New York court again hurts children of lesbian parents

Since the disgraceful case of Alison D. almost 20 years ago, New York courts have closed their doors to nonbiological mothers seeking visitation rights with their child after the couple splits up. Doesn't matter if the child knows she has two moms; New York law says she doesn't. The only exception is when the nonbio mom completes a second-parent adoption. Of course that's the best protection for all gay families, but it costs lots of money and takes time, so many couples don't do it.

Well, now comes the flip side of this dreadful approach to our families. A New York appeals court has held that a nonbio mom cannot be required to pay child support. In H.M. v. E.T., the couple had a child when H.M. became pregnant using unknown donor insemination. After the couple split up, H.M. filed for child support. The court ruling, which incurred a strong dissent, said that the court could only hear paternity cases, not those involving determinations of maternity.

Courts do have the doctrine necessary to do right in these cases, and many states have. But the surest way is a legislative fix. The American Bar Association Model Act Governing Assisted Reproductive Technology says that a person who consents to a woman's insemination with the intent to be a parent of the child is a parent. New Mexico adopted this language earlier this year. D.C. is on its way to doing so.

I know the legislative action in New York is all about marriage. But 40 years ago the US Supreme Court ruled that children born outside marriage should not face discrimination. A child of heterosexual unmarried parents is entitled to the same relationship with and support from both parents as a child of heterosexual married parents. We've got to have the same result for our children, even if same-sex couples can marry.

Anyone listening?

Prop 8 stands. Now what?

Thanks to Yasmin Nair at Bilerico for saying so much of what I was thinking about where we go after the California Supreme Court ruling upholding Prop 8.

Don't get me wrong. I feel for the advocates who devoted so much time to this effort. The defeat is painful. But that says nothing about the way forward.

I gave money -- more than once -- to defeat Prop 8. I saw it as an attack on me and on all LGBT people, as I noted in this post. But I resent the efforts to place a pro-gay marriage initiative on the California ballot and force the issue to the forefront of public attention again. Californians don't have equality, but they have the legal protection of domestic partnership. How about we improve the quality of life for LGBT people elsewhere?

I've got a long list of priorities. Marriage in California isn't anywhere on the list. I'm encouraging everyone I know not to fund this effort. Support Family Equality, which advocates for all LGBT families. Support Equality Florida in its efforts to end the ban on adoption by gay men and lesbians there. Support the work of the Alternatives to Marriage Project which is fighting for a health care decisionmaking law designed to further the autonomy of all people, not only those who marry or enter formal civil unions.

But not another cent for marriage in California. Not now and not soon.

SEIU resolution values all families

Service Employees International Union (SEIU) has been reading my book, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law

Here is the full text of Resolution # 109 Adopted at the 2008 SEIU Convention

Valuing All Families

Members of SEIU work hard every day to provide for their families and build for them a better future. Our members’ love of and commitment to their families reflect true family values.

Members of SEIU live in a broad array of family structures. Many of us care for and live with family members– including aging parents, grandchildren, adult siblings, and more – who are not recognized by our employers or our government as “family” because they are not related to us by marriage, blood or adoption.

Laws and policies that narrowly define “family” as limited to two legally-married adults of the opposite sex raising their biological children are often used against immigrants, people of color and the working poor who are more likely to live in family structures that differ from this model.

Narrow definitions of family exclude many relationships that our members call family, including relationships with individuals for whom we have primary care-taking responsibility and relationships with individuals with whom we share economic and emotional interdependence.

Government and employer-provided benefits should support individuals with day-to-day responsibilities to care for and financially support minor children and dependent adults in all family forms, and should protect interdependent adult relationships.

Therefore be it resolved:

This convention affirms SEIU’s commitment to valuing all families, and to protecting the widest possible range of family structures.

SEIU will make it a collective bargaining and legislative goal to ensure that all of our members’ families are respected, protected, and enjoy equal rights and benefits.

SEIU will support and advocate for legislative efforts, at all levels of government, that allow workers to define for themselves who will be considered their family.

SEIU will oppose efforts to penalize working people who live in family structures different from the nuclear family model, such as “overcrowding” regulations that seek to restrict who is permitted to live together in one household and have been used to target immigrant communities and communities of color.

