The Republic of T.

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

The Day Will Come, Pt. 4

This entry is part 4 of 4 in the series the day will come

iv

You know my friends, there comes a time when people get tired of being trampled by the iron feet of oppression … If we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. And if we are wrong, God Almighty is wrong. If we are wrong, Jesus of Nazareth was merely a utopian dreamer that never came down to Earth. If we are wrong, justice is a lie, love has no meaning.

~ Martin Luther King Jr.

Obama and other Democrats have not said as much to LGBT activists. In fact, their actions could be interpreted to say “Please, don’t make me do it now.” As my own exchange with Pelosi suggests, Democrats seem to be taking the “rising tide” approach. Fixing the economy can help same-sex households in the same way it can hep the rest of the country. Universal health care — if it includes the kind of public plan Obama ran on — helps same-sex couples and their families by divorcing health insurance from both employment status and marital status.

Health care reform could certainly remove obstacles to health insurance for gay couples.

“IT’S not easy being gay,” said Mary Jo Hudson, director of the Ohio Department of Insurance. She wasn’t referring to political opposition and other obstacles, but the plight of same-sex couples who are trying to get and keep health insurance.

“You’ve got to go through a lot of hoops,” said Ms. Hudson, who is gay and has lived with her partner for eight years.

Same-sex couples have been making headlines; Maine followed the lead of Iowa and Vermont this week in legalizing same-sex marriage, and several other state legislatures are now considering it. But Ms. Hudson says that fairer and more comprehensive health care coverage for partners – whether they are legally married or not – is not necessarily part of the package.

“For the vast majority of gay couples,” she said, “getting health insurance for a domestic partner is still a challenge.”

Currently about one-third of companies with more than 500 employees offer domestic partner benefits. That’s up from about 12 percent in 2000, according to a study from Mercer, an employee benefits consulting firm. But the percentage drops off sharply when smaller employers are counted, Ms. Hudson said.

And there is no provision for domestic partner benefits for federal employees, although there are some legislative efforts to change that. Some states and municipalities offer their employees domestic partner coverage, depending on the state laws.

And, as we discovered, even in states that provide domestic partner benefits, a “gay tax” applies, because — thanks to that federal law the White House website no longer refers to — the value of a domestic partner’s benefit is counted as taxable income. And, according to the New York Times article linked above, pretax dollars from a flex account cannot be used to cover a domestic partner’s policy.

That means same-sex couples pay taxes on domestic partner benefits, while married heterosexual couples don’t by taxes on spousal benefits, because — by federal definition — same-sex couples cannot be spouses. We can only be domestic partners. Heterosexual couples, in most places, can be either domestic partners or spouses, because they have the option to legally marry one another.

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That’s just one example, but it rolls around once a year, every April 15th. Nobody exactly likes tax day, but not everybody has to pay an additional “gay tax,” described here by writer Nancy Goldstein.

The media’s primary focus on the morality debate around same-sex marriage means that most of the public, gay or straight, knows little about the very real economic costs of inequality. It doesn’t matter that Joan and I married in Massachusetts five years ago this week, or that our home state recognizes our marriage. It makes no difference that she works for a progressive company with an active LGBT employees group. Companies pay for their employees’ health insurance with pretax money through a federal program, and same-sex marriage isn’t federally recognized.

We have the 1996 Defense of Marriage Act to thank for that. DOMA defines marriage as being the legal union of a man and a woman. On that basis, the federal government denies to legally married same-sex couples the 1,138 federal protections and benefits it extends to all other married couples. So I’m not surprised that a March 2009 report from UCLA found that same-sex partners are more likely to be poor than our heterosexual counterparts — in large part because of our lack of access to supposedly universal safety nets, such as a spouse’s health insurance coverage and Social Security survivor benefits.

Consider the cost to Randy Lewis-Kendall, who lost his husband, Rob, to colon cancer in 2007, their 30th year together. He is about to be denied the $1,161 per month he would have collected in Social Security survivor benefits had his marriage been federally recognized. He could use it, too. The two men owned a small gift shop in Harwich on Cape Cod together, and Randy has been struggling to pay the bills since Rob’s death and the economic downturn.

That price my wife and I pay for the depraved thrill of being two middle-aged women with a joint checking account? It’s a drop in the bucket compared with what love is costing Melba Abreu and Beatrice Hernandez. They’ve been together for 32 years and have paid nearly $20,000 more in taxes since their 2004 marriage than if they had been able to file a joint federal return.

In our house, we did the math and figured out that if my husband were to carry me on his insurance as a domestic partner, the cost would be about more than $2,000 in annual taxes — that we wouldn’t have to pay if we were a heterosexual married couple. (We would probably pay if we were heterosexual domestic partners, but for a $55 processing fee, we could legally marry each other if we chose.) I have health insurance through my employer, but if I needed to be covered on his insurance, that would be the cost.

