"They Can Take Care of That with an Attorney"
In this debate, I often hear people say gay couples won't be harmed by the ban because they can secure legal protections by hiring an attorney. When I share a real story about a couple that faced being separated during a medical emergency, some people say it's their fault because they should have filled out a legal document.
I'm not the only person working on this campaign who hears this response, so I thought I'd share some of the ways I counter this claim.
1. A civil union or a marriage license makes you a legal next of kin to your partner. From this important status, all sorts of recognition and protections spring, both from private institutions (like hospitals or employers) and the government. Legal arrangements can do their best to fill in the gaps so that if your partner dies and your name is not on the lease, you won't be kicked out, but there is no legal document that grants you legal next of kin status. Only civil unions, comprehensive domestic partnership laws, or civil marriage make that happen. The ban takes all of these off the table.
2. No power of attorney or will is as ironclad as this legal next of kin status. So yes, you can make some legal arrangements with the help of an attorney, but even those documents can have less force than being recognized as next of kin or biological relative. Yesterday, I remembered a harrowing case in Maryland where a hospital ignored a gay man's medical directive. From a Lambda Legal press release:
As he was kept in the waiting area of the Shock Trauma Center, [Bill] Flanigan asked staff members to allow him to see Daniel and to confer with Daniel's physicians. They told him only "family" members were allowed to do so, and that "partners" did not qualify.
Flanigan explained he had a Durable Power of Attorney for Health Care Decisions and that he and Daniel were registered as domestic partners (in California). The Shock Trauma Center also had the records of the first hospital to which Daniel was admitted, where Flanigan was recognized as family, having spent the night in a chair by Daniel's bed.
The Shock Trauma Center acted quite differently. For four hours, personnel kept Flanigan away from Daniel and his doctors--meanwhile allowing family members of other patients to visit their loved ones and confer with doctors. Flanigan, on the other hand, was not given the opportunity to make surgeons aware of Daniel's wish not to have life-prolonging measures performed on him, including the insertion of a breathing tube.
After four hours, Daniel's sister and mother arrived from out of town. Only then did the Shock Trauma Center provide information on Daniel's status that had been repeatedly denied to Flanigan, and subsequently allow the entire family, including Flanigan, to see Daniel. By that point, Daniel was no longer conscious, his eyes were taped shut, and the two men never had the chance to say goodbye.
3. Civil unions or marriage extend hundreds of legal protections. Lawyers estimate that legal documents can only take care of approximately one third of such protections. Equality Maryland released a study of how this plays out under that state's law.
4. It can cost thousands of dollars to hire an attorney to take care of legal arrangements. Not everyone has the luxury of being able to do this.
5. Finally, at its heart, this debate is really about one thing: the ability to have the person who is most near and dear to you acknowledged as such. "Legal next of kin" is our society's way of recognizing that your partner is your family. The ban would make that impossible for thousands of families in Wisconsin.