Revolution #51, June 18, 2006

Same-Sex Couples: Denied Basic Rights

Opponents of gay marriage have tried hard to paint things as if gay people are given all kinds of rights, and “moderates” try to say that since many states have civil unions, this should be good enough. Both things are completely untrue.

First of all, gays and lesbians have few even basic legal protections: According to the Human Rights Campaign (HRC) which advocates for equal rights for gays, lesbians, bisexuals, and transgender people, in 34 states, it is completely legal to fire someone from their job based on sexual orientation; in 44 states, it is legal to fire a transgender person. And with regard to marriage, only one state, Massachusetts, has granted marriage licenses to same-sex couples. 45 of the 50 states have laws either explicitly defining marriage as between a man and a woman or refuse to recognize same-sex marriages granted in other states. And, as many gay rights advocates have argued, civil unions are no substitute for the protections that straight couples get when they marry. A report from the federal government’s General Accounting Office lists more than 1,138 legal and financial protections granted to opposite-sex couples but denied to same-sex couples.

If you are a same-sex couple in the U.S., you face, at best, an endlessly confusing patchwork of different laws, rights, and protections, which you constantly have to navigate and which are vulnerable to attack, depending on where you live and where you work. At worst, your relationship is explicitly forbidden basic rights regarding the ability to raise children with your partner or make medical decisions for them.

Take what happens when someone in a same-sex couple gets sick or injured. The HRC reports that the Family Medical Leave Act, a federal law granting 12 weeks of unpaid leave to allow someone to care for a spouse, does not apply to same-sex partners, since they are not recognized according to that law’s definition of “family.” Depending on the state and even the city, hospitals either will or will not let someone visit their same-sex partner when visits are limited to “family” only, or to allow someone to make decisions for their partner’s medical treatment. If someone in a same-sex couple dies, their partner may or may not have a right to inherit their property if there was no will, and might not get bereavement leave from their job. The web site PlanetOut reported that in 2003, Bill Flanigan lost his lawsuit against the hospital that kept him away from the bedside of his partner, Robert Daniel, while Robert was dying. Bill and Robert were registered as domestic partners in San Francisco, and Bill had even obtained a power of attorney to make decisions for his partner, but he was kept away and denied the ability to carry out Robert’s wishes to not have a breathing tube inserted. Lambda Legal’s David Buckel commented on this lawsuit: “When the government won’t let you marry, not even protecting yourself through legal documents will guarantee that the person closest to you will be allowed to be by your side during times of crisis… We are a nation divided by discrimination in marriage—and Bill and Robert paid a terrible price for that discrimination.” (EqualityMaryland.org has a long list of similar cases.)

When it comes to the right to have and raise children, same-sex couples have few, if any guarantees. Four states explicitly forbid lesbians and gay people from adopting children. If you are in a same-sex relationship and you and/or your partner have children from a previous relationship, or if you decide to become parents together, you enter another frightening patchwork of laws and regulations. Four states explicitly forbid the other half of a same-sex couple from adopting the child their partner has fathered or given birth to. And according to the HRC, in 27 states the right to do this is either “depending on the jurisdiction” or there is no clear precedent, which leaves couples in a frightening legal limbo. Even states that allow for gay or lesbian people to adopt their partner’s child have a myriad set of rules and prohibitions that make this very hard. Where these adoptions are not allowed, and one partner dies, children have been removed from what may be the only remaining parent they have ever known, and placed with their closest biological relatives, even if the child has never met these relatives before.

On the federal level, gays and lesbians are not allowed to sponsor their partner, or their partner’s children, for immigration purposes, and since they can’t get married, they have essentially no right to legally live with their partner in this country.

For more resources, visit hrc.org, EqualityMaryland.org, or lambdalegal.org.

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