The US Justice Department filed a memorandum in support of a motion to dismiss today in Commonwealth of Massachusetts v. United States, the lawsuit brought by Massachusetts arguing that the Defense of Marriage Act is unconstitutional. This lawsuit complements the one brought by GLAD on behalf of several named plaintiffs.
The Justice Department memorandum reiterates that the administration supports repeal of DOMA but must nonetheless defend its constitutionality. It makes no explicit argument that sexual orientation is not a suspect classification entitled to heightened Equal Protection scrutiny; rather it says that the court is bound by a First Circuit US Court of Appeals ruling to that effect. I confess that my aggravation with the memorandum was tempered, as I read it, with the knowledge that any such document filed by a Republican administration would say vile and offensive things about us. By that measure, this is surely an improvement.
And the administration once again took the opportunity to distant itself from assertions that we are bad parents. Here's the footnote in full (check out how the government says the Scalia dissent in Lawrence, meant to scare everyone into thinking that decriminalizing sodomy would lead to same-sex marriage, is essentially correct!):
In this case, the government does not rely on certain purported interests set forth in the legislative history of DOMA, including the purported interests in “responsible procreation and child-rearing” -- that is, the assertions that (1) the government’s interest in “responsible procreation” justifies limiting marriage to a union between one man and one woman, and (2) that the government has an interest in promoting the raising of children by both of their biological parents. See H.R. Rep. No. 104-664, at 12-13, reprinted in 1996 U.S.C.C.A.N. at 2916-17. Since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See American Academy of Pediatrics, http://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement); American Psychological Association, http://www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement); American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/cs/root/policystatements/gaylesbiantransgenderandbisexualparentspolicystatement (June 1999 policy statement); American Medical Association, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of America, http://www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults).
Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because “the sterile and the elderly are allowed to marry.” Thus, the government does not believe that DOMA can be justified by interests in “responsible procreation” or “child-rearing.”
Friday, October 30, 2009
Tuesday, October 27, 2009
It's looking good for removing the domestic partner "sunset" provision from the DC marriage equality bill
If I were a betting woman, I'd say there will be no mention of ending domestic partnership in the marriage equality bill that goes through the DC City Council.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
The first panel of witnesses at yesterday's hearing on marriage equality in DC included Bob Summersgill and Rick Rosendall, the two people most responsible for strengthening the domestic partnership laws in DC during this decade. Both testified that domestic partnerships should not be eliminated in this bill. In response to a question from Council Member Muriel Bowser about whether domestic partnership should be ended, Bob Summersgill said "not now" and also that we should think carefully about taking a status away from people who can’t marry even after this bill. Rick Rosendall made a point of saying that there was no rift between his position and that of Council Member Catania, that the two of them had chatted, and that both support equality for all DC families.
The issue came up later in the questioning of Michele Zavos, a long-time practicing attorney in DC who probably has had more gay and lesbian clients in family law matters than anyone in the city. (Hey, she was my lawyer when I adopted my daughter 26 years ago!) Michele testified passionately about the desire of her clients to marry where they live rather than in distant states and about the lesser legitimacy many attach to domestic partnership. She also expressed her own outrage that her 24 year old daughter could marry her boyfriend but she (Michele) could not marry the partner who had cared for her through two bouts of cancer. When CM Bowser asked her about domestic partnership, Michele also said the Council should wait on this, and she noted the history of marriage as an institution that oppressed women and the importance of providing a alternative choice.
At this point, the bill's chief sponsor, Council Member David Catania, did express his willingness to wait on the domestic partnership issue, but he also put on the record some statistics about the tiny number of different-sex couples who have registered in the places he stated were the three jurisdictions permitting such registration -- DC, Maine, and Hawaii. I'm thrilled to hear that he's willing to address domestic partnership at a later time, and hopefully I'll have a chance to discuss with him the numbers he put on the record. First, Hawaii doesn't allow different-sex couples to register at all, so I truly don't know how he could have statistics about how many different-sex couples have registered! Hawaii extends its reciprocal beneficiary status only to those who cannot marry. So the only different-sex persons who can register are relatives prohibited by incest laws from marrying each other. But neither CM Catania nor CM Bowser seemed to know that our DP law extends to "non-couples," including relatives. I mean maybe they do know it, but all either of them referred to was same-sex and different-sex couples. (CM Catania also missed a number of other places that allow registration beyond same-sex couples, all of which I listed in my testimony).
