Archive for the ‘365gay column reprints’ Category

Culhane: One last salvo against the misuse of religion

September 30th, 2011 4 comments

My last column is kind of an angry one.

Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.

As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.

On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.

Beyond that kind of practical accommodation, though, allowing this kind of  refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:

State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.

But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.

Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.

And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?

We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.

I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.

George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to)  families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.

Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti  by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.

For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.

I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.

Culhane: The tidal shift in the LGBT movement

September 23rd, 2011 4 comments

Who’s hiding now?

A couple of recent developments – one seismic, the other not so much – point to a tidal shift in the battle for LGBT equality and dignity.

The biggie, of course, is the long-overdue interment of Don’t Ask, Don’t Tell. You’d have to be made of a certain kind of dense mineral not to be moved by the stories that we’re hearing of soldiers who can now go about their jobs without fear of being outed, then ousted. And the squawking of those on the hard-right who’d threatened to get repeal undone are dying away like the gasps of an almost-extinct species.

Yet the repeal creates problems more complex than the one it solved. Once these gay and lesbian (but not transgendered) soldiers stand revealed in the fullness of their identity, it’s also going to become almost immediately apparent that they’re still not equal. While they now are allowed to exist, their relationships are not, because these soldier are not considered legally married for federal purposes.

So all the benefits that straight servicemembers take for granted – including housing for their families and spousal death benefits – aren’t available to same-sex couples. Because of the Defense of Marriage Act (“DOMA”) that’s true even if the couple is considered legally married in their state of residence.

This glaring inequality has the potential to do some serious damage to the anti-equality forces. Soldiers not only enjoy tremendous respect, but they live in such stifling proximity to each other that these inequities can’t be missed. In short order, this new set of stories – told now not by ex-soldiers, or by soldiers concealing their identities, but by open and proud service members – will create a compelling narrative that should accelerate the momentum toward the repeal of DOMA.

Equality and openness beget more of the same.

This could finish even better than you’d think it might. Because members of the military are constantly on the move, and often overseas, it won’t do to have their marriages recognized some of the time (when they’re in states that allow same-sex marriages) but not always (when they’re anywhere else). So the move to pass something like the Respect for Marriage Act (“RMA”) will also gain steam. Under that proposed bill, once you’re legally married in any state that allows it, you’d be forever deemed married for federal purposes. While the RMA still won’t force states to recognize marriages from other states, the pressure on them to do so will increase dramatically.

No other approach makes sense for the military – it would be a logistical nightmare for the government (and the same-sex couples) to move in and out of legal marriage as they changed location. This is already a problem with same-sex marriages under state law: try dissolving your Massachusetts marriage in Texas, for example.

But the military setting brings the problem into sharp relief.

So the reality of our lives, as we push further and more boldly into the open, has created irresistible pressure for equality. Look no further than recent polling data on marriage equality for evidence that the message is getting through.

And that brings me to the second development, which is a sort of flip side. As our openness and equality become an increasingly tight and strong braid, our opponents find themselves on the defensive. That’s not a good place to be when you have no good arguments for your position.

So, once again, we had the Prop 8 opponents trying – but failing – to keep the videotape of the trial from being made public. (An appeal has been filed, of course.) And a couple of weeks ago, the lawyers working for the House of Representative on the DOMA case politely refused to consent to the videotaping of oral arguments before the federal appellate court. They gave no reason for their refusal, but let me suggest one:

They know their arguments are neither sympathetic nor compelling.

The more they say, the worse – the meaner, frankly – they seem. David Boies, one of the attorneys on the Prop 8 challenge, said it succinctly: “The witness stand is a lonely place to lie.” (Watch the video, especially around the 3:00 mark. Boies is devastating.) Indeed, the Prop 8 defenders’ witnesses were such a disaster that the release of the videotapes would be a huge boon for our side. Better to keep it – and all opposition arguments – under wraps. I’d be begging for the same result were I the lawyer representing them.

Who’s hiding now?

