When Legal Recognition MATTERS

[Joie_de_Vivre]

One evening not too many weeks ago, Sarah was having trouble breathing. Typically, one puff from the inhaler and all is well. But that night was different. Sarah couldn’t hold coherent conversation, was having trouble lying down, and labored with every breath. Lindsey tried to assess the situation. After watching Sarah’s symptoms develop and worsen over the course of the evening, Lindsey made the call to drive Sarah to the nearby Emergency Room.
It is times like these when legal recognition matters.
As a couple dealing with chronic health conditions, we are no strangers to navigating various healthcare webs. Health can play up just about anywhere or anytime. Because Sarah has severe asthma and other health problems, we tend towards choosing to see a doctor when we deem it necessary. In dealing with healthcare professionals, we have had significantly more positive experiences when seeing a provider who can recognize our relationship than when seeing one who cannot and will not.
As members of a sacramental Christian tradition, we have no intention of advocating for our church to recognize our relationship as a sacramental marriage. We have no problem with being known simply as “Lindsey and Sarah,” and we enjoy participating in the life of our parish together. A sacramental marriage in our tradition crowns two people as martyrs to one another, laying down their lives for each other in an act of sacrificial love. A sacramental marriage is not about legal name changes, the ability to file taxes together, qualifying for health insurance, gaining access to medical records, coordinating treatment across diverse providers, combining incomes when trying to qualify for a mortgage, and managing end-of-life care. Those functions get housed in the civil (legal) sphere.
Lindsey is often bemused when thinking about how monasteries secure various legal rights that enable them to care for members of their communities. Could you just imagine the scene of an atheist father and a newly-Buddhist mother barging into a Catholic monastery to demand that they alone have the right to plan the funeral of their son who has recently fallen asleep in the Lord? Chaos and madness would ensue. Could you imagine an Orthodox nun tasked to take a very ill member of the community to the hospital only to drop the patient off at registration and have no access to any information about her during her stay? It does not happen that way. Somehow, some way, laws exist in most places to protect the fidelity of the monastic vows and the relationship of each individual sister or brother to the community. …and if those laws do not exist, many Christians rightly call forth “Persecution!”
Society has a lot of automatic systems that just seem to “kick in.” There is a lot of support when parents are trying to make sure that a new baby is appropriately recognized as a member of their family, when monasteries tonsure new members, and when two individuals get married. Along the way, additional benefits accrue–often, without the recipients of the benefits even being aware. A call to one critical agency can set a Rube-Goldberg-type legal machine into action. It’s unlikely that anyone (except maybe some attorneys and the IRS) actually knows the full process by which a newly married couple formally receives all of the 1,000+ legal rights and responsibilities associated with that status.
Many people will argue that marriage or a similar type of legal recognition for same-sex relationships is unnecessary because a same-sex couple can use alternate contractual structures such as securing a Power of Attorney. Both of us know different LGBT couples who have tried to navigate the complex gamut of legal procedures required to use these alternate contractual structures. Several attorneys and multiple thousands of dollars later, they have a piecemeal collection of documents that they hope will safeguard their relationship when legal recognition matters most.
The problem of securing legal protection to care for and provide for loved ones is not unique to LGBT couples. Oftentimes, singles and heterosexual couples who have not yet married face similar problems. One of Sarah’s friends once shared a story in which he was denied bereavement leave from work when his fiance’s mother reposed. His workplace cited that they could not grant him bereavement leave because he was not yet married and had no familial relationship to the reposed. It did not matter that months later, the reposed would have been his mother-in-law. If this event had occurred when he was married, his workplace would have taken him at his word that he needed leave time for his mother-in-law’s funeral. In America, people who are related through blood, adoption, or marriage have a privilege that people who are related by choice do not. (Common law marriages try to bridge the gap in at least some of these instances when a man and a woman share a house for a number of years.)

continued…

 

[Joie_de_Vivre]