The stereotype of a “wealthy gay elite,” most often employed to dismiss the above, contributes to the very reality that disproves the stereotype. In 2004, Poverty in the United States: An Encyclopedia of History, Politics, and Policy, Gwendolyn Mink and Alice O’Connor noted that:

The presence of a significant number of lesbians and gays in poverty programs tends to be ignored by social policymakers. Poor homosexuals were certainly overlooked when welfare reformers decided to promote heterosexual marriage and abstinence education for teens as a solution to poverty. …The rapid integration of religious institutions into the welfare system during the 1990s will probably result in homohpobic discrimination and exclusion for poor homosexuals, since many of the faith-based organizations that are winning service delivery contracts believe that homosexuality is a moral wrong.

…Especially with the new emphasis on marriage promotion, welfare targets poor, unmarried mothers for sexual regulation, to the detriment of their basic civil rights of citizenship. This harms not only unmarried heterosexual mothers but also gays and lesbians who cannot marry because their “intimacy constellations” are not recognized by state or federal law.

…Opponents of lesbian and gay rights often argue that lesbians and gays constitute a wealthy and that they therefore do not need protection from discrimination. One study, however, found that after controlling for education, age, and other relevant factors, gay men earned between 11 and 27 percent less than similar heterosexual men (Badgett 1997, 69) A random poll of voters conducted in 1992 found that lesbians tend to be overrepresented among the very poor and underrepresented in the highest income group. (Badgett, 1997, 68).

A more recent study noted that gay and lesbian households are as likely to be poor as heterosexuals, more likely to be poor if they have children, and that some of the causes of that poverty are directly related to a lack of marriage equality and the “safety net” it provides for families.

“The myth of gay and lesbian affluence is just that–a myth,” says a study published March 20 by the Williams Institute.

The study, titled “Poverty in the Lesbian, Gay, and Bisexual Community” is not the first to challenge the myth of gay and lesbian affluence. But it is the most complete, and the first to use actual census data and other well-regarded studies to track family growth and health indicators.

It is also the first to analyze the causes and consequences of poverty among gays, lesbians and bisexuals.

…The Williams study concludes that among the factors contributing to poverty among gays and lesbians are “vulnerability to employment discrimination, lack of access to marriage, higher rates of being uninsured, less family support, or family conflict over coming out.”

The study found that gay and lesbian couple families are significantly more likely to be poor than are heterosexual married couple families; lesbian couples and their families are much more likely to be poor than heterosexual couples and their families; and children in gay and lesbian couple households have poverty rates twice those of children in heterosexual married couple households.

“Within the LGB population, several groups are much more likely to be poor than others. African American people in same-sex couples and same-sex couples who live in rural areas are much more likely to be poor than white or urban same-sex couples,” the findings continue.

The study also finds that gays and lesbians, especially with families, are more likely to receive government assistance than heterosexuals.

The rich and famous aren’t spared either. Annie Leibowitz made headlines when she pawned the copyrights to her work to pay off debts. But part of those debts stemmed from the 2004 death of her partner, Susan Sontag, and the taxes Leibowitz was required to pay on what she inherited from Sontag because they were not (and could not be) legal spouses.

As Suze Orman pointed out in her Valentine’s Day wish for gay marriage, same-sex couples do not have the same privileges as straight married couples when it comes to inheritance. If your partner passes away and leaves her estate to you, you have to pay up to 50 percent of the value of your inheritance in taxes. However, if you and your partner were recognized as a married couple, you wouldn’t have to pay a dime. And it is precisely this unjust double standard that got Annie Leibovitz into financial trouble.

When Sontag died in 2004, she bequeathed several properties to Leibovitz, who was forced to pony up half of their value to keep them. Yes, she makes a nice chunk of change from Vanity Fair, and yes, she probably could have just sold the properties when the market was good in 2004, but that’s not really the point. The point is she should never have been in the position of paying or selling to not pay as much in the first place. Her wealth and poor decision-making are incidental.

And, if she and Sontag had been a married heterosexual couple — even if they married as Sontag lay on her deathbed — she wouldn’t have been in that position.

Nor would 36,000 same-sex couples be in the position of having to choose between their country and the person they love.

After seven years of living together, David, an American citizen, worries about his same-sex partner’s ability to remain in the country. Guille, 38, came to the U.S. over nine years ago from Colombia, and his tourist visa has expired.

While federal immigration laws allow heterosexual residents to sponsor their spouses to immigrate to the country, gay and lesbian couples are not afforded the same benefit.

…A bill introduced in Congress last February might open up new options for couples like David and Guille.

