Resources / Miscellaneous
Discipline, Excommunication, and Name Removal
Legal Tips For Gay and Lesbian Mormons
By Rick Fernández
One of the areas where lesbians and gay men often encounter the greatest difficulty is the law. Most laws are explicitly, if not unconsciously, designed to favor and protect heterosexual relationships and interests. Where laws deal with homosexuality, they often do so in negative, punitive ways. (The most recent example is the title of the 1996 federal bill called "The Defense of Marriage Act." The bill had nothing to do with defending marriage. But its very title perpetuates the lie that marriage is about to crumble as an institution because of us. The truth is that with a 50% divorce rate, rampant adultery, spousal and child abuse, heterosexuals do not need our help to destroy their marriages.) It is important for all of us to know that despite these obstacles, there are ways we can make the law work for us. This article provides a basic outline of key issues we need to be aware of.
While the title of this article implies that these tips are specific to Mormons, most everything here applies to anyone who is gay or lesbian. However, I have included a section here dealing with a situation frequently facing lesbian or gay Mormons who turn to the church for help: the potential for ecclesiastical abuse.
(Note: though the author is a licensed attorney, this article is intended as a general overview of American law, not as legal advice. Persons requiring legal assistance should retain a qualified attorney.)
Marriage and Family Issues
Many non-gay people are surprised to discover that lesbians and gay men consider their committed relationships to be the equivalent of heterosexual marriage. But for the legal contract, our relationships are just as real, just as personal and just as vital to our happiness and well-being. Our families may or may not include children, but our families are as real as anyone else's. What we do not yet have is legal recognition of our marriages and families, with the many benefits that follow this (though as of this writing Hawaii seems poised to recognize same-sex marriage). In the meantime, below are some specific steps that may be available to us that help in protecting our relationships and families.
Domestic partnerships are persons of the same or opposite sex who reside together in the equivalent of a married relationship, without having been legally married. A number of governmental authorities and employers offer benefits for persons in domestic partnerships. These benefits can include:
Among the cities and counties that currently recognize domestic partnerships are: Alameda County, California; Berkeley, California; Laguna Beach, California; Los Angeles, California; San Francisco, California; Tacoma Park, Maryland; Cambridge, Massachusetts; Ann Arbor, Michigan; Minneapolis, Minnesota; Ithaca, New York; Portland, Oregon; Burlington, Vermont; Seattle, Washington; and Madison, Wisconsin. Many private employers also grant domestic partnership benefits, including: Levi Strauss & Co.; Microsoft; Lotus; MCA; Pillsbury, Madison & Sutro in San Francisco; the American Psychological Association; US West; Coors Brewing; Time Warner; Sun Microsystems; Xerox; Eastman Kodak; American Express;
Hewlett Packard and Ben & Jerry's Ice Cream. The list grows almost monthly.
- health insurance
- sick leave
- accident and life insurance
- death benefits
- parental leave
- educational benefits
- use of health club or recreational facilities
Where available, couples should consider whether they want to take advantage of the benefits offered through domestic relationships. Where not yet available, I suggest getting a copy of Recognizing Lesbian and Gay Families: Strategies for Obtaining Domestic Partners Benefits, from the National Center for Lesbian Rights, 1663 Mission St., 5th Floor, San Francisco, CA 94103, (415) 621-0674. The book offers many useful suggestions for working toward obtaining domestic partnership benefits.
Couples who live together do not have the benefits and legal protections that marriage offers. We may also face discrimination when we go to rent or buy a home, unless such discrimination is forbidden by local law (unfortunately, no federal law bans discrimination based on sexual orientation). The key is knowing where we stand. With that information, we can be smart about how we arrange our lives so as to maximize our protection. Here are some useful tips:
- If you are going to rent, before you sign read the lease carefully and note if there are any provisions that prohibit "immoral behaviour" or "association with undesirable people." Don't be afraid to ask the landlord to delete these provisions (and initial the deletion). A homophobic landlord could use such a provision against you if he or she finds out you are lesbian or gay. Find out if your community prohibits discrimination in housing based on sexual orientation. If it doesn't yet do so, organize with others to change the law.
- Decide in advance what you will do with your money. You don't have to pool it and are free to maintain separate accounts. You are also free, however, to open a joint account. If you do so, then both of you have full access to all the funds in the account, and should one of you die, the money passes directly to the other spouse's separate ownership outside of probate or a will. You may even want a combination of these options, where you each maintain separate accounts for your separate expenses, and a joint account for common expenses. It's totally up to you! Money can be a major area of conflict, so be sure you know what you're getting into before you make any arrangements.
