Tuesday, May 5, 2009

DC City Council votes 12-1 to recognize same-sex marriages from elsewhere

Congress will soon be thinking about same-sex marriage, whether we or they like it or not. The DC City Council today passed Bill 18-10 which requires the District of Columbia to recognize the validity of same-sex marriages that are valid where performed. The bill goes to the desk of Mayor Adrian Fenty, who will sign it, and from there to Congress for the mandatory 30-day legislative period during which Congress can disapprove it. Or, as is more likely for procedural reasons, Congress can just pass its own law during that time disallowing DC's recognition of same-sex marriages.

So which will it be? Will Congress respect self-government for DC (we call it "home rule")? Or will they wield the power they have to write our laws in order to score political points with anti-gay contingents in their states? It could get ugly.

I've summarized the statements made by the councilmembers, including former Mayor Marion Barry, the only one to vote against it. You can read them here. But I want to emphasize something from the statement made by openly gay Councilmember David Catania. He referred to the many documents he and his partner had to have--wills, powers of attorney, medical powers of attorney. He even said he was tempted to bring them. He said he was blessed because many families can't afford the cost of going to a lawyer to get those documents.

This really bothered me. DC already recognizes domestic partners, so anyone who enters a DP here is treated the same as a spouse for all the purposes to which Catania was referring. The argument for marriage equality is for equality, and using a different name (like domestic partnership) for same-sex couples is unequal and therefore wrong. But when the tangible benefits such as the right to make medical decisions, inherit without a will, make financial decisions, etc are the same, it's misleading to suggest otherwise.

Why not stick with the arguments about equality and justice? Was Catania afraid those weren't good enough, that he had to imply a lack of legal rights even though he and his partner, and any other DC couple, can get those rights by registering---and thereby not need expensive lawyers?

And the reference to medical power of attorney disturbed me for another reason. DC has a terrific law on surrogate medical decisionmaking. It gives domestic partners who have not registered the right to make decisions. Like New Mexico's law, it recognizes that when two people live together in a committed relationship, they are likely to want each other to make their medical decisions, whether they have registered that relationship or not. And since the point of selecting a person to make these decisions is to select the person that the patient would have selected if she had a written designation, it makes sense to put an intimate partner at the top of the list.

But DC's law has another critical component. It puts a "close friend" on the list of those authorized to make decisions, as do about 20 other states (and model laws). Like the others, it puts that category after priority given to various relatives. But...and here is the fabulous part...the DC statute gives someone lower on the list the ability to challenge the decision of someone higher on the list if that person can show that he or she knows the patient's wishes better. It might mean a court fight (Terri Shiavo shows us that even spouses and parents can wind up in court), but at least it is a mechanism designed to produce the decision the patient would want. I love that law and offer it as a model to other states.

I have been very critical of arguing for marriage equality using the medical decisionmaking example. ALL LGBT people (and straight people for that matter) share an interest in having the person they want make medical decisions. For unpartnered gay folks, they may well not want a parent or sibling to have that power, especially if there is estrangement. And the two studies I've found on who is chosen as a surrogate medical decisionmaker show that married straight people OFTEN do not pick their spouses (33% and 50%). So we need easy to use advance health care directive registries. Read what I wrote about them here.

I'm hoping the DC City Council will put that on its agenda. Meanwhile, I'm proud of my city for supporting equality, and I'm just as proud that they have the best surrogate medical decisionmaking law in the country.


Fiyu Pikni said...

Nancy I love your blog. I listened to you speak a few weeks back and was absolutely convinced by your views on marriage equality.

It seems people have forgotten why we are in this struggle in the first place. The marriage equality movement has taken some interesting turns, and it seems as though people are more interested in the sentimental value we attach to marriages, as opposed to the need to have legal protections extended to people regardless of the sexual orientation or gender.

The case you outlines here is exemplary of this. After sharing your views with some of my friends last week, they asked me a question: So if people were able to have civil unions, which guaranteed all the rights that marriages do, would she object? I couldn't speak for you, but I explained that I would object because if both institutions guarantee the same rights there is no need for both... and secondly, I would rather do away with marriage, because of the historical baggage it carries as an exclusive institution.

So, I agree with you, people really need to stop harping on the name. I like what you said about the parameters of the argument for equality being defined by the religious right. We don't want marriage because it is the building block of society, and in fact, we don't need marriage at all. What we need is a legal system which is non-discriminatory.

Now how do we re-educate our fellow equality fighters, and redefine this movement, whose success means so much to us?

Bill Singer said...

Mr. Catania is under a misconception. Even if one is in a marriage recognized by all 50 states, a spouse has no authority to sign a deed, tax return or other legal documents without a power of attorney.

In addition, if a spouse wants to leave her estate to her spouse, if there are children only a under a will can that bequest be accomplished.

As an attorney who represents gay and non-gay couples, I prepare the same life and estate planning documents for both. There are many advatanges to having a relationship recognized by the government, but it does not displace the need for a will and other planning documents,

Nancy Polikoff said...

Sorry for the delay in responding, Fiyu Pikni. I think it makes sense for there to be an easy to select a default person for various legal rights, and civil unions (I prefer civil partnership as a term) work for that. I would also want a status for non-intimate partners, and that's why I love the new Colorado designated beneficiary law. (see my blog post on that). But even with all that in place, I would want law reform that did not require any kind of registration for those laws that are about, for example, compensating someone for the loss of an economic provider. That compensation should go to those economically interdependent with a person who dies. It has nothing to do with marriage or partnership registration. It's easy enough to prove who was dependent/interdependent, and those are the people who should recover for wrongful death or get workers comp survivors' benefits if someone dies on the job. Thanks for writing!