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

Florida trying to cash in on NY marriage law

South Florida, and especially Fort Lauderdale, is expecting a gay honeymoon boom with the beginning of same-sex marriage in New York, according to the South Florida Sun Sentinel.

The Fort Lauderdale Chamber of Commerce is running a contest and winners will get a five-night stay at the Royal Palms Resort & Spa or the Atlantic Resort & Spa.

Very nice. Glad Florida wants the gay bucks. But why would a New York couple celebrating their wedding — and new rights — honeymoon in Florida?

After a hard-fought battle to win the right to marry, then another month-long wait to marry, then after entering their names in a lottery to find out how soon they can get one of those precious marriage certificates — why would a couple leave a place where they finally have gotten their rights and travel somewhere that offers them no rights just a few hours later?

—  David Taffet

Discrimination at Dollywood?

Now, I am and long have been a huge fan of Dolly Parton. Going to Dollywood would be almost a religious pilgrimage for me. My best friends says when he dies, he wants to be cremated and his ashes scattered over Dollywood.

And Dolly herself has never been shy about her love and support for the LGBT community. In fact, just last Friday we had an interview with Dolly in Dallas Voice leading up to her concert at the Verizon Theatre on Tuesday night.

So I was greatly surprised — and felt a significant wrenching in my heart — when I saw this news headline this morning from WBIR.com, the NBC affilliate in Knoxville.com: “Lesbian couples claims discrimination at Dollywood.”

According to the story, lesbian couple Olivier Odom and Jennifer Tipton recently took some friends’ children for a day of fun at the theme park nestled in Dolly’s hometown area of Pigeon Forge, Tenn. Odom was wearing a T-shirt that said “Marriage is So Gay,” and when they got to the gate, the attendant told her she would either have to change shirts, or turn that one inside-out so the message wasn’t visible. When she asked him why, she says, the attendant told her, “This is a family park.”

—  admin

Anti-gay measures filed in Texas House

Dennis Coleman

As deadline looms, Chisum files bill to give AG more time to intervene in same-sex divorce case; Workman files resolution urging Obama to defend DOMA

DAVID TAFFET  |  Staff Writer
taffet@dallasvoice.com

Just before the Texas Legislature’s deadline for filing new bills passed last week, one anti-gay measure and one hostile resolution were filed in the House of Representatives. It was the first time in six years that anti-gay measures have been introduced.

Rep. Paul Workman, a freshman Republican who represents the southwest corner of Travis County, introduced a resolution to urge U.S. President Barack Obama to defend the Defense of Marriage Act. In February, the president directed Attorney General Eric Holder to stop defending DOMA in court.

So far the resolution, known as HCR 110, has no Senate counterpart bill.

Equality Texas Executive Director Dennis Coleman said a resolution doesn’t need a committee hearing before going to the floor. The resolution was added to the LGBT lobby group’s tracking list, but Coleman did not express concern.

“So far, we don’t see it as having any traction,” he said.

Rep. Warren Chisum, whose district covers part of the Panhandle and is known as one of the most conservative members of the House, has filed a bill to give the Texas attorney general more time to intervene in same-sex divorce cases.

The move comes after Texas AG Greg Abbott tried to intervene in the divorce of a lesbian couple in Austin but was declared ineligible by an appeals court because he had missed the deadline.

This bill would give that office up to 90 days after a divorce is settled to intervene.

Coleman laughed and said, “It was introduced because [the attorney general] missed the window. We want to give him more time so he doesn’t miss the window again.”

Coleman said that it was interesting that a legislature that was elected to get government out of people’s lives was considering bills that interfered more when it came to the lives of gays and lesbians.

Known as HB 2638, the bill has no co-sponsors and has not been referred to committee yet. A Senate counterpart was not been filed.

Now that the filing period for new bills has ended, Coleman said his organization’s main concern is amendments that could weaken pending legislation or add anti-LGBT measures to other laws.

Anti-bullying bills

Several bills addressing bullying have been introduced in both the Senate and House of Representatives. But not all those bills have gained ringing endorsements from LGBT activists, while the two that had advocates most hopeful have been stripped of language enumerating protected categories.

