Tag Archive: Same sex marriage

The European Union’s Fight for LGBT Rights in Partner Countries

On October 2, 2013, Nick Westcott, the European Union’s most senior official in charge with relations in Africa, proclaimed the European Union should stop lecturing Africa about gay rights.  Westcott believes the European Union needs to be understanding of Africa’s cultural differences.  When asked to elaborate on cultural issues at a debate in Brussels about European Union foreign policy, Westcott stated “We can lecture about lesbian, gays and bisexuals until the cows come home. And it will have a wholly counterproductive effect on our usefulness in Africa. We need to focus on fundamental values.”

Protecting the rights of the LGBT community is a fundamental value of the European Union.  Westcott’s stance on how to handle gay rights in Africa is contrary to the European Union’s overall foreign policy on the rights of gays and lesbians in partner countries.  Article 21 of the the European Union’s Charter of Fundamental Rights prohibits discrimination based on sexual orientation.The principle of equal treatment is a fundamental value for the European Union, which is going to great lengths to combat homophobia and discrimination based on sexual orientation.

In July 2012, the European Parliament released a resolution to help combat violence against lesbian women and the rights of the LGBT community in Africa.  In July 2013, the European Parliament submitted another resolution condemning a law passed by Nigeria that criminalizes not only same-sex marriage, but those who fail to denounce them. Even more than that, the law made it illegal to show a public display of affection to someone of the same sex.

The European Union’s fight for LGBT rights also extends to other parts of the world.  The European Union recently condemned Serbia’s ban  of a gay pride parade for the third consecutive year.  They have also condemned the Ukraine for its new laws banning propaganda of homosexuality, and threatened the Ukraine’s ties to the European Union because of it.  It appears Westcott’s opinion on how to handle LGBT rights in Africa is not the majority view of the European Union.

Former President Clinton, the DOMA, and the Future of Gay Marriage

On March 7, 2013, former President Bill Clinton wrote an editorial in The Washington Post arguing that the Supreme Court should overturn the Defense of Marriage Act (DOMA). In 1996, both houses of Congress passed the DOMA by large bipartisan majorities. President Clinton signed the Act mainly to neutralize a political movement in favor of a constitutional amendment banning gay marriage. Specifically, the DOMA defines marriage as a union between one man and one woman for all federal purposes and relieves states from recognizing any such union though recognized by another state. Even though the DOMA is still on the books, President Obama has told the Justice Department not to enforce it. Currently, same-sex marriage is legal in nine states and the District of Columbia. However, same-sex couples across the country are denied federal benefits and programs because their relationships are not recognized under the DOMA.

The DOMA will come before the Supreme Court on March 27. The purpose of Clinton’s editorial is to explain why the Court should overturn the law. In the editorial, Clinton notes that he has come to believe that the DOMA is contrary to the principles of freedom, equality, and justice, and that the law is “incompatible with our Constitution.” Interestingly, this is the second time Clinton has disavowed a landmark anti-gay legislative measure that he signed into law.  In 2010, Clinton stated publicly that he regretted signing the controversial “Don’t Ask Don’t Tell” (DADT) policy, a federal law mandating the discharge of any U.S. armed service member who was openly lesbian, gay, or bisexual. DADT was repealed in 2011.

Despite Clinton’s editorial and other opposition to the DOMA, it remains unclear how the Court will rule. Some commentators have prematurely proclaimed that the DOMA is doomed. However, in a recent interview, Justice Anthony Kennedy, the perennial swing vote on the Court, suggested that the Court should not issue controlling opinions on hot-button political issues. He explained, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.” This statement certainly increases the possibility that the Court may not overturn the DOMA.

Obama Administration Refuses to Defend All of DOMA

On February 23rd,  US Attorney General, Eric Holder, announced that the Obama Administration will not defend the constitutionality of Section 3 of the Defense Of Marriage Act as applied to same-sex married couples. Section 3 explicitly defines marriage for federal purposes as between a man and a woman. This declaration is important because two cases are currently pending in the Second Circuit,Pedersen v. OPM and Windsor v. United States. Because the Second Circuit has no established precedent for how to interpret sexual-orientation discrimination cases, the Department of Justice under the Obama Administration must now determine whether these cases are subject to a more heightened standard of review than the rational basis standard.

Holder made clear that while the DOJ would cease to defend Section 3, they would still represent the United States’ interest in other portions of the current litigation. Holder also stated the Administration, in what almost seems contradictory, intends to enforce the law “unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” On March 4, the GOP announced a plan to defend DOMA, but to date only a legal advisory group has been convened.

Should I Stay Or Should I Go?

