Wednesday, December 31, 2008

End of the Year Thoughts on Beyond (Straight and Gay) Marriage

Well, this is my first year keeping a blog, and it's been a big one. My book came out in February, and now it's in paperback. I've traveled around the country and met so many people who have appreciated my point of view. Perhaps my favorite comment after one of my talks came last spring from a marriage equality activist in California who told me that my book articulated for her the things she had felt uneasy about in her work -- but that she had never had the words to explain why. So many gay rights advocates fall into marriage equality work without questioning it, without realizing there are other ways to think about families and relationships.

When people ask me why I wrote the book I tell them about my law students. For all of their politically aware lives, same-sex marriage has been in the news. The Defense of Marriage Act (DOMA) passed Congress in 1996. States passed "mini-DOMAs." Vermont enacted civil unions in 2000. Marriage in Massachusetts in 2003; introduction of a Federal Marriage Amendment; passage of state constitutional amendments banning same-sex marriage in the majority of states; blaming (wrongly) the turnout for the ballot initiatives on those amendments for Bush's victory in 2004; marriage in California; Prop 8; and so much more. That's what they've heard.

So my students come to law school thinking that the only thing wrong with family law and marriage is that gay couples can't marry, and that the problems gay people face will be solved by marriage. Since they (overwhelmingly) support gay rights, they of course support marriage for same-sex couples.

I wrote the book to give them another lens. The early gay rights movement contributed to a critique of marriage and was part of a set of forces that changed the significance of marriage. Those forces included feminism and the sexual revolution that destigmatized nonmarital sex and brought increasing acceptance of women without husbands bearing children. The legal changes that accompanied those social forces made marriage matter less: the end of sex discrimination in marriage, the right to abortion, legal equality for children born to married and unmarried women, no fault divorce.

Today, it is the right-wing "marriage movement," of which I've written much this past year, and the gay rights marriage equality movement that make the most noise about how much marriage matters. Sure, they have different visions, but marriage is at the center of both of those visions. Forced to choose between the two, I will always pick marriage equality. But my vision is really altogether different. It is of a world where our laws support economic security and emotional peace of mind for the wide range of families and relationships that exist among LGBT -- and straight -- people; one where, as I often put it, marriage is not the dividing line between the relationships that count and those that don't.

When I get a chance to relate my vision -- to my students and to the audiences who come to hear me speak -- I get so much positive feedback. And if I can help move public policy in the direction of that vision, I will feel that I have really been of use.

Happy new year to all.

Tuesday, December 23, 2008

If you read ONE article on Prop 8, make it this one

I've been silent about the Prop 8 debacle because I had nothing to add, but today I read a piece that is so good I have to recommend it to everyone. Surina Khan, who was once the ED of the International Gay and Lesbian Human Rights Commission, has written an article on how the right got Prop 8 passed. It appears on the website of Political Research Associates, whose research on the right is must reading for anyone working for progressive social change.

The organizing efforts she describes were amazing, rivaling the organizing that got Barack Obama elected. In fact, the Yes on Prop 8 folks implemented the same strategy on election day that I was involved in as part of the Hampton, VA Obama organizing effort. Pre-election day, 100,000 Prop 8 supporters identified voters who were with them. On election day, they made sure those voters turned out; five workers in every precinct contacted those who had not yet voted to get them to the polls. (In Hampton, the woman I stayed with received 5 phone calls from Obama volunteers -- this because she had not cast her vote before 1:30 pm, when volunteers at the precincts delivered to volunteers on the phones the names of those who had voted so that those who hadn't could be contacted.)

Surina Kahn's article does more than describe the superior organizing work of the right wing leaders who developed the Yes on 8 strategy. She says:

it’s important to recognize that the Christian Right’s opposition to same-sex marriage is only one part of a broader pro- (heterosexual) marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom.

She criticizes marriage equality as a stand alone issue and urges a broad coalition effort to strengthen diverse households and families. Among the issues she names are economic security, immigration status, incarceration, and health benefit for non-married family members.

Too often, when the marriage equality movement talks about coalition building, what it means is getting organizations with other primary missions to support marriage for same-sex couples. That is not real coalition building. Real coalition building is getting groups to work together on common concerns, recognizing the ways they rise and fall together. In the early days of the gay rights movement, we did this. The coalition that fought the attempt of the right to capture the 1979 White House Conference on Families included gay rights groups, feminist groups, reproductive rights groups, and about fifty moderate and liberal mainstream organizations. (I discuss this in my book, but for all the details you'll have to go to get an out-of-print book (try your library) -- Creating Change: Sexuality, Public Policy, and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid, and read the chapter by Thomas J. Burrows, who was there through it all.)

Surina Khan was one of the drafters of the Beyond Marriage statement. She's a wise woman and this is a wise piece.

Utah's Wrongful Death Amendments -- Real or Symbolic?

There’s been lots of activity in Utah since the passage of Prop 8 in California. The state-wide gay rights organization, Equality Utah, is taking the Mormon Church up on their professed support for gay rights…as long as it’s not marriage. Now we all know they don’t really mean it, but I love calling their bluff!

Equality Utah’s website lists the components of their Common Ground Initiative. They want support for a host of gay-positive measures. Even the New York Times has taken notice. The first bill to be voted favorably out of a legislative committee sounded at first like an item on my valuing-all-families agenda (the whole agenda is in the last chapter of my book, which has just come out in paperback). But in the end if this bill passes it seems to me more symbolic than likely to really help the people who need it.

The issue is who can sue for wrongful death. Wrongful death is the name of the law suit a person can file if another person dies as a result of the negligent or intentional actions of someone else. Fatal car accidents and medical malpractice are two common examples of wrongful death actions. The catch is that only certain people can file those actions, and that group is almost always limited to a formalistic definition of family members – spouses, children, parents, siblings, and other relatives.

My position is simple. The purpose of a wrongful death action is compensation for the loss of an economic asset. We know this because the damages a person can receive are based upon the earning power of the deceased (no recovery for the heartache of losing a loved one). That’s right; the death of a doctor will generate a larger damages award than the death of a janitor. So…anyone financially dependent on the deceased should be able to file a wrongful death action. This should include unmarried partners who live together in an economically interdependent relationship, as well as any other combination of economically interdependent people.

So here’s the bill that emerged earlier this month. Called the "Wrongful Death Amendments," it extends the right to file a wrongful death action based on economic interdependency, provable by living together for five years (not a requriement for a spouse!), being named a life insurance, will, or retirement benefit beneficiary, having joint assets and liabilities, and, if either owns a home, owning it together. And there's one more requirement: the deceased must have named the person as a "wrongful death heir" in a will or notarized document.

These requirements go way overboard. My partner of 20+ years and I each own a house; we don’t co-own either. So we couldn't recover for each other's wrongful death. A person with no life insurance or retirement account would have to write a will. But even if a couple meets the test for economic interdependency, who writes a document (notarized!) that says “If I die as a result of negligence or intentional actions, so-and-so is to be able to file a wrongful death action?”

The bill's openly gay sponsor talks about the bill here. Of course it's not about marriage, and he is right to say so. But I can't help but think that piling on so many requirements turns the bill into something symbolic on both sides, not something that will help same-sex couples or others. I assume the many requirements are to make the bill more palatable to anti-gay, right-wing "marriage movement" types. But I'm not looking for symbolic wins; I'm looking for law reform that values all families...not just those who get themselves to lawyers to draw up documents.

The bill would be much improved if it used the definition of economic interdependence for "adult designees" contained in Salt Lake City's employee benefits law (section 2.52.100). That requires living together for 12 months and three of five proofs of economic interdependence--still too much but much better than the requirements of the Wrongful Death Amendments.

Will it be worth it to get this bill through the Utah legislature? Monitor the bill's progress on the Equality Utah website and decide for yourself.

Wednesday, December 17, 2008

Quebec's "parenting project" -- a law like nothing we have in the US

Thanks to McGill law professor Robert Leckey, for his article in English analyzing a Quebec law that went into effect in 2002, at the same time the province instituted civil unions. (Marriage for same-sex couples was not yet legal in Canada). This parentage law (they call it "filiation") makes it possible for a lesbian couple to be the legal parents of the child born to one of them from birth, without the non-biological mother having to adopt the child.

The new statute begins:

A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.

The person who contributes the genetic material does not become a parent. If the woman has no partner, she is the sole parent. The term "spouses" is not limited to married couples but also includes civil union couples and unmarried couples who decide to parent together. The couple registers as the child's parents by "declaring" themselves to an administrative agency.

