The feminist critique of marriage is not dead, though it often appears under wraps these days. That makes me especially grateful to Courtney Martin for her piece on the American Prospect website yesterday.
Courtney may someday run up against a wall. Maybe she or her partner will be unemployed, or have a job with no health insurance, and the employed one of them may only be able to cover a spouse on his or her policy. I could face this myself if the District of Columbia ever allows same-sex marriages. My university grants domestic partner health insurance only to same-sex couples; it expects different-sex couples to marry. So it's reasonable to think if we could marry, American University would expect us to do it. Although I am a prominent critic of marriage, I couldn't let my partner, with her history of medical issues, go uninsured. I hope it doesn't happy to Courtney, that she keeps spreading her skepticism, and that she joins the effort to unhook marriage from a unique set of legal consequences.
Tuesday, July 22, 2008
Tuesday, July 15, 2008
SO IS MARRIAGE REALLY A CHOICE IN MASSACHUSETTS?
It's a given that the marriage equality movement is about obtaining the choice to marry. Well we've got that choice in Massachusetts, and then last week out comes a case that shows, again, that it's not really a choice at all. Not if we want to protect economic security and emotional peace of mind.
The Massachusetts Supreme Judicial Court decision requiring the state to allow same-sex couples to marry (usually referred to as the Goodridge decision) was an ode to the importance of marriage. So it's no surprise that the judges are more than happy to make the line between the married and the unmarried as bright as can be. Last week, they decided a case in which Cynthia Kalish sought to recover damages for loss of consortium as a result of a medical malpractice claim concerning her partner of over 15 years. Loss of consortium damages are what a can spouse can get to make up for the loss of a spouse's companionship due to another's negligence.
Cynthia and her partner Michele married as soon as they were legally able to do so. But Michele's medical malpractice claim stemmed from before their marriage. So the court had to decide whether, as an unmarried couple -- even one that would have married had it been legally permissible -- Cynthia was eligible for loss of consortium damages. The court ruled she wasn't.
It's not like the loss of consortium action was frozen in time from its creation centuries ago. Used to be only a husband could recover these damages. The Massachusetts court had already extended this cause of action to wives, minor and disabled adult children, and a fetus, later born alive. But the court had also denied recovery to unmarried heterosexual partners, citing the state's "deep interest" in uphold the integrity of marriage.
So it's no surprise that in this case the court reminded us that the many benefits attached only to marriage were part of the reason it had found the ban on same-sex marriage unconstitutional. The court explicitly refused to "erase the bright line between civil marriage and other forms of relationship."
Now I can't say the court would have decided otherwise had it ruled the other way in Goodridge. Probably the outcome would have been the same. But it's the wrong decision. It's not that hard to come up with a test for courts to apply that recognizes when two people living together have relied on each other's love and support to the extent that loss of consortium damages are appropriate. There's really no reason to fear that mere roommates would qualify.
Like so many other legal consequences of marriage, if only the married can get them, what kind of a choice do we really get when we get the right to marry?
The Massachusetts Supreme Judicial Court decision requiring the state to allow same-sex couples to marry (usually referred to as the Goodridge decision) was an ode to the importance of marriage. So it's no surprise that the judges are more than happy to make the line between the married and the unmarried as bright as can be. Last week, they decided a case in which Cynthia Kalish sought to recover damages for loss of consortium as a result of a medical malpractice claim concerning her partner of over 15 years. Loss of consortium damages are what a can spouse can get to make up for the loss of a spouse's companionship due to another's negligence.
Cynthia and her partner Michele married as soon as they were legally able to do so. But Michele's medical malpractice claim stemmed from before their marriage. So the court had to decide whether, as an unmarried couple -- even one that would have married had it been legally permissible -- Cynthia was eligible for loss of consortium damages. The court ruled she wasn't.
It's not like the loss of consortium action was frozen in time from its creation centuries ago. Used to be only a husband could recover these damages. The Massachusetts court had already extended this cause of action to wives, minor and disabled adult children, and a fetus, later born alive. But the court had also denied recovery to unmarried heterosexual partners, citing the state's "deep interest" in uphold the integrity of marriage.
