Sunday, September 12, 2010

In the beginning...Kappa Sigma Fraternity, University of Florida, 1974
Andy was my big brother. We lived in my dad's former room in the house.

Why Marriage? Why Now? – Part 2

So, why buy in? Why bother? Why would we want to be like the breeders (to use the cynical, bitchy term with which we queers sometimes respond in kind to homophobic epithets)? Why not settle for domestic partner benefits and just be done with it? Why do we need to be married?

Looking back, there were two major turning points that ultimately changed my mind . In December 2008, the New Jersey Civil Union Review Commission reported back to the state legislature that its domestic partnership law failed to provide the same protections as marriage. The commission noted that civil unions, as they were called in New Jersey, were not widely recognized because they were not marriages. That was particularly true outside the state of New Jersey. Even within the state, numerous employers refused to recognize civil union status for a variety of purposes including partner benefits and visitation rights in hospitals.

In my recent reading of the case law coming out of California’s Proposition 8 litigation, a theme that has been well developed by California courts is the problem with the separate but equal nature of domestic partnerships. While many would suggest that domestic partnerships are the result of largesse of well-intentioned straight people wanting to do something nice for “those people,” in fact the real purpose of domestic partnerships, as the California Supreme Court recognized, has ultimately been to avoid providing equality in marriage rights. It is effectually the protection of a privilege, not a magnanimous extension of benefits to those denied them.

Ultimately, separate but equal is no less pernicious in this context than it was in its former incarnation in racial segregation laws. As in the Jim Crow South, disparity in legal status clearly insures separation, but it also effectively insures that equality will never be the result.

That reality came into complete focus in the second event which proved the deciding factor in our decision to marry. In February 2007, Lisa Pond and her life partner of 18 years, Janice Langbehn, were preparing to launch off on a cruise from the port in Miami when Pond suffered a brain aneurysm , collapsed and was rushed to an emergency room at Miami Jackson Hospital. Pond’s life partner and their three adopted children followed in a taxi to the hospital. Pond was semiconscious but responsive upon arrival.

Upon their arrival, Langbehn and the couple’s children were denied visitation of Pond by the hospital clerk. That denial continued even when the required legal and medical forms the couple had previously executed were faxed to the hospital, Langbehn was subsequently told by the hospital social worker that she was in an “anti-gay city and state” and thus had no right to visitation. She was also advised that she would be unable to procure a court order to require visitation because it was a weekend.

For eight hours Langbehn and the children waited in the waiting room until they were finally permitted in to see Pond. By then she had lapsed into a coma, having been transferred from the emergency room to the intensive care of the hospital without notice. It was not until Pond’s sister arrived, eight hours after Pond’s admission, that Langbehn and the children were allowed to visit her just before she died and then only because the sister gave her permission. Pond never regained consciousness.

After the death of her life partner, Langbehn attempted to obtain Pond’s death certificate in order to get life insurance and Social Security benefits for her children. She was denied both by the state of Florida and the Dade County Medical Examiner. Not surprisingly, Langbehn suffered mental distress including exacerbation of multiple sclerosis symptoms requiring hospitalization not long after these events.

However, even in light of the egregious treatment she had endured surrounding the death of her partner, her suit for negligence against Miami Jackson in federal district court was dismissed without trial. The judge, a former federal prosecutor, ruled that the hospital had no duty to allow a domestic partner to be with her life partner as she died even as some hospitals do so. The court took no notice of the fact that married spouses and their children streamed down Jackson’s halls to be at the bedsides of their loved ones even as Langbehn and the children sat in the waiting room while her partner and the children’s mother died. The judge ruled that two brief medical consultations with Langbehn (once the power of attorney arrived) in the waiting room over the eight hour period during which Pond lapsed into a coma and died were all the family was entitled to by any hospital.

I became aware of this event shortly after the New Jersey commission had released its report. The suit by Langbehn and the couple’s children was dismissed Sept. 28, 2009, at which point the event which gave rise to the lawsuit became national news. As I read the stories about Lisa Pond and Janice Langbehn, I found myself shaking with fear. I also found myself white hot with anger.

Part of the fear I experienced was recognizing that either Andy or I could have been in the same position as Langbehn. What are the chances that the self-appointed moral guardians at the desks of hospitals here in Orlando or wherever we might be would not pull exactly the same stunt as the clerk and social worker in Miami? And what are the chances that the more conservative and religious members of our families would agree to our presence at the bedside of our dying partner? For true believers, blind faith tends to blind its adherents to the humanity of the other even in the face of impending death.

The simple reality is that in this and many other situations, domestic partnerships and civil unions simply cannot provide the kind of protection gay couples need to deal with the centuries of homophobia and institutionalized heterosexism we are likely to encounter in venues ranging from hospitals to insurance companies to the courts. Separate simply cannot not be equal or even adequate as the U.S. Supreme Court recognized in Brown v. the Board in 1954. Indeed, the very fact of its separation, with the hierarchy of value that almost inevitably attends any dualism, renders it incapable of insuring the dignity and respect to which every loving relationship of consenting adults is entitled.

That is the point I began to come to grips with my anger. As long as hospitals and employers are not required by law to treat same sex couples the same way they treat any other couple, most of them simply won’t. The potential for more Janice Langbehns is unlimited. No human being deserves this kind of treatment. As a colleague of mine recently said about racial profiling, it’s time to turn this around. Inaction in the face of injustice is complicity in that injustice.

California days - my 40th birthday, San Jose, 1993

And so about a year ago, Andy and I began to talk about getting married. In part, we sought to afford our own relationship some degree of protection it is currently lacking. Our marriage will be honored in a number of states without DOMAs and when DOMA is ultimately rejected by the courts, in all American jurisdictions. And I believe it is more likely to be taken seriously in any confrontation than a domestic partnership, much less relying on holders of power and privilege to simply recognize 36 years of life together as worthy of respect.

But, in a broader sense, we also wanted to do something about an unjust situation that is simply untenable for ourselves and many couples like us. We began to discuss taking part in a class action suit to challenge DOMA and other discriminatory laws such as the recent constitutional amendment here in Florida (passed by 60% + margin the same night as Proposition 8 in California). If we are to qualify as plaintiffs in a class action, we would have to have a case and controversy for standing.

It’s rather odd to think of marriage as a political act, perhaps even an act of social defiance if not civil disobedience. Of course, any social institution has political overtones. When one lives into a dominant paradigm those overtones serve to affirm that paradigm, a conservative praxis. When one challenges the dominant paradigm, they draw it into question, a destabilizing praxis. But entering into the dominant paradigm with the intention of changing that paradigm is a bit novel, to say the least.

Once we decided that marriage was the right initial step, we began to plan where we would go and how we would accomplish getting married. Though we both love California after our four years of living there, a very contentious initiative election (Proposition 8) in 2008 took away the possibility of getting married in the Golden State anytime soon. When I saw the news about the District of Columbia changing its law to begin marrying same sex couples, (which itself survived a judicial challenge two weeks before we were to arrive there to get married), I proposed a trip to Washington to Andy and he agreed.

We were going to be married. Gulp.


The Rev. Harry Scott Coverston, J.D., Ph.D.
Member, Florida Bar (inactive status)
Priest, Episcopal Church (Dio. of El Camino Real, CA)
Instructor: Humanities, Religion, Philosophy of Law
University of Central Florida, Orlando

If the unexamined life is not worth living, surely an unexamined belief system, be it religious or political, is not worth holding.

Most things of value do not lend themselves to production in sound bytes.


1 comment:

Anonymous said...

Thanks for the accurate use of Lisa and my story. Your argument for marriage is one of the best I have encountered