7. 2002 - The Year in Law
January 2003
Wow, it's cold! I don't remember winters like this growing up in New Jersey and after years on the Gulf Coast of Texas, my partner and I are no longer used to such weather. Hurry up spring!
I've combined this month's column with February because I'm quite busy preparing to take the New Jersey bar exam in February. As many of you know, I'm admitted to the bar in Texas and, while many states now have reciprocal licensing agreements with Texas, New Jersey is not one of them. Thus, I have to sit for a two-day exam at the end of February which, assuming I pass, will allow me to practice back here in my home state. Since this requires a fair amount of studying, including attending morning lectures in Philadelphia, it doesn't leave me a lot of extra time, and you'll have to wait for March for the next article. I will be keeping up with your questions, although I may be a little slow with answers, so keep them coming.
At any rate, there have been a number of mostly positive legal changes in the US in the past year, particularly in the area of relationships. In this month's column, I'd like to highlight some of them.
January, 2002
The Pennsylvania State Supreme Court recognized the visitation rights of a lesbian who raised a child with her former partner even though she was not the biological parent. The Pennsylvania decision requires family courts in Pennsylvania to use the same rules in deciding visitation and/or custody cases as are used to determine these rights for heterosexual couples, if the individual seeking custody or visitation had, with permission of the biological or adoptive parent, acted as a parent to the child.
In California, the state Supreme Court agreed to review the decision of a San Diego appellate court, which had questioned the long-standing practice of second-parent adoptions. This form of adoption has been used by gay and lesbian couples for nearly 15 years to allow both partners to adopt a child. As a result of the Supreme Court's order to review, that case cannot be used as legal precedent in California until the review is completed.
February, 2002
A gay man was prevented from seeing his partner at the Shock Trauma Center in Baltimore, Maryland, despite having valid durable power of attorney for health care and proof of having registered in California as a domestic partner. The man was not only kept away from his partner because he was not "family" but was not even given updates on his partner's status until the dying man's sister and mother arrived and insisted he be allowed in to see his partner. The partner is suing the Center. I don't know whether this situation might have been helped had the couple had joint hospital visitation directives, as I've recommended, but it certainly would not have hurt.
March, 2002
The Kansas Supreme Court refused to recognize the 1998 marriage of J'Noel Gardiner, a male-to-female transsexual, to her husband, Marshall. The marriage had been challenged by Marshall's son, who sought to invalidate the marriage in order to prevent J'Noel from inheriting her portion of her husband's estate under the state's probate laws. Despite the fact that J'Noel had fully undergone sex re-assignment surgery prior to the marriage, changed all her legal identification including her birth certificate to reflect her new identity as a female, and informed her husband prior to their marriage, the Court refused to recognize J'Noel's status as a female, thus invalidating the marriage.
April, 2002
Stating that it was preserving public morality, the Texas Court of Criminal Appeals upheld the conviction of two men in Houston under the state's sodomy statute. The decision by the state's highest court for criminal matters let stand the conviction, which had resulted from a police search of one man's apartment while the two were having consensual sex in the privacy of the home. The case has subsequently been appealed to the United States Supreme Court, which will hear oral arguments in March, 2003.
May, 2002
A Virginia state judge refused to dismiss the adoption case of a lesbian. The motion to dismiss had been brought by the state's attorney general, who argued that the case should be dismissed because the woman had not formally applied to adopt the child. The woman had not been allowed to proceed with the adoption because the Washington, D.C. child placement agency had been told by the Virginia Department of Social Services that it would deny the woman's application because she was a lesbian. In August, 2002, the state settled the case by agreeing to no longer bar adoptions on the basis of sexual orientation.
Meanwhile, the Ohio Supreme Court overturned the state's soliciting law on the basis that the law was an unconstitutional violation of the Equal Protection Clause of the US and Ohio Constitutions. The law made it a first-degree misdemeanor for a person to make a sexual advance toward another person of the same sex, if the target deemed the advance offensive. Advances could consist of words only, and a conviction under the law could bring a sentence of up to six months and a fine of $1,000.
In California, a San Diego County teacher settled a lawsuit for $140,000 against the Oceanside school district as a result of anti-gay harassment directed at the teacher. The teacher was subjected to months of homophobic remarks and graphiti, and was denied promotion, despite having won several teaching awards. The district settled the case when evidence was presented that showed it had ignored the harassment and even threatened to discipline the teacher as a result of her complaints. In addition to the fine, the district is required to implement procedures including implementing sensitivity training for staff members.
June, 2002
In a case that is particularly exciting to my partner and me, seven same-sex couples in New Jersey filed suit against the State of New Jersey, seeking to allow them the right to marry under the New Jersey Constitution. The case could bring about the most sweeping change in relationship rights for US gays and lesbians since Vermont enacted its civil union law. The petitioners, all of whom were in long-term relationships, asks for the same marital rights as those accorded heterosexual couples. Since the case is based solely on the New Jersey Constitution, the New Jersey courts will have final word on the matter. Keep your eyes on this one, guys.
July, 2002
The Arkansas Supreme Court overturned the state's sodomy law on the basis that it violated Arkansans' right to privacy in their home. The law, which was overturned on a 5-2 decision, had criminalized same-sex. The decision leaves only three states with same-sex sodomy bans (Texas, Oklahoma and Kansas) and nine others with general sodomy bans (including Massachusetts). Hopefully, all of these will be overturned by the US Supreme Court in 2003.
August, 2002
The New York State Legislature passed a law that extended spousal benefits to the survivors of gays and lesbians who died in the 9-11 attack. Although the law only extends such benefits to 9-11 cases, it is at least a start in the right direction, for the first time according legal status to domestic partners in New York.
Also in August, a Reno, Nevada school district settled a case of anti-gay harassment against a student. The student, who was openly gay, was subjected to years of physical and verbal harassment, which the school district failed to respond to despite numerous complaints. The student will receive a settlement of $451,000 and the school district has agreed to implement policies to protect students who are harassed because of their sexual orientation. This is the first recognition in the US of an openly gay student's right to be free from harassment.
September, 2002
The Borough of New Hope, Pennsylvania added sexual orientation and gender identity to its anti-discrimination policy. For those of you who are familiar with New Hope, you may wonder what took them so long? And voters in Dade County, Florida, rejected a ballot initiative that would have repealed that county's human rights ordinance protecting gays and lesbians. Many of you may remember that it was not that long ago that Anita Bryant led the effort to repeal the first Dade County gay civil rights ordinance. Didn't her ex-husband come out a few years ago?
October, 2002
Boston City Counsel added protection for transgendered people to its anti-discrimination law.
And lest we forget, Harry Hay died at 90. Hay was a gay rights pioneer, helping found the Mattachine Society and the magazine One in the 1950s. Hay went on to be a founder and leader in the Radical Faeries movement. A difficult man to love but a man to whom we all owe a debt.
November, 2002
Long derided and boycotted for its anti-gay employment policy of firing employees who failed to "demonstrate normal heterosexual values," Cracker Barrel added sexual orientation to its written non-discrimination policy. The company's board voted unanimously to add the protection at its annual meeting after it became clear that a shareholder resolution to do so would have passed by a majority vote. It pays to educate and even boycott businesses that fail to protect our rights. Now, everybody, cut up your Exxon-Mobil cards until they bring back domestic partner benefits! Just so you know, of all the major oil companies, Shell and Chevron both provide health and other benefits to domestic partners. Be sure to give them your business!
Pennsylvania became the 28th US state to include sexual orientation in its hate crimes law, which was passed by the Legislature and signed by the governor. In addition to other categories, the new law extends to harassment based on "actual or perceived" sexual orientation. Many conservatives claim that hate crime laws criminalize thoughts or intentions; what these people forget is we already do this frequently in criminal law. For example, murder can be first-degree or second-degree, based upon the perpetrator's intent, and is punished accordingly.
Several anti-gay ballot initiatives were defeated this month, including attempts to remove sexual orientation from local anti-discrimination ordinances (Ypsilanti, Michigan, Tacoma, Washington). In addition, voters in Sarasota, Florida approved addition of sexual orientation to that city's anti-discrimination law. However, voters in Nevada approved a measure that defines marriage as between one man and one woman and prohibits recognition of same-sex marriages.
Finally, Chicago added protection for transgendered people to its civil rights ordinance.
