Gay/Lesbian Issues

The Libertarian Golden Age and Gay Marriage

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As part of a a round of Internet chatter over the notion that the 1880s might constitute a lost libertarian golden age, The Atlantic's Megan McArdle writes:

As Tyler Cowen has pointed out, the laws of the time reinforced that social structure in many, many ways.  Take divorce, which could only be obtained for cause.  Now, as I understand it, if both parties wanted one, a "correspondent" could be hired who would be caught with the man in a compromising position.  But if he didn't want a divorce, well, what was she to do?  Divorce was shameful—but a woman caught in adultery was a moral outrage.

There are also ripple effect.  If no one you know gets divorced, then it becomes that much more unthinkable for you—especially since the social system to deal with divorce won't exist.  There was no place in American society of 1880 for a divorced woman, and that matters….

You cannot simply snip the legal system neatly out of its social context.

Along those lines, a couple of pieces of relevant news about the elimination of small legal barriers for gay couples that could make a big cultural difference:

The bigger news is that all hospitals accepting Medicare or Medicaid must now recognize the decision-making rights of gay partners. (Note: While I have reservations about attaching those kinds of strings to federal health funds, the new arrangement—that patients should simply be able to designate who is a decision-maker rather than being bound by ties of blood or state-recognized marriage—is preferable for a variety of reasons.)

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans….

The new rules will not apply only to gays. They also will affect widows and widowers who have been unable to receive visits from a friend or companion. And they would allow members of some religious orders to designate someone other than a family member to make medical decisions.

The smaller news, which perhaps illustrates the point better, is the possibility that congressional ethics disclosures will now include gay married couples.

The House ethics committee has drafted rules that for the first time would define gay married couples as "spouses" for the purposes of filling out their annual Congressional financial disclosure forms.

Activists on both sides of the gay marriage issue said the reporting requirements, if adopted, would mark the first time Congress has recognized a gay partner as a spouse….

The new instructions include the following paragraph under a new heading, "Same-Sex Marriages": "In 2009, there were a total of four states which issued marriage licenses to same-sex couples: Massachusetts, Connecticut, Iowa and Vermont. (New Hampshire and the District of Columbia began issuing such licenses effective in 2010). If you and your spouse were issued a marriage license by any of these states and were subsequently legally married in that state, you must disclose all required spousal information on your Financial Disclosure Statement."

Note that according to the Roll Call account, absolutely everyone is unhappy with the proposed disclosure rules. Gay activists see this as imposing the costs of marriage without giving the full benefits. Gay marriage opponents see this as a violation of the Defense of Marriage Act, which prohibits the federal government from recognizing gay marriages. But the new rules acknowledge the reality of gay relationships: If your spouse is getting kickbacks from somewhere unsavory, you're just as likely to be inappropriately influenced in a gay relationship as you are in a straight one.

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  1. Those divorce laws were not on the federal level.

    I think a strong case could be made that Grover Cleveland was one of our most libertarian presidents.

    1. HEY!I already covered this.

      My thunder, you are stealing it.

    2. You may be right about Cleveland, but having a libertarian president is not the same as being in a golden age of freedom.

    3. Grover Cleveland did establish the Interstate Commerce Commission…

  2. The bigger news is that all hospitals accepting Medicare or Medicaid must now recognize the decision-making rights of gay partners.

    As noted the first time this was posted today, this is in no way an advance for liberty.

    (1) All hospitals now extend full rights to anyone designated by the patient. Visitation, decision-making, access to records, you name it. There was simply no discrimination to be remedied here.

    (2) By converting a universal practice and existing (mostly state) law into a new federal rule, we have extended the scope of the federal government and added yet another rule to the myriad governing our lives.

    How any soi-disant libertarian can celebrate this as an advance for liberty is beyond mystifying. It is infuriating.

    the new arrangement?that patients should simply be able to designate who is a decision-maker rather than being bound by ties of blood or state-recognized marriage

    This is not a new arrangement. I am aware of no state that does not allow the patient to designate a decision-maker regardless of blood ties or recognized marriage.

    1. The only issue is what happens when someone has not designated someone, and, as unfortunately happens, close relatives disagree. But that’s not so much as a problem of liberty as it his deciding who gets to control and own an unconscious person.

      1. The only issue is what happens when someone has not designated someone, and, as unfortunately happens, close relatives disagree.

        That can be a serious problem, no doubt, but laws on designated surrogate decision-makers are rather beside the point when no one is designated.

