The news reports this morning about the circumstances of the conception of Michael Jackson's children are suggesting that the information might impact who gets custody of the children. But that just shows ignorance about the difference between legal parenthood and biology. They do not always go together and there is nothing new about that.
So let's start with what's simple. Debbie Rowe gave birth to the first two children. That makes her their mother under California law. An egg donor who intends to be the parent of a child created using her eggs can also be a parent, but obviously the egg donor in this instance, if there was one, had no such intent. That person, if she exists, also never functioned as a mother, so that avenue for claiming legal parenthood is out. Rowe can relinquish her parental rights if the children are adopted, or a court could terminate her parental rights over her objection if certain statutory criteria are met.
Michael Jackson was married to Debbie Rowe when the children were born. That makes him their father. Nothing new or revolutionary about that. If donor semen was used, and the insemination was performed in a medical facility, the semen donor is not a legal parent. Again, nothing new. These laws have been in place for decades.
As for the third child, Jackson was his father because he brought the child into his home and held him out as his own. That's a basis for presumptive parenthood in California, and a case I blogged on just last week held that this does not have to be a biological parent. And, of course, his name is on the child's birth certificate. Again, the use of donor semen in the child's conception gives no legal status to the man who donated the semen. Surrogacy can result in a child having only a father's name on a birth certificate (as apparently happened here). (Here's a Maryland case with that result). I do suspect that Jackson's lawyer went through a legal process to obtain this result.
Anyway, the press may have an endless appetite for the details of the conception of these children, but none of it has anything to do with their legal parentage. Because of that none of the facts complicate the decision on who gets custody of them. Debbie Rowe can ask for custody of her children and will get some preference, but she will not automatically win. I cannot imagine any judge splitting these three children up, so where the first two go, so goes the youngest. For him, anyone wanting custody is a nonparent, so the best interest of the child standard will govern. But his best interest will almost certainly be with his siblings.
All the talk of sperm donors and DNA testing is sensational and must sell advertisements or it wouldn't be getting air time. Even the supposedly reputable CNN is asking: Who is the father of Michael Jackson's children? But no court will order DNA testing, and the results of any such testing would have no legal meaning. The answer to the question is simple. Michael Jackson was the father of those children. Period.
Tuesday, June 30, 2009
Sunday, June 28, 2009
THIS is when a bio mom is supposed to win
I lament the cases in which legal mothers (biological or adoptive) successfully erase legally unrecognized mothers from their children's lives. The courts that let them get away with this often pretend they are required to do so because the U.S. Constitution protects a parent's right to raise her children.
As my post earlier today indicated, no U.S. Supreme Court tells a state how to define "parent," and California got it exactly right by ruling that a woman who consents to her partner's insemination and then holds the child out as her own is a parent, and should have rights equal to those of the biological mother.
But the arguments about the constitutional rights of parents should not be dismissed, and they are crucially important for lesbian and gay parents. In fact, when I started working on these issues in the mid-1970's, lesbian mothers were at a very real risk of losing custody of their children to their own parents, or to other relatives, who argued that a child should not be raised by a lesbian mother. Perhaps the most highly publicized case of this nature happened in the mid-1990's, when Virginia mom Sharon Bottoms not only lost custody of her son to her mother but was denied any visits with the child in the presence of her partner. (The case was the subject of a made-for-TV movie).
Well a lesbian mother in Indiana won a case this week against her homophobic parents. (Thanks to Art Leonard for his blog post on the case.) The mother's parents objected to the mother's lesbianism and to her new partner's relationship with the child, and eventually the mother denied them all access to the child. This caused them to sue for court-ordered visitation. They were successful at trial, but the appeals court overturned that ruling.
The court found that "confrontations initiated by Grandparents created unnecessary conflict and stress within the family. While they are entitled to their opinions concerning Mother's relationship with [her partner], Grandparents' open hostility toward Mother created an unhealthy environment for [the child]."
And the appeals court ruled that the trial court was legally wrong because it failed to respect...the mother's constitutional right to raise her child!
Over the past 20 years, the biggest challenge in developing the legal basis for continuing the relationship between a child and a legally unrecognized parent has been acknowledging that parents do have constitutional rights and that these rights importantly protect gay, lesbian, bisexual, and transgender parents from the state and from third parties, including grandparents. I do not want those rights diluted. What I want is a definition of parent that accurately reflects the family that two women create when they have a child together...regardless of who gives birth to the child.
