The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Same Sex, Different States

I just finished listening to Andrew Koppelman, Yale law professor and author of the new book Same Sex, Different States: When Same-Sex Marriages Cross State Lines, on the Diane Rheme Show. I’ll definitely have to add his book to my (ever growing) “to read” list. He spent the segment talking about the various issues that crop up with gay couples, who are as mobile as anyone else in our culture, move from one state to another and end up throwing their legal rights and relationship into question.

With the likelihood that we’ll see a state-by-state approach favored for same-sex unions for the foreseeable future, we’ll also more frequently bump into an inevitable reality: the rights and protections we have in the states where we are married or “civil unionized” are not portable. Cross state lines and your spouse is no longer your spouse; something heterosexual couples don’t face, because they’re free to move about as they please without their rights and relationships being questioned. (And unmarried heterosexual couples always have the choice to get married, and can do so with relative ease in order to get the same rights and protections.)

And that means that as we continue committing to each other and creating families that occasionally cross state lines, we’re going to find ourselves in court, sorting out the inevitable confusion, in the Vermont/Virginia lesbian custody case I mentioned earlier, which has landed back in the headlines.

A Virginia appellate court sidestepped the issue of civil unions Tuesday in ruling that, because two former lesbian partners filed for their union in Vermont, that state’s courts have jurisdiction in a custody battle.

The Court of Appeals of Virginia remanded the dispute between Janet Miller-Jenkins and Lisa Miller-Jenkins to a lower Virginia court and advised it to issue a new judgment recognizing Vermont’s authority.

“By so holding, we do not address whether Virginia law recognizes or endorses same-sex unions entered into in another state or jurisdiction,” the court wrote in its decision.

An attorney for Janet Miller-Jenkins called it a victory.

“This is exactly what we have been arguing since January of 2005 — that the Virginia trial court had no business under either Virginia or federal law interfering with the decision of the Vermont family court,” Joseph Price said.

And given the reality that gay marriage brings with it gay divorce (oh, don’t pretend you didn’t see that coming or that it says anything about same-sex relationships that it doesn’t also say about heterosexual relationships), you can expect the courts will continue to be involved in sorting out the legal issues related to how people really live their lives.

A lesbian couple married in Massachusetts has filed for divorce in Rhode Island, setting up a legal conundrum for judges in a state where the laws are silent on the legality of same-sex marriage.

Margaret Chambers and Cassandra Ormiston of Providence were married after the Massachusetts Supreme Judicial Court legalized gay marriage starting in 2004.

They filed for divorce in Rhode Island on October 23, citing irreconcilable differences, Chambers’ attorney, Louis Pulner, said Wednesday. Ormiston declined to comment.

Rhode Island Family Court Chief Judge Jeremiah Jeremiah Jr. has yet to decide whether his court has jurisdiction and said he believes it is the first filing for a same-sex divorce in the state. A preliminary hearing was scheduled for December 5.

And even couples who aren’t facing divorce may find themselves in court anyway, like the lesbian couple in Connecticut that I blogged about earlier when asking what right should same-sex couples not have, who sued for lost of consortium after one partner was misdiagnosed with one cancer while another went untreated.

In what attorneys say is the first case of its kind since Connecticut legalized civil unions, a lesbian couple filed a medical malpractice lawsuit Tuesday claiming botched cancer treatments damaged their love life.

Margaret Mueller and Charlotte Stacey are accusing two doctors of treating Mueller for ovarian cancer when she actually had cancer of the appendix. They contend Mueller underwent years of grueling chemotherapy while the cancer spread.

… Mueller and Stacey were domestic partners for 21 years and were joined in a civil union in November.

According to the couple, Mueller must use a colostomy bag, can barely even walk short distances, can no longer perform simple chores such as mowing the lawn and housekeeping.

After years of treatments, Mueller eventually got a second opinion last year by a doctor who told her she did not have ovarian cancer, according to the lawsuit. She immediately underwent a 12-hour operation to remove as much cancer as possible.

And, just so you know, loss of consortium isn’t just about the couple’s sex life but, as PG of De Novo points out, encompasses “the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage.” In other words the life they shared for 21 years. (And their home in this couple’s case, since they had to move out of a home with stairs because one partner could no longer manage them.) Not just their sex life but mutual support and sharing in the work of establishing and maintaining both a home and a relationship.