Sen. Wendy Davis and Rep. Mark Strama authored identical bills that have been amended and are now known as CS (Committee Substitute) SB 242 and CS HB 224. A House committee has already heard the bill. Coleman said that most of the testimony supported the bill and only two groups spoke in opposition.

Coleman said that as a result of the recent LGBT Lobby Day, Rep. Alma Allen of Houston has signed on as a new co-sponsor. He has spoken to others in both the House and Senate about adding their names.

Rep. Garnet Coleman of Houston introduced another anti-bullying bill in the House known as Asher’s Law, in memory of Asher Brown, a Houston 13-year-old who committed suicide last September.

Asher’s Law would mandate creation of suicide prevention programs for junior, middle and high schools. It requires training for counselors, teachers, nurses, administrators, social workers, other staff and school district law enforcement to recognize bullying and know what to do to stop it. A report would be submitted to the legislature by Jan. 13, 2013.

The bill also defines cyberbullying in state law for the first time.

That bill was placed in the public health committee. Dennis Coleman liked that the legislature was treating suicide as a public health issue and thought the bill had a good chance to move to the House floor from committee.

He said legislators favoring anti-bully laws have told him that they need to continue to hear from constituents, especially from teachers and principals.

This article appeared in the Dallas Voice print edition March 18, 2011.

—  John Wright

Jodi Picoult talks up new lesbian-themed book tonight on Mombian

The lesbian mom blogsite Mombian posted today that big time author Jodi Picoult (My Sister’s Keeper, 19 Minutes) has gone Lisa Cholodenko-like on her newest book Sing You Home. The story details the account of a lesbian couple striving to have a child. OK, so it’s not quite The Kids are All Right, but maybe there’s a trend brewing of lesbi-parenting and mainstream audiences. First it was girl-on-girl kissing, now it’s mom-on-mom nurturing that intrigues audiences.

Her website calls it a multimedia experience. The book includes a CD of music and spoken word to accompany the story. There’s even a trailer for the book. Now we just have to wait for the movie. Unfortunately, her book tour doesn’t stop in Dallas. At least not with the current itinerary.

But you can listen to Picoult tonight as she appears on Mombian’s podcast to talk up the book. This is what they say:

I’m very excited to invite you to a special event here at Mombian: a live, streaming interview and chat tonight with #1 New York Times bestselling author Jodi Picoult about her latest novel, Sing You Home, the story of a lesbian couple and their attempts to have a child.

I’ll have a fuller review coming up in my Mombian newspaper column soon, so I’ll say little here except that I do recommend it, not least because Picoult avoids the clichéed “search for a donor” plot of most stories about lesbians trying to get pregnant. Instead, she takes a different approach, giving us a tale that deftly blends the personal and political. The book also includes a CD of original songs with words by Picoult and music by Ellen Wilber, who will be performing on the Webcast.

Join us here at Mombian tonight, Monday, March 7 at 7:00 p.m. EST for the Webcast, part of the Literary Salon Series of Picoult’s publisher, Atria Books. The interview, moderated by book reviewer Bethanne Patrick, will be broadcast from an event at New York City’s Andaz 5th Avenue Hotel to celebrate the novel’s release. There will be a chat window going, too, so you can share your own questions and comments.

That’s 6 p.m. our time.

—  Rich Lopez

WATCH: Channel 5 shines a very favorable ‘Spotlight’ on the LGBT community in N. Texas

 

A while back Dallas Voice received a visit from some folks at NBC 5, who interviewed Publisher Robert Moore and Senior Editor Tammye Nash about the newspaper’s role in the LGBT community.

To be perfectly honest, no one around here was quite sure what the segment was for, but thanks to a tip from Rafael McDonnell at Resource Center Dallas, now we know: It’ll be part of a program called Spotlight, which airs at 11:30 a.m. Sunday on Channel 5. On Spotlight, “North Texas correspondents come together in order to spin narratives from real-life stories involving persons who contribute to their community,” according to the NBC 5 website.

We also found a site dedicated to the show, where they’ve posted several of the segments about the LGBT community. In addition to Dallas Voice,  there are segments on Youth First Texas, transgender Dallas Police Officer Deborah Grabowski, a Haltom City lesbian couple that adopted a child; the Dallas Diablos; three LGBT-affirming churches in Oak Cliff; gay filmmaker Marlon T. Riggs; and LULAC #4871 President Jesse Garcia.