ABC delivered yet again with its November 7th episode from hit series “Brothers and Sisters”, “Resolved.” The episode centers on a dispute between domestic partners Kevin Walker (played by Matthew Rhys) and Scotty Wandell (played by Luke MacFarlane). Kevin is avoiding Scotty (and has been for two entire weeks) because Scotty cheated on him with another man.

A Clip of Kevin and Scotty Fighting

Throughout the episode Kevin and Scotty try to work through their dispute but Kevin is unsure if he will be able to get over the fact that Scotty has been unfaithful to him. Kevin suggests to Scotty the idea of  divorce. Kevin tells Scotty he will never be able to trust him again. Scotty pleads with Kevin to give him a chance to make things better, but Kevin refuses.

Kevin and Scotty live and were also married in California and thus are subject to California law. ABC lists Kevin and Scotty as “domestic partners” on their website. However, Kevin tells Scotty he has ruined their “marriage.” What’s the difference? Are “domestic partnerships” and “marriages” one in the same?

Two men may enter into a domestic partnership under California law. According to the California Family Code Section 297: “Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Once domestic partners file a Declaration of Domestic Partnership with the Secretary of State they are granted the same rights, opportunities, and obligations as heterosexual married couples have. California Family Code Section 297.5(a) states:

297.5.  (a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses.

So, how exactly do you terminate a domestic partnership? California Family Code Section 299-299.3 governs the termination of domestic partnerships. LegalMatch.com explains the different ways in which Kevin may file for dissolution of his domestic partnership with Scotty:

There are two ways to terminate a domestic partnership in California.  First, if specific requirements are met, a domestic partnership may be terminated by filing a Notice of Termination of Domestic Partnership with the California Secretary of State.  In order to qualify, all of the following requirements must be met:

  1. Domestic partnership lasted less than 5 years
  2. No children born before or during the domestic partnership
  3. No children adopted during the domestic partnership
  4. Neither you or your partner are pregnant
  5. You and your partner do not have any interest in real estate
  6. Neither you nor your partner is renting any land or building
  7. Except for automobile loans, your community obligations do not exceed $5,000.
  8. Except for automobiles, your community property is worth less than $33,000.
  9. Except for automobiles, neither you nor your partner has separate property totaling more than $33,000.
  10. Both of you agree that you do not want money or support from the other partner except what is included in the property settlement agreement dividing the community property and community obligations.

Additionally, you or your partner must have lived in California for the last 6 months.

However, Kevin and Scotty do not qualify to terminate their domestic partnership by filing because they have interest in real estate together. LegalMatch.com tells us:

If any of these requirements are not met, you must initiate dissolution proceedings in the Superior Court.  You may file any one of the following three petitions: a Petition for Dissolution of Domestic Partnership; a Petition for Judgment of Nullity of Domestic Partnership; or a Petition for Legal Separation of Domestic Partnership.  These dissolution proceedings are similar to divorce.

You may be asking, if these proceedings are similar to divorce, what’s the real difference between marriages and domestic partnerships? About.com states there are three major differences between marriage and domestic partnerships in California:

  1. Marriage is not a second-class status. Studies have shown that marriage and civil unions or domestic partnerships are not equal.
  2. You don’t have to live in California to get a domestic partnership or to get married. You do not have to live in California to dissolve a domestic partnership, but if you want a California divorce, you have to live there for six months. If you are married in California, you most likely will not be able to get a divorce in your home state. From Melanie Rowen, NCLR staff attorney: “Also, and this is very important for couples from outside of California to understand, California courts have jurisdiction to dissolve domestic partnerships regardless of where the parties live. But CA courts DO NOT have jurisdiction to dissolve a marriage unless the parties meet the residency requirements for a CA divorce. Under CA law, a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of California for at least six months and of the county in which they are filing for divorce for the three months before they file. This means that couples from other states who come to CA to get married will be unable to obtain a divorce in the event of a later break-up unless either (a) they actually move to CA or (b) their home state decides to recognize CA marriages.”
  3. From a practical stand point. It is easier to get a domestic partnership than it is to get married in California. In order to enter into a marriage, a couple must obtain a marriage license and ‘solemnize’ it – this requires having a ceremony with one to two official witnesses. Couples can enter a domestic partnership by filling out and mailing in a form, the notarized Declaration of Domestic Partnership. They do not need to obtain a license, have witnesses, or ‘solemnize’ the partnership with a ceremony.

In conclusion, it must be remembered domestic partnerships are governed by the same rules which apply to heterosexual marriages. California Family Code Section 297.5. In sum, terminations of domestic partnerships are just like divorces. According to CADivorceLawyer.com:

Two grounds for divorce exist in California – irreconcilable differences and incurable insanity. Divorce in California is no-fault, which means that one spouse can divorce the other without the other’s consent.