So it's no surprise that in this case the court reminded us that the many benefits attached only to marriage were part of the reason it had found the ban on same-sex marriage unconstitutional. The court explicitly refused to "erase the bright line between civil marriage and other forms of relationship."
Now I can't say the court would have decided otherwise had it ruled the other way in Goodridge. Probably the outcome would have been the same. But it's the wrong decision. It's not that hard to come up with a test for courts to apply that recognizes when two people living together have relied on each other's love and support to the extent that loss of consortium damages are appropriate. There's really no reason to fear that mere roommates would qualify.
Like so many other legal consequences of marriage, if only the married can get them, what kind of a choice do we really get when we get the right to marry?
Wednesday, July 9, 2008
OHIO'S PAID SICK LEAVE CAMPAIGN LEAVES OUT LGBT FAMILIES
The nationwide campaign for paid sick leave is growing. And that’s a good thing. About half of all workers don’t have any paid sick leave, and those in the lowest paid jobs are least likely to have it. The campaign provides an opportunity for the gay rights movement that it has yet to seize. It also provides an opportunity for labor organizers to acknowledge the existence of LGBT families and protect them…even in states with anti-gay marriage constitutional amendments.
Paid sick leave laws typically allow the worker to use his or her leave to care for sick family members. So of course the law must define who those people are. As readers of my book know, the definition I favor is the one that all federal government employees have; they can take leave to care for anyone with whom they have a “close association” that is the “equivalent of a family relationship.” That’s the standard in the proposed federal Healthy Families Act. I tried to get the District of Columbia to adopt this definition last year without success, but we do include couples who live in a committed relationship for more than a year. The bill pending now in Illinois includes anyone the employee has lived with for more than six months.
So I was saddened and outraged to learn last week about what’s going on in Ohio. After failing to get paid sick leave through the Ohio legislature, organizers have proposed a ballot initiative. If they get enough signatures by next month, Ohioans will vote in November on whether their state will mandate paid sick leave. So far, so good, but then I read the definition of who a worker can take leave to care for; it's limited to spouse, parent, and child and so excludes unmarried couples and household members who aren’t spouse, parent, or child. Given that Ohio has a constitutional amendment saying the state will not recognize same-sex marriage, that means it excludes all same-sex couples!
The Ohio campaign claims it is building support for the federal Healthy Families Act, so why reject the recognition of all families in the federal bill? Even if the Ohio initiative included only the definition in the Illinois bill, it would cover couples who had lived together for six months without singling out unmarried couples. Therefore it would not run afoul of Ohio's constitutional amendment but would protect LGBT couples who live together.
So not only does the Ohio initiative fail to grasp the truly expansive definition in the proposed federal Healthy Families Act, it even ignores the needs of gay and lesbian couples. With all the attention on gay marriage over the past several years, I would think Ohio organizers would have the needs of gay and lesbian workers in mind when writing a bill. Apparently not.
But I also fault the gay rights movement. Where is it in the fight for paid sick leave? Where is it in seeing the value of coalition work that meets the needs of more than just gay people? Type “paid sick leave” into the search engine on the website of Out and Equal Workplace Advocates, and you get…nothing. Where is Equality Ohio, other than missing from the long list of endorsers of the Ohio Paid Sick Leave Initiative? And who can blame them for that, given that the initiative omits LGBT families? But if they had been there at the beginning, at the drafting of the initiative, surely they could have had influence.
The website for Ohioans for Healthy Families says “it’s time for Ohio to value ALL families.” Hey – valuing all families is MY agenda…it’s the name of my book! It’s the definition in the federal Healthy Families Act that does that, not the one in Ohio. Claiming their initiative values all families when it doesn’t means either that they don’t know LGBT families exist or they don’t care. Either way, shame on them.
As for gay rights advocates, don’t wait another minute. Find out if your state has a paid sick leave bill in the works, and make sure it has the most inclusive definition of family possible…like the one federal workers enjoy today.
