Illinois Gay Marriage Ban Challenged

Guest Blogger: Elizabeth Wingfield, Former WLP Intern

On May 30^th, two dozen same-sex couples filed two separate law suits challenging the Illinois law that defines marriage as between a man and woman, which prohibits same-sex couples from marrying. Last year, Illinois legalized civil unions for same-sex couples which offer them the same legal protections as opposite-sex couples enjoy in marriage. However, Theresa Volpe and Mercedes Santos, one of the couples who filed a lawsuit against the Cook County Clerk’s office, argue that it is unconstitutional that they are not allowed to be married. In an article in the Huffington Post, Santos is quoted as saying, “Marriage means never having to explain that you are just like everyone else. My kids have to explain our relationship all the time and they shouldn’t have to.”

The lawsuits are led by the American Civil Liberties Union (ACLU) of Illinois and Lambda Legal, respectively. The Post reported that

John King, the director of the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Illinois, said he thinks that the timing for the lawsuits is right — given rapidly shifting public sentiment and the support of powerful elected officials — and that the impact of a successful suit in Illinois could be powerful. “Wins in big, important states like Illinois are huge for this country,” King said.

The lawsuits come less than a month after President Obama endorsed same-sex marriage and, according to the New York Times, “recent public opinion surveys indicate support for same-sex marriage is rising nationwide.”

While there is currently a bill which would legalize same-sex marriage pending in Illinois legislature, advocates are fighting for equality in multiple venues to try and ensure that marriage law in Illinois does not continue to discriminate against same-sex couples. Indeed, according to the Times, John Knight, director of the ACLU’s gay-related litigation in the Midwest said that the group intended to “fight the battle in both [the legislative and judiciary] venues.”

We will keep you updated about this issue.

Federal Court in Pennsylvania to Decide Death Benefits Dispute Involving a Surviving Same-Sex Spouse

A death benefits dispute between a surviving same-sex spouse and the decedent’s parents took center stage on Monday, March 12^th, when U.S. District Court Judge C. Darnell Jones II of the Eastern District of Pennsylvania heard oral arguments from the attorneys for the parties.  This case is being closely watched across the nation because it is the first case in which a private employer has claimed that the Defense of Marriage Act (“DOMA”) prohibits it from providing equal benefits to same-sex spouses.  While the principal parties in the case – the surviving spouse, Jennifer Tobits, and the decedents’ parents, David and Joan Farley – both argued that the Court need not address the constitutionality of DOMA to resolve their dispute and instead, only analyze and interpret the language of the pension plan, the potential implications of the Court’s decision are momentous.  If the Court concludes that DOMA applies to the pension plan at issue, the ruling would result in a unprecedented extension of DOMA to private, non-governmental actors and jeopardize the rights of numerous private employees who are married to same-sex spouses and currently entitled to benefits under the private pension plans of countless employers, including small businesses, Fortune 500 companies, and law firms.  Teresa S. Renaker, one of Ms. Tobits’ attorneys, pointed out to the Court that any such application would be a “radical expansion of DOMA’s reach far beyond its intended public-sector scope and into private-sector employment.”

Ms. Tobits legally married Sarah Ellyn Farley in Canada in 2006, a mere two weeks before Ms. Farley was diagnosed with a rare form of cancer.  After battling the disease together for four years, Ms. Farley died in 2010 at the age of 37.  After Ms. Farley’s death, Ms. Farley’s parents, who never approved of their daughter’s sexual orientation or her marriage to Ms. Tobits, attempted to collect Ms. Farley’s pension plan proceeds from her employer, Cozen O’Connor, a national law firm where Ms. Farley worked for six years as an attorney in its Chicago, Illinois, office.  Under Cozen O’Connor’s pension plan, a surviving spouse receives a deceased employee’s death benefit and “spouse” is defined in the plan as the person to whom an employee has been married for at least one year.  Nothing in the plan states that same-sex spouses are excluded.  Rather than paying the benefit to Ms. Tobits, Cozen O’Connor instead initiated this lawsuit, claimed that DOMA prevents it from paying the benefit to Ms. Tobits, and asked the Court to decide who is entitled to the benefit.  Because the Court asked the parties to address the constitutionality of DOMA in the context of resolving this dispute, two governmental entities intervened in the case – the United States Department of Justice (“DOJ”) and the Bipartisan Legal Advisory Group (“BLAG”) of the United States House of Representatives.  The DOJ contends that DOMA is unconstitutional and should be stricken, while BLAG defends DOMA.

