After many years of advocating that marriage should be abolished as a legal institution and left entirely to religion, I changed my mind at some point in the process of writing Beyond (Straight and Gay) Marriage. I heard so many gay men and lesbians talk about the importance of marriage to their personal happiness and sense of well-being that I decided (with uncharacteristic humility) that I was no longer willing to advocate denying so many people something that mattered so much to them.
I did –and do-- urge that the legal term for all state-sanctioned intimate partnerships be changed from “marriage” to “civil partnership.” I've blogged about it here. While the official term on all the state forms would be “civil partnership,” I fully expect most people to refer to themselves as married, and that doesn’t trouble me.
Well, earlier this week I delivered the Roger S. Aaron Lecture at Dartmouth College. In the audience was Beth Robinson, the attorney most responsible more than a decade of judicial and legislative efforts that brought us civil unions and now marriage for same-sex couples in Vermont. Beth considered my call to rename the legal status of couples no different from a position abolishing marriage.
I have assumed that what couples want is the blessing of the state, the ceremony that goes with that, and a stature equal to that afforded different-sex couples. As long as the name for that is "marriage," then same-sex couples should have that name also. But it never occurred to me that keeping a distinct legal status for couples, but renaming that status for all couples to reflect the modern values of partnership, would appear to anyone as indistinguishable from the abolition of marriage.
I'm curious what others think.
Thursday, April 30, 2009
Saturday, April 25, 2009
Lambda Legal gets big win for children of disabled parent...but the case shows the risk of parentage orders
Lambda Legal announced this week that the Social Security Administration has agreed to grant child benefits to the two children of a father receiving social security disability benefits. The issue concerned recognition of the parent-child relationship based on two California parentage orders declaring Gary Day the father of his two children. Day now lives in Florida.
SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.
Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.
Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.
This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.
Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.
Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.
This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.
SSA never issued a ruling on the children's claim for benefits, in spite of two letters from Lambda Legal. It simply cited "legal issues and policy questions" in holding up an initial determination. Without a determination, Day could not appeal. More than two years after Day's application, in May 2008, Lambda filed a lawsuit in federal court in the District of Columbia. The letter this week granting the benefits successfully concludes the litigation.
Eighteen months ago, in another case, the Department of Justice issued a memorandum opinion authorizing child benefits to the child of a nonbiological mother who was the child's legal parent because she was in a Vermont civil union with the biological mother. The opinion concluded that recognition of the parent-child relationship did not violate the Defense of Marriage Act.
Lambda's complaint on behalf of Gary Day and his children demonstrated that a parent-child relationship existed based on five different legal criteria in social security laws.
This case highlights an ongoing concern about recognition of parentage orders for nonbiological parents. If Day had an adoption decree naming him the father of the children it is unlikely he would have faced difficulty in obtaining benefits for them. But lawyers are increasingly seeking parentage orders rather than adoption decrees because they are a more accurate reflection of the family's situation. A person does not adopt his or her own children. So when a lesbian couple plans a child through donor insemination or a gay male couple has a child through surrogacy, the intended parents consider themselves the child's parents the whole time. It's analagous to a married heterosexual couple having a child conceived through donor semen; the husband does not have to adopt the child.
Parentage orders can also be obtained more quickly and without the home study that adoption proceedings usually require.
Somewhat ironically, a paternity order should be more secure than a parentage order granted to a nonbiological mother. That's because all states -- in their efforts to obtain child support for children born to unmarried women -- have strict laws requiring that a paternity order from another state receive Full Faith and Credit. Some states may think they need not extend that recognition to an order establishing motherhood.
This is a very new area of law. We lawyers hope that someday parentage orders will be as secure as adoption decrees and that someday laws will establish parentage without needing a court order of any kind...and that those means of establishing parenthood will also be universally recognized. The Day case is a step in the right direction.
Wednesday, April 22, 2009
More on Colorado's designated beneficiary law
Last week I wrote about the new Colorado law that allows any two unmarried adults to become "designated beneficiaries" and thus gain what essentially amounts to next-of-kin status. I love this law!
