Saturday, November 28, 2009
The brief is unique (and not only because it was filed in both English and Spanish). Here on the mainland, no litigant has argued a right to second-parent adoption grounded in norms of international human rights. According to the brief, however, Puerto Rico courts regularly incorporate international law and human rights principles into both statutory interpretation and interpretation of the Commonwealth's constitution. The brief surveys the status of second-parent adoption in other countries; considers rulings from such international tribunals as the European Court of Human Rights; and cites to United Nations and other international human rights documents.
According to a blog post about the case, Puerto Rico does allow second-parent adoption by different-sex parents.
Wednesday, November 25, 2009
And there's another happy thanksgiving in store for 4-year-old Morrgan Avery Gibson-Boettcher and his two moms. The couple, Kellie Gibson and Denise Boettcher, finalized their adoption of Morrgan earlier this month. They might be the first lesbian couple in Montana to adopt a child jointly. According to the coverage in the Billings Gazette, the arguments supporting their adoption were bolstered by last month's Montana Supreme Court ruling protecting the relationship between a child and both her parents, even though only one mom had done the legal adoption. I posted about the case here. The couple is publicizing their success to encourage other couples who may be not know it is possible.
Their story has another interesting twist. Morrgan is Kellie's great-nephew, the grandson of Kellie's sister. The couple cared for Morrgan briefly when he was 3 months old, but then he went back to his biological parents. He had been physically and emotionally abused when he came to live with with Kellie and Denise three years later.
We don't know how many gay couples become caretakers of a child whom a biological relative cannot care for. On this thanksgiving, Morrgan can be thankful he didn't live in Florida or Arkansas or Utah; in Florida no gay person can adopt. In Arkansas and Utah, no gay person living with a partner can adopt. There's litigation challenging the bans in both Florida and Arkansas. Maybe next year same-sex couples and their children will have more to be grateful for.
Yesterday, a Virginia appeals court again reiterated the basic principle of child custody law that every state must enforce the custody orders of other states. In Prashad v. Copeland, a woman who bore a now 5-year-old child as a surrogate mother for a gay male couple, argued that Virginia should not register custody orders from a North Carolina court to the extent that those orders confer parental custodial rights on the biological father’s partner. The North Carolina order was the result of a consent agreement signed by the three parties awarding primary legal and physical custody to the gay male couple and secondary legal and physical custody to the surrogate mother.
The trial court ruled that North Carolina had jurisdiction to issue the custody orders and that, as in Miller-Jenkins, the federal Parental Kidnapping Prevention Act and Virginia law require Virginia to give those orders full faith and credit. Prashad argued that, pursuant to Virginia’s Marriage Affirmation Act and Marriage Constitutional Amendment, the North Carolina orders need not be honored. The trial court rejected that argument, and yesterday's appeals court ruling affirmed the trial court. The opinion notes:
Although there has been much discussion concerning homosexual marriage and same-sex relationships, both at the trial level and before this Court, neither of the parties is seeking to have the civil union between Copeland and Spivey recognized under Virginia law. Accordingly, this case is not about homosexual marriage, civil unions, or same-sex relationships.
The court specifically said that the nonbiological father had been permitted to intervene in the North Carolina custody case because he had been a "full-time parent" to the child since birth (almost two years at the time), not because of his relationship with the biological father. His custody rights arose from his interest in the child, not from the relationship between the two men "being treated as a marriage under the laws of North Carolina." (which, of course, the court points out, North Carolina would not do because of its own DOMA.)
The case reiterates the number one lesson for same-sex couples with children; it is critical to obtain a court order solidifying a relationship between a nonbiological parent and a child. In the few states that do confer parentage on a nonbiological parent based on a relationship (marriage, civil union, domestic partnership) with the biological parent, the parental relationship is vulnerable in other states if there is no court order.
Although this particular surrogacy arrangement turned adversarial, I've heard from two different sources about gay male couples who, over years, remain connected to the surrogate mother who bore their child. The first source was noted sociologist Judith Stacey, who has studied such family configurations, and I hope will be writing about them soon. The second source was a program for experienced LGBT family law lawyers in New York in September at which some of the gay couples themselves described their ongoing relationships with the child's surrogate mother. When a lesbian couple uses a known sperm donor and that person has a relationship with the child, it can also go very well or very badly (or in between). In both instances, legal recognition of the core family unit is critical; then the child's parents can make decisions based on what they believe to be best for their child, without fear that a court will attach parental rights to someone outside that unit.
Monday, November 23, 2009
Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.
The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.
Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.
The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.
The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.
The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:
“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”
The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”
After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.
There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.
The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.
