DC OFFICE OF THE ATTORNEY GENERAL STILL FALLS SHORT

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...

NATIONAL UNMARRIED AND SINGLE AMERICANS WEEK

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.

WHY CANADIAN SAME-SEX COUPLES DON'T MARRY

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."

HEARING TODAY ON DOMESTIC PARTNER BENEFITS FOR FEDERAL GOVERNMENT EMPLOYEES

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...

KENTUCKY COURT BLOCKS LESBIAN COUPLE ADOPTION

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 all...like 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 mothers...as 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.

FLORIDA ADOPTION BAN DECLARED UNCONSTITUTIONAL

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.

CALIFORNIA DREAMIN'

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.

MARRIAGE FOR 17-YR-OLD BRISTOL PALIN -- HOW 1950's!

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.