Sunday, May 23, 2004

Loss of Consortium 

Boston.com reports that a lesbian couple who were married in Worcester last week have filed a medical malpractice suit, including a claim for loss of consortium. The basis for the malpractice suit is that Michelle Charron brought to her doctor's attention a lump in her breast in December 2002. The doctor did not perform a biopsy for an additional 8 months, during which time the "lump had grown from 4 to 10 centimeters, and she was diagnosed with Stage IV cancer that had spread to her sternum and liver. Doctors have said she has 10 years or less to live."

The additional damages for loss of consortium on behalf of her wife, Cindy Kalish, could not have been filed before they were married last week, as Massachusetts bars such claims for unmarried couples. Their daughter already had standing for a loss of consortium claim. There is concern that their claim will not be allowed, since the events in question occurred prior to their marriage. Their attorney, Ann Maguire, feels the courts should be flexible on this matter, since prior to May 17 the couple did not have the option of a legal marriage. They did have a commitment ceremony in 1992.


Thursday, May 20, 2004

No Log Cabin in North Carolina 

North Carolina state GOP chairman Ferrell Blount has rejected the Log Cabin Republican's application for a booth at the state's GOP convention. A copy of the rejection letter is available at the Stonewall Democrats website. According to the Newsobserver.com report:

"I reviewed what the Log Cabin national Web site was advocating and promoting, and in my opinion, it is diametrically opposed to the values of the North Carolina Republican Party," he said Tuesday.

Blount said he conferred with state party leaders about the booth. He said that the Log Cabin group not only pushed gay issues, but that its national Web site criticizes President Bush, who supports a federal constitutional amendment that would ban same-sex marriage.

"As state party chairman, I support the definition of marriage as being a union sanctioned by God between a man and a woman. That is what the Republican Party talks about in its platform and will talk about this weekend," Blount said.

Given that some of the items to be voted on for the party platform at the convention are opposition to gay marriage, opposition to adoption by gay couples, and commendation of the Boy Scouts for "defending decency" by their rejection of gay scout leaders, it seems all the more important that a group whose purpose is to represent the interests of gay Republicans should have a presence. The proposed platform states (under Article I: Family; Item 3):

"We believe that homosexuality is not normal and should not be established as an acceptable "alternative" lifestyle either in public education or in public policy. We do not believe public schools should be used to teach children that homosexuality is normal, and we do not believe that taxpayers should fund benefit plans for unmarried partners. We oppose special treatment by law based on nothing other than homosexual behavior or identity. We oppose actions, such as “marriage” or the adoption of children by same-sex couples, which attempt to legitimize and normalize homosexual relationships. We support the Defense of Marriage Act and will support a constitutional amendment, if necessary, to ensure that marriage is limited to the union of one man and one woman. We commend private organizations, such as the Boy Scouts, who defend moral decency and freedom according to their own well-established traditions and beliefs."

Apparently the "proposed" platform is thought of as a given by the state party leadership. If it were truly up for discussion, debate and a vote, it would make sense to have someone there expressing opposing views. Log Cabin has protested to Republican leaders, including North Carolina Senator Elizabeth Dole.


Wednesday, May 19, 2004

Ova and Birtha - A Cautionary Consent Tale 

Sherry Colb has an interesting analysis at FindLaw of the recent egg donor - birth mother decision in California.

The case involved a lesbian couple, who because of fertility issues for both, had eggs harvested from one and implanted in the other. The resulting twins are now 8 years old, but the couple recently separated. The twins live with the birth mother, and the California appeals court has upheld a decision, based largely on a waiver of parental rights signed by the genetic mother prior to the egg harvesting, that the birth mother is the sole parent.

Colb's analysis involves questions of informed consent, systemic bias against nontraditional relationships, and waivers as manifestations of intent vs. behavioral manifestations of intent, both before and after the fact.