As my post earlier today indicated, no U.S. Supreme Court tells a state how to define "parent," and California got it exactly right by ruling that a woman who consents to her partner's insemination and then holds the child out as her own is a parent, and should have rights equal to those of the biological mother.
But the arguments about the constitutional rights of parents should not be dismissed, and they are crucially important for lesbian and gay parents. In fact, when I started working on these issues in the mid-1970's, lesbian mothers were at a very real risk of losing custody of their children to their own parents, or to other relatives, who argued that a child should not be raised by a lesbian mother. Perhaps the most highly publicized case of this nature happened in the mid-1990's, when Virginia mom Sharon Bottoms not only lost custody of her son to her mother but was denied any visits with the child in the presence of her partner. (The case was the subject of a made-for-TV movie).
Well a lesbian mother in Indiana won a case this week against her homophobic parents. (Thanks to Art Leonard for his blog post on the case.) The mother's parents objected to the mother's lesbianism and to her new partner's relationship with the child, and eventually the mother denied them all access to the child. This caused them to sue for court-ordered visitation. They were successful at trial, but the appeals court overturned that ruling.
The court found that "confrontations initiated by Grandparents created unnecessary conflict and stress within the family. While they are entitled to their opinions concerning Mother's relationship with [her partner], Grandparents' open hostility toward Mother created an unhealthy environment for [the child]."
And the appeals court ruled that the trial court was legally wrong because it failed to respect...the mother's constitutional right to raise her child!
Over the past 20 years, the biggest challenge in developing the legal basis for continuing the relationship between a child and a legally unrecognized parent has been acknowledging that parents do have constitutional rights and that these rights importantly protect gay, lesbian, bisexual, and transgender parents from the state and from third parties, including grandparents. I do not want those rights diluted. What I want is a definition of parent that accurately reflects the family that two women create when they have a child together...regardless of who gives birth to the child.
Good news for non-bio moms in California
After my post this week about a dreadful Missouri case, I am especially pleased to report on a terrific case from a California appeals court, although it comes after a biological mom deprived her daughter of her second mom for most of the first five years of her life.
The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).
Then Kristina moved out with Amalia and denied Charisma access to the child.
Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.
I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.
The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.
A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.
The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).
Then Kristina moved out with Amalia and denied Charisma access to the child.
Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.
I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.
The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.
A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.
Friday, June 26, 2009
Beyond (Straight and Gay) Marriage: The Five Minute Version...and the kindle
Haven't read Beyond (Straight and Gay) Marriage? Keep meaning to but you can't seem to make the time? Don't have time to watch one of the many full length book talks you can find on the web, like this one on Book TV?
Well, the folks at The Center in New York City (that's the Lesbian, Gay, Bisexual, & Transgender Community Center for long) have put together a five minute clip of my talk there last spring. Enjoy!
And if it's carrying around the book that has been holding you back, I'm pleased to report that it's now available in a kindle edition.
Well, the folks at The Center in New York City (that's the Lesbian, Gay, Bisexual, & Transgender Community Center for long) have put together a five minute clip of my talk there last spring. Enjoy!
And if it's carrying around the book that has been holding you back, I'm pleased to report that it's now available in a kindle edition.
A "beyond marriage" perspective on the anniversary of Stonewall
Lisa Duggan, an original drafter of the "beyond marriage" vision statement, has a piece in the Nation and appears on today's Democracy Now. In her Democracy Now interview, she is especially eloquent about who the movement for marriage equality leaves out and how thinking more broadly about family and relationship recognition can benefit more LGBT people and be a basis for building real alliances with straight people who also do not live in marital units. Check it out.
Wednesday, June 24, 2009
Missouri court deprives one child of a second mom and the other of child support
The number of states that disregard a child's second mother grows. I don't know whether to scream or cry. I do know that if judges cannot see the family in front of their eyes then the answer lies in changing state statutes to recognize two parents of a child born through donor insemination.