December, 2002
The US Supreme Court granted certiorari in the Texas sodomy case (see above). The Court will hear oral arguments in March, 2003 with a decision expected sometime before the summer of 2003. In addition to hearing arguments as to whether the Texas sodomy law, which applies to same-sex sodomy only, violates the Equal Protection Clause of the US Constitution, the Court has also indicated its intention to revisit its prior decision in the Georgia sodomy case (Bowers v. Hardwick). This willingness to revisit the earlier case, which ruled that laws banning consensual sodomy do not violate the right to privacy, is considered to be an indication that the Court may set aside its earlier decision, which had been heavily criticized.
Also in December, the Mississippi state judicial committee recommended penalizing state Judge Connie Wilkerson for his anti-gay tirade in a letter he wrote to a local paper. Seems the judge reacted to the verdict in the San Francisco dog mauling case by suggesting that gays and lesbians are "worthy of death." The committee asked the state Supreme Court to publicly reprimand him and fine him for violating the Mississippi Code of Judicial Conduct, which prohibits judges from demeaning others based on categories including sexual orientation. The judge is being defended in the matter by our loving friends at the American Family Association.
Finally, the New York State Senate finally passed the Sexual Orientation Non-Discrimination Act (SONDA), which outlaws discrimination based on sexual orientation in the work place, housing and credit. The Act has been repeatedly approved by the State Assembly but, in nearly 30 years, has been prevented by NY Republican leaders from coming to the Senate floor. The impasse broke when the upstate New York leadership changed its mind and allowed a Senate vote. Governor Pataki has subsequently signed the Act into law. New York becomes the 13th US state to enact a non-discrimination law that includes protection for gays and lesbians.
That's all for until March. Meanwhile, keep the questions coming and I'll get to them as quickly as possible.
8. Guardianship and Conservatorship
March 2003
Well, my partner and I survived the New Jersey bar exam - a two-day test I hope never to have to repeat. I still have to wait for the results until May but, at this point, I'm beginning to relax again. The weather has been lovely, allowing us to take the dogs out for a run along the Delaware canal, and we've even had time to get into New York City for an evening. We saw "Take Me Out", which is about the star player on a major league baseball team who comes out of the closet and the aftermath. It's a comic drama with LOTS of shower and locker room nudity.
We often think that the worst thing that could happen is the death of our partner, but several letters I received recently helped me realize that it can be even more devastating when we have to deal with long-term care of a partner who is in the end-stages of a terminal illness, or who has Alzheimer's, or is suffering from a severe mental illness. In these circumstances, medical and financial powers of attorney and other advance directives may not be sufficient (or even available) and the only remedy is guardianship.
A guardian is an adult who can legally manage the financial and/or personal affairs of another individual, either a child or an adult, who is unable to manage their affairs by them self. In some states, such as California, the term "conservatorship" is used when referring to a guardianship over an adult, and the guardian is referred to as the "conservator." I'll use the term guardian here because that's what I'm used to but, for all intents and purposes, the only differences are the terminology. I'll also only address the issue of guardianship over an adult who was previously able to care for himself or herself.
There are really three kinds of guardianship: guardianship over the estate, guardianship over the person, and guardian over the estate and person. In the first form, a person (the guardian or conservator) is given legal authority to manage the finances, real estate and even the business of another person (the ward or conservatee). In the second form, the guardian manages the personal (non-financial) and medical affairs for the ward, such as food, clothing, shelter and medical care. The third form merges the two sets of responsibilities in the same guardian.
When should you choose one form or another? It will depend upon the situation. Some people, particularly when they get older, are no longer able to manage their financial affairs but are still competent to make decisions about personal and health care. In that case, guardianship over the estate is appropriate. If a person if no longer competent to handle their personal or medical care, then guardianship over the person and the estate is probably most appropriate. However, it may be better to have separate guardians. For example, a person who might otherwise be a good choice for a guardian over a person may be a terrible financial manager and, thus, would not be a good choice as a guardian over the estate.
In all cases, the guardian must be appointed by a court, usually in response to a petition by the proposed guardian. The proposed guardian files the petition with an appropriate court (usually the probate court) and must send copies of the petition to all of the proposed ward's family members. It is not uncommon for multiple parties to file separate petitions. All proposed guardians must be legally qualified; for example, they must be at least 18 years old and may not be a creditor of the proposed ward. Although virtually anyone can petition to be appointed guardian, the plain fact is that current law favors blood relatives.
Once the petition is filed, the court will investigate the qualifications of the proposed guardian or guardians using a court-appointed investigator. The court will also appoint an advocate for the proposed ward, sometimes called an ad litem, to represent the proposed ward, since the guardianship is considered an adversarial proceeding. There is a presumption that the proposed ward is competent and it is up to the proposed guardian to show that the guardianship is needed. The proposed guardian is responsible for all fees, including their own legal fees, the legal fees for the proposed ward's attorney ad litem, but the fees can be recovered from the proposed ward's estate if the guardianship is granted. If the ward is without funds, the court can sometimes authorize reimbursement of the ad litem from a state fund for that purpose. After all documents are filed and the investigator files a report with the court, a hearing will be held at which the ward is usually required to be present. The proposed guardian will also need to demonstrate that they can post a bond, particularly if there is a financial estate. The amount of this bond will be set by the judge.
Once a guardian is appointed, he or she serves until the ward dies or is found to be competent, or until the guardian resigns, dies, or is replaced by the court. Once appointed, a guardian is required to manage the ward's estate only for the benefit of the ward. The guardian will be required to file a report on a regular basis, such as annually. Any powers of attorney will be revoked by the guardianship. The guardian's power to act on the ward's behalf is subject to state law and any conditions the judge may impose.
One way gay couples can control the choice of guardian is by executing a declaration of guardianship in which they list the person or persons who are preferred guardians and those persons who are not to be named as guardian. This document has two potential effects. First, if you name a preferred guardian, the judge is likely to favor that person, although they are not required to do so. More importantly, however, is the second effect — in most states, if you name someone who is not to be named your guardian, the court may not appoint that person even if they are otherwise qualified. Gay partners should always work with a competent attorney in these proceedings, particularly if there are blood relatives around, since these proceedings tend to favor legal relationships over unmarried partners.
Guardianship proceedings may be exactly what you need if your partner becomes incompetent. But because they divest the proposed ward of his or her right to control their own affairs, they are considered to be a drastic remedy and should be considered a remedy of last resort.
9. US Supreme Court Hears Sodomy Case
March 27, 2003
Yesterday, March 27, 2003, the US Supreme Court heard oral arguments in the Texas sodomy case, Lawrence v. Texas. According to news reports and to my friend and fellow attorney, Mitchell Katine who attended along with the Lambda Legal team, the arguments went very well. Lawrence was represented by Paul M. Smith, a former Supreme Court law clerk and experienced practitioner in front of the Court. Smith admirably fielded 35 questions from the justices (including 23 from Justice Scalia) and seemed to hold the attention of the Court.
The State of Texas was represented by Chuck Rosenthal, Harris County, Texas District Attorney, making his first appearance before the Court. Mr. Rosenthal's lack of experience in this kind of argument was telling, and he seems to have missed even the "softballs" thrown to him by Scalia, who obviously favored upholding the sodomy statute. He first tried to argue that the two men caught having sex weren't homosexual, then responds to a question by Justice Kennedy as to whether mores have changed in the US by stating "physical homosexual conduct is now more acceptable." Justice Scalia, surprised that the state was apparently arguing for the other side, asked Rosenthal whether he thought there was more public approval of homosexuality now. Undeterred, Rosenthal proceeded to argue that "there is approval of homosexuality. But not of homosexual activity."
It was clear during the oral arguments that the conservative wing of the Court would oppose repeal and the liberal wing would favor it. Most likely, the Court will strike down the Texas law on the basis of "equal protection", that is, the law discriminates against a particular class of people because it criminalizes same-sex sexual contact and not heterosexual contact. I expect the vote to be close, probably 5-4, with Chief Justice Rehnquist, Justice Scalia, and Justice Thomas most likely opposed and Justices Breyer, Souter, Stevens, and Ginsberg voting in favor of repeal. The swing votes will be Justices O'Connor and Kennedy, both of whom voted to strike down the anti-gay initiative in Colorado in 1996 (Romer v. Evans).
