Same-sex marriage still leaves legal hurdles for couples
BY MAUDLYNE IHEJIRIKA Staff Reporter January 18, 2014 1:38AM
Updated: February 20, 2014 6:09AM
When she and her partner travel, Betty Tsamis always thinks of the legal documents. It’s one of the issues ever present for same-sex couples.
“For a heterosexual couple, it wouldn’t cross their mind to say, ‘I need to travel with my son’s birth certificate. And the civil union card, do I put that in my wallet?’ ” said Tsamis, 47, of Edgewater, who has an adopted 2-year-old son, Max.
“You have to travel with power of attorneys — that is, if you’ve gone through the trouble of executing that. Going out of the country? That’s even more terrifying.”
Marriage is coming June 1 for gay men and lesbians in Illinois. And gay rights activists and same-sex couples were feeling especially grateful for Illinois’ hard-fought Religious Freedom and Marriage Fairness Act in wake of a U.S. Supreme Court ruling Jan. 6 that halted same-sex marriages in Utah pending an appeal.
Many in Chicago’s lesbian, gay, bisexual and transgender community say that development on the same-sex marriage front, however, is one example of why the right to marry here won’t dispel intrinsic legal challenges unique to their community.
“There’s a close analogy. Way back when, we passed the Civil Rights Act. Where are we on civil rights today?” said Rick Garcia, director of the Equal Marriage Illinois Project of The Civil Rights Agenda, the state’s largest LGBT organization.
“Illinois has some of the strongest hate crime legislation in the country, but what happens when you cross the border? You leave all of your protections back home,” Garcia said. “The thing about the marriage law? You can’t pack it up and take it with you.”
Introduced in 2007, Illinois’ new law was passed by the Legislature and signed by Gov. Pat Quinn in November after years-long controversy. A House stalemate was broken after the Supreme Court in June issued a key ruling upholding the right of same-sex couples to claim federal benefits denied them under the Defense of Marriage Act. The Court also struck down a ban on same-sex marriages in California.
Today, Illinois is among 16 states and the District of Columbia that allow same-sex marriage. Those relationships, however — whether as partners, spouses or parents — are recognized only in states that have approved such laws.
“We have family in Missouri. We go there regularly. They wouldn’t recognize our civil union or marriage if something happened and one of us had to go into the hospital. And they probably wouldn’t allow both of us to be with my son if something happened to him,” said Tsamis, who is going to marry her partner of 7 years, Lura Auwerda, 49.
“That’s a worry for me, because I’d want to be involved in the decision-making process and, of course, in the comfort-giving process for my son,” Tsamis said.
In the Midwest, Missouri, Indiana, Kentucky and Wisconsin are among border states where same-sex marriage remains illegal.
Tsamis and others point to such cases as Langbehn v. Jackson Memorial Hospital, a 2008 lawsuit filed on behalf of a lesbian couple from Washington state who were on a cruise in Florida when one woman suffered an aneurysm. Janice Langbehn died alone at the Miami hospital, which declined to recognize her relationship with her partner of 17 years or their three adopted children, despite a valid power of attorney. A federal district court in Florida dismissed the case the following year, ruling that the state’s law did not require a hospital to permit a same-sex partner to visit.
“So yes, marriage is freeing for us here in Illinois, but there is still that Berlin Wall for us,” said Garcia, noting that even anti-discrimination laws offering basic protections based on sexual orientation are sporadic across the nation.
Close to home, Indiana, Missouri and Kentucky lack statewide public accommodation protections based on sexual orientation, so a hospital, for example, could refuse to allow a gay partner to visit. In the private sector, those states offer no workplace protections based on sexual orientation. Indiana and Missouri also offer no such workplace protections in the government sector, although Kentucky does.
“Our U.S. Constitution requires states give full faith and credit to judicial decrees. A marriage license is an administrative license you get from the state or the county and has historically not been subject to the obligation of full faith and credit,” said Camilla Taylor, director of the National Marriage Project for the Lambda Legal Defense & Education Fund in Chicago.
Though that national legal nonprofit, which advocates on LGBT issues, lost in the Langbehn case, it has posted significant wins, including 2005’s Varnum v. Brien, which legalized same-sex marriage in Iowa; and the 2010 Gartner v. Iowa Dept. of Public Health case, which forced Iowa to recognize same-sex parents on birth certificates.
“If you don’t have a genetic relationship to your child, you’re relying on your marriage to create that parent-child relationship. But that parent-child relationship is vulnerable, too, if you travel to a state that denies that marriage,” Taylor said.
“That’s why it’s important for same-sex families, even those who are married, to adopt their own children in legal proceedings, which is both insulting and costly.”
Such co-parent adoptions cost at least $2,000, Taylor said. They are among the challenges, plus costs of assisted reproductive technology or an initial parent’s adoption, for same-sex couples that won’t disappear when Illinois’ law takes effect.
“At home we have a very fat notebook where our lawyer legally gave us every single right — pre-marriage equality and pre-civil unions — needed to protect our family,” says Michael Herman, 50, of Rogers Park, who plans to marry partner Bernard Bartilad, 46, on Labor Day. They have an adopted 6-year-old son, Adam.
“We just came back from skiing in Denver, and my family got split when there were only two seats available on the plane. I stayed back,” Herman said.
“It’s much easier for my son to travel with my husband in case something happens. My son is half-Filipino and looks more like my husband,” he said. “He adopted him in the Philippines. We had to get a Visa, of course, then we had to do a co-parent adoption. I was not going to do a name change as well. So he has my husband’s last name.
“I don’t bring adoption papers for my son. I don’t think anyone who has kids carries that kind of paperwork. But in my situation, I’m male. He doesn’t look like me. He doesn’t have my last name. If someone was extreme, they could take my son and put him in child custody until I’m able to prove he’s my son,” Herman said. “There’s always that fear.”