Well I guess the first question is what is an arbitrary prohibition?
Let's first define arbitrary according to the dictionary: "1) Determined by chance, whim or impulse, and not by necessity, reason, or principle; 2) Based on or subject to individual judgment or preference." Free Dictionary online.
Now let's define prohibition according to the dictionary: "1) The act of prohibiting or the condition of being prohibited; 2) A law, order, or decree that forbids something." Free Dictionary online.
So an arbitrary prohibition is a law, order or decree that forbids a group of individuals from doing something based upon the whim, impulse or principle of other individuals' judgment or preference about what others in society should or should not be allowed to do.
I believe that this is exactly what is happening to LGBT families when states and the federal government pass laws that tell us that we are not allowed to marry one another and in some states that we are not allowed to adopt, individually or together. I happen to reside in the one state (Florida) that has strictly prohibited homosexuals from adopting period, including other adults, since 1977. Arkansas just recently joined Florida's ranks in the past major election cycle and also applied its own strict ban.
I am not sure that Arkansas bans homosexuals from adopting adults but this ban by Florida is pretty interesting. Florida requires that anyone 12 years old or older consent to the adoption, and that their parents consent to it also, if they are under 12 years old the parents need to consent, unless their rights have been terminated because they have been deemed as otherwise unfit. So, why does Florida believe it is in a better position to make this decision then the individuals directly affected? If they don't think the biological parents are capable of making this decision, shouldn't Florida be terminating their rights and putting the child in foster care, if the child is a minor? If the child is an adult, what right does Florida have to interfere with his/her right to form a family relationship he/she obviously wants?
The answer to this appears to be that Florida believes that it is its right to apply this prohibition even despite its unreasonable application. How did this happen? Anita Bryant then pop singer and spokesperson for Florida Citrus Growers came to Florida with her bible and opinions and traveled the state to incite fear in the psyches of the electorate and led a charge in Dade County, Miami, Florida to repeal a local ordinance ban on discrimination based on sexual orientation. She enlisted the assistance of Jerry Falwell and became the leader of the Save Our Children organization. As if Dade County was not enough of a challenge she traveled the state to insure similar laws were not passed in other counties of Florida.
Ms. Bryant stated that based upon her own heterosexual relationship, she was married at the time, she knew that homosexuals could not produce children - duh? (She had to be married to figure this out?). She then deduced that the only way for homosexuals to make more homosexuals was to encourage society to pass laws prohibiting people from discriminating against them in housing and employment. She said this was a surreptitious way of homosexuals breeding legitimacy to their relationships in the eyes of children so that they could eventually recruit children to their ranks to insure there would be more homosexuals - huh? She never stated where the homosexuals that existed before the ban on discrimination in employment and housing came from. I can personally speak from my own experience and tell you that my parents are heterosexual and I do not know anyone who has two parents that are homosexual. I do know of three people who were raised by one homosexual parent, while the other parent is heterosexual, and both parents were previously involved in a relationship with the other. (I'm sure Ms. Bryant would have her own spin about this, but I am not going there right now.)
Ms. Bryant incited the public concern about recruitment efforts by homosexuals, however she never presented any existing examples of this phenomenon. At the same time she incited a boycott against orange juice which resulted in her loosing her job as representative for the Florida Citrus Growers accompanied by a marked decrease in the purchase of Florida orange juice. All of this occurred under the watchful eyes of her God - whom she constantly referred to, with the assistance of Jerry Falwell, during her continual efforts to discriminate against homosexuals. Her efforts culminated in the passage of the gay adoption ban during the 1977 Florida legislative session and the repeal of the anti-discrimination ordinance in Dade County that same year.
There are a small handful of other states that have passed bans on same-sex couples adopting but not on individuals. I'm not mentioning who they are so as not to set off some religious/right wing extremist on a witch hunt in these states to disrupt those families that have been formed by LGBT individuals adopting children and providing them permanent homes.
So, I think that I have made my point that this is an arbitrary ban. But I am sure you still want to know how this affects LGBT people?