Tuesday, May 18, 2004

Sexuality as a Political Tool 

The L.A. Times' Robert Scheer has a column today titled Scandal's Shame, Massachusetts' Pride. He provides a short but interesting overview of the use of sexuality as a political tool of oppression and control - he terms it sexual fascism - including actions in WWII Europe, the Taliban Afghanistan, Castro's Cuba, and now the US's actions at Abu Ghraib. This discussion is framed in the context of the hope presented by yesterday's advances in Massachusetts.

Again, the column is a brief overview, but it would be a great starting point for a more in depth analysis.


New Mexico: No Repeal on Human Rights Act  

365gay.com reports that New Mexico's Attorney General Patricia Madrid has issued a legal opinion that the state's Human Rights Act is not subject to repeal by the referendum process, as referendums are not applicable to laws concerning the "preservation of the public peace, health or safety."

The New Mexico legislature amended the Act last year to add the categories of sexual orientation and gender identity to the anti-discrimination provision. Opponents are attempting to gather enough petition signatures to bring repeal of this change to a public vote. Representative Earlene Roberts stated that the petition may still be turned in and the issue brought into court. Linda Siegle of Basic Rights New Mexico is pleased with the AG's opinion:

"We're really pleased that the attorney general is affirming the limits of the state Constitution. The Legislature never envisioned that referendum would be used to take away basic human rights."

Majority rule is not mob rule, and thankfully there are checks and balances in our system.


Scenes from the Suburbs 

Boston.com has an article covering some of the happenings outside of the media spotlight yesterday, in some of the Massachusetts town halls other than Boston, Cambridge, Somerville and Provincetown. The crowds weren't large, and the applicants waited in line alongside other folks waiting for other routine town hall business. The clerks were helpful in processing the applications and in handling questions and comments from those on hand for other business. Plymouth clerk Laurence Pizer had this sums-it-up exchange:

One woman who had come to Plymouth Town Hall on other business turned toward Pizer and probed his views. "Craziness," she said. "I'm not sure how to look at it."

Pizer looked at her mildly, and repeated what he and his deputies had agreed would be the most appropriate response.

"You look at it as it's the law," he said.


Monday, May 17, 2004

Quiet Progress 

In what I hope is a sign that the roar and fury that has marked the six months between the release of the Goodridge decision and its enactment, the first day of legal, state-supported issuance of marriage licenses to gay couples is moving along peacefully, with little protest and diminishing news coverage. Not that I think the day is not newsworthy - I was glad to see so much about it on the news last night and this morning. But in contrast to the dire predictions made as to what would happen if this day were to come into being, the reality has been a day of import but nothing out of the ordinary, really. Couples wait in line, speak with clerks, fill out forms, pay their fees and either go home to wait a few days before picking up their licenses or head to court to wait in line, speak with clerks, fill out forms, pay their fees, and hopefully get waivers. In the end it's just people who love each other, doing what many of their friends and families have been able to do their whole lives - pledge in front of the community to love and support each other, and in turn receive acknowledgement from the community of this commitment.

After the initial rush of coverage of the first couples to receive licenses, then announcements of the first marriage ceremonies having been performed, there really hasn't been much of note. The news services are all running the same stories they were running this morning, and the topic isn't even on the Yahoo! headlines at this point, with several hours left to the business day. I hope this quiet beginning will mark the rapid approach of the day that it will no longer be "gay marriage," but just marriage.


Friday, May 14, 2004

Know Your Constitution 

There have been a number of situation recently in which the ACLU was called upon to protect students' rights from possibly unlawful restrictions by their school officials. There was Jarred Gamwell, the Queer Guy for Hunt High who had his campaign posters taken down; the Hillcrest High students in Salt Lake City who were suspended for wearing Dept. of Public Health funded anti-smoking shirts which stated "Queers Kick Ash"; the students at Pinelands Regional High in Little Egg Harbor, NJ, who were suspended for wearing a variety of anti-discrimination shirts that asked "If I were gay/hispanic/black/asian would you still be friends with me?"; and a number of same-sex prom date issues.