But it's still not a statute that matches the purpose of various laws to the families/relationships that the law should encompass. Here's what I mean. It's perfect that the law allows designation of a medical and burial decisionmaker and a person who will inherit if you die without a will. That's because the purpose of any law on those subjects is to advance individual autonomy.
But the selection of a designated beneficiary also establishes who can sue for wrongful death or obtain employee partner benefits. When I consider the purpose of those laws, I don't think autonomy; I think economic interdependence. So ability to recover for wrongful death should attach to anyone in a relationship of economic dependence or interdependence. No marriage or registration should be required. In fact, even married couples should have to show economic interdependence to come within these laws.
Colorado does this now for workers compensation survivors benefits. The purpose of these benefits is compensation for the loss of an economic provider. A spouse -- and now a designated beneficiary -- cannot receive the benefit if s/he was not living with the worker who died or not dependent, at least in part, on the worker who died. So far so good.
But the benefit should go to anyone dependent in whole or in part of the deceased worker. A few states do this now. Those laws should be models for all states.
I'm still so excited about the new Colorado law. It's a big improvement over the all-or-nothing status based on whether a couple is married, and I love the fact that the two people can pick the legal consequences they want. More laws like this and it will be easier to see the wisdom of matching the purpose of any law and the relationships subject to that law.
But it's still not a statute that matches the purpose of various laws to the families/relationships that the law should encompass. Here's what I mean. It's perfect that the law allows designation of a medical and burial decisionmaker and a person who will inherit if you die without a will. That's because the purpose of any law on those subjects is to advance individual autonomy.
But the selection of a designated beneficiary also establishes who can sue for wrongful death or obtain employee partner benefits. When I consider the purpose of those laws, I don't think autonomy; I think economic interdependence. So ability to recover for wrongful death should attach to anyone in a relationship of economic dependence or interdependence. No marriage or registration should be required. In fact, even married couples should have to show economic interdependence to come within these laws.
Colorado does this now for workers compensation survivors benefits. The purpose of these benefits is compensation for the loss of an economic provider. A spouse -- and now a designated beneficiary -- cannot receive the benefit if s/he was not living with the worker who died or not dependent, at least in part, on the worker who died. So far so good.
But the benefit should go to anyone dependent in whole or in part of the deceased worker. A few states do this now. Those laws should be models for all states.
I'm still so excited about the new Colorado law. It's a big improvement over the all-or-nothing status based on whether a couple is married, and I love the fact that the two people can pick the legal consequences they want. More laws like this and it will be easier to see the wisdom of matching the purpose of any law and the relationships subject to that law.
Monday, April 20, 2009
No mention of family structure in the analysis of the Columbine shootings -- remember this for next time
There's been some thoughtful reporting about the 10th anniversary of the Columbine shootings, like the NPR interview with Dave Cullen about his book, Columbine. The subject that fascinates the most -- still -- is what caused the two shooters to unleash their torrent of death and destruction. I'm as interested in this as the next person.
But I've been struck while listening by a simple fact. No one mentions the family structure of either young man. I don't mean that no one mentions their families. Of course the questions about what the parents knew, what they did and what they didn't do have received enormous scrutiny. Lisa Belkin reflects on this in today's New York Times.
But no one even asks the question about whether the family structure in which these children were raised contributed to their terrible actions. And that's because both were raised by their married, heterosexual, biological parents.
Imagine any other family form -- never-married mother, divorced parents, gay parent, same-sex couple parents, raised by a grandmother or other relative, raised by a step-parent, adopted -- the list is long. You KNOW that everyone would be asking about the impact of that family form on the children. Some would dismiss it, but still, everyone would feel the need to comment. I assume there would be some lengthy and serious feature reporting on the subject. Was the child reacting to the shame of a gay parent? Was he trying to get the attention of the mother who placed him for adoption? Did he lack a positive male role model in the home? The list of questions would be long.
If you add race to the mix, the questions would become a frenzy. Raised by a single black mother? Raised by a Latina grandmother? Many commentators would find both pathology and causation.
Should we be asking whether a culture of married, heterosexual, biological parents helped turn these two young men into killers? If not, then the next time there is a tragedy of similar proportions and the killers have a different family form, let's remember Columbine and look somewhere other than family structure to understand what happened.
