Skip to main content

View Diary: Elderly gay couple kept apart at the end of one's life (172 comments)

Comment Preferences

  •  I've been feeling guilty about (30+ / 0-)

    my advocacy for fighting these abuses against GLBT Americans lately, because Fred and I are leaving the country for Canada in a matter of 15 months to get married. I know my own cynicism, and it comes from having done social work at one time. This kind of abuse is rife in our society, as the law is unequal, period.

    With a President advocating state's rights for the issue that affects us the most, I have to assume it will continue.

    The fact is anyone with any agenda against a GLBT American who is at a vulnerable time in life can act as cynically as they wish to and benefit from it. I see it in youth facilities, I see it rehabs, and with the sick and elderly. Civil Unions leave you as open to malice as having no union at all. When that Malice is institutional (wielded by the authorities) you are without, and bereft.

    Until I can protect myself and my family as an American, I'm refusing the deal. It would be great to live in a world with no homophobia, and I can't expect that in Canada, I know. But, I can expect a fighting chance in life and love as opposed to the inequality that Americans love to benefit from as long as it "doesn't affect them". I'm tired of working to support the straight Americans who aren't interested in seeing me as an equal. I will soon be free, and ya'll might be welcome in my house, but you'll have to ask for a change.

    "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

    by teloPariah on Sun Apr 18, 2010 at 04:12:38 AM PDT

    •  I'm with you on distrust of state and local (14+ / 0-)

      authorities. In my experience, they are more prone to corruption. Perhaps the higher up you go, the more eyes are upon you. I dunno.

      I can't imagine the grief these poor men must feel/have felt. I'm sure the authorities will say it was in their best interest to be put in separate nursing homes, too, and that they had to seize all their possessions to pay for it. Perhaps there was abuse, we don't know. I'm not assuming anything, but I have seen agencies armtwist people into things they wouldn't normally sign or agree to, so I can understand your point on that.

      I hope life will be better for you and your partner in your new digs! Best wishes!

    •  You're right - even if the right for a (2+ / 0-)
      Recommended by:
      newpioneer, teloPariah

      partner to make decisions based on an Advanced Directive, if the hospital or nursing home refuses to abide by it, the partner has to sue.

      Problem is, if one is dealing with end of life issues for a partner, running out and getting a lawyer to fight for your rights isn't easy and pprobably not affordable either.

      There's now a whole field of legal practice for elder law.  As more gay rights get on the books, gay activist organizations could have representatives, social workers, lawyers who specilizes in enforcing gay rights.  This would be particularly in the area of next of kin rights for gay couples.

      These representative can fight on behalf of the partner caring for the patient.  This way he/she can focus on making the right medical decisions without having to fight a legal battle as well.

      •  With my partner being (9+ / 0-)

        a Cop, there are catastrophic injury issues potentially in play here that leave me holding the bag. Quite frankly, it's scary. We've decided not to consider kids (surrogacy or adoption, we've had an offer from a potential surrogate mother who is a dear friend, and wants kids/shared custody) since we feel we're too vulnerable legally without that marriage in place.
        re: the Depfox family who made the vid posted above, I think they are both really strong to do what they are doing. Bringing awareness on these issues is really important. I've got a million questions for them, but all of them are prying and would be unwelcome to an officer on the job, so I don't ask. But the politics is personal meme so applies to government employees these days it's just a roller coaster for sure.  

        "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

        by teloPariah on Sun Apr 18, 2010 at 06:26:51 AM PDT

        [ Parent ]

      •  Criminal? (0+ / 0-)

        It seems to me that if a hospital and/or its employees ignores the wishes of someone acting as health care surrogate to an incapacitated person, the hospital/workers could be held criminally liable, in addition to civil penalties. In other words, if my brother gives me HCPoA and he becomes incapacitated, if I tell the hospital not to hook him up to an IV and a nurse does it anyway, that's a criminal act. It would legally be the same as a doctor giving non-emergency treatment to my minor child over mine and my husband's objections.  I'm in Florida and have worked with these types of legal documents before. I understood that a PoA gave the surrogate's wishes the same weight as the covered person, hence my analogy to a parent.  

        I think we all agree that this man and his partner were treated horribly, but I wonder if the partner had called the police to the scene, that might have helped. If any lawyers could weigh in, that may help someone else deal with a similar situation.  

