So, imagine: you are a same sex partner in California a month from now. Why would you still need estate planning that is special or separate?
Well, if you've been reading the archive of this blog, you know the answer. The answer is that legally, the rights essentially have not changed due to the California Supreme Court opinion on gay marriage for same sex couples who marry rather than register as domestic partners. Although that is not completely accurate - it is possible that states who have not created their own DOMA (defense of marriage act) laws would provide greater rights and recognition to the relationships of those who marry over those who have simply registered.
NOW, those of you in California who have registered as domestic partners will not be automatically "married". If you want to be married, then you will need to get married. You do not need to dissolve your domestic partnership to marry the same person with whom you are partnered.
As mentioned in earlier posts, the biggest reason to plan specially for same-sex couples is that as long as the federal Defense of Marriage Act ("DOMA") is in effect, there are no guarantees of how your relationships and choices will be respected throughout the country.
The next few posts will discuss some of the areas you still need to protect.
Wednesday, May 28, 2008
Saturday, May 24, 2008
The California Supreme Court Gay Marriage Opinion
Please find for your reference this link to read the Supreme Court's opinion regarding gay marriage.
Disability / Health Care Issues / Death - Fun Stuff!
Disability/Heath Care Issues/Death: It is important to create an advance health care directive (in some jurisdictions this can be two separate documents: a living will and a limited health care power of attorney). This document dictates your wishes in the event you are unable to make your own decisions. This includes who you want to make such decisions.
We rarely want to think of such a time when we might be unable to make decisions, but life brings us unexpected events, including short-term small issues. Imagine you hit your head with ____ (fill in the blank based on your own clumsiness or accidents: car door, tree, cement/ground) and have a concussion and get knocked unconscious. It doesn't take much to knock one unconscious (I speak, however, from the perspective of going to law school, not medical school.. but I imagine based upon common experience).
Do you want to be cremated? Would you prefer to be embalmed? An advance health care directive can provide these details of your wishes. We can all agree that once we're dead, it's a lot more difficult to express our wishes. If we live in a place that respects our wishes, and our choices for spouse, then that spouse may be able to make those decisions for us, and it is less important to put those decisions into a directive. But what if you move?
There are two particular examples/illustrations that I found in the eighties and nineties that affected me.
Sharon Kowalski. In college, I read the book written by Karen Thompson and Julie Andrzejewski entitled Why Can't Sharon Kowalski Come Home? At the time I read it, the issue was still outstanding, although after eight years, Sharon was finally able to come home. For those of you unfamiliar with the story, I highly recommend finding out more about it.
From the Introduction:
"This book is about the lives of Karen Thompson and Sharon Kowalski, two women who fell in love and began to share their lives together. After four years of a committed and extremely closeted relationship, Sharon was hit by a drunk driver while driving to northern Minnesota on a cold November afternoon in 1983.
"Sharon's four-year old niece, Missy, and seven-year old nephew, Michael, were in the car with her. Missy died shortly after the accident. Michael recovered with few permanent injuries. Sharon, however, suffered a severe brain stem injury which left her with drastic and permanent damage. How drastic and how permanent is difficult to assess since it is the contention of this book that Sharon's recovery was and still is being detrimentally affected by efforts to remove Karen Thompson from her life.
"Sharon was initially in a coma and not expected to live. Karen Thompson literally spent every minute she could with Sharon, willing her to live and to recover. Later, Karen spent hours, weeks and months helping Sharon relearn basic movements and skills. When Sharon's family told Karen to discontinue visitation with Sharon, she sought advice from medical personnel and attorneys. Driven by fear of being separated from her lover, she revealed her relationship to Sharon's parents, praying that they would see that her love could make a difference in their daughter's recovery. When they reacted with anger and denial, Karen filed for guardianship, thus initiating an historic legal battle which continues to have far-reaching effects on disabled people, unmarried partners - regardless of sexual orientation - or any individual without a designated guardian of choice.
"This is also the story of parochial attitudes, bigotry, and institutionalized injustice. . . .
