Law professors' conference addresses needs of same-sex partners in a "defense of marriage" state

Next week, the Association of American Law Schools will hold its annual meeting in New Orleans. This is the annual meeting of law professors from across the country. In acknowledgement of the needs of same-sex and unmarried partners in a state with a "defense of marriage" act, the AALS's executive director, Susan Westerberg Prager, today sent out the following message to all attendees. I am reprinting it in full here because I hope other associations with plans to hold meetings in states that refuse to recognize the needs of same-sex and unmarried different-sex partners will follow this fine example provided by the AALS.

December 28, 2009
Message to Annual Meeting Attendees:

Because Louisiana has placed in its constitution what is commonly referred to as a "Defense of Marriage" law, we have put in place some precautionary assistance for Annual Meeting registrants and their guests. This message is intended for those of you who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories who will travel with you to New Orleans. Even in states that do not have such a law, there have been reports of hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult. (For convenience of communication, I use the term "partner" in this message to refer to married and unmarried partners.)

AALS Managing Director Jane La Barbera has explored the practices in New Orleans, and has vigorously emphasized to the New Orleans Convention Bureau our concerns. We have received strong assurances that health care Powers of Attorney will be recognized by hospitals in the region, regardless of the relationship of the patient and the person holding the power. We have had that verified by the leadership of the Tulane Medical Center.

However, we do want to be of assistance to you in New Orleans if any of the following difficulties occur during the AALS Annual Meeting. Should any attendee or guest of an attendee experience a hospital refusing access (to the patient) to the patient's partner, or refusing the partner access to the patient's hospital doctors, or if hospital personnel are reluctant to recognize a power of attorney, we are providing the following list of individuals who are available to assist you. (The first is a local lawyer provided to AALS by the New Orleans Convention and Visitors Bureau without fee to AALS or our registrants. The second and third are AALS volunteers: Taylor is a Professor colleague who is incoming chair of the AALS Section on Sexual Orientation and Gender Identity Issues, and Jim is the lawyer spouse of the longtime Professor and Dean who is writing this message.) (I am omitting the phone numbers provided for the lawyers --np)

1. Robert M. Walmsley, Jr., Fishman, Haygood, Phelps, Walmsley, Willis & Swanson L.L.P
2. Professor Taylor Flynn
3. Jim Prager

All of these individuals stand ready to assist you with the hospital staff, and you should not hesitate to call upon them. They will assist in communicating with the hospital staff, working their way through the hospital's chain of authority if necessary. We recommend that you try to reach Mr. Walmsley first unless the hour of your call would make it unlikely that he would be at his firm.

Should you have difficulty reaching a member of this group, contact the AALS Office at the Hilton New Orleans Riverside by calling the hotel at (304) 561-0500 and asking for the AALS Office in the Marlborough Room. If the office is closed, make sure you have left messages for both Taylor and Jim, and try each of them again. I do recommend that you and your partner each carry with you a health care power of attorney. Even in extreme circumstances where the power contemplates are not present, it is a useful statement of your point of view about the person(s) closest to you, and that can help get the designated individual access to you and to your hospital doctor if you are hospitalized.

We, of course, hope that no attendee or family member is faced with the need to navigate such a problem, but we do want you to call upon us should you find yourself in circumstances where we can be of help. We very much look forward to welcoming all attendees and their guests to the 2010 AALS Annual Meeting.

Contemplating gay and lesbian families in New Mexico in 2010

I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.

On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."

New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.

As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).

Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.

Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.

Texas court does about face -- recognizes non-bio mom

A few months ago, I wrote about a Texas appeals court ruling that a nonbio mom could not file for custody or visitation of a child she had co-parented. In a move that surprised everyone, the court reversed itself earlier this month. The nonbio mom had filed a routine petition for rehearing, something almost never granted. The court sat on the petition and then, rather than grant that petition, it released a ruling on its own vacating the earlier judgment and issuing a new opinion...in the nonbio mom's favor!

The court ruled that K.V. was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions. Her are the facts that mattered to the court:

K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. ... From August 5, 2005 through April 25, 2007, during the school year, M.K.S. visited K.V. overnight once a week, alternative Sunday afternoons, and alternative weekends beginning on Friday afternoons. During the summer, the weekend visits sometimes started on Thursday afternoon. M.K.S. also visited K.V. on some holidays.

M.K.S. had her own room at K.V.'s house where she kept her toys, movies, a television, and an aquarium. She had a sandbox and a slide set outside. K.V. also modified her house by building a wrap around deck with gates on it so that the child would have a safe environment in which to play. There were occasions when K.V. would pick the child up from school when she was sick and then purchase and administer medication. K.V. was listed as a parent on the child's school records. K.V. also attended school activities and the teachers were aware that K.V. would pick the child up from school during her periods of possession. Witnesses testified that T.S. has referred to K.V. as the child's mother and treats K.V. as one of the child's parents. K.V. also established a college fund for M.K.S. After the relationship between K.V. and T.S. ended, the couple continued to attend church with the child as a family unit. T.S. discontinued K.V.'s visits with M.K.S. on April 25, 2007. The original petition was filed on May 23, 2007.

[T]he record does not suggest this pattern of possession and caregiving was intended to be a temporary arrangement. To the contrary, the possession agreement and the parties' actions evinced an intent that the child occupy K.V.'s home consistently over a substantial period of time. Therefore, we conclude the trial court erred in determining that K.V. did not establish the six month period of actual care, custody, and control requisite to establish her standing to file [a petition].

This is an amazing win, although of course there will have to be a trial now on how much contact will be allowed between K.V. and her daughter.

Oregon Supreme Court lets stand ruling that child of lesbian couple has two mothers from birth

Last July I wrote extensively about an Oregon appeals court decision declaring that a woman who consents to her partner's insemination is also a parent of the resulting child. The court reached its conclusion by reasoning that the law makes that provision for the husband of a woman who conceives through donor insemination and so it is unconstitutional (under the state constitution) to exclude a same-sex partner from that status.

The biological mother asked the Oregon Supreme Court to review the appeals court's ruling, and Wednesday that court declined to do so. The denial of review came in a standard order with no comment, as is customary.