Committee chair Phil Mendelson suggested to Michele Zavos that he sees domestic partnership as like a contractual relationship and that the question for him was whether we wanted to have a relationship defined in that way. For me, it was an interesting window into what he might be thinking. Colorado's designated beneficiary relationship is more akin to a contract than a typical domestic partnership, so maybe DC will move in that direction once we have marriage equality. In any event it seemed unlikely that CM Mendelson would want to address domestic partnership in this bill.
Which gets me to my testimony. CM Bowser left in the middle of the panel before mine. I popped up as I saw her gather her things and handed her a copy of my testimony with a quick comment that it was about the DP issue. I'll try to follow up with her. CM Catania was there while I testified but asked nothing; neither did CM Mendelson. It was well passed 7 pm and they were only halfway through the witness list, so I certainly didn't take it personally.
Plus I'm thrilled to see that the AP report on the hearing notes the opposition to ending domestic partnership at this time and CM Catania's willingness to reconsider this issue.
Monday, October 26, 2009
Several witnesses will urge DC to retain domestic partnerships
Hearings on the bill to grant marriage equality in the District of Columbia begin today. So many people signed up to testify that the Committee on Public Safety and the Judiciary, chaired by Councilmember Phil Mendelson, has already announced that it will hear the first 100 today and the remaining ones next Monday.
I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:
Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.
This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.
I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.
I'll be posting about today's hearing later.
I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:
From its inception in 1992, the status of domestic partnership in DC was about recognizing family relationships other than marriage. Unlike some jurisdictions, it was not a status granted only to same-sex couples and only because of their exclusion from marriage. Not only can different-sex unmarried couples register, but two people not in a romantic couple, including relatives, can register if they live together in a “committed, familial relationship.” Availability of marriage for same-sex couples, as a statement of the equal value of gay and straight relationships, does not diminish the appropriateness of providing a legal status to those who do not marry...
Once DC authorizes marriage for same-sex couples, it will be appropriate to reevaluate DC relationship recognition law. That work must include considering the needs of the wide range of family relationships that exist in this city – the very motivation for instituting domestic partnership in 1992. This is a critical undertaking, and we have numerous models to consider.
Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.
This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.
I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.
I'll be posting about today's hearing later.
Tuesday, October 20, 2009
Two thoughtful commentaries/critiques about marriage for same-sex couples...and its limitations
So many people have emailed me the blogpost by "Queer Kids of Queer Parents Against Gay Marriage!" that I feel a need to point it out to any of my readers who have yet to see it. The variety of comments following the post suggest the authors have touched quite a nerve. It merited a link in Melissa Harris-Lacewell's post on The Nation website. (I LOVE her on Rachel Maddow!)
Harris-Lacewell succeeds in walking a very fine line. She supports marriage equality for same-sex couples but offers a critique of marriage itself. "Our work," she writes, "must be not just about marriage equality, it should also be about equal marriages, and about equal rights and security for those who opt out of marriage altogether." Identifying herself as a black, feminist, marriage equailty advocate, she writes that movement work "must be staunchly supportive of same-sex marriage, while rejecting the marriage-normative framework that silences the contributions of queer life." It is precisely such contributions that the "queer kids..." blog (above) seek to illuminate.
I also loved learning from Harris-Lacewell's post about a new history of slave marriages that concludes that such marriages were real, even though they were not recognized by law.
Harris-Lacewell's final call echoes the imperative of the Beyond Marriage statement written more than three years ago, as well as the guiding principle of my book.
We must do more than simply integrate new groups into an old system. Let's use this moment to re-imagine marriage and marriage-free options for building families, rearing children, crafting communities, and distributing public goods.
This is precisely the work that the mainstream marriage-equality movement refrains from doing. As Harris-Lacewell points out, the pragmatic political strategy is insisting that allowing same-sex couples to marry will not change marriage. But it's a strategy that comes with too high a price tag, and the voices within and without the gay rights movement seeking to make marriage matter less need to speak out more.
Harris-Lacewell succeeds in walking a very fine line. She supports marriage equality for same-sex couples but offers a critique of marriage itself. "Our work," she writes, "must be not just about marriage equality, it should also be about equal marriages, and about equal rights and security for those who opt out of marriage altogether." Identifying herself as a black, feminist, marriage equailty advocate, she writes that movement work "must be staunchly supportive of same-sex marriage, while rejecting the marriage-normative framework that silences the contributions of queer life." It is precisely such contributions that the "queer kids..." blog (above) seek to illuminate.
