Box Turtle Bulletin

No Standing

Some opponents to gay marriage claim that all of the rights that gay couples seek can be obtained through other legal documents. But that’s not true, as a case in New York state painfully illustrates:

Linda Saegert and Victoria Sarafino lived together for 18 years, owned a house and a business together, and raised two children together. They were married in a ceremony at a Unitarian church in Freeport.

“We did everything that’s the criteria for a nuclear family,” said Saegert, a Valley Stream resident, adding that the two women even signed the children’s report cards together. “We were a couple as well as any husband and wife.”

But a State Supreme Court justice in Nassau County does not agree. Acting New York Supreme Court Judge Daniel Palmieri ruled that Saegert does not qualify as the late Sarafino’s legal partner or spouse. Palmieri rejected last week Saegert’s attempt to seek wrongful-death damages after Sarafino was killed in a car accident in 2003.

Gay couples can sign powers of attorney, financial partnership agreements, wills, living wills, trusts, a whole mountain of paperwork costing thousands of dollars, but in the end there are still rights and obligations that cannot be had any other way but for the price of a $35 marriage license:

Those include: receiving survivor’s benefits if a spouse dies; being able to file joint taxes and receive various tax deductions; entering hospitals, jails and other places restricted to immediate family; obtaining family health insurance and other employment benefits; collecting unemployment benefits if you move because of a spouse’s job change; recovering damages from an injury to a spouse; making medical decisions for an injured or incapacitated spouse; and inheriting a spouse’s property if he or she dies without a will.

Some say that these aren’t really problems. And whenever the issue of hospital visitation or medical decision-making comes up, it has even been suggested that the problem is an urban myth — that it never really happens. They say a Durable Power of Attorney takes care of that. But consider the story of Robert Daniel and Bill Flanigan. Robert was admitted to the University of Maryland’s Shock Trauma Unit in Baltimore in 2000 due to complications from AIDS. He and Bill had been traveling to Washington D.C. to visit family when he suddenly became ill. But officials at the Shock Trauma Center wouldn’t let Bill see Robert or confer with Robert’s doctors because he wasn’t “family”.

Flanigan explained he had a Durable Power of Attorney for Health Care Decisions and that he and Daniel were registered as domestic partners (in California). The Shock Trauma Center also had the records of the first hospital to which Daniel was admitted, where Flanigan was recognized as family, having spent the night in a chair by Daniel’s bed.

The Shock Trauma Center acted quite differently. For four hours, personnel kept Flanigan away from Daniel and his doctors – meanwhile allowing family members of other patients to visit their loved ones and confer with doctors. Flanigan, on the other hand, was not given the opportunity to make surgeons aware of Daniel’s wish not to have life-prolonging measures performed on him, including the insertion of a breathing tube.

After four hours, Daniel’s sister and mother arrived from out of town. Only then did the Shock Trauma Center provide information on Daniel’s status that had been repeatedly denied to Flanigan, and subsequently allow the entire family, including Flanigan, to see Daniel. By that point, Daniel was no longer conscious, his eyes were taped shut, and the two men never had the chance to say goodbye.

So just because you paid good money to have a lawyer draw up an agreement, it doesn’t mean a hospital will feel bound by it. When that happens, the partner is left with “no standing.”

Opponents to same sex marriage acknowledge that those who are married are often healthier than those who aren’t, but they don’t go bother to ask why that would be the case. But the simple fact is that those who are married are empowered by the state to take better care of themselves and their partners than those who aren’t. And this empowerment extends to all phases of life.

State Medicare regulations provide protections of a married couple’s home should a spouse require nursing home care. But for couples who aren’t married, the healthy partner is forced to sell of all jointly-owned property to pay for the care of the partner requiring care in order to satisfy Medicare requirements for single patients. And if the second partner needs nursing home care, there are no provisions to guarantee that they can share the same room, or even be housed in the same facility. And after death occurs, the coroner is often not allowed to release the body of the loved one to his or her partner.

All of this is because the partner has “no standing.” It’s as if that relationship, no matter how long or enduring, never existed. And outside of a $35 marriage license, there is no legal document that can fix that.