Thursday, November 8, 2007

The Marriage Ban Harms Real People, Benefit #1

For those who doubt that marriage confers important legal and financial benefits upon those who enter into it, I thought it would be helpful to create a new Fannie's Room series showing some of the specific benefits we're talking about and how they affect real people.

Anti-gay advocates talk about "homosexuals," the "homosexual agenda," and (my personal fave) "homosexualists" as though gay people are a group of non-human beings who do not have many of the same Very Important concerns in life that they do. In many of their heads, we are a nonmonogamous, STD-infected, drug- and alcohol-addicted bunch of pedophiles who want to re-definine marriage to fit this stereotyped "depraved" lifestyle.

They refuse to see us as the mothers, fathers, sons, daughters, sisters, brothers, husbands, wives, neighbors, nurses, social workers, lawyers, teachers, etc that we, like they, are. Like a self-absorved bride planning her wedding, they think that their families are The Most Important Families To Exist in The History of the World. That their opposite-sex spouses are more loved than our same-sex ones are because they have different genitals. That their babies are more precious, more special, and more deserving of married parents than ours because (some of them) had their babies the old-fashioned way. (On purpose or accident. Not that it matters.) That their elderly are more deserving of spousal social security benefits than are ours, because they raised babies together as man and wife. (Well some of them did. Not that it matters).

See, anti-gay advocates don't really get how the marriage ban harms our families. And yes, our families are families too. It harms our families in a real, tangible way- unlike the abstract harm to them that will supposedly, and questionably, spring forth once marriage is "redefined."

So, let's throw theory in the trash can and talk about real life, and what's really happening right now.

As an attorney who helps same-sex couples navigate and create legal protections for their marriages and families, I see how much easier estate planning is for legally married couples than it is for same-sex couples. Just because a state recognizes a marriage, a couple automatically receives benefits, protections, and a status that non-legally married couples have to create on their own (with the help of a paid attorney). And even then, it is legally impossible to create every benefit and privilege that married couples receive.

[Side rant: Same-sex couples should receive a tax break for the benefits they do not receive but pay for others to receive. And, they should receive a tax deduction for having to pay an attorney to help them create legal protections for their families that married couples automatically receive.]

Because what it comes down to is this: Gay people exist. Gay people are always going to exist. And many gay people are always going to form partnerships and, consequently, families.

As long as the government is in the business of doling out benefits to some kinds of two-person partnerships and denying them to others, married same-sex couples will have to continue to perform legal acrobatics just to receive some of the same benefits that opposite-sex couples can receive.

First topic on my (gay) agenda is: Advance Directives.

(As a side note, nothing on my blog consists of legal advice or establishes an attorney-client relationship. Yeah yeah yeah, most of you know this. But some people may not, so I have to say it).

I know. How boring do Advance Directives sound? But keep reading, because they are important for everyone. Especially for same-sex couples and individuals.

In general, Advance Directive are written statements you make and sign about how you want your medical decisions to be made in the future. Particularly, how oyu want your decisions made if and when you are no longer able to make these decisions for yourself.

One of the most important Advance Directives you can make is a health care power of attorney (POA). In a health care POA you designate someone to make health care decisions for you in case you aren't able to make them for yourself (like if you are in a coma, if you come down with some sort of mental disability as you age, or if you have some other condition). Married people generally designate their spouse. Same-sex persons in long-term relationships generally designate their partner.

Many people do not have Advance Directives. Nor do many people even know what these are. I believe it is the responsibility of the legal profession to educate people about these important documents and help people prepare them.

Okay, so how does this all relate to gay people?

Well, if you have not prepared a health care POA and you fall ill and are unable to make your own health care decisions, state law (in my state) nominates a health care "surrogate" to make these decisions for you.

Who will the surrogate be?

In Illinois, a health care surrogate will be one of the following persons (in order of priority): guardian of the person, spouse, any adult child(ren), either parent, any adult brother or sister, any adult grandchild(ren), a close friend, or guardian of the estate.

You can see how if you are a gay person, the person appointed to make your important health care decisions may not be who you want it to be. You can see how your same-sex partner isn't even on the list. You can see how your relationship is denied because the closest category your same-sex partner fits into is "close friend."

Everyone, I hope, can see how this scenario is problematic.

You can see how it is particularly problematic for gay people who may not be accepted by their families, yet because of that blood relation a family member is given precedence to automatically make decisions over a same-sex partner.

Most importantly, everyone can see how if you are a legal spouse, you are automatically your spouse's surrogate. Yet if you are a same-sex partner you have to make sure you (a) know about this law in the first place, (b) hire and pay for an attorney to tell you about this law and prepare a POA for you, or (c) prepare a POA on your own. All so you can circumvent the surrogacy law if you want your partner to make your health care decisions if you are unable to make them for yourself.

Gay people are human beings. We too sometimes get sick. And when we do, we want our lives to be honored enough so that the person closest to us in the world- the person who best knows our wishes- to make important decisions for us.

And I'm still not clear (a) why or how that's a bad thing, (b) why that is selfish, and (c) how that will corrupt the category of all things "family."

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