Notably, during the pendency of this federal action, an Illinois state court ruled that Ms. Farley and Ms. Tobits were legally married in Canada and that Ms. Tobits is entitled to all of the rights and protections afforded to spouses under Illinois law.  This ruling resulted from a probate action filed by the Farleys after their daughter died in which the Farleys falsely claimed that their daughter was single and asked the court to appoint Ms. Farley’s father as the administrator of his daughter’s estate.  In reaching its decision, the Illinois court rejected the Farleys’ claims and appointed Ms. Tobits, the surviving spouse, as the administrator of Ms. Farley’s estate.

What We’re Reading: 2011 was a Banner Year for LGBT Rights

Many online publications have been calling attention to the huge gains advocates have made towards equality for LGBT people this year. While we must recognize that we still have awhile to go to reach equality for all United States citizens, it is important to also celebrate our victories. Below we have compiled a list of some of our favorite stories. Please add your own favorite LGBT victory from 2011 in comments.

• New York became the largest state to legalize same-sex marriage
• Secretary of State Hillary Clinton made a historic speech, insisting that the protection of LGBT individuals from discrimination is an essential part of the international effort to further human rights
• For the first time, two women shared the traditional “first kiss,” a Navy homecoming tradition
• Don’t Ask, Don’t Tell, the policy that barred gay servicepeople from serving openly in the military, was repealed
• President Obama and Attorney General Holder issued a letter to Speaker Boehner stating that the Administration will no longer defend the Defense of Marriage Act, which states that opposite-sex marriage is the only marriage allowed under federal law
• President Obama’s administration extended benefits to federal employees in same-sex domestic partnerships through executive order

Gay Couples Less Likely to Have Access to Health Care Benefits

The Bureau of Labor Statistics added two questions about domestic partner benefits for same-sex couples to their National Compensation Survey, resulting in the first comprehensive count of domestic partner health care benefits by a federal government agency.  The survey revealed that only one-third of workers in the U.S. have access to health care for same-sex partners.

Among all U.S. employers, 31% provide coverage for unmarried opposite-sex partners, whereas only 21% of U.S. employers provide coverage for same-sex partners, regardless of their marriage status.  These discriminatory health care trends are not just evidenced in  those states where gay marriage is illegal.  Indeed, “even in Massachusetts, where same-sex marriage is legal, only 71% of employers reported offering benefits to same-sex spouses in 2009, as opposed to 93% who give them to opposite-sex spouses.”

Because gay employees are less likely to receive health insurance for their partners than their counterparts in opposite-sex relationships, their families spend more on average for health insurance.  M.V. Lee Badgett, the research director of the Williams Institute, a think tank at the UCLA School of Law told MSN that roughly 3 in 4 of those in same-sex partnerships obtain health care through purchasing additional health care for their partner from their employer.  She noted that “some may choose not to sign up their partners because of the higher tax hit or due to a fear that they will encounter discrimination at work if they disclose having a same-sex partner.”  For those couples that do not purchase additional insurance through an employer, some obtain individual plans, though an unsettling number of partners in same-sex relationships cannot find any affordable coverage.

The fact that many in same-sex partnerships lack access to insurance likely leads to lower-quality health care.  Even those in same-sex relationships who are lucky enough to be covered by an employer’s insurance have increased health risks.  If the partner whose employer provides health insurance loses that job, the Consolidated Omnibus Budget Reconciliation Act (which allows individuals to continue their coverage for limited periods of time after the voluntary or involuntary loss of their jobs) does not extend to same-sex partners.

You can find out more about groups whose health is jeopardized as a result of discrimination here.

T-shirt re-opens discussion on marriage equality in U.S.