When we think about it, we see that many Americans do not have the security of knowing the people they choose to share life with will be legally authorized to be there when their presence matters most. The only exception to this is if the people with whom one chooses to do life happen to be one’s family of origin, one’s (opposite-sex) spouse, or one’s monastic family. Any other relationship is relegated to a second-class status. In a way, it is like those signs that hung over the train station doors. It is discrimination based on one human being’s label for his or her relationship to other human beings: family of origin and family by marriage have access to the full range of rights and privileges, and family of choice often gets stuck with the leftovers. More than a few times, Lindsey has had no choice but to remain silently in waiting rooms with no updates when Sarah has been seriously ill or undergoing a medical procedure. Doctors have actively denied Lindsey the ability to see Sarah in a surgical recovery room and access to any sort of aftercare instructions. Once, when Sarah told a physician, “My partner, Lindsey, is here to take me home afterward,” the physician said, “That doesn’t matter. I asked if you were married and have a spouse here.” That same physician later requested contact information for Sarah’s parents even though Lindsey was less than 15 feet away. Because of various legal mechanisms, lack of a legal title negates any level of relationship that two people have to one another.
Given this reality, we ask: what option does an LGBT couple who do not regard their relationship as a sacramental/religious marriage have for ensuring that they are legally protected? Many Christian denominations have promoted the idea that allowing LGBT people to marry legally will have a detrimental effect on how that particular denomination can articulate an understanding of marriage. Therefore, these denominations assert the importance of limiting the legal definition of marriage to one man and one woman. But for all the concern about protecting the institution of marriage and ensuring that there will be no misunderstanding regarding their doctrines on the religious nature of marriage, there is little to no empathy for the lived experiences of so many LGBT couples when one partner has been denied the basic privilege of caring for the other in times of emergency.
For this reason, we tend to believe that all Christian denominations have a responsibility to define marriage theologically in whatever way they deem appropriate while also working to protect LGBT people from undue discrimination in various social contexts. We do not claim to know the best solution for accomplishing this particular work of justice. But, we find these questions critical, and we are grateful that currently, we live in a place where we have some legal options to ensure that we can care for one another. Not every LGBT couple is so fortunate.

source

What do you think of their experiences and opinions?

 

[jonathan_hili]

An interesting post.

Firstly, I definitely sympathise with a couple in such a position, and there should be legal provisions for individuals in such situations to ensure they are given custodial care by a loved one they delegate, be it an LGBT partner, brother, best friend, and so on.

However, I don’t think it says anything about what marriage is nor argues in favour of the redefinition of marriage. It is primarily a utilitarian argument, which I find weak and which could equally be used to justify other legal changes we would not accept. Furthermore, it fails to understand that marriage is primarily about children, not about caring for adults who love each other. Yes, there should be legal provisions for such incidents, but this is not what marriage is or ever was. Lastly, altering the meaning of marriage based on such an argument should, reasonably, allow marriage to be changed to include polygamy and incestuous unions, for they too would undergo similar situations.

To be honest, I’m continually bemused why the issue of religion is brought into these debates, as if marriage is primarily a religious issue! (Personally, I think it’s used by those in favour of changing the definition of marriage to undermine their opponent’s position - almost like an argumentum ad hominem.)

 

[Joie_de_Vivre]

An interesting post.

Firstly, I definitely sympathise with a couple in such a position, and there should be legal provisions for individuals in such situations to ensure they are given custodial care by a loved one they delegate, be it an LGBT partner, brother, best friend, and so on.

However, I don’t think it says anything about what marriage is nor argues in favour of the redefinition of marriage. It is primarily a utilitarian argument, which I find weak and which could equally be used to justify other legal changes we would not accept. Furthermore, it fails to understand that marriage is primarily about children, not about caring for adults who love each other. Yes, there should be legal provisions for such incidents, but this is not what marriage is or ever was. Lastly, altering the meaning of marriage based on such an argument should, reasonably, allow marriage to be changed to include polygamy and incestuous unions, for they too would undergo similar situations.