This order means that the appeals court ruling stands as the law of Oregon. All lesbian couples who have a child using donor insemination are now both the legal parents of the child. As we say about the DC law on the subject, however, the nonbiological mother should get a court order - of parentage or adoption - because other states may disregard another state's statute that they disagree with but must respect the court orders of other states.

Congratulations to Portland attorney Mark Johnson on this important win. Now the non-bio mom, Sondra Shineovich, returns to the trial court to argue for custody/visitation of her two children.

Congratulations to Kenyon Farrow

Queers for Economic Justice has named Kenyon Farrow its new Executive Director. I met Kenyon when we were both part of the group that wrote the "Beyond Marriage" statement. Kenyon is a visionary. QEJ is the only LGBT organization with a mission dedicated solely to the well-being of those who are economically disadvantaged.

I'll be making my annual contribution to QEJ in Kenyon's honor. I invite others to do the same.

Same-sex marriage reaches television game show

This past week a category on the long-running game show Jeopardy was about life in Des Moines. One of the "answers" (this is a paraphrase) was something like "Pridefest this year was more festive because of an April 2009 court ruling authorizing this." In the privacy of my tv room, I yelled out "same-sex marriage!" A contestant buzzed in and said "gay marriage." She got credit and continued playing. Unremarkable, perhaps, but surely it says something about the cultural saliency of the issue that it makes its way into American homes as a fact worth knowing.

Or maybe it just strikes me because over 35 years ago (when it was a daytime show) I was a Jeopardy contestant. (I lost).

Puerto Rico Supreme Court considering second-parent adoption

Columbia Law School's Sexuality and Gender Law Clinic has filed a friend of the court brief in AAR, a case pending in the Supreme Court of Puerto Rico. The partner of a biological mom was denied a second-parent adoption, and the court will rule on whether same-sex second parent adoption is permissible in Puerto Rico.

The brief is unique (and not only because it was filed in both English and Spanish). Here on the mainland, no litigant has argued a right to second-parent adoption grounded in norms of international human rights. According to the brief, however, Puerto Rico courts regularly incorporate international law and human rights principles into both statutory interpretation and interpretation of the Commonwealth's constitution. The brief surveys the status of second-parent adoption in other countries; considers rulings from such international tribunals as the European Court of Human Rights; and cites to United Nations and other international human rights documents.

According to a blog post about the case, Puerto Rico does allow second-parent adoption by different-sex parents.

A happy thanksgiving for me...and for a family in Montana

I'm happy to have my 26-year-old daughter home for Thanksgiving...and happy that she's looking forward to my devilled eggs and stuffed mushrooms that will be part of our thanksgiving meal.

And there's another happy thanksgiving in store for 4-year-old Morrgan Avery Gibson-Boettcher and his two moms. The couple, Kellie Gibson and Denise Boettcher, finalized their adoption of Morrgan earlier this month. They might be the first lesbian couple in Montana to adopt a child jointly. According to the coverage in the Billings Gazette, the arguments supporting their adoption were bolstered by last month's Montana Supreme Court ruling protecting the relationship between a child and both her parents, even though only one mom had done the legal adoption. I posted about the case here. The couple is publicizing their success to encourage other couples who may be not know it is possible.

Their story has another interesting twist. Morrgan is Kellie's great-nephew, the grandson of Kellie's sister. The couple cared for Morrgan briefly when he was 3 months old, but then he went back to his biological parents. He had been physically and emotionally abused when he came to live with with Kellie and Denise three years later.

We don't know how many gay couples become caretakers of a child whom a biological relative cannot care for. On this thanksgiving, Morrgan can be thankful he didn't live in Florida or Arkansas or Utah; in Florida no gay person can adopt. In Arkansas and Utah, no gay person living with a partner can adopt. There's litigation challenging the bans in both Florida and Arkansas. Maybe next year same-sex couples and their children will have more to be grateful for.

Virginia really does enforce custody orders from other states

My post on the most recent Miller-Jenkins ruling explained that the history of that case is filled with Virginia court rulings that Virginia will enforce child custody and visitation orders properly entered in another state. In that case, the state was Vermont.

Yesterday, a Virginia appeals court again reiterated the basic principle of child custody law that every state must enforce the custody orders of other states. In Prashad v. Copeland, a woman who bore a now 5-year-old child as a surrogate mother for a gay male couple, argued that Virginia should not register custody orders from a North Carolina court to the extent that those orders confer parental custodial rights on the biological father’s partner. The North Carolina order was the result of a consent agreement signed by the three parties awarding primary legal and physical custody to the gay male couple and secondary legal and physical custody to the surrogate mother.

The trial court ruled that North Carolina had jurisdiction to issue the custody orders and that, as in Miller-Jenkins, the federal Parental Kidnapping Prevention Act and Virginia law require Virginia to give those orders full faith and credit. Prashad argued that, pursuant to Virginia’s Marriage Affirmation Act and Marriage Constitutional Amendment, the North Carolina orders need not be honored. The trial court rejected that argument, and yesterday's appeals court ruling affirmed the trial court. The opinion notes:

Although there has been much discussion concerning homosexual marriage and same-sex relationships, both at the trial level and before this Court, neither of the parties is seeking to have the civil union between Copeland and Spivey recognized under Virginia law. Accordingly, this case is not about homosexual marriage, civil unions, or same-sex relationships.

The court specifically said that the nonbiological father had been permitted to intervene in the North Carolina custody case because he had been a "full-time parent" to the child since birth (almost two years at the time), not because of his relationship with the biological father. His custody rights arose from his interest in the child, not from the relationship between the two men "being treated as a marriage under the laws of North Carolina." (which, of course, the court points out, North Carolina would not do because of its own DOMA.)

The case reiterates the number one lesson for same-sex couples with children; it is critical to obtain a court order solidifying a relationship between a nonbiological parent and a child. In the few states that do confer parentage on a nonbiological parent based on a relationship (marriage, civil union, domestic partnership) with the biological parent, the parental relationship is vulnerable in other states if there is no court order.

Although this particular surrogacy arrangement turned adversarial, I've heard from two different sources about gay male couples who, over years, remain connected to the surrogate mother who bore their child. The first source was noted sociologist Judith Stacey, who has studied such family configurations, and I hope will be writing about them soon. The second source was a program for experienced LGBT family law lawyers in New York in September at which some of the gay couples themselves described their ongoing relationships with the child's surrogate mother. When a lesbian couple uses a known sperm donor and that person has a relationship with the child, it can also go very well or very badly (or in between). In both instances, legal recognition of the core family unit is critical; then the child's parents can make decisions based on what they believe to be best for their child, without fear that a court will attach parental rights to someone outside that unit.