    •  States Rights works in our favor here (2+ / 0-)
      Recommended by:
      MKSinSA, teloPariah
      •  I'm not sure I understand why you say that (2+ / 0-)
        Recommended by:
        SoCalLiberal, MKSinSA

        Is a Civil Union in CA better given the circumstances, in your mind? I mean, given the presence of DOMA at the federal level? I am not a lawyer, and admit to much confusion on this topic. I know many GLBT's in the law profession hope the Prop 8 appeal gets struck down before it gets to the Supremes, are you saying that the  activist supreme court needs to overturn DOMA somehow first?
        For the life of me, I don't see how states rights grant anything like federal marriage benefits do for straights. I just did my taxes, and our (gay) accountant asked "do you want to see the gay tax you paid?" I decided not to, I don't need to see how much I pay for Americas bad karma, I said "let them figure us out one day", I didn't want to know.
        I do know I will never see my partners' social security payments if I need them, I will always battle his family, that's why I sign titles on our property, even though we lease at the moment. (his family are rejecting folks, towards the only child they ever had who made something of himself) Nor will he get my SS. If anything happens to him on the job (Dog forbid, knock wood) all I can say is thanks for your hard work and gov't pension, love.

        "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

        by teloPariah on Sun Apr 18, 2010 at 11:18:35 AM PDT

        [ Parent ]

        •  To respond (2+ / 0-)
          Recommended by:
          MKSinSA, teloPariah

          The United States Supreme Court is currently one of the most conservative we've ever had.  The one saving grace of the Court is that one of the conservative Justices, Anthony Kennedy, has a soul and a conscience and so sometimes he will break away from the radically right wing legal philosophies of the Four Horsemen.  

          I highly doubt that the Supreme Court, at least as it is currently comprised, will overturn DOMA.  That's not to say that I don't think DOMA is unconstitutional and shouldn't be struck down (it is unconstitutional and should be struck down) but that the current composition of the Court won't.  What we have is five members who are extremely conservative and strongly dislike gay people (Kennedy's two landmark opinions in favor of gay rights were very limited and demonstrated Kennedy's distaste for extremism rather than his support for equal rights of gay and lesbian individuals).  

          Now why do I say that the California legal system is better?  It's not because of Domestic Partnerships (Harold and Clay were not entered into one) but because of the statutory and constitutional protections California gays and lesbians have under state law.  At the federal level, there is only ONE law that protects against discrimination against LGBT persons (the Matthew Shephard Hate Crimes Act which was just enacted and was a milestone in its own right).  California statutory law affords great protection in all aspects of life to LGBT citizens and strongly punishes discrimination on the basis of sexual orientation.  Under federal statute, there's almost nothing that Clay could use as recourse against what was done to him.  

          Similarly, under the California Constitution, discrimination against gays and lesbians is subject to the same level of scrutiny that discrimination on the basis of race and gender are subject to.  This is new but important nevertheless and may be helpful if statutes and common law do not help Clay in his legal quest.  So for example, if there are no statutes that block sexual orientation discrimination in the administration of estates and hospital visitation, the California Constitution may still give recourse to Clay for what the government did to him.  I use "may" and "if" because I am actually not entirely familiar with relevant provisions that may be helpful in this case.  But under the federal constitution, courts give extreme deference to discrimination against gays and lesbians (as a result almost every federal case involving cases of discrimination against gays and lesbians has been resolved in favor of the government).  

          I have high hopes that the California constitutional rule on sexual orientation discrimination will one day be the federal constitutional rule because under what you mention, DOMA would not haven two legs to stand on.  And the government could not deny you social security payments.  

          I do know I will never see my partners' social security payments if I need them, I will always battle his family, that's why I sign titles on our property, even though we lease at the moment. (his family are rejecting folks, towards the only child they ever had who made something of himself) Nor will he get my SS. If anything happens to him on the job (Dog forbid, knock wood) all I can say is thanks for your hard work and gov't pension, love.

          I'm sorry about your partner's family and their actions toward both him and you.  What's really unfair is that gays and lesbians have to go through all the motions of preparing legal documents which straights, regardless of marital status, never have to go through.  

          I know many GLBT's in the law profession hope the Prop 8 appeal gets struck down before it gets to the Supremes, are you saying that the  activist supreme court needs to overturn DOMA somehow first?