The Uncivil Litigator has posted this post in which he discusses several of these cases, and the apparent lack of familiarity with the U.S. Constitution among some school administrators, and the American public as a whole. I particularly enjoyed his inclusion in the post of Bay City Central High student Timothy Gies, whose principal had issued some sort of punishment for his wearing a t-shirt with the anarchy symbol:

"To defend himself, Timothy brought actual copies of the U.S. Supreme Court decision in Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969) and Barber v. Dearborn Schools, 286 F.Supp.2d 847 (E.D.Mich. 2003) to show Mr. Charles. Mr. Charles responded to these citations by telling Tim and his mother that school board policy takes precedence over the Constitution."

The Uncivil Litigator wraps up with an educational retelling of a conversation he had with a counseling center administrator who refused to turn over a patient's records despite having the patient's permission as well as a federal subpoena, arguing that it was against her company's policy to do so. Informative and entertaining reading.


The Fight Goes On 

Yesterday US District Judge Joseph Tauro rejected the request for a temporary restraining order to block the start of gay marriages. He stated that:

Granting a stay of the Supreme Judicial Court's ruling "would be to deprive that court of its authority and obligation to consider and resolve, with finality, Massachusetts constitutional issues," Tauro wrote.

That court "has the authority to interpret, and reinterpret, if necessary, the term marriage as it appears in the Massachusetts Constitution," Tauro wrote.

Attorney Matthew Staver, who argued in court for the TRO, is appealing the decision and is confident that the 1st Circuit Court of Appeals and if necessary the Supreme Court will hear the case before Monday, when Goodridge goes into effect. The Appellate Court has already agreed to expedite the case, and a decision is expected today.

In other news, Rhode Island Attorney General Patrick Lynch is expected to issue an opinion on Monday interpreting his state's marriage laws in relation to same-sex marriage in Massachusetts, at the request of a Rhode Island couple who are planning to marry in Massachusetts.

Opponents to gay marriage are determined to fight on, and continue to predict dire consequences once legal recognition begins. State Representative Phillip Travis (D-Rehoboth), a constitutional amendment sponsor, had this to say:

"You can call it marriage, but in the natural world, in the Christian world, marriage is the union of one man and one woman," Travis said. "I wish them well, but it's a collision course with nature, and when you challenge nature, nature snaps back at you. . . . Nature will always win out."

Oddly enough, I find myself agreeing with the words of Ron Crews (one of the leaders of the gay marriage opposition), although not his intended meaning, about what is to come in the years ahead:

"There will be an awakening in this country that says, enough is enough," Crews said. "That may take some decades, but we didn't get into this situation overnight, and we're not going to get out of it overnight."

I absolutely agree, but I feel the awakening has already started and is not a movement toward hatred and divisiveness, but a continuing movement toward equality.


Wednesday, May 12, 2004

Courtroom News 

I try to put up at least one post per day, and have been trying to address a variety of issues of interest. But my goodness it's getting hard to find anything but news related to marriage! Hopefully the frenzy will die down after Monday, and we can all get attend to the many other issues in the world.

A couple of articles of note that I found involve two criminal cases, in which the sexual orientation of an involved party had an impact.

The Glasgow Evening Times reports that in 1989, Stuart Glair was convicted of murder. Glair has insisted on his innocence for 15 years. Yesterday the main witness in the case, 40-year-old Allan Gillon admitted to Appeals Judges that he had lied about seeing the defendant leaving the scene of the crime. He claims that the police showed him pictures of Glair and repeatedly insisted to him that this is the man Gillon saw, and threatened to out him to his parents and employer if he did not identify Glair as the murderer. He stated that he only picked Glair from the lineup because police had shown him the picture again just before going in, and that the police continued their threats all the way through the trial. The Appeals court is expected to continue hearing evidence for the next four days.