I also loved learning from Harris-Lacewell's post about a new history of slave marriages that concludes that such marriages were real, even though they were not recognized by law.
Harris-Lacewell's final call echoes the imperative of the Beyond Marriage statement written more than three years ago, as well as the guiding principle of my book.
We must do more than simply integrate new groups into an old system. Let's use this moment to re-imagine marriage and marriage-free options for building families, rearing children, crafting communities, and distributing public goods.
This is precisely the work that the mainstream marriage-equality movement refrains from doing. As Harris-Lacewell points out, the pragmatic political strategy is insisting that allowing same-sex couples to marry will not change marriage. But it's a strategy that comes with too high a price tag, and the voices within and without the gay rights movement seeking to make marriage matter less need to speak out more.
Rep. Pete Stark (D-CA) introduces bill banning discrimination in adoption and foster care placement
I love the title! "Every Child Deserves a Family Act." That's the name of H.R. 3827, introduced last week by California Congressman Pete Stark, a 35+ year liberal stalwart in Congress. The bill bans discrimination in foster care placement and adoption on the basis of sexual orientation, marital status, and gender identity. (The bill uses the term "gender identification."). It would apply to all states receiving federal funds, and it would allow an individual claiming discrimination to file an action seeking relief in federal court. This latter provision is especially noteworthy; often Congress passes laws that CANNOT be enforced by individuals but only through loss of federal funding from the relevant federal agency.
The marital status provision is notable because of the number of states now banning or considering banning adoption or fostering by an individual living with a non-marital partner. This obviously has the effect of banning same-sex couples from adopting or fostering, but it also ban some heterosexuals and states defend it based on the desire for "optimal" placement of children in the homes of married couples. (For more on this, check out my post from the Lavender Law Conference.)
In his introduction of the proposed legislation, Rep. Stark likened the measure to the federal requirement that states not discriminate on the basis of race. "When considering a potential placement for a child," he said, "the only criteria should be what is in the child’s best interest and whether the prospective parents can provide a safe and nurturing home. Bigotry should play no part in this decision." The race analogy is not a perfect one, as the prohibition on race discrmination prohibits agencies from seeking a same-race placement for a child. The desire to find a same-race placement is not the same "bigotry" as a ban on adoption by gay men, lesbians, and transgender people.
The bill contains numerous findings about the suitability of gay parents and the shortage of foster and adoptives homes. It also presents the financial cost of the ban, an angle that has worked in some states to kill proposed state bans. (My post on a panel at the Lavender Law conference refers to this as well.)
The bill has no co-sponsors. I'm not expecting action on it anytime soon. But I am grateful to Rep. Stark for taking a stand, providing visibility on the issue at the federal level.
The marital status provision is notable because of the number of states now banning or considering banning adoption or fostering by an individual living with a non-marital partner. This obviously has the effect of banning same-sex couples from adopting or fostering, but it also ban some heterosexuals and states defend it based on the desire for "optimal" placement of children in the homes of married couples. (For more on this, check out my post from the Lavender Law Conference.)
In his introduction of the proposed legislation, Rep. Stark likened the measure to the federal requirement that states not discriminate on the basis of race. "When considering a potential placement for a child," he said, "the only criteria should be what is in the child’s best interest and whether the prospective parents can provide a safe and nurturing home. Bigotry should play no part in this decision." The race analogy is not a perfect one, as the prohibition on race discrmination prohibits agencies from seeking a same-race placement for a child. The desire to find a same-race placement is not the same "bigotry" as a ban on adoption by gay men, lesbians, and transgender people.
The bill contains numerous findings about the suitability of gay parents and the shortage of foster and adoptives homes. It also presents the financial cost of the ban, an angle that has worked in some states to kill proposed state bans. (My post on a panel at the Lavender Law conference refers to this as well.)
The bill has no co-sponsors. I'm not expecting action on it anytime soon. But I am grateful to Rep. Stark for taking a stand, providing visibility on the issue at the federal level.
Friday, October 16, 2009
District of Columbia publishes list of registered relationships from elsewhere that will be recognized as domestic partnerships
Last year's expansion of the District of Columbia's domestic partnership laws included a provision requiring DC to recognize as domestic partnerships those relationships registered elsewhere that are "substantially similar" to domestic partnerships in DC. The law required the Mayor to certify which relationships from elsewhere fall into this category. Well, the Mayor took his time, but today the city published a Notice of Proposed Rulemaking listing the jurisdictions.
