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May 10 2014

When death strikes one member of a same-sex couple

The legal overturning of bans against same-sex marriage is penetrating even the deep South as a Circuit Court judge in Arkansas, in a brief but moving opinion yesterday ruled that the state’s ban passed in 2004 is unconstitutional under both the federal and state constitutions.

The judge, like many judges before him, invoked the Windsor ruling and said that legal restrictions based on animus toward a certain class of persons could not withstand the heightened scrutiny the law demanded. What is somewhat significant is that this ruling came from a state judge and not a federal judge. As a result of his ruling, and that he did not issue a stay pending appeal, several couples got married today. These marriages were the first in the South.

Meanwhile, a federal judge has ordered the state of Indiana, which does not allow same-sex marriage, to recognize the marriage of a lesbian couple who were legally married elsewhere. These kinds of cases are increasingly common but in this case, one of the women Niki Quasney is terminally ill with Stage 4 ovarian cancer and the judge ordered the state to list her spouse Amy Sandler as the next of kin in the event of Quasney’s death.

The state has asked the judge to stay his order until the Appeals Court hears the case but judges issue stays only if there is no likelihood of irreversible harm that can occur in the interim and the appealing side has a reasonable chance of winning its case. In this case, I hope he does not issue a stay because if he does and Quasney dies, then Sandler will be denied the benefits that she and their two children would receive by virtue of being her spouse. His ruling only applied to this particular case anyway and was not a general rule so the state could have let it slide out of compassion. But no.

Lambda Legal, the national gay rights group representing the couple, denounced the state’s decision to appeal.

“This is a shameful display of cruelty towards a loving couple with two children whose marriage is vital as they battle an aggressive cancer and fight to be together,” Camilla Taylor, Marriage Project Director for Lambda Legal, said in a statement.

The Daily Show describes, among other cases, another similar case involving a military veteran that illustrates the needless cruelty involved in denying death benefits to same-sex couples.

(This clip aired on May 6, 2014. To get suggestions on how to view clips of The Daily Show and The Colbert Report outside the US, please see this earlier post. If the videos autoplay, please see here for a diagnosis and possible solutions.)

6 comments

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  1. 1
    gshelley

    I guess they just don’t care that they come across as petty and spiteful
    The Arkansas decision was interesting in that, as with Michigan, the judge decided that their claimed reasons were entirely irrational and so it didn’t meet rational review. I think the more of these appeals that can do that, the harder it will be for an appeals judge to say that just because a state claims something as rational basis, they should accept that claim – certainly, all the reasons they have put up so far have been thoroughly demonstrated to be either totally irrational, inconsistent with how they actually run things in their state or with no connection to the desired purpose.

  2. 2
    Seth

    As I commented on Jen’s new blog, this makes me so, so glad I live in Canada. Human rights are not contingent upon the piece of ground on which you’re standing at any given moment; the states which refuse to recognise the full humanity of gay people are violating their human rights. It is a tragedy for the couple noted above, and a travesty of justice.

  3. 3
    leni

    From the final paragraph of the ruling:

    It has been over forty years since Mildred Loving was given the right to
    marry the person of her choice. The hatred and fears have long since vanished and
    she and her husband lived full lives together; so it will be for the same-sex couples.
    It is time to let that beacon of freedom shine brighter on all our brothers and sisters.
    We will be stronger for it.

    I don’t know that the hatred and fears have long since vanished. Diminished, yes. Vanished? I don’t think so.

    I still felt like cheering.

  4. 4
    Vicki, duly vaccinated tool of the feminist conspiracy

    Seth:

    Yes, Canada is doing better than the U.S. in this, but your rights still depend on the piece of ground on which you’re standing: it matters that you’re in Canada. A U.S. jurisdiction that would recognize a same-sex marriage from Canada will also recognize one from New York.

  5. 5
    Seth

    Vicki:

    I agree that it matters where you’re standing as to whether or not your rights are *recognised*, but having your rights abrogated is not the same thing as not having rights at all. I (along with many, many people) now assert that the right of freely-consenting adults to marry one another is a human right, one that is being violated the world over, especially in federal states like the US. While your ‘laboratories for democracy’ are experimenting with the novel idea of acknowledging human rights, real people are suffering in Alabama and Montana and Texas and Oklahoma and and and…

    As the inimitable Christopher Hitchens said, homosexuality is not just a form of sex; it is a form of love, and it deserves our respect. The sooner this is understood by the reactionaries, the sooner the United States can come one step closer to being as it imagines itself to he, a defender of human rights.

  6. 6
    Matt G

    The failure of arguments against SSM makes those proffering them look not only petty and cruel, but also dishonest, both intellectually and in the regular sense: “I have given these reasons, but they are not the real ones.” Shocking, I know….

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