John Culhane is stepping up the pace of his own blogging at as his work on this site rockets toward its conclusion next week. You can also follow him on Slate, Twitter (@johnculhane), or through his legal scholarship. He’s also working on a book about civil unions, and invites your stories.







Culhane: Let's continue the conversation

September 16th, 2011 3 comments

It’s been about a year and a half since 365gay editor Jay Vanasco emailed me, and invited me to write something for this site about the absurd goings-on in Virginia. (You might or might not remember that the Governor, Bob McDonnell, and the A.G., Ken Cucinelli were in a race to the bottom on LGBT rights.)

I had been blogging on the issue over on my own site,, and Jay thought that 365gay readers might be interested in what I had to say from the legal and political perspectives.

So that same night, I sat down and wrote what would turn out to be the first of my now more than 70(!) columns for this site. For reasons having only to do with my own compulsive nature, I haven’t missed a single week since that first column back in March 2010. I owe Jay a deep debt for giving me this platform. (Thanks, too, to James Withers for his tech help and for the “reality check” his pieces reliably provide. And to John Corvino for reaching out to me as a fellow columnist.)

And why would I ever want to miss a week? Many of the columns have triggered some of the most thoughtful and moving comments that you’ll read anywhere. As regular readers know, I often weigh in with my responses to readers – even, or perhaps especially, when they strongly disagree with me. I’ve tried to listen, and have found myself changing my views in response to many of the compelling responses that I read.

Moving from my own blog to 365gay opened me up to a much larger, and involved, audience.

My columns were the better for your input. While it’s hazardous to mention any of the commenters by name (for fear of leaving some valuable contributors out), that won’t stop me from mentioning a few of the most astute and compelling of the lot: Gerry Fisher, Alexander Fisher-levesque, Morgan, KaninZ, Janine Norberg, Lee Dorsey, Truth be Told, Keith Elston, Wayne M., deletethis, TigerTzu, and michaelandfred. (Apologies to the many I’ve missed.)

Some of these comments are so lengthy, well-informed and compelling that I found myself wondering why I was the one writing the pieces. And even the ones that weren’t as, um, civil, were a useful reminder of the pain and the emotion that many in our multiple, overlapping communities feel. Thanks to all of you, whether you commented or not.

Well, as you know, this particular ride is coming to an end. What’s next? Well, first: To quote a famous Monty Python line: “I’m not quite dead yet.” Since the site is going to be around until September 30 – a Friday, as it happens – I have at least two more columns after this one.  So next week, it’s back to the events of the day.

After that? I’m still thinking about whether I want to seek out another regular, column-writing commitment to a site not my own. On the one hand, this has been a good gig for me. I’ve been forced into a schedule and focuses me on a subject (in this case, LGBT rights) where there’s an audience that has a similar focus.

On the other hand, I’ve learned that this kind of focus can be limiting. Before I migrated over here, I was blogging relentlessly at WordinEdgewise, on all manner of topics. In addition to LGBT rights, I wrote about: abortion, public health law, politics, racism, tort law, compensation for disaster victims, science, philosophy, human rights, theater, comic books, popular music, fiction, poetry, non-fiction works, tennis, swimming, and deviled egg servers. (If you’re interested in a particular topic, go to the left side of this page and scroll through Topics/Categories.) In other words, like most people I have lots of interests – not just in LGBT issues, although everything I write is surely informed by my perspective as a (fairly privileged) gay man.

And from my start date, in January 2009, until I started here, I was churning out five or so substantial (by blog standards) pieces each week.  (At one point, David was referring to me as Bloggy Bloggenstein.) Many of these generated substantial internet buzz, especially my back-and-forth with Andrew Sullivan over abortion and my angry take on the Obama Administration’s initial defense of DOMA.

Under no circumstances could I have kept up that pace. I have a full-time job and a family with two young kids. (Most of my blogging went on between 10 p.m. and midnight.) But starting the weekly column and then, shortly thereafter, writing the first of several pieces for Slate, really did take my energy away from my own blog. Most recently, it’s existed primarily as a link to my other pieces.