Well my relationship with my "nephew" is not recognized in any legal sense. Why? Because my relationship with his legal Aunt Tara, whom he will never know, was not recognized by law - just our friends and family when we had our commitment ceremony in our backyard. So, he doesn't have a recognized relationship to inherit from me, but more importantly I have no prioritized right to adopt him should his parents perish before his age of majority. On top of this, I will never be able to adopt him as long as this gay adoption ban is in place, and could only get permanent guardianship. However, if a legally recognized family member stepped forward and could adopt him then this would be preferable to the court, because this would give him "permanency". It would not recognize my constant involvement in his life (on average every two weeks and sometimes more - with frequent overnight stays.) and his emotional attachment to me and my wife, his Aunt Kelly.
So it would be useless for his parents to put in their Will that I be allowed to adopt him since the status of the law prohibits it. I believe that this could be incredibly disruptive to him since me and his Aunt Kelly are family to him and of all his family we see him the most. Admittedly a lot of this is due to geography but some of it is due to choice, by a few people. He has only one other Aunt besides me and Aunt Kelly, and no Uncles so the choices are slim. Fortunately, we aren't the only choice as it concerns options...its just that we aren't a choice for his parents at all, not by their own decision making but by the State's.
This is the situation for many gays and lesbians. There are many households where homosexuals are raising children where only one of them has a legally recognized right to the child, by biology, and the other does not have any right. They are a legal stranger to the child. Many of these children were obtained through surrogacy or artificial insemination from sperm donations. Others have been place there by friends or family members, sometimes their parents, that are unable to take care of them and don't want them to go into foster care with strangers.
This leads us to what happens to these children when their socially recognized parents are not legally recognized by the law and one or both of them die? Well, they won't get social security benefits until they turn 18 years old. They won't benefit from the surviving parent's right to inherit from the decedent as a recognized spouse and retain more wealth than they otherwise would have, and will have no right in opposition to legally recognized family members for a superior recognized position to inherit from the decedent. The child is just a legal stranger to the decedent. If they both die, then the child is thrown into legal limbo since neither "parent" has a right to Will the child to someone they trust and the child knows.
This prompts the question: How is this in the best interest if children? It isn't and a few Florida judges have stated this in their trial courts as it concerns children placed in homosexual households through the State foster care program. That's right we are allowed to foster children in the system. They can live with us until they are adults but we can never adopt them as our own and give them the permanency they deserve. One of these cases has been taken up on appeal and we are currently waiting for the appellate decision. I wait with quiet expectation as to the result and the apprehensive realization that regardless of the outcome it won't be the end of the debate or the battle.
It is important to note that each of these trial courts recently ignoring the gay adoption ban in Florida looked at the statute, heard extensive testimony by professionals on families and children and reviewed the research on homosexual households in order to arrive at their determination to allow these homosexuals to adopt. There was no "chance, whim or impulse" involved in this decision making, just "necessity, reason and principle" involved. A breath of fresh air, indeed.
Wednesday, March 3, 2010
Friday, February 26, 2010
How many rights, responsibilites and obligations are there in a marriage?
There are approximately 1,500 different rights, responsibilities and obligations in a legally recognized marriage on a local, state and federal level. I can only contract for maybe 35 at the most with legal paperwork.
The rest of it I am forced to miss out on.
Of course there are many that would say that it isn't such a bad thing to miss out on obligations. An alimony obligation is something that many of my clients would love to forfeit. Some other obligations are child support for children born within the marriage, sharing what was acquired during the marriage evenly (homes, cars, furniture, retirement accounts, etc.). Of course these are only realized if the parties CHOOSE to divorce. So, some of these can be avoided by simply not getting divorced. Thus, during the marriage these are more so described as responsibilities.
So, its the rights that concern most of us and for the majority of the population aren't even thought about or considered when contemplating marriage. This is mostly because for many of us, like marriage, they are taken for granted.
So what am I really missing out on, you ask? Well let me share some personal experience.