Vermont judge orders transfer of custody to non-bio mom of Isabella Miller-Jenkins

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.

Catholic Charities of DC President questioned on Kojo Nnamdi

The President and CEO of Catholic Charities of Washington DC, Ed Orzechowski, appeared on the Kojo Nnamdi Show last week. You want to listen to this show. I had the opportunity to call in, but even before taking my question and comments on the air, Kojo pressed his guest on his agency's policies, asking him repeatedly if his agency's policies were already in violation of DC non-discrimination law. Mr. Orzechowski said, among other things, that Catholic Charities places children with gay and lesbian individuals as foster and adoptive parents, but that couples must be married. When Kojo repeated the question as to whether that already puts the agency in violation of existing laws, the guest said that the District was aware of their policies. He did not say that the policy complied with the law.

Right. As I've written about, the District -- like the gay community -- has let the discrimination slide. But if the church is going to rub our nose in it, well, that's uping the ante. And by the way, if anyone reading this is, or knows of, a gay or lesbian individual who has sought approval as a foster or adoptive parent from Catholic Charities in DC, I would love to hear from that person. I'm skeptical. If such approval has ever happened, I wonder if a person living with a partner is excluded, even as an individual, from adopting or fostering a child. (Let's not even go to where it is so clearly better for a child to have two loving, cooperating parents than one...)

To my point that federal law gives private employers the abililty to ignore local anti-discrimination laws when it comes to employee health and pension benefits, Mr. Orzechowski first said that they did not want to stop providing employee benefits altogether. When I pointed out that this was misleading because they can continue to provide heterosexual married couples with benefits, he said, "We want to abide by all the laws." He did not respond at all to my comment that Catholic Charities of Maine continues to provide benefits to heterosexual married couples but not to same-sex couples, in spite of local law, and that this is legal because of federal law. Frankly, the answer that they want to abide by all the laws is laughable. It is the law, federal ERISA law, that gives private employers to the right not to follow local laws. Lots of private employers around the country are allowed to discriminate because of this.

One more thing. When Council Member David Catania appeared on Kojo's Friday show (the Politics Hour), Kojo asked him about whether Catholic Charities was already in violation of DC anti-discrimination law with respect to adoption and foster care. CM Catania said this was unlitigated. That's true because, as I've said, gay men and lesbians are approved by the city and by other agencies and so there has never been a reason to pick a fight with them. Now it's Catholic Charities picking the fight.

By the way, with respect to employee benefits, CM Catania is now arguing what amounts to a page right out of my book...that Catholic Charities can cover on an employee's benefits one other adult household member, and then it is not about marriage at all. He points out, quite rightly, that Georgetown University, also a Catholic institution, does this through covering a person they call a "legally domiciled adult," someone with a "close personal relationship" with the employee. When I discuss this in my book I note a limitation with the Georgetown policy, that it does not extend coverage to the LDA's children. But since DC parentage law now makes the nonbiological mother a parent from the moment of birth, that is less of an issue here.

Chai Feldblum coasting toward confirmation as member of the Equal Employment Opportunity Commission

The Senate Health, Eduation, Labor and Pensions Committee held a hearing yesterday on all of President Obama's nominees to the Equal Employment Opportunity Commission, including gay rights scholar and advocate, law professor Chai Feldblum. Watch the hearing here. Prof. Feldblum noted that she was accompanied by her partner, Nan Hunter.

The first question to Prof. Feldblum concerned her signing of the Beyond Marriage statement. Senator Harkin, one of Prof. Feldblum's supporters, noted that she had signed the statement and that it included support for "committed loving households in which there is more than one conjugal partner." Then he asked her directly if she supported polygamy. Obviously prepared for the question, Prof. Feldblum replied:

I do not support polygamy. I am sorry I signed that document and I have asked for my name to be removed. I agreed with the general thrust of the statement that we ought to support caregiving relationships, but the statement goes beyond what I would have said to communicte that point. It was therefore a mistake to sign that document.

Harkin said sometimes if a friend asks us to sign we do and he asked how much thought she had given to it. Prof. Feldblum said that, indeed, another law professor, from Columbia Law School had sent it to her. She said she did read it through, that she agreed with the thrust of supporting caregiving relationships, but that the statement does go beyond what I would have said. She repeated that it was a mistake to sign it and that she had asked to have her name removed.

Republican Senator Mike Enzi asked Prof. Feldblum what she thought of religious exemptions to anti-discrimination laws. Calling upon her experience as the daughter of a Holocaust survivor, which she had highlighted in her opening statement, Prof. Feldblum said she feels strongly that protections in place for religious liberty should be effectively enforced. She expressed support for the exemption in civil rights law that allows religious employers to hire people from their own religion. She also expressed support for the religious exemption in the pending Employment Non-Discrimination Act.

Sen. Enzi that asked whether Prof. Feldblum believes that victims of employment discrimination on the basis of sexual orientation and identity (I think he meant gender identity but he didn't quite get it out) should be able to bring disparate impact claims. She replied that very early on there was agreement that no such claims would be permitted, that she was comfortable with that at the time and is now.

Chai was eloquent, poised, and well-prepared. Do I wish she could have given a more nuanced answer to the question about the Beyond Marriage statement? Absolutely. That must explain why I will never be confirmed by the Senate for anything! It looks like Chai's confirmation will go through easily with the other nominees, although I do imagine a number of Republicans will characterize her in some extreme fashion and vote against her.

The Catholic Church's red herring #2

Yesterday I wrote that legislation allowing same-sex marriage will have no impact on the issue of the church's provision of foster care and adoption services, because providing those services is already subject to DC's antidiscrimination laws.

The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring. The employee benefit that matters the most and costs the most is health insurance, and here is the only fact about health insurance that matters -- no state (or in this case DC) can make any private employer cover anyone, married or not married, same-sex or different-sex. The federal government has complete control of the rules governing the most important employee benefits, including health insurance and pensions. For this reason, the benefits provided by private employers have been off limits to discrimination charges, even in states that allow same-sex couples to marry.

