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Anniversary of Marriage Equality

6/26/2016

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Today marks the first anniversary of the U.S. Supreme Court's landmark decision in Obergefell v. Hodges. That decision recognized marriage equality throughout the United States. One year ago today my marriage to my spouse, Betsy, became legal. No longer did we need to worry about whether we were "legal." Most people have never been in that situation. Same-sex couples, however, know the pain of uncertainty when one's legal rights are determined by state "Welcome to....." signs.

Still, contrary to what many people believe, the Obergefell decision did not resolve all the issues facing same-sex couples--especially those with children.

A recent Tennessee decision is a case in point. On Friday, June 24, 2016, a Knox County judge ruled that a same-sex spouse did not have parental rights or obligations to a child born to her spouse during the marriage. That same judge would never issue the same ruling if the couple were heterosexual.

The couple in this case used assisted reproductive technology to have their child. Sabrina and Erica Witt were married in 2014. Tennessee did not recognize their marriage. The couple decided to start a family and Sabrina gave birth to the child in 2015. When Sabrina filed for divorce her lawyer argued that Erica has no parental rights or obligations because Tennessee law uses the terms "husband" and "wife" in the artificial insemination statute.

The case is on appeal but other states have similar cases pending. The other states also fell into the category of nonrecognition states before the Obergefell decision. 

What many in the LGBT community fail to understand is our families remain at risk because of animosity directed against us. Many lawyers also fail to understand the pitfalls facing same-sex couples and their families. Litigation is expensive and appealing a bad decision adds to those expenses.

Lesbian and gay male couples who have children or plan to have them need to take specific steps to protect the rights and obligations of both parents. That includes shared parenting agreements and second parent or stepparent adoptions. No couple should rely on the "well, heterosexual couples don't have to do this." That may be true but the LGBT experience is different. 

Consider: in few situations will both parents be biologically or genetically related to the child. Couples use assisted reproductive technology, surrogacy and donors (known and unknown) to have a child. When only one intended parent contributes genetic material the other intended parent is an outlier. Some states have a rebuttable marital presumption that recognizes children born during a marriage to be the child of both spouses. That presumption is rebuttable and lacking a genetic or biological connection to the child is a surefire way of rebutting that presumption.

Couples need to consult a lawyer - whether they are married or not - when starting a family. Do not take anything for granted. And, if there is a divorce or separation--think of the impact on the child being denied the love and attention of both parents. Kids do not choose their parents; the adults start the process. It would be nice if the children were put first but that does not happen. The adults fight and the kids pay the price.

The worst part of these custody disputes is that lawyers, like the one representing Sabrina Witt, make anti-gay and anti-family arguments. With marriage equality in place, laws that with gender restrictive language like "husband" and "wife" must be interpreted to mean "spouse." It is a gender-neutral term that will apply to heterosexual and same-sex couples. Unfortunately, we continue to see passive-aggressive behavior from the bench and the bar because of opposition to marriage equality.

Taking steps to validate the rights of the biological and non-biological parent is essential. And, perhaps it won't take a Supreme Court decision to ensure equal rights for all families.
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After Orlando--the need for common sense gun control

6/23/2016

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It's been almost two weeks since the mass shooting at Pulse. Two weeks since many Republicans did their best to avoid acknowledging that LGBT people were attacked. Two weeks since the bigoted and homophobic rantings of ersatz christians praised the killer and condemned those who died or were wounded. 

As we near the one-year anniversary of the Obergefell decision, it is apparent that more needs to be done.  Republicans rail against the LGBT community because that wins them votes with their base. At the same time, they bend over backwards to protect the sale of assault rifles by claiming that doing anything else is a denial of due process. 

The 49 people killed at the Pulse nightclub in the early morning hours of June 12 were denied their constitutional rights to life, liberty and happiness. 

And, the Republicans refuse to do anything--except offer a "moment of silence." But that comes as no surprise. The GOP saw nothing wrong with little kids being gunned down in their school--the shooter had a right to buy that assault weapon. The GOP saw nothing wrong with the Santa Bernardino attack on a Christmas party--those shooters had a Second Amendment right to buy assault weapons--no questions asked. The GOP sees nothing wrong with any of the shootings that have occurred.

The GOP is selective when it talks about due process rights, but only when it suits their purposes. Prospective gun buyers are entitled to it because that's what the NRA wants and Republicans will never stand up to the NRA. To hear Republicans talk one would think the NRA is the 4th branch of government. Republicans are cowards and afraid of the NRA. 

Most Americans want background checks but the Republicans ignore that fact. They only talk about what "the American people want" when it suits their purposes. Otherwise, they become tone-deaf.

Republican dominated state legislatures get their knickers in a twist over transgender men and women using public bathrooms. They create fictional voter fraud to justify restricting voting rights--but just for those who usually do not vote for Republicans.

Republicans
 do not care about the American people. They only care about their own position. They do not care about the danger facing American citizens from people who buy assault weapons and use them for the purpose for which they were designed--killing as many people as possible in as short a time as possible. The Republicans and the NRA are responsible for the deaths in Sandy Hook, Aurora, San Bernardino, Orlando and Charleston.

But, complaining about Republican inaction is not enough. It is equally important to offer some suggestions. Here are mine: 

Background checks--no sales without one;
A two-week waiting period between the time the application is made and the purchase can be completed;
Federal funding for research on the impact gun violence has on the United States;
Declaring gun violence a public health issue;
No one on a "do not fly" list is able to buy a weapon;
Restrict magazine size;
Ban the sale of all assault weapons--no exceptions; limit use to active duty or reserve military personnel and those weapons must be stored at a military installation;
Tax the sale of guns and ammunition (per bullet) at 200%. All tax proceeds are earmarked for anti-gun education;
No grandfathered clauses--all assault weapons must be surrendered;
More state laws, like Connecticut's, that restrict assault weapons;

Over the top? Tell that to the parents of the children from Sandy Hook, the families at Fort Hood, the survivors at San Bernardino and the families of the dead and wounded in Orlando. Tell that to those whose lives have changed forever--who may never recover from their wounds. Tell that to the parents of children killed because they or their friends left their guns loaded and available to inquisitive young minds. Tell that to the kids who killed their friends because they were playing with Daddy's gun and "it just went off."


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    Author

    Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning & probate. She writes on a variety of topics. Joan is nationally recognized for her work in addressing legal issues affecting the LGBT community.

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Joan M. Burda Attorney at Law • lgbtlaw@mac.com • 216.832.8825
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