The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.
I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.
The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.
In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.
Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.
It's complex, but complex goes with the territory of state-by-state family law.
The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.
I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.
The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.
In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.
Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.
It's complex, but complex goes with the territory of state-by-state family law.
Tuesday, October 13, 2009
South Carolina appeals court leaves child with lesbian pre-adoptive mother
Earlier this month the South Carolina Court of Appeals left a two year child in the home of a Erin S., 34 year old lesbian who had been approved as the child's pre-adoptive foster parent. The case, Michael P. v. Greenville County Dept of Social Services, came to court when the child's former foster parents, who had declined to adopt him, decided that placing the child with a lesbian was such a bad idea that they had to change their mind and petition themselves to adopt the child or at least stop the placement.
Basically, the child had cocaine in his system at birth, was placed in the state's emergency custody, and then was placed in foster care with Michael and Lisa P. A year later, the social services agency asked the P's if they wanted to adopt the child and they said no. They allege that the agency told them the child would be adopted by a young mother and father in their 20's and that they might be able to remain in the child's life. Four months later, the P.'s went to court and argued that they would not have agreed to the removal of the child from their home had they known the child would be placed with a lesbian. They petitioned to adopt the child themselves or obtain custody or substantial visitation. They even attempted to enlist the biological parents in support of their petition. At this point Erin S. intervened in the case.
The trial court ruled that the couple lacked standing to petition to adopt the child because he had been placed by the county in a pre-adoptive home with Erin S. They also had no standing as former foster parents. They could have challenged the removal of the child from their home, but once they did not do that they could not object later and try to adopt the child themselves.
The couple appealed and the South Carolina Court of Appeals affirmed the ruling of the trial court. The couple argued that the court should have considered that the best interests of the child were not served by placement with a lesbian, but the court ruled that the couple lacked standing to raise any issue about the child's placement.
There is much that interests me about this case. First, the obvious. It's from the south -- the region of the country most hostile to gay and lesbian parents. But it also reminds me of a court ruling in the 1970's from a South Carolina court requiring actual proof of harm to a child before a heterosexual father could get custody of a child living with his ex-wife who had come out as a lesbian. It's inaccurate to paint the south with one broad brush.
Next, the social services agency made the placement with a lesbian as a pre-adoptive parent. It's no accident that state social workers have generally been reliable advocates of allowing gay men and lesbians to be foster and adoptive parents. They focus on the individual needs of children and the individualized determination of who makes suitable parents. The ideology and rhetoric that sometimes prevail in politics (e.g., the continuation of Florida's adoption ban and the passage of the initative in Arkansas instituting a ban there) really lose steam when considering the lives of real people.
Finally, some people behave very badly. The P's knew nothing about Erin S's ability to raise this child other than her sexual orientation, and that was enough for them to try to block her. Good for the South Carolina court in not letting them get away with it.
Basically, the child had cocaine in his system at birth, was placed in the state's emergency custody, and then was placed in foster care with Michael and Lisa P. A year later, the social services agency asked the P's if they wanted to adopt the child and they said no. They allege that the agency told them the child would be adopted by a young mother and father in their 20's and that they might be able to remain in the child's life. Four months later, the P.'s went to court and argued that they would not have agreed to the removal of the child from their home had they known the child would be placed with a lesbian. They petitioned to adopt the child themselves or obtain custody or substantial visitation. They even attempted to enlist the biological parents in support of their petition. At this point Erin S. intervened in the case.
The trial court ruled that the couple lacked standing to petition to adopt the child because he had been placed by the county in a pre-adoptive home with Erin S. They also had no standing as former foster parents. They could have challenged the removal of the child from their home, but once they did not do that they could not object later and try to adopt the child themselves.
The couple appealed and the South Carolina Court of Appeals affirmed the ruling of the trial court. The couple argued that the court should have considered that the best interests of the child were not served by placement with a lesbian, but the court ruled that the couple lacked standing to raise any issue about the child's placement.
There is much that interests me about this case. First, the obvious. It's from the south -- the region of the country most hostile to gay and lesbian parents. But it also reminds me of a court ruling in the 1970's from a South Carolina court requiring actual proof of harm to a child before a heterosexual father could get custody of a child living with his ex-wife who had come out as a lesbian. It's inaccurate to paint the south with one broad brush.