Radio listeners in the Pittsburgh region tuned in to KDKA radio at 8pm last Friday night to listen to Sue Frietsche, Senior Staff Attorney at the Women’s Law Project in Pittsburgh, weigh in on a recent controversy at Dollywood’s Splash Country water park in Tennessee.

As a guest to Johnna Pro’s evening radio show on KDKA, Sue Frietsche commented on the story and the inequality the LGBT community faces.

“We still face frequent, severe discrimination in public accommodations, employment, housing, and education. As a nation, we pay lip service to equality and justice, but the truth is that we have failed to protect LGBT families from unfairness, exclusion, and bigotry.”

Surprisingly this controversy was sparked by a simple message on a t-shirt.

 On July 9^th, Jennifer Tipton and Olivier Odom visited Dollywood’s Splash Country water park with friends and their friends’ children. While entering the park, Odom was stopped at the park’s gates and quietly asked to turn her shirt inside out. The reason? Her t-shirt read, “Marriage is so gay.”

Dollywood parks enforce a dress code policy that bans clothing deemed offensive or inappropriate. What constitutes “offensive” is left to park attendants to decide. The park attendant justified his decision by saying that the t-shirt was offensive because Dollywood is a “family park.”

“That’s what we found so offensive — that he said it was a family park,” Tipton said. ”Families come in a wide range of definitions these days and we were with our family.”

For many in the gay community, this story was surprising. Dolly Parton is well-known for her acceptance and support of the LGBT population. However, after two weeks of silence, Parton released a statement apologizing to Odom and her family.

“Everyone knows my personal support of the gay and lesbian community. Dollywood is a family park and all families are welcome.”

Because of the media attention they have received, Odom and Tipton are using their story as an opportunity to broadcast the inequality millions of other LGBT people face- even in amusement parks.

Odom stated, “If marriage equality is going to happen, it’s not going to happen if people sit at home quietly.”

Gay Couple Spared Deportation

The Defense of Marriage Act (DOMA) bars the federal government from recognizing same-sex marriage and so strips same-sex married couples of the rights that opposite-sex married couples enjoy. For this reason, Henry Velandia, a Venezuelan man, was in danger of being deported, which would have separated him from Josh Vandiver, who he legally married in Connecticut. Luckily, on June 29^th, federal officials canceled the deportation of Henry Velandia.

The victory for the couple came after a Newark immigration judge suspended Velandia’s deportation last month to give the government more time to consider the issue. Velandia sent a request that his deportation proceedings be canceled to the Department of Homeland Security which the Department agreed to.

This news comes in a flurry of news surrounding DOMA and immigration policies. In February the Obama administration announced that it would no longer defend DOMA in courts but that it would still enforce it. Advocates then asked the Obama administration to suspend deportations of married same-sex couples until the constitutionality of DOMA is settled. The decision on Velandia’s deportation proceedings “came as federal immigration officials were thoroughly reviewing their deportation policies.”

While it is certainly good news that Henry and Jose will not be separated as a result of DOMA, the fight towards marriage equality is still far from over. It is possible that this decision could lead to the cancellation of other deportations for those in a same-sex marriage but advocate.com notes that “it does not settle the question of federal recognition for same-sex marriages.” Until DOMA is repealed and same-sex marriage is legalized, couples like Josh Vandiver and Henry Velandia will not be free from the fear of their spouse’s deportation. To find out what you can do to help ensure marriage equality, visit Freedom to Marry’s “Take Action” page.

What We’re Reading: Marriage Equality

WLP staffers have noticed many recent news stories covering the fight for marriage equality in the US and around the globe. Due to the volume of news on this topic, it is impossible for us to write a blog post on all newsworthy stories. Instead, a compilation of links to the stories that have piqued our interest this week can be found below.