Sunday, November 22, 2009
Right. As I've written about, the District -- like the gay community -- has let the discrimination slide. But if the church is going to rub our nose in it, well, that's uping the ante. And by the way, if anyone reading this is, or knows of, a gay or lesbian individual who has sought approval as a foster or adoptive parent from Catholic Charities in DC, I would love to hear from that person. I'm skeptical. If such approval has ever happened, I wonder if a person living with a partner is excluded, even as an individual, from adopting or fostering a child. (Let's not even go to where it is so clearly better for a child to have two loving, cooperating parents than one...)
To my point that federal law gives private employers the abililty to ignore local anti-discrimination laws when it comes to employee health and pension benefits, Mr. Orzechowski first said that they did not want to stop providing employee benefits altogether. When I pointed out that this was misleading because they can continue to provide heterosexual married couples with benefits, he said, "We want to abide by all the laws." He did not respond at all to my comment that Catholic Charities of Maine continues to provide benefits to heterosexual married couples but not to same-sex couples, in spite of local law, and that this is legal because of federal law. Frankly, the answer that they want to abide by all the laws is laughable. It is the law, federal ERISA law, that gives private employers to the right not to follow local laws. Lots of private employers around the country are allowed to discriminate because of this.
One more thing. When Council Member David Catania appeared on Kojo's Friday show (the Politics Hour), Kojo asked him about whether Catholic Charities was already in violation of DC anti-discrimination law with respect to adoption and foster care. CM Catania said this was unlitigated. That's true because, as I've said, gay men and lesbians are approved by the city and by other agencies and so there has never been a reason to pick a fight with them. Now it's Catholic Charities picking the fight.
By the way, with respect to employee benefits, CM Catania is now arguing what amounts to a page right out of my book...that Catholic Charities can cover on an employee's benefits one other adult household member, and then it is not about marriage at all. He points out, quite rightly, that Georgetown University, also a Catholic institution, does this through covering a person they call a "legally domiciled adult," someone with a "close personal relationship" with the employee. When I discuss this in my book I note a limitation with the Georgetown policy, that it does not extend coverage to the LDA's children. But since DC parentage law now makes the nonbiological mother a parent from the moment of birth, that is less of an issue here.
Friday, November 20, 2009
The first question to Prof. Feldblum concerned her signing of the Beyond Marriage statement. Senator Harkin, one of Prof. Feldblum's supporters, noted that she had signed the statement and that it included support for "committed loving households in which there is more than one conjugal partner." Then he asked her directly if she supported polygamy. Obviously prepared for the question, Prof. Feldblum replied:
I do not support polygamy. I am sorry I signed that document and I have asked for my name to be removed. I agreed with the general thrust of the statement that we ought to support caregiving relationships, but the statement goes beyond what I would have said to communicte that point. It was therefore a mistake to sign that document.
Harkin said sometimes if a friend asks us to sign we do and he asked how much thought she had given to it. Prof. Feldblum said that, indeed, another law professor, from Columbia Law School had sent it to her. She said she did read it through, that she agreed with the thrust of supporting caregiving relationships, but that the statement does go beyond what I would have said. She repeated that it was a mistake to sign it and that she had asked to have her name removed.
Republican Senator Mike Enzi asked Prof. Feldblum what she thought of religious exemptions to anti-discrimination laws. Calling upon her experience as the daughter of a Holocaust survivor, which she had highlighted in her opening statement, Prof. Feldblum said she feels strongly that protections in place for religious liberty should be effectively enforced. She expressed support for the exemption in civil rights law that allows religious employers to hire people from their own religion. She also expressed support for the religious exemption in the pending Employment Non-Discrimination Act.
Sen. Enzi that asked whether Prof. Feldblum believes that victims of employment discrimination on the basis of sexual orientation and identity (I think he meant gender identity but he didn't quite get it out) should be able to bring disparate impact claims. She replied that very early on there was agreement that no such claims would be permitted, that she was comfortable with that at the time and is now.
Chai was eloquent, poised, and well-prepared. Do I wish she could have given a more nuanced answer to the question about the Beyond Marriage statement? Absolutely. That must explain why I will never be confirmed by the Senate for anything! It looks like Chai's confirmation will go through easily with the other nominees, although I do imagine a number of Republicans will characterize her in some extreme fashion and vote against her.
Saturday, November 14, 2009
The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring. The employee benefit that matters the most and costs the most is health insurance, and here is the only fact about health insurance that matters -- no state (or in this case DC) can make any private employer cover anyone, married or not married, same-sex or different-sex. The federal government has complete control of the rules governing the most important employee benefits, including health insurance and pensions. For this reason, the benefits provided by private employers have been off limits to discrimination charges, even in states that allow same-sex couples to marry.