"And, finally, this is a story of growth and change in the person of Karen Thompson. Growing up with a naive belief in a just world, in a conventional protestant religion, and in the fairness of professionals, institutions and society, Karen developed a strong sense of commitment and principles. These characteristics eventually brought her full circle to question and challenge the very institutions which fostered them. . . ."
If These Walls Could Talk 2 - Story #1 - 1961
If anyone remembers this segment of the If These Walls Could Talk series, they probably more fondly remember the third story where a couple played by Ellen Degeneres and Sharon Stone try to have a baby together. But it was the first segment that stuck with me. In that one, a woman loses her lover she has shared her life and her home with for the past thirty years. She is excluded from the hospital, excluded from making decisions, and ultimately excluded from the home she's paid of the mortgage on over the past thirty years. Strangers come in start rifling through her belongings claiming a stronger legal right over her life than she has simply because they are blood. The disrespect and indignity of their actions stayed with me. And yet, by law, it was perfectly acceptable and legal.
These two stories, one non-fiction and one fictional both have stayed with me and have been the basis behind why I strongly believe that estate planning for same-sex partners is essential. In addition to planning for my own partner and myself, these are what drove me to want to practice in this area of the law.
We rarely want to think of such a time when we might be unable to make decisions, but life brings us unexpected events, including short-term small issues. Imagine you hit your head with ____ (fill in the blank based on your own clumsiness or accidents: car door, tree, cement/ground) and have a concussion and get knocked unconscious. It doesn't take much to knock one unconscious (I speak, however, from the perspective of going to law school, not medical school.. but I imagine based upon common experience).
Do you want to be cremated? Would you prefer to be embalmed? An advance health care directive can provide these details of your wishes. We can all agree that once we're dead, it's a lot more difficult to express our wishes. If we live in a place that respects our wishes, and our choices for spouse, then that spouse may be able to make those decisions for us, and it is less important to put those decisions into a directive. But what if you move?
There are two particular examples/illustrations that I found in the eighties and nineties that affected me.
Sharon Kowalski. In college, I read the book written by Karen Thompson and Julie Andrzejewski entitled Why Can't Sharon Kowalski Come Home? At the time I read it, the issue was still outstanding, although after eight years, Sharon was finally able to come home. For those of you unfamiliar with the story, I highly recommend finding out more about it.
From the Introduction:
"This book is about the lives of Karen Thompson and Sharon Kowalski, two women who fell in love and began to share their lives together. After four years of a committed and extremely closeted relationship, Sharon was hit by a drunk driver while driving to northern Minnesota on a cold November afternoon in 1983.
"Sharon's four-year old niece, Missy, and seven-year old nephew, Michael, were in the car with her. Missy died shortly after the accident. Michael recovered with few permanent injuries. Sharon, however, suffered a severe brain stem injury which left her with drastic and permanent damage. How drastic and how permanent is difficult to assess since it is the contention of this book that Sharon's recovery was and still is being detrimentally affected by efforts to remove Karen Thompson from her life.
"Sharon was initially in a coma and not expected to live. Karen Thompson literally spent every minute she could with Sharon, willing her to live and to recover. Later, Karen spent hours, weeks and months helping Sharon relearn basic movements and skills. When Sharon's family told Karen to discontinue visitation with Sharon, she sought advice from medical personnel and attorneys. Driven by fear of being separated from her lover, she revealed her relationship to Sharon's parents, praying that they would see that her love could make a difference in their daughter's recovery. When they reacted with anger and denial, Karen filed for guardianship, thus initiating an historic legal battle which continues to have far-reaching effects on disabled people, unmarried partners - regardless of sexual orientation - or any individual without a designated guardian of choice.
"This is also the story of parochial attitudes, bigotry, and institutionalized injustice. . . .
"And, finally, this is a story of growth and change in the person of Karen Thompson. Growing up with a naive belief in a just world, in a conventional protestant religion, and in the fairness of professionals, institutions and society, Karen developed a strong sense of commitment and principles. These characteristics eventually brought her full circle to question and challenge the very institutions which fostered them. . . ."