• A New York State bill proposed by Governor Cuomo, which would legalize same-sex marriage in the state, needs one more vote for passage. To pass, the bill requires support from a Republican in the Senate as all state Democrats, “except the avowedly antigay Ruben Diaz, Sr., plan to vote for the bill.” It is probable that the bill will be voted on this week.
• The French parliament rejected legislation which would legalize same-sex marriage in the country. This move represents the “opposition to gay marriage among President Nicolas Sarkozy’s governing conservatives and the strain of traditional values that runs through many parts of France” rather than the opinion of the majority of French citizens. A recent poll discovered that 58% of respondents are in favor of gay marriage in the country.
• A California bankruptcy court declared that the Defense of Marriage Act (DOMA) which barred federal recognition of same-sex marriage is unconstitutional. Judge Thomas B. Donovan of the United States Bankruptcy Court for the Central District of California said, “‘in this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple.’”
• A recent study by the Public Religion Research Institute reveals Millennials’ (18-29 year olds) views on same-sex marriage and abortion. The study found that Millennials are “much more likely” than the rest of the population to support same-sex marriage. While Millennials are not as dramatically in favor of abortion access as they are marriage equality, a majority (68%) of respondents identified themselves as “pro-choice.”
• A Texas judge ruled that Nikki Araguz, a trans woman, is not entitled to death benefits following her late husband’s death, reasoning that she was “‘born male’ even though she has undergone gender affirmation surgery. “Araguz plans to appeal the decision.
• After Judge Vaughn Walker in California declared the Proposition 8 ban on same-sex marriage in California unconstitutional, lawyers for those that support the ban argued that Judge Walker should have removed himself from the case as he is in a long-term relationship with another man. On Tuesday a federal judge ruled that as “there was no evidence that Judge Vaughn Walker intended to marry his longtime partner, thus he had no obligation to disclose his relationship.” Judge Walker’s ruling that declared Proposition 8 unconstitutional was upheld.

Have we missed something? Please share more news related to the fight for marriage equality in comments.

Philadelphia and Pittsburgh to Celebrate LGBT Pride Month This Weekend

On Sunday June 12^th Philadelphia and Pittsburgh will host their respective annual Pride parades and festivals. Philadelphia’s Pride Parade begins at 13^th and Locust at noon, ending at Penn’s lLanding where the festival will last until 6 PM. Pittsburgh’s Pride Awareness March begins at noon on Sunday followed by PrideFest on Liberty Avenue where the festival will continue until 6pm, the end of a five-day celebration of LGBT Pride.

Performers at Philadelphia’s events include Aisha Tyler and Dawn Robinson. Patti LaBelle will be a featured artist in Pittsburgh, performing at the Saturday evening “Pride in the Streets” event. You can find more information on Philadelphia’s events here and on Pittsburgh’s here.

Pennsylvania’s celebrations are part of LGBT Pride month. As we have written  before,  June has been a time of LGBT pride and activism since the Stonewall Riots of 1969 when customers of a LGBT-friendly bar fought back against police who were raiding the establishment. However, it was not until 2000 that June was officially recognized as “Gay and Lesbian Pride Month.” This year, President Obama declared June LGBT Pride Month, as he did in 2010.

During this time of celebration it is important to remember the gains that have been made towards equality for all individuals regardless of their sexual orientation and gender as well as the work that is still left to be done. Last year Don’t Ask, Don’t Tell was repealed and recently Vermont ‘s governor signed into law a bill which “explicitly specifies that surgery is not required in order to obtain a new birth certificate,” a gain for the transgendered community. However, 20% of homeless youth are LGBT in an overall youth population that is only 10% LGBT and next year a proposed constitutional amendment will appear on Minnesota’s state ballot which would not only affirm the current ban on same-sex marriage but would prevent any future legalization.

Please support Pride events in your area and let us know about more LGBT victories and work that needs to be done to achieve equality in comments.

Major Strides for Marriage Equality

Last week, President Obama determined that the Defense of Marriage Act (DOMA), a law enacted in 1996 that bars federal recognition of same-sex marriages, is unconstitutional. Although Obama opposes same-sex marriage, the president has directed the Justice Department to stop defending the law in court.  His explanation is given in a statement by the Attorney General:

Given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

Section 3 of DOMA defines marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

While determined unconstitutional by the president, the act will still be enforced unless and until Congress repeals it or if a court delivers a “definitive verdict against the law’s constitutionality.” This may come sooner rather than later based on a report by the Huffington Post that Democrat Rep. Jerry Nadler and “quite a few co-sponsors” are planning to introduce the Respect for Marriage Act, which would repeal DOMA.