Here is the latest disaster, which adds Missouri to the hall of shame. Leslea and Michelle White (Michelle changed her surname to Leslea's...a heterosexual custom I wish same-sex couples would discard...but I digress) had been together for about 4 years when Michelle gave birth to one child, C.E.W. Two and a half years later, using the same anonymous semen donor, Leslea gave birth to their second child, Z.A.W. When that child was about a year and a half the couple separated and the children went back and forth between the two moms. Some months later, Michelle refused to allow Leslea any contact with C.E.W.
Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.
The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.'s life, let alone C.E.W.'s best interests. In the most offensive line in the opinion, the court rejected Leslea's theories by saying that "neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children." (emphasis added). But of course Leslea is not "any third party." To C.E.W., she is a mother. To the state of Missouri, she is a stranger.
The court also dismissed Leslea's claim for child support from Michelle for Z.A.W. despite Leslea's allegations that the couple explicitly agreed to raise the children of their relationship together and shared the costs of the pregnancy and the childrearing. One judge, of the three on the panel, dissented from this part of the ruling (only!) and would have allowed Leslea the opportunity to prove that she relied on Michelle's agreement to co-parent in deciding to have a child and that therefore Michelle should bear some financial responsibility for the child.
Missouri, like many states, has a statute that says that a husband who consents to his wife's insemination with donor semen is the father of the child she conceives. It's a statute based on the original Uniform Parentage Act written in 1973. As I have written about in several other posts, the latest version of the UPA extends that status to a "man" who consents to a woman's insemination with the intent to parent, and the American Bar Association Model Act Governing Assisted Reproductive Technology extends parentage to an "individual" who consents to a woman's insemination with the intent to parent. That would cover Michelle and Leslea, and the ABA intended exactly that with its model law.
Earlier this week I posted that the Uniform Probate Code definition of a parent-child relationship for purposes of inheritance now includes an "individual" who consents to a biological mother's insemination with the intent to parent.
I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle...where were you?
Here is the latest disaster, which adds Missouri to the hall of shame. Leslea and Michelle White (Michelle changed her surname to Leslea's...a heterosexual custom I wish same-sex couples would discard...but I digress) had been together for about 4 years when Michelle gave birth to one child, C.E.W. Two and a half years later, using the same anonymous semen donor, Leslea gave birth to their second child, Z.A.W. When that child was about a year and a half the couple separated and the children went back and forth between the two moms. Some months later, Michelle refused to allow Leslea any contact with C.E.W.
Leslea filed for shared custody or visitation rights with C.E.W. and for child support for Z.A.W. The trial judge dismissed her case, and yesterday the Missouri Court of Appeals affirmed that dismissal.
The court held that Leslea lacked standing to file an action, so there was no consideration at all of the relationship between Leslea and C.E.W. for the first four years of C.E.W.'s life, let alone C.E.W.'s best interests. In the most offensive line in the opinion, the court rejected Leslea's theories by saying that "neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children." (emphasis added). But of course Leslea is not "any third party." To C.E.W., she is a mother. To the state of Missouri, she is a stranger.
The court also dismissed Leslea's claim for child support from Michelle for Z.A.W. despite Leslea's allegations that the couple explicitly agreed to raise the children of their relationship together and shared the costs of the pregnancy and the childrearing. One judge, of the three on the panel, dissented from this part of the ruling (only!) and would have allowed Leslea the opportunity to prove that she relied on Michelle's agreement to co-parent in deciding to have a child and that therefore Michelle should bear some financial responsibility for the child.
Missouri, like many states, has a statute that says that a husband who consents to his wife's insemination with donor semen is the father of the child she conceives. It's a statute based on the original Uniform Parentage Act written in 1973. As I have written about in several other posts, the latest version of the UPA extends that status to a "man" who consents to a woman's insemination with the intent to parent, and the American Bar Association Model Act Governing Assisted Reproductive Technology extends parentage to an "individual" who consents to a woman's insemination with the intent to parent. That would cover Michelle and Leslea, and the ABA intended exactly that with its model law.
Earlier this week I posted that the Uniform Probate Code definition of a parent-child relationship for purposes of inheritance now includes an "individual" who consents to a biological mother's insemination with the intent to parent.
I continue to believe that our communities need to apply pressure to biological mothers to honor the families they have created. Friends of Michelle...where were you?