Heterosexual couples have a pretty much undisputed right to file suit in cases like this, even if they were married in a different state than the one in which the malpractice occurred. But would a gay couple married in Massachusetts have a right to sue for loss of consortium in, say, Virginia if that’s where they were living when the malpractice took place? A heterosexual couple would. But Virginia does not recognize same-sex marriages, civil unions, or domestic partnerships.

Sharon Smith, domestic partner of Diane Whipple — the San Francisco woman who was mauled to death by her neighbors’ pit bulls, won the right to file a wrongful death suit. But that was in San Francisco. Would the surviving partner of a lesbian couple with a Vermont civil union have standing to file suit in Georgia if that’s where they were living when one partner was attacked a killed? A heterosexual couple (presumably married in Vermont, recognized in every state, with rights and protections portable to anywhere they choose to live or travel) would, but Georgia does not recognize same-sex marries, civil unions, or domestic partnerships.

We’ll have to wait and see. It’s inevitable that cases will arise to challenge these laws, one way or another, because it’s inevitable that we will continue entering into committed relationships and starting families, and will face the same hardships that drive other families to the courts in order or protect their rights, but we’ll be going to the courts to define our rights. It’s just a guess but the laws in some states would appear to say that gay couples in these situations, as far as the state is concerned, haven’t lost anything (or at least anything more than a fuck-buddy) and thus have no standing.

It all basically underscores what E. J. Graff writes in What is Marriage For?, which I just finished reading; and that is that one of the many reasons for (state-sanctioned) marriage is to determine and codify the legal rights and obligations of individuals in relationships that not only intertwine their lives, but essentially establish a contract between them that involves sharing property and as well as responsibility to and for each other and any children they may have (biological, adopted or whatever method they use).

The obligations are the other side of the marriage coin, one that doesn’t get discussed much in the debate over benefits and protections, and an argument can be made that the benefits and protections conferred based on marital status are at least partially due to the couple assuming responsibilities to and for one another (as spouses are first on deck to support one another through joblessness, care for one another through illness, etc.) that the state or society then doesn’t have to assume. Basically, because it’s a good thing in general when people commit to care for and support one another. Unless you’re gay, I guess. Then the last thing we want you to be is committed, responsible, etc.

So we assume the responsibilities of marriage, mentioned above, and receive few of the benefits, so we’re actually penalized for it. Except for when we’re not. That is, except when no rights means no responsibilities, as Jim Burroway points out in the case of Michael Kopper, the gay defendant in the Enron scandal, who was just sentenced to 37 months in prison for his part in cooking the books. Because Texas doesn’t recognize same-sex relationships, Kopper’s partner gets to keep some of the ill-gotten gains.

Although authorities forced Kopper to return $8 million to the government and to relinquish his rights to another $4 million through forfeiture proceedings, [Kopper's domestic partner, William] Dodson has been allowed to keep $9 million in funds that Kopper helped him obtain through Enron-related scams.

The fact that U.S. and Texas laws do not recognize same-sex relationships most likely prompted authorities against going after Dodson’s financial gains in the Enron affair, financial observers have said. Federal prosecutors forced the married spouses of several Enron figures to forfeit money they obtained in schemes operated jointly with Enron executives.

According to the Houston Chronicle and other media accounts, authorities have placed Dodson in the same “third party” category of individuals or entities, including churches and hospitals, that received tainted Enron money that the government won’t attempt to recoup.

I don’t point this out to gloat. I’d prefer that Dodson was required by law to surrender his booty the Enron scandal. But the case points out something that Jim explains much better than I could.

Opponents to same-sex marriage often focus on all the benefits that gays and lesbians allegedly are after, as if these are some sort of jackpot winnings that we’re trying to elbow our way in to. But this opposition doesn’t consider the mutual responsibilities that marriage demands on us — not just responsibilities to each other as a couple, but responsibilities that we are held to as a couple to society as a whole. If society does not officially recongnize a couple, then it cannot demand anything of them because, after all, legally they don’t exist.

With today’s laws, one partner can go bankrupt while the other keeps every cent he has squirreled away. One partner can claim disability benefits while the other is gainfully employed. One partner can run up debts and the other partner is not held accountable to the credit card companies. And of course, neither partner is paying the marriage penalty when tax time comes around.

You cannot have rights without responsibilities; this axiom has been recognized since time immemorial. And when it comes to the law, the converse is often true: you cannot enforce responsibilities without conferring the rights that go with them.