What was not clear was whether the Court would reverse its decision in the Georgia sodomy case, Bowers v. Hardwick, which was narrowly decided in 1986 by a vote of 5-4. Bowers rejected the right of privacy as it applied to sodomy (whether heterosexual or homosexual) and was based upon the "fundamental rights" argument used to strike down laws against contraception, abortion, and constraints against marital behavior. Smith explicitly asked the Court to reverse Bowers, which would ban all laws regulating sodomy even if they applied equally to heterosexuals and homosexuals.
A decision is expected in early summer.
10. Breaking Up is Hard to Do
May 2003
In a recent New York Times article, it was pointed out that 85 percent of the approximately 5,400 couples granted civil union licenses were not from Vermont. I'm not surprised - my partner and I have considered taking a trip to Vermont to get hitched, even though the license currently has no recognition outside the state of Vermont. It's exciting to think that there is at least one place in the US that recognizes our relationship and gives us the opportunity to solemnify them.
Vermont's civil union law, passed in 1999, allows any couple to apply for a license with the town clerk where they reside. Non-resident couples may also enter a Vermont civil union. To do so, they file their form with the town clerk in any Vermont town. Bed & breakfasts are advertising "civil union specials" in gay papers throughout the US, encouraging same-sex couples to come for a few days and "get hitched" while staying at the B&B. These package deals often come with champagne, cake, and flowers to make the day as special as any heterosexual wedding.
There's just one problem, though. What if the out-of-state couple wants to break up? Under the Vermont law, dissolution of a civil union is subject to the same procedures, rights and obligations as the dissolution of a marriage, including residency requirements. Thus, a couple looking to dissolve a civil union need to look at the requirements for dissolution of a marriage in Vermont.
First, the couple must articulate a grounds for the divorce. These are (a) adultery; (b) when one spouse is actually in prison for three or more years; (c) "intolerable severity"; (d) wilful desertion or one spouse has gone missing for seven years; (e) failure to support the other spouse when one is able to; and (e) when the parties have been separated for at least six months and are not reasonably likely to reconcile ("irreconcilable differences.")
The second requirement is that the action for dissolution must be brought in family court in Vermont. For an out-of-state couple, you may think this simply means a second trip to Vermont, one with less happy memories than the trip taken to file the civil union in the first place. Unfortunately, there is a third requirement that has created a huge dilemma for non-resident partners who want to dissolve their civil union.
When Vermont liberalized its divorce laws some years ago, the legislature wanted to avoid becoming a "divorce mill" for married couples from other, less liberal states. It therefore imposed a residency requirement that at least one spouse had to be a resident of Vermont for at least six months before they could file for divorce and had to be a resident for at least one year before the divorce could be granted by the court.
This is fine for gay and lesbian couples who already live in Vermont but creates a real problem for those who live out of state. In order to terminate a Vermont civil union, a non-resident spouse must move to Vermont, wait six months, file suit in family court and provide a grounds for the dissolution, then wait six months for the court to grant their petition. That is, of course, assuming the dissolution is uncontested.
Non-resident heterosexual married couples have another option, of course. Unless they have a specific reason to file for divorce in Vermont, (in which case they, too, would have to meet these requirements), they can simply file in their state of residence. Under the "full faith and credit" clause of the US Constitution, all states recognize marriages and divorces granted in other states. As a result, out-of-state same sex couples who wish to dissolve their Vermont civil union have begun asking courts in their state of current residence to grant the dissolution.
So far, only one couple - two lesbians in West Virginia - have succeeded in having their civil union dissolved by another state's family court. Two other reported attempts have failed. A Connecticut court refused to grant a dissolution to a couple in that state; the judge's refusal was upheld on appeal. And a Texas court, which initially granted a dissolution, withdrew its decision and agreed to rehear the case after the Texas attorney general intervened. The petitioning partner subsequently withdrew his petition and, I suspect, the judge has been targeted for a challenge in the next election.
As a result, non-resident couples who obtain a Vermont civil union enter a legal "twilight zone" if they choose to separate. They cannot legally dissolve their union without one of them moving to Vermont, yet they have a state law which has an unknown affect on their property, custody, and inheritance rights. Sooner or later, state courts outside of Vermont are going to have to address the affect of a Vermont civil union on all of these areas. And yet they are adverse to deciding the issue because they realize that it will inevitably result in the recognition of a civil union.
There is one possible solution for couples who have already registered in Vermont or intend to do so. The Vermont law allows the couple to sign an antenuptual agreement. So long as this agreement doesn't violate local law by stating a purpose that is against state law, it can be enforced in any state in the US as an ordinary contract. Thus, a couple who decided to enter a civil union in Vermont should follow the filing of the union with the signing of a partnership agreement that sets out all the rights and responsibilities of each partner, including how the partnership is dissolved.
We all want love to be forever and ever. Unfortunately, it doesn't work out this way for many couples. Therefore, you may want to wait a few years before taking that romantic trip to Vermont to tie the knot. Who knows, maybe by then you'll be able to do so in your own home state.
11. How to Find and Work With An Attorney
June 2003
First of all, I'm pleased to announce that I passed the New Jersey bar exam and have been admitted here in New Jersey. I also had the distinct pleasure of being sworn in to the bar by my father (also an attorney), and with my mother and my partner, Richard, taking photographs. We are quite relieved to have this milestone behind us.
Second, it's hard to believe that June marks the one-year anniversary of this column. It's been a pleasure doing it and a learning experience as well. I've had far more questions about immigration than I expected and far fewer than I would have expected about civil rights (other than marriage). I look forward to another year of interesting questions. I also want to thank Ron and Hector for providing this forum and for their continued support.
In many of my answers I've given the advice that you should "talk to a local attorney." This month, I wanted to spend a little bit of time on the subject of locating and working with an attorney. Often times, people hesitate to seek out legal advice because they believe it will be expensive, or because they are embarrassed by their situation or their sexual orientation. Although there are attorneys, as in everything, who will overcharge and under serve, I know far more who give advice and time readily and often without charge.
The first thing to remember is that, as in medicine, there are fewer and fewer general practitioners. Because the law has become so complex, most attorneys specialize in a few areas of law, such as real estate or criminal law. Thus, you should look for someone, if possible, who specializes in the type of law you need help with. I often advise people to begin by calling the local bar association, which usually has an attorney referral network. When you call the referral number, an intake specialist will usually ask you a few questions to help you determine the type of attorney you need, then provide you with the name of one or more attorneys who specialize in that area. If you can't find a referral program in your area, you might check with one of the directories online, such as Findlaw (http://www.findlaw.com), West Legal Directory (http://www.wld.com), or that old standby, Martindale-Hubbell (http://www.martindale.com).
Second, when you speak with an attorney, your conversation is usually governed by attorney-client privilege. Even if the attorney you talk to doesn't take you on as a client, the things you tell him or her when you first meet with the attorney may not be revealed by the attorney except in very limited circumstances.
I emphasize "interview" when you first meet with an attorney because not every attorney is going to meet your needs. First, call the attorney's office and set up a preliminary meeting. You don't need to go into a great deal of detail over the telephone but ask him or her if he or she has handled a similar matter before. Also, be sure to ask if there is any fee associated with the initial consultation so you're not surprised. It's not uncommon, particularly for non-litigation matters, for the attorney to charge their regular hourly fee for a brief consultation. At the first meeting, bring all of the documents, letters, and everything you can think of related to your case.
Once your attorney agrees to take you on as a client, he or she will provide you with some form of contract. Typically, there are three kinds of these: a straight hourly contract, a fixed fee contract, or a contingency contract. The kind that get's used will depend upon the attorney, the type of matter, and the bar rules. Generally, hourly fee contracts are used when the attorney is representing you as a defendant in a criminal or civil matter or when there is an on-going project.
Fixed fee contracts are used when the work is something straightforward, such as a simple will or other type of document. They are becoming more common these days and the attorney will usually require you to pay in advance. Contingent fee contracts are most commonly used with plaintiffs in litigation. These are fees that are "contingent" upon the outcome of the case and are most common in personal injury, medical malpractice or similar high-stakes cases. These contracts award the attorney a fee only if they are successful in winning your case. A few states regulate the percentages and some prohibit them. Some attorneys use a modified contingent fee, which requires you to pay a reduced fee during the litigation and a reduced percentage of the award if you are successful.