If These Walls Could Talk 2 - Story #1 - 1961
If anyone remembers this segment of the If These Walls Could Talk series, they probably more fondly remember the third story where a couple played by Ellen Degeneres and Sharon Stone try to have a baby together. But it was the first segment that stuck with me. In that one, a woman loses her lover she has shared her life and her home with for the past thirty years. She is excluded from the hospital, excluded from making decisions, and ultimately excluded from the home she's paid of the mortgage on over the past thirty years. Strangers come in start rifling through her belongings claiming a stronger legal right over her life than she has simply because they are blood. The disrespect and indignity of their actions stayed with me. And yet, by law, it was perfectly acceptable and legal.
These two stories, one non-fiction and one fictional both have stayed with me and have been the basis behind why I strongly believe that estate planning for same-sex partners is essential. In addition to planning for my own partner and myself, these are what drove me to want to practice in this area of the law.
So what will change? - Pt 2
Legally, not much will be different between those same sex couples who marry and those who have previously registered as domestic partners. One of the supporting reasons the California Supreme Court gave in its gay marriage opinion was that literally - as I noted in another post - same sex partners already have all of the rights and responsibilities that the State of California can provide to individuals who marry.
The outstanding problem - and one the folks from other states who are funneling money into the State of California to prevent this - is that the ONE legal difference that comes about from giving California same sex couples the opportunity to marry is that it now gives those couples "standing" (a magic word in the legal world) to raise objections to the federal "Defense of Marriage Act" which provides (among other things) that for purposes of federal law, "married" will only refer to a marriage between a man and a woman.
The outstanding problem - and one the folks from other states who are funneling money into the State of California to prevent this - is that the ONE legal difference that comes about from giving California same sex couples the opportunity to marry is that it now gives those couples "standing" (a magic word in the legal world) to raise objections to the federal "Defense of Marriage Act" which provides (among other things) that for purposes of federal law, "married" will only refer to a marriage between a man and a woman.
Friday, May 23, 2008
Role of the Court - Part 2 - Some examples...
Not to suggest that the Court is patronizing - but I recognize that some will just read that in this post - but compare the role of the Court to the role of a parent (hard not to see as "patronizing" when I say that... ), or an administrator, a principal, a teacher. Sometimes as parents, teachers, administrators, principals there are decisions that need to be made, that are best overall for the populous, that are not popular.
I can guarantee you that taxes are not popular, but overall, assuming (again, make assumptions and take risks.. but for this example, humor me) prudent financial management, all of us can understand that they are necessary to provide services that we find of value (whether it be public education, police, hospitals, highways).
I can guarantee you that taxes are not popular, but overall, assuming (again, make assumptions and take risks.. but for this example, humor me) prudent financial management, all of us can understand that they are necessary to provide services that we find of value (whether it be public education, police, hospitals, highways).
Role of the Court
There is a lot of response to the California Supreme Court's opinion regarding gay marriage referring to the Court as "judicial activism" and arguing that the Court has overturned the "will of the people".
But in some senses, this is the role of the Court. Whether it be the U.S. Supreme Court or an individual state's highest court. The reason we don't elect justices to sit on our highest courts is that we need people to be insulated to make the right decisions, rather than simply the decisions of those who have money.
It doesn't take much to prompt someone to gripe about how our elected leaders - whether we are talking representatives at the national level or even the local level - are affected and vote based upon where the dollars come from. We have tried, as a nation, to institute some type of campaign finance reform, to try and separate the votes from the dollars financing campaigns. Without much success. We know that big industry often drives legislation that benefits big industry. Some of these changes are of benefit to the larger population, and some just benefit those who provide the financing to encourage it.
So, to balance the power, to have people in place to make the "hard" and unpopular decisions, we have justices that have a term for life (the U.S. Supreme Court) who cannot lose their position even if they make unpopular decisions that are, nonetheless, right for our country.
There are probably some people who might still be against interracial relationships, or marriages. But most of us, today, believe that the U.S. Supreme Court made the right decision in Loving v. Virginia to allow interracial marriage. Many of the arguments made today by the California Supreme Court echo those arguments made by the U.S. Supreme Court in its opinion in Loving v. Virginia in 1967. Ask anyone who was an adult in 1967 whether it was a "good" decision, or more importantly, and more relevantly, whether it was a popular decision, and you'll begin to understand and see that sometimes the right decisions are unpopular, even potentially "radical" at the time. But we set up our government with a balance of power, and we trust our Court to act in our overall best interests.