Monday, June 22, 2009
Uniform Probate Code recognizes child of assisted reproduction by lesbian couples as child of both moms
Legal parentage matters for lots of reasons. One of those reasons is that it determines whether a parent-child relationship exists for the purpose of inheriting in the absence of a will. So when a lesbian couple has a child together using donor insemination, the legal status of the biological mom's partner determines whether the child will inherit from her if she dies without a will that names the child as a beneficiary. This is one of the many reasons why a couple might do a second parent adoption and why some of us are trying to rewrite parentage statutes so that a biological mother's partner is automatically the legal parent of the child that the two of them plan for together.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)
Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."
Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)
A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.
Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!
Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.
Wednesday, June 17, 2009
Federal government employees can ALREADY use their sick leave to care for partners -- did no one tell Obama that?
Early news says that one of the benefits Obama is extending to gay federal employees is the ability to use their sick leave to care for partners and their children. Well -- news flash! They already have this right.
Federal government employees can use their own sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." Much is made of openly gay OPM head John Berry. Well, it's his department that implements this very policy. Read it here. This definition extends to same-sex partners, but it extends beyond that, to the family relationships that LGBT folks (and straight people) often develop beyond partners.
This policy reflects a deliberate decision to recognize a broad definition of family. The original proposal was much narrower. When OPM adopted this broader definition, it said: "The broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases." (That's from the Final Rule in the December 2, 1994 Federal Register....yes it's been the law since 1994).
What makes me angry about today's action is that it obliterates the importance of defining family broadly when it comes to balancing work and family responsibilities. This week Congress held a hearing on HR 2460, the Healthy Families Act, which would require private employers to provide paid sick leave. Employees would be able to use their leave to care for sick family members...defined exactly as the definition now reads for federal employees.
Gay people don't just have partners and children. We have families beyond that which mirrors heterosexual marriage. Many are estranged from parents or have moved away from their families of origin to communities more accepting of LGBT people. These relationships matter a lot...enough to generate caretaking responsibilities when someone falls ill. The fight for same-sex marriage has in many ways narrowed the discussion of family in the gay community and in the minds of straight allies.
So let's give credit to Clinton's OPM for instituting a truly gay friendly and family friendly sick leave policy for federal employees. Will someone now please tell Obama?
Federal government employees can use their own sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." Much is made of openly gay OPM head John Berry. Well, it's his department that implements this very policy. Read it here. This definition extends to same-sex partners, but it extends beyond that, to the family relationships that LGBT folks (and straight people) often develop beyond partners.
This policy reflects a deliberate decision to recognize a broad definition of family. The original proposal was much narrower. When OPM adopted this broader definition, it said: "The broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases." (That's from the Final Rule in the December 2, 1994 Federal Register....yes it's been the law since 1994).
What makes me angry about today's action is that it obliterates the importance of defining family broadly when it comes to balancing work and family responsibilities. This week Congress held a hearing on HR 2460, the Healthy Families Act, which would require private employers to provide paid sick leave. Employees would be able to use their leave to care for sick family members...defined exactly as the definition now reads for federal employees.
Gay people don't just have partners and children. We have families beyond that which mirrors heterosexual marriage. Many are estranged from parents or have moved away from their families of origin to communities more accepting of LGBT people. These relationships matter a lot...enough to generate caretaking responsibilities when someone falls ill. The fight for same-sex marriage has in many ways narrowed the discussion of family in the gay community and in the minds of straight allies.
So let's give credit to Clinton's OPM for instituting a truly gay friendly and family friendly sick leave policy for federal employees. Will someone now please tell Obama?
Tuesday, June 16, 2009
Beyond (Straight and Gay) Marriage at Dartmouth and on You Tube
I was honored to present this year's Roger S. Aaron Lecture and the Law Day keynote address at Dartmouth College in April. Here it is on You Tube.
In DC, we don't put civil rights up for a vote
Maybe you know that DC is a colony. Congress can write our laws if it wants to. We have no voting representation in Congress. Our license plates say "taxation without representation."
But we know that civil rights for the minority should never be put to the vote of the majority. (Remember that Congress can change our laws whenever it wants, and it has wanted to in the past, but with a Democratic Congress and President it is less likely now).
