Thursday, July 31, 2008


If you want to get married before the November election, plan to do so in Massachusetts. The legislature has repealed the law that effectively banned out-of-state couples from marrying there, and Governor Patrick will sign the repeal shortly.

Because Californians are voting up or down in November on retaining marriage for same-sex couples, any marriage there carries a risk. If a ban on same-sex marriage passes, all the marriages performed before then will be under a cloud.

On the other hand, the skies are clear in Massachusetts. Thanks to the fine work of Mass Equality and a lot of straight allies, marriage for same-sex couples is secure there. So choose the Berkshires, not Berkeley, and breathe easy.

Monday, July 28, 2008


I posted a couple of weeks ago about the narrow definition of family member in the Ohio Paid Sick Days initiative. Since then, I've spoken with the initiative's campaign manager, Brian Dunn, and looked into the role of Equality Ohio and other gay rights groups.

What I have to report is both sad and infuriating.

Ohio has a Defense of Marriage Act (DOMA) that bars marriage and recognition of marriage for same-sex couples but also says the state “shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.” Perhaps Ohio could not mandate paid sick leave that employees could use to care for a sick unmarried partner. That doesn't really create a "legal status," but someone could argue that it does.

But, as my earlier post pointed out, there are at least two good alternative options: include anyone who is a member of the employee's household or include the definition that federal workers now have -- anyone related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The latter definition is in Senator's Kennedy's Healthy Families Act.

Brian Dunn told me that Ohioans for Healthy Families, a coalition spearheaded by SIEU, consulted with their lawyers and was told that a more inclusive definition would not be possible given the state DOMA. This is just dead wrong. Workers have households containing a variety of individuals; allowing a worker to balance work and family responsibilities by using sick leave to care for a sick household member would not be "recognizing a legal status" between the worker and the sick household member that "approximated marriage."

Sure, one of the right-wing groups that pushed for the Ohio DOMA might challenge the law. They would lose. Last year the Ohio Supreme Court ruled, 6-1, that the state could prosecute a man for violence against a woman he lived with "as a spouse" without running afoual of the state DOMA. In the lead-up to the case, one of the strongest proponents of Ohio's DOMA said it would not violate DOMA to make domestic violence against any household member a crime.

So now we know where Ohioans for Healthy Families was coming from. I blame both bad legal advice and what I imagine to be an inability to tolerate even the slightest chance that a right-wing maniac would challenge the law. Proponents of the initiative decided it was better to sacrifice the variety of households, including those in which many same-sex couples live. I repeat what I said in my earlier post. Shame on them.

Now as for the gay rights groups, they were not asleep at the wheel. The gay community knew the campaign excluded them, and Equality Ohio voted to oppose the measure. I have since heard that Equality Ohio voted to remain neutral on the initiative, but I have been unable to confirm this. The Human Rights Campaign was involved as well, and dealt directly with SIEU. They did supply language such as the definition in the Healthy Families Act. The initiative's sponsors were unmoved.

So this leads up to the obvious the initiative or not? It's a painful choice. Is there a way to vote for this initiative but send a loud and clear message to SIEU and to all the state level groups working on paid sick leave that what they did was unacceptable and unnecessary and should not be repeated elsewhere? Is there a way to vote for this initiative, which goes by the name "The Healthy Families Act," while not diluting or compromising on the provision of the federal "Healthy Families Act" that includes the much broader definition?

If I lived in Ohio, I know I wouldn't just vote against this initiative. That wouldn't make my voice heard in other states and across the country. But would I vote for it, knowing this history? Well, I'd like to hear what Ohioans have to say about this...


Another book about marriage came to my attention this weekend: "The Marriage Benefit: The Surprising Rewards of Staying Together, by psychologist Mark O'Connell. The title sounds close to that of "The Case for Marriage," Linda Waite and Maggie Gallagaher's book that I blast in my book for its "marriage promotion" propaganda and that Bella DePaulo skewers in her book, "Singled Out."