That's the role of the court.
But in some senses, this is the role of the Court. Whether it be the U.S. Supreme Court or an individual state's highest court. The reason we don't elect justices to sit on our highest courts is that we need people to be insulated to make the right decisions, rather than simply the decisions of those who have money.
It doesn't take much to prompt someone to gripe about how our elected leaders - whether we are talking representatives at the national level or even the local level - are affected and vote based upon where the dollars come from. We have tried, as a nation, to institute some type of campaign finance reform, to try and separate the votes from the dollars financing campaigns. Without much success. We know that big industry often drives legislation that benefits big industry. Some of these changes are of benefit to the larger population, and some just benefit those who provide the financing to encourage it.
So, to balance the power, to have people in place to make the "hard" and unpopular decisions, we have justices that have a term for life (the U.S. Supreme Court) who cannot lose their position even if they make unpopular decisions that are, nonetheless, right for our country.
There are probably some people who might still be against interracial relationships, or marriages. But most of us, today, believe that the U.S. Supreme Court made the right decision in Loving v. Virginia to allow interracial marriage. Many of the arguments made today by the California Supreme Court echo those arguments made by the U.S. Supreme Court in its opinion in Loving v. Virginia in 1967. Ask anyone who was an adult in 1967 whether it was a "good" decision, or more importantly, and more relevantly, whether it was a popular decision, and you'll begin to understand and see that sometimes the right decisions are unpopular, even potentially "radical" at the time. But we set up our government with a balance of power, and we trust our Court to act in our overall best interests.
That's the role of the court.
California's Ballot Initiatives
The State of California has an interesting process to allow the "people" to have a say in the government process. In addition to voting for legislative representatives and our governor, there is the famous ballot initiative process.
Californians can put not only statutory initiatives - that is initiatives to add code to the statutes of the State - but also can put Constitutional initiatives on the ballot. With the proper number of signatures gained (based upon the number of votes cast in the most recent election for Governor) a proposition can be added to the ballot.
There is a higher percentage of signatures required for a Constitutional ballot - you can breathe a little easier. But a Constitutional amendment can pass by a simple majority of votes.
Brings new thoughts to the reasons why you should vote. If not simply because of an interest in the candidates, but to increase the number of signatures required to put a Constitutional amendment on the ballot!
This is all of interest to "gay estate planning" because in California we are waiting to see whether a measure offered for November's ballot has been certified with enough valid signatures to place it on the ballot. This initiative has been funded, so we are told, by significant funds from out of state - funds used to pay for signatures.
Also of interest is that one of the things that the recent California Supreme Court decision did was to over-rule a previous "statutory" ballot initiative that passed in 2000 known as California's "Defense of Marriage Act". Many folks who are outspoken about the Supreme Court decision are in response to the Court "over-ruling" the "will of the people."
The role of the Court is a good subject for another posting.
Californians can put not only statutory initiatives - that is initiatives to add code to the statutes of the State - but also can put Constitutional initiatives on the ballot. With the proper number of signatures gained (based upon the number of votes cast in the most recent election for Governor) a proposition can be added to the ballot.
There is a higher percentage of signatures required for a Constitutional ballot - you can breathe a little easier. But a Constitutional amendment can pass by a simple majority of votes.
Brings new thoughts to the reasons why you should vote. If not simply because of an interest in the candidates, but to increase the number of signatures required to put a Constitutional amendment on the ballot!
This is all of interest to "gay estate planning" because in California we are waiting to see whether a measure offered for November's ballot has been certified with enough valid signatures to place it on the ballot. This initiative has been funded, so we are told, by significant funds from out of state - funds used to pay for signatures.
Also of interest is that one of the things that the recent California Supreme Court decision did was to over-rule a previous "statutory" ballot initiative that passed in 2000 known as California's "Defense of Marriage Act". Many folks who are outspoken about the Supreme Court decision are in response to the Court "over-ruling" the "will of the people."