On November 21, 2000 my late partner, Tara, passed away after a heroic battle with the effects of an aggressive breast cancer diagnosis. I was in my first semester of law school, a week and a half out from my finals (and for those who don't know - this is the only test for the semester). Three weeks before this I took her to hospice at her request because she didn't want to die at home.
I waited a few weeks before I took care of the business of applying for her life insurance as her designated beneficiary and collect the money in her retirement account - which wasn't a whole lot of money since she was only 33 years old and had been working there only a few years at the time.
I called over to Tara's work and was told I would have to come in and sign some paperwork. So, I went over to her work and the first thing that happened is that I was met by a woman who seemed resistant to serving me and questioned whether I had been properly designated as Tara's beneficiary. She made it a point to speak to someone else in the office and questioned if I should be allowed to collect. Her argument was that I was not related to Tara by marriage or blood and she looked at me as she said it, while gently smiling, like she was doing me a favor.
Meanwhile, thoughts ran through my head about the next three years of law school, trying to get my finals done from my first semester, begin my second semester, the fact that I sold my five rehab jobs to other maintenance contractors so I could take care of Tara in her final months, how was I going to work full-time and go to law school if they denied the life insurance and most important - how was I going to live the rest of my life without my viking princess?
Finally, the second woman approached me and ask me to come around the corner and led me away from the first. She sat me at her desk, handed me a Kleenex and told me she would be right back. She helped me fill out the paperwork and then we addressed the retirement account.
It was then I found out that had I been legally married to Tara, I would have had options: I could put my own name on it, I could transfer it into my own account, transfer it into an IRA or take it as a lump sum payment. Only the last one of which had tax repercussions. But since we weren't married, the lump sum payment was my only option and I proceeded to have to pay taxes at the rate of 37%.
I also had to face that I was not entitled to any social security benefits from her and then discovered that if we had been in a legally recognized relationship (i.e. marriage) that my daughter would have gotten a check as her step child just because she lived in the house with Tara for at least a year. I was shocked by this little bit of information since step-parents don't have rights as it concerns the children in their lives - yet another unrecognized relationship that should be recognized.
It took me a few years but I met another "unrecognized" widow and we shared our experiences.
Unlike Tara and I who were together for not quite four years, Kelly and Sue were together for just over 27 years. For twenty of those years Sue was battling breast cancer and there were several moments they believed she would pass only to watch her bounce back like a champ and have several years of quality life.
Sue was able to work with her employer throughout and eventually retired with a comfortable check and spent the last five years of her life enjoying the fruits of her hard work. Kelly took an early retirement, a couple of years after Sue retired, when her employer closed up and moved operations out of town. When Sue passed Kelly collected life insurance but was not entitled to Sue's retirment from the major coporation she worked for, becasue like Tara's they did not recognized same-sex relationships, and they weren't married because of prohbitions by our government. So, Sue's $2k+ check disappeared with her and Kelly was forced to face her future having not worked in several years and no real job market for her skills, in what was then the beginnings of a bumpy economy.
Kelly will never be entitled to Sue's social security, who was the breadwinner of their relationship. And if Sue had died earlier, like my daughter, Kelly's son would not have been entiltled to any social security benefit from the only other parent he really knew.
On top of this, Kelly and I, recently learned that the company that just bought out Sue's employer does recognized same-sex relationships for the purposes of retirement benefits payable to the surviving partner after the employee's death. What a painful sting.....
So, basically, we are being prohibited from CHOOSING to take care of each other so the government doesn't have to, because someone is afraid that some how we are going to ruin the sanctity of their marriage which has at least a 50% chance of ending in divorce.
The rest of it I am forced to miss out on.
Of course there are many that would say that it isn't such a bad thing to miss out on obligations. An alimony obligation is something that many of my clients would love to forfeit. Some other obligations are child support for children born within the marriage, sharing what was acquired during the marriage evenly (homes, cars, furniture, retirement accounts, etc.). Of course these are only realized if the parties CHOOSE to divorce. So, some of these can be avoided by simply not getting divorced. Thus, during the marriage these are more so described as responsibilities.