It is true that states and the District can regulate insurance products. Right now every insurance product offered in the District must treat all married couples identically, including DC same-sex couples married elsewhere. I explain this here. But my guess is that the Catholic Church, including Catholic Charities, self-insures. This means that it doesn't buy an insurance product. This is fairly common for large employers. My employer, American University, self-insures.

Bottom line: DC cannot make the Catholic Church provide health and pension benefits to same-sex spouses. Can't now. Won't be able to once those couples can marry in DC.

So when the church makes the threat that it will stop serving the poor in DC if it has to recognize same-sex married couples, it is a baseless bluff. The church is trying to make the City Council and the public think there is a choice between letting same-sex couples marry and keeping Catholic Charities at work in DC. But it's another red herring.

The Catholic Church's red herring

To hear the Catholic Church tell it, if same-sex couples can marry in DC they will have to stop providing social services here. At least that's their threat, as reported earlier this week in the Washington Post. I heard the same thing at the October 26 committee hearing. Their representative said the marriage equality bill would "hurt the people who count on Catholic Charities." (To view the whole hearing click here and select the October 26 meeting of the Committee on Public Safety and the Judiciary). After their representative lamented about what would happen when they sought relicensing as a foster care agency, Committee Chair Phil Mendelson asked why foster care would be implicated and the answer was that the Catholic Charities would not place children with same-sex couples.

Well I have news for the church (except I suspect it's not news to them). For more than 30 years it has been unlawful to discriminate on the basis of sexual orientation and marital status in the provision of services in the District of Columbia. Catholic Charities operates in a discriminatory manner because no one has challenged them. Lesbians and gay men understandably go elsewhere to be licensed as foster or adoptive parents, and no one has asked the District of Columbia to stop funding Catholic Charities.

What the church seeks in the marriage equality bill has nothing to do with marriage. They have what they are entitled to in that respect -- the right not to conduct marriages of same-sex couples. That is a completely uncontroversial and constitutionally mandated provision. What Catholic Charities seeks is immunity from existing civil rights laws that predate marriage equality by decades and will continue to exist regardless of whether same-sex couples are allowed to marry in the District of Columbia.

Councilmembers show no inclination to exempt Catholic Charities from those laws. Good for them. Looking the other way is one thing; affirmatively approving discrimination is another. If this matter comes to a head in the city, it is entirely the responsibility of the church itself for thinking it could confuse lawmakers and the public by conflating marriage for same-sex couples and nondiscrimination on the basis of sexual orientation in the provision of services. So far, we are not confused.

DC City Council committee passes marriage equality bill and preserves domestic partnerships

Here's Rick Rosendall's excellent coverage of the 4-1 vote in the DC City Council Commitee on Public Safety and the Judiciary approving the marriage equality legislation. As indicated in my previous post, the bill deletes the provision "sunseting" domestic partnerships.

The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).

Moreover, while the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there are likely to be some same-sex couples that prefer domestic partnerships as an alternative to marriage.

The ability to register domestic partnerships in the District remains important. This allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, as well as to non-sexual relationships, the Committee believes that preserving the right to register is necessary. (My comment: I love this!)

Retaining domestic partnership at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.

From here to the full Council, then the Mayor, then Congress.

D.C. City Council committee recommends retaining domestic partnerships

The DC City Council Committee on Public Safety and the Judiciary today marks up the bill authorizing same-sex marriage in the District of Columbia. I'm happy to report that Committee Chair Phil Mendelson is recommending preservation of domestic partnership. The draft of the Committee Report on the subject says as follows:

Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.

The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:

The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.

I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.

Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.

Remembering Rosalie Davies

This post comes too late to be considered an obituary. Rosalie Davies died in July. I only just came across this news, however, and so I offer my personal remembrance of her and the impact she had on me and others.

In 2000, I wrote a chapter on lesbian and gay parents in the courts for the book, Creating Change: Sexuality, Public Policy and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid. I began the chapter as follows:

In 1972, I met an openly lesbian mother for the first time. She was in the feminist consciousness-raising group that evolved out of a women-in-literature course I took my senior year of college. Like most women in her situation, she was embroiled in a battle with her former husband over the custody of her children, a battle she subsequently lost. Thus began my...interest in the legal problems facing gay and lesbian parents.

Rosalie Davies was that mother.

Not only was Rosalie the first openly lesbian mother I knew, she was practically the first open lesbian I knew. She was partners with the college professor who had taught that literature course, and when some of the students reconvened after the winter break as a consciousness-raising group Rosalie was among the new participants. In that mixture of gay and straight budding feminists, I had the opportunity to examine my own sexuality with blinders removed. About a year later, in my first year of law school, I came out.

The obituaries about Rosalie credit her with founding Custody Action for Lesbian Mothers. She did this in 1974, before going to law school herself. Her efforts deserve some context. At the time there was almost no awareness of the existence of lesbian mothers. There was a fledgling gay rights movement, but its legal focus was primarily in issues affecting gay men, such as decriminalization of sodomy and security clearances for government workers. There was also a feminist movement, but its legal focus was equality for women in the workplace and under the Constitution.

The groundbreaking book by Del Martin and Phyllis Lyon, Lesbian/Woman, came out in 1972 and included a chapter on lesbian mothers. There was exactly one article on the subject in each of the New York Times, Newsweek, and Ms. in 1973. That's it. Rosalie founded CALM in 1974, and a group in Seattle formed the Lesbian Mothers National Defense Fund (LMNDF) that same year. (For a recent movie about LMNDF, see here). The annual National Conference on Women and the Law first addressed a lesbian issue in 1974, and that was, indeed, the custody rights of lesbian mothers. In 1975, the ACLU published a layperson's guide, The Rights of Gay People, which included a handful of pages on lesbian and gay parents. The first national gay and lesbian legal organization, Lambda Legal, was formed in 1973 but did not participate in a lesbian mother custody case until 1977. 1977 was also the year Donna Hitchens began the Lesbian Rights Project in San Francisco, the precursor to the National Center for Lesbian Rights, and the first legal group to make lesbian mothers their primary focus.

So it's not exactly that Rosalie Davies was ahead of her time. She was in many ways a product of her time. The successes of the feminist and civil rights movements led early gay and lesbian activists to believe in the likelihood of our success as a movement for rights and liberation. That was before the backlash of Anita Bryant and stopping the Equal Rights Amendment and rolling back availability of abortion; those setbacks came a few years later.