Next, the social services agency made the placement with a lesbian as a pre-adoptive parent. It's no accident that state social workers have generally been reliable advocates of allowing gay men and lesbians to be foster and adoptive parents. They focus on the individual needs of children and the individualized determination of who makes suitable parents. The ideology and rhetoric that sometimes prevail in politics (e.g., the continuation of Florida's adoption ban and the passage of the initative in Arkansas instituting a ban there) really lose steam when considering the lives of real people.
Finally, some people behave very badly. The P's knew nothing about Erin S's ability to raise this child other than her sexual orientation, and that was enough for them to try to block her. Good for the South Carolina court in not letting them get away with it.
Friday, October 9, 2009
Now is not the time to eliminate domestic partnership in the District of Columbia
The bill authorizing same-sex marriages in the District of Columbia contains a disturbing additional provision that has gotten little attention. It eliminates any new domestic partnerships as of January 1, 2011. I don’t know why Councilmember David Catania wrote this into the legislation, but I do hope he will reconsider in light of the history of domestic partnership in DC and its eligibility criteria.
Domestic partnership in DC was never about providing a legal status to same-sex couples based on their exclusion from marriage. Different-sex couples are allowed to register, and of course they have always been able to marry. In addition, domestic partnership is available to any two people living together in a “committed familial relationship.” It is open to relatives who are unable to marry. It means, for example, that a grandmother and grandson can be domestic partners, assuming that they live together and have no other domestic partner or spouse. That way, if he now works for the DC government, she is eligible for his health insurance benefits in the same way an employee’s spouse is eligible.
The criteria were the product of deliberate decisions to broaden the definition of relationships that count for legal purposes and to cease making marriage the exclusive means of obtaining important legal benefits.
I do think that once same-sex couples can marry in DC it will make sense to reevaluate what legal status we make available to other relationships. In addition to considering retaining domestic partnerships, I’d like a robust discussion of enacting a status such as Colorado’s “designated beneficiary.” I’d also like us to consider the test for benefit eligibility that Salt Lake City affords its employees – any one adult with whom the employee lives in an interdependent relationship and that person’s children.
In addition, there is a reason to maintain domestic partnerships even if one considers only legal protections for same-sex couples. There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.
We could hash all this out now, but I suggest we take this process one step at a time. Let the marriage bill be considered on its own merits. Once it becomes law, let’s think through other relationship recognition issues. That means the provision eliminating domestic partnership should come out of the Catania bill. I hope Councilmember Catania will agree with this proposal and that Phil Mendelson’s Judiciary and Public Safety Committee will make it happen.
Domestic partnership in DC was never about providing a legal status to same-sex couples based on their exclusion from marriage. Different-sex couples are allowed to register, and of course they have always been able to marry. In addition, domestic partnership is available to any two people living together in a “committed familial relationship.” It is open to relatives who are unable to marry. It means, for example, that a grandmother and grandson can be domestic partners, assuming that they live together and have no other domestic partner or spouse. That way, if he now works for the DC government, she is eligible for his health insurance benefits in the same way an employee’s spouse is eligible.
The criteria were the product of deliberate decisions to broaden the definition of relationships that count for legal purposes and to cease making marriage the exclusive means of obtaining important legal benefits.
I do think that once same-sex couples can marry in DC it will make sense to reevaluate what legal status we make available to other relationships. In addition to considering retaining domestic partnerships, I’d like a robust discussion of enacting a status such as Colorado’s “designated beneficiary.” I’d also like us to consider the test for benefit eligibility that Salt Lake City affords its employees – any one adult with whom the employee lives in an interdependent relationship and that person’s children.
In addition, there is a reason to maintain domestic partnerships even if one considers only legal protections for same-sex couples. There are states that will recognize another state’s domestic partnership or civil union but will not recognize same-sex marriages. Eliminating domestic partnerships in DC leaves such couples more vulnerable, not less, in other parts of the country.
We could hash all this out now, but I suggest we take this process one step at a time. Let the marriage bill be considered on its own merits. Once it becomes law, let’s think through other relationship recognition issues. That means the provision eliminating domestic partnership should come out of the Catania bill. I hope Councilmember Catania will agree with this proposal and that Phil Mendelson’s Judiciary and Public Safety Committee will make it happen.