So, its the rights that concern most of us and for the majority of the population aren't even thought about or considered when contemplating marriage. This is mostly because for many of us, like marriage, they are taken for granted.
So what am I really missing out on, you ask? Well let me share some personal experience.
On November 21, 2000 my late partner, Tara, passed away after a heroic battle with the effects of an aggressive breast cancer diagnosis. I was in my first semester of law school, a week and a half out from my finals (and for those who don't know - this is the only test for the semester). Three weeks before this I took her to hospice at her request because she didn't want to die at home.
I waited a few weeks before I took care of the business of applying for her life insurance as her designated beneficiary and collect the money in her retirement account - which wasn't a whole lot of money since she was only 33 years old and had been working there only a few years at the time.
I called over to Tara's work and was told I would have to come in and sign some paperwork. So, I went over to her work and the first thing that happened is that I was met by a woman who seemed resistant to serving me and questioned whether I had been properly designated as Tara's beneficiary. She made it a point to speak to someone else in the office and questioned if I should be allowed to collect. Her argument was that I was not related to Tara by marriage or blood and she looked at me as she said it, while gently smiling, like she was doing me a favor.
Meanwhile, thoughts ran through my head about the next three years of law school, trying to get my finals done from my first semester, begin my second semester, the fact that I sold my five rehab jobs to other maintenance contractors so I could take care of Tara in her final months, how was I going to work full-time and go to law school if they denied the life insurance and most important - how was I going to live the rest of my life without my viking princess?
Finally, the second woman approached me and ask me to come around the corner and led me away from the first. She sat me at her desk, handed me a Kleenex and told me she would be right back. She helped me fill out the paperwork and then we addressed the retirement account.
It was then I found out that had I been legally married to Tara, I would have had options: I could put my own name on it, I could transfer it into my own account, transfer it into an IRA or take it as a lump sum payment. Only the last one of which had tax repercussions. But since we weren't married, the lump sum payment was my only option and I proceeded to have to pay taxes at the rate of 37%.
I also had to face that I was not entitled to any social security benefits from her and then discovered that if we had been in a legally recognized relationship (i.e. marriage) that my daughter would have gotten a check as her step child just because she lived in the house with Tara for at least a year. I was shocked by this little bit of information since step-parents don't have rights as it concerns the children in their lives - yet another unrecognized relationship that should be recognized.
It took me a few years but I met another "unrecognized" widow and we shared our experiences.
Unlike Tara and I who were together for not quite four years, Kelly and Sue were together for just over 27 years. For twenty of those years Sue was battling breast cancer and there were several moments they believed she would pass only to watch her bounce back like a champ and have several years of quality life.
Sue was able to work with her employer throughout and eventually retired with a comfortable check and spent the last five years of her life enjoying the fruits of her hard work. Kelly took an early retirement, a couple of years after Sue retired, when her employer closed up and moved operations out of town. When Sue passed Kelly collected life insurance but was not entitled to Sue's retirment from the major coporation she worked for, becasue like Tara's they did not recognized same-sex relationships, and they weren't married because of prohbitions by our government. So, Sue's $2k+ check disappeared with her and Kelly was forced to face her future having not worked in several years and no real job market for her skills, in what was then the beginnings of a bumpy economy.
Kelly will never be entitled to Sue's social security, who was the breadwinner of their relationship. And if Sue had died earlier, like my daughter, Kelly's son would not have been entiltled to any social security benefit from the only other parent he really knew.
On top of this, Kelly and I, recently learned that the company that just bought out Sue's employer does recognized same-sex relationships for the purposes of retirement benefits payable to the surviving partner after the employee's death. What a painful sting.....
So, basically, we are being prohibited from CHOOSING to take care of each other so the government doesn't have to, because someone is afraid that some how we are going to ruin the sanctity of their marriage which has at least a 50% chance of ending in divorce.