Rosalie took her personal injustice and heartbreak and made it political. She formed an organization to help others like her, and she took a public stand for the rights of mothers to come out as lesbian and still keep custody of their children. She changed many lives, including mine.

The Montana Supreme Court really means it; another great outcome for nonbio lesbian moms and their children

For the second time in one month, the Montana Supreme Court has recognized the realities of the lives of children of lesbian couples. I wrote about the first case here. Then this week the court ruled in the case of Filpula v. Ankney.

During the 12 year relationship of Linda Filpula and Dustine Ankney, Dustine bore three children. The couple raised the children together. When the couple split up and Dustine moved away with the children, Linda filed for shared custody and the court ordered a parenting plan that gave each mother equal time with the children. The trial court found that Linda and the children had child-parent relationships as a result of the joint decision of the two women.

Dustine appealed. She argued, among other things, that the court should not follow the ruling of a California court awarding parentage to a nonbio mom because California has domestic partnership and Montana does not. The Montana court rightly said that it was applying Montana law, not California law in ruling in Linda's favor. But the California case that Dustine argued was not decided on the basis of California's domestic partnership law, so Dustine even got that wrong.

The New York Court of Appeals hears a case this month that could spell the end of two decades of bad law for nonbio, nonadoptive lesbian moms and their children. That court could learn a thing or two from Montana. I hope it does.

Voting on marriage equality in DC

The hearing on marriage equality in DC continues today before the City Council Committee on Public Safety and the Judiciary. Last week there were theatrics by those opposing marriage equality, but there was also a common theme. They want the people to vote. That theme continues today.

Under DC law, however, human rights matters are not subject to popular vote. So opponents asked for an “advisory referendum,” even though it would not be binding. Last week that gave Council Member David Catania the opportunity to note that the only time such an advisory referendum has been held in the District of Columbia was on December 21, 1865, and the subject was giving freed slaves the right to vote. According to Council Member Catania, the vote was 721-1 in Georgetown and 6591-35 in the rest of the city – and that would be against extending the vote to freed slaves.

I don’t expect a vote on marriage equality in DC to be anywhere near that one-sided in either direction, but the point is well-taken. The exclusion of matters governed by the DC Human Rights Act from popular vote was a wise decision made at the first opportunity for “home rule” afforded the District of Columbia. We have protected gay people from discrimination in employment, housing, and public accommodation in DC since 1973. Let’s think…what would a referendum on that have looked like?

Then there is Rick Rosendall's excellent post on the subject on the blog of the Gay and Lesbian Activists Alliance. All the members of the current City Council who suppport same-sex marriage were on record before their last election, and yet they were elected. As Councilmember Mendelson pointed out today, seven members of the Council are up for reelection next year (including him). Opponents of marriage equality are free to work against members who vote for it.

Obama administration again validates gay and lesbian parents

The US Justice Department filed a memorandum in support of a motion to dismiss today in Commonwealth of Massachusetts v. United States, the lawsuit brought by Massachusetts arguing that the Defense of Marriage Act is unconstitutional. This lawsuit complements the one brought by GLAD on behalf of several named plaintiffs.

The Justice Department memorandum reiterates that the administration supports repeal of DOMA but must nonetheless defend its constitutionality. It makes no explicit argument that sexual orientation is not a suspect classification entitled to heightened Equal Protection scrutiny; rather it says that the court is bound by a First Circuit US Court of Appeals ruling to that effect. I confess that my aggravation with the memorandum was tempered, as I read it, with the knowledge that any such document filed by a Republican administration would say vile and offensive things about us. By that measure, this is surely an improvement.

And the administration once again took the opportunity to distant itself from assertions that we are bad parents. Here's the footnote in full (check out how the government says the Scalia dissent in Lawrence, meant to scare everyone into thinking that decriminalizing sodomy would lead to same-sex marriage, is essentially correct!):

In this case, the government does not rely on certain purported interests set forth in the legislative history of DOMA, including the purported interests in “responsible procreation and child-rearing” -- that is, the assertions that (1) the government’s interest in “responsible procreation” justifies limiting marriage to a union between one man and one woman, and (2) that the government has an interest in promoting the raising of children by both of their biological parents. See H.R. Rep. No. 104-664, at 12-13, reprinted in 1996 U.S.C.C.A.N. at 2916-17. Since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See American Academy of Pediatrics, http://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement); American Psychological Association, http://www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement); American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/cs/root/policystatements/gaylesbiantransgenderandbisexualparentspolicystatement (June 1999 policy statement); American Medical Association, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of America, http://www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults).
Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because “the sterile and the elderly are allowed to marry.” Thus, the government does not believe that DOMA can be justified by interests in “responsible procreation” or “child-rearing.”

It's looking good for removing the domestic partner "sunset" provision from the DC marriage equality bill

If I were a betting woman, I'd say there will be no mention of ending domestic partnership in the marriage equality bill that goes through the DC City Council.

The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.

The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.

At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).

Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.

Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.

Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.

Several witnesses will urge DC to retain domestic partnerships

Hearings on the bill to grant marriage equality in the District of Columbia begin today. So many people signed up to testify that the Committee on Public Safety and the Judiciary, chaired by Councilmember Phil Mendelson, has already announced that it will hear the first 100 today and the remaining ones next Monday.

I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:

From its inception in 1992, the status of domestic partnership in DC was about recognizing family relationships other than marriage. Unlike some jurisdictions, it was not a status granted only to same-sex couples and only because of their exclusion from marriage. Not only can different-sex unmarried couples register, but two people not in a romantic couple, including relatives, can register if they live together in a “committed, familial relationship.” Availability of marriage for same-sex couples, as a statement of the equal value of gay and straight relationships, does not diminish the appropriateness of providing a legal status to those who do not marry...

Once DC authorizes marriage for same-sex couples, it will be appropriate to reevaluate DC relationship recognition law. That work must include considering the needs of the wide range of family relationships that exist in this city – the very motivation for instituting domestic partnership in 1992. This is a critical undertaking, and we have numerous models to consider.

Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.

This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.

I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.

I'll be posting about today's hearing later.