Now here is the truly unique aspect of this statute. It provides for assisted conception through sexual intercourse. There are US cases where conception occurred through sexual intercourse and someone later claimed that it was understood that the sex was a form of assisted conception not intended to create legal parenthood. No American court has bought this argument, even when the two people had a written agreement. But Quebec explicitly provides for this.

The only legal difference when conception occurs through sexual intercourse is that during the first year of the child's life the man's parentage can be established, and this will disestablish a female partner's parentage. Leckey notes scholars who have pointed out that if the purpose of the law is to allow a man to change his mind then the class of those eligible to claim parentage during the child's first year would logically be all donors known to the mother, including known semen donors, rather than only those who participate in conception through sexual intercourse.

The statute does not contain the ability to recognize three persons, the mother, her partner, and the biological father, as a child's parents. (An appeals court in Ontario, Canada, interpreting that province's statutes did recognize that a child had three parents in a 2007 case.)

I'm working on developing model parentage legislation that would obviate the need for a lesbian to "adopt" her own child born to her partner. I'll be presenting the product of my work at a Stanford Law School symposium in February. You can bet I'll be talking about the Quebec statutes!

Tuesday, December 16, 2008

Hungarian Court rejection of different-sex registered partnership is the wrong result

A year ago, the Hungarian parliament passed a law permitting same-sex and different-sex couples to register as domestic partners. Yesterday its Constitutional Court threw out that law. English language press reports say that the court found it unconstitutional to give different-sex couples the option of registered partnership instead of marriage. Such an avenue, it said, "downgrades" in the institution of marriage. Apparently, if they rewrite the law to apply to same-sex couples only, it will not be unconstitutional.

Currently, the Netherlands is the only European country whose registered partnership law extends to both same-sex and different-sex couples. Netherlands also allows both types of couples to marry. Although it dates to 2005 and therefore is a bit behind, Dutch law professor Kees Waldijk's publication, More or Less Together, is an excellent resource on European law affecting same-sex couples.

I hate the Hungarian court's ruling. It is wrong on so many levels. The elevated status of marriage continues the wrong-headed notion that marriage is more important than all other relationships. Forcing different-sex couples to marry to obtain legal benefits and obligations maintains that elevated image. At the same time, the extension of a different option only for same-sex couples marks those relationships as inferior.

In another important way the Hungarian law was defective. It denied registered partners the right to adopt or to assisted reproduction. This follows the tradition in Europe of awarding rights to partners long before extending same-sex couples the right to parent, exactly the opposite of how LGBT family law developed in the US. I'm betting the Hungarian Constitutional Court isn't finding that exclusion unconstitutional!

Friday, December 12, 2008

We're not getting allies complaining this way about the tax laws

If news reports from a panel at last week's Gay and Lesbian Leadership Conference are correct, some of the leaders of our national organizations need some educating. According to an article in the Washington Blade, "[Human Rights Campaign President Joe] Solmonese and others on the panel agreed that amidst the national recession, a new focus should be placed on the unique economic issues that gay Americans face, such as tax inequities." (emphasis mine)

Tax inequities as economic issues unique to gay Americans? Which would those be? Under our current income tax structure, one family form gets enormous benefits: a married heterosexual couple in which one partner earns all, or the great majority of, the family's income. So if our leaders think the income tax laws are unfair to gay couples, they can only be referring to gay couples in which one partner earns all, or most, of the income. I don't know about anyone else, but I'm not fighting a revolution over that issue. And it's not going to win us straight allies either.

Now joining with all the other disadvantaged family forms, and that includes heterosexual married couples who are equal income earners, that's something I can get behind. Turns out the folks who study our income tax system from a critical race perspective, like Emory Law School prof Dorothy Brown, point out that our tax laws disadvantage African-American married couples. Why? Because -- no surprise -- they are more likely to be close-to-equal income earners. So much for tax inequities unique to gay Americans. For more on what's wrong with how our income tax structure treats families, see the excellent website of the Alternatives to Marriage Project.

How about other taxes? Inheritance taxes and property transfer taxes are two examples of laws that favor married couples. But that still doesn't make the inequities unique to gay folks. Two sisters who pool their economic resources for a lifetime? Two single parents -- gay, straight, one of each -- who form an economically and emotionally interdependent unit to raise their children? A loving daughter who devotes 20 years of her life to living with and caring for an ill and aging mother? A communal household of radical faeries?

The list goes on, and the bottom line is that married couples get the tax breaks. If same sex couples could marry-and we got rid of DOMA-, then married same-sex couples would get those breaks too. As far as I'm concerned, that would bring us no closer to tax equity than we are now. For that, we need to make marriage matter less.

And if we're looking for economic issues that will resonate beyond our narrow movement, somebody in our leadership needs to start with just economic policies for all families and relationships, not the benefits wealthy married couples get from our tax laws.

Tuesday, December 9, 2008

Iowa Supreme Court hears marriage equality argument

Kudos to the Iowa Supreme Court for making its oral argument in Varnum v. Brien as user-friendly as possible. Chief Justice Ternus even explained from the bench the steps in the legal process. A number of media outlets streamed the argument live. If it's archived anywhere, it will be through one of the links in the Court's website.

That said, there was nothing new in the argument by the state. In fact in advocating that marriage is by definition between one man and one woman, the state was relying on the argument that won in the early 1970's when the first challenges were brought.

Beyond that, there were the basic right-wing marriage movement arguments: the purpose of marriage is procreation; a man and a woman, even if infertile, represent the essence of marriage; dual gender biological parenting is optimal; a daughter needs a mother to learn how to be a woman and a son needs a father to learn how to be a man. If same-sex couples can marry, then, not tomorrow, but in a generation, people will think it is not necessary for a child to have a biological mother and a biological father and the state will have taught that it is not necessary to get married. When the state allows same-sex marriage it is teaching that marriage is not about procreation and over time that means that more children will be born outside marriage because heterosexuals will not see the link between having children and getting married.

Since we allowed no fault divorce in 1970 we have been trying to put the toothpaste back in the tube (yes that is exactly what he said). It is not desirable for children to be born outside marriage. When parents divorce we have a preference for shared custody because children need to know where they came from, to know who they are. Same-sex couples use artificial means to have children and this deprives children of a biological parent. (One of the justices did point out that heterosexual couples use these means...but we are not talking logic here.)

Dennis Johnson, arguing for the plaintiff couples, did a decent job responding to these arguments. But he also did, well, what the lawyers always do in these cases: he glorified marriage. He said he (as a heterosexual) would feel a loss if the state replaced marriage with civil unions. He invoked McKinley, the 10-year-old daughter of one of the plaintiff couples, whom he said cried when she learned her parents were not married because it made her different.

Somehow the state always says, as it did in the rebuttal here, that the same-sex couples are trying to knock down marriage. So of course the LGBT rights groups have to say they are not. Where does that leave the argument that marriage is not a more valuable family form than others? that our children have been doing fine even though we have not been able to marry? that no child should feel second class because his or her parents aren't married -gay or straight?

Tuesday, December 2, 2008

Not Leah Sears on the US Supreme Court!

Just a day after my post on the right-wing "marriage movement" conference at the Georgia Supreme Court, an article by Justin Jouvenal at named Leah Sears, the court's Chief Justice, as a possible contender for a seat on the US Supreme Court.

This would be a disaster for LGBT families. As a board member of the Institute for American Values, Leah Sears is a core part of a movement that blames every social problem on the decline of life-long heterosexual marriage. One of IAV's most recent publications argues that fathers uniquely matter in the lives of children. This is a classic component of the argument made against parenting (and marriage) by lesbian couples, as well as single mothers. Yet a universally acknowledged expert on fathers, Dr. Michael Lamb, who has done decades of research on fathers, concludes otherwise. Read a summary of Lamb's testimony in the recent challenge to Florida's ban on adoption by lesbians and gay men.

On the subject of gender and parenting, here's how the judge in that case summarized Lamb's testimony:

Dr. Lamb opined that the assumption that children need a mother and a father in order to be well adjusted is outdated and not supported by the research. According to the witness, there is no optimal gender combination of parents; neither men nor women have a greater ability to parent. Additionally, today, two-parent households are less attached to static roles than in the past. Moreover, there is a well established and generally accepted consensus in the field that children do not need a parent of each gender to adjust healthily.

Take that, Leah Sears. But take it someplace other than the US Supreme Court.

Remember the victory for the lesbian seeking fertility treatment? It could be history....

