Thursday, June 26, 2008


Readers of this blog know that my family policy agenda includes advance health care directive registries, first at the state level and then hopefully linked across the country. Today there's news of outrageous hospital behavior out of Florida. Janice Langbehn was denied access to her dying partner, Lisa Marie Pond, even after the power of attorney she held was faxed to Jackson Memorial Hospital in Miami. Langbehn has filed a federal law suit claiming negligence and intentional infliction of emotional distress. Gay rights legal group Lambda Legal represents Langbehn.

Before someone yells that this is why same-sex couples must be allowed to marry, consider just how long it will be before Florida, the only state that bans an individual gay person from adopting a child, recognizes same-sex marriages from elsewhere, let alone allows them in the state. Florida now has a statute banning same-sex marriage. And they will vote on a constitutional amendment to ban it in November.

We need a fix now and we need it for everyone, gay and straight, single and partnered. I'd like to see gay rights groups take the lead here, and I know they would find allies across the political spectrum. Meanwhile, what happened to Janice's family should be a crime, and I hope that Lambda's lawsuit will help spur a movement for free, easy-to-use advance health care directive registries.

Wednesday, June 18, 2008


Thanks to the Alternatives to Marriage Project for bringing to my attention that Black Jack, Missouri is once again trying to keep an unmarried heterosexual couple raising children from living in the town. Go to the ATMP website and sign their petition.

Tuesday, June 17, 2008


They were once the "lavendar menace," a reference by Betty Friedan to the lesbians who were, in her opinion, undermining the feminist movement 1969 and 1970. Yesterday, they were the first same-sex couple married in San Francisco. What a journey.

As founders of the "homophile" group, Daughters of Bilitis, Del Martin and Phyllis Lyon organized a meeting between lesbian mothers and mental health 1957! In 1972, their book Lesbian/Woman included a chapter on lesbian mothers. The next year, they authored an article on lesbian mothers for Ms. magazine. When I first wrote about the custody rights of lesbian mothers in 1975, I cited Del and Phyllis's writings just to prove that lesbian mothers existed!

Readers of my book and this blog know that I don't believe law should grant "special rights" to those who marry, to the exclusion of the other forms of family and relationships that enrich people's lives and provide economic and caretaking support. As a matter of civil rights, however, the ability to marry in California is a step towards equality and worthy of celebration. No couple deserves to be first more than Del Martin and Phyllis Lyon; their earlier "firsts" made it possible for those of us who followed to come out and fight for LGBT justice. Thank you, Del and Phyllis, and congratulations on yet another milestone.

Monday, June 9, 2008


Readers of this blog --and my book -- know that I don't think marriage should be the dividing line in law for relationships that count and those that don't. But now that same-sex couples from all over the country can marry in California as of June 17, many are thinking...should we or shouldn't we? There ARE legal consequences from marrying, and some should make couples think twice. (Caveat: Talk to a lawyer in your state about the consequences of marrying. This blog is not legal advice specifically tailored to you.)

Right now, federal law does not recognize same-sex marriages, but that could change. Barack Obama supports law reform that would treat a couple married under state law as married for all federal law purposes as well. So here is sobering example of how being married under federal law might disadvantage you.

If you are an aging couple and one of you is facing nursing home care for which you need Medicaid payment, you may not want to marry if you own some or all of your assets now in separate names. The assets of both spouses are considered available to pay for either spouse's nursing home care. It doesn't matter whose name is on the asset and it doesn't matter if the couple has a prenuptial agreement. The "noninstitutionalized" spouse will only be able to keep a certain amount of money (called a "resource allowance"); everything else must be used to pay for the care or must be "spent down" before the other spouse is eligible for Medicaid.

The "noninstitutionalized" spouse will be able to remain in the couple's home, but an unmarried partner can also remain in a jointly-owned home, although for an unmarried couple the government may collect part of the value of the home after it is sold. (But the partner will never be forced to sell the home and move out.)