Thanks for Nicole Berner, SEIU Associate General Counsel, for bringing this to my attention (and telling me it was based on my book). Berner notes that this resolution allows SEIU to take positions consistent with the resolution without the need for further consideration or action. Thanks also to SEIU General Counsel Judith Scott for her decades of devotion to the labor movement.

Same-sex and different-sex domestic partners of foreign service personnel to receive benefits

The Advocate has printed the draft of a letter by Secretary of State Hillary Clinton detailing the extension of benefits to the domestic partners of foreign service personnel assigned abroad. In describing the letter, the Advocate article begins by saying it "details her intentions to extend certain benefits to same-sex partners of foreign service officers posted abroad."

This characterization of Clinton's letter is true, but it is also incomplete. The benefits will be extended to both same-sex AND different-sex domestic partners. Clinton's letter says, "At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do." The Advocate article gets to this at the end of its fourth paragraph.

While granting benefits to same-sex partners is huge, granting them to different-sex partners is monumental. The original concept of domestic partnership, dating to the early 1980's, was that marriage should not be a prerequisite for various legal consequences. The first domestic partner employee policies covered both gay and straight couples.

Over time, the right wing started blaming all social problems on the decline of life-long heterosexual marriage, and "marriage promotion" became a staple of public policy. And the gay rights movement made achieving access to marriage a priority. In this context, many employers chose to provide domestic partner benefits only to same-sex couples. Since different-sex couples could marry, they had to marry to obtain the benefits. By this thinking, domestic partner benefits existed solely to compensate gay employees for the inability to marry. With such a rationale, no wonder several Massachusetts employers stopped offering domestic partner benefits once same-sex couples there could marry.

In an earlier post on Senate hearings on extending same-sex domestic partner benefits to all federal employees, I noted that Maine Senator Susan Collins spoke favorably about covering both different-sex and same-sex couples. I hope that Clinton's decision gives a needed push to this more inclusive approach.

Same-sex marriage proponents often say they want couples to have the choice to marry. But it's no choice if it's the only path to protecting the economic security of an employee's family. Thank you, Secretary Clinton, for really getting it.

Next I'll be looking at these important details when the policy is released: how is domestic partner defined, and when can an employee obtain benefits for children who are the legal children only of the partner? Stay tuned.

Marriage won't get parental rights for Cynthia Nixon's partner

Thanks to Dana Rudolph at Mombian to pointing out to me that Cynthia Nixon thinks her upcoming marriage to Christine Marinoni will give Christine a legal right to a relationship with the children Cynthia had with Danny Mozes. After Ellen reported that at a rally last Sunday in New York, Nixon announced her engagement to Marinoni and called for the right to marry in New York, noting that Marinoni is a stay-at-home mom but currently has no legal right to the children if Nixon dies.

It sounds to me like Nixon is under the impression that Marinoni will have such legal rights after they marry, but this isn't true. Marinoni will become a stepparent, but in New York -- and many places (maybe most) -- stepparents don't have rights to custody or visitation. If Nixon dies, the children would go to their father, and he would decide how much time, if any, Marinoni could spend with the children.

Advocates in NY have been trying for years to overturn a terrible 1991 court decision defining "parent" so narrowly that a biological mom could totally block access between her former partner and her biological child, even though the former partner had totally functioned as a parent to the child with the bio mom's consent. That opinion was later used to justify denying a stepfather access to his stepchildren. (Thanks to New York lawyer Michele Kahn for confirming this for me.) But even if that case is overruled, the principle involved concerns two co-parents, not a child who has two parents and then gains another parental figure -- stepparent or otherwise.

If Nixon's children did not have another parent, Marinoni could adopt them, and she could do that regardless of whether she and Nixon married. She could also adopt them if Mozes agreed to terminate his parental rights, but that's not the situation here. Again, Nixon and Marinoni would not have to be married.

Marriage and legal parenthood are two distinct things. If Cynthia Nixon is confused about this, I bet lots of folks are.

Remember this about Washington state law when the Governor signs Domestic Partnership bills on Monday

On Monday, May 18, Governor Gregoire will be signing the bills expanding domestic partnership in Washington state. Once the provisions go into effect (some --the ones that cost the state the most money-- are not effective until 2014!), registered domestic partners in Washington will have all the state-based consequences of marriage. The Washington approach mirrors that of California's domestic partnership laws.