We also have what may be the most sweeping civil rights law in the country. It is currently unlawful to discriminate on the basis of: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, and place of residence or business of any individual. The original law passed in 1977. (Gender identity was added later, but sexual orientation was always there).
We do have a process for direct democracy here through referendum, but there are some limitations. One is that no proposal that would "authorize discrimination" on a basis contained in our civil rights laws can be the subject of popular vote. This majority minority city, whose leaders in 1977 had been part of the civil rights movement, never wanted a majority to block basic civil rights.
This is why the efforts to put DC's recognition of same-sex marriages performed elsewhere to a popular vote has failed. Yesterday the DC Board of Elections and Ethics ruled that the subject was not proper for a referendum. Read the ruling here.
Two interesting comments on the ruling. The Board considered the fact that we have replaced the gendered words "husband" and "wife" in so many of our laws. Thank you DC Gay and Lesbian Activists Alliance and Bob Summersgill. (GLAA's website has also posted much of the testimony submitted to the DC BOEE.) And the Board disregarded a court ruling from 1995 that held that denial of access to marriage did not violate this very same civil rights law. It reasoned that the decision was based on the conclusion that same-sex marriage didn't exist; marriage was definitionly between one man and one woman. Well, the Board said, it exists now...in several states and countries. So the definitional reasoning from 1995 no longer holds, and denying those married elsewhere of marriage recognition here would, in fact, discriminate against them on the basis of sexual orientation.
The issue will head to DC Superior Court and from there to our appeals court. Meanwhile, barring Congresssional action, our law will go into effect around July 7. Oh, and by the way, I agree with Councilmember Phil Mendelson who has said that it's already the law that such marriages must be recognized. So does the ACLU. Our new statute just makes it clear.
But we know that civil rights for the minority should never be put to the vote of the majority. (Remember that Congress can change our laws whenever it wants, and it has wanted to in the past, but with a Democratic Congress and President it is less likely now).
We also have what may be the most sweeping civil rights law in the country. It is currently unlawful to discriminate on the basis of: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, and place of residence or business of any individual. The original law passed in 1977. (Gender identity was added later, but sexual orientation was always there).
We do have a process for direct democracy here through referendum, but there are some limitations. One is that no proposal that would "authorize discrimination" on a basis contained in our civil rights laws can be the subject of popular vote. This majority minority city, whose leaders in 1977 had been part of the civil rights movement, never wanted a majority to block basic civil rights.
This is why the efforts to put DC's recognition of same-sex marriages performed elsewhere to a popular vote has failed. Yesterday the DC Board of Elections and Ethics ruled that the subject was not proper for a referendum. Read the ruling here.
Two interesting comments on the ruling. The Board considered the fact that we have replaced the gendered words "husband" and "wife" in so many of our laws. Thank you DC Gay and Lesbian Activists Alliance and Bob Summersgill. (GLAA's website has also posted much of the testimony submitted to the DC BOEE.) And the Board disregarded a court ruling from 1995 that held that denial of access to marriage did not violate this very same civil rights law. It reasoned that the decision was based on the conclusion that same-sex marriage didn't exist; marriage was definitionly between one man and one woman. Well, the Board said, it exists now...in several states and countries. So the definitional reasoning from 1995 no longer holds, and denying those married elsewhere of marriage recognition here would, in fact, discriminate against them on the basis of sexual orientation.
The issue will head to DC Superior Court and from there to our appeals court. Meanwhile, barring Congresssional action, our law will go into effect around July 7. Oh, and by the way, I agree with Councilmember Phil Mendelson who has said that it's already the law that such marriages must be recognized. So does the ACLU. Our new statute just makes it clear.
Monday, June 15, 2009
TANF reauthorization next year -- the stakes are high
President Clinton signed "welfare reform" right before the 1996 election; he signed DOMA during the same period. The first reauthorization, during the Bush administration, added the funding of "marriage promotion," which Obama is continuing. The next reauthorization must occur by September 2010.
Now comes an important report from the feminist legal organization Legal Momentum, demonstrating an enormous drop in the number of women and children receiving TANF benefits and a concommitant rise in the number of single-mother families living in extreme poverty. Since 1996, the number of welfare recipients has declined by two-thirds. This is not because "welfare reform" has succeeded in reducing poverty. Rather, there has been a 56% increase in the number of single-mother families with annual incomes less than $3000. When mothers who have left welfare are employed, their average earnings are likely to be less than the poverty level for a family of three.