Paid sick leave laws typically allow the worker to use his or her leave to care for sick family members. So of course the law must define who those people are. As readers of my book know, the definition I favor is the one that all federal government employees have; they can take leave to care for anyone with whom they have a “close association” that is the “equivalent of a family relationship.” That’s the standard in the proposed federal Healthy Families Act. I tried to get the District of Columbia to adopt this definition last year without success, but we do include couples who live in a committed relationship for more than a year. The bill pending now in Illinois includes anyone the employee has lived with for more than six months.
So I was saddened and outraged to learn last week about what’s going on in Ohio. After failing to get paid sick leave through the Ohio legislature, organizers have proposed a ballot initiative. If they get enough signatures by next month, Ohioans will vote in November on whether their state will mandate paid sick leave. So far, so good, but then I read the definition of who a worker can take leave to care for; it's limited to spouse, parent, and child and so excludes unmarried couples and household members who aren’t spouse, parent, or child. Given that Ohio has a constitutional amendment saying the state will not recognize same-sex marriage, that means it excludes all same-sex couples!
The Ohio campaign claims it is building support for the federal Healthy Families Act, so why reject the recognition of all families in the federal bill? Even if the Ohio initiative included only the definition in the Illinois bill, it would cover couples who had lived together for six months without singling out unmarried couples. Therefore it would not run afoul of Ohio's constitutional amendment but would protect LGBT couples who live together.
So not only does the Ohio initiative fail to grasp the truly expansive definition in the proposed federal Healthy Families Act, it even ignores the needs of gay and lesbian couples. With all the attention on gay marriage over the past several years, I would think Ohio organizers would have the needs of gay and lesbian workers in mind when writing a bill. Apparently not.
But I also fault the gay rights movement. Where is it in the fight for paid sick leave? Where is it in seeing the value of coalition work that meets the needs of more than just gay people? Type “paid sick leave” into the search engine on the website of Out and Equal Workplace Advocates, and you get…nothing. Where is Equality Ohio, other than missing from the long list of endorsers of the Ohio Paid Sick Leave Initiative? And who can blame them for that, given that the initiative omits LGBT families? But if they had been there at the beginning, at the drafting of the initiative, surely they could have had influence.
The website for Ohioans for Healthy Families says “it’s time for Ohio to value ALL families.” Hey – valuing all families is MY agenda…it’s the name of my book! It’s the definition in the federal Healthy Families Act that does that, not the one in Ohio. Claiming their initiative values all families when it doesn’t means either that they don’t know LGBT families exist or they don’t care. Either way, shame on them.
As for gay rights advocates, don’t wait another minute. Find out if your state has a paid sick leave bill in the works, and make sure it has the most inclusive definition of family possible…like the one federal workers enjoy today.
Wednesday, July 2, 2008
OUTRAGEOUS ADOPTION WEBSITE BEHAVIOR
In the Hall of Shame this week...Parentprofiles.com and Adoption Profiles/Adoption Media for their refusal to allow a New York gay male couple to post their profile on a website designed to let birth parents select the adoptive parents for their child. The company allows only a "qualified husband and wife couple" to post online.
A California couple sued the same agency in 2003...and won! In 2007, the company agreed that if it provided any services to California couples it would abide by California's non-discrimination laws. Then it actually stopped serving California entirely rather than help all qualified prospective adoptive parents. So now they are up to their old tricks on the other side of the country.
The National Center for Lesbian Rights won the California case. New York-based Lambda Legal is representing the New York couple. Both organizations deserve our appreciation and support (with a donation if possible!) for their tireless legal work on behalf of LGBT families.
A California couple sued the same agency in 2003...and won! In 2007, the company agreed that if it provided any services to California couples it would abide by California's non-discrimination laws. Then it actually stopped serving California entirely rather than help all qualified prospective adoptive parents. So now they are up to their old tricks on the other side of the country.
The National Center for Lesbian Rights won the California case. New York-based Lambda Legal is representing the New York couple. Both organizations deserve our appreciation and support (with a donation if possible!) for their tireless legal work on behalf of LGBT families.
