Box Turtle Bulletin

New York Recognizes Out-Of-State Same-Sex Marriages

A New York appellate court in Rochester ruled Friday that same-sex marriages from out-of-state must be legally recognized in New York, even though gay couples cannot marry legally in New York. Lawyers for both sides said the ruling applied to all public and private employers in the state under that state’s “marriage recognition rule.” The court notes that this rule has applied for more than a century for married couples generally, and there is no provision in law to exclude same-sex couples who hold a valid marriage license.

The five-judge panel of the Appellate Division of State Supreme Court indicated that it is not the place of the courts to change laws relating to public policy. That falls to the legislature, who can change the law if they want to (PDF: 20KB/5 pages):

As the Court of Appeals indicated … the place for the expression of public policy of New York is in the Legislature, not the courts. The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.

It’s unclear whether Monroe County and Monroe Community College will appeal the decision.

Three Sentenced in Michael Sandy’s Death

Last October, Michael Sandy, 29, was lured to a secluded beach in the New York area by three others who he met in an online chat room. At the beach, he was then assaulted and chased onto a busy freeway, where he was struck by a sport utility vehicle. He later died. The four men who were accused of planning the attack were arrested on hate crime charges. The police investigation showed that Sandy had been selected to be robbed because he was gay, believing a gay man would hesitate to resist or report the attack.

Gary Timmins, 17, pleaded guilty to attempted robbery with a hate crime enhancement. As part of his plea agreement, he testified against his friends in exchange for a four-year prison sentence. John Fox, 20, who posed as a gay man in the internet chat room was manslaughter and attempted robbery as hate crime and was sentenced to between 13 and 21 years in prison. Anthony Fortunato, 21, tried to avoid the hate crime enhancement by claiming he was gay himself. He was convicted of manslaughter as a hate crime and was sentenced to 7 to 21 years. Ilya Shurov, 21, pleaded guilty to manslaughter and attempted robbery as hate crimes.

Despite the police and prosecutor’s determination that this was a hate crime, Michael Sandy’s high-profile death was not included in the FBI’s 2006 hate crimes statistics.

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.

“Calm Down, Sweetie”

Those are the words that led to a bashing.

They are also the beginning of a defense of some sort for the four who were arrested for beat up singer Kevin Aviance in New York on June 10. Aviance bumped into one of the three on the street and said, “Calm, down, sweetie,” which apparently was just too threatening to someone’s sense of manhood:

“I did not hit the guy because he was gay,” Johnson said in his statement. “I just did not want my friend to think … I was a p—y.”

So of course, the only option was for the three to beat Kevin senseless, breaking his jaw and several bones.

This defense is starting to look like a variation on the the so-called “gay panic” defense, which has been used successfully by defendants in a number of horrific cases. In February 2005, Josh Cottrell escaped the death penalty when a Hardin County, Kentucky jury convicted him of manslaughter for killing Richie Phillips, stuffing his body into a suitcase and dumping it into a nearby lake. To win that reduced conviction, Cottrell’s attorney told the jury:

If a man tries to force you to have deviant sexual intercourse, you have the right to use deadly force to protect yourself. … Does putting that body in the suitcase make that kid a murderer? A robber? No, it doesn’t. He has admitted that was the wrong thing to do, but he was acting in survival mode.

However, there was no evidence that Richie Phillips tried to “force” sexual intercourse. At most, there was a mere suggestion. But that was enough, apparently in the minds of a jury, to warrant a reduction in the charge.

The “gay panic” defense has been successfully used to avoid more serious penalties in cases ranging from the Matthew Shephard’s brutal beating and murder (the defendants avoided the death penalty) to the murder of male-to-female transgender Chanelle Pickett by William Palmer (she was beaten and “throttled” for eight minutes and died; he was acquitted of manslaughter and murder, convicted only of assault and battery).

Kevin Aviance was severely beaten — the wire just came off his broken jaw and he will soon be able to eat solid foods — but there is no murder here, luckily. One might argue that the stakes here aren’t quite as high. But if the defendants have their way, merely being called “sweetie” would be a justifiable defense. This sort of defense, when used successfully, opens the doors for all LGBT to be attacked for the smallest provocations — or even the mere allegation of one — and that endangers everyone whether they are gay or not.