          DOMA and Prop 8 have nothing to do with this situation.  I do think that the Supreme Court will uphold (if not endorse) Prop 8 as it is currently comprised and I think the current legal efforts against it in federal court are a legal kamikaze mission.  My only hope for successful resolution of this mess is that either there is change on the Supreme Court or that Prop 8 is repealed before a final judgment in the 9th Circuit can be rendered on it.  

          Some other things I should note too in case this is confusing (it confuses lots of lawyers too so don't worry).  State Constitutions are independent and separate documents from the federal constitution.  And state supreme courts have the final word on state constitutional interpretation.  Federal law though trumps state law including state constitutional law.  That's why state constitutional amendments against healthcare reform and the Matthew Shephard Act are useless.  

          I hope that clears up any confusion you have.  Feel free to ask any more questions if you'd like.  

          •  Thanks for the Education Socal! :-) (2+ / 0-)
            Recommended by:
            SoCalLiberal, MKSinSA

            nice to have it distlled. If I understand you here correctly:

            So for example, if there are no statutes that block sexual orientation discrimination in the administration of estates and hospital visitation, the California Constitution may still give recourse to Clay for what the government did to him.  I use "may" and "if" because I am actually not entirely familiar with relevant provisions that may be helpful in this case.

            Then what you are saying is we still have to set precedence in our CA laws that will carry over to Federal law? Makes sense to me. And I know what you mean about Prop 8 being a Kamikaze mission, I feel that way myself, but as I have posted, we (me and Fred) have lost hope and have a better future elsewhere, not that we can't fight for GLBT's American birthright from there. Again thanks, you rock.

            "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

            by teloPariah on Sun Apr 18, 2010 at 12:56:46 PM PDT

            [ Parent ]

            •  Not quite (2+ / 0-)
              Recommended by:
              MKSinSA, teloPariah

              Then what you are saying is we still have to set precedence in our CA laws that will carry over to Federal law?

              California's precedent that sexual orientation discrimination is subject to strict scrutiny is a precedent that needs to be adopted everywhere.  I take heart in knowing that two other courts decided to follow California.  But that's just a start.  I think that the more state courts agree that sexual orientation is a suspect or quasi-suspect classification (deserving of strict scrutiny) along with more change on the Supreme Court will see the adoption of this standard by the Supreme Court.  The reason that this is so important is because most types of discrimination, including sexual orientation discrimination, are reviewed by the courts under a standard known as rational basis review.  Under rational basis review, the burden is on the plaintiff to show that the government's action had absolutely no rational basis and was completely arbitrary.  The government only has to show that they had a legitimate interest and the discrimination is intended to further that interest.  It's extremely deferential and most legislative acts and state actions are presumed constitutional.  The government can defend anti-gay laws in any number of ways but those ways work under rational basis review.  So when the state makes laws that discriminate against you and your partner, defenses such as "we want to promote procreation" are good enough to hold the discrimination constitutional.  

              Now what the California Supreme Court did was say that this was no longer an appropriate methodology under which to review sexual orientation discrimination.  When the government discriminates, they better have a damn good reason for doing so (most legislation that discriminates on the basis of a suspect class is struck down).  My hope is that California's wisdom will one day be copied by the federal courts.  In the meantime, I am hopeful that other state courts follow California's lead.  Discrimination against gays and lesbians should not be subject to the same standard of review that restrictive city street parking permits receive.  At least three state courts recognize that, maybe more will follow.  

              As for California, where strict scrutiny exists, I'm suggesting that if there are no statutes that prohibit sexual orientation discrimination in the administration of estates and trusts and in hospital visitation, discrimination on the basis of sexual orientation should be constitutionally prohibited.  

              That said, I'm sure there are statutory provisions that will be relied upon Clay to fight the injustice done to him.  I just don't know what those are.  

            •  Also (1+ / 0-)
              Recommended by:
              teloPariah

              I'm not giving up on my country.  I love this country and I don't ever want to leave it.  And so I will hope for the day when we truly do have equality.  

