pointed example, the measure would foreclose a suit such as the one filed by a New Jersey couple denied use of a beach pavilion by the Methodist church that owned it. The facility was routinely rented out for all kinds of weddings, so one might think that the decision to enter the world of commerce means you have to take all comers.

Yes in New Jersey – but not in New York. A church, synagogue, or mosque, can spin off as many organizations as it wishes, and engage in whatever businesses it wishes, without having to get involved in anything to do with our weddings. They can’t be sued for their actions, and they can’t lose their tax-exempt status because of them. I prefer the New Jersey approach, which strips away the religious fig leaf from naked acts of commerce.

There are also provisions in the law designed to reassure religious organizations that marriage equality can’t be used as a sword to get them to provide housing, employment, or services to the LGBT community where doing so would be inconsistent with their basic message. But those protections are already in state law, so the law isn’t as troubling there. Or at least it’s not newly troubling.

One thing that the law seems to leave out is an exemption for adoption agencies affiliated with religious organizations (like Catholic Charities) that will not place kids in households headed by same-sex couples. This is a vexing question that deserves its own post (coming soon!).

Let me close by panning back out, away from the details of the law to the broader commitment to dignity and equality that it embodies. Openly gay and HIV+ Senator Tom Duane ran well past his allotted time to provide a brief history of the progress of our movement, culminating in this huge victory. Then he said: “Nothing is going to change about how we love or take care of each other.” It is just that the state is now going to recognize and support us in these efforts.

And it is about time.

John Culhane recently calculated that he could get to work from the closest point in NY State – his childhood home town of Pearl River – in two hours, forty-five minutes. But if he spent all that time commuting, he wouldn’t be able to write stuff like this, these, or these.