But I've been struck while listening by a simple fact. No one mentions the family structure of either young man. I don't mean that no one mentions their families. Of course the questions about what the parents knew, what they did and what they didn't do have received enormous scrutiny. Lisa Belkin reflects on this in today's New York Times.
But no one even asks the question about whether the family structure in which these children were raised contributed to their terrible actions. And that's because both were raised by their married, heterosexual, biological parents.
Imagine any other family form -- never-married mother, divorced parents, gay parent, same-sex couple parents, raised by a grandmother or other relative, raised by a step-parent, adopted -- the list is long. You KNOW that everyone would be asking about the impact of that family form on the children. Some would dismiss it, but still, everyone would feel the need to comment. I assume there would be some lengthy and serious feature reporting on the subject. Was the child reacting to the shame of a gay parent? Was he trying to get the attention of the mother who placed him for adoption? Did he lack a positive male role model in the home? The list of questions would be long.
If you add race to the mix, the questions would become a frenzy. Raised by a single black mother? Raised by a Latina grandmother? Many commentators would find both pathology and causation.
Should we be asking whether a culture of married, heterosexual, biological parents helped turn these two young men into killers? If not, then the next time there is a tragedy of similar proportions and the killers have a different family form, let's remember Columbine and look somewhere other than family structure to understand what happened.
Thursday, April 16, 2009
How about the whole story on taxes and same-sex married couples?
Gary Gates does amazing work. He is singlehandedly responsible for the wealth of knowledge we have about same-sex couples from census data. I turn to him for data for my own work. But his co-authored Huffington Post piece today doesn’t tell the whole story about same-sex couples and taxes.
What he writes about is the unfairness of treating married same-sex couples as unmarried for purposes of federal law. Unlike GLAD’s lawsuit challenging DOMA, he steers clear of examples of same-sex couples who pay more federal income tax because they are treated as single individuals. I’m figuring that’s because he knows that for close-to- equal-earning same-sex couples, they do better being considered unmarried under federal law. The married couples who pay less in federal income tax are those who are the single-earner model, mirroring the husband-at-work and wife-at-home marriage that lawmakers had in mind when they enacted our tax code. I find it unjust that the tax system rewards such families at the expense of equal earners, whether those couples are gay or straight.
Gary Gates does mention Social Security. As I explained in an earlier post about the GLAD lawsuit, our system of Social Security survivors benefits also favors the traditional, gendered model of a single, or at least one primary, income earner. Dual income married couples pay more into the system and get less out over the course of both their lifetimes than the traditional, gendered model. Race-based critiques of Social Security point out that since Black married couples are more likely to both work and to have more equal incomes, the current system disadvantages them.
What should the gay rights movement do? Rather than complain about our lack of access to a set of laws that benefits only some members of our community, how about we work with other groups who want to reform family taxation and Social Security rules for everyone? I wrote about this last year. I'd love to have something different to report for tax day 2010.
What he writes about is the unfairness of treating married same-sex couples as unmarried for purposes of federal law. Unlike GLAD’s lawsuit challenging DOMA, he steers clear of examples of same-sex couples who pay more federal income tax because they are treated as single individuals. I’m figuring that’s because he knows that for close-to- equal-earning same-sex couples, they do better being considered unmarried under federal law. The married couples who pay less in federal income tax are those who are the single-earner model, mirroring the husband-at-work and wife-at-home marriage that lawmakers had in mind when they enacted our tax code. I find it unjust that the tax system rewards such families at the expense of equal earners, whether those couples are gay or straight.
Gary Gates does mention Social Security. As I explained in an earlier post about the GLAD lawsuit, our system of Social Security survivors benefits also favors the traditional, gendered model of a single, or at least one primary, income earner. Dual income married couples pay more into the system and get less out over the course of both their lifetimes than the traditional, gendered model. Race-based critiques of Social Security point out that since Black married couples are more likely to both work and to have more equal incomes, the current system disadvantages them.
What should the gay rights movement do? Rather than complain about our lack of access to a set of laws that benefits only some members of our community, how about we work with other groups who want to reform family taxation and Social Security rules for everyone? I wrote about this last year. I'd love to have something different to report for tax day 2010.