Two thoughtful commentaries/critiques about marriage for same-sex couples...and its limitations

So many people have emailed me the blogpost by "Queer Kids of Queer Parents Against Gay Marriage!" that I feel a need to point it out to any of my readers who have yet to see it. The variety of comments following the post suggest the authors have touched quite a nerve. It merited a link in Melissa Harris-Lacewell's post on The Nation website. (I LOVE her on Rachel Maddow!)

Harris-Lacewell succeeds in walking a very fine line. She supports marriage equality for same-sex couples but offers a critique of marriage itself. "Our work," she writes, "must be not just about marriage equality, it should also be about equal marriages, and about equal rights and security for those who opt out of marriage altogether." Identifying herself as a black, feminist, marriage equailty advocate, she writes that movement work "must be staunchly supportive of same-sex marriage, while rejecting the marriage-normative framework that silences the contributions of queer life." It is precisely such contributions that the "queer kids..." blog (above) seek to illuminate.

I also loved learning from Harris-Lacewell's post about a new history of slave marriages that concludes that such marriages were real, even though they were not recognized by law.

Harris-Lacewell's final call echoes the imperative of the Beyond Marriage statement written more than three years ago, as well as the guiding principle of my book.

We must do more than simply integrate new groups into an old system. Let's use this moment to re-imagine marriage and marriage-free options for building families, rearing children, crafting communities, and distributing public goods.

This is precisely the work that the mainstream marriage-equality movement refrains from doing. As Harris-Lacewell points out, the pragmatic political strategy is insisting that allowing same-sex couples to marry will not change marriage. But it's a strategy that comes with too high a price tag, and the voices within and without the gay rights movement seeking to make marriage matter less need to speak out more.

Rep. Pete Stark (D-CA) introduces bill banning discrimination in adoption and foster care placement

I love the title! "Every Child Deserves a Family Act." That's the name of H.R. 3827, introduced last week by California Congressman Pete Stark, a 35+ year liberal stalwart in Congress. The bill bans discrimination in foster care placement and adoption on the basis of sexual orientation, marital status, and gender identity. (The bill uses the term "gender identification."). It would apply to all states receiving federal funds, and it would allow an individual claiming discrimination to file an action seeking relief in federal court. This latter provision is especially noteworthy; often Congress passes laws that CANNOT be enforced by individuals but only through loss of federal funding from the relevant federal agency.

The marital status provision is notable because of the number of states now banning or considering banning adoption or fostering by an individual living with a non-marital partner. This obviously has the effect of banning same-sex couples from adopting or fostering, but it also ban some heterosexuals and states defend it based on the desire for "optimal" placement of children in the homes of married couples. (For more on this, check out my post from the Lavender Law Conference.)

In his introduction of the proposed legislation, Rep. Stark likened the measure to the federal requirement that states not discriminate on the basis of race. "When considering a potential placement for a child," he said, "the only criteria should be what is in the child’s best interest and whether the prospective parents can provide a safe and nurturing home. Bigotry should play no part in this decision." The race analogy is not a perfect one, as the prohibition on race discrmination prohibits agencies from seeking a same-race placement for a child. The desire to find a same-race placement is not the same "bigotry" as a ban on adoption by gay men, lesbians, and transgender people.

The bill contains numerous findings about the suitability of gay parents and the shortage of foster and adoptives homes. It also presents the financial cost of the ban, an angle that has worked in some states to kill proposed state bans. (My post on a panel at the Lavender Law conference refers to this as well.)

The bill has no co-sponsors. I'm not expecting action on it anytime soon. But I am grateful to Rep. Stark for taking a stand, providing visibility on the issue at the federal level.

District of Columbia publishes list of registered relationships from elsewhere that will be recognized as domestic partnerships

Last year's expansion of the District of Columbia's domestic partnership laws included a provision requiring DC to recognize as domestic partnerships those relationships registered elsewhere that are "substantially similar" to domestic partnerships in DC. The law required the Mayor to certify which relationships from elsewhere fall into this category. Well, the Mayor took his time, but today the city published a Notice of Proposed Rulemaking listing the jurisdictions.

The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.

I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.

The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.

In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.

Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.

It's complex, but complex goes with the territory of state-by-state family law.

South Carolina appeals court leaves child with lesbian pre-adoptive mother

Earlier this month the South Carolina Court of Appeals left a two year child in the home of a Erin S., 34 year old lesbian who had been approved as the child's pre-adoptive foster parent. The case, Michael P. v. Greenville County Dept of Social Services, came to court when the child's former foster parents, who had declined to adopt him, decided that placing the child with a lesbian was such a bad idea that they had to change their mind and petition themselves to adopt the child or at least stop the placement.

Basically, the child had cocaine in his system at birth, was placed in the state's emergency custody, and then was placed in foster care with Michael and Lisa P. A year later, the social services agency asked the P's if they wanted to adopt the child and they said no. They allege that the agency told them the child would be adopted by a young mother and father in their 20's and that they might be able to remain in the child's life. Four months later, the P.'s went to court and argued that they would not have agreed to the removal of the child from their home had they known the child would be placed with a lesbian. They petitioned to adopt the child themselves or obtain custody or substantial visitation. They even attempted to enlist the biological parents in support of their petition. At this point Erin S. intervened in the case.

The trial court ruled that the couple lacked standing to petition to adopt the child because he had been placed by the county in a pre-adoptive home with Erin S. They also had no standing as former foster parents. They could have challenged the removal of the child from their home, but once they did not do that they could not object later and try to adopt the child themselves.

The couple appealed and the South Carolina Court of Appeals affirmed the ruling of the trial court. The couple argued that the court should have considered that the best interests of the child were not served by placement with a lesbian, but the court ruled that the couple lacked standing to raise any issue about the child's placement.

There is much that interests me about this case. First, the obvious. It's from the south -- the region of the country most hostile to gay and lesbian parents. But it also reminds me of a court ruling in the 1970's from a South Carolina court requiring actual proof of harm to a child before a heterosexual father could get custody of a child living with his ex-wife who had come out as a lesbian. It's inaccurate to paint the south with one broad brush.

Next, the social services agency made the placement with a lesbian as a pre-adoptive parent. It's no accident that state social workers have generally been reliable advocates of allowing gay men and lesbians to be foster and adoptive parents. They focus on the individual needs of children and the individualized determination of who makes suitable parents. The ideology and rhetoric that sometimes prevail in politics (e.g., the continuation of Florida's adoption ban and the passage of the initative in Arkansas instituting a ban there) really lose steam when considering the lives of real people.

