The DC Court of Appeals, sitting en banc, ruled this morning in Jackson v. District of Columbia Board of Elections and Ethics that the marriage equality legislation enacted last year by the DC City Council is not a proper subject for the initiative or referendum process. That means there will be no popular vote on marriage equality in DC.
The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.
The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.
We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.
Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...
Showing posts with label District of Columbia. Show all posts
Showing posts with label District of Columbia. Show all posts
Thursday, July 15, 2010
Monday, March 1, 2010
Catholic Charities chooses worst option for complying with DC law...and pretends it has no choice
The long wait is over. Catholic Charities of Washington, DC has settled upon its response to the District of Columbia's approval of marriage for same-sex couples. Effective tomorrow, its employees will no longer be able to add a spouse to employee health benefit coverage. Spouses who are currently covered will continue to be covered. Catholic Charities describes its response as "necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith."
So let's be clear. This response was not necessary. Catholic Charities had other options. As I noted previously, Catholic Charities could have taken advantage of a complex federal law that would have removed it from local anti-discrimination laws (that's what Catholic Charities of Portland, Maine did so that it would not have to comply with Portland's mandate to cover same-sex couples). Or it could have allowed employees to cover another adult in their household as Georgetown University has done. So the decision to disadvantage married heterosexuals was a choice. And it's a choice invidiously designed to breed resentment towards the agency's gay employees, perhaps disguising the real benefit to the agency -- lowering costs by providing fewer benefits to employees.
Seems to me it's time for a social service provider other than Catholic Charities to lure away the dedicated staff at that agency, apply for contracts with the city, and provide comprehensive health benefits to all staff. Any current employee planning to marry (or remarry) would have strong incentive to leave Catholic Charities, and anyone looking for a job as a new hire will prefer an employer who provides health benefits to spouses.
Meanwhile, I presume Catholic Charities still allows an employee to cover his or her children. Under DC law, a woman married to or in a domestic partnership with a woman who gives birth to a child is a parent of that child.
I predict we have not heard the last of this issue. Catholic Charities should be ashamed of itself. Apparently it is not. But no one should be dissuaded from pointing a finger at them and screaming "Shame!" by their bogus claim of necessity. It just isn't so.
So let's be clear. This response was not necessary. Catholic Charities had other options. As I noted previously, Catholic Charities could have taken advantage of a complex federal law that would have removed it from local anti-discrimination laws (that's what Catholic Charities of Portland, Maine did so that it would not have to comply with Portland's mandate to cover same-sex couples). Or it could have allowed employees to cover another adult in their household as Georgetown University has done. So the decision to disadvantage married heterosexuals was a choice. And it's a choice invidiously designed to breed resentment towards the agency's gay employees, perhaps disguising the real benefit to the agency -- lowering costs by providing fewer benefits to employees.
Seems to me it's time for a social service provider other than Catholic Charities to lure away the dedicated staff at that agency, apply for contracts with the city, and provide comprehensive health benefits to all staff. Any current employee planning to marry (or remarry) would have strong incentive to leave Catholic Charities, and anyone looking for a job as a new hire will prefer an employer who provides health benefits to spouses.
Meanwhile, I presume Catholic Charities still allows an employee to cover his or her children. Under DC law, a woman married to or in a domestic partnership with a woman who gives birth to a child is a parent of that child.
I predict we have not heard the last of this issue. Catholic Charities should be ashamed of itself. Apparently it is not. But no one should be dissuaded from pointing a finger at them and screaming "Shame!" by their bogus claim of necessity. It just isn't so.
Sunday, November 22, 2009
Catholic Charities of DC President questioned on Kojo Nnamdi
The President and CEO of Catholic Charities of Washington DC, Ed Orzechowski, appeared on the Kojo Nnamdi Show last week. You want to listen to this show. I had the opportunity to call in, but even before taking my question and comments on the air, Kojo pressed his guest on his agency's policies, asking him repeatedly if his agency's policies were already in violation of DC non-discrimination law. Mr. Orzechowski said, among other things, that Catholic Charities places children with gay and lesbian individuals as foster and adoptive parents, but that couples must be married. When Kojo repeated the question as to whether that already puts the agency in violation of existing laws, the guest said that the District was aware of their policies. He did not say that the policy complied with the law.
