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.