The role of the Court is a good subject for another posting.
Thursday, May 22, 2008
So what does it all mean? Pt 1. What's changed?
What has changed for gays and lesbians in California now that the California Supreme Court has issued its opinion regarding gay marriage stating that it is unconstitutional to prevent same sex partners from marrying?
Well, as of today, nothing legally. That's because it takes time for the State legislature to determine how to implement the changes required by the Supreme Court opinion. Generally, there is thirty days until such changes take effect.
I imagine that the City and County of San Fransisco is raring and ready to go as soon as they are able to issue licenses to same sex couples. Other counties, however, are distinctly and deliberately waiting until they have direction from the legislature to change their policies, their forms, their methodology for obtaining a marriage license. Some county officers are hoping that some type of intervention will occur to prevent this "judicial activism" from taking place.
They are hoping, I believe, that somehow it will be put off until November when there may be a proposition on the ballot to change the California Constitution to clearly and explicitly provide that marriage is only between a man and a woman.
Ultimately, the Court provided, this is the only way to keep same sex partners from receiving the fundamental right of marriage:
“[W]e conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
(italicized emphasis is the Court's, the rest is my emphasis).
(See another posting to come about California's ballot initiative process).
IF (and I assume it should, but assumptions can be dangerous - tempting fate) the changes to the law go into effect prior to the November ballot, then we will have a very interesting situation, indeed. We will have this select group of couples who are same sex and "married" and essentially grandfathered (or grandmothered, if they're lesbians) in their union since at the time it was legal and constitutional. And then a whole lot of same sex couples who can't get "married".
What will they do then? Some thoughts on that to follow.
Well, as of today, nothing legally. That's because it takes time for the State legislature to determine how to implement the changes required by the Supreme Court opinion. Generally, there is thirty days until such changes take effect.
I imagine that the City and County of San Fransisco is raring and ready to go as soon as they are able to issue licenses to same sex couples. Other counties, however, are distinctly and deliberately waiting until they have direction from the legislature to change their policies, their forms, their methodology for obtaining a marriage license. Some county officers are hoping that some type of intervention will occur to prevent this "judicial activism" from taking place.
They are hoping, I believe, that somehow it will be put off until November when there may be a proposition on the ballot to change the California Constitution to clearly and explicitly provide that marriage is only between a man and a woman.
Ultimately, the Court provided, this is the only way to keep same sex partners from receiving the fundamental right of marriage:
“[W]e conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
(italicized emphasis is the Court's, the rest is my emphasis).
(See another posting to come about California's ballot initiative process).
IF (and I assume it should, but assumptions can be dangerous - tempting fate) the changes to the law go into effect prior to the November ballot, then we will have a very interesting situation, indeed. We will have this select group of couples who are same sex and "married" and essentially grandfathered (or grandmothered, if they're lesbians) in their union since at the time it was legal and constitutional. And then a whole lot of same sex couples who can't get "married".
What will they do then? Some thoughts on that to follow.
A rose by any other name...
... is still as sweet?
Well, that is not the ruling from the Supreme Court of California. The Supreme Court says that the name matters. And to create a separate name, even if it has all the same rights, for same sex partners has the effect of creating second class citizens.
(my emphasis added!)
Well, that is not the ruling from the Supreme Court of California. The Supreme Court says that the name matters. And to create a separate name, even if it has all the same rights, for same sex partners has the effect of creating second class citizens.
“Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects ‘second-class citizens’ who may, under the law, be treated differently from, and less favorably, than, heterosexual individuals or opposite-sex couples.”
(my emphasis added!)
Thursday, May 15, 2008
To DP or Not to DP is NO LONGER the question...
Here's the text from an e-mail I received from NCLR just moments ago. Rather than attempt to re-write it I will paste it in here in whole!
Victory! Marriage in California
Dear Friend of NCLR,
This morning the California State Supreme Court issued its decision in
the marriage cases and the majority held that laws excluding gay and
lesbian couples from the right to marry were unconstitutional. In short, we won!
This is
a landmark and historic day.