Great series of posts today at Pam's House Blend on the Bush lame duck regs that would allow any worker at a healthcare facility to refuse to participate in a procedure he or she found morally objectionable.

Remember the California Supreme Court ruling that denying fertility treatment to a lesbian violated state anti-discrimination law? Here are my posts on it. The doctors objected to providing fertility treatment to any unmarried woman. If these new regs mean what they say, it clears the path for these doctors and others to restrict alternative insemination, IVF, and other assisted reproductive treatments to married women (that would be heterosexually married of course). The regs apply only to health care facilities receiving federal funds, but that covers millions of workers who now can impose their ideas of who should be a parent, even in the face of state laws -- like those in California -- banning discrimination.

Tuesday, November 25, 2008

Florida Gay Adoption Ban On Its Way Out

This is a big win. Yes, it’s only a trial court judge. Yes, it will be appealed. But this is the case that I suspect will finally end Florida’s ban on adoption by gay men and lesbians, once and for all. Miami-Dade Circuit Judge Cindy Lederman has declared the ban unconstitutional. Here's the full ruling.

Earlier this fall a judge in Key West ruled the ban unconstitutional and granted an adoption, but the state did not appeal that ruling. The child in that case was not being adopted out of the state’s foster care system, and so the state bowed out. In this case, Frank Gill has been the foster parent of two brothers, 4 and 8 years old, for the last four years. The state expected the placement to be brief, thinking the children would be returned to their parents or taken in by their grandmother. Neither of those things happened, and the children thrived with Gill and his partner. State child welfare workers would have supported Gill’s adoption petition had it not been prohibited by state law.

If you think you’ve heard about court challenges to Florida’s adoption ban before, it’s because you have. The most famous case, Lofton, went to the 11th US Circuit Court of Appeals, where the ban was upheld by a sharply divided court.

So why would this case come out differently? Well, the ACLU, which litigated both cases, decided in Lofton to argue that the state should have to come forward with evidence to support the gay adoption ban. So the ACLU in that case didn’t offer its own experts to testify about the wisdom – or lack thereof – of denying children the opportunity to be raised by loving parents who happened to be gay. In this case, they made a different choice. They offered experts with unassailable credentials, and the trial court judge accepted their testimony and used it as the basis for her ruling. Every mainstream child welfare organization opposes restrictions on adoption by lesbians and gay men.

The state of Florida offered experts too. But their experts were thoroughly discredited. George Rekers testified that gay people should be disallowed from adopting because of their higher rates of depression and suicide. When confronted with evidence of other groups with higher rates of depression and suicide, such a lower income people and Native Americans, he testified that more groups should be banned from adopting children! Rekers also admitted that he had written that women who work outside the home have functionally deserted their children and that he had condemned social science that does not adhere to “the moral laws of God.” The other supposed expert testified that social science could be used to spread God’s word. It’s a testament to the utter travesty that is this ban that Florida could do no better than this in defending a policy that is truly without any rational defense.

ACLU lawyers Matt Coles and Leslie Cooper deserve our highest praise for their years of work on behalf of lesbian and gay adoptive and foster parents. A 2005 case ended Arkansas's ban on gay and lesbian foster parenting. This year an initiative in Arkansas instituted a ban on adoption and foster parenting by anyone living with an unmarried partner. Expect the ACLU to challenge this as well.

Wednesday, November 19, 2008


I watched Thomas and Nancy Beatie on Barbara Walters last week. They described their struggle with the state of Oregon over how they would be identified on their child's birth certificate. They want Thomas listed as the father and Nancy listed as the mother. The hospital insisted that Thomas be listed as the mother, but eventually the state issued a birth certificate with Thomas and Nancy listed as "parent" and "parent."

They are still fighting to get Thomas designated as the father. Give me a break! Parent and parent is the designation that should go on ALL birth certificates! What makes this an insult? Yes, if the state insisted on listing Thomas as the mother, that I would have a problem with. But a gender neutral term?

And then there's his complaint about the advice he received from some (unnamed) gay rights legal groups. They advised the couple that Nancy should adopt their child. What do the Beaties say? That Nancy shouldn't have to adopt her own child. Well, welcome to the real world, where every day lesbian couples have children and the one who didn't give birth has to adopt that child to feel safe as the child's legal parent. Don't you think they all take offense at having to adopt their own children? Of course. But LGBT legal groups advise even those who marry in Massachusetts or Connecticut, or enter civil unions or domestic partnerships in other states (including Oregon!) that the nonbiological mom should adopt her child. That's because adoption is recognized everywhere, but a parent-child relationship created by a same-sex marriage or civil union or DP may be disregarded in gay-unfriendly states (and there's lots of those).

So why should Thomas and Nancy be different? Because Thomas transitioned and the couple went from being a lesbian couple to being a different-sex couple? I've pointed out that the couple's marriage won't be recognized everywhere...maybe not in most states. Nancy DEFINITELY needs to adopt that child...and the second have a solid status as the child's parent. Do I think it should be that way? No. I think the fact that Nancy consented to Thomas's insemination with the intent to be a parent of their child, an intent Thomas shared, should be enough to make her a parent. Marriage or no marriage. And the American Bar Association agrees. The ABA Model Act Governing Assisted Reproductive Technology would make her a parent. But wishing doesn't make it so. I'd be willing to defend Nancy's parental rights if anyone challenged them, but does she really want to take the chance it would come out wrong? Is it fair to her daughter? On a matter of principle? With the emotional and financial well-being of her daughter at stake?

Tuesday, November 18, 2008


Thanks to Nan Hunter for alerting me to an astonishing "marriage movement" event, a "summit on marriage and family" co-hosted by David Blankenhorn's Institute for American Values and the Georgia Supreme Court. I am horrified that a body with the power to rule on the well-being of children with LGBT parents, namely a state supreme court, is giving its imprimatur to one of the most vocal organizations in the country that opposes legal recognition of same-sex couples and parents.

How did this happen? Well the Chief Justice of the Georgia Supreme Court, Leah Sears, is on the board of directors of the Institute for American Values! She is on record espousing the core position -- as wrong as it is -- that the decline of life long heterosexual marriage is the cause of all our social problems. Sears is leaving the court next year, so she needn't fear criticism for associating the Georgia Supreme Court with a political agenda. (And the conference program says this is the "first annual" conference of its kind; okay, that's scary!)

But maybe more significantly, Chief Justice Sears may well think this conference isn't subject to criticism for furthering a political agenda. The "marriage movement" rhetoric that the decline of life-long heterosexual marriage is responsible for all our social problems has such mainstream support -- after all our federal government funds "marriage promotion" -- that to some ears it sounds like a statement of fact.

There will be one speaker who supports marriage for same-sex couples, Jonathan Rauch, but he actually accepts every tenet of the "marriage movement" except the exclusion of same-sex couples from marriage. So no one at this conference will present a different view about the cause -- and therefore the solutions -- to our social problems. In fact, luncheon speaker Barbara Dafoe Whitehead, whose 1993 "Dan Quayle Was Right" Atlantic Monthly article first laid out the ideology of the "marriage movement" (and was soundly critiqued by NYU sociologist Judith Stacey), appears poised to link the nation's financial crisis to the decline of marriage! Why didn't I guess that would be coming?

And just in case there's any question about this conference's agenda on gender roles, there will be continuous screenings of the DVD Hardwired to Connect, which emphasizes differences between boys and girls.

These folks are dangerous. Read a comprehensive critique of their positions in chapter 4 of my book.

Saturday, November 8, 2008


You can't have avoided hearing about race and Prop 8. I'm not repeating the coverage here. (I do recommend you read Richard Kim in The Nation.)

But have you heard this? 61% of people 65 and older voted for Prop 8. 61% of people under 30 voted against it. Click here for the full exit polling on Prop 8. So why no press coverage on this angle? The future is ours...and no amount of Mormon money or blatant disinformation will stop that.

And on the matter of race and sexual orientation...Thanks to Alex Blaze at Bilerico for pointing out that only 72% of self-identified lesbian, gay, and bisexual voters choose Barack Obama, while 77% voted for John Kerry in 2004. This is astonishing. Review the exit polls for 2004 and the exit polls for 2008, and you find that in 2008, more men, more women, more whites, more blacks, more latinos, more asians, more protestants, more catholics, and more jews voted for Obama than voted for Kerry in 2004. But fewer gay people did. What explains this do you think? There was no increase in the percentage of self-identified LGB voters; it was 4% in both 2004 and 2008. 2008 was an overwhelmingly democratic year, but more gay people picked McCain than picked Bush in 2004. Had Obama lost (heaven forbid!), could Obama supporters of all races have looked towards racism among gay people as a reason? Is there some other plausible explanation? Oh, and in the same post, Alex Blaze notes that a higher percentage of whites than blacks voted to ban unmarried couples from adopting in Arkansas, but you haven't heard anyone decry white homophobia there, have you?

