"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.


At 10:24 AM, Anonymous Anonymous said...

Also, as an attorney I point out to people that no attorney can create documents providing legal protections to children. Given the fact that there are thousands of children in Wisconsin in thissituation, why would we want to permanently harm these children by refusing to provide simple protections that are granted every other child?

At 10:25 AM, Blogger Communitygal said...

And, of course, there are hundreds of things you can ONLY get through law--neither love nor money can get them for you--no matter how much money you spend on lawyers and legal documents, they just are unavailable.

These things include social security survivor's benefits, the ability to adopt your partner's legal/biological child (called second parent adoption), the right to inherit from your partner or your "second parent" without taxation, the ability to refuse to testify against your partner in court (called spousal privilege) . . . the list goes on, but you get the gist.

At 10:54 AM, Anonymous Anonymous said...

Even if that theory were valid today (and, as the posting points out, it isn't), the proposed amendment would put those contractual rights in jeopardy. After all, the purpose of all those documents is to try to establish a "legal status" "substantially similar" to marriage. Under the proposed amendment the argument can be made that such documents should "not be ... recognized."

At 11:40 AM, Blogger David Schowengerdt said...

Those reponses from our opponents usually boil down to one thing - they don't think we're worthy of those protections and if we can't get them or run into difficulties, well then tough.

Reading that story about the Maryland couple made me sick. It that was me, I think I would have pushed my way through and forced them to arrest me.

At 11:46 AM, Anonymous Anonymous said...

Exactly. It is entirely possible that we will see a roll-back of the very few rights people can obtain. I try to tell people that a Yes vote won't simply "stop gay marriage," but will go further to change the law to remove protections such as guardianships, powers of attorney, and so on. Frankly, I think passage of such an amendment could cause people to go so far as to challenge wills. Many wills in domestic partnerships state in varying degrees; I want my partner to have everything as if he/she was my lawful husband or wife. Others simply leave everything in a manner that mimics the rights of married couples (of course, they get hit with massive taxes that married people don't get).

we must characterize a Yes for as a Yes to Hurt Families.

At 12:27 PM, Blogger Joshua Freker said...

Thanks for your comments everyone...I actually meant to list a separate point about the way the ban could also be used to challenge existing legal arrangements, but I forgot. In fact, this is why a number of organizations, like the Wisconsin Medical Society and the Coalition of Wisconsin Aging Groups, oppose the ban. Thanks for pointing this out, Anon.

At 12:33 PM, Blogger Communitygal said...

Absolutely. I've said this before, but it bears repeating: "a legal status substantially similar to marriage" is not necessarily defined by the bundle of stuff you get from the status. Our adversaries have been arguing in Michigan, Ohio, and elsewhere that this status is defined by the *nature* of the relationship between the two people: over 18, competent to contract, not married to anyone, financially and emotionally intertwined, etc. All the stuff you typically have to be in order to register as domestic partners.

So even if you only "get" one benefit from that relationship, such as bereavement leave or health insurance, our foes will argue that it is the nature of the relationship that is the problem, not the stuff you get from it, and the recognition of the relationship "in this state" (whether by a public entity or a private one) would be prohibited under the ban.

Would that argument win in court? Your guess is as good as mine. Is it a good idea to put it up to a roll of the dice at the precise moment that someone is in the hospital, recently died, being kicked out of their home, etc? NO WAY. We must stop this amendment to prevent mean-spirited people from using it to hurt our families even more than they are hurt under the current system.

At 7:26 PM, Anonymous Mary Sykes said...

Josh, this is such an incredible resource - speaks so brilliantly to the people who downplay the power of the marriage contract. Thank you so much for putting this together.


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