              •  Amazing posts, Socal.. (2+ / 0-)
                Recommended by:
                SoCalLiberal, MKSinSA

                And I hope that Clay can get the same justice that the owner of the parking meter can get, but I have my doubts; even, as a californian in a Civil Union. As a county/gov employee, the double standard against my partner is growing every day, he has to deal with it head-on, and the tables don't seem to be turning. Homophobia is the new cottage industry among fundies, (many of whom are cops, and sympathetic to the teabaggers, and Fred is the local "gay poster boy".) I worry, I mean really worry, All. The. Time. If he were like Depfox and worked in an institution, I would feel he's closer to the admin, but he isn't; he is still on the street, and the harassment is a constant. He keeps getting accolades from the brass, but no backup. (bait and switch. Really sadistic stuff.) They are getting more bold as their cowardly positions get more legitimacy from the Faux News crews.

                I love this country and I don't ever want to leave it.

                Fred told me the other day, "we're not going to give up, but we need a new vantage point" That IMO was spot on.

                "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                by teloPariah on Sun Apr 18, 2010 at 02:35:22 PM PDT

                [ Parent ]

                •  Is your partner a police officer? (2+ / 0-)
                  Recommended by:
                  MKSinSA, teloPariah
                  •  Yes. n/t (2+ / 0-)
                    Recommended by:
                    SoCalLiberal, MKSinSA

                    "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                    by teloPariah on Sun Apr 18, 2010 at 03:04:44 PM PDT

                    [ Parent ]

                    •  I have the highest respect and admiration for (1+ / 0-)
                      Recommended by:
                      teloPariah

                      police officers.  My father was a police officer (albeit a reserve).  It's kinda odd because it's generally removed from me any fear of police officers or police cars.  I've been mourning the death of Daryl Gates this weekend as well.  He will be missed for sure.  

                      In any case, here's what I would point out to you.  I am not that familiar with employment law (and if you're concerned with these sort of things, I would suggest consulting with an estates, trusts, and wills lawyer to ensure that you have all your legal documents in order in case the unthinkable happens) but I do know that California has statutory protections for employment discrimination on the basis of sexual orientation.  Your partner cannot be fired for being gay, at least not on that basis alone.  Now whether he may be subject to harassment is another question (I'm not sure what laws California has set up in response to this).  But he has employment rights.  

                      Now as for benefits, my guess (and I stress guess....I do not speak from a position of legal authority on this) is that any state benefits that the State of California administered to spouses would likely go to you.  But federal benefits are not likely to be distributed to you regardless of what California recognizes.  So let's say hypothetically California administered, on its own, benefits to spouses of fallen police officers, it seems that you would receive those benefits.  And if you didn't, I would think you'd have a pretty good court challenge.  But things like social security, you would not receive.  

                      •  You're pretty dead on in your guesses, (1+ / 0-)
                        Recommended by:
                        SoCalLiberal

                        and you have given good advice to any lurkers who care to know more. But, the fallen officers benefits are administered through the union, on a state to state basis. Good news for a Cop in CA, but it's terrible for people in states with no Civil Unions, and double tragedy often ensues for the partner when benefits are doled out to the officer's family and not the partner. There is another video on Depfox's channel of an incident where this exact tragedy has happened.
                        In fact, He's got great protections from harassment in his department. His choice falls between reporting it (crossing the blue line on a fellow officer) or as he seems to do, treating it like a competition. He just reacts to the passive and sometimes outward aggression by becoming better and more innovative in his police work. He kind of relishes the challenge, which in a way I can't stand.....this is hard stuff to explain. We've been through everything from being openly slandered, (which was handled well by the brass F had nothing to do with it) to cyberbullying. The journey has been kafkaesque, for sure.

                        "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                        by teloPariah on Sun Apr 18, 2010 at 09:18:38 PM PDT

                        [ Parent ]

                        •  Sounds kafkaesque (1+ / 0-)
                          Recommended by:
                          teloPariah

                          I can't believe other officers would treat him that way.  That's despicable, don't these people realize they all share a common goal?  

                          •  Interesting you would ask that.. (0+ / 0-)

                            F often wonders aloud "don't they know they are keeping the peace?" He sees law enforcement as a means to an and, and as a law enforcement officer he strives to enforce the (very complicated, often contradictory law) with the idea of creating peaceful outcomes, or at least situations that would hold the potential for that outcome. He does it simply, and moves on.