The Uniting American Families Act (UAFA) would allow U.S. citizens to sponsor their same-sex partners to immigrate legally to the country in the same way heterosexuals sponsor their spouses. The Human Rights Campaign (HRC) and Immigration Equality are supporting the bill submitted by Rep. Jerrold Nadler (D.-N.Y.) and Sen. Patrick Leahy (D.-Vt.).

UAFA would amend the Immigration and Nationality Act to add definitions for “permanent partner” and “permanent partnership” that would include same sex-couples in a committed relationship.

The bill provides same-sex partners the same benefits as heterosexual couples. It also includes provisions to deter fraudulent partnerships, which could be punished with prison sentences of up to five years and a $250,000 fine.

For supporters of the bill, it boils down to family unity.

For us, really, it boils down to family. There are too many stories of what our families deal with in the absence of marriage equality.

  • There was the friend I wrote about recently who was turned away from from the emergency room, where his partner had been taken after suddenly collapsing at work, and told he could not be given any information because he was not next of kin. He had to leave the hospital and retrieve their legal documents before he could gain admittance to see his partner when a married spouse would have been waved through without question.
  • My friend was luckier than Bill Flanigan. When his partner Robert Daniel was hospitalized in Baltimore, the couple had their legal documents with them, including durable power of attorney and documentation that they were registered as domestic partners in California. But those documents were ignored by hospital staff and Flanigan was kept from seeing his partner until Daniel’s mother and sister arrived and by then Daniel was unconscious, with his eyes taped shut and hooked to a breathing tube; something Daniel had not wanted.
  • Even having a will didn’t help Sam Beaumont when his partner of 23 years, Earl, died. Oklahoma requires a will to have two witnesses, but Earl didn’t know that and his will leaving everything to Sam had only one. So Earls cousins, who disapproved of his relationship and most of whom never spoke to the couple or even came to Earl’s funeral, successfully sued to take away the home and ranch Sam an Earl had shared for 23 years. A married spouse, even in the event of a will lacking enough witnesses, would’ve had the right to automatically inherit at least some of the estate.
  • Laurel Hester gave 23 years of service as a investigator for the county prosecutor’s office, only to be denied justice when she requested that the county government to provide domestic partnership benefits as permitted (but not required) by New Jersey state law. Hester was dying of cancer and wished to leave her pension to her partner, Stacee Andree, so that Andree could keep their home after Hester’s death. Her request was denied. It wasn’t until the story attracted media attention, cause people to rally in support of Hester, and eventually drew threats to boycott the tourism-dependent county that the county government finally granted Hester’s request shortly before she died.
  • Having a domestic partnership didn’t spare Crispin Hollings any trouble when his partner Eric Rofes died recently. While making funeral arrangements, Crispin had to mount a legal challenge against a funeral home director who refused to recognize their relationship and refused to let Hollings proceed with the funeral arrangements. The funeral home director eventually relented, but no heterosexual spouse would’ve had to face that challenge in the midst of mourning and carrying out a spouse’s last wishes.
  • Having a civil union won’t help Robert Scanlon and Jay Baker, even after 30 years together. With Robert facing inevitable decline and death from ALS, the couple will likely have to liquidate all of their belongings to pay for the necessary care. A married spouse, as mentioned before, would at least be able to keep the house.

An there are stories like what happened to Janice Langhbehn and her family.

When a loved one is in the hospital, you naturally want to be at the bedside. But what if the staff won’t allow it?

That’s what Janice Langbehn, a social worker in Lacey, Wash., says she experienced when her partner of 18 years, Lisa Pond, collapsed with an aneurysm during a Florida vacation and was taken to a Miami trauma center. She died there, at age 39, as Ms. Langbehn tried in vain to persuade hospital officials to let her visit, along with the couple’s adopted children.

“I have this deep sense of failure for not being at Lisa’s bedside when she died,” Ms. Langbehn said. “How I get over that I don’t know, or if I ever do.”

The case, now the subject of a federal lawsuit in Florida, is being watched by gay rights groups, which say same-sex partners often report being excluded from a patient’s room because they aren’t “real” family members.

And lawyers say the case could affect the way hospitals treat all patients with nonmarital relationships, including older people who choose not to marry, unmarried heterosexual couples and single people who rely on the support of close friends rather than relatives.

Rest assured these are just that happen to bubble up into the media. There are countless others that don’t, for a number of different reasons. And for those of us who have never experienced anything like the above, there is the constant fear that we might as we move about the country with our families. After what happened to our friend, the hubby and I made it a point to keep copies of our legal documents (wills, medical powers of attorney, advance directives, kids’ adoption decrees, etc.) in our offices, and we never travel without them.