        1. Oh, certainly. A more important change would be about whether a gay spouse would be recognized in favor of parents for an unconscious person.

          Image a Terri Schiavo situation, only where the person in a coma is gay and the parents don’t want the gay spouse to have decision-making rights. It would be a shitstorm if they disagreed, regardless of who wanted to pull the plug versus keep the patient alive.

          The version where the gay partner wanted to keep the person alive but the parents wanted to pull the plug and the parents had rights because the hospital didn’t recognize gay partners as a default would cause some strange bedfellows, and really divide social conservatives.

          1. No it wouldn’t. Why are we under the impression that social conservatives have qualms about flip flopping on issues? They would immediately defer to the parents and explain it away that it is the wish of the family that…

    2. Thanks, RC, saved me the trouble of repeating it.

    3. How any soi-disant libertarian can celebrate this as an advance for liberty is beyond mystifying. It is infuriating.

      Many libertarians are just as likely as liberals and conservatives to be for big government when it means imposing the right sort of morality.

      Everyone’s a libertarian, except when something’s important.

      This gives the lie to the principled complaints about Terri Schiavo. If it’s worth intervening when someone might not get a visitor, then you can easily justify intervening if someone might get killed (or kept alive, hard to know either way) against her will.

    4. Again, RC Deans reasoning here = “the state wasn’t enforcing the sodomy laws so their repeal is no advance for liberty.”

      1. Again, fail. Is the construction of straw men the only thing you learned in college?

        Sodomy laws were an expression of tyranny. No one here has ever supported them. Granting special rights to people based upon “marriage” of any kind is just that, granting special rights. Government granting rights does not equal Liberty.

        Surely even you can see the difference between prosecuting someone for an action and granting them special status.

        1. Again, do you value liberty to the exclusion of any other value? Equality is important to.

          In Libertopia there is a police force which lets say will be funded by taxes (a minarchist state). It enforces only basic minarchist laws. Someone says “we could have lower taxes if we only enforced the rights of white people.” You game RC? If not, why?

          1. Again, do you value liberty to the exclusion of any other value? Equality is important to.

            Only equality of liberty…and protection of said liberty.

          2. Just enforcing the rights of white people is in no way libertarian. Why do you statists always trot out the racist pony like it’s something liberty-minded individuals want to ride? Cost is used as argument to criticize the nation’s misled and unjust priorities (Corporate Welfare, Pointless Wasteful Wars, deluding generations of people that reality has nothing do with their safety net, etc). Of course, only enforcing the rights of one group over another would be cheaper in the short term, but creating a class of disenfranchised people for whatever reason will (and did) cause rioting in the streets, destroying the supposed benefit it had created.

            We like our ends to be derived from just means here MNG. Sure, less taxes are a desirable end, but if we have to let a race of people suffer injustice to make it happen, it will never be worth it. It’s why destroying the future wealth of young people(and people who have never been born) so Unions, Defense Contractors, Bailed out Banks, and Bailed out Auto manufacturers can suckle at the trough today will never be palatable to us.

      2. Again, RC Deans reasoning here = “the state wasn’t enforcing the sodomy laws so their repeal is no advance for liberty.”

        No, RC Deans reasoning here = “there are no sodomy laws, so the President claiming to repeal them is no advance for liberty.”

    5. RC Dean nailed it. What one prez can giveth with federal funds, and another prez can taketh away. Better to leave it to the states and local government.

      We’ll all be sorry when Mitt Romney is president and homos can’t use hospitals but 9 mormon wives get equal visiting privileges.

  3. Arrgh. Not done venting. This truly pisses me off, because I am an expert, and have been for over a decade, on medical decision-making.

    Unless someone can give me chapter and verse to the contrary, I assert that these scenarios are, at most, isolated violations of existing hospital policy and likely state law, or (more likely) pure fiction:

    They also will affect widows and widowers who have been unable to receive visits from a friend or companion.

    Who are these widows/widowers wasting away in facilities that, by policy, prohibit visits from anyone who is not relative?

    And they would allow members of some religious orders to designate someone other than a family member to make medical decisions.

    Again: as far as I know, every state allows any patient to designate any person, regardless of marriage or family ties, to be a surrogate decision-maker.

    1. RC, on the other thread on this topic you stated t 9:52 AM: Trust me on this; this is what I do for a living.

      At 10:55 AM on the same thread I challenged you: So, what exactly is it that you do for a living that gives you special expertise on this?