This is a good time to note a way in which Washington state is unique in the US. Both married and unmarried couples (different-sex and same-sex) get the same rules of property division when they split up. By virtue of a number of state supreme court opinions, community property principles apply to the breakup of cohabiting couples even if they have not married.

The American Law Institute recommended almost a decade ago, in its Principles of the Law of Family Dissolution, that the financial consequences of ending a domestic partnership and ending a marriage should be the same. They used Washington state as one of their models. (Australia has such rules as well).

To me, this is a no-brainer. The division of property always looks backwards at how the couple lived. A court can do that just as easily for an unmarried couple as for a married couple. The reason we don't apply general contracts and property law to divorces is that special rules are needed to prevent injustice; a spouse may act for the common good of the family or household, and without special rules (s)he could be left with nothing. Well the same holds true for unmarried partners, and they deserve justice as well.

Consider this fact, which continues to amaze me: In British Columbia, in 1972, the courts ruled that when an unmarried couple splits up one partner can be required when appropriate to provide some ongoing financial support to the other partner. More than thirty-five years later, not a single American state has such a rule. Even Washington state. But at least they have gone part of the distance towars recognizing that marriage (and now registration as domestic partners) shouldn't be the dividing line between relationships that count and those that don't.

More opposition to Leah Sears

I was shocked at the Washington Post's above the fold front-page story last Sunday about Georgia Supreme Court Justice Leah Sears as a possible nominee for the US Supreme Court. I have blogged twice in the past about Justice Sears's unsuitability.

I sent a letter to the Post, which they did not publish, so I'm posting it here:

Leah Sears doesn’t belong on the US Supreme Court, and it’s not because of her relationship with Justice Clarence Thomas (Front page, May 10, 2009). It’s because she used her position as Chief Justice of the Georgia Supreme Court to further an ideological position that bodes ill for her judgment. Justice Sears is a board member of the Institute for American Values, an organization whose publications consistently argue that family forms other than a married mother and father threaten child well-being and the very fabric of society. Last year, she arranged for the Georgia Supreme Court to co-host a two-day, public conference with IAV, thus giving an official, state imprimatur to a highly contested viewpoint with enormous implications for public policy. The conference excluded eminent researchers and academics whose views diverge from those of IAV about what causes bad child outcomes and where to look for solutions. The program was dominated by opponents of gay and lesbian parents and/or marriage for same-sex couples. Justice Sears had no business aligning her court with one side of a controversial family policy agenda. That disqualifies her from serving on the US Supreme Court.

Georgia Equality spoke out against Justice Sears today because she is planning to "join" the Institute for American Values when she leaves the court, but she is already a board member of the organization, so I would say she joined them long ago! Thank you, Jeff Graham of Georgia Equality, for getting great press coverage on why Justice Sears does not belong on the Supreme Court.

Florida recognizes second-parent adoption from elsewhere

There's little I hate more in our community than a lesbian mom who creates a two-mother family and later decides to pretend there was only one mother. Well today Florida, of all places, has ruled that she can't -- not when she allowed the other mom to adopt the child in another state. Even though Florida does not allow even one gay person to adopt, let alone a second-parent adoption, the Florida Court of Appeals ruled unanimously today that Florida must give "full faith and credit" to adoption decrees from other states. The trial judge had refused to recognize the adoption, but the appeals court ruled that there is no public policy exception to the Full Faith and Credit clause of the Constitution when it comes to judgments of other states -- including adoption judgments. Congratulations to National Center for Lesbian Rights on a great win!

DC City Council votes 12-1 to recognize same-sex marriages from elsewhere

Congress will soon be thinking about same-sex marriage, whether we or they like it or not. The DC City Council today passed Bill 18-10 which requires the District of Columbia to recognize the validity of same-sex marriages that are valid where performed. The bill goes to the desk of Mayor Adrian Fenty, who will sign it, and from there to Congress for the mandatory 30-day legislative period during which Congress can disapprove it. Or, as is more likely for procedural reasons, Congress can just pass its own law during that time disallowing DC's recognition of same-sex marriages.


So which will it be? Will Congress respect self-government for DC (we call it "home rule")? Or will they wield the power they have to write our laws in order to score political points with anti-gay contingents in their states? It could get ugly.