Thursday, June 26, 2008
OUTRAGEOUS HOSPITAL BEHAVIOR
Readers of this blog know that my family policy agenda includes advance health care directive registries, first at the state level and then hopefully linked across the country. Today there's news of outrageous hospital behavior out of Florida. Janice Langbehn was denied access to her dying partner, Lisa Marie Pond, even after the power of attorney she held was faxed to Jackson Memorial Hospital in Miami. Langbehn has filed a federal law suit claiming negligence and intentional infliction of emotional distress. Gay rights legal group Lambda Legal represents Langbehn.
Before someone yells that this is why same-sex couples must be allowed to marry, consider just how long it will be before Florida, the only state that bans an individual gay person from adopting a child, recognizes same-sex marriages from elsewhere, let alone allows them in the state. Florida now has a statute banning same-sex marriage. And they will vote on a constitutional amendment to ban it in November.
We need a fix now and we need it for everyone, gay and straight, single and partnered. I'd like to see gay rights groups take the lead here, and I know they would find allies across the political spectrum. Meanwhile, what happened to Janice's family should be a crime, and I hope that Lambda's lawsuit will help spur a movement for free, easy-to-use advance health care directive registries.
Before someone yells that this is why same-sex couples must be allowed to marry, consider just how long it will be before Florida, the only state that bans an individual gay person from adopting a child, recognizes same-sex marriages from elsewhere, let alone allows them in the state. Florida now has a statute banning same-sex marriage. And they will vote on a constitutional amendment to ban it in November.
We need a fix now and we need it for everyone, gay and straight, single and partnered. I'd like to see gay rights groups take the lead here, and I know they would find allies across the political spectrum. Meanwhile, what happened to Janice's family should be a crime, and I hope that Lambda's lawsuit will help spur a movement for free, easy-to-use advance health care directive registries.
Wednesday, June 18, 2008
BLACK JACK, MISSOURI DOES IT AGAIN
Thanks to the Alternatives to Marriage Project for bringing to my attention that Black Jack, Missouri is once again trying to keep an unmarried heterosexual couple raising children from living in the town. Go to the ATMP website and sign their petition.
Tuesday, June 17, 2008
CONGRATULATIONS DEL AND PHYLLIS
They were once the "lavendar menace," a reference by Betty Friedan to the lesbians who were, in her opinion, undermining the feminist movement 1969 and 1970. Yesterday, they were the first same-sex couple married in San Francisco. What a journey.
As founders of the "homophile" group, Daughters of Bilitis, Del Martin and Phyllis Lyon organized a meeting between lesbian mothers and mental health professionals...in 1957! In 1972, their book Lesbian/Woman included a chapter on lesbian mothers. The next year, they authored an article on lesbian mothers for Ms. magazine. When I first wrote about the custody rights of lesbian mothers in 1975, I cited Del and Phyllis's writings just to prove that lesbian mothers existed!
Readers of my book and this blog know that I don't believe law should grant "special rights" to those who marry, to the exclusion of the other forms of family and relationships that enrich people's lives and provide economic and caretaking support. As a matter of civil rights, however, the ability to marry in California is a step towards equality and worthy of celebration. No couple deserves to be first more than Del Martin and Phyllis Lyon; their earlier "firsts" made it possible for those of us who followed to come out and fight for LGBT justice. Thank you, Del and Phyllis, and congratulations on yet another milestone.
As founders of the "homophile" group, Daughters of Bilitis, Del Martin and Phyllis Lyon organized a meeting between lesbian mothers and mental health professionals...in 1957! In 1972, their book Lesbian/Woman included a chapter on lesbian mothers. The next year, they authored an article on lesbian mothers for Ms. magazine. When I first wrote about the custody rights of lesbian mothers in 1975, I cited Del and Phyllis's writings just to prove that lesbian mothers existed!
Readers of my book and this blog know that I don't believe law should grant "special rights" to those who marry, to the exclusion of the other forms of family and relationships that enrich people's lives and provide economic and caretaking support. As a matter of civil rights, however, the ability to marry in California is a step towards equality and worthy of celebration. No couple deserves to be first more than Del Martin and Phyllis Lyon; their earlier "firsts" made it possible for those of us who followed to come out and fight for LGBT justice. Thank you, Del and Phyllis, and congratulations on yet another milestone.
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