Right. As I've written about, the District -- like the gay community -- has let the discrimination slide. But if the church is going to rub our nose in it, well, that's uping the ante. And by the way, if anyone reading this is, or knows of, a gay or lesbian individual who has sought approval as a foster or adoptive parent from Catholic Charities in DC, I would love to hear from that person. I'm skeptical. If such approval has ever happened, I wonder if a person living with a partner is excluded, even as an individual, from adopting or fostering a child. (Let's not even go to where it is so clearly better for a child to have two loving, cooperating parents than one...)
To my point that federal law gives private employers the abililty to ignore local anti-discrimination laws when it comes to employee health and pension benefits, Mr. Orzechowski first said that they did not want to stop providing employee benefits altogether. When I pointed out that this was misleading because they can continue to provide heterosexual married couples with benefits, he said, "We want to abide by all the laws." He did not respond at all to my comment that Catholic Charities of Maine continues to provide benefits to heterosexual married couples but not to same-sex couples, in spite of local law, and that this is legal because of federal law. Frankly, the answer that they want to abide by all the laws is laughable. It is the law, federal ERISA law, that gives private employers to the right not to follow local laws. Lots of private employers around the country are allowed to discriminate because of this.
One more thing. When Council Member David Catania appeared on Kojo's Friday show (the Politics Hour), Kojo asked him about whether Catholic Charities was already in violation of DC anti-discrimination law with respect to adoption and foster care. CM Catania said this was unlitigated. That's true because, as I've said, gay men and lesbians are approved by the city and by other agencies and so there has never been a reason to pick a fight with them. Now it's Catholic Charities picking the fight.
By the way, with respect to employee benefits, CM Catania is now arguing what amounts to a page right out of my book...that Catholic Charities can cover on an employee's benefits one other adult household member, and then it is not about marriage at all. He points out, quite rightly, that Georgetown University, also a Catholic institution, does this through covering a person they call a "legally domiciled adult," someone with a "close personal relationship" with the employee. When I discuss this in my book I note a limitation with the Georgetown policy, that it does not extend coverage to the LDA's children. But since DC parentage law now makes the nonbiological mother a parent from the moment of birth, that is less of an issue here.
Right. As I've written about, the District -- like the gay community -- has let the discrimination slide. But if the church is going to rub our nose in it, well, that's uping the ante. And by the way, if anyone reading this is, or knows of, a gay or lesbian individual who has sought approval as a foster or adoptive parent from Catholic Charities in DC, I would love to hear from that person. I'm skeptical. If such approval has ever happened, I wonder if a person living with a partner is excluded, even as an individual, from adopting or fostering a child. (Let's not even go to where it is so clearly better for a child to have two loving, cooperating parents than one...)
To my point that federal law gives private employers the abililty to ignore local anti-discrimination laws when it comes to employee health and pension benefits, Mr. Orzechowski first said that they did not want to stop providing employee benefits altogether. When I pointed out that this was misleading because they can continue to provide heterosexual married couples with benefits, he said, "We want to abide by all the laws." He did not respond at all to my comment that Catholic Charities of Maine continues to provide benefits to heterosexual married couples but not to same-sex couples, in spite of local law, and that this is legal because of federal law. Frankly, the answer that they want to abide by all the laws is laughable. It is the law, federal ERISA law, that gives private employers to the right not to follow local laws. Lots of private employers around the country are allowed to discriminate because of this.
One more thing. When Council Member David Catania appeared on Kojo's Friday show (the Politics Hour), Kojo asked him about whether Catholic Charities was already in violation of DC anti-discrimination law with respect to adoption and foster care. CM Catania said this was unlitigated. That's true because, as I've said, gay men and lesbians are approved by the city and by other agencies and so there has never been a reason to pick a fight with them. Now it's Catholic Charities picking the fight.