Tuesday, June 2, 2009
What is Same-Sex Marriage really?
Well, perhaps we need to define marriage first. This was a question that was posed to a class of twenty-one (21) adults in an evening paralegal class earlier this week this past Tuesday night. I was asked to be a guest speaker and discuss same-sex marriage along with other family issues involving gay, lesbians, bisexuals and transgendered (GLBT) folks and this was the first question the instructor wanted me to cover. Most specifically, "what is a family?".
Apparently this is not a question that is easily answered and a question that our own President Obama struggled with in his book, Dreams From My Father, beginning on page 327. After the class struggled with the mainstream definition of a Mom, Dad, and children, they started to focus on the constructs of their own realities and realized that a good portion of them did not have that experience. It was agreed that a family is generally defined by a pattern of blood and marital relationships as voluntarily defined by the parties involved directly. Huh? Basically put, we define the family we live with and acknowledge, based on birth, intimate relationships and social rituals.
Marriage is one of these social rituals. When we marry we create bonds between two otherwise unrelated individuals which produce a series of blood relationships that outsiders to the group cannot penetrate or sever. A very powerful union indeed!
The Merriam-Webster on-line dictionary defines marriage as " (1): the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage (same-sex marriage)". So apparently there is a distinction here that seems to part in the area of a contractual relationship.
So what is this contractual relationship and how is it created? The contract is the marriage license itself and it is created when people take a trip to their local courthouse and pay their fee. Curiously, this acquisition of the marriage license seems to be the last thing on the list taken care of - after the flowers are picked out, the venue is chosen, the bride chooses her maid of honor and colors, and the groom, selects his best man, etc. However, necessary it is, it is often treated as an item on a shopping list for the grocery store and is not given really any more thought than that exercised to achieve the task. Here locally, many people even complain about the three day wait required before the parties can use it if they haven't gotten counseling from their local pastor/rabbi/priest or licensed family therapist. After the license is gotten we go to the church or some other venue where more than likely some religious leader officiates over the ceremony and brings the two together as one before friends and family.
So, really we have a social ritual that has been given contractual recognition within the government wherein certain statues have been created and which provide certain protections, privileges, obligations and responsibilities (provisions) not just for the parties themselves, but any subsequent children born of the marriage. No other union creates these provisions in the same exact way as that of a legally recognized marriage. These provision extend not only within the realm of the local and state governments where the parties are citizens but well into the federal arena. These provisions follow the parties and their children from state to state, locality to locality and cannot be ignored by the jurisdictions wherein they reside at a given time and are not redefined each time they cross a state line.
So a same-sex marriage is something that is made to look like a marriage, but does not afford the parties and their children all of the same provisions as that of a regular marriage. Parties engaged in a same-sex relationship have conditional recognition based upon the state in which they reside and changes as they move from state to state. There is no federal recognition, which seems like it isn't a big deal until I sit down to file my taxes and can't claim head of household even though my wife doesn't work. Even if she did - I still can't do it because our marriage isn't recognized. So, I am destined to be taxed at a single rate for the rest of my life no matter how long we live together and no matter how committed I am to caring for her.
So a same-sex marriage is not a marriage in any meaningful way and is just a way for those who "sympathize" with our plight to feel good about doing something while ignoring the fact that it really doesn't do much more than allow the state I live in (if it has same-sex marriages) to make employers offer benefits to my spouse and give me and wife some protection in probate court. Inheritance is something I can take care of no matter what state I am in, health benefits I can get, although I will pay more for it if I can't get it through my employer - but I can get it just the same. So these concessions, although appreciated aren't much more than face time given to an unattractive subject that everyone wishes would just go away, because why does it really matter anyway?
It matters because I and many others like me are being denied the fundamental right protected by my birth right here in America to choose whom I make a family with and whom I associate with as a family. Because someone else goes to church and says I am going to ruin the sanctity of their marriage and redefine marriage I am denied the right to have my relationship legally recognize and must lie awake at night and hope I have made enough preparations to protect my Wife should something happen to me. Meanwhile, at least fifty percent (50%) of these fine church going people will divorce with their children in tow, have children out of wedlock and get married an average of at least two times before they are successful at marriage or live a life where they are perpetually single - BY CHOICE!