It is true that states and the District can regulate insurance products. Right now every insurance product offered in the District must treat all married couples identically, including DC same-sex couples married elsewhere. I explain this here. But my guess is that the Catholic Church, including Catholic Charities, self-insures. This means that it doesn't buy an insurance product. This is fairly common for large employers. My employer, American University, self-insures.
Bottom line: DC cannot make the Catholic Church provide health and pension benefits to same-sex spouses. Can't now. Won't be able to once those couples can marry in DC.
So when the church makes the threat that it will stop serving the poor in DC if it has to recognize same-sex married couples, it is a baseless bluff. The church is trying to make the City Council and the public think there is a choice between letting same-sex couples marry and keeping Catholic Charities at work in DC. But it's another red herring.
Friday, November 13, 2009
Well I have news for the church (except I suspect it's not news to them). For more than 30 years it has been unlawful to discriminate on the basis of sexual orientation and marital status in the provision of services in the District of Columbia. Catholic Charities operates in a discriminatory manner because no one has challenged them. Lesbians and gay men understandably go elsewhere to be licensed as foster or adoptive parents, and no one has asked the District of Columbia to stop funding Catholic Charities.
What the church seeks in the marriage equality bill has nothing to do with marriage. They have what they are entitled to in that respect -- the right not to conduct marriages of same-sex couples. That is a completely uncontroversial and constitutionally mandated provision. What Catholic Charities seeks is immunity from existing civil rights laws that predate marriage equality by decades and will continue to exist regardless of whether same-sex couples are allowed to marry in the District of Columbia.
Councilmembers show no inclination to exempt Catholic Charities from those laws. Good for them. Looking the other way is one thing; affirmatively approving discrimination is another. If this matter comes to a head in the city, it is entirely the responsibility of the church itself for thinking it could confuse lawmakers and the public by conflating marriage for same-sex couples and nondiscrimination on the basis of sexual orientation in the provision of services. So far, we are not confused.
Tuesday, November 10, 2009
The language on domestic partnerships in the final Committee Report is even stronger than that in the draft. (changed language in bold).
Moreover, while the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there are likely to be some same-sex couples that prefer domestic partnerships as an alternative to marriage.
The ability to register domestic partnerships in the District remains important. This allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, as well as to non-sexual relationships, the Committee believes that preserving the right to register is necessary. (My comment: I love this!)
Retaining domestic partnership at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
From here to the full Council, then the Mayor, then Congress.
Domestic partnerships have been and remain available to opposite-sex couples. In addition, two people not romantically involved, such as relatives, can register as domestic partners for such purposes as sharing benefits. While the vast majority of registered domestic partners in the District are same-sex couples, and while it is possible, given the opportunity, that these couples will choose marriage over domestic partnerships, there is value in continuing the availability of domestic partnerships in the law as an alternative to marriage.
The report says that now is not the time to reconsider domestic partnership availability, and this legislation is not the place to do it. This section of the report concludes as follows:
The ability to register domestic partnerships in the District remains important. It allows those who do not wish to marry or are unable to marry to provide legal protection to their relationship. As domestic partnerships apply equally to same-sex and opposite-sex couples, the Committee believes that preserving the right to register at the same time the District is recognizing the ability of same-sex couples to marry does not dilute the statement made by this legislation that same-sex couples are equal to opposite-sex couples.
I'm happy to say that the report also explicitly cites to my testimony for an additional reason to preserve domestic partnership. I noted that DC law requires numerous registered relationships from elsewhere to be treated as domestic partnerships in DC. If we eliminate new domestic partnerships in DC, then the city will have to recognize two people who register elsewhere as domestic partners but may not allow those same two people to become domestic partners in DC.
Articles in both the Washington Post and the Washington Blade cover this and other provisions in the bill emerging from mark up. As of now the draft of the Committee Report is not online. It should be available by calling the committee at 202-724-7808. Eventually, all the documents related to the bill will be available on the City Council website by searching for B18-482 in the Council's LIMS system.
Monday, November 9, 2009
In 2000, I wrote a chapter on lesbian and gay parents in the courts for the book, Creating Change: Sexuality, Public Policy and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid. I began the chapter as follows:
In 1972, I met an openly lesbian mother for the first time. She was in the feminist consciousness-raising group that evolved out of a women-in-literature course I took my senior year of college. Like most women in her situation, she was embroiled in a battle with her former husband over the custody of her children, a battle she subsequently lost. Thus began my...interest in the legal problems facing gay and lesbian parents.