To be honest, I’m continually bemused why the issue of religion is brought into these debates, as if marriage is primarily a religious issue! (Personally, I think it’s used by those in favour of changing the definition of marriage to undermine their opponent’s position - almost like an argumentum ad hominem.)

Civil marriage isn’t primarily about children and hasn’t been for some time. Polygamy would require a vast amount of legal changes whereas this would require only a dozen in many states and with incestuous marriage it is a) extremely difficult to verify true consent and b) immediate blood relatives already have a substantial amount of rights.

 

[LeafByNiggle]

Civil marriage isn’t primarily about children and hasn’t been for some time.

If civil marriage is no longer serving its original purpose, that would be an argument for ending it, not extending it. If it now is serving some new purpose, that would be by accident, not by design.

As for using the fact of marriage to solve problems in the health care field, that does not sound like the best approach. There is a legal principle that says it is bad policy to use a law with broad applicability to address a narrow issue. In this case we have instances of unjust treatment in hospitals. If that is where the problem is, that is what should be addressed. Even in the case where a couple is legally married, that does not always imply the spouse should be given the rights mentioned. Consider that case where a wife comes into the emergency room obviously beaten, and reluctant to talk about how she got beaten. The hospital should not give the husband unrestricted visiting rights in this case since it is quite possible he is the one who beat her. If the hospital can use common sense overrides to the general policy in this case, they can use common sense overrides in the case of Lindsey and Sarah too. If the health care system is broken, let’s fix it.

 

[Joie_de_Vivre]

If civil marriage is no longer serving its original purpose, that would be an argument for ending it, not extending it. If it now is serving some new purpose, that would be by accident, not by design.

As for using the fact of marriage to solve problems in the health care field, that does not sound like the best approach. There is a legal principle that says it is bad policy to use a law with broad applicability to address a narrow issue. In this case we have instances of unjust treatment in hospitals. If that is where the problem is, that is what should be addressed. Even in the case where a couple is legally married, that does not always imply the spouse should be given the rights mentioned. Consider that case where a wife comes into the emergency room obviously beaten, and reluctant to talk about how she got beaten. The hospital should not give the husband unrestricted visiting rights in this case since it is quite possible he is the one who beat her. If the hospital can use common sense overrides to the general policy in this case, they can use common sense overrides in the case of Lindsey and Sarah too. If the health care system is broken, let’s fix it.

Ending civil marriage would be profoundly harmful to society.

I’ve heard of couples drafting power of attorney rights and it not being honored because the medical staff doesn’t know/care. Hospitals are already able to refuse in cases of suspected abuse.

It’s not just about medical, it’s about many things.

 

[LeafByNiggle]

Ending civil marriage would be profoundly harmful to society.

In what way? (Aside from the harm to children.)

 

[seagal]

There are already legal ways in place to allow someone to speak for you in a medical situation. They are living wills or medical power of attorney. You can ask anyone to speak for you this way, no need to be married. If a SS couple are worried about it, they can have the necessary documents drawn up well in advance.

 

[HelenRose]

Ending civil marriage would be profoundly harmful to society.

I’ve heard of couples drafting power of attorney rights and it not being honored because the medical staff doesn’t know/care. Hospitals are already able to refuse in cases of suspected abuse.

It’s not just about medical, it’s about many things.

I disagree. Civil marriage, even before same sex marriage, had become irrelevant. It is nothing more than a contractual agreement. Now that same sex marriage as become an issue, it will degrade even further.

Children have had it hard enough with their mothers and fathers using them a pawns in their selfish fights. Just wait until a children have up to four or more “parents” fighting over them. Civil marriage was meant for the protection of children. That premise has been long lost in the shuffle. With same sex marriage, there is no protection for the welfare of children - only a feel good arrangement for adults.