By the way, with respect to employee benefits, CM Catania is now arguing what amounts to a page right out of my book...that Catholic Charities can cover on an employee's benefits one other adult household member, and then it is not about marriage at all. He points out, quite rightly, that Georgetown University, also a Catholic institution, does this through covering a person they call a "legally domiciled adult," someone with a "close personal relationship" with the employee. When I discuss this in my book I note a limitation with the Georgetown policy, that it does not extend coverage to the LDA's children. But since DC parentage law now makes the nonbiological mother a parent from the moment of birth, that is less of an issue here.
Saturday, November 14, 2009
The Catholic Church's red herring #2
Yesterday I wrote that legislation allowing same-sex marriage will have no impact on the issue of the church's provision of foster care and adoption services, because providing those services is already subject to DC's antidiscrimination laws.
The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring. The employee benefit that matters the most and costs the most is health insurance, and here is the only fact about health insurance that matters -- no state (or in this case DC) can make any private employer cover anyone, married or not married, same-sex or different-sex. The federal government has complete control of the rules governing the most important employee benefits, including health insurance and pensions. For this reason, the benefits provided by private employers have been off limits to discrimination charges, even in states that allow same-sex couples to marry.
It is true that states and the District can regulate insurance products. Right now every insurance product offered in the District must treat all married couples identically, including DC same-sex couples married elsewhere. I explain this here. But my guess is that the Catholic Church, including Catholic Charities, self-insures. This means that it doesn't buy an insurance product. This is fairly common for large employers. My employer, American University, self-insures.
Bottom line: DC cannot make the Catholic Church provide health and pension benefits to same-sex spouses. Can't now. Won't be able to once those couples can marry in DC.
So when the church makes the threat that it will stop serving the poor in DC if it has to recognize same-sex married couples, it is a baseless bluff. The church is trying to make the City Council and the public think there is a choice between letting same-sex couples marry and keeping Catholic Charities at work in DC. But it's another red herring.
The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring. The employee benefit that matters the most and costs the most is health insurance, and here is the only fact about health insurance that matters -- no state (or in this case DC) can make any private employer cover anyone, married or not married, same-sex or different-sex. The federal government has complete control of the rules governing the most important employee benefits, including health insurance and pensions. For this reason, the benefits provided by private employers have been off limits to discrimination charges, even in states that allow same-sex couples to marry.
It is true that states and the District can regulate insurance products. Right now every insurance product offered in the District must treat all married couples identically, including DC same-sex couples married elsewhere. I explain this here. But my guess is that the Catholic Church, including Catholic Charities, self-insures. This means that it doesn't buy an insurance product. This is fairly common for large employers. My employer, American University, self-insures.
Bottom line: DC cannot make the Catholic Church provide health and pension benefits to same-sex spouses. Can't now. Won't be able to once those couples can marry in DC.
So when the church makes the threat that it will stop serving the poor in DC if it has to recognize same-sex married couples, it is a baseless bluff. The church is trying to make the City Council and the public think there is a choice between letting same-sex couples marry and keeping Catholic Charities at work in DC. But it's another red herring.
Friday, November 13, 2009
The Catholic Church's red herring
To hear the Catholic Church tell it, if same-sex couples can marry in DC they will have to stop providing social services here. At least that's their threat, as reported earlier this week in the Washington Post. I heard the same thing at the October 26 committee hearing. Their representative said the marriage equality bill would "hurt the people who count on Catholic Charities." (To view the whole hearing click here and select the October 26 meeting of the Committee on Public Safety and the Judiciary). After their representative lamented about what would happen when they sought relicensing as a foster care agency, Committee Chair Phil Mendelson asked why foster care would be implicated and the answer was that the Catholic Charities would not place children with same-sex couples.