But the reality is that there’s no guarantee they’ll be recognized, or that we won’t be hassled by whoever happens to be in charge of the nurses’ desk or customs desk that day, because in most places most of the time we have no guarantee our legal documents will be recognized, or that we won’t face a battle that married people don’t most of the time. When I told a heterosexual neighbor about our friend being sent home to retrieve legal proof of their relationship before he was allowed to see his husband, she told me what happened when she arrived at the hospital to see her husband, who’d been rushed to the emergency room.

We’ve known him for almost six years. We celebrated with him and his partner — a Black gay couple — when they adopted their son after several disappointments, and again when they married. Two years ago his husband — a healthy man by all appearances — collapsed at work, and was rushed to the hospital. Our friend arrived at the hospital only to be told that without proof of their relationship he could not see his husband or receive any information about his husband’s condition.

Without knowing what was wrong, or whether his husband would survive until he got back, he drove home, retrieved their legal documents, returned to the hospital and was allowed to see his husband, and had time to say goodbye. His husband died a few days later, of a brain aneurysm, without regaining consciousness.

I told that story to our white, heterosexual neighbor. She told me what happened when her husband was rushed to the hospital. She arrived at the hospital and only needed to say three words: “I’m his wife.” She got three words in response: “Right this way.”

The truth is no legal document or alternative legal status is or ever could be equal to marriage.

Jackson also says “there out to be laws that can be put into place to help accomplish the things this gentleman talked about,” and by “gentleman” I assume he meant me. The California Supreme Court addressed those “other laws” and found them wanting, because they often include fewer rights and protections, and are thus inherently unequal. And, any newly established legal status besides marriage — such as domestic partnership or reciprocal beneficiaries — can be revised, reduced in scope, and repealed altogether by the legislature or initiative processes.

We saw it in Michigan, where domestic partnership was stripped of health insurance benefits, and in Hawaii, where reciprocal beneficiaries were stripped of a number of benefits and protections.

In Minnesota, Jackson’s fellow conservatives opposed legislation that would grant same-sex couples hospital visitation; one of those “other laws” he he said could be “put into place,” instead of marriage equality. Right here in Maryland, where the legislature passed a law granting same-sex couples hospital visitation, conservatives are urging the governor to veto the bill.

Ironically, the California Supreme Court said as much in its initial ruling on same-sex marriage.

As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own — and, if the couple chooses, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.
~~
…As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme
that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender
and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
~~~
…Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Yet, even as they ask for our votes, our time and energy as volunteers, and our campaign contributions, Democratic candidates and party leaders stop short of supporting equality, instead saying that same-sex couples should have all the same rights as married heterosexuals, but for some reason can’t have the word “marriage.” (That’s the semantic objection I mentioned earlier.)

The Obama-Biden transition team included as much in its civil rights agenda.

Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.

While a federal civil union as a legal status for same-sex couples would be a step forward, I don’t see how it would be any less subject to the same kind of revision and reduction that civil unions and domestic partnerships face in various states. In the long run, it wouldn’t offer benefits and protections we could rely on, because — as with any other newly established legal status — it’s more easily revised and diminished. Also, because it affects a small minority, it’s unlikely that removing benefits and protections would generate much concern.

As the California Supreme Court pointed out, it’s just not marriage.

…we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

So, why do we accept less than full support for equality from our supposed allies? Why do we pour our time and energy, essentially, into supporting an agenda that raises everyone’s boat except ours, because ours is relegated to a different channel?

Why should we?

•••

“If I am not for myself, who will be for me? If I am not for others, what am I? And if not now, when?”

~ Rabbi Hillel

The day will come, I hope, when we will be clear in what we expect from our friends: their support in exchange for our support. The best distillation of what we ought to expect — what, with a tip o’ the nib to Frederick Douglas, we ought to demand — is the Dallas Principles (which I finally signed on to, after meaning to for weeks).

The following eight guiding principles underlie our call to action.

In order to achieve full civil rights now, we avow:

  1. Full civil rights for lesbian, gay, bisexual and transgender individuals must be enacted now. Delay and excuses are no longer acceptable.
  2. We will not leave any part of our community behind.
  3. Separate is never equal.
  4. Religious beliefs are not a basis upon which to affirm or deny civil rights.
  5. The establishment and guardianship of full civil rights is a non-partisan issue.
  6. Individual involvement and grassroots action are paramount to success and must be encouraged.
  7. Success is measured by the civil rights we all achieve, not by words, access or money raised.
  8. Those who seek our support are expected to commit to these principles.

The day will come when equality is a reality. The day will come when everyone’s civil rights are protected.

The day will come because we will work for it as passionately has we always have.

But that will only come after the day comes that we are for ourselves, when we are for each other, and when our friends are those who are for us and not merely asking us to be for them.

The arc of the moral universe may be long, and it may bend towards justice. But only if — and only because — millions of hands bend it in that direction for all of us.

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