      Realize you may not have seen that, so giving you another opportunity to state the exact nature of your expertise.

      Also, you didn’t respond to my challenge to comment on Virginia’s Marshall-Newman amendment, which states

      Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

      This has not yet been tested in Virginia courts, but the section I bolded is widely believed to require hospitals to ignore advance directives specifying gay partners as decision-makers. Please comment.

      1. pssst MNG–This^ is why libertarians want the state out of the marriage biz.

      2. At 10:55 AM on the same thread I challenged you: So, what exactly is it that you do for a living that gives you special expertise on this?

        I am general counsel for a hospital system, and have been practicing healthcare law since about, say, 1993.

        This has not yet been tested in Virginia courts, but the section I bolded is widely believed to require hospitals to ignore advance directives specifying gay partners as decision-makers. Please comment.

        Advance directives specify decision-makers by name, with no reference or reliance whatsoever on their relationship to the patient.

        That statute in no way invalidates any advance directive.

        1. OK, IANAL, so I’m not using language as precisely as you. Agree that M-N doesn’t invalidate advance directives per se.

          But, it seems like M-N would give standing to a blood relative to challenge any sort of directive if the patient and the directive-holder were in a same-sex marriage?

    2. I always wondered why an unmarried person couldn’t just grant their partner power of attorney for medical issues.

      1. they can… but you have to file a proxy. The problem is that if someone doesnt file a proxy, and they are in a coma etc, then the parter has no standing and it goes to the persons next of kin. This change for all practical purposes does nothing. Anyone can alreayd grant power of attorney to another individual if they so desire.

  4. How any soi-disant libertarian can celebrate this as an advance for liberty is beyond mystifying. It is infuriating.

    I suppose it depends on how you define “liberty.” I’ve seen people — not sure if they were trolls or not — argue that laws against marital rape or child abuse are also antithetical to liberty; if a man wants to rape his wife, what right has the government to tell him he can’t? If parents want to beat the snot out of their kids, how dare the government say boo? And if hospitals want to keep their gay patients isolated from their loved ones, how dare the government tell them they can’t do that?

    1. I’ve seen people — not sure if they were trolls or not — argue that laws against marital rape or child abuse are also antithetical to liberty; if a man wants to rape his wife, what right has the government to tell him he can’t?

      If a man wants to kill his unconscious wife, what right has… oh wait, for some reason many of those people line up on different sides of the different issues.

      People can define liberty in a lot of ways, particularly when you start disputing who counts as a full human with rights (blacks, women, children, fetuses, the retarded, animals, etc.) or in cases where everyone admits that rights and decision-making capabilities are restricted (people in comas who haven’t given clear instructions.)

      1. And while we’re on the subject, I’d like to take this opportunity to apologize for slavery. Again. Thank you.

    2. And if hospitals want to keep their gay patients isolated from their loved ones, how dare the government tell them they can’t do that?

      Do hospitals have the right to define the rules for access to their property or don’t they?

  5. And Political Homosexists continue to agitate for extra privileges doled out by Officialdom for what amounts to a fetish — homosexism — and thus a mind disorder.

    Granting privilege such as licensure on the basis of being a protected political class is the antithesis of libertarian belief.

    1. The whole protected class thing is an illusion. The real protected class is heterosexual only marriage. When the government says “you can have X benefit and you cannot” on the basis of gender it’s sexism. The fact that the inbalance occurs in the first place is the problem. I’m all for having no benefits if you don’t have em either. If you really believe what you say you do you’d argue that the government should stay out of my marriage as much as yours.

  6. And if hospitals want to keep their gay patients isolated from their loved ones, how dare the government tell them they can’t do that?

    If that’s your definition of liberty, then this is anti-liberty.

    If your definition of liberty is the contrary, that gay folk should have equal rights to visit and make medical decisions, then this changes nothing, other than extending the reach of the federal government, so it’s anti-liberty that way, too.

    1. If that’s your definition of liberty, then this is anti-liberty.

      I suppose I was insufficiently sarcastic, then, because I don’t think “liberty” includes a hospital’s presumed right to make its gay patients suffer alone while their loved ones are kept away.

      1. If you don’t like it, don’t go to that hospital. Other than county or other government hospitals do not such establishments have a right to conduct their business as they see fit? Or don’t you support property rights?