Well I have news for the church (except I suspect it's not news to them). For more than 30 years it has been unlawful to discriminate on the basis of sexual orientation and marital status in the provision of services in the District of Columbia. Catholic Charities operates in a discriminatory manner because no one has challenged them. Lesbians and gay men understandably go elsewhere to be licensed as foster or adoptive parents, and no one has asked the District of Columbia to stop funding Catholic Charities.
What the church seeks in the marriage equality bill has nothing to do with marriage. They have what they are entitled to in that respect -- the right not to conduct marriages of same-sex couples. That is a completely uncontroversial and constitutionally mandated provision. What Catholic Charities seeks is immunity from existing civil rights laws that predate marriage equality by decades and will continue to exist regardless of whether same-sex couples are allowed to marry in the District of Columbia.
Councilmembers show no inclination to exempt Catholic Charities from those laws. Good for them. Looking the other way is one thing; affirmatively approving discrimination is another. If this matter comes to a head in the city, it is entirely the responsibility of the church itself for thinking it could confuse lawmakers and the public by conflating marriage for same-sex couples and nondiscrimination on the basis of sexual orientation in the provision of services. So far, we are not confused.
Well I have news for the church (except I suspect it's not news to them). For more than 30 years it has been unlawful to discriminate on the basis of sexual orientation and marital status in the provision of services in the District of Columbia. Catholic Charities operates in a discriminatory manner because no one has challenged them. Lesbians and gay men understandably go elsewhere to be licensed as foster or adoptive parents, and no one has asked the District of Columbia to stop funding Catholic Charities.
What the church seeks in the marriage equality bill has nothing to do with marriage. They have what they are entitled to in that respect -- the right not to conduct marriages of same-sex couples. That is a completely uncontroversial and constitutionally mandated provision. What Catholic Charities seeks is immunity from existing civil rights laws that predate marriage equality by decades and will continue to exist regardless of whether same-sex couples are allowed to marry in the District of Columbia.
Councilmembers show no inclination to exempt Catholic Charities from those laws. Good for them. Looking the other way is one thing; affirmatively approving discrimination is another. If this matter comes to a head in the city, it is entirely the responsibility of the church itself for thinking it could confuse lawmakers and the public by conflating marriage for same-sex couples and nondiscrimination on the basis of sexual orientation in the provision of services. So far, we are not confused.
Tuesday, November 10, 2009
DC City Council committee passes marriage equality bill and preserves domestic partnerships
Here's Rick Rosendall's excellent coverage of the 4-1 vote in the DC City Council Commitee on Public Safety and the Judiciary approving the marriage equality legislation. As indicated in my previous post, the bill deletes the provision "sunseting" domestic partnerships.
The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).
The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).
Moreover, while the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there are likely to be some same-sex couples that prefer domestic partnerships as an alternative to marriage.
The ability to register domestic partnerships in the District remains important. This allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, as well as to non-sexual relationships, the Committee believes that preserving the right to register is necessary. (My comment: I love this!)
Retaining domestic partnership at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
From here to the full Council, then the Mayor, then Congress.
D.C. City Council committee recommends retaining domestic partnerships
The DC City Council Committee on Public Safety and the Judiciary today marks up the bill authorizing same-sex marriage in the District of Columbia. I'm happy to report that Committee Chair Phil Mendelson is recommending preservation of domestic partnership. The draft of the Committee Report on the subject says as follows:
Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.
The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:
The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.
Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.
Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.
The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:
The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.
Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.
Monday, November 2, 2009
Voting on marriage equality in DC
The hearing on marriage equality in DC continues today before the City Council Committee on Public Safety and the Judiciary. Last week there were theatrics by those opposing marriage equality, but there was also a common theme. They want the people to vote. That theme continues today.
Under DC law, however, human rights matters are not subject to popular vote. So opponents asked for an “advisory referendum,” even though it would not be binding. Last week that gave Council Member David Catania the opportunity to note that the only time such an advisory referendum has been held in the District of Columbia was on December 21, 1865, and the subject was giving freed slaves the right to vote. According to Council Member Catania, the vote was 721-1 in Georgetown and 6591-35 in the rest of the city – and that would be against extending the vote to freed slaves.