One instance where the couple would be better off married is if the partner facing nursing home care owns most of the assets and the partner who won't be in the nursing home has little assets in his own name. As a married couple, the spousal resource allowance will be available to the "noninstitutionalized" partner; as an unmarried couple, the person entering the nursing home will have to spend down everything, leaving nothing for his partner.

Confusing? You bet! If you think this circumstance applies to you, consult an expert in "elder law" in your state. Some rules do vary from state to state, so what I've written here isn't legal advice you should rely upon.

Sunday, June 1, 2008


Tomorrow is “Blogging for LGBT Families Day.” Here’s my contribution:

The worst news recently for LGBT families was the decision of Maryland’s highest court that eviscerated the family of Janice and Margaret and their daughter, Maya. You see, only Janice legally adopted Maya. After the couple split up, Janice argued she was Maya’s only parent. The lower courts gave Margaret visitation rights as a “de facto” parent. Maryland courts had done this regularly since 2000. But the Maryland Court of Appeals decided that Maya had only one parent, and that Margaret was no different from a babysitter, neighbor, teacher, or relative. She would have to prove Janice’s unfitness or some other “extraordinary circumstances” in order to maintain her relationship with her daughter.

LGBT families are challenging conventional definitions of parenthood. Children are losing when the courts make narrow legalistic rulings that don’t reflect the child’s lived reality. So here’s my platform for respecting the families we create:

1) Stay out of court! Where were Janice’s friends when she was arguing that Margaret was nothing more than a babysitter? If Janice thinks Margaret is a bad parent, let her argue that, but if she thinks Margaret is not a parent at all, well even her closest friends should tell her she’s wrong. We all recognize as anti-gay the argument a straight parent may make that his or her now-gay former spouse shouldn’t get custody of a child because gay parents shouldn’t raise children. It’s time to recognize that using law designed for heterosexual families to argue that a gay parent isn’t a parent is just as bad. Unless one partner has been physically violent, a couple who can't resolve their dispute about custody and visitation should use a gay-friendly mediator to help resolve their differences.

2) We need new laws that do a better job of assigning parentage, and here are some proposals. They are only a start!

1. A semen donor is not a parent unless he has an agreement in writing to the contrary with the semen recipient. This is what most people intend when a lesbian uses a known donor, so it should be the default rule. But it also leaves room for recognizing the donor as a parent if the participants write that down. Last year the Kansas Supreme Court upheld the constitutionality of such a statute.

2. The partner of a woman who conceives through donor insemination is also a parent of the child if both women agree at the time she will be a parent. That’s similar to the rule that applies to married couples, and there should be no difference if a couple is unmarried – same-sex or different-sex. Such a rule would have required a Massachusetts woman to pay child support for a child born to her former partner. Instead, she got to walk away from a child she participated in creating.

3. If a couple agrees to adopt a child but only one person legally adopts (something many states require), the other partner acquires “de facto” parent status immediately, with an equal right to custody and visitation and an equal obligation to pay child support. That’s a law that would have helped Margaret and Maya maintain their relationship, and as of 2007 it’s the law in the District of Columbia (DC Code 16-831.01).

Finally, marriage/civil union/domestic partnership isn't the law that's going to solve these problems. An unmarried heterosexual couple who has a child together are every bit as much the parents of that child as a married heterosexual couple. We need the same result for our families, but without the biological connection to both parents we need a different set of laws. Plus, in many states marriage only creates a "presumption" that the husband is the child's father. If it's a presumption that can be rebutted by showing the lack of biological connection, well...that still leave our families vulnerable.

Do you live in a state that allows second-parent adoption? Find out by contacting the National Center for Lesbian Rights or, if you are in New England, Gay & Lesbian Advocates & Defenders (GLAD). Do it if you can! It's the best protection for your parent-child relationships...even if you are married, in a civil union, or in a domestic partnership.