Most attorneys expect to get some of their fee in advance. There are two ways they can do this: as a non-refundable retainer or as an advance against fees. A non-refundable retainer is an earned fee paid to an attorney for simply agreeing to take a case. It's most often used by very high demand defense attorneys, like a Johnny Cochran, and you are paying them this fee because they have their choice of clients. For example, a very well known criminal defense attorney I know in Houston will not represent you unless you pay a $50,000 non-refundable retainer PLUS his regular hourly fees and expenses. He gets this fee because he's one of the best in the business. Another type of retainer is a monthly fee for regular clients (usually businesses). It's really a flat fee that guarantees a certain amount of the attorney's time during a specific period of time.
An advance fee is sometimes called a retainer, but it's really an advance against earned fees. The amount will vary depending on the estimated length of time involved and the attorney's hourly or daily fee. The attorney will bill his or her time and expenses against this advance, and you may be expected to replenish the advance when it gets below a certain level. You will generally received monthly bills detailing the fees for the prior month and the attorney or firm will only draw down these funds when you have approved the bill for that month. Most states have very strict rules for collecting, maintaining and disbursing these funds, which must be maintained in a client trust account separate from the attorney's other funds. The attorney's contract will provide details on how these funds, if any, are maintained.
There are basic expectations that are required when you hire an attorney. First, you will be entitled to make the big decisions, such as whether to settle, but let your attorney choose the strategy. Your paying for their advice so listen to it. You are expected to cooperate with your attorney, providing him or her with whatever information they ask for, show up on time for appointments, depositions, court appearances, and respect their time. Many attorneys will charge for telephone consultations so be sure you understand that the clock is ticking when your on the telephone. On the other hand, you have a right to be adequately informed about developments in your case, and your attorney should return your telephone calls in a reasonable amount of time, let you know what's going on in the case, send you copies of all documents and letters received or sent on your behalf, and protect your interests. Don't second-guess your attorney but don't let them keep you in the dark. You have a right to fire your attorney and your attorney usually has a right to withdraw from representing you. Finally, when you and an attorney part ways, hopefully because your case has finished, you have a right to the return of your files in a reasonable time, although the attorney has a right to retain copies of everything for his or her files.
12. U.S. Supreme Court Strikes Down Texas Sodomy Law
Today is a day of independence for all people, especially gay, lesbian, bisexual, and transgender people in this country. Mitchell Katine, original attorney for Lawrence & Garner.
I am so very pleased to inform all of you that by a vote of 6-3, the U.S. Supreme Court struck down the Texas sodomy law on the basis that it violated the right to privacy under the U.S. Constitution. The decision in Lawrence et al. v. State of Texas, was not entirely unexpected, given the tone of the questions during oral arguments last March.
I and many other attorneys expected that the decision would be based on the equal protection argument - that is, a law that prohibits conduct by one class of people but does not prohibit the same conduct by another class violates the Constitution's equal protection clause. If this had been the basis for the Court's decision, it would have invalidated the Texas sodomy statute, which prohibited homosexual sodomy, as well as the several other states that had similar laws. However, it would not have invalidated all sodomy laws, allowing states to keep such laws on the book if they applied equally to heterosexuals and homosexuals.
Fortunately, the majority decision, written by Justice Kennedy, and joined by Justices Souter, Ginsberg, Stevens and Breyer, held that the Texas statute violated the right of adults to engage in private conduct in the exercise of their liberty under the Constitution's Due Process Clause. In arriving at its holding, the majority took the opportunity to revisit and overturn the Supreme Court's decision in Bowers v. Hardwick, the 1986 case in which the Court held that there was no privacy right to homosexual conduct and which many people believe was wrongly decided. These laws, the Court wrote, have far-reaching consequences, touching upon the most private human conduct, sexual conduct, in the most private of places, the home. Furthermore, the Court noted that the history of sodomy prohibitions previously discussed in Bowers, was wrongly discussed; that, in fact, laws against homosexual sodomy were a twentieth-century phenomenon that discriminated against homosexuals for no real reason.
The Court also noted that times had changed since Bowers was decided and the opinions of people all over the world have changed in regard to private homosexual conduct. Such private conduct was increasingly afforded the same level of protection as other areas protected by the Due Process Clause, including such personal decisions as marriage, procreation, contraception, family relationships, child rearing, and education. The Supreme Court decision in Romer v. Evans, which struck down the Colorado law aimed specifically at homosexuals, further placed Bowers in doubt. Thus, the Court decided to overrule Bowers, providing us with a legal basis to argue for other rights, such as adoption and marriage.
Justice Sandra Day O'Connor, the sixth vote against the law, joined the majority in the decision but wrote a separate opinion in which she stated that she voted with the majority because she believed that the law violated equal protection and not any right to privacy. Justice O'Connor was one of the three current justices who were sitting on the Court when Bowers v. Hardwick was decided, and was one of the five justices who voted to uphold the Georgia sodomy statute at that time. She was not voting to reverse Bowers because she believed it was correctly decided. She also made it clear that she would vote against any attempt to extend the marriage laws in this country to homosexuals.
Not surprisingly, the dissent was written by Justice Scalia, the Court's most right-wing member. He expressed his dissent by reading his opinion from the bench, something he does when he is particularly incensed by being on the losing end of a decision. No question that he is an enemy of ours despite his pronouncement that he "has nothing against homosexuals." Keep this in mind when you are next tempted to vote for George W. Bush, who has said he'd like to appoint more judges like Scalia and Thomas. As usual in these things, Scalia's dissent was joined by Chief Justice Rhenquist and Justice Clarence Thomas. However, Thomas wrote a separate, one page dissent in which he opined that if he were a Texas legislator, he would have voted to do away with the sodomy statute.
I urge all of you to read the opinion for yourself. It will become the basis for America finally allowing us to be treated like equal citizens. Sometimes justice does prevail. The decision can be found at http://www.supremecourtus.gov/opinions/02slipopinion.html under the name Lawrence v. Texas.
Particularly poignant to me was how diverse the two defendants in this matter were. Tyron Garner is young and black. John Lawrence is older and white. I can't think of two men who more accurately reflect our diversity than these two reluctant heroes. We should all thank them from the bottom of our hearts for having the courage to stand up and take this all the way to the highest court in America. Bravo, gentlemen!
There will be many celebrations today and through this weekend and, for all of you in Texas and in other states with sodomy laws on the books, go home and, well, commit a little sodomy!
13. Canada to Legalize Gay Marriage
June 18, 2003
In a stunning announcement yesterday, Canadian Prime Minister Jean Chrétien's cabinet agreed to open marriage to same-sex couples, becoming only the third country in the world to extend full equality in marriage to gay and lesbian couples. According to the interpretation of the courts these unions should be legal in Canada. We will ensure that our legislation includes and legally recognizes the union of same-sex couples,
Chrétien said to reporters after the meeting.
The decision takes immediate effect in Ontario as a result of the recent high court decision there. The Canadian government will immediately begin drafting the modifications to the current marriage laws and they are expected to pass in the next few months. Because Canada does not impose a residency requirement, gay couples may be legally married in Canada once the law has passed, although the marriage may not be immediately recognized in other countries. The new law should also help demonstrate that gay marriage is no threat to heterosexual marriage and could be a further basis for forcing legalization of gay marriage in the US.
I'll have much more to say latter this summer after I've had a chance to digest these events. Gentlemen, start planning those weddings! On a personal note, my partner, Richard, and I are making plans to marry in Ontario in August-September. Anyone know a Reform rabbi up there?
June 12, 2003
After reviewing Tuesday's ruling by the Ontario Court of Appeals, the province's Attorney General, Norm Sterling, instructed provincial officials to begin issuing marriage certificates to gay and lesbian couples. Sterling's statement indicated that Ontario would not appeal the decision, thereby dropping the last barrier to legal gay and lesbian marriage in Ontario. Already, 15 couples have applied to the city of Toronto for marriage licenses, all of which will be granted, making the province the first to officially grant full equality to gay couples in North America. Way to go, Ontario!! It's going to give a whole new meaning to honeymooning at Niagara Falls.
June 10, 2003
After a landmark ruling by an Ontario court, the City of Toronto, Ottawa, has become the first city in North America to issue marriage licenses equally to heterosexual and homosexual couples. Unless the ruling is appealed, Canada's largest city has granted full equality to gay couples, rather than the lesser status of civil union provided in the province of Quebec and the US state of Vermont. The two men who brought the suit will be married later today and the court's decision retroactively recognized two gay religious marriages that took place in 2001, ordering the city to register the two couples.