                            As a Gay man, maybe he understands the disposessed a bit better than the next guy, but it takes hard work. We have his little post-its with self advice, preparedness directions and motivational aphorisms all over our house to prove it! :-)

                            As for commonality, no, they don't get it. As someone with a background in psychology, I can attest that many involved are preoccupied solely with defensive strategies, and reaction formation coupled with it's attendant (always vigilant) projection is the limit of their human interactions on the job. This job debilitates people who don't love it, and we see burnout everyday among the wingnut brigade here in the PD. It's quite a tragedy, if you think about it.

                            "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                            by teloPariah on Sun Apr 18, 2010 at 11:32:33 PM PDT

                            [ Parent ]

                •  Just remember this (1+ / 0-)
                  Recommended by:
                  teloPariah

                  Your partner is fighting to keep the streets safe.  In that regard, he is a hero.  He risks his life to keep others safe.  

              •  BTW, F is here and we are both reading and (2+ / 0-)
                Recommended by:
                SoCalLiberal, MKSinSA

                re-reading your posts...thanks so much, again Socal. Much appreciated, you didn't have to go out of your way, but you did. Kudos. :-)

                "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                by teloPariah on Sun Apr 18, 2010 at 03:00:44 PM PDT

                [ Parent ]

                •  You're welcome (2+ / 0-)
                  Recommended by:
                  MKSinSA, teloPariah

                  It's no sweat off my back and it helps me remember important parts of the law.  

                  The deal with government discrimination is that generally we want to give deference to it because a lot of the time it makes sense and is good for the community.  I'll give you an example.  The local City Council decides that it wants to clean up its main street by passing an ordinance that waives city business fees for all sit down service restaurants and boutique stores.  Is that discrimination?  Of course it is.  It discriminates against all those who don't own sit down service restaurants or boutique stores.  

                  The parking permit one is good as well.  Let's say you have a quiet residential neighborhood that is adjacent to a university.  The neighborhood wants to keep its streets quiet and gives out day time parking permits to only those people who live on the street.  Is that discrimination?  Of course it is.  It discriminates against those who do not live on that particular street.  

                  Or let's say wherever your partner is an officer, he gets promoted to a Captain position because he is smarter than his competition.  Is that discrimination?  Yes, it's discrimination against the stupid in favor of the smart.  

                  So in that regard, I actually think that rational basis review is not such a bad thing.  The problem is that it gets applied to groups of individuals who should not be receiving rational basis review.  That includes gays and lesbians.  That's wrong of course but it's how courts have been doing it.  That's why the California Supreme Court deserves accolades for changing this status quo.  

                  •  I really admire Judge Walker and the way he is (1+ / 0-)
                    Recommended by:
                    SoCalLiberal

                    handling the Prop 8 repeal. Even he has been outed, and smeared in the press, but he seems to remain professional and judicious. Also, props to the Appealing legal team. They are doing great.

                    "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                    by teloPariah on Sun Apr 18, 2010 at 09:25:51 PM PDT

                    [ Parent ]

                    •  I respectfully disagree in part, agree in part (1+ / 0-)
                      Recommended by:
                      teloPariah

                      Judge Walker is a fine judge and is doing a great job, which he has been known for.  He's very smart, very professional, and very well respected.  He certainly isn't the only closeted gay appointed by President Bush I.  

                      Also, props to the Appealing legal team. They are doing great.

                      I won't go that far.  They're setting down a course that seems certain for disaster.  Now they may win because there may be divine intervention.  But I don't like what they're doing one bit.  

                      That said, I have high hopes that this will turn out differently.  We'll get Prop 8 repealed in 2012 and by that time whatever appeal is waiting in the 9th Circuit will be dismissed on grounds of mootness.  Because however Judge Walker rules, it's going to be appealed and heard by the 9th Circuit and then whatever decision the 3 judge panel renders, the 9th Circuit will hear it en banc.  And then maybe even after it is heard en banc, there may still be a special full court en banch (which they never have called for but have the option to do with all 28 judges sitting on a case....they might do it for something like this).  Given how backlogged the 9th Circuit is, this could take a while.  So that's my hope.  

                      •  did you know that everything you say to me (0+ / 0-)

                        requires tons of Googling? I love this community again, thanks Socal. :-)

                        "But then, liberals always were a little fond of mind control, assuming of course that it was put to good use." -DKos troll

                        by teloPariah on Sun Apr 18, 2010 at 11:18:33 PM PDT

                        [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site