Wednesday, April 15, 2009
The extraordinary new Colorado law
When a legislature blinks on same-sex marriage, we hear about it in the news everywhere. But the law signed by Colorado's governor last week has garnered little attention, and it has some transformative possibilities that deserve lots and lots of attention. (Thanks to Bilerico's Alex Blaze for highlighting it -- but not a single comment to his post.) Colorado now has a simple form, with a menu of options, that allows any two unmarried people to designate each other as entitled to numerous legal consequences usually reserved to married couples.
The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.
Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.
In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.
Colorado has now come close to that model.
I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.
So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)
You'll be hearing more from me about the Colorado law soon.
The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.
Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.
In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.
Colorado has now come close to that model.
I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.
So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)
You'll be hearing more from me about the Colorado law soon.
Monday, April 13, 2009
No one should have to adopt her own child....
A New York court opinion reported last week highlights the legal maze facing lesbian couples raising children. Mona and Ingrid were the couple in the case. Ingrid gave birth to their child after implantation in her uterus of an egg fertilized using Mona's egg. Mona filed a petition to adopt their son, Sebastian.
The judge in the case first presented the reasons that Mona was already Sebastian's parent. There were two. She and Ingrid were married in the Netherlands (Ingrid is a Dutch citizen). New York recognizes their marriage, so Mona should receive the parentage presumption that attaches to the spouse of a woman who bears a child. In addition, Mona's genetic connection to the child would establish parentage under the paternity statutes if she were a man, and constitutional equal protection principles require that those statutes be interpreted to encompass a woman with a genetic connection to the child as well. The judge found that she could issue a parentage order naming Mona a parent and that Mona's name could be added to Sebastian's birth certificate.
Even though the judge found that under New York law Mona was already a parent, she granted the adoption after explaining that adoptions are entitled to "full faith and credit" in other states, while the other means of establishing Mona's parenthood might not be. In other words, outside of New York the family might find that a state would not recognize the couple's marriage and would not interpret their parentage statutes in a gender-neutral manner. In that case Sebastian would be at risk of having only one of his parents recognized. An adoption decree, on the other hand, will be recognized everywhere.
I find so many aspects of this case notable. The judge is right that an adoption decree is the greatest protection this family can get, but surely they should not have to go through this additional step. Beyond that, Mona should be considered Sebastian's parent in the more common circumstances that 1) she is not married to the biological mother, and 2) the biological mother is also the genetic mother.
The marriage should be irrelevant because 40 years ago we began treating children of married and unmarried parents equally and that shouldn't change for same-sex couples. And the biological connection should be irrelevant because assisted reproduction has separated biology from legal parentage in so many situations. So what should be the case, and would be in any state adopting the American Bar Association Model Act Governing Assisted Reproductive Technology, is that consenting to a partner's insemination with intent to be a parent should make a person a parent. That's the law for husbands and wives right now, and it should not be dependent on the gender or marital status of the couple. Australia has recently enacted law reform similar to this, and they've made it retroactive so that all the children already born to lesbian couples using donor insemination have two legal parents.
No US state has enacted this yet. Stay tuned for developments on that front soon, however. You'll be the first to know on this blog!
The judge in the case first presented the reasons that Mona was already Sebastian's parent. There were two. She and Ingrid were married in the Netherlands (Ingrid is a Dutch citizen). New York recognizes their marriage, so Mona should receive the parentage presumption that attaches to the spouse of a woman who bears a child. In addition, Mona's genetic connection to the child would establish parentage under the paternity statutes if she were a man, and constitutional equal protection principles require that those statutes be interpreted to encompass a woman with a genetic connection to the child as well. The judge found that she could issue a parentage order naming Mona a parent and that Mona's name could be added to Sebastian's birth certificate.
Even though the judge found that under New York law Mona was already a parent, she granted the adoption after explaining that adoptions are entitled to "full faith and credit" in other states, while the other means of establishing Mona's parenthood might not be. In other words, outside of New York the family might find that a state would not recognize the couple's marriage and would not interpret their parentage statutes in a gender-neutral manner. In that case Sebastian would be at risk of having only one of his parents recognized. An adoption decree, on the other hand, will be recognized everywhere.