The safety net has been shredded. There is no longer meaningful federal oversight. If states reduce the amount of money spent on welfare, they can use the surplus in their "block grants" for non-welfare purposes. Caseload reduction brings benefits to the states. These reductions do not have to be tied to any measure of the well-being of poor families.
The 2001 report of the National Gay and Lesbian Task Force remains the best analysis of the connection between "welfare reform" and LGBT people. I hope they get involved during the upcoming reauthorization as well.
Legal Momentum will play a major role in shaping the advocacy around reauthorization. They opposed federal funding of "marriage promotion" before and will oppose it this time around as well. They have formed the EndPovertyNow coalition. To join it, send an email with the subject line "join" to tcasey@legalmomentum.org.
Now comes an important report from the feminist legal organization Legal Momentum, demonstrating an enormous drop in the number of women and children receiving TANF benefits and a concommitant rise in the number of single-mother families living in extreme poverty. Since 1996, the number of welfare recipients has declined by two-thirds. This is not because "welfare reform" has succeeded in reducing poverty. Rather, there has been a 56% increase in the number of single-mother families with annual incomes less than $3000. When mothers who have left welfare are employed, their average earnings are likely to be less than the poverty level for a family of three.
The safety net has been shredded. There is no longer meaningful federal oversight. If states reduce the amount of money spent on welfare, they can use the surplus in their "block grants" for non-welfare purposes. Caseload reduction brings benefits to the states. These reductions do not have to be tied to any measure of the well-being of poor families.
The 2001 report of the National Gay and Lesbian Task Force remains the best analysis of the connection between "welfare reform" and LGBT people. I hope they get involved during the upcoming reauthorization as well.
Legal Momentum will play a major role in shaping the advocacy around reauthorization. They opposed federal funding of "marriage promotion" before and will oppose it this time around as well. They have formed the EndPovertyNow coalition. To join it, send an email with the subject line "join" to tcasey@legalmomentum.org.
Friday, June 12, 2009
Louisiana court deprives child of her second mom
Add Louisiana to the list of states willing to deprive a child of her mother...and her brother. This week the Louisiana Third Circuit Court of Appeal ruled in Black v. Simms that Kimberlee Black is not entitled to joint custody of Braelyn, the child that she co-raised for six years. (Her parents helped raise the child, too, as the couple and their children lived with Black's parents for about two years.) That effectively deprives Braelyn of contact with her younger brother, Eli, who is Black's biological child.
Both children were born to Black and her partner, Kimberly Simms, using donor semen. The court refers only to Braelyn's biological mom, Simms, as Braelyn's parent. That makes Black a non-parent who had to prove "substantial harm" to Braelyn from full custody with her biological mother. The court said, "Plain and simple, Ms. Simms is the mother of Braelyn and has the right to direct how Braelyn is raised." That includes eliminating Black and Eli from the child's life.
The court-ordered counselor testified that Braelyn believed she had two mothers and that Braelyn's "view of dependability and predictably would be threatened if she did not reestablish her relationship with her psychological family." But the court goes on to say that the counselor "did admit that a parent is not unfit because they decide that a child can no longer associate with a family friend that has been close to the family for years." (emphasis mine).
Family friend? Is that how the court would refer to the husband of a woman giving birth using donor semen? Of course not! See my post here for the type of laws we need to keep this from happening. In the mean time, the Braelyns of this world suffer from the unwillingness of courts to see the families that lesbian couples create.
Both children were born to Black and her partner, Kimberly Simms, using donor semen. The court refers only to Braelyn's biological mom, Simms, as Braelyn's parent. That makes Black a non-parent who had to prove "substantial harm" to Braelyn from full custody with her biological mother. The court said, "Plain and simple, Ms. Simms is the mother of Braelyn and has the right to direct how Braelyn is raised." That includes eliminating Black and Eli from the child's life.
The court-ordered counselor testified that Braelyn believed she had two mothers and that Braelyn's "view of dependability and predictably would be threatened if she did not reestablish her relationship with her psychological family." But the court goes on to say that the counselor "did admit that a parent is not unfit because they decide that a child can no longer associate with a family friend that has been close to the family for years." (emphasis mine).