To be eligible to get a divorce in California, you or your spouse must have been residents of the state for the past six months and have lived in your county for three months before filing the petition for dissolution.

Therefore, Kevin could claim irreconcilable differences because he cannot trust Scotty anymore. Under California law, Kevin does not need Scotty’s consent to terminate the domestic partnership. According to CADivorceLawyer.com, “[t]he process of obtaining a divorce in California starts when you or your spouse files a petition for the dissolution. The other spouse will receive a notification summons of the divorce petition and be given 30 days to file a response.”

By the end of the episode, Kevin and Scotty decide to work things out for the time being. However, the ultimate future of their domestic partnership remains in limbo. However, in the end if Kevin decides to dissolve the partnership he must file a petition with the Superior Court of California because he does not qualify for termination by notice. Click here to watch the full episode of “Resolved.”

Mac Fights Gay Marriage in Philadelphia

The September 16th episode of “It’s Always Sunny in Philadelphia” was entitled “Mac Fights Gay Marriage.” This is a comedy set in Philadelpia, PA that depicts the lives of several friends that work together at an Irish bar called “Paddy’s Pub” The characters are: Mac (Rob McElhenney), Dennis (Glenn Howerton), Charlie (Charlie Day), Dee (Kaitlin Olson), and Frank (Danny DeVito). The humor of this show comes from the ridiculous nature of the characters’ relationships with one another and this episode was no different. This episode centers on the subject of gay marriage and starts out discussing the same sex marriage of 2 men, one named Carmen who had just undergone a transgender surgery to become female. In the episode, Mac tries to convince his friends that same-sex marriage is wrong. However, Mac’s discussion of marriage only gives Frank and Charlie the idea to apply for a “domestic partnership.” Frank and Charlie want to enter into this partnership because they want to have the right to make decisions concerning the other person’s medical care. Specifically, Frank wants Charlie to have the right to decide when to “pull the plug” if he is ever put on life support. The topic of marriage and same-sex unions is meant to be humorous for purposes of this show. However, it does raise serious issues regarding same-sex marriages. In the episode, the marriage between the sexually re-assigned Carmen and the other man may not be legally valid. There is also the issue of whether Frank and Charlie can legally apply for a same-sex domestic partnership.

The issue of whether same-sex couples should be able to marry or enter into domestic partnerships has been controversial over recent years, especially with the development of sexual reassignment surgery. In the 1990s, states began enacting “defense of marriage acts” (DOMAs).The purpose of the DOMAs is to prohibit same-sex couples from marrying and provide that the state will not recognize such marriages performed in other states. The U.S. government has a DOMA that provides for the purpose of federal laws and regulations: “‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Same-sex marriages are prohibited by 23 PA C.S.A. 1704 in the state of Pennsylvania. This episode raises the issue of determining what gender is legally considered for purposes of marriage. The option to have your gender reassigned through surgery exists and courts need decide on whether to consider someone’s new gender for purposes of marriage. Only a small number of state courts have ruled on the validity of a marriage after reassignment surgery. In 2002, the Kansas Supreme Court ruled that the marriage between a male-to-female transsexual and her husband was invalid, even though she had undergone sex-reassignment many years prior to the marriage. An appellate court in Texas reached the same result, invalidating a marriage between a transsexual woman and her husband on the ground that one’s legal gender is fixed at birth. Since the issue of gender reassignment remains undecided under Pennsylvania law, it cannot be determined whether Carmen should be classified as female or male for purposes of marriage.

In this episode, Frank and Charlie live together and seek to enter into a domestic partnership. These characters are not in a romantic relationship but they want to have legal rights over one another, similar to the rights spouses have in a marriage. The State of Pennsylvania has defined marriage and declared it as a “strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman.” Under current state law, these two men could not enter into a valid marriage.

However, recent trends in the United States show that the general population is gradually increasing support for the right of same-sex individuals to marry or enter into civil unions. A CBS News poll conducted in August 2010 is proof of this trend.  The poll asked the question: “Which comes closest to your view? Gay couples should be allowed to legally marry. OR, Gay couples should be allowed to form civil unions but not legally marry. OR, There should be no legal recognition of a gay couple’s relationship.” The results show that 40% felt gay couples should be allowed to marry, 30% answered yes to civil unions, 25% said they should not be legally recognized, and the remaining 5% said they were unsure. As the percentage rises towards the right of same-sex couples to marry, it is likely that state legislatures will begin to re-evaluate their stance on the issue.

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