What we have now is actually a case of responsibilities but no rights in most cases, from child custody to divorce to all the circumstances that can fall upon any family.

Legal non-existance cuts both ways. It can mean that we get little or no support, or have few if any rights at moments of crisis in our families. As I listened to the Diane Rheme show earlier, I sent a couple of emails that didn’t make it onto the program, probably due to lack of time. But I wanted to clarify some points that illustrate what I saying here.

For example, one caller asked if gay partners of 9/11 victims received the same compensation as heterosexual spouses. As I wrote in my post about gays and 9/11, even though same-sex partners received money from the fund that was set up for survivors of 9/11 victims (after a fight, in some cases), those same partners are not eligible for other benefits that heterosexual spouses commonly receive. That includes people like Bill Randolph, whose partner of 26 years died in the attacks on the towers.

But, after Mercer, 70, died in the Sept. 11 World Trade Center attacks, Randolph said he has had to struggle to defend the relationship, to prove he was Mercer’s life partner and that, as a gay couple, their commitment was equal to that of married straight people.

With mixed success.

Morgan Stanley, where Mercer was vice president of corporate security, acknowledged Randolph as Mercer’s surviving partner and gave him $700 cash to cover immediate expenses and, later, a $10,000 check.

… But for Randolph, who relied on Mercer for more than half of the household income, several avenues of relief are blocked. He will be receiving no social security benefits, no workers’ compensation, and none of Mercer’s military pension from his 25 years of Army service because statutes governing those funds specify that only surviving spouses are eligible.

Another caller asked about medical powers of attorney as a means of establishing legal rights that might be recognized across state lines (though it remains to be seen, until one of the state amendments banning “marriage-like” arrangements is tested to see if it also nullifies contracts like these). But the reality is that they are not always recognized, as was the case with Bill Flanigan. And if you don’t have them with you, as happened to a friend of mine, you may be turned away at the emergency room until you can return with them. Sometimes that means you may return too late to say goodbye, as happened to a gay couple in Colorado, who had 30 years together.

John Crisci and Michael Tartaglia, his partner of 33 years, thought they had done everything right. They had wills and other paperwork drawn up giving each other the right to make medical and financial decisions for each other, and specifying which relatives should inherit their assets when they die.

They packed the papers for long trips Crisci didn’t have the documents with him when Tartaglia collapsed at a gym on the morning on his 70th birthday nearly two years ago. An EMT suggested he run home to get the paperwork rather than risk getting into a dispute with hospital officials over medical decisions.

Crisci knew he was too late when a doctor and chaplain were waiting to talk to him at the hospital. To him, the story shows why same-sex couples should be able to register as domestic partners and get many of the same rights as married couples under Colorado law.

“You don’t lose that extra 30 or 40 minutes which may be the last time you can hold on to each other,” Crisci said.

After what happened to our friend, I decided that the hubby and I needed to keep copies of our documents at our workplaces, in the family car, and that we need take them with us any time we travel as a family (or individually for that matter), because the simple truth is that we cannot know if our rights or wishes as family will be honored from one place to the next. It may depend on little more than who we happen to end up having to deal with or, as I’ve said before, who happens to be at the nurses’ desk on a given day.

I’ve said this before, but it bears repeating. As an African American, the parallels here are obvious to me, and while the comparison is by no means an exact one, it’s apt here and I reserve the right to make it. In tracing my family’s history when I was in college, I came upon an ancestor who was a slave. I even tracked down the name of the slave owner, whose last name I still have, and the location of the plantation in Talboton, Georgia. Having studied some of my history, I know that there was a time when most African Americans couldn’t travel the roads without their “papers” stating that they had the right to be out and about.

What I know, as a result is this. Citizens, real ones, don’t need “papers.” They may move about, even from one state to another, without having their rights or relationships challenged, or nullified.

Our families can’t.

3 Comments

  1. Wonderful post. I only hope that as more States (like Maryland) grant marriage rights to same-sex couples, that it will translate into federal recognition. The current situation is really unacceptable.

  2. Man, I am impressed with the work you put into your posts. Especially when you draw parallels between your sexuality and your colour. I do the same with my Deafness…. the state of in justice pisses me off…..but the salient point is that we [whatever minority group you belong to] are always aware of [small] injustices wreaked upon us by the privileged majority [????], and equally aware of the irony when they can’t comprehend why certain things are [I'm more inclined to say won't comprehend]……..

  3. Pingback: A Stitch in Haste

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