Family friend? Is that how the court would refer to the husband of a woman giving birth using donor semen? Of course not! See my post here for the type of laws we need to keep this from happening. In the mean time, the Braelyns of this world suffer from the unwillingness of courts to see the families that lesbian couples create.
Saturday, June 6, 2009
LGBT rights -- and comments on Israeli-Palestinian conflct -- at Tel Aviv conference
Earlier this week, Tel Aviv University was the site of the 9th annual queer studies conference An Other Sex. I was honored to deliver a keynote on my book.
Israel has a distinctive legal regime within which to consider same-sex relationships. There is no civil marriage in Israel, only religious marriage. This keeps many straight couples from marrying because, for example, a Jew cannot marry a non-Jew. So there has been pressure for years for different-sex couples to not make marriage the dividing line between relationships that count and those that don't.
Israel recognizes the legal status of those "known in public" as spouses. It also allows couples to register foreign marriages (they say Cyprus does a thriving business marrying different-sex couples who can't marry in Israel). Because of this (after much litigation), Israel will register the marriages of same-sex couples who marry elsewhere and will recognize same-sex unmarried couples in ways that are similar to those accorded unmarried different-sex couples.
There is a push for civil marriage here -- but it would be for different-sex couples only. So this is not a good thing for lesbian and gay families.
Tel Aviv University law professor Aeyal Gross gave comments after my talk. He opposes the fight to same-sex marriage for many reasons. He believes that same-sex marriage stigmatizes those who don't marry and who have "less or more" than one partner. He believes it reinforces the privileging of marriage, creates pressure to marry, subordinates sexual liberty, and excludes those without a partner even more than today's construct.
In my book, I say that if marriage was not the dividing line between relationships the law counts and those it doesn't then marriage would be a real choice. (I say it is a choice in Canada because no couple has to marry there for legal consequences, even though both straight and gay couples can marry). Aeyal Gross questions whether marriage will really be a choice given the pressure it will produce. He supports ending state marriage. He says he has some sympathy for civil unions or civil partnerships.
I support renaming the official status for all couples "civil partnership." I did not think of this as the same as abolishing marriage, but as I said in a previous post, many American marriage equality activists object to this and consider it no different from abolishing marriage. I now think that Aeyal and I are not far apart and that we are both quite distant from the marriage equality party line about the imperative of keeping the label "marriage" as part of civil law for gay and straight couples.
In my talk at the conference, I read excerpts from the California marriage briefs filed by gay rights groups extolling the word "marriage." (For my post on this, read here). There were audible gasps of disbelief from the audience.
I have often heard that it is more accepted to criticize the Israeli government in Israel than it is in the US. I wouldn't know how to quantify either exactly, but criticism of the Israel government policy towards Palestinians was woven into remarks and questions at this queer theory conference. One speaker compared the resistance by the marginalized queers who rebelled at Stonewall to resistance against the Israeli occupation of Palestinian territories. Another spoke out against bills now pending in the Knesset. One would require as a condition of citizenship a "pledge of allegiance" to Israel as a Jewish state. Another would make it unlawful to observe what the state of Israel calls Israeli Independence Day as a day of commemoration of the Nkaba (translated "catastrophe") which is how the Palestinians view it. One audience member began a question to me about the politics of supporting surrogacy for gay men (where multiple oppresions may be involved) with a comparison of the question she was about to ask me to the question of whether a person who is a Jewish settler in the West Bank can be considered a feminist.
All in all, an amazing experience.
Israel has a distinctive legal regime within which to consider same-sex relationships. There is no civil marriage in Israel, only religious marriage. This keeps many straight couples from marrying because, for example, a Jew cannot marry a non-Jew. So there has been pressure for years for different-sex couples to not make marriage the dividing line between relationships that count and those that don't.
Israel recognizes the legal status of those "known in public" as spouses. It also allows couples to register foreign marriages (they say Cyprus does a thriving business marrying different-sex couples who can't marry in Israel). Because of this (after much litigation), Israel will register the marriages of same-sex couples who marry elsewhere and will recognize same-sex unmarried couples in ways that are similar to those accorded unmarried different-sex couples.