I don’t expect a vote on marriage equality in DC to be anywhere near that one-sided in either direction, but the point is well-taken. The exclusion of matters governed by the DC Human Rights Act from popular vote was a wise decision made at the first opportunity for “home rule” afforded the District of Columbia. We have protected gay people from discrimination in employment, housing, and public accommodation in DC since 1973. Let’s think…what would a referendum on that have looked like?
Then there is Rick Rosendall's excellent post on the subject on the blog of the Gay and Lesbian Activists Alliance. All the members of the current City Council who suppport same-sex marriage were on record before their last election, and yet they were elected. As Councilmember Mendelson pointed out today, seven members of the Council are up for reelection next year (including him). Opponents of marriage equality are free to work against members who vote for it.
Under DC law, however, human rights matters are not subject to popular vote. So opponents asked for an “advisory referendum,” even though it would not be binding. Last week that gave Council Member David Catania the opportunity to note that the only time such an advisory referendum has been held in the District of Columbia was on December 21, 1865, and the subject was giving freed slaves the right to vote. According to Council Member Catania, the vote was 721-1 in Georgetown and 6591-35 in the rest of the city – and that would be against extending the vote to freed slaves.
I don’t expect a vote on marriage equality in DC to be anywhere near that one-sided in either direction, but the point is well-taken. The exclusion of matters governed by the DC Human Rights Act from popular vote was a wise decision made at the first opportunity for “home rule” afforded the District of Columbia. We have protected gay people from discrimination in employment, housing, and public accommodation in DC since 1973. Let’s think…what would a referendum on that have looked like?
Then there is Rick Rosendall's excellent post on the subject on the blog of the Gay and Lesbian Activists Alliance. All the members of the current City Council who suppport same-sex marriage were on record before their last election, and yet they were elected. As Councilmember Mendelson pointed out today, seven members of the Council are up for reelection next year (including him). Opponents of marriage equality are free to work against members who vote for it.
Tuesday, October 27, 2009
It's looking good for removing the domestic partner "sunset" provision from the DC marriage equality bill
If I were a betting woman, I'd say there will be no mention of ending domestic partnership in the marriage equality bill that goes through the DC City Council.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
Monday, October 26, 2009
Several witnesses will urge DC to retain domestic partnerships
Hearings on the bill to grant marriage equality in the District of Columbia begin today. So many people signed up to testify that the Committee on Public Safety and the Judiciary, chaired by Councilmember Phil Mendelson, has already announced that it will hear the first 100 today and the remaining ones next Monday.
I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:
Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.
This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.
I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.
I'll be posting about today's hearing later.
I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:
From its inception in 1992, the status of domestic partnership in DC was about recognizing family relationships other than marriage. Unlike some jurisdictions, it was not a status granted only to same-sex couples and only because of their exclusion from marriage. Not only can different-sex unmarried couples register, but two people not in a romantic couple, including relatives, can register if they live together in a “committed, familial relationship.” Availability of marriage for same-sex couples, as a statement of the equal value of gay and straight relationships, does not diminish the appropriateness of providing a legal status to those who do not marry...
Once DC authorizes marriage for same-sex couples, it will be appropriate to reevaluate DC relationship recognition law. That work must include considering the needs of the wide range of family relationships that exist in this city – the very motivation for instituting domestic partnership in 1992. This is a critical undertaking, and we have numerous models to consider.
Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.
This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.
I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.
I'll be posting about today's hearing later.
Friday, October 16, 2009
District of Columbia publishes list of registered relationships from elsewhere that will be recognized as domestic partnerships
Last year's expansion of the District of Columbia's domestic partnership laws included a provision requiring DC to recognize as domestic partnerships those relationships registered elsewhere that are "substantially similar" to domestic partnerships in DC. The law required the Mayor to certify which relationships from elsewhere fall into this category. Well, the Mayor took his time, but today the city published a Notice of Proposed Rulemaking listing the jurisdictions.