Finally, some people behave very badly. The P's knew nothing about Erin S's ability to raise this child other than her sexual orientation, and that was enough for them to try to block her. Good for the South Carolina court in not letting them get away with it.

Now is not the time to eliminate domestic partnership in the District of Columbia

The bill authorizing same-sex marriages in the District of Columbia contains a disturbing additional provision that has gotten little attention. It eliminates any new domestic partnerships as of January 1, 2011. I don’t know why Councilmember David Catania wrote this into the legislation, but I do hope he will reconsider in light of the history of domestic partnership in DC and its eligibility criteria.

Domestic partnership in DC was never about providing a legal status to same-sex couples based on their exclusion from marriage. Different-sex couples are allowed to register, and of course they have always been able to marry. In addition, domestic partnership is available to any two people living together in a “committed familial relationship.” It is open to relatives who are unable to marry. It means, for example, that a grandmother and grandson can be domestic partners, assuming that they live together and have no other domestic partner or spouse. That way, if he now works for the DC government, she is eligible for his health insurance benefits in the same way an employee’s spouse is eligible.

The criteria were the product of deliberate decisions to broaden the definition of relationships that count for legal purposes and to cease making marriage the exclusive means of obtaining important legal benefits.

I do think that once same-sex couples can marry in DC it will make sense to reevaluate what legal status we make available to other relationships. In addition to considering retaining domestic partnerships, I’d like a robust discussion of enacting a status such as Colorado’s “designated beneficiary.” I’d also like us to consider the test for benefit eligibility that Salt Lake City affords its employees – any one adult with whom the employee lives in an interdependent relationship and that person’s children.

In addition, there is a reason to maintain domestic partnerships even if one considers only legal protections for same-sex couples. There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.

We could hash all this out now, but I suggest we take this process one step at a time. Let the marriage bill be considered on its own merits. Once it becomes law, let’s think through other relationship recognition issues. That means the provision eliminating domestic partnership should come out of the Catania bill. I hope Councilmember Catania will agree with this proposal and that Phil Mendelson’s Judiciary and Public Safety Committee will make it happen.

Montana Supreme Court protects children with two same-sex parents

The Montana Supreme Court has affirmed a trial court decision granting a “parental interest” to a lesbian mother who co-parented two children legally adopted only by her partner. The case, Kulstad v. Maniaci, is a strong and unequivocal victory for recognizing the families that same-sex couples form. The mother who adopted the children, Barbara Maniaci, was represented by the Alliance Defense Fund. As I’ve noted elsewhere, that organization devotes substantial resources to opposing the rights of children to maintain relationships with both of their functional parents when a same-sex couples splits up.

L.M. came to live with Michelle Kulstad and Barbara Maniaci through a private adoption arrangement in February 2001. A lawyer told the couple only one of them could adopt, and Barbara became the adoptive parent. They agreed to co-parent, however, and made that clear to the social worker who wrote both pre-adoptive and post-adoptive reports on the family. In 2003, Barbara wanted to adopt another child, and, although Michelle did not, the couple participated together in a home study to adopt another child and Barbara told the social worker that the couple would co-parent.

The couple did co-parent. The court found that the two women “provided for the children’s physical, psychological, and developmental needs much like any other two-parent family.”

The couple split up in 2006. The trial court allowed Michelle’s claim to go forward and there was a trial in 2008 on whether she had a “parental interest” and was entitled to time with the children under a parenting plan.

A Montana statute explicitly allows a nonparent to seek a parental interest if the person has established a child-parent relationship, it is in the child’s best interests to continue that relationship, and if the parent has acted “contrary to the child-parent relationship.” The Montana Supreme Court approved the trial court’s interpretation that this last element was met because Barbara acted contrary to her own exclusive child-parent relationship when she ceded her exclusive parenting authority and instead jointly parented with Michelle.

Barbara made numerous representations about the family’s life that the court did not believe, including her assertion that she had lied when she told social workers that the couple would be raising the child together. Rejecting every one of her contentions, the Montana Supreme Court stated that “[Barbara] cannot rewrite the history of the fact that she and [Michelle] lived together for more than 10 years and jointly raised the minor children in the same household.” Barbara also argued that Michelle could not be considered in loco parentis unless she acted as parent to the exclusion of Barbara. The court rejected this.

The Montana Supreme Court credited the trial court’s findings: that Barbara had acted inconsistently with the position that she was the only one with a child-parent relationship; that Michelle did have a child-parent relationship with the children; that, as the mental health experts testified, it was in the children’s best interests to continue their child-parent relationship with Michelle.

Last year I wrote about a devastating opinion from the Maryland Court of Appeals eliminating from a child’s life the parent who had not legally adopted her. The Montana Supreme Court referenced that ruling and noted that Montana has a statute on the subject, which Maryland lacks. Hear that Maryland? You need to pass a statute so that your children of same-sex parents get the same emotional and financial security that the children of Montana now have.

Six justices joined the majority opinion. A seventh, James C. Nelson, concurred, writing a separate opinion championing the rights of lesbians and gay men to form families and raise children. He points out that the Alliance Defense Fund and two amici – Montana Family Foundation and Pacific Justice Institute -- claimed that sexual orientation played no part in their involvement in the case. He found this claim “belied by each of these participants’ foundational beliefs opposing homosexuality.” In some of the strongest and most passionate language I have ever read in a court opinion, Justice Nelson writes as follows:

I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized…

Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights is antithetical to the core values of [the Montana Constitution] and speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate.

Wow.

One judge dissented, believing the court was opening the door too wide to challenges to the rights of parents to raise their children. Although there is some legitimacy in protecting parents’ rights (which I have long argued can be done by defining parent to include individuals like Michelle), the dissenting judge betrays a certain hysteria by discussing same-sex couples and polyamory in the same paragraph. When he posits the bogeyman of three or four adults developing parental relationships with children, he apparently fails to notice that in this era of blended families many children do, in fact, have multiple parental relationships.

Thanks to Montana attorney Jim Reynolds, who wrote a friend of the court brief on behalf of several law professors (including me!) in support of the trial court's ruling. The ACLU of Montana, with the help of the ACLU Lesbian, Gay, Bisexual and Transgender Project, represented Michelle.