        1. Yeah, but if you’re unconscious you don’t get to decide where you go. Obviously, as a gay man I’d never check myself into a catholic-run hospital, but if I got hit by a city bus I might end up there.

        2. “If you don’t like it, don’t go to that hospital.”

          Thanks for again making the case that libertarians do not live in anything resembling reality.

          1. Well. You could carry around some sort of preference card for the ambulance driver to see where you’d prefer to go.

      2. That’s why I responded by pointing out that, under any conception of liberty, what Obama did was not an advance.

  7. And if hospitals want to keep their gay patients isolated from their loved ones, how dare the government tell them they can’t do that?

    Can’t we just agree that this is YAAEOFP (Yet Another Abusive Expansion Of Federal Power)? It’s one thing to laud the result of the decision. It’s another thing entirely to question how the results were accomplished.

    This EO smacks of monarchy.

    1. It’s one thing to laud the result of the decision.

      As long as you don’t kid yourself that this had a result (other than a little PR pop for Obama and the incremental expansion of federal power), go right ahead.

      1. Ah, let me rephrase that then: It’s one thing to laud the *intent* of this decision.

        As Mr. Thacker rightly points out above, I don’t want to hear a fucking whimper out those that support this action, when the next president decides that all facilities that receive Medicare/Aid are prohibited from performing abortions or using fetal stem cells in research.

        1. Exactly!

    2. This EO smacks of monarchy.

      Apr?s moi, le d?luge.

  8. the notion that the 1880s might constitute a lost libertarian golden age

    Whose notion?

    There are people who say that the U.S. government was, in sum, less un-libertarian in the past. They’re right.

    There aren’t any fucking Time Machine Libertarians.

    You cannot simply snip the legal system neatly out of its social context.

    Then libertarianism is refuted. As an anarchist, I agree. Say it, posers.

    1. There aren’t any fucking Time Machine Libertarians.

      http://econlog.econlib.org/arc…..rty_a.html

      i liked homeboy’s book but this stuff is retarded.

  9. Misleading title alert. The post doesn’t actually have that much to do with gay marriage in the so-called “libertarian golden age” (though the link might).

    I was curious to know if gays were banned from getting married in the 1880s.

    1. Bass Ackwards, SD. It’s never been a question of banning gay marriage, so much as permitting it. AFAIK gays were not permitted to marry until very recently in the US. Remember that until the seventies, homosexuality was considered a mental disorder or a moral defect. Even in 2010, some people (ie Smack MacDogal above) still hang on to those superstitious, unscientific beliefs.

      1. AFAIK gays were not permitted to marry until very recently in the US. Remember that until the seventies, homosexuality was considered a mental disorder or a moral defect.

        So openly gay people were not permitted to marry on the grounds of mental disorder or moral defect. That sounds plausible.

        1. P.S. It is actually impossible to google that particular question since everything that turns up is irrelevant.

          1. As far as the mental disorder part of it goes, google for “dsm homosexuality” without the quotes. I think it was the change from III to IV where they removed homosexuality as a disorder.

      2. unscientific beliefs?

        Quoting the Bible might not count as evidence, but isn’t there something else we could use in determining the nature of homosexuality? hmmm…. What was that thing?…. Oh yeah, BIOLOGY. REPRODUCTION. THE VERY PURPOSE OF THE SEXUAL FUNCTION.
        If considering nature isn’t scientific, then what is? The observation doesn’t really get us anywhere, but it definitely refutes liberals’ assumption that sexual preferences are as trivial tastes in food.

        1. but it definitely refutes liberals’ assumption that sexual preferences are as trivial tastes in food.

          Liberals feel that way, because to them, sex itself is trivial.

        2. There is no purpose in nature, just shit that happens. Purpose is something people invented.

        3. Humans also have sex for fun, you should try it some time.

        4. Which is why using birth control is also evidence of a mental disorder.

      3. SD, are you trotting out the “gays can marry as long as it’s someone of the opposite sex” trope?

        Edwin, yes, unscientific beliefs. Same-sex attraction has been observed repeatedly in the animal kingdom across species, so this observed behavior meets your stated test of being “scientific.” Also, research suggests that sexual orientation is driven by a “combination of genetic, hormonal, and environmental influences.”

        1. Trope? It is literally true. And I thought you were following my lead with the mental disorder bit. Is it true that in the past gays could not marry* because of mental disorder and/or moral defect?

