Canadian justice department moves to invalidate same-sex marriages for U.S. citizens

An attorney in the Canadian justice department has moved to invalidate marriages performed in Canada for same-sex couples that live in places that do not recognize same-sex marriages. The government attorney made the argument in a divorce case filed in Toronto by a lesbian couple — one from Florida and one from England.

After the controversy gained international attention today, The Toronto Globe and Mail quoted a member of Conservative Prime Minister Stephen Harper’s government as saying they will consider amending the law to allow foreign couples who married in Canada to divorce in the country.

Lambda Legal issued a statement that said that Canadian marriages of same-sex couples are not in jeopardy. They wrote:

The position taken by one government lawyer in a divorce is not itself precedential.  No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.

The country’s Justice Department maintained the position, however, that thousands of foreign couples who married in Canada are not married.

So I decided to play their nasty little game and I called the Canadian Consulate in Dallas, which could not answer my questions. I told them my story would center on the fate of the marriage of two couples in my office who were married in Canada. They forwarded my request to an information office. I’m waiting to hear from them.

Here’s what I want to know:

How will the affected couples be notified? One of the Dallas Voice couples was married in Toronto in 2003 and moved years ago. The marriage bureau there has no way of notifying them. Certainly this marriage cannot be invalidated without proper notification.

Will license fees be refunded? Certainly Canadian municipalities don’t want to be charged with fraudulently accepting fees for invalid licenses.

Will all travel expenses be refunded? Beyond being charged with fraudulently issuing these licenses, Canada has enjoyed a windfall of tourism. But if those trips were based on fraudulent promises, will gay and lesbian couples have to sue to be refunded for all travel expenses related to the scam the Canadian government perpetrated on American couples?

Further questions about your Canadian marriage can be answered by a local Canadian consulate or the embassy in Washington which can be found here. They’re anxiously awaiting your call.

—  David Taffet

Testing a new era: Who defines spouse?

IN DOUBT BECAUSE OF DOMA | NCLR attorney Shannon Minter, third from left, stands with other marriage equality supporters outside the California State Supreme Court during a March, 2008 press conference. Minter says that confusion caused by DOMA could lead to NCLR client Jennifer Tobits losing benefits due her from the estate of her late wife, Ellyn Farley. (Marcio Jose Sanchez/AP)

Dispute over woman’s estate between her partner, parents highlights the problems of DOMA

CHUCK COLBERT | Keen News Service
lisakeen@me.com

One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass.

The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, in the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up.

The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits.

The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents.

The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley.

In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.”

But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act.

DOMA

DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples. It has two sections.

One states, “No state … shall be required to give effect to any public act, record, or judicial proceeding of any other state … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship.”

The second section reads, “In determining the meaning of any act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits.

Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.

“[P]rivate employers cannot use that as an excuse for not honoring our marriages,” said Minter.

Nevertheless, Farley’s law firm, Cozen O’Connor, has asked a federal court to settle the dispute for them.

The Tobits/Farley case

Jennifer Tobits and Ellyn Farley were married in Toronto on Feb. 17, 2006, and made their home in Chicago. Just a few weeks after their marriage,

Farley was diagnosed with an aggressive form of cancer, which she battled for four years.

She died on Sept. 13, 2010.

Shortly after Farley’s death, her parents, Joan and David Farley of Roanoke, Va., petitioned an Illinois probate court for the right to take over administration of their daughter’s estate. They also sought the assets of a profit-sharing plan Farley had, as partner of the Cozen O’Connor law firm.

The firm filed a motion on Jan. 24, 2011, asking the U.S. District Court for the Eastern District of Pennsylvania to determine who gets the benefits payment.

“In the last week of her life,” said Minter, “Ellyn wrote a will because she feared her parents would try to take everything from Jennifer.

“Ellyn appointed her close friend Nancy [Tuohy] to be the executor of the estate,” he explained. “Initially, Nancy accepted that position and acted as the executor but declined the responsibility later after she realized that she would need to hire an attorney in order to resolve the Farleys’ various claims to Ellyn’s estate.

“The Farleys knew that Jennifer and Ellyn married,” explained Minter. “But they take the position that the marriage is not valid and are arguing that it should not be legally recognized because of DOMA.”

What will Illinois do?

The underlying issue in this case is whether Illinois will recognize the marriage, said Minter.

A civil unions law took effect in Illinois on June 1 this year, and, according to James L. Bennett, Midwest regional director of Lambda Legal, “Illinois recognizes marriages performed in other states or countries, even Canada, as civil unions in Illinois.”

Under that law, said Minter, Tobits would be preferred over Farley’s parents to be administrator of Farley’s estate.

The law firm states, in its document to the federal court, that the firm “had not received a valid designation of beneficiary form from Ms. Farley prior to her death.”

Following Farley’s death, said the firm, Farley’s parents presented them with a beneficiary form “purporting to show that Ms. Farley had designated them as her beneficiaries … and had represented her present marital status as ‘single.’”

The form was dated Sept. 12, 2010, the day before Farley died.

But Cozen also notes that, “inconsistent with the declaration” that Farley was “single,” the beneficiary form submitted by the Farleys “also purports” to have the notarized signature of “Ms. Farley’s spouse.”

The firm says the form “is not signed by [Farley’s] spouse.”

“Accordingly, Cozen O’Connor cannot determine the validity of this designation of beneficiary form,” states the firm’s document to the court.

Tobits, in documents she filed with the federal court, denies ever signing the beneficiary form, but she also acknowledges obtaining a “blank designation of beneficiary form” for Farley’s father the day before Farley died.

Tobits said she did this because the father had instructed hospital staff that the parents — and not Tobits — would make medical decisions for

Farley and because she “feared” the father “would refuse her access to Ms. Farley’s hospital room unless she complied.”