The Canadian government has not yet decided whether to appeal the court's decision but will have to act quickly since the ruling has immediate effect. This victory follows a May decision in the province of British Columbia giving the government until July 2004 to change its law to include same-sex couples within the definition of marriage.
14. From Toronto to Houston: What it All Means
July 2003
I don't think any person, gay or straight, can help but see that June 2003 will go down as one of the most momentous months in the gay civil rights movement. First, there was the decision in Ontario to begin granting marriage certificates to same-sex couples, followed shortly thereafter by the announcement by the Canadian government that it would legalize gay marriage throughout Canada. While we were still celebrating this breakthrough, and trying to parse its legal ramifications in the US, the US Supreme Court released its remarkable decision in Lawrence v. Texas, in which it not only threw out its prior decision on sodomy laws but laid the basis for some further advances in US gay rights. That's what I'll try to address with this column.
To begin with, it's useful to understand a little about how the US courts evaluate issues like this when it comes to Constitutional law. There are two important ways that the Supreme Court can use to evaluate whether a law, such as the Texas sodomy statute, is Constitutional. One is to evaluate the law based on the Equal Protection Clause, the other is to evaluate it based on the Due Process Clause. Both are contained within the first clause of the Fourteenth Amendment, which provides that No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Equal Protection means that no group of people can be singled out for different treatment. This would mean that the Texas law, which prohibited same-sex sodomy but not different-sex sodomy, was suspect because it violated the equality rights of homosexuals. However, simply finding that there is unequal protection does not immediately make the law unconstitutional, since the rights protected under the Equal Protection Clause are not considered to be fundamental rights. The Court must go undergo a further analysis, called rational basis analysis, which requires a State to show that the law is rationally related to a legitimate State interest.
On the other hand, the Due Process clause is expressly concerned with fundamental rights, even when those rights are not specifically articulated in the Constitution. When a fundamental right is implicated, the law is subjected to strict scrutiny, which means that the State must show that the law is narrowly tailored to achieve a compelling state interest. When a fundamental right is involved, a law regulating it is almost certain to be found unconstitutional.
Over the last 75 years or so, the Supreme Court has begun developing the fundamental right to privacy, once defined by Justice Oliver Wendall Holmes as the right to be left alone.
The Court has previously carved out a right to privacy in cases regarding the right to marry (striking down barriers to interracial marriage), procreation (striking down laws against contraception and abortion), and family. In the prior sodomy case, Bowers v. Hardwick, the Court refused to extend privacy rights to homosexual sodomy. Indeed, the Bowers holding expressed the majority's vehement condemnation of homosexuality, ignoring the fact that the challenge included a heterosexual couple who had been convicted of heterosexual sodomy under the Georgia law.
Had the Supreme Court wanted to, it could have struck down the Texas law on the basis of Equal Protection, and this was the gist of Justice Sandra Day O'Connor's concurrence. Such a holding would have been welcome, but would have meant that laws against sodomy that did not distinguish between homosexual and heterosexual conduct would have been upheld, as the majority recognized. The decision would have done nothing to reverse or, at least, minimize the prior holding in Bowers. Indeed, Justice O'Connor, one of the three remaining justices who decided and one of the two remaining who voted to uphold the Georgia sodomy law in the Bowers case, stated in a separate opinion that she would not join the majority in voting to overrule Bowers.
Fortunately, the majority (excluding O'Connor) chose to strike down the law, and reverse the Bowers decision, on the basis of Due Process, which enforces the view that private sexual behavior between adults is a fundamental right. In particular, the majority endorsed Justice Stevens ringing dissent in the Bowers case, which concluded that the fact that a State's governing majority viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice and that individual decisions about intimate physical relationships, even when not intended to produce offspring are a form of liberty that due process protects. Even though the majority stated that they could have struck down the law based on the Equal Protection argument, it chose the Due Process route in order to be able to reverse Bowers, which, the majority goes on to say, demeans the lives of homosexual persons.
I cannot emphasize enough the significance of the overturning of the Bowers decision which had been used to justify a tremendous amount of anti-gay discrimination, a fact that the Justice Kennedy noted when he wrote the stigma this ... statute imposes, moreover, is not trivial.
Although the Court specifically stated that it was not ruling that marriage laws should be extended to same-sex couples, it did cite European law for the first time, indicating that it could see that the trend in other countries was toward greater recognition of gay rights. Furthermore, the majority merely stated that this particular case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
They did not, however, forbid States from extending such formal recognition. Justice O'Connor, in her separate opinion clearly states that she would vote to uphold a law forbidding gay marriage but only if a State can articulate another legitimate state interest, such as preserving the traditional institution of marriage.
Even she, however, seems to recognize the changing tide of opinion, stating that moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause to justify a law that discriminates among groups of persons.
In his blistering dissent, Justice Antonin Scalia recognized that the majority's opinion would ultimately lead to legal recognition of gay marriage. State laws against ... same-sex marriage ... are called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude [same-sex marriage] from its holding.
Justice Scalia also finds fault with Justice O'Connor's concurring opinion, believing that her reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. [She] seeks to preserve them by the conclusory statement that 'preserving the traditional institution of marriage' is a legitimate state interest. But [this] is just a kinder way of describing the State's moral disapproval of same-sex couples. ... In the jurisprudence Justice O'Connor has seemingly created, judges can ... invalidate [laws] by characterizing them as 'expressing moral disapproval'.
In light of the Canadian decision to legalize gay marriage, and the setting aside of all laws that criminalize and invade our most intimate conduct, where is this all leading? I am amazed to find myself, in part, in agreement with Justice Scalia, who recognizes that the majority naively believes that they can hold back the tide.
To get from Lawrence to recognition of gay marriage, three things will have to be decided. First, can State's prohibit gay marriage, as many have tried to do with Defense of Marriage Acts
? Second, can the US federal government refuse to recognize a state law granting gay marriage (or some other status, such as civil unions), as it did when President Clinton signed the federal Defense of Marriage Act
? Finally, can the US refuse to recognize a Canadian gay marriage?
A heterosexual marriage performed in Canada is recognized in the US (and vice versa) under the principle of comity, which says, in essence, that I give recognition to your laws because you recognize my laws. However, the US is now faced with a dilemma: it must either recognize all legal Canadian marriages or only extend recognition to those that would otherwise be legal in the US. In addition, marriage between the two countries is recognized pursuant to treaty. This creates diplomatic strain since the US will now have to prohibit recognition of some Canadian marriages and/or repudiate its treaty. It will be quite awkward but it can be done and there may be some retaliation from our increasingly independent neighbors.
The state and federal Defense of Marriage Acts are also an obstacle, but they will inevitably fall as well. Marriage, as the Court pointed out in Lawrence, is a fundamental right. Thus, laws regulating or prohibiting marriage are subject to strict scrutiny analysis of Due Process review.
In 1967, the Supreme Court overturned a Virginia law, similar to laws in 16 other states, that made it illegal for a white person to marry a person of another race. In Loving v. Virginia, an interracial couple, married in Washington, D.C., moved to Virginia, where they were arrested and sentenced to one year in jail. The trial judge, however, suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. Although the Court in Loving v. Virginia overturned the antimisegenation laws on the basis that a racial law such as this violated the Equal Protection Clause, it also would have overturned the law on the basis of Due Process.
Thus, marriage was placed in that category of fundamental rights
that subjects laws regulating marriage to Due Process analysis. The State must show that laws regulating marriage must be narrowly tailored to achieve a compelling state interest. I'm not aware of any law that has ever passed this strict scrutiny test. Perhaps prohibitions on gay marriage might be found to be a compelling state interest
but Lawrence seems to say that laws regulating gays can't even stand up to the legitimate state interest
required by the rational basis analysis. Defense of Marriage Acts will unquestionably be found unconstitutional.
The last restrictions will fall when at least one state recognizes gay marriage. Under the Privileges and Immunities Clause of the Fourth Amendment to the US Constitution, states are prohibited from creating unreasonable distinctions in law between citizens of one state and citizens of another. Thus, if I get married in Massachusetts, and I move to Maryland, Maryland must recognize my Massachusetts marriage under this amendment (sometimes called the "comity clause"). One state's prohibition against recognizing gay marriages that are legal in another state must reasonably relate to legitimate state or local purpose. And as we know from Justice Scalia's analysis of Justice O'Connor's opinion in Lawrence, moral disapproval of same-sex couples is not a legitimate state interest. Thus, each state will most likely have to extend recognition to all marriages performed in all other states, even if those other states allow gay marriage.