- When you buy property, such as a home or car, be sure you know what your options are for owning it. If you want the property to go automatically to the survivor should one spouse die, be sure you take title in what is called "joint tenancy" or the equivalent (this may also be called "tenancy in common with right of survivorship" elsewhere). On the other hand, you may want to be tenants in common, so that the share of the deceased spouse passes under the terms of a will or state law, where no will exists.
- You should be able to obtain joint insurance policies, so be sure to ask. This includes homeowner's, renter's and automobile insurance. If you encounter any difficulty, either persist or go to another insurer. There are plenty out there who will be more than happy to take lesbians and gay men as customers.
Family and Children
More and more couples are choosing to have children, through a variety of means. Of course, many lesbians and gay men already have children from previous heterosexual marriages too. It's simply a lie that we don't value families and children. All of us come from families and most of us share a desire to be close to them. But what issues do we face when we have children of our own? This section offers some practical considerations.
Decide whether you want both partners to be the legal parent of your children. A legal parent has many rights, and many legal duties as well. The responsibility is not to be taken lightly. How do you become a legal parent? When a single woman has a child, she is automatically a legal parent. When a married couple has or adopts a child, both parents are automatically considered the legal parents. When a spouse who has a child divorces and remarries a new spouse, the new spouse is not a legal parent unless she or he adopts the child. However, all this breaks down where same-sex couples are involved. Thus, if a woman who bore a child later had a female partner who also wanted to be a legal parent, the partner could try adopting the child. However, because same-sex couples are treated as single persons under the law, the biological parent's legal rights would first have to be terminated! So how do same-sex partners both become legal parents of any children?
Several states have begun to recognize adoptions by gay couples where both partners are granted the status of legal parenthood. However, it is not a process to be attempted without a lawyer, so I strongly advise anyone considering this to consult with an attorney experienced in helping gays and lesbians through adoption. It's not for the faint of heart.
How can same-sex couples without children go about having children? There are many ways available, including artificial insemination, surrogacy, and adoption. However, each of these can be quite complex and depends a lot on local law and precedent. Again, I strongly suggest you work with an experienced attorney before jumping in on your own.
Health and Finance Planning
What happens when you or your partner become ill? Who gets to make decisions about your medical care when you can't do it for yourself? Who pays your bills when you can't because of sickness? These can be very difficult situations that can cause lots of pain and conflict at the worst possible time unless you've planned ahead. Fortunately, the solutions are usually very simple. This section will provide an overview of what these include.
Power of Attorney
No unmarried person should be without a power of attorney. Power of attorney is simply a legally binding document by which you, the principal, grant to another person the legal power to perform actions in your name and on your behalf. This person becomes your "attorney in fact." The power of attorney can be for a designated period of time, or can be indefinite, can start immediately, or only upon the happening of a certain event. It can also be made effective even if you are incapacitated (traditionally, a power of attorney ceased if the principal became incapacitated). This is called a durable power of attorney. It can be limited to certain affairs, such as financial, or grant power in other affairs as well.
Durable Power of Attorney for Finances
A durable power of attorney for finances is fairly easy to create, and recognized in all states and the District of Columbia. Forms for creating it can be found in virtually any legal supplies store. Be sure to comply with any state requirements, such as having two witnesses or needing to have it notarized. The great thing about this type of power of attorney is that it allows someone to pay your bills, cash your checks and perform other financial transactions in your name on your behalf.
Durable Power of Attorney for Health Care (Advance Directive)
A durable power of attorney for health care (or Advance Directive) is a very important means of ensuring that someone you trust has the authority to make medical decisions for you when you cannot. It can also prevent the nasty battles that may arise when a homophobic parent or legally recognized family member steps in who wants to cut the lesbian or gay partner out of all decision-making. In a durable power of attorney for health care, you can designate exactly what kind of decisions you want your attorney in fact to make, and what, if any, you don't want her or him to make. You can specify under what conditions you want medical treatment to be terminated, or which medical treatments you would want continued. The point is that you are in charge still, even if you can't speak. Be sure to give copies of your valid power of attorney for health care to your attorney in fact, to your doctor, to the hospital, and to any other health care providers to place in their records. You should also be aware that in some states, durable powers of attorney for health care don't last forever but have to be renewed regularly. Be sure to find out what the laws are where you live. Don't forget too that you have the right to change or revoke your durable power of attorney for health care. Again, just be sure you comply with the legal requirements so you get it right.