In addition to President Obama’s shifting views, on Thursday, the Maryland State Senate voted in favor of the Religious Freedom and Civil Marriage Protection Act, which grants same-sex couples in the state legal marriage recognition, while protecting the rights of religious institutions to handle marriage how they see fit.  The bill is expected to make its way to the House Committee this week.

Meanwhile, about 5,000 miles away in Hawaii, Governor Neil Abercrombie signed a bill legalizing civil unions.  The law, effective January 1, 2012, allows couples, regardless of gender, to form civil unions which provide all the legal rights of marriage.  While civil unions, says Alan Spector, of Equality Hawaii, are not marriage,

They at least provide — on a state level — the concrete, tangible, legal rights and responsibilities of marriage. We still don’t have the social significance and the social meaning of marriage … but getting us to civil unions — psychologically and legally — is such a major barrier to cross.

While we’re thrilled with the strides are being made on behalf of gay rights, we’re disheartened that the issue of marriage equality is still met with strong resistance from politicians and lawmakers across the country.  To read the entire statement about the unconstitutionality of DOMA given by the Attorney General, click here.  To show your support for the President’s decision to determine DOMA unconstitutional, click here.

Lesbian and Gay Parenting Most Prevalent in the South; Couples and their Children Need Legal Protection

For the first time in 2010, the U.S. Census Bureau released the numbers of same-sex marriages reported in the United States and data about their relationships. The decision to release this information reversed a Bush-era policy that prohibited the release of this information. The information released about same-sex relationships revealed that more same-sex couples are participating in child rearing.

In 1976, there were an estimated 300,000 to 500,000 biological gay and lesbian parents in the United States. In the 1990s, it was estimated that  6 to 14 million children were being raised by same-sex parents. The latest statistics reveal that an estimated 2 million members of the LGBT community are interested in adoption and currently an estimated 65,500 children are adopted by same-sex couples each year. More than 16,000 children are being raised in households run by same-sex couples, amounting to 4% of all adopted children being raised in the United States.

The New York Times recently published an article highlighting the prevalence and commonality of gay parenting as revealed from the Census statistics. However, the article also highlights the difficulties of being a same-sex parent.

An important difficulty to address is the process for a same-sex couple to become parents. Adoption laws vary from state to state. In some states, same-sex couples are allowed to adopt a child as joint parents, in which case they can go about an adoption the same way a heterosexual couple would. Unfortunately, in many states adoption is not an option for same-sex couples. In states that allow same-sex couples to marry, same-sex couples are automatically considered parents. A legal parent is defined as “the person who has the right to live with a child and make decisions about the child’s education, well-being and health.” Even if the couple divorces, both parents are still considered the legal parents of the child. These children are guaranteed the same protection of heterosexual parents.

In May of 2004 the Human Rights Campaign Foundation released a report illustrating the difficulties of same-sex parents. Health Insurance is far less likely to be provided to same-sex couples with children through their employer, and those who do receive coverage pay inflated prices for coverage compared to their married, heterosexual co-workers.  Social Security benefits are also denied to same-sex couples: if one parent in a same-sex relationship dies, the Social Security benefits that would be left to the surviving parent and child are inadequate compared to heterosexual couples in the same situation. Income tax is higher for same-sex couples that have one stay at home parent, compared to heterosexual couples with the same family dynamic. However, if both parents are working in a same-sex relationship, the income tax is less than what married heterosexual couples pay.

The ultimate solution to these issues facing LGBT families is legalizing same-sex marriage nationwide.  We have seen this work in those states that allow same sex couples to marry  Formal marriage status provides the child with Social Security benefits, consent to provide emergency treatment and medicine from both parents, and support from both parents in the case that they divorce.  However, even though most states issue domestic partnerships and civil unions, these bonds are not portable over state lines and do not provide the 1,138 federal rights given by marriage.