Oh, and another demographic voting more for McCain in 2008 than for Bush in 2004...people over 65. Even in California, with its overwhelming support for Obama, only 48% of people over 65 voted for Obama; 50% voted for McCain.

I'm old enough to remember "Don't trust anyone over 30." Today at the very least we should think twice about the 65 and over crowd.

Friday, October 31, 2008


In a move drawing outrage from gay rights leaders and the San Francisco District Attorney, the campaign to eliminate marriage for same-sex couples in California mailed flyers to voters with a picture of Barack Obama -- and Michele -- and a quote: "I'm not in favor of gay marriage." The message "Vote Yes on Prop 8" appears under Obama's image.

But Obama had gone on record AGAINST Prop 8, and the flyer was a blatant attempt to mislead California voters into believing to the contrary.

When National Center for Lesbian Rights legal director Shannon Minter brought this to my attention earlier today, I said it was especially infuriating because four days before the election Obama could not afford to publicly disavow it. Well I was selling short the man I hope will be our next President. In fact, late Friday evening his campaign put out a statement reaffirming his opposition to Prop 8. It gave me a pinch-me-I-must-be-dreaming moment.

When Congress passed DOMA weeks before the 1996 election, President Clinton signed it. It was widely believed that a veto would torpedo his reelection. Obama's response to this one misleading flyer is nowhere near as consequential as vetoing a law passed by Congress, but, still, I expected caution on Obama's part, and therefore silence.

I'm writing tonight from Hampton, Virginia, where I've been working this week on Get Out The Vote. The volunteers range from young people to 92. We work tirelessly. We have fun. We have faith in the future. And tonight my faith just deepened.

Monday, October 27, 2008


When a bill passed by Great Britain’s House of Commons on October 22 becomes law, lesbians will have easier access to assisted reproduction. Current UK law requires fertility clinics to consider a child’s “need for a father” before accepting a patient for treatment. The new law requires clinics to consider a child’s need for “supportive parenting.” Equally important, a lesbian couple who has a child will be able to put both parents’ names on the birth certificate, so the non-biological mom will not have to adopt her own child. That’s what we are trying to do in the District of Columbia, and what couples who marry or enter civil unions/domestic partnerships in Massachusetts, California, Vermont, New Hampshire, New Jersey, and Oregon can already do.

Kudos to the LGB group Stonewall.

Tuesday, October 21, 2008


With the presidential campaign front and center and the votes on marriage in California, Florida, and Arizona getting lots of attention, I'm worried that the fight over adoption and foster parenting by unmarried same-sex and different-sex couples in Arkansas is being overlooked. This would be truly a tragedy -- mostly for the children of Arkansas. But it would also be an unwelcome boost for the nationwide anti-gay movement. It's a movement that idealizes heterosexual marriage and disparages all other family forms -- hence the ban on unmarried straight couples as well.

Watch this video. Send it around. Get it to anyone who knows anyone who votes in Arkansas. Spread the word to vote NO on Initiated Act 1. The Foster Care Alumni of America oppose it. A group of retired Arkansas judges oppose it. The Arkansas Department of Human Services is licensing unmarried couples as foster parents, and the Governor, Mike Beebe, opposes Initiated Act 1 (not loudly enough).

And send donations to Arkansas Families First!

Wednesday, October 15, 2008


We really could end poverty if we wanted to....Unfortunately, for the past eight years the government's primary strategy for ending poverty has been "marriage promotion." The right wing reiterates the lie that all of our social problems -- including illiteracy, homelessness, substance abuse, violence, infant mortality, chronic illness, crime and, of course, poverty -- are caused by the decline in life long heterosexual marriage. This ideology then lets government off the hook for its policies that maintain tremendous income inequality.

Sociologist Scott Coltrane has documented that the funders of such right wing think tanks as the Heritage Foundation also fund organizations that push marriage as the solution to poverty, such as the Institute for American Values. The Alternatives to Marriage Project has published "Let Them East Wedding Rings," a fine place to start in critiquing "marriage promotion" as the solution to poverty.

For a real solution, try last year's release from the Center for American Progress, "From Poverty to Prosperity: A National Strategy to Cut Poverty in Half." The report makes 12 basic recommendations. Marriage is not on its list of poverty-reducing strategies. And read Blame Welfare, Ignore Poverty and Inequality, co-authored by leading anti-poverty law professor Joel Handler. The book criticizes those who demonize single mothers while ignoring the institutionalized economic and social structures that cause poverty and inequality. Marriage is also not on Handler's list of proposals for ending poverty.

Can we go from books and reports to action? Mark Greenberg, policy director of the Center for Law and Social Policy, was the Executive Director of the Center for American Progress Task Force on Poverty. I say President Obama should make him Secretary of HHS.

Tuesday, October 14, 2008


I'll be speaking later this month at a conference at UCLA called, "State of the Union: Marriage in the Shadow of Electoral Politics." It's sponsored by the Center for the Study of Women, with co-sponsorship by, among others, the Williams Institute, the country's pre-eminent gay rights research center.

If you're familiar with my book you don't need to come to hear me, but some of the other speakers are less well known outside academia than they should be. So if you can get to LA, you might want to come by to hear them.

Take Cornell government professor Anna Marie Smith. She's been decrying so-called "welfare reform" for its policing of female sexuality. Along with Martha Fineman and Gwendolyn Mink, she wrote, "No Promotion of Marriage in TANF [Temporary Assistance to Needy Families]," a critique of the Bush administration's emphasis on marriage promotion. Two chapters of her book, Welfare Reform and Sexual Regulation, the introduction and the chapter "Feminist Visions," can be read on her website.

At the conference, Professor Smith will be critiquing Barack Obama's "responsible fatherhood" initiatives. From the first moment I heard Obama speak about such matters, I've been wondering if his vision was any more feminist, any more supportive of single mothers raising children, than the policies of his two predecessors. I'm looking forward to finding out.

NYU sociology professor Judith Stacey will speak at the conference about the relationship between legal recognition of same-sex marriage and legal recognition of polygamy. Professor Stacey is a strong feminist and a long-time supporter of LGBT families. She has testified as an expert witness in support of same-sex marriage and in support of gay and lesbian parenting. She bucked conventional wisdom some years back when, in a co-authored article, she questioned the position of gay rights advocates that children raised by lesbians or gay men were no different from those raised by heterosexuals. Instead, she argued that children raised by lesbian and gay parents were indeed likely as a group to show some differences from children raised by heterosexual parents, although she was emphatic that differences did not mean deficits, and she rejected any discrimination against same-sex couples raising children. When right wing groups used her article to oppose LGBT parents, Professor Stacey loudly denounced those groups and their misue of her work.

This time around Professor Stacey will be challenging those in the LGBT community who wish to distance themselves as far as possible from the arguments in support of polygamy, plural marriage, polyamory, or any other non-monogamous form of sexual union. Here's a blog posting that presents some of her ideas.

It's going to be a great day. If you do come, please introduce yourself to me!

Monday, October 6, 2008


The US Supreme Court today decided NOT to hear a case that would have had far-reaching implications for lesbians and single women choosing to bear children. In 2005, a man, Darryl Hendrix, who had donated semen to a woman, Samantha Harrington, who conceived and bore twins, claimed that he should be declared the father of the children, with full rights to custody and visitation. But Kansas law states the following:

"The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman."

There was no written agreement between the two parties, but the donor claimed that Harrington agreed that he would be a parent. She denied that claim. Given the statute, which clearly excluded him, Hendrix asked the Kansas Supreme Court to rule that the statute was unconstitutional. Last year, the Kansas court ruled against him and said his constitutional rights were not violated. That’s the question the donor asked the US Supreme Court to rule on. The Court has ruled that there are some circumstances under which an unmarried biological father who grasps the chance to function as a father to his children has parental rights protected by the Constitution; under other circumstances biology does not create constitutional rights. The Supreme Court has never spoken on parental rights in a case involving any assisted reproduction technique.

The right-wing Alliance Defense Fund came in on the side of the donor.

Because the Court declined to hear the case, the Kansas ruling stands. Other states considering new laws on assisted conception can go forward without the cloud of a possible Supreme Court ruling on donor’s rights hanging over their heads.