But this has been a trade-off. Now I can seek some sort of balance in the topics I write about, and in the amount of writing I do. Since I only write for Slate occasionally, I’ll have some time to dig back into the joy of my own blog, and to explore a fuller range of topics.

I would love it if some of you would follow me over there. My short-term promise to you is that I will continue to write about the LGBT issues that matter to us, at least once a week. But I will also be posting on a range of other topics, as they grab my interest and as I have time. In general, I’m expecting to post at least one or two additional times per week. And, by the time they turn out the lights here at 365gay, I expect to have completed the redesign of my own site, in part to make clearer the broad categories of each post.

But for now, please wander over there if you have the chance and the inclination. I’d love to continue this conversation beyond the next two weeks. Look for something about Michele Bachmann and the HPV controversy early next week. (Teaser: She must be stopped.)

Let’s continue our conversation.

John Culhane will soon step up the blogging at He is working on a book on civil unions, and invites married, civilly united and domestically partnered couples to contact him at; the book will feature our life stories.

Culhane: The latest legal issues surrounding gay couple rights

September 9th, 2011 2 comments

Three recent developments on the LGBT relationship front have sparked my interest. Let’s do a quick round-up:

(1) On Tuesday, the California Supreme Court heard oral argument on a part of the Prop 8 appeal that only lawyers can love: whether the “official proponents” of this vile ballot measure have standing to appeal the state’s loss in the trial court.

As you might (but probably don’t) recall, the federal court of appeals for the Ninth Circuit, which is hearing the appeal, asked the California Supreme Court to weigh in with its opinion as to whether state law allows the proponents standing in this kind of case.

Based on the questions asked during the argument, it seemed clear that the court’s going to hold that the proponents do indeed have standing. If the federal court agrees (as it’s likely to do), then we’ll get to the merits of the case. This could actually happen quite quickly, as judicial appeals go. State law requires the California court to issue its ruling within 90 days, and the Ninth Circuit could move quickly after that. So a ruling on both standing and the merits could come as soon as six months from now.

Then there will likely be appeals to the full court (for what’s called an “en banc” hearing), and from there to…the Supreme Court.

Setting aside the legal complexities of the standing issue, I have two observations: First, the proponents are having trouble establishing standing because they can’t show that they’ll be harmed in any way if Prop 8 is declared unconstitutional. This problem mirrors the broader issue with marriage equality: it’s only those of us fenced out of it who are harmed, not those who already have the right.

Second, on balance I’d prefer for the courts to find standing here. A victory on the merits is more satisfying, and also more decisive. And if we lose at the Supreme Court level (which I think is about an even bet), that defeat would not cause the marriages of same-sex couples in states that already recognize them to be voided. We’d just have to continue working at the state level, in both legislatures and the courts (which can read their own state constitutions more broadly than the U.S. version).

Yes, I know we can keep trying to get this done in the U.S. Congress, but I’m not that Pollyannish – at least for the foreseeable future.

(2) Speaking of the U.S. Constitution and that same Ninth Circuit: That court has just found that a change to an Arizona law that had the effect of denying health benefits to state-employed same-sex couples violates the constitutional guarantee of equal protection. The state had formerly extended health benefits to domestic partners, but after the voters amended the state’s constitution to bar same-sex marriages, the term “domestic partner” was eliminated as a class of eligible beneficiaries.  The effect is that one would have to be legally married for one’s spouse to receive health benefits– and of course same-sex couples don’t have that option.

The court’s ruling is only a temporary injunction for now, but it’s still an important win. By issuing the injunction, the court found that the same-sex coupled plaintiffs are likely to succeed on the merits of their suit and that they would suffer “irreparable harm” were the law allowed to take effect.

What does this say about Gov. Janet Brawer’s “sign from God” that she should approve the bill?