So imagine my surprise to hear what Dr. O'Connell said on Tom Ashbrook's On Point on public radio. A caller said she would not marry her male partner because same-sex couples cannot marry. She also said she would not marry because she is bisexual and if her partner had been a woman she would be unable to marry her. Here's how the author responded: "Everything I wrote in the book really applies in a broader sense to the matter of intimate commitment....I wouldn't sit here and argue that one has to be formally and conventionally married in order to have the kind of benefits that come from intimacy....What we are talking about it here is what is it about sustained intimate commitment that can bring you things that are actually quite unique?"

So why call the book, "The Marriage Benefit?" Why not call it "The Intimate Commitment Benefit?" I think I know the answer. The name marriage sells. It resonates in a culture that has been inundated by the claims of the "marriage movement" and government-sponsored "marriage promotion" that the decline of marriage causes our social problems. It would actually be a radical claim in our culture that intimate commitment brings the same benefits that marriage brings. The author even said he believes in divorce! You wouldn't know it from the book title. I'm sorry this author -- and his publisher - chose not to make the more radical and nuanced claim in the title of the book itself.

Friday, July 25, 2008


The District of Columbia is a gay-friendly place. Our first anti-discrimination ordinance was passed in 1973. In 1976, we passed legislation banning discrimination on the basis of sexual orientation in child custody cases. The first second-parent adoption was granted in 1991, and our highest court approved the practice in 1995.

We have had domestic partnership here in DC since 1992, although Congress (which controls DC laws...don't get me started on that!) blocked the city from spending any money to implement the law. That ban was finally lifted in 2002. The DC law allows any two people living together in a committed, familial relationship to register; in other words, it is not limited to same-sex couples.

At first few legal consequences attached to registration. Additional legal consequences have been added several times since 2002. Some of the most significant came last year, including the rights of inheritance and division of assets when the relationship ends. Effective this coming fall, registered domestic partners will have almost all of the legal consequences that attach to marriage.

The last major area that needs law reform here concerns the status of couples having children together. So it's logical that we pass legislation that will give DC what California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont already have -- a presumption that a child born to one domestic partner is the child of the other.

DC is also one of a minority of states with no statute on donor insemination. Many of those statutes are old and apply only to married (heterosexual) couples, but the modern statutes apply to all women. The best framework does two things: it says that when two people (married/registered or not) decide to have a child using donor insemination and both intend to raise the child as their own, then they are both the parents of the child; and it says that a semen donor is not a parent unless there is a written agreement to the contrary.

Legislation recently introduced in the DC City Council accomplishes these goals. So imagine the shock of the legislation's supporters when the DC Office of the Attorney General sent a letter -- but no witness -- to the July 11 hearing on the bill. The letter reflected complete ignorance about families headed by same-sex couples, about reproduction using assisted conception, and about the laws in other states. The OAG didn't know that the Social Security Administration recognizes a parent-child relationship between a child and her nonbiological mother who was in a Vermont civil union with the biological mother when the child was born, even though the Washington Post had an editorial about the case days before the letter was written!

The letter was offensive on so many levels, it's truly hard to comprehend. Because no witness showed up to defend the letter, Committee Chair Phil Mendelson couldn't question anyone from the city, and those of us supporting the bill (Michele Zavos, Bob Summersgill, Rick Rosendall on behalf of Gay and Lesbian Activists Alliance (GLAA), and myself) were left in disbelief and outrage.

Did I mention that DC is a gay-friendly place? We expect our elected officials and their staff -- including the city's lawyers -- to understand who we are and strive to provide our families the strongest legal protection possible. So I spent most of the last two weeks writing a detailed response to their letter. After I sent it to the OAG I received a voice mail message from the letter's author saying they would review what I wrote and "act accordingly."

Stay tuned for an update.

Tuesday, July 22, 2008


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 15, 2008


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?

Wednesday, July 9, 2008


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.

Wednesday, July 2, 2008


In the Hall of Shame this 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.