Tuesday, October 6, 2009
Montana Supreme Court protects children with two same-sex parents
The Montana Supreme Court has affirmed a trial court decision granting a “parental interest” to a lesbian mother who co-parented two children legally adopted only by her partner. The case, Kulstad v. Maniaci, is a strong and unequivocal victory for recognizing the families that same-sex couples form. The mother who adopted the children, Barbara Maniaci, was represented by the Alliance Defense Fund. As I’ve noted elsewhere, that organization devotes substantial resources to opposing the rights of children to maintain relationships with both of their functional parents when a same-sex couples splits up.
L.M. came to live with Michelle Kulstad and Barbara Maniaci through a private adoption arrangement in February 2001. A lawyer told the couple only one of them could adopt, and Barbara became the adoptive parent. They agreed to co-parent, however, and made that clear to the social worker who wrote both pre-adoptive and post-adoptive reports on the family. In 2003, Barbara wanted to adopt another child, and, although Michelle did not, the couple participated together in a home study to adopt another child and Barbara told the social worker that the couple would co-parent.
The couple did co-parent. The court found that the two women “provided for the children’s physical, psychological, and developmental needs much like any other two-parent family.”
The couple split up in 2006. The trial court allowed Michelle’s claim to go forward and there was a trial in 2008 on whether she had a “parental interest” and was entitled to time with the children under a parenting plan.
A Montana statute explicitly allows a nonparent to seek a parental interest if the person has established a child-parent relationship, it is in the child’s best interests to continue that relationship, and if the parent has acted “contrary to the child-parent relationship.” The Montana Supreme Court approved the trial court’s interpretation that this last element was met because Barbara acted contrary to her own exclusive child-parent relationship when she ceded her exclusive parenting authority and instead jointly parented with Michelle.
Barbara made numerous representations about the family’s life that the court did not believe, including her assertion that she had lied when she told social workers that the couple would be raising the child together. Rejecting every one of her contentions, the Montana Supreme Court stated that “[Barbara] cannot rewrite the history of the fact that she and [Michelle] lived together for more than 10 years and jointly raised the minor children in the same household.” Barbara also argued that Michelle could not be considered in loco parentis unless she acted as parent to the exclusion of Barbara. The court rejected this.
The Montana Supreme Court credited the trial court’s findings: that Barbara had acted inconsistently with the position that she was the only one with a child-parent relationship; that Michelle did have a child-parent relationship with the children; that, as the mental health experts testified, it was in the children’s best interests to continue their child-parent relationship with Michelle.
Last year I wrote about a devastating opinion from the Maryland Court of Appeals eliminating from a child’s life the parent who had not legally adopted her. The Montana Supreme Court referenced that ruling and noted that Montana has a statute on the subject, which Maryland lacks. Hear that Maryland? You need to pass a statute so that your children of same-sex parents get the same emotional and financial security that the children of Montana now have.
Six justices joined the majority opinion. A seventh, James C. Nelson, concurred, writing a separate opinion championing the rights of lesbians and gay men to form families and raise children. He points out that the Alliance Defense Fund and two amici – Montana Family Foundation and Pacific Justice Institute -- claimed that sexual orientation played no part in their involvement in the case. He found this claim “belied by each of these participants’ foundational beliefs opposing homosexuality.” In some of the strongest and most passionate language I have ever read in a court opinion, Justice Nelson writes as follows:
I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized…
Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights is antithetical to the core values of [the Montana Constitution] and speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate.
Wow.
One judge dissented, believing the court was opening the door too wide to challenges to the rights of parents to raise their children. Although there is some legitimacy in protecting parents’ rights (which I have long argued can be done by defining parent to include individuals like Michelle), the dissenting judge betrays a certain hysteria by discussing same-sex couples and polyamory in the same paragraph. When he posits the bogeyman of three or four adults developing parental relationships with children, he apparently fails to notice that in this era of blended families many children do, in fact, have multiple parental relationships.
Thanks to Montana attorney Jim Reynolds, who wrote a friend of the court brief on behalf of several law professors (including me!) in support of the trial court's ruling. The ACLU of Montana, with the help of the ACLU Lesbian, Gay, Bisexual and Transgender Project, represented Michelle.
L.M. came to live with Michelle Kulstad and Barbara Maniaci through a private adoption arrangement in February 2001. A lawyer told the couple only one of them could adopt, and Barbara became the adoptive parent. They agreed to co-parent, however, and made that clear to the social worker who wrote both pre-adoptive and post-adoptive reports on the family. In 2003, Barbara wanted to adopt another child, and, although Michelle did not, the couple participated together in a home study to adopt another child and Barbara told the social worker that the couple would co-parent.