I find so many aspects of this case notable. The judge is right that an adoption decree is the greatest protection this family can get, but surely they should not have to go through this additional step. Beyond that, Mona should be considered Sebastian's parent in the more common circumstances that 1) she is not married to the biological mother, and 2) the biological mother is also the genetic mother.
The marriage should be irrelevant because 40 years ago we began treating children of married and unmarried parents equally and that shouldn't change for same-sex couples. And the biological connection should be irrelevant because assisted reproduction has separated biology from legal parentage in so many situations. So what should be the case, and would be in any state adopting the American Bar Association Model Act Governing Assisted Reproductive Technology, is that consenting to a partner's insemination with intent to be a parent should make a person a parent. That's the law for husbands and wives right now, and it should not be dependent on the gender or marital status of the couple. Australia has recently enacted law reform similar to this, and they've made it retroactive so that all the children already born to lesbian couples using donor insemination have two legal parents.
No US state has enacted this yet. Stay tuned for developments on that front soon, however. You'll be the first to know on this blog!
Monday, April 6, 2009
Two reasons I love the Iowa decision
I've got two reasons for loving the Iowa Supreme Court ruling striking down the state's ban on same-sex marriage.
The first is what the opinion doesn't say. It doesn't say, not once, that marriage is the essential building block of society. It doesn't glorify marriage. It doesn't call marriage uniquely valuable, or unique in any way. It doesn't suggest society would fall apart without it.
Instead, the court's opinion is about equality. On that score, it gets the issue exactly right. As long as different-sex couples can marry, same-sex couples must be allowed to marry because there is no good reason for distinguishing between the two. The court considered all of the state's reasons for making the distinction and found them all lacking.
But if the state wanted to change the name of the legal status of all couples to something else, such as civil partnership, nothing in this opinion suggests that would be a constitutional violation.
The second reason I love the decision is because it responds so simply and logically to the arguments about the best interests of children. By way of contrast, when the 11th Circuit Court of Appeals in the Lofton case upheld Florida's ban on adoption by gay men and lesbians, it said that the state could assume that children would be better off raised by heterosexual couples and that it could let single heterosexuals adopt, but not single gay men/lesbians, because there was a chance that a single heterosexual would someday marry someone of a different sex and thereby provide the optimal environment for the child. No good sense or logic there!
The Iowa court, on the other hand, methodically considered and rejected every conceivable relationship between denying marriage to same-sex couples and the best interests of children. In fact, it made mincemeat of those arguments.
The court called "largely unsupported by reliable scientific studies" the "thoughtful and sincere" opinions that dual-gender parenting is the optimal environment for children. Rather, the opinion states, "plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents."
The court said if the state was truly concerned with the optimal environment for children it would exclude other categories of people, such as child abusers and sexual predators. Plus, it noted, the marriage ban does not prohibit same-sex couples from raising children. (And if the state wanted to do that, the court suggested that would be a different constitutional violation!). So the real point of the ban, the court said, is likely stereotype and prejudice. Got that right.
Thanks, Iowa. Both for the outcome of the case and for its reasons.
The first is what the opinion doesn't say. It doesn't say, not once, that marriage is the essential building block of society. It doesn't glorify marriage. It doesn't call marriage uniquely valuable, or unique in any way. It doesn't suggest society would fall apart without it.
Instead, the court's opinion is about equality. On that score, it gets the issue exactly right. As long as different-sex couples can marry, same-sex couples must be allowed to marry because there is no good reason for distinguishing between the two. The court considered all of the state's reasons for making the distinction and found them all lacking.
But if the state wanted to change the name of the legal status of all couples to something else, such as civil partnership, nothing in this opinion suggests that would be a constitutional violation.
The second reason I love the decision is because it responds so simply and logically to the arguments about the best interests of children. By way of contrast, when the 11th Circuit Court of Appeals in the Lofton case upheld Florida's ban on adoption by gay men and lesbians, it said that the state could assume that children would be better off raised by heterosexual couples and that it could let single heterosexuals adopt, but not single gay men/lesbians, because there was a chance that a single heterosexual would someday marry someone of a different sex and thereby provide the optimal environment for the child. No good sense or logic there!