          *the opposite sex

          1. Uh, riiiiiiiight. *cough* bullshit *cough*

        2. Yes, but clearly the sexual drive is SUPPOSED to drive the opposite sexes to each other, to the extent that you can refer to natural selection as “Supposed to” or “purpose”. Just like cables, the male parts fit into the female parts.

          Just because aberrations occur doesn’t stop them from indeed being aberrations, or not-normal or not-preferable.

          1. wtf are you talking about cables? The cables certainly fit into a another man’s asshole. Fail.

          2. We should also ban masturbation, since it serves no reproductive purpose…

            Humans aren’t the only animals that have sex for reasons other than procreation or that have homosexual behavior: http://en.wikipedia.org/wiki/A….._behaviour

            1. If someone was proposing letting you marry your dick, that might be relevant. Did someone propose making homosexuality illegal?

              1. No, the argument here is that gay marriage serves no reproductive purpose, so we shouldn’t allow it.

            2. did I say anything about banning homosexuality? Why are you talking about banning homosexuality? I think I smell an idiot imbibed with blue-state culture.

              1. No, the reason you gave for why homosexuals should not be allowed to marry is because that marriage serves no reproductive purpose. If this is not what you were saying then what WAS your point?

          3. anyway, what does any of this have to do with allowing gays to marry?

    2. In some ways those times were actually better for gays. Because homosexuality was rarely discussed, it was easier to be in the closet without arousing suspicions. “Confirmed bachelors” could have “close friends” or even “roommates” without everyone thinking “OMG sodomy!” See also “Boston marriage.”

  10. As a straight person in a long term, non-marriage relationship, I feel somewhat left out.

    1. You’re not entitled to special protection, then, Zeb. Go sit in the corner until you can get married.

  11. President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients’ choices about who may make critical health-care decisions for them,

    He mandated? WTF – he’s El Supremo now?

    1. You didn’t know he was El Supremo? Fuck dude, you’re clueless.

  12. Well, certainly one laudable aspect of this is, even if, as RC says, NO hospital has ever done this (linky?), is that now NO hospital CAN do it. Before any hospital was free to put gays in an uneven situation here, now they can’t (unless they want to forego their federal goodies).

    By RC’s logic a law affirming a right that noone in a polity was denying-say the right to “hunt and fish” in states like VA (which when I lived there passed a constitutional amendment barring such restrictions, which it was noted at the time really did not exist) is nonsense…

    1. Well, certainly one laudable aspect of this is, even if, as RC says, NO hospital has ever done this (linky?),

      Can’t prove a negative, MNG. Even the flagship example of supposed discrimination falls apart on examination. Scroll down a bit.

      is that now NO hospital CAN do it. Before any hospital was free to put gays in an uneven situation here,

      Err, no they weren’t, at least as far as medical decision-making goes. Hospitals are required by law to honor any advance directive/medical power of attorney.

      On visitation rights, show me a hospital that had a policy, or even a verifiable pattern, of discriminating against gay people, and we can talk.

      Otherwise, this is the equivalent of Obama issuing a rule prohibiting hospitals from operating on gay people without anesthesia.

      All show, no substance.

      1. Also, no harm no foul. Better to codify a right than to just assume it’s universally recognized (it’s not in this case).

        1. Unless that right conflicts with some other person’s right. This is the exact same argument as the argument for net neutrality: we don’t want companies to have control over their property. Better to make sure they treat everyone equally even though they have so far.

  13. This truly pisses me off, because I am an expert, and have been for over a decade, on medical decision-making.

    So, RC, for the third time: What exactly is it that you do for a living that gives you special expertise on this? What’s your take on Virginia’s Marshall-Newman amendment as it applies to this?

    Not sure whether RC has INCIFed me (his right), or just choosing to not respond to questions which might make him look bad.

    T o n i o

    1. If I’m not mistaken, he’s a lawyer.

      1. Thanks, but you’re not RC.

    2. Sorry, Tonio.

      Had a meeting. They come up, when you’re general counsel for a hospital system.

      The Marshall-Newman amendment will have absolutely no effect on healthcare powers of attorney, which delegate decision-making authority to a named individual without regard for their relationship to the patient.

      1. OK, that’s relevant expertise. But…

        There’s a difference between a simple POA, and someone attempting to claim inherent decision-making authority as a spouse. Please address that.

        1. Sure.

          In most states a spouse doesn’t have “inherent” authority for medical decision-making – they have authority because they are at the head of the statutory list of default surrogate decision-makers.