Supreme Court justices do not idly write their decisions. They know other courts and other attorneys will comb through their words looking for ways in which to interpret other cases. The measured references to marriage in these opinions lead me to believe that the Justices understand that laws that discriminate against same-sex marriage are ultimately unconstitutional on the basis of Due Process analysis as well as Equal Protection. Even Justice Scalia recognizes the inevitable result. If, as this Court holds, we have a fundamental right to be ourselves, and if, as Justice O'Connor held, we have a right to equal protection, then we cannot be denied the same rights, including marriage, adoption and immigration, as heterosexuals.
15. The Texas Sodomy Case: An Inside Perspective
August 2003
This month, I am reprinting an article from the August issue of Outsmart magazine that provides an interesting perspective on the Texas sodomy case by my friend, Houston attorney Mitchell Katine. As many of you know from reading this column, Mitchell was the original attorney for the two defendants in the Lawrence v. Texas case that resulted in the U.S. Supreme Court's decision to invalidate all U.S. sodomy laws. He was one of my law professors, is an adjunct professor of law at South Texas College of Law, where he teaches AIDS and the Law, and a long-time friend of my partner, Richard, and me.
I want to thank Mitchell and Tim Brookover, editor of Outsmart, for allowing me to reprint this article.
For more on the case, see my prior articles on this site.
GOOD NEWS
Lawrence and Garner attorney Mitchell Katine reflects on the case that changed America and the day of the landmark decision
OutSmart Magazine - August 2003
On the morning of June 26, I was sitting at my desk, surrounded by television cameras and newspaper reporters as we waited for one of the most significant U.S. Supreme Court decisions in the last hundred years. Earlier that Thursday morning, I had called Lambda Legal in New York to request that they contact me as soon as they heard anything. I knew I would receive the news of the decision within a few minutes of its release, but I didn't know if it would come by e-mail, telephone, or some other means.
Almost five years before, John Lawrence and Tyron Garner contacted me after their arrest. I immediately knew that this case was unique because sheriff's deputies arrested two consenting adults for having sex in the privacy of their home on the sole charge of violating Texas Penal Code § 21.06, otherwise known as the Homosexual Conduct Law.
Since September 1998, I have had the opportunity to get to know John Lawrence and Tyron Garner on a personal level and to observe the transformation of this case from a local justice of the peace court case to a case that held extreme significance for gay and lesbian people throughout the country.
John and Tyron are extraordinary and regular guys at the same time. Throughout the years that this case worked its way through the courts, John and Tyron allowed their lawyers to proceed with the case in the manner necessary to succeed while at the same time seeking no personal gain or attention.
Regardless of the risks of going forward, John and Tyron were willing to go all the way based on the knowledge that they were doing the right thing and based on the hope that the Supreme Court would rule likewise. Had the Supreme Court not taken the case, or if the ultimate decision was not in their favor, they both would have had this criminal conviction on their records for the rest of their lives.
I realized from the beginning that the facts of this case were compelling and the law in this case was unjust. However, there have been many important cases the Supreme Court has received but has declined to consider. This could have been that type of case. Nevertheless, we received word in early December of last year that the Court accepted the Lawrence v. State of Texas case and that we were all going to Washington, D.C.
The Supreme Court set March 26 as the day the case was to be heard. Oral arguments for John and Tyron's case were to be presented by Paul Smith, a gay attorney with a Washington, D.C., law firm, who had already argued several cases before the Court. Months before the announcement, I applied for a special license and became admitted as an attorney before the Court. I obtained this license in anticipation of going to the Supreme Court and being able to sit in a special section close to the Justices reserved for attorneys licensed by the Court. Although Tyron was not able to attend oral arguments, I was privileged to travel with John.
John and I flew to Washington, D.C., together, and I think that we were in awe throughout the entire trip. Neither John nor I had ever been to the Supreme Court and did not know what to expect on our first visit.
There is limited seating at the Supreme Court, so if you want to get a seat, you must get there early and wait in line. The sun had not yet come up when I arrived at the Supreme Court building, but I was greeted by a line of law students who had slept in line for the past two days. I visited with a few who had their sleeping bags and breakfast in hand and discussed the oral arguments and issues of the case.
Later, in the courtroom, I was struck by the way in which the Justices questioned Paul Smith and Harris County District Attorney Chuck Rosenthal. Many of their questions were from a practical perspective, dealing with various items such as gay adoptions and adultery. It was clear to me that the Justices were expressing their opinions out of a reflection of their thinking and legal analysis. Justice Scalia's questioning made his opposition to homosexuals clear, while some of the other Justices expressed their dismay at government intrusion into the home. There were moments of laughter and astonishment based on the various questions by the Justices. At the end of the day, I think that everyone on our side of the case could not help but feel that Paul Smith had made an excellent presentation.
Nevertheless, it was difficult to try to predict the outcome of the case due to the potential misinterpretation of some of the questioning. Between March 26 and the day that the decision was rendered on June 26, I never assumed that the case was a definite win, and always held in reserve the possibility that it could have been a total loss. Had we lost this case, the impact on me personally would have been devastating.
I have been in a relationship with my partner, Walter, for almost four years, and we have adopted two babies together. My partner and I try to present a very positive, healthy, and loving atmosphere in front of the children, and it is important to us that our children learn to be honest and law-abiding citizens. However, to proceed as gay men in parenting these children, and simultaneously being considered criminals by the state of Texas would have been a very difficult challenge. If there was a law that classified us as criminals based on our relationship, how could we teach our children to respect the law?
These thoughts passed through my mind as I sat at my desk. At 9:12 a.m., the first word of the decision came from my 67-year-old mother, Loni, who lives with my father in a retirement community in Fort Lauderdale, Florida. My mother was watching MSNBC and hearing the news report, she picked up the telephone and called me. As the television cameras were rolling and the reporters hung on to every move and word that I said, I heard my mother say, "You won, son. You won."
Throughout the morning, I received additional reports as they were released to the media and soon learned that the Supreme Court had made a decision that was greater than my highest hopes. Little did I anticipate that the forthcoming decision would go much further than simply releasing John and Tyron from the wrongful conviction.
Throughout my legal career, which began in 1985, I have seen the Supreme Court case of Bowers v. Hardwick used over and over in many different cases to discriminate against gay and lesbian people, as well as heterosexual people, engaged in private activities in their home. One of the three questions presented to the Supreme Court in Lawrence v. State of Texas was whether Bowers v. Hardwick should be overruled. This was the broadest and boldest action the Court could have taken, and therefore, I felt was the least likely for it to do.
There are special considerations for the Supreme Court to overrule one of its prior decisions. In this case, the Court explained that many of the historical statements used to support the prior Bowers opinion were wrong and provided examples of how many states have abolished their own sodomy statutes. Hence, when I learned that the Court had overruled Bowers, my excitement as to the future possibilities was immeasurable.
The Lawrence majority opinion, written by Justice Kennedy, contains many strong statements reaffirming the right to privacy and the rights of gay and lesbian people as included in the Constitution's protections.
For the Supreme Court to recognize that sexual practices engaged in by persons who have adopted a "homosexual lifestyle" come under the right to liberty under the due-process clause is truly a historic moment in the development of the nation. In concluding the opinion, Justice Kennedy makes it clear that the Constitution is evolving and that each person can invoke the principles of the Constitution in their own search for greater freedom.
Now that the case is over and Bowers v. Hardwick is a part of history and can no longer be used against gay and lesbian people, we must look to the future and the work that is left to be done to achieve true equality as people in America.
Public opinion needs to be the focus of our work. In order to achieve success in the end, we will need to persuade public opinion that gay and lesbian people are not seeking special rights but only equal rights. In all survey reports that I saw, the numbers confirmed that public opinion regarding gay and lesbian people have improved. The Lawrence decision is a step in the right direction that may be used to achieve some, if not all, of the rights that are needed. With regards to marriage, I certainly believe that gay and lesbian people should have the same right to marry as their heterosexual friends.
John and Tyron are truly the heroes in this story, and Lambda Legal is the fighting force behind the ultimate achievement. When John and Tyron called me in 1998, it was the right time for the right case. The world feels like a different place since 1998. I am certainly happy to say that it feels like a safer and friendlier place.
