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Friday, August 26, 2005

The Politics of Marriage 

Yesterday Massachusett's House Speaker Sal DiMasi predicted that the proposed amendment against marriage equality will not pass when it comes to a vote at the constitutional convention in September. A number of reasons contribute to this prediction, including last year's election results, in which no supporters of marriage equality lost their seats, some of the anti-marriage incumbents lost, and some new supporters won. Then there's the proposed ballot initiative, which many marriage foes prefer since it does not establish civil unions as an alternative to marriage. Finally, there's the fact that same-sex couples have been getting married in the state for over a year now, and the sky has yet to fall. Some legislators have commented recently that they've changed their minds after seeing so many couples enter into marriage and create a more stable union, so to speak.

The whole machination of this amendment is mind-boggling, and has created strange alliances. The amendment is known as the Travaglini-Lees amendment, as it was fashioned by Senate President Robert Travaglini and Senate minority leader Brian Lees. The amendment bars same sex marriage but authorizes civil unions. This particular amendment passed largely due to the votes of many marriage equality supporters who voted for this amendment rather than have an even more restrictive one pass, which would not recognize civil unions (similar to the ballot initiative currently being reviewed by the Attorney General). The general thinking at the time it passed was that it probably wouldn't pass a second time around, since no one really likes it. People who support marriage equality don't like it because it would take away the marriage right, while those who don't support marriage equality don't like it because they in general also don't support civil unions or any other form of recognition of gay relationships.

Sure enough, now that this ballot initiative has been introduced, many of the legislative supporters of the Travaglini amendment have expressed their intent to abandon ship, to give their support to the more hard line citizen's petition.

But not so fast! The ballot initiative hasn't yet been given the yay or nay by Attorney General Tom Reilly. The deadline for decision is a week before the constitutional convention. This thing's a mixed bag. On the one hand, many are urging him to reject it as unconstitutional (see yesterday's post). And it would be good not to have this backwards-moving potential amendment floating around, just biding its time before going to the ballot to have the electorate vote on whether to discriminate against a minority portion of the population. On the other hand, if Reilly rejects it, many of the legislative supporters of the initiative have stated they'll likely support the amendment, as it's the only thing they'll have left. Representative Philip Travis (an ardent foe of marriage for same sex couples) went so far as to say, "[It] will have to be supported, because there will be nothing to protect marriage." From where I sit, the only marriages being threatened are ones like mine, and he's one of the threats.

So I guess the moral is this - don't be comforted by Speaker DiMasi's predictions. Get out there in the next few weeks and make your voices heard by your representatives. And be sure your voice is a voice of reason, justice and equality. Let the other side take the role of shrill, angry, unreasonable, hostile and illogical protest. Let them be dismissed, not us.

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Thursday, August 25, 2005

Marriage: Aruba v. Holland 

Aruba's Superior Court has ordered that the government must register and recognize the Dutch marriage certificate of lesbian couple Charlene and Esther Oduber-Lamers. Charlene is a citizen of Holland, while Esther is a citizen of Aruba. Both countries are autonomous republics but part of the Kingdom of the Netherlands (along with the Dutch Antilles). All members of the Kingdom must recognize each other's legal documents, but Aruba is refusing to do so, stating that it would violate Aruba's civil code and morals.

Aruba's government plans its final appeal (this decision was after appeal from a similar decision at the lower court), which is to the Supreme Court of Holland. Meanwhile, the couple has relocated to Holland after being harrassed for trying to register their marriage. Also, Aruba's immigration laws only allow Esther to remain on the island for 6-months per year, and do not allow her to receive health benefits from Charlene's government employer, without their marriage being recognized. She would also likely not be allowed custody of her 2-year-old biological child, who was born to Esther from an egg harvested from Charlene (see this post for related story in California).