The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.
I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.
The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.
In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.
Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.
It's complex, but complex goes with the territory of state-by-state family law.
The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.
I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.
The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.
In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.
Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.
It's complex, but complex goes with the territory of state-by-state family law.
Friday, October 9, 2009
Now is not the time to eliminate domestic partnership in the District of Columbia
The bill authorizing same-sex marriages in the District of Columbia contains a disturbing additional provision that has gotten little attention. It eliminates any new domestic partnerships as of January 1, 2011. I don’t know why Councilmember David Catania wrote this into the legislation, but I do hope he will reconsider in light of the history of domestic partnership in DC and its eligibility criteria.
Domestic partnership in DC was never about providing a legal status to same-sex couples based on their exclusion from marriage. Different-sex couples are allowed to register, and of course they have always been able to marry. In addition, domestic partnership is available to any two people living together in a “committed familial relationship.” It is open to relatives who are unable to marry. It means, for example, that a grandmother and grandson can be domestic partners, assuming that they live together and have no other domestic partner or spouse. That way, if he now works for the DC government, she is eligible for his health insurance benefits in the same way an employee’s spouse is eligible.
The criteria were the product of deliberate decisions to broaden the definition of relationships that count for legal purposes and to cease making marriage the exclusive means of obtaining important legal benefits.
I do think that once same-sex couples can marry in DC it will make sense to reevaluate what legal status we make available to other relationships. In addition to considering retaining domestic partnerships, I’d like a robust discussion of enacting a status such as Colorado’s “designated beneficiary.” I’d also like us to consider the test for benefit eligibility that Salt Lake City affords its employees – any one adult with whom the employee lives in an interdependent relationship and that person’s children.
In addition, there is a reason to maintain domestic partnerships even if one considers only legal protections for same-sex couples. There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.
We could hash all this out now, but I suggest we take this process one step at a time. Let the marriage bill be considered on its own merits. Once it becomes law, let’s think through other relationship recognition issues. That means the provision eliminating domestic partnership should come out of the Catania bill. I hope Councilmember Catania will agree with this proposal and that Phil Mendelson’s Judiciary and Public Safety Committee will make it happen.
Domestic partnership in DC was never about providing a legal status to same-sex couples based on their exclusion from marriage. Different-sex couples are allowed to register, and of course they have always been able to marry. In addition, domestic partnership is available to any two people living together in a “committed familial relationship.” It is open to relatives who are unable to marry. It means, for example, that a grandmother and grandson can be domestic partners, assuming that they live together and have no other domestic partner or spouse. That way, if he now works for the DC government, she is eligible for his health insurance benefits in the same way an employee’s spouse is eligible.
The criteria were the product of deliberate decisions to broaden the definition of relationships that count for legal purposes and to cease making marriage the exclusive means of obtaining important legal benefits.
I do think that once same-sex couples can marry in DC it will make sense to reevaluate what legal status we make available to other relationships. In addition to considering retaining domestic partnerships, I’d like a robust discussion of enacting a status such as Colorado’s “designated beneficiary.” I’d also like us to consider the test for benefit eligibility that Salt Lake City affords its employees – any one adult with whom the employee lives in an interdependent relationship and that person’s children.
In addition, there is a reason to maintain domestic partnerships even if one considers only legal protections for same-sex couples. There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.
We could hash all this out now, but I suggest we take this process one step at a time. Let the marriage bill be considered on its own merits. Once it becomes law, let’s think through other relationship recognition issues. That means the provision eliminating domestic partnership should come out of the Catania bill. I hope Councilmember Catania will agree with this proposal and that Phil Mendelson’s Judiciary and Public Safety Committee will make it happen.
Tuesday, June 16, 2009
In DC, we don't put civil rights up for a vote
Maybe you know that DC is a colony. Congress can write our laws if it wants to. We have no voting representation in Congress. Our license plates say "taxation without representation."