 

[Joie_de_Vivre]

In what way? (Aside from the harm to children.)

Even uglier property disputes that take even longer

There are already legal ways in place to allow someone to speak for you in a medical situation. They are living wills or medical power of attorney. You can ask anyone to speak for you this way, no need to be married. If a SS couple are worried about it, they can have the necessary documents drawn up well in advance.

And when the medical people don’t give a damn about medical power of attorney? Lambda Legal has taken several groups to court over it.

I disagree. Civil marriage, even before same sex marriage, had become irrelevant. It is nothing more than a contractual agreement. Now that same sex marriage as become an issue, it will degrade even further.

Children have had it hard enough with their mothers and fathers using them a pawns in their selfish fights. Just wait until a children have up to four or more “parents” fighting over them. Civil marriage was meant for the protection of children. That premise has been long lost in the shuffle. With same sex marriage, there is no protection for the welfare of children - only a feel good arrangement for adults.

A contractual agreement is what marriage is, that’s the way it’s been before Christ in the West. Civil marriage is and has basically always been about a man gaining exclusive rights to the reproductive capacity of a woman in exchange for that woman and their children gaining right to that man’s income. Historically marriage was about property and babies.

Without civil marriage the situation regarding custody would get even worse, divorce fights would become uglier and more protracted, the birth rate would go even lower as even fewer people could afford to have children (increase in the number of abortions and contraception rate) and even more abandoned spouses.

It wouldn’t be societal collapse, but you’d certainly make it much more fragile.

 

[seagal]

And when the medical people don’t give a damn about medical power of attorney? Lambda Legal has taken several groups to court over it.

How could they not take a legally executed document seriously? What leg do they have to stand on?

 

[Ridgerunner]

source

What do you think of their experiences and opinions?

I think the post mightily overstates the legal difficulties and the cost of otherwise conferring the rights your protagonists found wanting. Let me correct myself, I don’t “think” it does, I KNOW it does.

Around here, the legal costs would be somewhere between 1/50 and 1/100th of the cost of the average, not-terribly-fancy wedding. For the most part, less than the cost of a wedding cake alone, and greatly less than the usual complement of flowers. And the hassle factor is less than the hassle involved in getting a marriage license.

Anyone who doesn’t know this can easily find out in his own community. The scenario painted above is not the real reason people push homosexual “marriage”.

 

[Joie_de_Vivre]

How could they not take a legally executed document seriously? What leg do they have to stand on?

Just as Janice Langbehn and Lisa Pond were about to depart from Miami on a family cruise with their three children, Pond suddenly collapsed. From the moment Langbehn and the children arrived at Jackson Memorial Hospital, they encountered prejudice and apathy. Even though Langbehn held Pond’s durable health care power of attorney, the hospital refused to accept information from Langbehn regarding Pond’s medical history. The hospital also informed her that she was in an antigay city and state and that she could expect to receive no information or acknowledgment as family. A doctor finally spoke with Langbehn, telling her that there was no chance of recovery. Despite the doctor’s acknowledgment that no medical reason existed to prevent visitation, neither Langbehn nor her children were allowed to see Pond until nearly eight hours after their arrival. Soon after Pond’s death, Langbehn attempted to obtain her 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. Lambda Legal filed a lawsuit against Jackson Memorial Hospital, on behalf of Janice Langbehn and her three children.

source

Or how about that case in Kansas City where a man was arrested and assaulted by officers for attempting to exert his legal right to power of attorney (both had legally granted the other that right) on behalf of his incapacitated partner. The hospital treated them like legal strangers because they weren’t legally married in that state.

Things like that are one of the reasons why LGBT people want marriage, so those incidents can’t happen.