The Kansas statute is not ideal, because it applies only when a doctor is involved in the insemination. That’s a holdover idea from the first statutes on alternative insemination passed in the 1970’s. Modern statutes don’t have that limitation, and self-insemination with donor semen is a common method lesbians use to conceive.

But I love both this statute’s presumption that use of a semen donor means the donor is not a parent AND the possibility in the statute that the two people might agree in writing that he is. For more on my ideal laws for LGBT families, see my post on Blogging for LGBT Families Day.

Sunday, September 28, 2008


My July 25 post described the District of Columbia's official response to proposed legislation that would solidify the parental relationships of same-sex couples and their children in this city. The Office of the Attorney General (OAG) wrote an offensive and ignorant letter, and then sent no one to the actual hearings on the bill.

Earlier this month, the same office responded to the lengthy supplemental testimony I wrote detailing just how offensive and ignorant their concerns were. Their brief letter says we misunderstood them! "To be clear," it reads, "we support giving appropriate legal recognition to the familial relationships that same sex partners have for the children they care for..." The letter continues, however, with the claim that the bill needs revisions, without identifying a single substantive change they want in the bill.

Since I responded to the substance of every claim they made in their initial letter, their response containing no substance at all is bewildering, annoying, frustrating, and, actually, infuriating. Legislative drafting can be complex; I don't mind help getting the job done from anyone supportive of LGBT families. But it's no help at all to say the bill needs revisions without spelling those out, and if the OAG thinks I got something wrong in my memo, well, they need to say what it is. Otherwise their support doesn't look like support at all...

Saturday, September 27, 2008


It's the last day of National Unmarried and Single Americans Week. There's been some media coverage, but I thought I'd take this opportunity to highlight one group whose needs remain unmet when marriage is at the center of public policy. Consider CoAbode, whose primary purpose is linking single mothers who want to pool their resources and live together.

In a world in which marriage is privileged to the exclusion of other relationships, two single moms pooling resources to raise their children face a disadvantage. Imagine that the arrangement CoAbode facilitates works out so well that the two women decide to buy a home together. Now when a married couple buys a home together, they are protected from tax penalties when one dies, or when they divorce and transfer ownership from both to one. Not so with unmarried co-owners, no matter how intertwined their life.

Same-sex couples have documented how these laws have disadvantaged them. I tell some of these stories in Chapter 10 of my book. But that doesn't mean the solution is marriage for same-sex couples. That will only help same-sex couples who marry. The solution is a tax system that ensures that no co-owner loses her home due to tax penalties when the other co-owner dies or when one sells her share to the other. That's valuing all families. Thank you, CoAbode, for getting the word out about meeting the needs of women without making marriage the cornerstone of their lives.

Thursday, September 25, 2008


Same-sex couples have had access to marriage in Canada since July 20, 2005. Canadian sociologist Jillian Deri explores why the marriage rate for same-sex couples is so low...17 percent, compared to 80 percent for different-sex couples.

She reports the views of a number of Canadian gay men and lesbians, and she makes the point about Canadian law that few Americans realize...No same-sex couple in Canada needs to marry for legal benefits. Whether the issue is immigration rights, survivors benefits, inheritance, the right to support if the relationship ends, or any other legal right or responsibility, Canadian law treats unmarried gay and straight couples almost identically to marriage gay and straight couples. Marriage is really a choice in Canada and never a matter of economic or legal necessity.

And here is Deri's personal view:
"Personally, I follow the classic feminist argument: challenge the institution while supporting the decisions made by individuals.While I fully support same-sex marriage for those who choose it, I believe that the more progressive political approach is for the individual to be the basis of social organization instead of the couple.This means giving all people social security, guaranteed income, health benefits, child care, and parental leave, irrespective of their marital status.A culture that values the individual instead of the couple as the base unit would offer more support for singlehood and single parenting, for starters.I'd like to see more information, resources and support for all forms of relationships: single, polyamorous, coupled, friendship, chosen family or whatever our queer hearts can dream up."

Wednesday, September 24, 2008


Senator Joseph Lieberman, chair of the Senate Committee on Homeland Security and Governmental Affairs, presided over hearings today on S. 2521, the bill that would provide domestic partners -- same-sex only -- with the benefits now extended to spouses of government employees. You can watch the hearings here. Kudos to Maine Senator Susan Collins, the Committee's ranking Republican, whose opening remarks pointed out that her state, Maine, allows different-sex couples to register as domestic partners. Maine couples do not get many concrete benefits as registered domestic partners, but the principle that registration should not be limited to same-sex couples is sound. (Colleen Kelley, National President of the National Treasury Employees Union (NTEU), who testified at the hearing, departed from her written testimony to say that she would support the expansion presented by Senator Collins.)

When domestic partner registration is limited to same-sex couples, it sends the message that marriage is the proper dividing between relationships that count and those that don't, and that the only reason to extend recognition to same-sex couples is to compensate for the inequality of denying such couples the ability to marry.

As I have written about in a prior post, we need a different approach. Let's ask: why do we extend employee benefits beyond the employee to another family member? If we are helping the employee provide for his or her family, then it should not matter how that family is configured. We need equality across family forms, not just between heterosexual couples who marry and same-sex couples who can't marry (but would if they could...sometimes an explicit requirement to qualify for benefits, as Yvette Burton of IBM testified at the hearing). There's a good example from the public sector in the policy of Salt Lake City, Utah, which allows an employee to cover any person with whom he or she lives in an economically interdependent relationship.

Dr. Burton testified the issue for IBM is equal pay for equal work (and avoided directly answering a question from Sen. Collins about covering unmarried different-sex couples). How about equal pay for equal work for all family configurations?

The Deputy Regional Director of the FDIC, Frank Hartigan, testified at the hearing about "presenteeism," the problem of a worker who comes to work but who is distracted and preoccupied by family stress such as the higher costs of caring for a medically uninsured partner or anxiety about providing for a partner upon relocation or retirement. Well, that can happen no matter how a family is configured, and marriage or its same-sex functional equivalant should not be a requirement.

Of course, since I live in Washington, DC and have friends who work for the government, I know how the denial of benefits hurts same-sex couples. If I thought benefits for same-sex couples would be the first step on the way to equality for all family forms, I'd be ecstatic. And I am furious that the Deputy Director of the US Office of Personnel Management, Howard Weizmann, explicitly opposed this bill. (He cited I Now Pronounce you Chuck and Larry as proof that fraud would be a problem; IBM's Dr. Burton testified from the real world, not Hollywood, that fraud is not a problem). Of course, as Lieberman said at the beginning of the hearing, even this bill is going nowhere this session, and we all know the election on November 4 will determine much about family policy and LGBT rights for years to come...

Tuesday, September 16, 2008


The Kentucky Court of Appeals has made marriage the dividing line between those children who can have two legally recognized parents and those who can't. In an opinion handed down last Friday, the court ruled that "second-parent adoption" is not permitted under the state's statutes. Second-parent adoption is the way that lesbian and gay couples have both gained the legal status as parents of the biological child of one of the partners. The first such adoption was granted in Alaska in 1985. Several states allow them; some do not; and in others trial court judges have granted adoptions but they have never been reviewed by appellate courts. (That was the case in Kentucky until this court decision!)

Second-parent adoption is analogous to step-parent adoption, but of course the bio parent and the second parent are not married to each other. They can be a same-sex or different-sex couple, or the bio parent and second parent can have a relationship that isn't romantic at two sisters who adopted together in Maryland.

Adoption typically terminates the parental rights of the child's biological parents. Obviously, in a second-parent adoption this is not the desirable or appropriate result. Thus the analogy to step-parent adoption, where the original parent retains parental rights while his or her spouse also becomes a parent.

Well, the Kentucky court ruled that state law limits this type of adoption to a married couple. (and Kentucky is one of the majority of states that bans same-sex marriage). So the only way a lesbian biological mother's partner could become a legal parent is by terminating the parental rights of that biological mother! How absurd! Other states have ruled that such a termination can be waived, but the court ruled that it was against Kentucky's public policy to allow such a waiver. How about a public policy that wants a child to have a legal relationship with both his parents??

The court got it all wrong when it said that the granting of the adoption "elevated the status of the relationship between [the two women] to legal marriage." (The non-bio mom's lawyer also got it wrong when she argued that the court should treat the non-bio mom as a step-parent because it was necessary to give equal rights to gay couples.)