I've summarized the statements made by the councilmembers, including former Mayor Marion Barry, the only one to vote against it. You can read them here. But I want to emphasize something from the statement made by openly gay Councilmember David Catania. He referred to the many documents he and his partner had to have--wills, powers of attorney, medical powers of attorney. He even said he was tempted to bring them. He said he was blessed because many families can't afford the cost of going to a lawyer to get those documents.

This really bothered me. DC already recognizes domestic partners, so anyone who enters a DP here is treated the same as a spouse for all the purposes to which Catania was referring. The argument for marriage equality is for equality, and using a different name (like domestic partnership) for same-sex couples is unequal and therefore wrong. But when the tangible benefits such as the right to make medical decisions, inherit without a will, make financial decisions, etc are the same, it's misleading to suggest otherwise.


Why not stick with the arguments about equality and justice? Was Catania afraid those weren't good enough, that he had to imply a lack of legal rights even though he and his partner, and any other DC couple, can get those rights by registering---and thereby not need expensive lawyers?


And the reference to medical power of attorney disturbed me for another reason. DC has a terrific law on surrogate medical decisionmaking. It gives domestic partners who have not registered the right to make decisions. Like New Mexico's law, it recognizes that when two people live together in a committed relationship, they are likely to want each other to make their medical decisions, whether they have registered that relationship or not. And since the point of selecting a person to make these decisions is to select the person that the patient would have selected if she had a written designation, it makes sense to put an intimate partner at the top of the list.

But DC's law has another critical component. It puts a "close friend" on the list of those authorized to make decisions, as do about 20 other states (and model laws). Like the others, it puts that category after priority given to various relatives. But...and here is the fabulous part...the DC statute gives someone lower on the list the ability to challenge the decision of someone higher on the list if that person can show that he or she knows the patient's wishes better. It might mean a court fight (Terri Shiavo shows us that even spouses and parents can wind up in court), but at least it is a mechanism designed to produce the decision the patient would want. I love that law and offer it as a model to other states.

I have been very critical of arguing for marriage equality using the medical decisionmaking example. ALL LGBT people (and straight people for that matter) share an interest in having the person they want make medical decisions. For unpartnered gay folks, they may well not want a parent or sibling to have that power, especially if there is estrangement. And the two studies I've found on who is chosen as a surrogate medical decisionmaker show that married straight people OFTEN do not pick their spouses (33% and 50%). So we need easy to use advance health care directive registries. Read what I wrote about them here.

I'm hoping the DC City Council will put that on its agenda. Meanwhile, I'm proud of my city for supporting equality, and I'm just as proud that they have the best surrogate medical decisionmaking law in the country.

Why I will miss Justice Souter

In 1987, less than a year after the Supreme Court decided Bowers v. Hardwick, then New Hampshire Supreme Court Justice David Souter joined four other justices in declaring constitutional the state's ban on adoption and foster parenting by gay men and lesbians.

The state said its reason for the law was the importance of providing "appropriate role models" for children. The court found that excluding gay men and lesbians from fostering and adopting would further that goal because "the source of sexual orientation is still inadequately understood and is thought to be a combination of genetic and environmental influences" and "given the reasonable possibility of environmental influences, we believe that the legislature can rationally act on the theory that a role model can influence the child's developing sexual identity."

In other words, a gay foster or adoptive parent might make a child gay. The court rejected research to the contrary. And, the court so took for granted that this would be a bad thing that it did not even say that it would be a bad thing. The court did struck down a provision of the law that banned gay men and lesbians from operating child care facilities.

There was a dissent that would have found the entire statute unconstitutional, so Justice Souter clearly knew the arguments on that side.

So gay rights advocates had reason to fear Justice Souter when he joined the US Supreme Court in 1990. Instead, Souter has been a reliable vote for gay rights.

It proves that people can learn and change. I think of the many people in my life whose views of homosexuality changed dramatically as they became more familiar with gay people and our lives. (My father was certainly in that category). Unfortunately, more recent conservative appointments to the Court have been vetted in a way that suggests no possibility for change at all.

But Justice Souter proves it's possible. I have every reason to believe he would vote differently on the issue of gay adoptive and foster parents today.

New Hampshire repealed its ban in 1999.