But we know that civil rights for the minority should never be put to the vote of the majority. (Remember that Congress can change our laws whenever it wants, and it has wanted to in the past, but with a Democratic Congress and President it is less likely now).
We also have what may be the most sweeping civil rights law in the country. It is currently unlawful to discriminate on the basis of: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, and place of residence or business of any individual. The original law passed in 1977. (Gender identity was added later, but sexual orientation was always there).
We do have a process for direct democracy here through referendum, but there are some limitations. One is that no proposal that would "authorize discrimination" on a basis contained in our civil rights laws can be the subject of popular vote. This majority minority city, whose leaders in 1977 had been part of the civil rights movement, never wanted a majority to block basic civil rights.
This is why the efforts to put DC's recognition of same-sex marriages performed elsewhere to a popular vote has failed. Yesterday the DC Board of Elections and Ethics ruled that the subject was not proper for a referendum. Read the ruling here.
Two interesting comments on the ruling. The Board considered the fact that we have replaced the gendered words "husband" and "wife" in so many of our laws. Thank you DC Gay and Lesbian Activists Alliance and Bob Summersgill. (GLAA's website has also posted much of the testimony submitted to the DC BOEE.) And the Board disregarded a court ruling from 1995 that held that denial of access to marriage did not violate this very same civil rights law. It reasoned that the decision was based on the conclusion that same-sex marriage didn't exist; marriage was definitionly between one man and one woman. Well, the Board said, it exists now...in several states and countries. So the definitional reasoning from 1995 no longer holds, and denying those married elsewhere of marriage recognition here would, in fact, discriminate against them on the basis of sexual orientation.
The issue will head to DC Superior Court and from there to our appeals court. Meanwhile, barring Congresssional action, our law will go into effect around July 7. Oh, and by the way, I agree with Councilmember Phil Mendelson who has said that it's already the law that such marriages must be recognized. So does the ACLU. Our new statute just makes it clear.
But we know that civil rights for the minority should never be put to the vote of the majority. (Remember that Congress can change our laws whenever it wants, and it has wanted to in the past, but with a Democratic Congress and President it is less likely now).
We also have what may be the most sweeping civil rights law in the country. It is currently unlawful to discriminate on the basis of: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, and place of residence or business of any individual. The original law passed in 1977. (Gender identity was added later, but sexual orientation was always there).
We do have a process for direct democracy here through referendum, but there are some limitations. One is that no proposal that would "authorize discrimination" on a basis contained in our civil rights laws can be the subject of popular vote. This majority minority city, whose leaders in 1977 had been part of the civil rights movement, never wanted a majority to block basic civil rights.
This is why the efforts to put DC's recognition of same-sex marriages performed elsewhere to a popular vote has failed. Yesterday the DC Board of Elections and Ethics ruled that the subject was not proper for a referendum. Read the ruling here.
Two interesting comments on the ruling. The Board considered the fact that we have replaced the gendered words "husband" and "wife" in so many of our laws. Thank you DC Gay and Lesbian Activists Alliance and Bob Summersgill. (GLAA's website has also posted much of the testimony submitted to the DC BOEE.) And the Board disregarded a court ruling from 1995 that held that denial of access to marriage did not violate this very same civil rights law. It reasoned that the decision was based on the conclusion that same-sex marriage didn't exist; marriage was definitionly between one man and one woman. Well, the Board said, it exists now...in several states and countries. So the definitional reasoning from 1995 no longer holds, and denying those married elsewhere of marriage recognition here would, in fact, discriminate against them on the basis of sexual orientation.
The issue will head to DC Superior Court and from there to our appeals court. Meanwhile, barring Congresssional action, our law will go into effect around July 7. Oh, and by the way, I agree with Councilmember Phil Mendelson who has said that it's already the law that such marriages must be recognized. So does the ACLU. Our new statute just makes it clear.
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.
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.
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