Here are some other interesting points about this case. The couple split up before filing for the adoption. Although that did not affect the court's legal ruling, the court does make a snide and dismissive reference to the idea of former spouses filing to adopt. I think a lesbian couple filing for an adoption AFTER splitting up is not that unusual (it's what my partner and I did!). That is the moment when the legal inequality can seem most disadvantageous for the child.

So the trial judge granted the adoption, and the way the case got to the Court of Appeals was that, more than a year later, when the parents were disagreeing about visitation and other matters, the biological mother went back into the court to undo the adoption, arguing it should never have been granted. This is not the first time a bio mom has done such a thing, but all I can say about it is...someone needed to stop her! She ruined matters for all children of same-sex couples in Kentucky to achieve her goal by any means. And here's the irony...the court did NOT void the adoption IN THIS CASE because it was challenged over a year after it was granted, and that is an absolute no-no in Kentucky unless the trial court was defrauded, which didn't happen here. So this child still has two do the children of Kentucky whose second-parent adoptions were granted more than a year ago...but that option will no longer be available in the state.

Wednesday, September 10, 2008


Florida Circuit Court Judge David J. Audlin, Jr.has granted the petition of a gay man to adopt the child who was placed in his home as a foster child in 2001 and whose legal guardians the man and his partner of 15 years became in 2006. The child is identified in the court documents as John Doe. To grant the adoption, the judge had to find unconstitutional Florida’s ban and adoption by lesbians and gay men. In so finding, the judge reviewed what was said about the ban when it was enacted in 1977 and concluded that the origin of the ban was a politically charged climate, dominated by Anita Bryant’s anti-gay crusade that resulted in the repeal of the Miami anti-discrimination ordinance.

Judge Audlin addressed the decision of the 11th Circuit Court of Appeals in the Lofton case, which refused to find the ban unconstitutional. Lofton was decided based on summary judgment, which means there was never a trial with evidence presented about the validity of the ban from a best-interests-of-the-child perspective. The appeals court in Lofton said that the legislature passing the ban might have thought it “premature to rely on a very recent and still developing body of research, particularly in light of the absence of longitudinal studies following child subjects into adulthood and of studies of adopted, rather than natural, children of homosexual parents.”

After hearing testimony from adoption expert Dr. David Brodzinski, Judge Audlin concluded that the Lofton court’s depiction of the research on adoption by gay men and lesbians “is, at minimum, not presently accurate.” Dr. Brodzinski testified that the adoption ban was “irrational and scientifically inexplicable” and the judge said he was “unable to discern any coherent explanation for its enforcement in 2008, other than a willingness to passively leave intact the ban against this politically-disfavored group.” The judge heard testimony from several other witnesses specifically about the best interests of John Doe, including John Doe himself.

The judge made the following findings:
The Court finds the foregoing facts to be true: (a) The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner’s sexual orientation, it is in the minor’s best interest to be adopted by Petitioner, (b) Floridians who are gay or lesbian are not for that reason inherently incapable of parenting an adopted child, (c) In view of the less restrictive alternative safeguards that exist, there is no need for the categorical disqualification of all gays and lesbians in Florida from adoption to ensure that no child is adopted by an inappropriate caregiver, and (d) After having listened to and read the legislative history surrounding the enactment of [the adoption ban], the Court finds that there was no non-punitive purpose for categorically excluding every single gay and lesbian Floridian from adopting children.

The judge based his determination of the law’s unconstitutionality on grounds not argued in previous cases. He found that the statute was a “special” rather than a “general” law.
The particular classification scheme chosen by the legislature does not, however, bear a reasonable relationship to a legitimate state objective. Indeed, in situations such as that here, the ban obstructs the legitimate state objective of pursuing the best interest of a legal orphan by providing him an adoptive home with a care-giver whom the State has itself deliberately over the course of many years already encouraged the child to view as his permanent parent. Most dispositively, the statutory disqualification is not based upon proper differences which are inherent in or peculiar to all Floridians who are gay. Section 63.042(3), Fla. Stat., is therefore a prohibited special law pertaining to the adoption of persons.

The judge also found that the adoption ban amounted to punishment of Floridians because of their sexual orientation and was therefore an unconstitutional bill of attainder. The opinion says, “Every Floridian who is gay or lesbian was found guilty by the legislature of being unfit to parent an adopted child without the benefit and protection of a judicial trial… Marking every gay Floridian as necessarily and irrebuttably unwholesome for the purpose of denying them the chance to be considered to raise children exceeds the authority of the legislative branch.”

Finally, the judge found that the ban violated the doctrine of separation of powers because “the legislature may not employ an irrebuttable presumption that is not grounded in established fact to displace the inherent authority and concurrent jurisdiction of the adoption court to allow a petitioner to prove what is in the best interest of the adoptee. Because the categorical ban is not grounded in established fact, the absence of an opportunity to rebut is fatal.” The judge found that the adoption ban “constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made to, exist in actuality.”

The Florida Attorney General’s office did not participate in the litigation, in spite of the fact that they were notified, given opportunity to intervene, and served with all filings in the case. Whether the Attorney General will at this point appeal the decision remains to be seen.

Friday, September 5, 2008


The National Lesbian and Gay Law Association is holding its annual Lavender Law conference in San Francisco this weekend. I took some time off from conference sessions to do some sightseeing today. Dale Chihuly at the deYoung Museum. A walk along the spectacular coastline. A lesbian wedding.

Nashville lawyer Abby Rubenfeld, a Lambda Legal staff attorney more than two decades ago, was in town for Lavender Law and for the meeting of the National Center for Lesbian Rights National Family Law Advisory Council (I'm on it too). So she thought while she was here she'd take advantage of the opportunity to marry her partner, and she invited all us fellow NFLACers to join her. It took place at 1 pm, in between conference sessions, in blue jeans, at the courthouse, performed by out lesbian judge Nancy Davis. Words were said, rings exchanged, and then most of us went back to the conference.

I don't usually go to weddings. So why did I go to this one? Best I can tell, it was indeed about being a tourist here...a chance to do something I can't do at home...or anywhere else in the country other than Massachusetts. I'm glad I went.

Being here in California does impress upon me the importance of defeating Proposition 8 on the November ballot. If it passes, marriage for same-sex couples ends in California. I don't think of it as a vote on marriage; I think of it as a vote on our humanity. If Prop 8 passes, it will energize anti-gay forces across the country to go after us on any issue they can. If Prop 8 is defeated, it will slow those forces down and inspire hope in gay activists and in gay folks too scared to be activists. The No on 8 campaign needs to raise lots of money and to raise it fast. The vote is expected to be very close. Every dollar will be put to good use. Find out how to donate here. I hesitate to overuse the reference, but when it comes to the fight over Prop 8, we are all Californians.

Tuesday, September 2, 2008


Sarah Palin's 17 year old daughter, Bristol, is pregnant. So why no uproar from conservative Christians (as Sarah Palin describes herself), or from those abstinence-only sex-education Republicans?? Because she's marrying her boyfriend, Levi Johnston, that's why!

How 1950's! That's the decade that saw a peak number of teenage pregnancies (the national teen birth rate reached a peak in 1957, at 96 births per 1,000 women ages 15-19.) Half the pregnancies resulted in "shotgun weddings" to preserve the young woman's honor. Those marriages didn't fare too well, but Bristol's is sure to last through the November election, which is all that really matters, right? (Of those young women who did not marry, over 25,000 a year were sent to more than 200 unwed-mother homes where they gave birth secretly and almost always relinquished their children for adoption. Women who gave birth and kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including eviction from public housing and denial of public assistance. More on this in Chapter 2 of my book.)

Of all the legal and social changes of the late 1960's and 1970's, none is more significant than the end of "illegitimacy" as a legal category and the reduction in social stigma associated with nonmarital birth. Women now have the choice to bear children without a husband, with the knowledge that the law won't discriminate against those children. They also can choose an abortion...although I doubt Bristol Palin really had that choice, in spite of the fact that the Alaska legislature this year kept a bill requiring parental consent from passing. (You might want to donate to Planned Parenthood Alaska to help keep it that way.)

Still, it's no surprise that the daughter of a prominent abstinence-only conservative is pregnant. Abstinence-only sex education doesn't work. Meanwhile, we haven't heard a date for the wedding, so I'm thinking this marriage plan is, well, somewhat last minute. You see, if Bristol wanted to raise this baby on her own --like the teenage girls in Gloucester, MA -- this story would be playing completely differently.

Sunday, August 31, 2008


By now we all know what Obama said about us in his acceptance speech, but here it is in total:

I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination.

