The Lessons of the Texas Divorce Appeal

The disturbing news from Texas is that the Attorney General has decided to challenge a local court’s right to grant divorces to several same-sex couples that married out of state, and now want to end their marriages. To me, the only thing worse than not being able to marry is not being able to get divorced — both because it ties you to someone you want to be free of, and also, it probably prevents you from re-marrying ever again. It seems especially cruel for those who campaign against marriage equality to try to prevent same-sex couples who want to exit their marriages!

As for the Texas cases, it should be easy for the courts to say that the marriages can be “dissolved” or annulled — without stepping into uncharted legal territories. But beyond the politics and moral dramas of these cases, what they point to most significantly is the need for greater legal education for lesbians and gay men about the nuances and complexities of the current legal landscape. As we explain in our book, being married and living in a non-recognition state can create terrible problems for the couple, in the happy times or the hard times. For the most part your state won’t grant you benefits while you are together — so the marriage won’t give you the financial and legal benefits that marriage is supposed to provide. And, if you should part ways, your state won’t make it easy for you to separate legally or financially, and so you probably won’t be entitled to any of the “marital property” benefits that straight couples enjoy.

That is why the suggestions set forth in our book are so important. If you want the symbolic recognition of a government-issued “partnership,” the California domestic partnership registry allows a California dissolution even if you live outside of California. Then, for the practical concerns, you can sign powers of attorney, a cohabitation agreement, and other legal documents, to give you the real and substantial benefits of legal recognition — even if you live in a non-recognition state.
Fighting for civil rights and marriage equality is the right thing to do — but creating legal difficulties for you and your partner should things go awry isn’t helpful to anyone!

The Importance of Obama’s Order

President Obama has recently issued an executive order that requires that all hospitals that accept Medicare and Medicaid (which includes nearly every U.S. hospital) must accommodate a patient’s instructions to allow same-sex partners visit them in the hospital. While patients with health care powers of attorney (or medical directives as they are called in some states) already have this right legally, such instructions are not always followed, and many gay and lesbian pateints haven’t filled out such directives. This order should insure that all of those patients will have their wishes honored.

Even if the number of obstructionist hospitals may be small in number, the Executive Order is important in several respects. First, it applies “top down” pressure on those hospitals to do the right thing in the future, which should lead to greater compliance with these legal requirements. Second, it brings the human dimensions of this issue to the forefront — especially because of the personal call that President Obama made to the woman who was denied access to her dying partner in a Florida hospital. Third, it demonstrates that the President can indeed make change and help our community, in small ways and big ways, without waiting for Congress or the Supreme Court to take a stand. This is important in terms of political symbolism, far beyond the specifics of this one narrow ruling.

Hopefully there will be minimal backlash, and that this will open the door for broader change and more enlightened social policy from this administration!

One should still fill out the legal documents necessary to empower one’s partner to make medical decisions and have the right to hospital visitation — but hopefully, if this hasn’t been done, the Executive Order will provide the protection we all deserve.