We know, it seems like a lot, but each segment is only a few minutes long, and they’re all well done.

Major kudos to NBC 5 for putting these together, but you don’t have to wait till Sunday to see them. We’ve posted all of the segments, in the same order they’re listed above, after the jump.

—  John Wright

Lesbian couple turned away by Justin chapel to marry Friday at Cathedral of Hope

The Country Abbey in Justin

Earlier we noted that no Valentine’s Day marriage equality demonstration is planned for Dallas this year, so perhaps this is the next best thing.

PR guru and former Dallas Voice staffer Kris Martin sends along word that two local women who were turned away by a private wedding chapel last year for being lesbians plan to tie the knot on Friday in a ceremony at the Cathedral of Hope.

Tina Shaft and Tiffany Fenimore have been together for 10 years and made news in June when they were turned away by the Country Abbey in Justin as well as by other locations, according to Martin. Now, the Cathedral of Hope and community businesses are donating a chapel and services to make the couple’s dream wedding come true.

Christopher Thomas will officiate the wedding on behalf of the Cathedral, and the couple and their three children will sit for “No H8″ campaign photographs following the ceremony.

The ceremony is open to the media and will be at 3 p.m. Friday at the Cathedral’s Interfaith Peace Chapel, 5910 Cedar Springs Road in Dallas.

—  John Wright

BREAKING: Texas appeals court upholds gay divorce, rules against AG’s office in Austin case

Angelique Naylor

A state appeals court has upheld a divorce that was granted to a lesbian couple in Austin last year, saying Texas Attorney General Greg Abbott lacks standing to appeal the divorce because he intervened in the case too late.

“Because the State lacks standing to appeal, we dismiss this appeal for want of jurisdiction,” a three-judge panel of Texas’ 3rd District Court of Appeals wrote in its decision posted earlier today.

Travis County District Judge Scott Jenkins granted a divorce to lesbian couple Angelique Naylor and Sabina Daly last February. Naylor and Daly married in Massachusetts in 2004 before returning to Texas and adopting a child. Abbott’s office appealed Jenkins’ decision, arguing that judges in Texas cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

Abbott’s office won an appeal last year of a same-sex divorce in Dallas, where the 5th District Court of Appeals ruled in his favor.

Jennifer Cochran, an attorney who represented Naylor, explains on her blog that the Austin appeals court’s decision doesn’t address the constitutional issues related to gay divorce:

The Appellate Court dismissed the appeal for “want of jurisdiction” finding that the State was not a party of record and thus lacked standing to appeal.

So what’s this mean? Well this particular divorce was granted and upheld by the appellate court because the AG intervened after the divorce was granted orally by Judge Jenkins and because neither party raised constitutional challenges to the Family Code or the Texas Constitution.  If either party had, the appellate court would have most likely found that the AG did have standing and would have addressed the constitutional arguments in addition to the procedural ones.  So, we will leave the constitutional challenge for another day (or case).

Abbott’s office could now drop its appeal, request that the entire 3rd District Court of Appeals hear the case, or appeal the three-judge panel’s ruling to the Texas Supreme Court.

According to the Texas Tribune, Lauren Bean, a spokeswoman for Abbott’s office, said the decision “undermines unambiguous Texas law.”

“The Texas Constitution and statutes are clear: only the union of a man and a woman can be treated as a marriage in Texas,” she said, adding, “The Office of the Attorney General will weigh all options to ensure that the will of Texas voters and their elected representatives is upheld.”

More to come …

—  John Wright

Courting the voters for the title of emperor

Man, woman vying for emperor of United Court of the Lone Star Empire continue organization’stradition of fundraising

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Jimmie Tucker is running against Terry Youdan to become Emperor XXXVI of the United Court of the Lone Star Empire. If Tucker wins, this will not be the first time a woman has become emperor.

Youdan explained that candidates run for the position they’re most comfortable filling, and that the Fort Worth court has had a lesbian couple serve as emperor and empress.

No one is running for empress this year in the Dallas court.