          You’re either the spouse, or you’re not. But now we’re talking about gay marriage, not medical decision-making.

          1. IANAL (obviously), but for non-lawyers “inherent decision-making authority” is exactly equal to being “at the head of the statutory list of default surrogate decision-makers”.

            We’re talking about medical decision making as one of the “rights, benefits, obligations, qualities, or effects of marriage.”

          2. Whether you get decision-making authority by virtue of your spousal status from a statute or because its inherent, I think it comes back to you’re either the spouse, or you’re not, Tonio.

            And that’s not a medical decision-making issue. Its a gay marriage issue. That amendment doesn’t revoke anyone’s medical decision-making authority – they either have it because they are named in a POA, or they don’t have it because they aren’t a spouse.

  14. And so the battle to determine who’s the weak, 8-hole hitter of Reason’s line-up between Katherine Mangu-Ward and Brian Doherty has another at-bat.

    Fresh off of confusing ‘Not making an issue of something’ and ‘Being rabidly anti something’, Ms. Ward brings us an article that goes: ‘So you may have seen the debate about the supposed Libertarian pas…..GAY MARRIAGE! GAY MARRIAGE! GAY MARIIIIIAGE! GAYYYY MAAAARIAGE!

    C’mon, Andrew Sullivan makes more subtle transitions than that. Point? As R.C. Dean points out, the hospital designation thing is over-blown. Doesn’t relate to the lead. Ms. Ward does come through with the usual holier-than-thou elite opinion thang, so I guess it’s of some value for those looking to get that outside of the usual social elite soapboxes.

    Brian Doherty answers Katherine Ward’s at-bat with another vaguely halfway-through-the-pot brownies dorm-room take on AmeriKKKan Imperiali$m in 3…2..

  15. Since I am seeing no links with any proof about why this EO is not needed (already a rule), here is one as to why it is. http://www.theolympian.com/200…..fight.html

    1. That’s a heartbreaking story, Mark. And I am amazed by a mindset who would say that Jackson Memorial Hospital will somehow be victimized by a law saying they can’t pull shit like that anymore.

      1. And I am amazed by a mindset who would say that Jackson Memorial Hospital will somehow be victimized by a law saying they can’t pull shit like that anymore.

        That is because you don’t understand the difference between coercion and freedom. Freedom means being free to tell other people to fuck off at will, for any reason they choose, rather than the ability of the government to force people to do things against their wishes.

    2. But…that can’t be true. It contradicts John’s unimpeachable personal experience and RC’s unquestionable expertise.

      1. But…that can’t be true. It contradicts John’s unimpeachable personal experience and RC’s unquestionable expertise.

    3. For the first eight hours that Pond was being treated at Jackson Memorial Hospital, Langbehn says, she and the children were barred from spending time with Pond. That changed when Pond’s sister arrived from Jacksonville.

      Simple explanation: The patient had not designated Langbehn as her surrogate decision-maker, and consequently she had no rights, due to this oversight on the patient’s part.

      The sister, by contrast, was probably the default surrogate decision-maker, and could authorize the hospital to give Langbehn visiting rights.

      You will note that the hospital had a non-discrimination policy.

      Its entirely possible that this hospital also has an eminently sensible rule restricting access to patients in critical care situations, which requires that the patient/their surrogate or a member of their immediate family agree to visitors.

      What Chris says below is right on target.

      I would finish by pointing out that giving access to a patient, or giving surrogate decision-making rights to someone, inappropriately, carries colossal legal risks. Hospitals have safeguards for a reason, not because they enjoy making people suffer.

      1. The first thing we do…

  16. I’m speaking as a physician.
    first about the case cited above. As I read the description this sounded much less like a case of discrimination and more related to clinical situation and rules (appropriate or otherwise) about visitation during a critical care situation.

    Now as to the broader situation. I have never seen a visitor turned away due to sexual orientation. And as far as I know anyone can designate whoever they choose to be their medical power of attorney.

    The only situation I could see this applying to is when the patient cannot speak for themselves and he/she has not designated an MPOA. Then it reverts to each states “hierarchy of decision-makers” and yes many states do not put life partner/significant other/etc. in that hierarchy.

    I appreciation the intention of the “fix” but the implementation is what vexes me. How does one prove that you are the life partner (homosexual or heterosexual)

    And of course none of this addresses/fixes the all to common fight between the designated decision-maker and the other “interested parties”

    1. How does one prove that you are the life partner (homosexual or heterosexual)

      If you’re married you produce your marriage license. Of course, if you’re in a jurisdiction that doesn’t recognize your marriage you’re SOL.