Now I can't criticize the "live lives free of discrimination" part...amen to that. But as for hospital visitation, don't all hospital patients deserve visits from the people they love?? Don't all gay people deserve this...and isn't marriage a completely different issue?? By putting these two concepts in the same sentence, Obama has fallen into the rhetorical morass created by the marriage equality movement.

The rhetoric goes roughly like this...A lesbian is denied the ability to see her hospitalized partner; spouses are allowed to visit each other in the hospital; therefore lesbian (and gay) couples must be allowed to marry so they can visit each other in the hospital. So then Obama steps into this conversation, saying that we can't agree on marriage but we can agree that couples who can't marry should still be able to visit each other in the hospital.

But try this. Hospital accreditation standards include those who play a significant role in a patient's life, even if not legally related, within the definition of family. Neither gay nor straight couples should have to marry to visit each other in the hospital. Gay people without partners need assurance that those they love and consider family will be allowed to visit them in the hospital. Consider that LGBT people may be more likely than heterosexuals to move away from unsupportive families of origin and/or to more accepting cities or towns.

If we make any discussion of hospital visitation policies about same-sex couples, we are going to miss the vast numbers of unpartnered LGBT people who don't want their estranged parents given hospital access while their closest friends are kept out or who don't want to be left all alone because their families of origin live at a great distance and their families are choice are excluded.

In 2007, Virginia passed a law that requires hospitals to allow patients to choose their visitors. Gay and straight; coupled and not. That's the law Obama should support...along with a federal advance health care directive registry. He should also support LGBT equality..including in access to marriage...but not in the same sentence.

Wednesday, August 20, 2008


As I wrote in May, doctors in California hoped to escape liability for refusing to provide fertility treatment to Lupita Benitez by arguing that her unmarried status, rather than her sexual orientation, led to their denial. They also argued that they had a religious objection to treating her and that this was protected by the First Amendment guarantee of religious freedom. This week, the California Supreme Court issued its opinion.

The Court ruled unanimously that the doctors could not claim a First Amendment basis for denying fertility treatment to lesbians. State law made clear that businesses could not discriminate on the basis of sexual orientation, and the doctors were required to comply with that law. So far, so good. But at the time the denial of treatment took place, discrimination on the basis of marital status was not banned in California. So the court's ruling says that the doctors can still defend the Benitez lawsuit by arguing as a factual matter that they denied her treatment because she was single, not because she was a lesbian.

When asked whether she would treat a married lesbian, one of the defendant doctors said, "I don't know." But that's the wrong question, isn't it? Marital status shouldn't determined who has access to fertility treatment. That's the law now in California and should be the law everywhere.

Thursday, August 14, 2008


After a hiatus for my summer vacation, I'm back...and with some urgent news. Arkansas voters will have an initiative on their November ballot that, if it passes, will ban all unmarried couples from adopting children or becoming foster parents. That's right. An unmarried heterosexual couple will have to marry, and a same-sex couple will be completely boxed out. (The initiative makes clear that only marriages recognized in Arkansas -- those between one man and one woman -- count). Also, as the words of the initiative make clear, a person will be unable to adopt or foster a child as an individual if he or she is living with an unmarried partner of any sex! This initiative is based on the right-wing marriage movement ideology that blames all our social problems on the decline of life-long heterosexual marriage...ideology I critique in my book.

The coalition fighting this needs your help now! Please get involved with Arkansas Families First.

Thursday, July 31, 2008


If you want to get married before the November election, plan to do so in Massachusetts. The legislature has repealed the law that effectively banned out-of-state couples from marrying there, and Governor Patrick will sign the repeal shortly.

Because Californians are voting up or down in November on retaining marriage for same-sex couples, any marriage there carries a risk. If a ban on same-sex marriage passes, all the marriages performed before then will be under a cloud.

On the other hand, the skies are clear in Massachusetts. Thanks to the fine work of Mass Equality and a lot of straight allies, marriage for same-sex couples is secure there. So choose the Berkshires, not Berkeley, and breathe easy.

Monday, July 28, 2008


I posted a couple of weeks ago about the narrow definition of family member in the Ohio Paid Sick Days initiative. Since then, I've spoken with the initiative's campaign manager, Brian Dunn, and looked into the role of Equality Ohio and other gay rights groups.

What I have to report is both sad and infuriating.

Ohio has a Defense of Marriage Act (DOMA) that bars marriage and recognition of marriage for same-sex couples but also says the state “shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.” Perhaps Ohio could not mandate paid sick leave that employees could use to care for a sick unmarried partner. That doesn't really create a "legal status," but someone could argue that it does.

But, as my earlier post pointed out, there are at least two good alternative options: include anyone who is a member of the employee's household or include the definition that federal workers now have -- anyone related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The latter definition is in Senator's Kennedy's Healthy Families Act.

Brian Dunn told me that Ohioans for Healthy Families, a coalition spearheaded by SIEU, consulted with their lawyers and was told that a more inclusive definition would not be possible given the state DOMA. This is just dead wrong. Workers have households containing a variety of individuals; allowing a worker to balance work and family responsibilities by using sick leave to care for a sick household member would not be "recognizing a legal status" between the worker and the sick household member that "approximated marriage."

Sure, one of the right-wing groups that pushed for the Ohio DOMA might challenge the law. They would lose. Last year the Ohio Supreme Court ruled, 6-1, that the state could prosecute a man for violence against a woman he lived with "as a spouse" without running afoual of the state DOMA. In the lead-up to the case, one of the strongest proponents of Ohio's DOMA said it would not violate DOMA to make domestic violence against any household member a crime.

So now we know where Ohioans for Healthy Families was coming from. I blame both bad legal advice and what I imagine to be an inability to tolerate even the slightest chance that a right-wing maniac would challenge the law. Proponents of the initiative decided it was better to sacrifice the variety of households, including those in which many same-sex couples live. I repeat what I said in my earlier post. Shame on them.

Now as for the gay rights groups, they were not asleep at the wheel. The gay community knew the campaign excluded them, and Equality Ohio voted to oppose the measure. I have since heard that Equality Ohio voted to remain neutral on the initiative, but I have been unable to confirm this. The Human Rights Campaign was involved as well, and dealt directly with SIEU. They did supply language such as the definition in the Healthy Families Act. The initiative's sponsors were unmoved.

So this leads up to the obvious the initiative or not? It's a painful choice. Is there a way to vote for this initiative but send a loud and clear message to SIEU and to all the state level groups working on paid sick leave that what they did was unacceptable and unnecessary and should not be repeated elsewhere? Is there a way to vote for this initiative, which goes by the name "The Healthy Families Act," while not diluting or compromising on the provision of the federal "Healthy Families Act" that includes the much broader definition?

If I lived in Ohio, I know I wouldn't just vote against this initiative. That wouldn't make my voice heard in other states and across the country. But would I vote for it, knowing this history? Well, I'd like to hear what Ohioans have to say about this...


Another book about marriage came to my attention this weekend: "The Marriage Benefit: The Surprising Rewards of Staying Together, by psychologist Mark O'Connell. The title sounds close to that of "The Case for Marriage," Linda Waite and Maggie Gallagaher's book that I blast in my book for its "marriage promotion" propaganda and that Bella DePaulo skewers in her book, "Singled Out."

So imagine my surprise to hear what Dr. O'Connell said on Tom Ashbrook's On Point on public radio. A caller said she would not marry her male partner because same-sex couples cannot marry. She also said she would not marry because she is bisexual and if her partner had been a woman she would be unable to marry her. Here's how the author responded: "Everything I wrote in the book really applies in a broader sense to the matter of intimate commitment....I wouldn't sit here and argue that one has to be formally and conventionally married in order to have the kind of benefits that come from intimacy....What we are talking about it here is what is it about sustained intimate commitment that can bring you things that are actually quite unique?"

So why call the book, "The Marriage Benefit?" Why not call it "The Intimate Commitment Benefit?" I think I know the answer. The name marriage sells. It resonates in a culture that has been inundated by the claims of the "marriage movement" and government-sponsored "marriage promotion" that the decline of marriage causes our social problems. It would actually be a radical claim in our culture that intimate commitment brings the same benefits that marriage brings. The author even said he believes in divorce! You wouldn't know it from the book title. I'm sorry this author -- and his publisher - chose not to make the more radical and nuanced claim in the title of the book itself.