Also notice in the article cited

More than a few times, Lindsey has had no choice but to remain silently in waiting rooms with no updates when Sarah has been seriously ill or undergoing a medical procedure. Doctors have actively denied Lindsey the ability to see Sarah in a surgical recovery room and access to any sort of aftercare instructions. Once, when Sarah told a physician, “My partner, Lindsey, is here to take me home afterward,” the physician said, “That doesn’t matter. I asked if you were married and have a spouse here.” That same physician later requested contact information for Sarah’s parents even though Lindsey was less than 15 feet away.

 

[marymary1975]

Being me someone who had a husband that was living with a live in girlfriend, whose live in girlfriend had zero legal relationship with him, they had no children, no nothing; and whose husband ended up in a hospital with a serious condition, and that the hospital NEVER contacted neither me, his parents nor his children, instead the hospital gave the live in girlfriend who to the eyes of the law was a perfect stranger, all possible rights to make decision, allowed her not only to visit him and take care of him but consulted with her all the major medical decisions without EVER calling his legal family or his children; and that live in girlfriend/legal stranger gave the doctors the order to shut the machines down ad after following the girlfriend’s orders (and no she had no power of attorney, no health proxy no nothing…in fact I had his health proxy) called me to tell me they shut the machine because the girlfriend told them to do it…I can assure you that there is nothing legally that prevents anyone including a same sex partner to take decisions, care for and take care of another person.

Now hospitals do have private policies that depend on the hospital and the people who work there that do and can restrict who goes and who does what. The story up there is a case of a private policy that was taken exaggerated and presented to the world to make people feel sorry and shovel same marriage easily to them. But no, nothing in the laws prevent anyone from taking care of another human being. This has all to do with hospital policies. In fact heterosexual married couples can find themselves exactly in this situations depending on which hospital they are dealing and who is the person they are dealing.

And because of hospital polcies and other reasons, there are million of legal ways that have nothing to do with marriage to name someone in a position to make decision for you in case of illness, to visit you, take care of you etc. If you are expecting that marriage is going to guarantee you to be the person in change of your spouse’s medical decision you are wrong. What that couple need is not marriage is a health care proxy.

 

[Corki]

Ending civil marriage would be profoundly harmful to society.

I’ve heard of couples drafting power of attorney rights and it not being honored because the medical staff doesn’t know/care. Hospitals are already able to refuse in cases of suspected abuse.

It’s not just about medical, it’s about many things.

Redefining marriage is profoundly harmful to society. That’s not a valid argument.

If a couple drafts a “power of attorney” themselves and expects the hospital to honor it as if it was a durable medical power of attorney they are in the same boat as anyone who goes to the hospital without a competent spouse in tow. The chances of a hospital not honoring a properly executed document is incredibly slim but the chances of a couple with a PoA wanting the hospital to extend it to other purposes is larger.

It’s not a “gay” issue. It’s an issue of the importance of taking legal steps to ensure that your wishes will be honored in the event of a medical emergency. I have an example in my extended family - the husband was in the hospital, the wife has Alzheimers and one of the children is named as the decision maker in the durable medical document. When the husband was in the hospital, the document was produced and everything proceeded without issue. But it was the right document.

Frankly, I think everyone should have this type of document. A spouse is not always the best person to be consulted.

 

[Ridgerunner]

If a couple drafts a “power of attorney” themselves and expects the hospital to honor it as if it was a durable medical power of attorney they are in the same boat as anyone who goes to the hospital without a competent spouse in tow. The chances of a hospital not honoring a properly executed document is incredibly slim but the chances of a couple with a PoA wanting the hospital to extend it to other purposes is larger.

It’s not a “gay” issue. It’s an issue of the importance of taking legal steps to ensure that your wishes will be honored in the event of a medical emergency. I have an example in my extended family - the husband was in the hospital, the wife has Alzheimers and one of the children is named as the decision maker in the durable medical document. When the husband was in the hospital, the document was produced and everything proceeded without issue. But it was the right document.

Frankly, I think everyone should have this type of document. A spouse is not always the best person to be consulted.