      In practice, I suspect that relatively few opposite-sex spouses are asked for this documentation, and that all same-sex spouses are asked to document.

      1. If I was asked to produce my marriage license, the requester would be SOL. If I ever had one, I have no idea where it is.

        1. Uh, no dude, you’d be SOL. Think about it. See, you’ve probably never been asked to prove you were married to your spouse. This is one of the big and very real differences in how society treats heteros and homos.

      2. How does one prove that you are the life partner (homosexual or heterosexual)

        Married? If someone claiming to be a spouse has the same last name, we usually just confirm that they share an address with the patient. There’s often other family around for confirmation.

        If they are “common-law” married (or claim to be when its convenient), we require a copy of a joint tax return (they can redact the numbers if they want).

        Life partner? Right or wrong, it has no legal status, so there’s no reason for us to verify or otherwise pay any attention to it.

        1. Life partner? Right or wrong, it has no legal status, so there’s no reason for us to verify or otherwise pay any attention to it.

          No reason except maybe the idea that a sick or dying person might want the company of his or her life partner at such times. But it’s ridiculous to think the best interests of the patient is anything a hospital need give a damn about. Especially if the patient is gay. Eeeeeeeeew, gay.

          1. Jennifer, he’s not being anti-gay, he’s just being lawyerly. And I’m really trying to be sympathetic to the plight of the hospitals in this, as difficult as it is.

            BTW, and OT: Can Reason fix the comments so we can enter bogus email addresses again? I use the email field to put pithy comments and easter eggs in my posts, ie “Dick the Butcher” above should have been listed with the address “HenryVI_Part2@shakespeare.uk” but the server spat it out as invalid. I bite my thumb at the squirrels. Fie upon youse.

            1. I understand he’s being lawyerly, but the legal opinion he expressed is exactly why this law is needed. A couple years ago, when Connecticut only had civil unions rather than gay marriage, I had to do a story about a civilly unified lesbian couple who were having some legal problem or other, and I remember one of them said something like “If we’re visiting her parents in Florida and she gets sick and goes to the hospital, I cannot visit her.” In Connecticut they had a legal status as a civil-union couple (by now they probably are married), but in states without gay marriage or civil unions they have no legal status, which means, as RC said, there’s no reason for a hospital to “verify or otherwise pay any attention” to the fact.

              And yes, it’s pathetic that an anti-bigotry law is needed to force hospitals into behaving with common human decency. I don’t think it’s antithetical to liberty, knowing that hospitals no longer have the legal right to prevent gay people visiting their sick or dying life partners in the hospital.

              1. it’s pathetic that an anti-bigotry law is needed to force hospitals into behaving with common human decency. I don’t think it’s antithetical to liberty, knowing that hospitals no longer have the legal right to prevent gay people visiting their sick or dying life partners in the hospital.

                As I posted above, you clearly do not understand the meaning of “Liberty”. “Forcing” the hospital to do anything is “coercion”. This is the opposite of “Liberty”.

                1. Nobody’s forcing these hospitals to accept medicare and medicaid payments. This policy only affects those that do.

            2. “Dick the Butcher” above should have been listed with the address “HenryVI_Part2@shakespeare.uk”

              Damn the squirrels indeed. I sooo didn’t get this post, at first, but the e-mail address would have made it work.

  17. If Nick is the Jacket and Stossel is the ‘Stache, then what is Katherine?

  18. I have a serious question. Help me out guys.

    If my son is unemployed when he turns 29 can I then become a legal gay partner with him and get him free health coverage or do I have to prove that I am fudging him first?(not that anything is wrong with that)

    1. That’s not a serious question.

      1. Nevertheless…

  19. Gabe was jacking off while typing that post.

  20. All hospitals now extend full rights to anyone designated by the patient.

    Really? Is there any proof for this? I thought there were complaints of gays being denied visitation rights and such. Even when so designated.

  21. I’ve never seen any hospital personnel ask for a marriage certificate. I’ve seen many ask for a copy of the Medical Power of Attorney document (which BTW doesn’t require a lawyers signature)

    This from the Washington Post report on this executive order:

    Hospitals often bar visitors who are not related to an incapacitated patient by blood or marriage,

    Again I’ve never seen a visitor barred because he/she was gay. Of course I haven’t been to every hospital

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