Personally, the response to the Lawrence decision has been tremendous. I have received hundreds of e-mails and calls from people I know and people I don't know. I have received bouquets of flowers congratulating me on the case. I have received telephone calls and personal greetings from people who were weeping and explained that they have been waiting for this day their entire lives. John and Tyron are thrilled by the decision and, I believe, now truly appreciate the significance of this case, which began with such unfortunate circumstances and has ended with such glory.
My children, Sebrina and Sebastian, are not yet one year old. However, I am saving the newspaper clippings and television reports for them. When they are old enough to understand what has gone on during the first few months of their lives, I will be able to show them that I had a small part in helping make Texas and the entire country a free place for them to live and love.
Mitchell Katine, an attorney with Williams, Birnberg & Anderson L.L.P, reflected on the prospects for the Lawrence case for our March 2002 issue ["Making History"]. Josef Molnar worked with Katine on that essay and this one.
16. When There is No Justice
October 2003
I received a rather lengthy letter recently from someone who believed he had been frequently wronged in his life. He recounted a host of problems he'd encountered, from the mother who'd abused him to the lover who'd left him. He ended his letter with the plea, "I want justice." Unfortunately, I had no answer for him, but it got me to thinking about the relationship between law and justice. It is a fact of life that the law can be a sometimes inadequate substitute for justice.
In some cases, there may be no justice because the law provides no legal rights. For example, there are many gay people who live in places where the law provides no protection for our civil rights. When my partner and I lived in Texas, not only were there no laws protecting our relationship, it was perfectly legal to discriminate against us in areas such as housing and employment. Thus, when I was let go from a job simply because of my sexual orientation, I had no recourse - I had been wronged, but I could not look to the law for justice. The anger I felt was palpable, and was one of the things that led me to become a lawyer.
Sometimes, there is no justice even when the law provides a cause of action or protects a right. For example, several years ago, a dear friend of mine was in an automobile accident. In considerable pain, she was taken to the emergency room where the E.R. doctor examined her and told her that she was bruised but otherwise unhurt. Several days later, she returned to the emergency room, unable to breathe without considerable pain. This time, she was told that she'd suffered several broken ribs in the accident. She called me when she got home, angry at the doctor and ready to sue to fulfill her sense of injustice.
Had the first doctor missed the diagnosis of broken ribs? Absolutely. Had he committed malpractice? Maybe, but even if he had, what would have been the remedy? The first doctor treated my friend by giving her a prescription for painkillers and recommending that she wear a girdle for a few weeks, until the pain subsided. What would he have done if he'd discovered the broken ribs? The same thing - the treatment for bruised ribs and broken ribs was exactly the same. My friend had suffered a legal wrong for which there was no justice because there was no legal damage.
In other cases, the law provides a remedy, but it doesn't come near to bringing us a sense that justice has been obtained. Fifteen years ago, on December 21st, 1988, Pan Am flight 103 exploded over Lockerbie, Scotland, killing 259 passengers and crew members, and 11 people on the ground. The families of the dead brought a wrongful death suit against the Libyan government and doggedly pursued this suit until the Libyan government agreed to admit responsibility and to pay billions of dollars as compensation. But no amount of money will outweigh the loss of a loved one and, once again, the scales of justice are unbalanced.
Similarly, the law may limit the forms that justice may take either to balance the rights of two parties with competing interests or to prevent society from deteriorating into brutality. For instance, taking the law into your own hands may appeal to your sense of justice, particularly if you are seriously wronged, but it usually has legal consequences of its own.
Finally, there are times when the law provides a cause of action and damages for a wrong but limits the time in which you can seek justice. These limitations are intended to prevent people from "standing on their rights" and apply to almost all civil actions and many criminal actions. Sometimes these limits can seem particularly unfair, but they ensure that crucial facts and witnesses are still available, and that the damages be no more than necessary to make a person whole. For example, a number of suits against Catholic priests and diocese have been dismissed because the statute of limitations had run out. The victims are outraged because they have failed to obtain what they believe is a just outcome. However, justice requires that there be closure of some kind for all parties, including the defendants.
President Carter once said, "life can be unfair." At the time, it sounded cold and uncaring to me, but as an attorney, I understand his point these days. Life is unfair at times but don't ever let that unfairness blunt your sense of justice or injustice. The boundaries of our society have been expanded over the years by those who have converted their outrage over an injustice into a pursuit of justice.
17. Life or Death Decisions
November 2003
Recently, the news in the United States has been dominated by the struggle over the life — and death — of Terri Schiavo, the Florida woman who has been in a coma for over 13 years. This sad struggle, which should have been a very private matter, demonstrates why it is imperative that gay couples and singles should execute a written document called an advance directive.
I don't know any more about Terri Schiavo than what has been said in the press. Thirteen years ago, at the young age of 26, Terri suffered an apparent heart attack which left her in a persistent vegetative state. Since that time, Terri's husband has been battling over her care with Terri's parents, who have accused him of attempted murder, among other things. The gist of the battle is this: Mr. Schiavo contends that his wife would not want to be kept alive in this state; her parents believe otherwise. Although Terri is able to breath on her own, she is kept alive by means of a feeding tube. Mr. Schiavo wants to remove the tube, thereby allowing Terri to die; her parents want to keep her alive, believing that she will recover in time.
After years of legal wrangling and many court battles, a court granted Mr. Schiavo's request to allow Terri's feeding tube to be removed. Goaded on by a coalition of anti-abortion groups and advocates for the disabled, the Florida legislature unwisely (and probably unconstitutionally) intervened, passing a law specifically ordering the tube replaced. Governor Bush quickly signed the law and Terri's tube was replaced. As of this writing, Terri's husband is back in court with a challenge to the law that most legal observers believe he'll win.
I bring up Terri's case to make an important point: if it is this difficult for a legal spouse to make a decision such as this in the face of family opposition, you can imagine how much more difficult it would be for a same-sex couple. As I've said in my previous comments about estate planning, if you don't make these decisions for yourself when you are able, then you leave these decisions to others in your family who may not respect your wishes.
Terri Schiavo was a young woman at the time of her heart attack. She apparently never gave great thought to mundane things, such as who should make medical decisions on her behalf if she were unable to do so, or what she would want them to do or not do. As we probably all do at one time or another, she may have expressed her wishes to her husband. He claims that she would not want to be kept alive in the state she is now in. Unfortunately for all concerned, Terri never wrote her wishes down and so it is left up to the courts to try to determine what Terri would have wanted.
In the absence of a valid advanced directive, when a person, such as Terri, becomes incapable of making medical decisions for them self, states usually defer to other family members, who are considered to be acting in the best interests of the incapacitated person. In the case of a minor, the parents or legal guardian are legally entitled to make the decisions. In the case of an adult, deference is given to the legal spouse, if there is one, after which the decisions can be made by an adult child of the incapacitated person, if there is one, then a living parent, etc. If there is no family, the decisions are made by a court-appointed guardian or conservator.
Notice that this "chain of decision" does not include your gay partner. Under the laws of most US states, your partner has no place in this process, with the exception of Vermont civil unions and California registered domestic partners, who have been extended many of the same rights as married couples. Even these couples need to be cautious — their rights in this area do not currently exist outside of those respective states. You need to have an advanced directive.
The most important document is the medical power of attorney, which designates the person who you want to make medical decisions on your behalf if you are otherwise unable to do so. In most states, this document should be witnessed and notarized, and you should review it periodically and modify it, if needed.
You should also have a designation of guardian or conservator. This document directs a court to appoint a named individual as your conservator over your estate and/or your person, should the need arise. Although the court is not usually required to appoint that person, most will do so unless there is a compelling reason not to do so. You may also list those individuals that you do not want to be appointed and, in most states, the court is legally unable to grant conservatorship to those persons. As in the medical power of attorney, you should name at least one alternate conservator in case the first named person is unable or unwilling to take on the responsibility.
You may also want to have a physicians' directive, which tells a doctor whether or not you want any extraordinary measures to be taken if you are near death. Such measures can include withholding food, water and medicines, or removal from a respirator. In most states, if a treating physician is unwilling or unable to follow your directive, another physician must take over your care. In addition to providing a copy of this to your partner or best friend, a copy of this should be given to your regular doctors and brought with you if you are admitted to a hospital.
Finally, you should consider drafting a hospital visitation designation, which directs who should and should not be allowed to visit you in the hospital, just in case the staff is reluctant to immediately honor the medical power of attorney. Nowadays, most hospitals will recognize gay partners and allow them in the room but this can help convince even the most reluctant nurse.