There is a push for civil marriage here -- but it would be for different-sex couples only. So this is not a good thing for lesbian and gay families.
Tel Aviv University law professor Aeyal Gross gave comments after my talk. He opposes the fight to same-sex marriage for many reasons. He believes that same-sex marriage stigmatizes those who don't marry and who have "less or more" than one partner. He believes it reinforces the privileging of marriage, creates pressure to marry, subordinates sexual liberty, and excludes those without a partner even more than today's construct.
In my book, I say that if marriage was not the dividing line between relationships the law counts and those it doesn't then marriage would be a real choice. (I say it is a choice in Canada because no couple has to marry there for legal consequences, even though both straight and gay couples can marry). Aeyal Gross questions whether marriage will really be a choice given the pressure it will produce. He supports ending state marriage. He says he has some sympathy for civil unions or civil partnerships.
I support renaming the official status for all couples "civil partnership." I did not think of this as the same as abolishing marriage, but as I said in a previous post, many American marriage equality activists object to this and consider it no different from abolishing marriage. I now think that Aeyal and I are not far apart and that we are both quite distant from the marriage equality party line about the imperative of keeping the label "marriage" as part of civil law for gay and straight couples.
In my talk at the conference, I read excerpts from the California marriage briefs filed by gay rights groups extolling the word "marriage." (For my post on this, read here). There were audible gasps of disbelief from the audience.
I have often heard that it is more accepted to criticize the Israeli government in Israel than it is in the US. I wouldn't know how to quantify either exactly, but criticism of the Israel government policy towards Palestinians was woven into remarks and questions at this queer theory conference. One speaker compared the resistance by the marginalized queers who rebelled at Stonewall to resistance against the Israeli occupation of Palestinian territories. Another spoke out against bills now pending in the Knesset. One would require as a condition of citizenship a "pledge of allegiance" to Israel as a Jewish state. Another would make it unlawful to observe what the state of Israel calls Israeli Independence Day as a day of commemoration of the Nkaba (translated "catastrophe") which is how the Palestinians view it. One audience member began a question to me about the politics of supporting surrogacy for gay men (where multiple oppresions may be involved) with a comparison of the question she was about to ask me to the question of whether a person who is a Jewish settler in the West Bank can be considered a feminist.
All in all, an amazing experience.
Friday, June 5, 2009
Pressure needed to end federal funding of marriage promotion
Thanks to Dana Rudolph for pointing out this article on Obama's continued funding of marriage promotion. The article, by Amy DePaul, quotes with no attribution from a letter I wrote on behalf of several opponents of continued funding. My blog about the letter, with a link to it, is here. Obama's 2010 budget eliminates abstinence-only sex education, but there is a huge overlap between the groups receiving that funding and those getting marriage promotion funds. Considering the GAO report documenting poor oversight of the use of marriage promotion funds, there's reason to fear misdirection of those funds.
If Obama won't eliminate these funds it will be up to Congress to act, especially when TANF comes up for reauthorization next year. Expect the feminist group Legal Momentum to play a big role (good contact there: Tim Casey). Also, the Alternatives to Marriage Project will weigh in as much as they can. Support these groups and urge them to do as much as they can. But it's equally important to make sure that LGBT groups weigh in. They may like marriage, but they can't like the well-documented anti-gay bias of these efforts. I fear that many LGBT groups won't want to appear anti-marriage. Forget that. I don't want federal funding to promote same-sex marriage anymore than I want it for different-sex marriage. I think the LBGT groups have a real role to play here, if they will just step up and be heard.
If Obama won't eliminate these funds it will be up to Congress to act, especially when TANF comes up for reauthorization next year. Expect the feminist group Legal Momentum to play a big role (good contact there: Tim Casey). Also, the Alternatives to Marriage Project will weigh in as much as they can. Support these groups and urge them to do as much as they can. But it's equally important to make sure that LGBT groups weigh in. They may like marriage, but they can't like the well-documented anti-gay bias of these efforts. I fear that many LGBT groups won't want to appear anti-marriage. Forget that. I don't want federal funding to promote same-sex marriage anymore than I want it for different-sex marriage. I think the LBGT groups have a real role to play here, if they will just step up and be heard.
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