The Iowa court, on the other hand, methodically considered and rejected every conceivable relationship between denying marriage to same-sex couples and the best interests of children. In fact, it made mincemeat of those arguments.
The court called "largely unsupported by reliable scientific studies" the "thoughtful and sincere" opinions that dual-gender parenting is the optimal environment for children. Rather, the opinion states, "plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents."
The court said if the state was truly concerned with the optimal environment for children it would exclude other categories of people, such as child abusers and sexual predators. Plus, it noted, the marriage ban does not prohibit same-sex couples from raising children. (And if the state wanted to do that, the court suggested that would be a different constitutional violation!). So the real point of the ban, the court said, is likely stereotype and prejudice. Got that right.
Thanks, Iowa. Both for the outcome of the case and for its reasons.
Friday, April 3, 2009
Love makes a family...but only through marriage
On a day when most people are focused on the marriage win in Iowa (watch for my post on the court's opinion soon), I read the news that the Connecticut group Love Makes A Family is disbanding. Its "core purpose" was achieving marriage for same-sex couples, and., having done that, it is closing up shop. So I guess its name should have been Marriage Makes a Family.
Often when I talk about the ideas in Beyond (Straight and Gay) Marriage, someone says to me that s/he agrees with me but that making marriage matter less should happen after same-sex couples can marry. The folding of this Connecticut group confirms my fears that marriage is the end point for many people and that achieving justice for the same-sex couples who don't marry and for all the gay men and lesbians, and their children, who are not partnered is not on the agenda.
What could this group do to further the well-being of all gay men and lesbians in Connecticut? The list is long, but here's one example -- push for a free, easy-to-use advance directive registry. Now if you get married in Connecticut, your partner can visit you in the hospital and make your health care decisions in an emergency. But what about the unmarried couples and all the unpartnered gay men and lesbians?
Love Makes a Family could become part of a coalition working to ensure that everyone in the state can select the people to make their emergency health care decisions. There are states with model registries (my top nominee is Idaho). They could advocate a law like that in the District of Columbia that gives unmarried/unregistered domestic partners priority decision-making authority and that lets someone farther down the list of priority decisionmakers trump someone higher up the list if that person can demonstrate that he or she knows the patient and the patient's wishes better.
Lesbians and gay men often move away from homophobic relatives and gay-unfriendly cities and towns to more supportive areas of the country, like Connecticut. All of them, not just those who marry, need laws that make it as likely as possible that the person they would pick will be able to visit them in the hospital and make their emergency health care decisions.
I've got more agenda items on my list. Unfortunately, there's no LGBT equality group in Connecticut to discuss them with.
Often when I talk about the ideas in Beyond (Straight and Gay) Marriage, someone says to me that s/he agrees with me but that making marriage matter less should happen after same-sex couples can marry. The folding of this Connecticut group confirms my fears that marriage is the end point for many people and that achieving justice for the same-sex couples who don't marry and for all the gay men and lesbians, and their children, who are not partnered is not on the agenda.
What could this group do to further the well-being of all gay men and lesbians in Connecticut? The list is long, but here's one example -- push for a free, easy-to-use advance directive registry. Now if you get married in Connecticut, your partner can visit you in the hospital and make your health care decisions in an emergency. But what about the unmarried couples and all the unpartnered gay men and lesbians?
Love Makes a Family could become part of a coalition working to ensure that everyone in the state can select the people to make their emergency health care decisions. There are states with model registries (my top nominee is Idaho). They could advocate a law like that in the District of Columbia that gives unmarried/unregistered domestic partners priority decision-making authority and that lets someone farther down the list of priority decisionmakers trump someone higher up the list if that person can demonstrate that he or she knows the patient and the patient's wishes better.
Lesbians and gay men often move away from homophobic relatives and gay-unfriendly cities and towns to more supportive areas of the country, like Connecticut. All of them, not just those who marry, need laws that make it as likely as possible that the person they would pick will be able to visit them in the hospital and make their emergency health care decisions.
I've got more agenda items on my list. Unfortunately, there's no LGBT equality group in Connecticut to discuss them with.
Subscribe to:
Posts (Atom)