Making death discriminate
By Chris Busby
We have no power over death, but we can make death discriminate.
The day-to-day lives of gay men and lesbians in Maine have arguably improved in recent years. Discrimination, bullying and bigotry have by no means disappeared, but legal protections such as those passed in the 2005 amendment to the Maine Human Rights Act — which prevents discrimination based on sexual orientation in matters of housing, employment, credit and education — give gay Mainers a recognized right to be treated equally.
The domestic partnership registry in Maine, established in 2004, granted gay couples some additional rights, most of which apply when a partner is hospitalized, dying or has passed away. But this most difficult period is also the time when gay Mainers’ lack of full equality can become most pronounced and hardest to bear.
Richard Lawlor learned this the hard way last year when his partner of nearly five years, Roy Silvernail, was diagnosed with pancreatic cancer. Lawlor’s struggle to understand, much less receive, the limited benefits available to gay couples facing a partner’s death is typical, but also cruelly ironic given his stature in the gay community.
Now 57, Lawlor worked for many years as promotions director for Maine Arts, organizing events like New Year’s Portland. He also spearheaded several fundraisers for Equality Maine. Lawlor published The Companion, a newsletter about local gay issues and happenings, and he and Silvernail subsequently created the Web site gayportlandmaine.com to provide similar information. (Full disclosure: Lawlor wrote the gay-issues column Citizen Dick for The Bollard from the fall of 2005 until early 2006, when this was an online-only publication.)
The couple lived together in an apartment in the West End. They were also business partners and shared a bank account. After starting the Gay Portland site, they added Gluten-Free Maine (glutenfreemaine.com), an online resource for people who, like Lawlor, have celiac disease and require a wheat-free diet.
Their business was just starting to grow last summer when Silvernail was diagnosed. In fact, it was August 14th, the day Silvernail’s doctor told him he needed to check into the hospital, that they launched an even more ambitious site, Gluten-Free New England.
For the next 10 weeks, all that work was put on hold while Lawlor tried to keep his partner alive. “I dropped everything,” he said. “I did nothing but take care of him. When you have this stupid disease, you don’t want to eat. He was dropping so much weight. They were kind of surprised at the hospital that he managed to not keep losing, because I just found ways to keep feeding him.”
A former rock drummer and computer whiz, Silvernail had moved to Maine from Ohio last decade to take a high-paying job with a computer systems company. He was laid off two years ago as the Great Recession began to take its toll. Consequently, he had no health or life insurance when he became ill.
It’s another irony of this couple’s story that the most vital support they received during this ordeal came from caregivers at a Catholic institution, Mercy Hospital, whose highest spiritual leaders have worked so hard to deny gay couples equal rights.
“From a medical point of view, we were treated beautifully,” Lawlor said. “There was total respect for our relationship … I would sit with him at chemo. The chemo nurse would come by and not just check with him, ‘How’re you doing, Roy?’ but ‘How’s Richard doing?’ Roy’s answer was, ‘He’s going to get a book deal out of this.’”
In some respects, the church was more supportive than the state. Silvernail qualified for MaineCare (the state and federally funded program that covers hospital bills for low-income patients), and he was able to get food stamps, but the only other financial assistance available to them, Silvernail’s Social Security benefits, was repeatedly delayed by the bureaucracy.
Silvernail had served in the army many years ago. Though it was eventually determined that he would not receive any benefits from the Department of Veterans Affairs, the time it took to clear this up, as well as a similar snafu involving unemployment benefits, was time he did not have.
One of the patient advocates Mercy assigned to the couple delivered the bad news. “She called me the Thursday before he died and said, ‘You know, Richard, the fact that his benefits haven’t been approved, if he dies this weekend — which we think he’s going to — you will never see any money,’” Lawlor recalled.
Silvernail passed away the following Monday, October 25th. He was 54 years old. And sure enough, Lawlor never got a dime to help cover the expenses they’d had to handle themselves.
“We easily spent a thousand bucks just in out-of-pocket medications we paid for. Never saw any of that back,” said Lawlor. In addition to ongoing Social Security assistance Silvernail would have received had he survived a few more months (about $1,500 every two weeks), he was due benefits retroactive to the day he was diagnosed that amounted to thousands more.
“That money would have solved everything,” Lawlor said. “Because Roy and I shared bank accounts, even though he died, I would have had that. But he died and it just took too long … If I were legally married, I believe I would have been eligible for those benefits.”
Instead, Lawlor ended up bereaved and broke, facing eviction and trying to revive his business after a two-and-a-half-month lull, without the help of his business partner. Were it not for the kindness and generosity of one of his gluten-free site’s advertisers, he very well may have been forced to do his grieving in the street.
Without a net
Same-sex couples have to pay into the Social Security system just like everyone else. But due to the federal Defense of Marriage Act, they cannot collect the survivor benefits married couples are entitled to receive.
This is just one of a wide array of ways gays and lesbians are discriminated against in matters of death and dying. They are at a disadvantage even when trying to prepare for the inevitable.
Relatively few companies offer health insurance that covers domestic partners. Again ironically, an exception is the state of Maine, where government employees and those working for the university system are eligible for domestic partner benefits. (The city of Portland is among the municipalities that also offer such coverage.) But there’s a catch. The value of domestic partnership coverage is considered taxable income by the state and federal governments; that is not the case for married couples.