I remember a lawyer who, whenever a client considered representing himself, would remark: “Well, you have a legal right to do it. You also have a legal right to take out your own appendix, but you would be a fool to do either.”

Strange as it may seem, sometimes medical providers will not provide information to a spouse of a patient either, without a good power of attorney. The HIPAA law is such that providers interpret them according to their fears.

HIPAA should be done away with. Since the IRS (due to Obamacare) and perhaps everybody else on earth will now have access to our medical records, what difference does it make now who gets them?

My wife is a nurse and used to do home health. She was forbidden from telling me where she was going, or even where her car was parked, because that would (the agency believed) violate HIPAA. Maybe it would have. Every hacker who wants to bother will now have everybody’s medical records, but I can’t know where my wife’s car is parked.

 

[HelenRose]

Even uglier property disputes that take even longer

And when the medical people don’t give a damn about medical power of attorney? Lambda Legal has taken several groups to court over it.


A contractual agreement is what marriage is, that’s the way it’s been before Christ in the West. Civil marriage is and has basically always been about a man gaining exclusive rights to the reproductive capacity of a woman in exchange for that woman and their children gaining right to that man’s income. Historically marriage was about property and babies.

Without civil marriage the situation regarding custody would get even worse, divorce fights would become uglier and more protracted, the birth rate would go even lower as even fewer people could afford to have children (increase in the number of abortions and contraception rate) and even more abandoned spouses.

It wouldn’t be societal collapse, but you’d certainly make it much more fragile.

“Civil marriage is and has basically always been about a man gaining exclusive rights to the reproductive capacity of a woman in exchange for that woman and their children gaining right to that man’s income.”

Several thousands years of husbands, wives, children, cousins, uncles, aunts, families, customs, love, laughter, sorrow, joy, mothers, fathers, grandmothers, grandfathers, ancient stories, ancient religions all melted down and poured into a sterile bottle. Good for you.

P.S. From what I see happening to children with our present “civil marriages” I can’t agree that things are any better for children and probably in many cases children are much worse off.

 

[Corki]

If a couple drafts a “power of attorney” themselves and expects the hospital to honor it as if it was a durable medical power of attorney they are in the same boat as anyone who goes to the hospital without a competent spouse in tow. The chances of a hospital not honoring a properly executed document is incredibly slim but the chances of a couple with a PoA wanting the hospital to extend it to other purposes is larger.

It’s not a “gay” issue. It’s an issue of the importance of taking legal steps to ensure that your wishes will be honored in the event of a medical emergency. I have an example in my extended family - the husband was in the hospital, the wife has Alzheimers and one of the children is named as the decision maker in the durable medical document. When the husband was in the hospital, the document was produced and everything proceeded without issue. But it was the right document.

Frankly, I think everyone should have this type of document. A spouse is not always the best person to be consulted.

I just realized that the proper document is a Medical Proxy, not a medical PoA, at least in my state. Sorry.

 

[manualman]

The OP cites a case in which the person suffers the exact same difficulties in life that any other unmarried person faces. Is the OP arguing that modern society poses unviable barriers to single life? How does she explain the constantly decreasing rates of marriage then? The facts don’t add up.

Single life is harder in some ways. Easier in other ways. But if we don’t give the perks of marriage to two long time friends who are NOT romantically involved, why should we give those perks to two long time friends who ARE romantically involved?

At it’s bottom actual marriage is worth incentivizing because it by nature tends to result in children unless the couple takes active efforts to thwart that nature. Gay relationships tend to be sterile unless the couple takes active efforts to go around the nature of their relationship and adopt. These are fundamentally different relationships.

 

[edwest2]

This is really simple. I can get a durable power of attorney and grant anyone I know and trust the ability to make medical decisions on my behalf. We don’t have to live together. A few years back, I thought I was in a position to do that and informed a friend that was my plan.

Kids are harmed by people who don’t know what marriage is. Stability is the primary factor.

Peace,
Ed