CAN A DOCTOR GET AWAY WITH DENYING FERTILITY TREATMENT TO AN UNMARRIED WOMAN?

In 1999, doctors in California refused to provide fertility treatment for Lupita Benitez, a lesbian who sought to have a child. The doctors think they should not have to follow the law that prohibits discrimination on the basis of sexual orientation if it conflicts with their religious beliefs. Benitez is represented by Lambda Legal, and staff attorney Jenny Pizer argued her case before the California Supreme Court this week. The newspaper report of the oral argument indicates that the court is likely to rule in Benitez's favor.

But even if Benitez wins, her case will go back to the trial court for a determination of WHY the doctors refused her treatment. The doctors say it was because she was UNMARRIED, and if they can show that was indeed the reason, they will still win! You see in 1999, it was unlawful for a California business to discriminate on the basis of sexual orientation. But it was NOT a violation of state law at the time to discriminate on the basis of marital status!

Marriage is the wrong dividing line between who is entitled to fertility treatment and who isn't. California has since amended its laws to make discrimination on the basis of marital status unlawful. Benitez's case proves that such laws are necessary!

DID YOU KNOW THIS ABOUT MARRIAGE AND THE LAW?

The law used to make marriage the dividing line between first class children (born to married parents) and second class -- or worse -- children (born to unmarried parents). The Los Angeles Times published my op-ed about the Supreme Court ruling 40 years ago that marked the beginning of the end of this distinction. When I argue today that marriage shouldn't be the dividing line between relationships the law counts and those it doesn't, I am advocating a continuation of a set of changes that altered the meaning of marriage forever, including ending wives subjugation to their husbands and allowing no-fault divorce. This change -- giving constitutional rights to children born outside marriage and their parents -- is the least recognized change that took place in the era of 1968 and the early 1970s....but it might be the most important!

HOW WRONG CAN A COURT BE??

Very wrong, if it's the highest court in Maryland and they are considering same-sex couples raising children. Today the Maryland Court of Appeals ruled that, after the end of an 18 year relationship that included raising a five year old child together, the mom whose name was on the child's adoption decree could exclude the mom whose name wasn't on the decree from the child's life. The court said that a "de facto" parent has no more ability that a grandparent, babysitter, teacher...or stranger to receive custody or visitation rights. The trend in the states is in the other direction...towards recognizing the reality of a child's family. We need the Maryland General Assembly to fix this next term! In the District of Columbia, we've got a statute that would protect Margaret's relationship with her daughter, because Margaret could prove by clear and convincing evidence (that's technical for LOTS of evidence!) that she is Maya's de facto parent, and in DC a de facto parent and a parent have the equal right to custody and visitation and the equal obligation to pay child support.

THE CALIFORNIA CIVIL RIGHTS WIN

Four members of the California Supreme Court have held that same-sex couples have a constitutional right to marry. The Court also ruled that anytime the state differentiates on the basis of sexual orientation the state must prove that it has a compelling reason for doing so and that the differentiation based on sexual orientation is necessary to carry out that compelling state interest. In legal lingo, this is "strict scrutiny," and for all intents and purposes it means an end to all state-sponsored discrimination against gay men and lesbians in California. It's a HUGE gay civil rights win.

The opinion roundly dismisses the more ludicrous arguments that other states have accepted -- like the importance of retaining marriage for different-sex couples because only they get pregnant accidentally! But the opinion contains a bit too much glorification of marriage for my taste (not as bad as the Massachusetts decision in 2003). The court says the state could not eliminate marriage, but it MIGHT be able to change the name of marriage to something else, as long as it did so for all couples. (Let's do it!) The court says that "the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple's relationship as a family," but of course it does not preclude recognition of unmarried relationships. California already allows unmarried partners to receive workers compensation death benefits when one partner dies on the job (Harvey Milk's partner got these benefits in 1978!) and already allows unmarried partners to raise children jointly and adopt children together. It's critically important to continue bulding protections for the emotional peace of mind and economic security of all families.

Californians will almost certainly vote in November on whether to amend their constitution to overturn this ruling. Expect marriage licenses to issue sometime in late June...and the California tourism industry to prosper as same-sex couples go there to marry this summer! Meanwhile, congratulations to legal director Shannon Minter and the entire staff of the National Center for Lesbian Rights.

