Law professors' conference addresses needs of same-sex partners in a "defense of marriage" state

Next week, the Association of American Law Schools will hold its annual meeting in New Orleans. This is the annual meeting of law professors from across the country. In acknowledgement of the needs of same-sex and unmarried partners in a state with a "defense of marriage" act, the AALS's executive director, Susan Westerberg Prager, today sent out the following message to all attendees. I am reprinting it in full here because I hope other associations with plans to hold meetings in states that refuse to recognize the needs of same-sex and unmarried different-sex partners will follow this fine example provided by the AALS.

December 28, 2009
Message to Annual Meeting Attendees:

Because Louisiana has placed in its constitution what is commonly referred to as a "Defense of Marriage" law, we have put in place some precautionary assistance for Annual Meeting registrants and their guests. This message is intended for those of you who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories who will travel with you to New Orleans. Even in states that do not have such a law, there have been reports of hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult. (For convenience of communication, I use the term "partner" in this message to refer to married and unmarried partners.)

AALS Managing Director Jane La Barbera has explored the practices in New Orleans, and has vigorously emphasized to the New Orleans Convention Bureau our concerns. We have received strong assurances that health care Powers of Attorney will be recognized by hospitals in the region, regardless of the relationship of the patient and the person holding the power. We have had that verified by the leadership of the Tulane Medical Center.

However, we do want to be of assistance to you in New Orleans if any of the following difficulties occur during the AALS Annual Meeting. Should any attendee or guest of an attendee experience a hospital refusing access (to the patient) to the patient's partner, or refusing the partner access to the patient's hospital doctors, or if hospital personnel are reluctant to recognize a power of attorney, we are providing the following list of individuals who are available to assist you. (The first is a local lawyer provided to AALS by the New Orleans Convention and Visitors Bureau without fee to AALS or our registrants. The second and third are AALS volunteers: Taylor is a Professor colleague who is incoming chair of the AALS Section on Sexual Orientation and Gender Identity Issues, and Jim is the lawyer spouse of the longtime Professor and Dean who is writing this message.) (I am omitting the phone numbers provided for the lawyers --np)

1. Robert M. Walmsley, Jr., Fishman, Haygood, Phelps, Walmsley, Willis & Swanson L.L.P
2. Professor Taylor Flynn
3. Jim Prager

All of these individuals stand ready to assist you with the hospital staff, and you should not hesitate to call upon them. They will assist in communicating with the hospital staff, working their way through the hospital's chain of authority if necessary. We recommend that you try to reach Mr. Walmsley first unless the hour of your call would make it unlikely that he would be at his firm.

Should you have difficulty reaching a member of this group, contact the AALS Office at the Hilton New Orleans Riverside by calling the hotel at (304) 561-0500 and asking for the AALS Office in the Marlborough Room. If the office is closed, make sure you have left messages for both Taylor and Jim, and try each of them again. I do recommend that you and your partner each carry with you a health care power of attorney. Even in extreme circumstances where the power contemplates are not present, it is a useful statement of your point of view about the person(s) closest to you, and that can help get the designated individual access to you and to your hospital doctor if you are hospitalized.

We, of course, hope that no attendee or family member is faced with the need to navigate such a problem, but we do want you to call upon us should you find yourself in circumstances where we can be of help. We very much look forward to welcoming all attendees and their guests to the 2010 AALS Annual Meeting.

Contemplating gay and lesbian families in New Mexico in 2010

I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.

On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."

New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.

As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).

Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.

Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.

Texas court does about face -- recognizes non-bio mom

A few months ago, I wrote about a Texas appeals court ruling that a nonbio mom could not file for custody or visitation of a child she had co-parented. In a move that surprised everyone, the court reversed itself earlier this month. The nonbio mom had filed a routine petition for rehearing, something almost never granted. The court sat on the petition and then, rather than grant that petition, it released a ruling on its own vacating the earlier judgment and issuing a new opinion...in the nonbio mom's favor!

The court ruled that K.V. was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions. Her are the facts that mattered to the court:

K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. ... From August 5, 2005 through April 25, 2007, during the school year, M.K.S. visited K.V. overnight once a week, alternative Sunday afternoons, and alternative weekends beginning on Friday afternoons. During the summer, the weekend visits sometimes started on Thursday afternoon. M.K.S. also visited K.V. on some holidays.

M.K.S. had her own room at K.V.'s house where she kept her toys, movies, a television, and an aquarium. She had a sandbox and a slide set outside. K.V. also modified her house by building a wrap around deck with gates on it so that the child would have a safe environment in which to play. There were occasions when K.V. would pick the child up from school when she was sick and then purchase and administer medication. K.V. was listed as a parent on the child's school records. K.V. also attended school activities and the teachers were aware that K.V. would pick the child up from school during her periods of possession. Witnesses testified that T.S. has referred to K.V. as the child's mother and treats K.V. as one of the child's parents. K.V. also established a college fund for M.K.S. After the relationship between K.V. and T.S. ended, the couple continued to attend church with the child as a family unit. T.S. discontinued K.V.'s visits with M.K.S. on April 25, 2007. The original petition was filed on May 23, 2007.

[T]he record does not suggest this pattern of possession and caregiving was intended to be a temporary arrangement. To the contrary, the possession agreement and the parties' actions evinced an intent that the child occupy K.V.'s home consistently over a substantial period of time. Therefore, we conclude the trial court erred in determining that K.V. did not establish the six month period of actual care, custody, and control requisite to establish her standing to file [a petition].

This is an amazing win, although of course there will have to be a trial now on how much contact will be allowed between K.V. and her daughter.

Oregon Supreme Court lets stand ruling that child of lesbian couple has two mothers from birth

Last July I wrote extensively about an Oregon appeals court decision declaring that a woman who consents to her partner's insemination is also a parent of the resulting child. The court reached its conclusion by reasoning that the law makes that provision for the husband of a woman who conceives through donor insemination and so it is unconstitutional (under the state constitution) to exclude a same-sex partner from that status.

The biological mother asked the Oregon Supreme Court to review the appeals court's ruling, and Wednesday that court declined to do so. The denial of review came in a standard order with no comment, as is customary.

This order means that the appeals court ruling stands as the law of Oregon. All lesbian couples who have a child using donor insemination are now both the legal parents of the child. As we say about the DC law on the subject, however, the nonbiological mother should get a court order - of parentage or adoption - because other states may disregard another state's statute that they disagree with but must respect the court orders of other states.

Congratulations to Portland attorney Mark Johnson on this important win. Now the non-bio mom, Sondra Shineovich, returns to the trial court to argue for custody/visitation of her two children.

Congratulations to Kenyon Farrow

Queers for Economic Justice has named Kenyon Farrow its new Executive Director. I met Kenyon when we were both part of the group that wrote the "Beyond Marriage" statement. Kenyon is a visionary. QEJ is the only LGBT organization with a mission dedicated solely to the well-being of those who are economically disadvantaged.

I'll be making my annual contribution to QEJ in Kenyon's honor. I invite others to do the same.

Same-sex marriage reaches television game show

This past week a category on the long-running game show Jeopardy was about life in Des Moines. One of the "answers" (this is a paraphrase) was something like "Pridefest this year was more festive because of an April 2009 court ruling authorizing this." In the privacy of my tv room, I yelled out "same-sex marriage!" A contestant buzzed in and said "gay marriage." She got credit and continued playing. Unremarkable, perhaps, but surely it says something about the cultural saliency of the issue that it makes its way into American homes as a fact worth knowing.

Or maybe it just strikes me because over 35 years ago (when it was a daytime show) I was a Jeopardy contestant. (I lost).