So good work can be done with equal protection no matter what the Supreme Court decides on the marriage issue; but it will be harder if the Court’s language and reasoning are overly broad. I don’t expect that to happen, though.

(3) On the practical, problem-solving front, we have the finalization of federal rules which will greatly expand our rights to visit our partners and spouses in health care facilities. If the facility receives any federal funding (which almost all do, thanks to Medicare and Medicaid), they must allow the patient to designate his or her own emergency contact.

This is a great advance for same-sex couples, but not only for us. It recognizes reality over status, and furthers the autonomy of all patients. Once again, the Obama Administration – despite its mixed record of success on our signature goals of ENDA, DOMA, and DADT – has shown a great capacity for practical problem-solving.

John Culhane has written a chapter about marriage equality in Reconsidering Law and Policy Debates: A Public Health Perspective; he is also the editor of the volume.

Culhane: Fighting the wrong health insurance battle

September 2nd, 2011 5 comments

Sometimes I feel like we’re fighting the wrong battle – even when it’s a battle I myself have fought.

The issue of employer-provided health insurance for our partners was recently addressed in a story appearing in the University of Virginia’s newspaper, the Cavalier Daily (and that was linked to this site). The University doesn’t provide health benefits to the same-sex partners of its employees, although it does make them available to the spouses of married couples.

A spokesperson for the University said that state law prohibits the school, which is state-funded, from granting such benefits. (Virginia, as you might remember from my first column on this site, isn’t exactly a friendly place when it comes to LGBT rights.) This statement probably isn’t accurate; state schools have a great deal of autonomy, and the school might well be able to grant the benefits absent a specific law that would prevent them from doing so.

Even if the school wanted to avoid incurring the wrath of the state’s right-wing governor (whose propensity for outrageous assaults on GLBT rights is exceeded only by his willingness to back down when the political costs are too high) and legislature, it could easily sidestep the problem. Here’s how the University of Michigan did so:  it simply created a new category of benefit-eligible employees (“otherwise qualified”). If anything, the task was harder in Michigan because of a state supreme court ruling that read the state’s marriage anti-equality amendment to prohibit any government entity from recognizing the status of domestic partnership.

In short, the University of Virginia could allow the benefits, if the will to do so were there.

And the current policy has a cost of its own. First, partnered LGBT employees feel they’re being treated unfairly. The Cavalier article quotes a professor Ellen Bass, who has concluded that it’s cost her “thousands of dollars to be a gay person” at the University – in part because neither her son nor her partner are covered by her health insurance.

Second, for every person like Bass, there are doubtless many others who might pass over the University, which is an otherwise prestigious and desirable employer, in favor of other schools with more enlightened policies. Those who have such choices are likely the most qualified of the applicant pool.

This issue should be easy.

Health benefits are a valuable and, for many, vital part of compensation. Eight years ago, I went to my law school’s dean to make this case. Within a year-and-a-half (light speed by university standards), it was done. The university had no answer to the dean’s argument that, by providing benefits to straight couples but not gay ones, they were fostering an unfair wage disparity.

But is it really that simple? Not if we start from a different place: Why do employers offer (much less pay for) health insurance in the first place? It wasn’t always thus; during World War II, employers came up with the idea as a way to get around the wage freeze that was then in place. And then the practice just…stuck. To make the pot even sweeter, many employers now offer benefits to the families and spouses of their employees, too. But this only creates a wage disparity between employees. The single worker realizes less of a benefit than the one with a family.

Granting benefits to same-sex partners doesn’t solve this problem; it only addresses one small part of it. Someone needs to come up with a better idea; like, oh, I don’t know…single-payer, universal health coverage?

That’s not going to happen any time soon. So we continue to skirmish over the extent of coverage in an accidental system. We have only this hand to play, but should remember that the goal is to get as many people covered as possible – no matter what kind of relationships they’re in.

John Culhane is a Professor of Law, a contributing writer for Slate Magazine, and a blogger. He is the editor of “Reconsidering Law and Policy Debates,” and contributed the chapter on marriage equality.

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.)