The cost of being a gay couple... the New York Times tells just one part of the story

You know I'm going to respond to any article that says:

"Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage."

Well, that's what the article in today's New York Times concludes. It purports to be a study based on the differences between a married heterosexual couple and a same-sex couple (who, if married in their state, is still not married for federal law purposes).

So let's get the first obvious problem with this article out of the way by rephrasing the study's findings as follows:

Nearly all the extra costs that unmarried couples face would be erased if the federal government stopped privileging marriage over other relationships.

My formulation is no less accurate than the conclusion in the Times article. But if you're a hammer everything looks like a nail, and if you're an advocate for same-sex marriage every problem looks like it's caused by denial of access to marriage. I just don't see it that way.

Here's an example. The article points out that when an employer provides health insurance to a same-sex partner it is taxed, while spousal coverage is not. True. But suggesting that the problem here is that same-sex couples can't marry misses the larger point. Why should any employer-provided health benefits be taxed? Salt Lake City allows an employee to cover anyone s/he lives with in an interdependent relationship. Many employers cover both same-sex and unmarried different-sex partners. In all those situations, the benefit is taxed. Spousal coverage gets special treatment. It shouldn't. A solution that ended that special treatment would reduce the "high cost of being a gay couple" as much as allowing same-sex couples to marry, and would be a better policy choice because it would encourage employers to recognize the actual families of their employees -- married or not.

Meanwhile, the article does not entirely ignore the fact that marriage helps those straight families who look like the male breadwinner and stay-at-home mother model that drives both our tax and social security system. So it would mostly help those same-sex couples who also have one high and one low income earner. The authors acknowledge that for an equal earning couple their social security payments don't vary depending on whether or not they are married. What they fail to mention is that many observers believe the current set-up fails to reflect modern family life and should be reformed...for straight married couples. Taking the current system as a given misses the opportunity to highlight the views of those who think it unconscionable that a family in which one person has earned most of the money pays less into social security and gets more out of it than a couple who have greater parity. Here's an example of one paper by the Urban Institute. They actually have an entire project about making social security more equitable.

Then there's this problem. The article posits the hypothetical couple having a joint income of $140,000 a year. This perpetuates the myth of gay affluence, something roundly debunked by the careful research of the Williams Institute. And for poor same-sex couples, they are, like different-sex unmarried couples, sometimes better off not being married (the Earned Income Tax Credit is one example.) In fact, you'd never know it from this article that lawyers who specialize in elder law often advise their heterosexual couple clients not to marry. If one partner needs to spend down all assets to be eligible for medicaid nursing home care, the other can keep all of his or her assets if the couple isn't married. If they are married, they must spend down almost all of both of their assets.

But no partner in the hypothetical couples used as examples in the Times article needs nursing home care. Lucky them.

A nod from the President...I'll take it!

While I was in synagogue yesterday for Yom Kippur, the President proclaimed the day "Family Day 2009." Amid the platitudes on the importance of strong families in keeping adolescents from substance abuse and electronic device overdose came a nod to us...same-sex couples raising children. Here's the quote:

American families from every walk of life have taught us time and again that children raised in loving, caring homes have the ability to reject negative behaviors and reach their highest potential. Whether children are raised by two parents, a single parent, grandparents, a same-sex couple, or a guardian, families encourage us to do our best and enable us to accomplish great things.

We've heard Presidential rhetoric before. When Bill Clinton accepted the Democratic nomination for president in 1992, it was the middle of a family values war. Clinton's contribution in his acceptance speech was the following:

I want an America where "family values" live in our actions, not just in our speeches. An America that includes every family. Every traditional family and every extended family. Every two-parent family, every single-parent family, and every foster family. Every family.

At the time I was thrilled. He didn't mention us by name, but he didn't exclude us either. He said every family. I believed him. That was before the Newt Gingrich Congress of 1994 and a Congress that handed him the Defense of Marriage Act just before the 2006 election.

Obama is three years from reelection. It looks unlikely that he will get DOMA repealed before then. But he's willing to include us in the list of families. And when his administration defends the constitutionality of DOMA, it now makes clear that we make good parents.

It's not enough, but it's progress.

National Geographic Explorer does good job on gender

As a young law student and lawyer in the 1970’s, John Money was one of my heroes. John Money was a Johns Hopkins University psychologist who researched gender and sexuality. He concluded that sexual orientation was fixed at a young age and that a lesbian mother could not “make” her child gay. He was willing to testify for gay parents when their custody or visitation rights were challenged by their heterosexual ex-spouses. When you remember that Anita Bryant was getting gay rights ordinances repealed by arguing the need to “save the children” from “recruitment” into homosexuality, you can see how important it was that a respected expert would say that custody with a gay parent would not make a child gay.

Dr. Money also articulated the difference between sexual orientation and gender identity; and concluded that nothing about gay and lesbian parents would make their girl children identify as boys or their boy children identify as girls. This, too, was an important part of debunking the myths and stereotypes that cost so many parents who came out after heterosexual marriages access to their children.

Unfortunately, Dr. Money also believed that gender identity itself could be molded through upbringing if started at an early age. And this was his downfall. In what may his most famous case, he persuaded the parents of a boy whose circumcision had gone wildly wrong and resulted in destruction of the penis that their son could be turned into a daughter through surgery to create female-appearing genitalia, through hormones, and through consistent upbringing as a girl. The life story – and ultimate suicide- of Money’s victim, David Reimer, was told in As Nature Made Him.

I thought of Money while watching an excellent National Geographic Explorer episode, Sex, Lies, and Gender. The show highlights three distinct situations: intersexed individuals, focusing on a soldier whose MRI well into adulthood reveals that he has ovaries; transgender children, focusing on one family whose son identified immediately as a girl and how his parents came to allow the child to be fully herself; and the hijra in India, focusing on one person who balked at an arranged marriage to a woman, was ejected from his family, and went on to become an advocate for hijra, also known as the “third sex.”

I highly recommend this program. Among other things, it rightly criticizes Dr. Money for the damage he and his theories caused. That I remember the contribution he once made towards educating judges and the public about gay and lesbian parents in no way excuses the harms he caused by believing that gender was malleable at birth.