Power Struggle

Critics of Amendment One say that it would affect medical powers of attorney. Supporters say it's about marriage, not contracts.



English professor Deany Cheramie was midway through a presentation at Nicholls State University in Thibodaux when the departmental secretary unlocked the classroom door and let Susan in.

"Deany, my beeper went off," Susan recalls saying. They both knew exactly what that meant: Susan, an end-stage renal patient, had just been paired with a kidney. She would receive a transplant that day, as soon as the couple could get to New Orleans.

"I told my dean I'd be gone for a week, and we took off," Cheramie remembers.

Any spouse can relate to what came next: Cheramie first agonizing while Susan went through surgery and 24 hours alone in ICU, then taking up residence in Susan's room and negotiating with doctors, nurses and even housekeeping on her behalf while she recovered.

But Cheramie and Susan (who requested that Gambit Weekly not print her last name) aren't married. The two women are in a committed relationship that has now lasted 14 years. At the time of Susan's 1996 kidney transplant, Cheramie was able to care for her partner only because the medical staff at Tulane Hospital -- and Susan's parents -- recognized their relationship.

Three years ago, the couple decided to create medical powers of attorney (POA), each giving the other the right to make medical decisions on the other's behalf, and to visit the other in case of hospitalization. Such legal arrangements are common among unmarried couples, gay and straight, who want their partners to call the shots in case of illness.

Now, critics of Amendment One, which is scheduled to go before voters on Sept. 18, say that such contracts may be at risk. The proposed amendment specifically states that "a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be recognized." Some attorneys say that language could mean that a medical power of attorney between an unmarried couple could be dismissed because it creates an arrangement similar to what is found in a marriage. In the case of same-sex couples, the amendment goes further, saying that "the legal incidents of marriage cannot be conferred upon any member of a union other than the union of one man and one woman."

"Every contract creates a legal status, and if it's a legal status that some judge thinks is equivalent to marriage, it could be challenged," says attorney John Rawls, one of three lawyers who unsuccessfully challenged the law in court prior to the election. "This impairs the ability to form contracts for one set of people, and both the federal and state constitutions prevent any law from impairing contracts."

The New Orleans-based Forum for Equality estimates that the amendment would affect Louisiana's 74,755 unmarried same-sex couples identified as living together in the 2000 U.S. census, as well as all of the approximately 357,000 gays and lesbians residing in the state. That means more than half a million Louisiana voters, or 11 percent of the adult population, would be directly affected by the amendment.

Attorney Bruce Waltzer, president-elect of FFE's board of directors, says the amendment means unmarried people could be challenged on any contracts they make with one another if those agreements could be construed as recreating some aspect of marriage. Waltzer says that could include adoption proceedings and legal guardianship arrangements; joint ownership of business or private property; living wills; durable powers of attorney such as the one between Cheramie and Susan; and wills.

Supporters of Amendment One disagree. An Associated Press article published Thursday cited Louisiana State University law professor Katherine Spaht, who helped write the amendment, as saying it won't touch private contracts. And state Sen. John Hainkel, R-New Orleans, who introduced the measure in the Senate, says that the arguments about the "incidents of marriage" are "extraordinarily belabored" at best.

"I've always been a private contract person from day one," says Hainkel, who states firmly that the legislative intent of the bill is not to affect the ability to make a contract. In fact, he says, he explicitly told Spaht and LSU law professor John R. Trahan, who helped shape the language of the amendment, to make sure it wouldn't intrude on contract rights. "The things they're taking about, like powers of attorney, aren't incidents of marriage," says Hainkel. "I don't care what people do in private. It's their own damned business."

On Sept. 2, the Louisiana Supreme Court upheld a lower court decision that a move by FFE and three other plaintiffs to have the amendment declared unconstitutional before it reaches voters was premature. In a concurring decision, however, Louisiana Supreme Court Chief Justice Pascal Calogero Jr. said the amendment violated the state constitution by presenting more than one object in a single amendment -- underscoring critics' arguments that both marriage and civil unions would be affected by the amendment. State election code allows election challenges only within 10 days after the election results are counted.

LOCAL GAY AND LESBIAN COUPLES have come up with a list of documents that more or less cobble together the legal protections of a marriage. A typical portfolio contains mutual durable powers of attorney, durable medical powers of attorney including medical visitation, a declaration and specific donation for the disposition of remains for each partner, declarations of living will, and last wills and testaments.

The AIDS crisis spurred gay men to seek medical powers of attorney in ever-increasing numbers across the 1980s. Such medical arrangement have become commonplace among committed gay couples. Attorney Linton Carney, executive director of the local nonprofit legal assistance group AIDS Law, estimates that he executed more than 200 durable medical POAs in Louisiana last year alone.

Ironically, the changing face of AIDS might have undercut political mobilization against the amendment. Because AIDS is no longer solely identified with the gay population, neither AIDS Law nor the NO/AIDS Task Force have taken an official position on the amendment. African Americans, who comprise the fastest-growing group affected by AIDS, have been urged by the Rev. Paul Morton and other local black ministers to support the amendment on moral grounds. The Southern Decadence celebration over Labor Day weekend, while big on public displays, was devoid of anything so formal as a voter information drive.

The nonpartisan Public Affairs Research council (PAR) says that legal analysts are split on the potential impact that the amendment would have on private contracts. The city, meanwhile, has officially thrown up its hands on that issue. "Our position is that it's going to be sorted out in the courts," says Larry Bagneris, director of the City's Human Relations Commission, adding that the city's legislative team worked against the measure while it was being debated.

The ambiguity of the proposed amendment was palpable at a legal conference held last Wednesday at the Louisiana Supreme Court to celebrate the bicentennial of the French Civil Code in Louisiana. "The term Œlegal incidents of marriage' is key," says Jeanne Carriere, a specialist in family law who conducted a recent class at Tulane University Law School around the amendment. "The term is too broad to provide any guidance to the citizens as to what arrangements will be upheld and what will not." Loyola Law assistant professor Monica Hof Wallace agrees, saying that the amendment would seem to allow for special discrimination against anyone the court judged to be in a marriage-like relationship. "It's hard to figure out whether some contracts between same-sex couples would be enforceable in light of the amendment," says Wallace. "I'm not opposed to a marriage amendment per se, but at some outer bounds this could be legislating morality."

Because Louisiana Civil Code already defines marriage as "a legal relationship between a man and a woman that is created by civil contract Š subject to special rules prescribed by law," both supporters and critics say the amendment wouldn't change the definition of marriage in the state. What it would do, Waltzer says, is give those opposed to unmarried couples legal ammunition for delaying crucial legal and medical decisions by questioning the rights of a parent or loved one.

Cheramie and Susan see it in personal terms. Cheramie remembers once stopping a nurse who was about to inject Susan with antibiotics. As it turned out, Susan was allergic to the medication. But Susan was still unconscious, recovering from another operation. If Cheramie hadn't been there, Susan would have received the harmful injection.

"I think this law would allow the government to challenge any power of attorney that we could put together," says Cheramie.

"My biggest fear," Susan says, "is that I will become ill and Deany can't have access to me, no matter what my will, no matter what my nephrologist knows."

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