In a sign of changing times, Philadelphia's NBC affiliate NBC10 that a man who was facing a variety of sexual assault charges against two teenage enrolled in his martial arts school, but who was found not guilty of the more serious charges largely on the basis of his being gay, was lying. It has come to light that his female business partner who testified that Lee Gary Glazer had no interest in the girls because he is gay, is actually involved with the instructor herself. Several other women have come forth to attest to his heterosexuality as well. Now Glazer and Kim Keller (the business partner) are facing perjury and conspiracy charges. The district attorney also wants Glazer's attorney, Stephen Jarrett, disqualified from the case. They believe he played a role in the deceptive defense.


GLB and Online Political News 

Witeck-Combs Communications has just released the results of a survey (conducted by Harris Interactive)that compared internet usage by GLB individuals with non-GLB individuals (i.e. gays v. straights). The full results and summary can be found here. What is being highlighted in the press release is that GLB (they mention transgender once, but seem to have left them out of the study in general) people use the internet more than heterosexuals when it comes to seeking out political news (16% v. 6%). I know I get all my news online (or on NPR).

Hopefully this blog will add to the information pool.

They also pointed out that GLB respondents use online services more often to make travel arrangments, and are more likely to be influenced by online advertising. I have a feeling this marketing information was more the real goal of the study.


Tuesday, May 11, 2004

LGBT Issues Info Site 

I've just found another site that appears to have lots of information relating to GLBT legal issues. The Lesbian/Gay Rights Lobby of Texas has a stated goal of working "toward the elimination of social, legal, and economic discrimination based on sexual orientation and gender identity through lobbying, education, and research directed toward the Texas Legislature and other state governmental agencies."

While they have a focus on Texas issues, they also have news listings and in depth issue analysis of many topics from other states as well as the national and global scenes. An example is their "Courts and Criminal Justice" issues page, which has a listing of news items and press releases related to GLBT concerns in the criminal justice system. There are other issues pages relating to Education, Employment, Parity in Publich Health, and many other topics.


Monday, May 10, 2004

Potential VP Candidates on GLBT Issues 

The National Gay and Lesbian Task Forc (NGLTF) has released an analysis of the six most likely Democratic Vice-Presidential nominees and their positions on GLBT issues. The full report can be found here, while a grid summary can be found here.

The six individuals in the analysis are John Edwards, Richard Gephardt, Bob Graham, Sam Nunn, Bill Richardson and Tom Vilsack.


More Goodridge Activity 

The SJC has denied the motion to vacate Goodridge. The motion was based on the theory that the SJC lacked subject matter jurisdiction to hear the case. The SJC stated that the theory was erroneous, that the motion was untimely, and that the arguments had already been presented and rejected.

I've not been able to locate the text of the opinion, but I'll update this post when one is available.

Apparently Ray Flynn has also filed a motion similar to the one just denied.

UPDATED: Here is GLAD's posted copy of the decision to deny the motion to vacate. The decision is short and to the point.


Friday, May 07, 2004

Poseurs may be creating tougher attitude to legitimate gay refugee claims in Canada 

The article from the Toronto Globe and Mail of 25 April 2004 gives statistics on refugee claims in Canada from several countries where the claimant asserts that refuge is needed from danger in the origin country. Some spokespersons for gay and lesbian groups are voicing concern that individuals may be claiming homosexual status in order to receive protection as refugees. The Canadian immigration and refugee board does look at each case, and has granted refugee status in some situations where the origin country is not uniformly hostile, although it is far more difficult in such cases. Mexico, for example, has a significant out-gay population and Pride parades, in contrast to some Muslim countries where homosexuals face death by stoning.


Interesting Reading re: Goodridge 

GLAD (Gay and Lesbian Advocates and Defenders) has posted on their website several of the relevant court documents from the two recent attempts to block Goodridge. The documents provide insight into the source and range of judicial authority, procedural issues, standing of parties and other constitutional and related legal issues.

First was a petition to extend the stay until such time as a constitutional amendment can be put on the ballot. This petition was denied. The petition, GLAD's opposition memo and the decision denying the petition are posted.