Estate planning refers to the plans you make to dispose of your possessions after you die. If you don't leave directions on what to do with these possessions, the state will step in with its own rules. This is OK if you like what the state has planned, but if your wishes are at all different, the only way to make sure they are followed is to plan correctly. For most people, this means having a will. There simply isn't any excuse for not having a will. It's simple and easy to do, and for gays and lesbians, it's just plain stupid not to have one. Without a will, homophobic parents or relatives can step in and take everything you have, even if you didn't want them to have it, even if that means your surviving partner gets left with nothing. A will can easily prevent this. A will lets you give your property to anyone you wish. So, if you do anything at all, be sure you have a will.
This short overview can't give you the specifics you need to create a will, since there are too many variables. However, don't let this deter you. A will is not hard to do, and unless you live in Louisiana, you don't need a lawyer to make one. A few basic questions are addressed here:
Generally, a will must be typed and must state that it is your will. It must also be signed and dated by you in front of two or three witnesses who hear you say it's your will or who watched you sign and date. The witnesses must then also sign and date it. They may or may not be beneficiaries of your will. Legal specifics vary state by state, so be sure to check.
A will may also be handwritten without witnesses. Such a will is called "holographic." In some states, they are valid while in others, they are not. Be sure you know what the law of your state is. In an emergency, it may be smart to write one up, but don't rely on it if you can avoid it.
Generally, a will that was valid in the state where it was created is valid in any new state to which you move, except for Louisiana. But you can always revoke your will and write a new one, if need be.
Be sure your will doesn't have crossed-out sections. If you have any changes, make them before you sign. Crossed-out sections can cause a variety of effects, not always desired, depending on the state where the will was executed.
If large amounts of money and possessions are involved (roughly $50,000 or over), be aware that there may be large tax consequences and probate expenses to your estate. In addition, a will may not be the best way to pass on your possessions. You may also need to consider trusts, or other devices for transferring property outside of a will. While you don't want to pay out more of your money to the state and to attorneys than necessary, it is a wise investment to obtain the help of an experienced attorney who understands estates and taxes thoroughly.
Finally, don't forget that there are many excellent books available that can help introduce you to the basics and the complexities associated with estate planning. Don't be afraid to read! Because so little in the law protects gays and lesbians, we need to take advantage of those areas where we are treated fairly, while working to change those laws that are unfair.
Protecting Yourself from Religious Abuse
Mormons generally believe that their church leaders receive special inspiration for the care of members, and are concerned only with members' spiritual and temporal well-being. This belief, coupled with experience, leads Mormons to trust their church leaders implicitly and to follow the counsel of leaders, often without question. While I believe the vast majority of leaders are caring, sincere, and well-intentioned, I also believe that gays and lesbians should approach counsel from these leaders on homosexuality with great caution. This advice is based on the cumulative experience of Affirmation members dealing with church teachings over the last 20-30 years. We have witnessed these teachings change dramatically, often like a see-saw, during this period.
Leaders have told gay members that they should marry and then they'll be cured, and then told them that marriage was not a cure; that parents were to blame because the mother was dominant and the father was weak, and then that no one knows the cause of homosexuality; that homosexuality is a sin that anyone who tries hard enough can repent of, then admitting that homosexuality is for many a permanent condition requiring celibacy since only some will be able to marry successfully; that simply being gay or lesbian was sufficient reason to excommunicate someone to excommunicating only for engaging in sex outside marriage; that we should not use the word "gay" or "lesbian" because there are no gays or lesbians but only heterosexuals who have a problem with same-sex attraction, and then hearing President Hinckley admit to the San Francisco Chronicle, March 20, 1997, that "we have gays in the church—good people." This kind of flip-flop is confusing and damaging to someone who is accustomed to doing what they are told. The constantly changing nature of this counsel shows us that it would be foolish to rely on it. But perhaps the worst example during this time is the changing instructions members have received requiring them to submit to various types of failed cure therapies. These include electroshock therapy, drug and pornography therapy, various types of thought control and most recently, the "baseball" therapy advocated by the church-affiliated Evergreen organization. Along with the numerous examples of broken hearts, homes and marriages that have resulted from people relying on these failed experiments, there have also been violations of legal rights. While no law cannot protect us from false religious counsel, it can protect us from abuses that extend beyond religion into the civil sphere. In some cases, monetary damages may be available to compensate people for their pain and suffering as well. There is no reason to remain a victim when you can protect and defend yourself.