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Mass. Constitutional Convention Scheduled 

The second Constitutional Convention to consider the proposed MA constitutional amendment to bar marriage equality (while instituting civil unions for gay couples) has been scheduled to commence on September 14. The proposed amendment passed last year after an intensely debated and highly emotional convention which drew throngs of people who voiced their opinions on both sides of the issue. The exact same amendment must pass again at this convention if it is to proceed to the ballot in November 2006.

By that point, marriage equality will have been a fact of life in Massachusetts for two and a half years (plus the 6 months between the decision in Goodridge in November 2003 and its going into effect in May 2004).

In other news, the September 7 deadline is looming for state Attorney General (and gubernatorial hopeful) Tom Reilly to certify or reject a citizen-proposed ballot initiative that would bar marriage equality with no allowance for civil unions. If he certifies the question, supporters would need to collect 66,000 petition signatures, then pass two consecutive legislative sessions (as do legislatively introduced amendments) before going to the ballot in November 2008.

Many argue the ballot initiative is barred by the state constitution as it would overturn a judicial decision, and because of its similarity to another initiative which failed in 2002 (an initiative cannot be certified if it is "substantially the same" as any other certified in the previous two election cycles).

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Tuesday, August 23, 2005

California: Equal Parental Rights 

Summer's over, school's begun. Time to start posting more frequently. Serendipity struck this morning, when on my way to work I heard on NPR that yesterday the California Supreme Court ruled on three cases involving separated lesbian couples and their parental rights. I posted on one of these cases last year, here and here.

In that case (K.M v. E.G.), the California appeals court had affirmed the lower court decision that the biological mother who had had her eggs harvested for fertilization and implantation in her partner, who then gave birth to twins, had waived her parental rights as part of the egg harvesting process and therefore had no parental rights to her children, to whom she was not only biologically related but had parented for years prior to the couple's separation.

The California Supreme Court yesterday overturned that decision. The three decisions add up to an equalization of the law between heterosexual and lesbian couples when it comes to parental rights and reproductive technology (these cases all involved lesbian couples in which one partner became pregnant through a joint decision - unknown if or how the rulings might be used in cases involving gay men who coparent). Basically, the court held that when a lesbian couple decides jointly to have a child, their later dissolution of their relationship will not dissolve any parental rights or responsibilities of either partner, whether or not the couple had registered under California's domestic partner registry system.

The three cases were K.M. v. E.G. (above. Case summary. Opinion.), Elisa B. v. Emily B. (the nonbiological ex must pay child support. Case summary. Opinion.) and Kristine H. v. Lisa R. (the ex may not invalidate a previously made declaration of parental rights. Case summary. Opinion.).
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UPDATE (8:35): I attended the national convention of the American Constitution Society at the end of July. The video of one of the panels, "Sexual Orientation and the Battles over Adoption, Custody and Foster Care," is available at the ACS National website. It was a lively panel that included Judge Rosemary Barkett (dissented in the 11th Cir. Court of Appeals decision upholding Florida's ban on adoption by gay or lesbian individuals or couples), Matthew Coles of the ACLU's Lesbian and Gay Rights Project, Prof. Lynn Wardle of Brigham Young University Law School , Prof. Kenji Yoshino of Yale Law School and moderator Prof. Suzanne Goldberg of Rutgers School of Law - Newark. Check out the video if you have some time available.
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UPDATE (8/25/05): Interesting article on these decisions and how anti-gay groups are now arguing against "the best interests of the children."

Also, a similar case was argued before the Supreme Court of Washington earlier this year, but the decision has not yet come down. The case is In re parentage of L.B.; Sue Ellen (Mian) Carvin v. Page Britain, and is an appeal from 121 Wash.App. 460. In this case the nonbiological mother of a child conceived by mutual agreement and raised together was denied visitation or joint custody after the couple's breakup. The lower court dismissed her action seeking establishment of parentage, and the appeals court reversed and remanded in that she can petition for shared parentage or visitation, and also for visitation under a third-party statute. HRC has a concise rundown of Washington's laws guiding the courts in custody decisions.

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