Apparently this is not a question that is easily answered and a question that our own President Obama struggled with in his book, Dreams From My Father, beginning on page 327. After the class struggled with the mainstream definition of a Mom, Dad, and children, they started to focus on the constructs of their own realities and realized that a good portion of them did not have that experience. It was agreed that a family is generally defined by a pattern of blood and marital relationships as voluntarily defined by the parties involved directly. Huh? Basically put, we define the family we live with and acknowledge, based on birth, intimate relationships and social rituals.
Marriage is one of these social rituals. When we marry we create bonds between two otherwise unrelated individuals which produce a series of blood relationships that outsiders to the group cannot penetrate or sever. A very powerful union indeed!
The Merriam-Webster on-line dictionary defines marriage as " (1): the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage (same-sex marriage)". So apparently there is a distinction here that seems to part in the area of a contractual relationship.
So what is this contractual relationship and how is it created? The contract is the marriage license itself and it is created when people take a trip to their local courthouse and pay their fee. Curiously, this acquisition of the marriage license seems to be the last thing on the list taken care of - after the flowers are picked out, the venue is chosen, the bride chooses her maid of honor and colors, and the groom, selects his best man, etc. However, necessary it is, it is often treated as an item on a shopping list for the grocery store and is not given really any more thought than that exercised to achieve the task. Here locally, many people even complain about the three day wait required before the parties can use it if they haven't gotten counseling from their local pastor/rabbi/priest or licensed family therapist. After the license is gotten we go to the church or some other venue where more than likely some religious leader officiates over the ceremony and brings the two together as one before friends and family.
So, really we have a social ritual that has been given contractual recognition within the government wherein certain statues have been created and which provide certain protections, privileges, obligations and responsibilities (provisions) not just for the parties themselves, but any subsequent children born of the marriage. No other union creates these provisions in the same exact way as that of a legally recognized marriage. These provision extend not only within the realm of the local and state governments where the parties are citizens but well into the federal arena. These provisions follow the parties and their children from state to state, locality to locality and cannot be ignored by the jurisdictions wherein they reside at a given time and are not redefined each time they cross a state line.
So a same-sex marriage is something that is made to look like a marriage, but does not afford the parties and their children all of the same provisions as that of a regular marriage. Parties engaged in a same-sex relationship have conditional recognition based upon the state in which they reside and changes as they move from state to state. There is no federal recognition, which seems like it isn't a big deal until I sit down to file my taxes and can't claim head of household even though my wife doesn't work. Even if she did - I still can't do it because our marriage isn't recognized. So, I am destined to be taxed at a single rate for the rest of my life no matter how long we live together and no matter how committed I am to caring for her.
So a same-sex marriage is not a marriage in any meaningful way and is just a way for those who "sympathize" with our plight to feel good about doing something while ignoring the fact that it really doesn't do much more than allow the state I live in (if it has same-sex marriages) to make employers offer benefits to my spouse and give me and wife some protection in probate court. Inheritance is something I can take care of no matter what state I am in, health benefits I can get, although I will pay more for it if I can't get it through my employer - but I can get it just the same. So these concessions, although appreciated aren't much more than face time given to an unattractive subject that everyone wishes would just go away, because why does it really matter anyway?
It matters because I and many others like me are being denied the fundamental right protected by my birth right here in America to choose whom I make a family with and whom I associate with as a family. Because someone else goes to church and says I am going to ruin the sanctity of their marriage and redefine marriage I am denied the right to have my relationship legally recognize and must lie awake at night and hope I have made enough preparations to protect my Wife should something happen to me. Meanwhile, at least fifty percent (50%) of these fine church going people will divorce with their children in tow, have children out of wedlock and get married an average of at least two times before they are successful at marriage or live a life where they are perpetually single - BY CHOICE!
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