We are grateful that the Court upheld the most precious and cherished
values of fairness, opportunity and most basically, the fundamental
right to marry the person you love. What an enormous privilege to be a
witness to this powerful and poignant moment in our movement.
It is an honor to be the Executive Director of the organization that
played such a key role in making this day possible. My deepest
gratitude to you. We would not be here--seeing and making
history--without your support.
You will hear more from us in the next few hours and in the coming
days as we have a chance to digest the ruling and give it a fuller
analysis. Keep checking NCLR's website at www.nclrights.org to get the latest information,
including the official press release and a copy of the Court's
ruling.
But for now--know this, this is a new and brighter day for each of us
and all those we love. Yea!
Thank you!
Forever indebted,
Kate
P.S. Now it is time to celebrate. For those in the state of California, please join us tonight at the
statewide gathering nearest you to be with those who love and support
you and who made this victory possible. I will be at the gathering at
the San Francisco LGBT Center with my beloved and our children. I hope
to get a hug from you tonight. God knows we all deserve it.
For information about a gathering in your area, visit: http://www.nclrights.org/site/R?i=vTWrFml7mvRe2Ot7dVQIWQ..
You are receiving this e-mail because you are subscribed to our NCLR
Breaking News list. To update your information or to unsubscribe,
visit the link below.
http://ncflr.convio.net/site/CO?i=ukMgnduVLU1lcEkigTctYP0HuAmU6yFZ&cid=1082
NCLR National
Office 415.392.6257 | Southern
Regional
Office 727.490.4260 | Washington,
D.C., Regional
Office 202.737.0012 | Complete
Contact Information
http://www.nclrights.org/site/R?i=v86qSmBeCKMiNs0rkBJy8w..
Victory! Marriage in California
Dear Friend of NCLR,
This morning the California State Supreme Court issued its decision in
the marriage cases and the majority held that laws excluding gay and
lesbian couples from the right to marry were unconstitutional. In short, we won!
This is
a landmark and historic day.
We are grateful that the Court upheld the most precious and cherished
values of fairness, opportunity and most basically, the fundamental
right to marry the person you love. What an enormous privilege to be a
witness to this powerful and poignant moment in our movement.
It is an honor to be the Executive Director of the organization that
played such a key role in making this day possible. My deepest
gratitude to you. We would not be here--seeing and making
history--without your support.
You will hear more from us in the next few hours and in the coming
days as we have a chance to digest the ruling and give it a fuller
analysis. Keep checking NCLR's website at www.nclrights.org to get the latest information,
including the official press release and a copy of the Court's
ruling.
But for now--know this, this is a new and brighter day for each of us
and all those we love. Yea!
Thank you!
Forever indebted,
Kate
P.S. Now it is time to celebrate. For those in the state of California, please join us tonight at the
statewide gathering nearest you to be with those who love and support
you and who made this victory possible. I will be at the gathering at
the San Francisco LGBT Center with my beloved and our children. I hope
to get a hug from you tonight. God knows we all deserve it.
For information about a gathering in your area, visit: http://www.nclrights.org/site/R?i=vTWrFml7mvRe2Ot7dVQIWQ..
You are receiving this e-mail because you are subscribed to our NCLR
Breaking News list. To update your information or to unsubscribe,
visit the link below.
http://ncflr.convio.net/site/CO?i=ukMgnduVLU1lcEkigTctYP0HuAmU6yFZ&cid=1082
NCLR National
Office 415.392.6257 | Southern
Regional
Office 727.490.4260 | Washington,
D.C., Regional
Office 202.737.0012 | Complete
Contact Information
http://www.nclrights.org/site/R?i=v86qSmBeCKMiNs0rkBJy8w..
Monday, May 5, 2008
WANTED: Comments / Suggestions / Questions
As you can tell, this is a fairly new blog. While I have lots of ideas and thoughts bursting within me to write about, I would like to discuss topics of interest to you! Please feel free to write comments or provide ideas or suggestions of topics to discuss here. I am happy to research any areas I am not already familiar with in order to write an informed and informative piece. I would like to see this blog succeed, and your input is vital to this success!
Thank you!
Thank you!
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