What are some examples of this kind of abuse? One gay person I know was required by his bishop to attend counseling sessions with an LDS therapist to avoid church sanction. While there, the therapist asked the person to sign a release granting the therapist the right to report back to the bishop (the rules of professional responsibility would otherwise require the therapist to keep all conversations in strictest confidence). The person declined to do so. Nevertheless, when this person next saw his bishop, the therapist had reported everything to him.
What could this person have done? Several options exist. One, he could have reported the therapist to the state licensing board. The board would then have investigated the therapist, with possible suspension or even revocation of his license resulting. These are appropriate outcomes, since a therapist who cannot be trusted with a confidence does not deserve a license. Second, he could have sued the therapist for malpractice. The civil law provides remedies to prevent this kind of violation. In either case, the therapist would think long and hard before engaging in this kind of outrageous and unethical action again.
The idea of suing the church directly is not unthinkable either. In certain cases, church leaders can be held liable for their acts of negligence. This has occurred in cases of sexual abuse of children. For example, a lawsuit filed in West Virginia in 1996 seeks $750 million in damages from the church and others because the father, a member of the church, had told several high ranking church officials in September of 1989 that he was abusing his children, yet they failed to report the abuse to authorities, to take action to protect the children, or even to discipline the father. Although church members met and prayed with the father, no one ever counseled the children or tried to take them out of the home. The church officials who learned of the abuse from the father never reported it to authorities, even though clergy are required under West Virginia law to report suspected cases of child abuse.
I am not aware of any claims filed by lesbians or gays against the church itself for damage resulting from its teachings or actions toward homosexuals . . . yet. Aside from actually violating civil or criminal laws, religious leaders have broad first amendment rights to teach and believe what they please, no matter how harmful. There are two important lessons for us to draw from this fact. First, leaders can be held liable for breaking the law. The following are examples that may or may not be obvious:
- No leader can hit or assault you (despite Boyd Packer's saying it is OK).
- No leader has the right to defame you. This means a bishop cannot spread falsehoods about you that damage your reputation.
- No leader has the right to require you to submit to embarrassing, invasive and potentially abusive inquiry into your sexual life. This may constitute sexual harassment or intrusion into private affairs.
- No leader has the right to invade your privacy by disclosing publicly private facts about you, even if the facts are true. Stories of people telling their bishop a private fact only to discover that the whole ward, if not the whole stake, knows about it next week are not uncommon.
- No leader has the right to commit intentional infliction of emotional distress. This could happen, e.g., where a bishop, in his special relationship of spiritual counselor to trusting member, engages in extreme bullying or threatening, that results in severe emotional distress.
- No leader has the right to interfere with existing or potential business associates and induce them to break off relationships to your economic harm. One person I know who came out to his bishop not only lost his job but found he could not get another in his LDS community after the bishop contacted everyone in his field to tell them not to hire him.
Second, we should recognize that no one is going to protect us from harmful teachings but ourselves. We need to learn that it is OK to protect ourselves. We need to stop assuming that someone is right just because they have a title of authority. We need to remember that Jesus had no problem "talking back" to the designated leaders of his day—nor should we. When we were children, there was little we could do to prevent abuse. But as adults, people abuse us because we let them. The answer is to stop approaching our church as children, and be mature adults. Don't submit to abuse when it happens!
For more practical tips on how to deal with this kind of abuse, contact the
Mormon Alliance. The Mormon Alliance was organized in 1992 to uncover, identify, define, name, chronicle, resist, and even combat acts and threats of defamation and spiritual abuse perpetrated on Mormon individuals and institutions by Mormons and non-Mormon individuals and institutions. Learn more at the Mormon Alliance website.
Much of the information in this article is based on an invaluable and highly recommended book called A Legal Guide for Lesbian and Gay Couples, Nolo Press, Berkeley, ©1993. This book provides far more detail than this article could, and also provides sample forms for all the documents mentioned above. Additionally, it has an excellent bibliography of additional books and resources. It is also updated regularly and a 25% discount is offered when turning in a previous edition.