The couple did co-parent. The court found that the two women “provided for the children’s physical, psychological, and developmental needs much like any other two-parent family.”
The couple split up in 2006. The trial court allowed Michelle’s claim to go forward and there was a trial in 2008 on whether she had a “parental interest” and was entitled to time with the children under a parenting plan.
A Montana statute explicitly allows a nonparent to seek a parental interest if the person has established a child-parent relationship, it is in the child’s best interests to continue that relationship, and if the parent has acted “contrary to the child-parent relationship.” The Montana Supreme Court approved the trial court’s interpretation that this last element was met because Barbara acted contrary to her own exclusive child-parent relationship when she ceded her exclusive parenting authority and instead jointly parented with Michelle.
Barbara made numerous representations about the family’s life that the court did not believe, including her assertion that she had lied when she told social workers that the couple would be raising the child together. Rejecting every one of her contentions, the Montana Supreme Court stated that “[Barbara] cannot rewrite the history of the fact that she and [Michelle] lived together for more than 10 years and jointly raised the minor children in the same household.” Barbara also argued that Michelle could not be considered in loco parentis unless she acted as parent to the exclusion of Barbara. The court rejected this.
The Montana Supreme Court credited the trial court’s findings: that Barbara had acted inconsistently with the position that she was the only one with a child-parent relationship; that Michelle did have a child-parent relationship with the children; that, as the mental health experts testified, it was in the children’s best interests to continue their child-parent relationship with Michelle.
Last year I wrote about a devastating opinion from the Maryland Court of Appeals eliminating from a child’s life the parent who had not legally adopted her. The Montana Supreme Court referenced that ruling and noted that Montana has a statute on the subject, which Maryland lacks. Hear that Maryland? You need to pass a statute so that your children of same-sex parents get the same emotional and financial security that the children of Montana now have.
Six justices joined the majority opinion. A seventh, James C. Nelson, concurred, writing a separate opinion championing the rights of lesbians and gay men to form families and raise children. He points out that the Alliance Defense Fund and two amici – Montana Family Foundation and Pacific Justice Institute -- claimed that sexual orientation played no part in their involvement in the case. He found this claim “belied by each of these participants’ foundational beliefs opposing homosexuality.” In some of the strongest and most passionate language I have ever read in a court opinion, Justice Nelson writes as follows:
I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized…
Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights is antithetical to the core values of [the Montana Constitution] and speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate.
Wow.
One judge dissented, believing the court was opening the door too wide to challenges to the rights of parents to raise their children. Although there is some legitimacy in protecting parents’ rights (which I have long argued can be done by defining parent to include individuals like Michelle), the dissenting judge betrays a certain hysteria by discussing same-sex couples and polyamory in the same paragraph. When he posits the bogeyman of three or four adults developing parental relationships with children, he apparently fails to notice that in this era of blended families many children do, in fact, have multiple parental relationships.
Thanks to Montana attorney Jim Reynolds, who wrote a friend of the court brief on behalf of several law professors (including me!) in support of the trial court's ruling. The ACLU of Montana, with the help of the ACLU Lesbian, Gay, Bisexual and Transgender Project, represented Michelle.
Saturday, October 3, 2009
The cost of being a gay couple... the New York Times tells just one part of the story
You know I'm going to respond to any article that says:
"Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage."
Well, that's what the article in today's New York Times concludes. It purports to be a study based on the differences between a married heterosexual couple and a same-sex couple (who, if married in their state, is still not married for federal law purposes).
So let's get the first obvious problem with this article out of the way by rephrasing the study's findings as follows:
Nearly all the extra costs that unmarried couples face would be erased if the federal government stopped privileging marriage over other relationships.
My formulation is no less accurate than the conclusion in the Times article. But if you're a hammer everything looks like a nail, and if you're an advocate for same-sex marriage every problem looks like it's caused by denial of access to marriage. I just don't see it that way.