Most attorneys have these documents in template form and can draft them for you for a reasonable fee. You can also get copies of such directives through Nolo Press, at http://www.nolopress.com, but if you do it yourself, you should at least have a local attorney review them to ensure they conform with your state's laws.
As always, it is of no help if your otherwise-valid advance directive and related documents are not readily available to others. In addition to giving the original to the person you've appointed to make your decisions, you should also provide copies to all of your physicians and family members. I also recommend that you discuss your directives with those people you give copies to so that they are aware of your wishes and talk with you about the choices you've made.
18. Massachusetts Supreme Court Affirms Gay Right to Marriage
November 18, 2003
In a decided win for the rights of same sex couples in the US, the Supreme Court of Massachusetts affirmed the right of same sex couples to legally marry in Massachusetts. In its 4-3 ruling in Goodridge et al. v. Department of Public Health, et al., the Court ruled in favor of seven couples who had filed suit after their applications for marriage licenses were denied. The Court stated:
I will have much more to say in my December column, after I've had a chance to read the entire decision and digest it. But this is certainly a great day for us!
19. Why Marriage Matters
December 2003
What an amazing year 2003 has been for gay civil rights! Simply having the U.S Supreme Court strike down the Texas sodomy law would have been cause enough for celebration. But the breadth of the decision, which affirmed our most basic civil right, was stunning. Who knew that the decision would be followed by the extension of full marriage rights in Ontario, British Columbia and, eventually, all of Canada? And even further gains were had in the recent decision of the Massachusetts Supreme Court that marriage laws that excluded same sex couples violated those couples' civil rights.
Even the disappointment suffered in New Jersey, where a lower court dismissed a suit brought by seven same sex couples for the right to marry, is only a temporary setback, since there is an appeal planned, probably directly to the New Jersey Supreme Court. If nothing else, the suit here, and the result in Massachusetts, has prompted the New Jersey legislature to draft a domestic partners law similar to California's. The proposed law is expected to pass in January, 2004 and Governor McGreevey has stated he will sign it.
In this month's column, I want to address the point that marriage matters. I believe that this is one of those turning points in world history and that we should not settle for less than full marriage rights. I also hope to leave you with some arguments you can use in order to help change the minds of the people around you, for if you can change one person's mind, and they change someone else's mind, there will be fewer and fewer people against us.
My initial reaction when I read the decision in Massachusetts was sheer elation. However, the verbal backlash that began shortly after the decision was announced was particularly disconcerting. Would we achieve real equality in the U.S., or would there be a legal and political backlash that would set back gay rights for a generation? And would we be better served if we backed away from the push to marry and simply sought to protect our relationships with civil union or domestic partnership laws?
The Massachusetts decision imposes a 180-day deadline on the Massachusetts legislature to come up with a set of laws that don't exclude same-sex couples. If the legislature doesn't act within that time, the Supreme Court will act in its stead. The Court's decision seems unclear in that it does not give a good indication as to what sort of legislative changes it would uphold. Some believe the Court would uphold a civil union law, similar to Vermont's, that would extend most or all of the rights of civil marriage to same-sex couples, but would avoid the political minefield of calling it marriage.
Others believe the Court would only uphold a rewrite of the state's marriage laws, replacing all references to man and wife
with some sex-neutral equivalent, as in Canada. Even as I am writing this, the Massachusetts Senate has asked the Court for clarification as to whether civil union would be acceptable, and a civil union law could be introduced next week.
In response to the Court's decision, the current governor of Massachusetts has vowed to fight for a constitutional amendment that would define marriage as between one man and one woman. Fortunately, the process of amending the Massachusetts constitution would take at least three years, during which it is clear that some form of marriage or civil union will go into effect in Massachusetts anyway. Gay civil rights activists and supporters of gay marriage hope that during that time, the people of Massachusetts will get to see that gay marriage doesn't change much, if anything, about their own lives. Indeed, in Vermont, the backlash against civil unions has mostly faded away, and few people now realistically believe these rights will be rolled back.
Besides, rolling back these rights, once they have been in place for a while, creates a whole new set of legal problems. For example, if two men are legally married and buy a house, courts have to address what happens if that status changes. If a legally married same-sex couple has a child, is that child robbed of a legal parent if the parents are no longer considered married. When many states abolished common-law marriage, they had to grandfather
those couples who had fulfilled the requirements for common-law marriage before the law went into effect.
As part of the backlash, there has been a lot of talk about passing an amendment to the US Constitution and, indeed, such an amendment has been introduced in Congress, and many Republican leaders, including Senate Majority Leader Bill Frist, have expressed support for such an amendment. However, many other members of Congress, including a number of conservative or libertarian Republicans are adverse to modifying the Constitution and have expressed reservations about such an effort. Furthermore, even among those who favor an amendment, there is much disagreement, with some favoring a ban on gay marriage only, and others favoring prohibitions against civil unions as well.
The power to amend the Constitution is found in Article V of the Constitution, which provides that the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. The drafters of the U.S. Constitution wisely created a process that has resulted in the passage of only 17 amendments in the last 212 years (two of which don't really count since this number includes Prohibition, the 18th Amendment, and its Repeal, the 21st Amendment).
Thus, in order to pass an amendment prohibiting gay marriage, both the Senate and the House of Representatives must draft an amendment that both can agree on and that passes both houses by a two-thirds majority, rather than the simple majority that otherwise applies to the passage of laws in Congress. Assuming that all of this occurs, the second hurdle must be cleared, which requires at least 38 out of the 50 states to ratify the amendment. Until fully ratified, such an amendment would not be binding, and other states in the US are free to legalize marriage or civil union, or not, as they so desire. The last attempt to amend the Constitution, the Equal Rights Amendment, failed to be ratified by the requisite number of states, despite initial momentum in its favor, and it is likely that a gay marriage amendment similarly fail.
So why does gay marriage matter? After all, some gay and lesbian activitists have been preaching against marriage for years - that marriage was a heterosexist institution that should not be the model for our relationships. Furthermore, many couples today - gay and straight - would rather live together than marry. In Ontario and British Columbia, for example, there have been many same-sex couples who haven't yet tied the knot and don't plan on it, either.
Some people have argued that marriage provides legal protections that same-sex couples otherwise have to put into place with contracts. This is a valid argument, which underlies the reason why, over the centuries, civil marriage laws have come into place as a supplement to and, often a replacement for, religious marriage laws. If the bundle of legal rights associated with marriage is the sole purpose for civil marriage, then why shouldn't we put our efforts into enacting civil union laws?
The answer comes down to one single word, respect.
We should no more accept the separate but equal
status of civil marriage than African-Americans should have accepted separate but equal
in their struggle for rights. When the law treats you as inferior, then everyone around finds it easy to believe you are inferior, and you will find it hard to believe yourself that you are the equal of every other person. We cannot force others to respect us, but we can refuse to accept a status that denigrates our respect for ourselves. To settle for civil union is to buy into the lie that straight is normal
and gay is not.
So what can you do to help? First, if you haven't done so already, consider coming out of the closet, even if just a little. The number one reason for the breakthroughs in civil rights that we have achieved in recent years is the number of straight people who now know they have a gay relative, friend, neighbor, or co-worker. It's hard to discriminate against someone you know. You'll also find many of the fears you had about coming out were simply in your mind.
Second, even if you don't believe you can come out, don't quietly sit by when someone spouts off against gay marriage or other gay rights. If someone tells you that gay marriage is a threat to straight marriage, tell them the biggest threat to marriage is the legalization of divorce. When they say the Bible forbids gay marriage, tell them that the highest divorce rates in the US are in the Bible Belt and that approximately 70% of marriages in the state of Mississippi end in divorce. Point out to them that shows like Who Want's to Marry a Millionaire
and celebrity marriages like that of Britney Spears cheapen marriage far more than a civil ceremony for a same-sex couple. Let them know that every church in the US is free to refuse to marry an interracial couple even though every state in the US allows such marriages. When they try to say that gay marriage will lead to the legalization of marriages between brothers and sisters, adults and children, or that someone will want to marry their dog, tell them you think that if two consenting adults want to marry, it's their business not yours.
There are plenty of straight people who support our rights so you're not going to automatically brand yourself as gay simply because you tell someone you disagree with them and that you think gays and lesbians should have the right to marry.