It always happens. Someone, usually the neo-con right, loses a court decision and immediately the declaration arises from the loudest lungs "activist judges". The are "legislating" from the bench. So today, my turn with "activist" judges and specifically one who is finally retiring. Her name is Kay McFarland, Chief Justice of the Kansas Supreme Court.
An article today in the Kansas City Star says the search for her replacement is now underway. By rule, the most senior judge of the court becomes the Chief Justice, so that will now be Robert E. Davis - another "activist". In fact, they are all "activist" judges. Losing one is but a drop in the bucket.
Fortunately, Democratic Governor Kathleen Sebelius, who issued an order declaring that all state agencies must not discriminate against gay, lesbian, bisexual and transgender employees. Her order also mandated diversity training, I'm not sure that's been carried out. The process requires the Kansas Supreme Court Nominating Commission to provide the governor with three nominations from which she is to make the selection. Not up on Kansas politics, I am not familiar with any of these names. Still, given the general political climate of Kansas, they could very well offer Larry, Moe and Curly versions of ultra-conservative jurists. I won't even contemplate the notion they might suggest Phill Kline, the rabidly anti-choice former Attorney General.
Now just why did I label these esteemed jurists "activists"? Because of their unanimous decision in the case of the Estate of Gardiner. J'Noel Gardiner, a professor at Park University, married Marshall Gardiner who passed away a month shy of their first anniversary. His children, not knowing J'Noel, hired an investigator who uncovered J'Noel was born male. They sued to keep her from inheriting Marshall's estate. Now you know this wouldn't have been important if it had been a measly account, but the estate was valued at around $2.5 million dollars.
The Kansas Supreme Court, in an opinion written by Justice Donald Allegrucci (another "activist" judge), declared that for the purpose of marriage, J'Noel was still "male" - though they did acknowledge her transitioning journey - and thus could not marry another male. Thus they nullified her marriage and with that the inheritance. This was the only way they could "get the tranny".
You see, other parts of Kansas law, does allow post-surgical transgender people to correct their legal birth certificate (I don't know where J'Noel was born). And another part of Kansas law makes it much easier for transgenders to obtain driver's licenses in their correct gender than it is on my side of State Line Road in Missouri (only post-ops qualify). So Kansas will legally recognize gender change....except for marriage. Nifty piece of judicial tap dancing there, eh?
So in Kansas, I can only marry a woman - which is fine by me, but not for all. I don't know what "proof" Kansas requires for gender designation for a marriage license, but this would mean they couldn't validly accept their own birth certificates, or any of the other 46 states who permit changed birth certificates. How would I then "prove" my gender to them should I ever decide to be married in Kansas?
Left tantalizingly dangling in this decision was the question of what would have happened if the tables were turned? What if the bulk of the estate's value was J'Noel's and that she, not Marshall, had died first? What if her heirs had made the challenge? Would they have decided to "get the tranny" by validating her marriage, denying her heirs or children their inheritance? Ah, yes, the Sanctity of Marriage - unless you don't agree with someone's particular case.
Christy Lee Littleton ran into the same "activist" judges in Texas when they nullified her marriage as she was bringing suit for wrongful death in the case of her husband due to medical malpractice. To "get the tranny" they essentially had to write the same "opinion". Imagine her walking into a county clerk's office trying to convince them she's a "man" so that she could marry another woman!
As a result, marriage for transgender people - unlike our gay and lesbian friends - is not a problem! It only depends on where you get married, not to whom. And yet that is why the marriage issue in California is important to transgenders, to help us clarify the legal landscape since many of us are living in a legal blackhole regarding our relationships. It is also why it is extremely bad policy and practice to split the T from LGB/T in our political battles. If the L's and the G's cast us aside in a common need like employment, how could we ever count on their support for things specific to us?
Until I see a willingness on the part of the entire LGB/T political world to unite and stand united, I will remain outside - no lobbying, no advocating, no voting. Oh yeah, was "Brown v. Board of Education" decided by "activist" judges? That came out of none other than Topeka, the state Capital of Kansas.