Friday, July 25, 2008


The District of Columbia is a gay-friendly place. Our first anti-discrimination ordinance was passed in 1973. In 1976, we passed legislation banning discrimination on the basis of sexual orientation in child custody cases. The first second-parent adoption was granted in 1991, and our highest court approved the practice in 1995.

We have had domestic partnership here in DC since 1992, although Congress (which controls DC laws...don't get me started on that!) blocked the city from spending any money to implement the law. That ban was finally lifted in 2002. The DC law allows any two people living together in a committed, familial relationship to register; in other words, it is not limited to same-sex couples.

At first few legal consequences attached to registration. Additional legal consequences have been added several times since 2002. Some of the most significant came last year, including the rights of inheritance and division of assets when the relationship ends. Effective this coming fall, registered domestic partners will have almost all of the legal consequences that attach to marriage.

The last major area that needs law reform here concerns the status of couples having children together. So it's logical that we pass legislation that will give DC what California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont already have -- a presumption that a child born to one domestic partner is the child of the other.

DC is also one of a minority of states with no statute on donor insemination. Many of those statutes are old and apply only to married (heterosexual) couples, but the modern statutes apply to all women. The best framework does two things: it says that when two people (married/registered or not) decide to have a child using donor insemination and both intend to raise the child as their own, then they are both the parents of the child; and it says that a semen donor is not a parent unless there is a written agreement to the contrary.

Legislation recently introduced in the DC City Council accomplishes these goals. So imagine the shock of the legislation's supporters when the DC Office of the Attorney General sent a letter -- but no witness -- to the July 11 hearing on the bill. The letter reflected complete ignorance about families headed by same-sex couples, about reproduction using assisted conception, and about the laws in other states. The OAG didn't know that the Social Security Administration recognizes a parent-child relationship between a child and her nonbiological mother who was in a Vermont civil union with the biological mother when the child was born, even though the Washington Post had an editorial about the case days before the letter was written!

The letter was offensive on so many levels, it's truly hard to comprehend. Because no witness showed up to defend the letter, Committee Chair Phil Mendelson couldn't question anyone from the city, and those of us supporting the bill (Michele Zavos, Bob Summersgill, Rick Rosendall on behalf of Gay and Lesbian Activists Alliance (GLAA), and myself) were left in disbelief and outrage.

Did I mention that DC is a gay-friendly place? We expect our elected officials and their staff -- including the city's lawyers -- to understand who we are and strive to provide our families the strongest legal protection possible. So I spent most of the last two weeks writing a detailed response to their letter. After I sent it to the OAG I received a voice mail message from the letter's author saying they would review what I wrote and "act accordingly."

Stay tuned for an update.

Tuesday, July 22, 2008


The feminist critique of marriage is not dead, though it often appears under wraps these days. That makes me especially grateful to Courtney Martin for her piece on the American Prospect website yesterday.

Courtney may someday run up against a wall. Maybe she or her partner will be unemployed, or have a job with no health insurance, and the employed one of them may only be able to cover a spouse on his or her policy. I could face this myself if the District of Columbia ever allows same-sex marriages. My university grants domestic partner health insurance only to same-sex couples; it expects different-sex couples to marry. So it's reasonable to think if we could marry, American University would expect us to do it. Although I am a prominent critic of marriage, I couldn't let my partner, with her history of medical issues, go uninsured. I hope it doesn't happy to Courtney, that she keeps spreading her skepticism, and that she joins the effort to unhook marriage from a unique set of legal consequences.

Tuesday, July 15, 2008


It's a given that the marriage equality movement is about obtaining the choice to marry. Well we've got that choice in Massachusetts, and then last week out comes a case that shows, again, that it's not really a choice at all. Not if we want to protect economic security and emotional peace of mind.

The Massachusetts Supreme Judicial Court decision requiring the state to allow same-sex couples to marry (usually referred to as the Goodridge decision) was an ode to the importance of marriage. So it's no surprise that the judges are more than happy to make the line between the married and the unmarried as bright as can be. Last week, they decided a case in which Cynthia Kalish sought to recover damages for loss of consortium as a result of a medical malpractice claim concerning her partner of over 15 years. Loss of consortium damages are what a can spouse can get to make up for the loss of a spouse's companionship due to another's negligence.

Cynthia and her partner Michele married as soon as they were legally able to do so. But Michele's medical malpractice claim stemmed from before their marriage. So the court had to decide whether, as an unmarried couple -- even one that would have married had it been legally permissible -- Cynthia was eligible for loss of consortium damages. The court ruled she wasn't.

It's not like the loss of consortium action was frozen in time from its creation centuries ago. Used to be only a husband could recover these damages. The Massachusetts court had already extended this cause of action to wives, minor and disabled adult children, and a fetus, later born alive. But the court had also denied recovery to unmarried heterosexual partners, citing the state's "deep interest" in uphold the integrity of marriage.

So it's no surprise that in this case the court reminded us that the many benefits attached only to marriage were part of the reason it had found the ban on same-sex marriage unconstitutional. The court explicitly refused to "erase the bright line between civil marriage and other forms of relationship."

Now I can't say the court would have decided otherwise had it ruled the other way in Goodridge. Probably the outcome would have been the same. But it's the wrong decision. It's not that hard to come up with a test for courts to apply that recognizes when two people living together have relied on each other's love and support to the extent that loss of consortium damages are appropriate. There's really no reason to fear that mere roommates would qualify.

Like so many other legal consequences of marriage, if only the married can get them, what kind of a choice do we really get when we get the right to marry?

Wednesday, July 9, 2008


The nationwide campaign for paid sick leave is growing. And that’s a good thing. About half of all workers don’t have any paid sick leave, and those in the lowest paid jobs are least likely to have it. The campaign provides an opportunity for the gay rights movement that it has yet to seize. It also provides an opportunity for labor organizers to acknowledge the existence of LGBT families and protect them…even in states with anti-gay marriage constitutional amendments.

Paid sick leave laws typically allow the worker to use his or her leave to care for sick family members. So of course the law must define who those people are. As readers of my book know, the definition I favor is the one that all federal government employees have; they can take leave to care for anyone with whom they have a “close association” that is the “equivalent of a family relationship.” That’s the standard in the proposed federal Healthy Families Act. I tried to get the District of Columbia to adopt this definition last year without success, but we do include couples who live in a committed relationship for more than a year. The bill pending now in Illinois includes anyone the employee has lived with for more than six months.

So I was saddened and outraged to learn last week about what’s going on in Ohio. After failing to get paid sick leave through the Ohio legislature, organizers have proposed a ballot initiative. If they get enough signatures by next month, Ohioans will vote in November on whether their state will mandate paid sick leave. So far, so good, but then I read the definition of who a worker can take leave to care for; it's limited to spouse, parent, and child and so excludes unmarried couples and household members who aren’t spouse, parent, or child. Given that Ohio has a constitutional amendment saying the state will not recognize same-sex marriage, that means it excludes all same-sex couples!

The Ohio campaign claims it is building support for the federal Healthy Families Act, so why reject the recognition of all families in the federal bill? Even if the Ohio initiative included only the definition in the Illinois bill, it would cover couples who had lived together for six months without singling out unmarried couples. Therefore it would not run afoul of Ohio's constitutional amendment but would protect LGBT couples who live together.

So not only does the Ohio initiative fail to grasp the truly expansive definition in the proposed federal Healthy Families Act, it even ignores the needs of gay and lesbian couples. With all the attention on gay marriage over the past several years, I would think Ohio organizers would have the needs of gay and lesbian workers in mind when writing a bill. Apparently not.

But I also fault the gay rights movement. Where is it in the fight for paid sick leave? Where is it in seeing the value of coalition work that meets the needs of more than just gay people? Type “paid sick leave” into the search engine on the website of Out and Equal Workplace Advocates, and you get…nothing. Where is Equality Ohio, other than missing from the long list of endorsers of the Ohio Paid Sick Leave Initiative? And who can blame them for that, given that the initiative omits LGBT families? But if they had been there at the beginning, at the drafting of the initiative, surely they could have had influence.

The website for Ohioans for Healthy Families says “it’s time for Ohio to value ALL families.” Hey – valuing all families is MY agenda…it’s the name of my book! It’s the definition in the federal Healthy Families Act that does that, not the one in Ohio. Claiming their initiative values all families when it doesn’t means either that they don’t know LGBT families exist or they don’t care. Either way, shame on them.

As for gay rights advocates, don’t wait another minute. Find out if your state has a paid sick leave bill in the works, and make sure it has the most inclusive definition of family possible…like the one federal workers enjoy today.