The second is the pending motion to vacate on the basis that the SJC was without subject matter jurisdiction in the case. GLAD has posted the motion, GLAD's opposition memo and the Attorney General's opposition amicus brief.


Canada Immigration and Refugee Board 

The Advocate today reports that the Canadian Immigration and Refugee Board has denied an asylum request by a gay Mexican man, on the grounds that he is not "visibly effeminate" and therefore would not be subject to persecution in Mexico.

Fernando Enrique Rivera worked as a statistician with the Puerto Vallarta police force, and says a coworker there was fired when it was revealed that she was a lesbian. Rivera states he left Mexico for Canada four years ago after being repeatedly subjected to police extortion.

It seems ironic that Canada acknowledges a persecutory atmosphere, but will only allow escape for those who adhere to stereotypical behaviors and appearance. Is the atmosphere better for individuals who manage to function by hiding their identities? Isn't the fact that a person has to hide who they are in fear of the resulting consequences indicative of persecution?


Sunday, May 02, 2004

Menino May Defy Romney 

According to this report on Boston.com today, Boston's Mayor Menino has city attorneys looking for a way Boston can legally justify ignoring Governor Romney's instructions that town and city clerks must check for Massachusetts residency when gay couples apply for a marriage license. Menino reasons that since Massachusetts never required proof of residency from straight couples, requiring such proof from gay couples could open the city up to discrimination lawsuits. From the article:

Menino said he views May 17 as an opportunity to highlight the fact that Boston is an inclusive and friendly city.

"I think it's important that we treat people with respect and dignity," the mayor said. "We want the city to work for all of our people, not just for some of the people."

For anyone planning on heading to Boston: the City Registrar's office will open at 9 am as usual, but the city may allow the line to start forming at 6:30. Couples will be given numbers in the order they arrive, but the city estimates it can handle 200 license issuances per day, so anyone given a number above 200 will be advised to return the following day. The city is also printing 3,000 brochures to offer congratulations and information on the application process, how to obtain a waiver from the 3-day waiting period, how to contact a justice of the peace, and locations of city and town halls outside of Boston as an alternative if the crowds in town are very large.


Saturday, May 01, 2004

CLE Course on Gay and Lesbian Marriage Issues 

The Boston Bar Association's Family Law Section is sponsoring a Continuing Legal Education program, Legal Issues Surrounding Marriage for Gay and Lesbian Couples, on Tuesday, May 25, 2004. The official description:

"No matter what your practice area, this CLE will give you the up-to-date and practical information in order to advise clients who will be affected by the changes in Massachusetts and elsewhere concerning marriage of gay and lesbian couples. Learn how the law has and will change. In addition, gain insight into the changes in your area of practice at 3 break-out sessions for: Labor and Employment; Estate Planning; and Family Law."


Hon. Margaret H. Marshall on Equality 

The Honorable Margaret H. Marshall, Chief Justice of the Massachusetts Supreme Judicial Court, has a Law Day opinion column in today's Boston Globe (via Amy Hunt). She provides an overview of the legal history of Massachusetts and the nation in the centuries leading up to the Brown v. Board of Education decision, which celebrates its 50th anniversary this month. She follow this history with a call to continue the fight for equality, in Massachusetts, the United States, and the world. From her column:

"This year, Law Day -- May 1, 2004 -- celebrates the 50th anniversary of Brown. It is a time to reflect how much we, as Massachusetts residents and as Americans, have done to further the dream of true equality under law. And on how much hard work still remains. Many barriers to equal justice persist, in society at large and in our courts. We must work together to encourage young people from all walks of life to enter government, law, and other professions so that these institutions better reflect the vibrant diversity of our communities. We need more lawyers willing and able to represent the legal needs of our least fortunate men, women, and children. We need user-friendly courts for the growing number of self-represented litigants.

In the long run I know we will succeed, because the constitutional promise of fair and equal justice for all demands nothing less."

Thank you, Justice Marshall, for your continued leadership and inspiration on this ongoing journey.


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