If your spouse is a police officer, firefighter or EMT who dies in the line of duty, you (and your children) receive state and federal benefits that can amount to over $300,000. Domestic partners of the same workers (and their kids) get nothing. Government benefits provided to widows of military personnel are also unavailable to domestic partners.
Domestic partners are excluded from receiving payments resulting from a finding of wrongful death, and are ineligible to receive worker’s compensation benefits if a partner dies. They also have no standing to sue a negligent employer in those cases.
Maine’s domestic partnership law addressed some of the more egregious injustices gay couples were subjected to when a partner was dying or deceased. These include the right to inherit property and to be considered next of kin when funeral and burial arrangements are made, and the right to take up to 10 weeks leave from one’s job to care for a terminally ill partner.
But gay rights advocates are quick to point out that there’s no substitute for the sweeping set of benefits and protections marriage automatically confers. “There are a little over 1,100 federal legal rights and recognitions associated with the state of marriage, and Maine’s domestic partnership law provides none of them,” said Zachary Heiden, legal director for the Maine Civil Liberties Union (MCLU).
For example, when a spouse dies leaving significant debts, the surviving spouse and children can protect nearly $30,000 worth of assets from creditors. Domestic partners have no such protections.
“My wife will inherit all of my property if I predecease her, automatically, and she won’t pay an estate tax on any property I own that she inherits. That’s not true for many same sex couples,” said Heiden. “So along with the grief of losing a partner, someone might find themself in the position of, Can I keep our house? Can I keep our business? Can I keep this personal property that’s of very sentimental value?”
There are some legal steps same-sex couples can take to prepare for a partner’s death. As outlined in a document prepared by Equality Maine and Gay & Lesbian Advocates & Defenders (GLAD), these include registering as domestic partners, drafting a will, and specifically granting the other partner power of attorney and appointment as one’s personal representative.
But with the exception of registering as a domestic partner, those steps generally require an attorney. “[I]t is simply discriminatory to force same-sex couples to incur legal fees that heterosexual couples are not required to incur to obtain the same protections,” the groups wrote.
And that’s assuming you have the money to pay a lawyer in the first place. Lawlor and Silvernail didn’t.
For many gay people, the grief of dealing with the loss of a partner is compounded by a lack of support from the rest of society.
In response to an e-mailed question about the legal rights and benefits domestic partners lack, Mary Bonauto, an attorney who serves as GLAD’s civil rights project director, began with the following observation:
“Our culture understands marriage in ideal terms — as a deep and lifelong commitment for better or worse. In times of crisis, people can automatically understand the wrenching stress of illness or devastation from losing a spouse,” she wrote. “Employers become more flexible at work. People make an extra effort to reach out and anticipate your needs.
“Losing a spouse is awful for anyone, and for same-sex couples, an added stress is that most people don’t understand how profound the loss is,” Bonauto continued. “You suffer as anyone would, but without the balm of acknowledgement and support.”
Lawlor wants to establish a support group in Silvernail’s honor to help gay men and lesbians navigate the legal and emotional challenges they face when dealing with matters of death and dying.
“A lot of the problem is that few [gay] people have the chance to have what I had,” Lawlor said. “They don’t understand the loss. But there are gay guys I know whose parents are dying right now, and they’ve all said, ‘I don’t have anybody to talk to.’”
“When I have a panic attack, I have no one to call or talk to,” Lawlor continued. “And only gays understand gays. Not to be condescending, [but] I don’t want to talk to some straight lady who’s reading out of a pamphlet, which is a lot of what I experienced.”
Lacking the money to hire an attorney and the time to conduct research on his own, Lawlor tried in vain to understand his legal rights and options. He and Silvernail were not registered as domestic partners, and it was not clear to Lawlor that doing so entitled them to any benefits anyway. No one advised him to get a will or to secure durable power of attorney.
Lawlor eventually drew up an ad hoc document that addressed some basic issues involving personal property and liability for debts, but by that time Silvernail “could barely hold a pen,” he said.
There are all sorts of indignities and insults, large and small, that gay people encounter before and after a partner’s death. In a testimonial prepared for state lawmakers during the gay marriage debate of 2009, Eliott Cherry of Portland described a few.
Cherry’s partner, Chris, also suffered from pancreatic cancer and died in his mid-50s. During this ordeal, “we were not treated as if we were as married as a heterosexual couple,” Cherry wrote. For example, the diagnosis of terminal cancer was first delivered to one of Chris’ relatives, not his partner of 16 years, with whom he had entered into a civil union in Vermont. A relative told Cherry he was not invited to the burial “because I was not immediate family.”
“When it came time to put the electric bill in my name alone, the power company wanted a new deposit to start an account,” Cherry testified. “‘Would you do this to a widower?’ I asked. ‘No,’ said customer service, ‘but this is different, you weren’t married.’”
“Chris and I lived our vows until death did us part,” Cherry concluded. “Our commitment brought out the best in both of us. Marriage, indeed, can bring out the best in people. And that is something everyone in the State of Maine has a compelling reason to support.”
If you are interested in helping Lawlor organize a support group for grieving gay men and lesbians, contact him at email@example.com.