DIVIDING THE PROPERTY WHEN A RELATIONSHIP ENDS

Lambda Legal won a case this week for a California man who thought he was in a registered domestic partnership, only to find when his relationship ended that his partner hadn't filed all the paperwork. The appeals court held that the "putative spouse" doctrine, which protects a spouse who thinks s/he is married but isn't (say her "spouse" lied about getting a divorce from his wife), should apply to those in domestic partnerships. Lambda has spun this case as evidence that only marriage equality can protect partners. But there IS another option, and it's a better one for family policy. Like Washington state, all states should extend the rules designed to do economic justice when a marriage ends to cohabiting unmarried couples. The mainstram American Law Institute recommends this in Chapter 6 of its Principles of the Law of Family Dissolution.

MARRYING FOR HEALTH CARE

Thanks to Nicky Grist at Alternatives to Marriage Project for bringing to my attention a bit of news I had overlooked: A recent Kaiser Family Foundation poll found that 7% of those surveyed said that, in the past year, they or someone in their household married to get access to spousal health care benefits. This number is so unlikely that Kaiser felt a need to explain it. Universal health care is so clearly the answer to our health care crisis, but until then qualifying for health insurance on the basis of a relationship with someone who receives it through an employer is critically important to many people. This is when valuing all families is critical. Extending these benefits to an employee's spouse but not to unmarried partners or other economically interdependent members of an employee's household (think grandma who moves in to help a working single parent, close friends who buy a home together for companionship and economy, a lesbian and gay man who decide to raise a child togeter...) overvalues marriage at the expense of real people whose relationships matter just as much as marriage does (and may last longer than many marriages!)

MICHIGAN SUPREME COURT NIXES DOMESTIC PARTNER BENEFITS

The Michigan Supreme Court today upheld a lower court ruling that cities, counties, state universities, and other public employers cannot offer domestic partner benefits to their employees. The Court ruled that such benefits violate the state's constitutional amendment that reads: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Gay rights groups, labor groups, and everyone concerned with protecting diverse families now need to advocate employee benefit schemes that allow employees to name any one person with whom they live in a economically interdependent relationship and that person's children as covered on their employee benefits. This is what Salt Lake City, Utah does in Ordinance Number 2.52.100. Their plan has already been upheld against a challenge that it violated the state's laws "defending" marriage. That approach is actually better from a family policy perspective! It means that two people who are not romantic partners but decide to raise their children together, or two friends who pool their resources, can also qualify...as can unmarried straight and gay partners. Some Michigan entities have started this type of criteria, but they all have problems --- requiring living together for too long before covering or excluding different-sex unmarried partners or relatives. I explore these issues at length in chapter eight of my book. Oh...and the people of Michigan need to repeal their offensive constitutional amendment!

MILDRED LOVING AND FONDRAY LOVING: TWO CASES WITH TWO LESSONS

"Loving" is a poignant last name to have when the state challenges someone's right to a relationship. In the 1960's, Virginia refused to recognize a marriage between Richard and Mildred Loving, leading (finally...in 1967!) to a US Supreme Court case declaring unconstitutional state bans on interracial marriage. Mildred Loving died on Friday; her husband predeceased her by many years. The news today included many tributes to her and the historic case that bears her name.

The movement for marriage for same-sex couples has invoked the Lovings in the quest for marriage equality. And, frankly, opponents of same-sex marriage sound lame when they stretch to differentiate one type of vilified relationship from the other. Mildred Loving herself issued a statement of support for same-sex marriage last year. BUT, it's a good time to keep in mind another Loving ---Fondray Loving and his partner, Olivia Shelltrack, whose legal problems captured headlines two years ago. The couple had lived together for 13 years and had two children plus a third who was Olivia's from a prior relationship. This family constellation fell outside the zoning laws of Black Jack, Missouri; after the couple bought a home there, the city denied them an occupancy permit. The city relented only after the ACLU got involved.

While Mildred Loving's case was about being able to marry the person you love, Fondray Loving's case was about not being required to. Both principles are important.

THANK YOU, QBLISS!

QBLISS has named Beyond (Straight and Gay) Marriage: Valuing All Families under the Law the "Outstanding Book of the Year" and has awarded me the PRIDE in Literature Award. Thank you! I'll be attending Mid-South Pride in Memphis, TN, June 14, 2008 to receive the awards.