According to UCLSE President Don Jenkins, the court will probably have a regent empress, appointed by the board, to serve in that position.

Jenkins estimated that UCLSE stages shows at least 40 weeks a year, including multiple shows some weeks. And, he added, the court has given in the neighborhood of $1 million to a variety of organizations through the years.

Each emperor and empress is required to attend at least five of the six coronations held by other courts in Texas. They must also attend at least three out-of-state coronations.

The group is active with other organizations, like the Texas Gay Rodeo Association. Jenkins was recently grand marshal of TGRA’s Big D Rodeo.

Serving as emperor can become expensive. Jenkins followed his husband as court royalty. He estimates that they spent $40,000 during their reigns traveling to events including more than 30 coronations.

Jimmie Tucker
Jimmie Tucker

Jimmie Tucker
Tucker has been a member of the court for four years. Previously, she held the National Leather Association title of South Central Leather Woman 2006.

“I just love giving back to the community,” Tucker said to explain why she became involved in the court.

Tucker’s most recent show at the Dallas Eagle netted about $500 that she is donating to Health Services of North Texas.

In addition to performing, Tucker said she and her wife bake Tucker Inn Cookies. She auctions off boxes of Hello Kitty, pink flamingo or high-heeled shoe cookies for $40 to $50 a box.

But despite her love for baking, Tucker said she isn’t sure that “June Cleaver in leather” accurately describes her.

“I’m a leather dyke,” she said. “I’m butcher than some.”

Tucker said that if elected, she would like to see the court do more together as a family.

Tucker participates in Beyond Vanilla and other educational events with National Leather Association.

Terry Youdan
Terry Youdan

Terry Youdan
Youdan also has been a member of the court for four years.

“I love the group,” he said. “I want the opportunity to give of myself and to the community.”

At his shows, he’s been raising money for Youth First Texas, Resource Center Dallas’s nutrition programs and AIDS Services of Dallas.

Youdan said the only Texas city he hasn’t attended coronation in  is Corpus Christi, but he’s been to each of the others several times and is looking forward to visiting the other courts.

As emperor, he would like to add a volunteer coordinator and get the court even more involved with other groups.

He said that they’ve served Thanksgiving and Christmas dinners but he’d like them to do more of that on a regular basis.

Voting
Voting began Oct. 21 at the Hidden Door and continues on Oct. 22 at the Dallas Eagle from 8 p.m. to 10 p.m. On Oct. 23 votes can be cast the Gay and Lesbian Community Center from 10 a.m. to 3 p.m.
Anyone living in the empire may vote. That area includes Dallas and all surrounding counties with the exception of Tarrant, which has its own court. Voters must show a drivers license to show county of residence and be of legal age.

The winner will be announced at coronation at the Crown Plaza Hotel on Stemmons Freeway on Oct. 30. The evening is billed “Denim & Diamonds, A Night of Big Band and Country Swing.”


More information is available at DallasCourt.org.

This article appeared in the Dallas Voice print edition October 22, 2010

—  Kevin Thomas

More suicides? Lesbians found dead in Canada

Chantal Dube, left, and Jeanine Blanchette

The Canadian LGBT news site Xtra is reporting that the bodies of two young lesbians have been found in a wooded area in Orangeville, Ontario after the two apparently committed suicide.

Girlfriends Jeanine Blanchette, 21, and Chantal Dube, 17, reportedly made “goodbye” phone calls to two friends, and left goodbye letters behind for family members. The friends immediately reported the calls to police, by Blanchette’s family said didn’t take the threat seriously enough or look hard enough for the two young women, choosing to believe instead that Blanchette and Dube had run away together and would come back home before long.

Police have said autopsy reports won’t be available for several weeks, but one of Blanchette’s family members said they believe the two young women deliberately overdosed on prescription medications. The families have also said they do not believe the girls’ deaths had anything to do with their sexual orientation, according to a report in The Toronto Star.

The girls’ bodies were found by a member of Blanchette’s family. The family, frustrated over what they saw as a lack of response from police, contacted a psychic for help and then formed their own search party.

Xtra points out that these deaths come in the wake of suicides by six teenage boys in the past month who had been the victims of anti-gay bullying.

—  admin