“Wanting to see her dying wife and to avoid a dispute in the hospital with her wife’s parents,” said the documents filed by NCLR, “Ms. Tobits went home to retrieve the form.”

Tobits said she was not present when Farley purportedly signed the form and that the form “was signed” about 30 minutes after Farley had begun vomiting blood.

Farley “fell asleep that night” and died the following morning.

Tobits claims that Farley “suffered from weakened intellect,” that Farley’s parents exercised “undue influence” over Farley, and that Farley did not sign the form of her own free will.

“Ellyn did not have to fill out a form for her spouse to get the benefits,” Minter said. “Under the plan, the benefits go to an employee’s spouse unless the employee designates someone else and the spouse gives written consent, which must be notarized,” he explained.

“The Farleys filled out the form and pressured Ellyn to sign, but Jennifer did not” give her written consent, said Minter.

Cozen O’Connor court documents confirms, “Ms. Tobits’ signature does not appear on the designation of beneficiary form in the space reserved for spouse consent to beneficiary designation.”

Marriage discrimination

Evan Wolfson, founder and president of the National Freedom to Marry organization, said the dispute “highlights how unfair marriage discrimination is, adding to tensions and bad actions even within families.”

And DOMA, he says, “gives those who would tear families apart an extra weapon to use even if the weapon itself is not appropriate.”

The Farley parents’ attorneys say DOMA is implicated because the benefits they seek to acquire from Farley’s law firm are part of an ERISA plan.
ERISA — the Employee Retirement Income Security Act — is a federal law that sets minimum standards for pension plans in private industry.
NCLR’s Minter acknowledges that ERISA “governs many aspects of how benefits must be structured.

“But the plan here,” he said, “defines spouse for itself, which is perfectly acceptable under ERISA.”

And DOMA “does not apply,” said Minter, “because [the law firm’s beneficiary plan] is private.”

“Jennifer meets [the law firm’s plan] definition,” said Minter. “ERISA does not dictate how private employers define spouse or prevent them from treating married LGBT employees equally. Likewise, because there is no need to look beyond the plan’s clear definition of ‘spouse,’ it is irrelevant whether Pennsylvania law would define it differently in some other setting.”

© 2011 Keen News Service. All rights reserved.

—  John Wright

PHOTO OF THE DAY: If you thought our weather was bad, check out this scene from Chicago

Our old friend Rex Wockner just sent over a link to the above photo from The Chicago Tribune, which reports that the area has received more than 20 inches of snow and is expected to get more today.

—  John Wright

‘Women in Media’ graphic novel features Ellen

Bluewater Productions, the same publisher that brought you the Lady Gaga comic, now offers its new graphic novel Female Force: Women in Media available tomorrow in stores. It’s more a compilation of previous comic book editions of biographies on Oprah, Barbara Walters, Meredith Viera and, of course, Ellen.

Not digging the cover all that much. With creepy smiles and heads floating in the clouds, it looks more like a memorial of female TV hosts gone to the great beyond. Just sayin’.

Here’s the word from Bluewater about the new release:

“The collected illustrated life stories of these media power players are together for the first time in this special collectors graphic novel. The ‘Female Force’ series has received international attention from The View, CNN, Vogue Magazine, People Magazine, Chicago Tribune, USA Today and thousands of other media outlets.

“Female Force offers a broad examination of strong and influential women who are shaping modern history and culture. In past issues, the monthly series has featured Michelle Obama, Hillary Clinton, Sonia Sotomayor, Stephenie Meyer, JK Rowling, Margaret Thatcher and others.”

You may want to hold your breath for their upcoming releases. A biography on Betty White is slated for a December release as is Female Force: Sarah Palin, The Sequel. Hopefully, just in time for Christmas!

—  Rich Lopez

Despite apology Target controversy continues

According to the Chicago Tribune, the controversy revolving around Target’s $150,000 contribution to a PAC that supported a virulently anti-gay candidate continues.

In West Hollywood, this weekend, activists plan a day of buying and returning items to the local Target. Each return costs the company $3.

Human Rights Campaign is negotiating with the company to make an equal donation to an LGBT group. They are backed by members of the San Francisco city council. Target has proposed building two stores in that city. The commissioners are holding up approval of zoning for the stores.

In July, Target hired Matt Zabel, right-wing Senator John Thune’s long-time chief of staff to be their government affairs director. The next week, Target made their donation.

When the LGBT community objected, the company took notice. The Chicago newspaper notes that gays are among Target’s most loyal clientele.

Gregg Steinhafel, Target’s CEO, has apologized for the donation promoting the candidacy of the anti-gay candidate for governor of Minnesota, the company’s home state. He said in the future political donations would be reviewed and approved by their board. But the hiring of a partisan figure like Zabel says more about where the company stands than a make-up donation that HRC might extract from the company.

—  David Taffet

The sexist pigs at The Chicago Tribune are gonna wish they hadn't done this

prongerx-large

For weeks I’ve been looking for a way to work my Flyers — who are in the midst of a battle for the Stanley Cup against the Chicago Blackhawks — onto this blog. So The Chicago Tribune deserves a special thanks for finally giving me an opportunity. The Blackhawks’ hometown newspaper on Tuesday printed the above poster depicting Flyers star defenseman Chris Pronger in a skirt, calling him “Chrissy” Pronger and saying he, “Looks like Tarzan, skates like Jane.” While the poster may have been intended as a joke, some feel it’s flat out sexist – and surprising given that The Tribune has a female editor. I would argue that the poster is also homophobic, but I take comfort in knowing that Pronger is gonna make those effin sissies pay tonight!!!

—  John Wright