Rosalie Davies was that mother.
Not only was Rosalie the first openly lesbian mother I knew, she was practically the first open lesbian I knew. She was partners with the college professor who had taught that literature course, and when some of the students reconvened after the winter break as a consciousness-raising group Rosalie was among the new participants. In that mixture of gay and straight budding feminists, I had the opportunity to examine my own sexuality with blinders removed. About a year later, in my first year of law school, I came out.
The obituaries about Rosalie credit her with founding Custody Action for Lesbian Mothers. She did this in 1974, before going to law school herself. Her efforts deserve some context. At the time there was almost no awareness of the existence of lesbian mothers. There was a fledgling gay rights movement, but its legal focus was primarily in issues affecting gay men, such as decriminalization of sodomy and security clearances for government workers. There was also a feminist movement, but its legal focus was equality for women in the workplace and under the Constitution.
The groundbreaking book by Del Martin and Phyllis Lyon, Lesbian/Woman, came out in 1972 and included a chapter on lesbian mothers. There was exactly one article on the subject in each of the New York Times, Newsweek, and Ms. in 1973. That's it. Rosalie founded CALM in 1974, and a group in Seattle formed the Lesbian Mothers National Defense Fund (LMNDF) that same year. (For a recent movie about LMNDF, see here). The annual National Conference on Women and the Law first addressed a lesbian issue in 1974, and that was, indeed, the custody rights of lesbian mothers. In 1975, the ACLU published a layperson's guide, The Rights of Gay People, which included a handful of pages on lesbian and gay parents. The first national gay and lesbian legal organization, Lambda Legal, was formed in 1973 but did not participate in a lesbian mother custody case until 1977. 1977 was also the year Donna Hitchens began the Lesbian Rights Project in San Francisco, the precursor to the National Center for Lesbian Rights, and the first legal group to make lesbian mothers their primary focus.
So it's not exactly that Rosalie Davies was ahead of her time. She was in many ways a product of her time. The successes of the feminist and civil rights movements led early gay and lesbian activists to believe in the likelihood of our success as a movement for rights and liberation. That was before the backlash of Anita Bryant and stopping the Equal Rights Amendment and rolling back availability of abortion; those setbacks came a few years later.
Rosalie took her personal injustice and heartbreak and made it political. She formed an organization to help others like her, and she took a public stand for the rights of mothers to come out as lesbian and still keep custody of their children. She changed many lives, including mine.
Wednesday, November 4, 2009
The Montana Supreme Court really means it; another great outcome for nonbio lesbian moms and their children
During the 12 year relationship of Linda Filpula and Dustine Ankney, Dustine bore three children. The couple raised the children together. When the couple split up and Dustine moved away with the children, Linda filed for shared custody and the court ordered a parenting plan that gave each mother equal time with the children. The trial court found that Linda and the children had child-parent relationships as a result of the joint decision of the two women.
Dustine appealed. She argued, among other things, that the court should not follow the ruling of a California court awarding parentage to a nonbio mom because California has domestic partnership and Montana does not. The Montana court rightly said that it was applying Montana law, not California law in ruling in Linda's favor. But the California case that Dustine argued was not decided on the basis of California's domestic partnership law, so Dustine even got that wrong.
The New York Court of Appeals hears a case this month that could spell the end of two decades of bad law for nonbio, nonadoptive lesbian moms and their children. That court could learn a thing or two from Montana. I hope it does.
Monday, November 2, 2009
Under DC law, however, human rights matters are not subject to popular vote. So opponents asked for an “advisory referendum,” even though it would not be binding. Last week that gave Council Member David Catania the opportunity to note that the only time such an advisory referendum has been held in the District of Columbia was on December 21, 1865, and the subject was giving freed slaves the right to vote. According to Council Member Catania, the vote was 721-1 in Georgetown and 6591-35 in the rest of the city – and that would be against extending the vote to freed slaves.
I don’t expect a vote on marriage equality in DC to be anywhere near that one-sided in either direction, but the point is well-taken. The exclusion of matters governed by the DC Human Rights Act from popular vote was a wise decision made at the first opportunity for “home rule” afforded the District of Columbia. We have protected gay people from discrimination in employment, housing, and public accommodation in DC since 1973. Let’s think…what would a referendum on that have looked like?
Then there is Rick Rosendall's excellent post on the subject on the blog of the Gay and Lesbian Activists Alliance. All the members of the current City Council who suppport same-sex marriage were on record before their last election, and yet they were elected. As Councilmember Mendelson pointed out today, seven members of the Council are up for reelection next year (including him). Opponents of marriage equality are free to work against members who vote for it.