Here's an example. The article points out that when an employer provides health insurance to a same-sex partner it is taxed, while spousal coverage is not. True. But suggesting that the problem here is that same-sex couples can't marry misses the larger point. Why should any employer-provided health benefits be taxed? Salt Lake City allows an employee to cover anyone s/he lives with in an interdependent relationship. Many employers cover both same-sex and unmarried different-sex partners. In all those situations, the benefit is taxed. Spousal coverage gets special treatment. It shouldn't. A solution that ended that special treatment would reduce the "high cost of being a gay couple" as much as allowing same-sex couples to marry, and would be a better policy choice because it would encourage employers to recognize the actual families of their employees -- married or not.
Meanwhile, the article does not entirely ignore the fact that marriage helps those straight families who look like the male breadwinner and stay-at-home mother model that drives both our tax and social security system. So it would mostly help those same-sex couples who also have one high and one low income earner. The authors acknowledge that for an equal earning couple their social security payments don't vary depending on whether or not they are married. What they fail to mention is that many observers believe the current set-up fails to reflect modern family life and should be reformed...for straight married couples. Taking the current system as a given misses the opportunity to highlight the views of those who think it unconscionable that a family in which one person has earned most of the money pays less into social security and gets more out of it than a couple who have greater parity. Here's an example of one paper by the Urban Institute. They actually have an entire project about making social security more equitable.
Then there's this problem. The article posits the hypothetical couple having a joint income of $140,000 a year. This perpetuates the myth of gay affluence, something roundly debunked by the careful research of the Williams Institute. And for poor same-sex couples, they are, like different-sex unmarried couples, sometimes better off not being married (the Earned Income Tax Credit is one example.) In fact, you'd never know it from this article that lawyers who specialize in elder law often advise their heterosexual couple clients not to marry. If one partner needs to spend down all assets to be eligible for medicaid nursing home care, the other can keep all of his or her assets if the couple isn't married. If they are married, they must spend down almost all of both of their assets.
But no partner in the hypothetical couples used as examples in the Times article needs nursing home care. Lucky them.
"Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage."
Well, that's what the article in today's New York Times concludes. It purports to be a study based on the differences between a married heterosexual couple and a same-sex couple (who, if married in their state, is still not married for federal law purposes).
So let's get the first obvious problem with this article out of the way by rephrasing the study's findings as follows:
Nearly all the extra costs that unmarried couples face would be erased if the federal government stopped privileging marriage over other relationships.
My formulation is no less accurate than the conclusion in the Times article. But if you're a hammer everything looks like a nail, and if you're an advocate for same-sex marriage every problem looks like it's caused by denial of access to marriage. I just don't see it that way.
Here's an example. The article points out that when an employer provides health insurance to a same-sex partner it is taxed, while spousal coverage is not. True. But suggesting that the problem here is that same-sex couples can't marry misses the larger point. Why should any employer-provided health benefits be taxed? Salt Lake City allows an employee to cover anyone s/he lives with in an interdependent relationship. Many employers cover both same-sex and unmarried different-sex partners. In all those situations, the benefit is taxed. Spousal coverage gets special treatment. It shouldn't. A solution that ended that special treatment would reduce the "high cost of being a gay couple" as much as allowing same-sex couples to marry, and would be a better policy choice because it would encourage employers to recognize the actual families of their employees -- married or not.
Meanwhile, the article does not entirely ignore the fact that marriage helps those straight families who look like the male breadwinner and stay-at-home mother model that drives both our tax and social security system. So it would mostly help those same-sex couples who also have one high and one low income earner. The authors acknowledge that for an equal earning couple their social security payments don't vary depending on whether or not they are married. What they fail to mention is that many observers believe the current set-up fails to reflect modern family life and should be reformed...for straight married couples. Taking the current system as a given misses the opportunity to highlight the views of those who think it unconscionable that a family in which one person has earned most of the money pays less into social security and gets more out of it than a couple who have greater parity. Here's an example of one paper by the Urban Institute. They actually have an entire project about making social security more equitable.
Then there's this problem. The article posits the hypothetical couple having a joint income of $140,000 a year. This perpetuates the myth of gay affluence, something roundly debunked by the careful research of the Williams Institute. And for poor same-sex couples, they are, like different-sex unmarried couples, sometimes better off not being married (the Earned Income Tax Credit is one example.) In fact, you'd never know it from this article that lawyers who specialize in elder law often advise their heterosexual couple clients not to marry. If one partner needs to spend down all assets to be eligible for medicaid nursing home care, the other can keep all of his or her assets if the couple isn't married. If they are married, they must spend down almost all of both of their assets.
But no partner in the hypothetical couples used as examples in the Times article needs nursing home care. Lucky them.
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