Thursday, January 29, 2009

End federal funding of marriage promotion: Part I

The Obama agenda is filled with many ideas that will help LGBT families, like equal adoption rights, repeal of DOMA, and extension of federal recognition for civil unions. He also supports comprehensive sex education. But he has been silent on the federal funding of marriage promotion, a topic of many of my posts.

So this post is the first of a periodic series on ending that funding. Obama wants to cut wasteful spending from the federal budget. Start with eliminating what has not been spent of the $750,000,000 for marriage promotion, and don't add any more.

George Bush appointed Wade Horn as the Assistant Secretary for Children and Families at HHS, giving him control over marriage promotion and abstinence-only sex education funding as well as other important family policy concerns. Horn used the position to fund an infrastructure that supports his right-wing ideological agenda.

That's why the person Obama appoints to this position is so critical. Last month, I wrote a letter to then Secretary-Designate Tom Daschle on behalf several groups (Alternatives to Marriage Project, Family Equality Council, Legal Momentum, National Center for Lesbian Rights, National Gay and Lesbian Task Force Action Fund, and SIECUS) and noted academics, Anna Marie Smith, Jean Hardisty, and Judith Stacey. Read it here. Add your voice. If federal family policy is going to truly value all families, it needs to start at the top.

Wednesday, January 28, 2009

What makes a parent?

This is one of the most common questions that arises when same-sex couples have children. Seattle University law professor Julie Shapiro blogs almost exclusively on this topic. The significance of a genetic connection to the child is a constant theme.

So I was fascinated by last week's LA Times story about the Kincaid project, which involved DNA testing of 147 people named Kincaid. Two brothers discovered they had a different biological father, something they find too painful to discuss. The article quotes studies that suggest 4% of children are not the biological children of the man they consider their father. One man, Don Severs, was able to confirm that his great-great-great-grandfather was a Kincaid who had an affair with the family's housekeeper, who was then married off to a man named Severs. DNA testing can also uncover relatives who were never told they were adopted.

If we DNA tested every child, we would know at birth whether the mother's husband was the child's genetic father. We don't do this. That alone shows that we value some things above biology, and rightly so. At a recent symposium, I asked Brigham Young law professor Lynn Wardle whom he would consider the father of a child born to a married woman but not her husband's biological child. I posed the question with the assumption that the husband wants to raise the child as his own and the biological father wants to raise the child as well. His answer: the husband. He's not going to say that of course for a married or otherwise partnered same-sex couple. But once we set the stage for parenthood based on function, relationship, or anything not biology, we open the door for what the children of same-sex couples already know: biology is neither necessary or sufficient for parenthood.

Thursday, January 22, 2009

Creating Change conference coming up

Support of adoption by LGBT individuals and couples on the White House website? It is amazing, but the White House doesn't control adoption law. States do that, and, like Arkansas in the last election, states can decide to limit adoption to married couples, to single people who live alone, or to whomever they want (subject to Constitutional challenge like that of the ACLU to the Arkansas law).

For updates on state, as well as federal, politics, and on movement building and racial justice and trans issues and all sorts of things, head to Denver next week for Creating Change, the annual conference sponsored by the National Gay and Lesbian Task Force. The conference begins with two day-long institutes on Wednesday and Thursday, followed by a nine workshop sessions and four plenaries through Sunday afternoon.

I'll be there, doing a Beyond Marriage 2009 workshop, with Nicky Grist of Alternatives to Marriage Project, Terry Boggis of Center Kids, and immigration activist Debanuj DasGupta. The whole program book is now on line, so you can check it out yourself. Freedom to Marry will be there, and certainly there will be talk of marriage and a Prop 8 debrief. But this is the place if your issue is NOT marriage and you want to connect to activists from around the country.

I'm excited about many of the participants, but I'll just highlight two. Pam Chamberlain of Political Research Associates will be there, and her group does critical work on fighting the right wing (and no, they're not going away just because we elected Barack Obama). PRA has recently published scathing reports on what's wrong with federal marriage promotion. John D'Emilio will also be speaking, and his article in the Gay and Lesbian Review remains one of the clearest and most scathing critiques there is of the gay rights movement fight for marriage.

If you come to the conference, please come to Beyond Marriage 2009 and introduce yourself to me!

Friday, January 16, 2009

A Conflict of Interest for Hillary Clinton? Isn't Marriage the Wrong Dividing Line?

Hillary Clinton's confirmation hearing contained many references to potential conflicts of interest posed by her job as Secretary of State in the face of fundraising by her husband -- our former president -- for his foundation. I've followed the controversy (which might be too large of word to use in this instance), and it makes me wonder.

Isn't it time to stop thinking of conflicts of interest in the specific context of marriage and other formal family relationships? It's a habit to think that way, but it's a habit that has outlived its usefulness. We want public officials who act in the public interest. All sorts of relationships might give pause, including unmarried partners and their family members and close friends whose well-being is dear to a person in consideration for a high government position.

When our laws limit required disclosures to spouses and immediate family, they miss the more expansive way many people define family today. Canada's Beyond Conjugality report addressed this is the context of financial dealings with banks and concluded that special rules should apply to anyone who had a close personal relationship with a director, officer, or significant shareholder of a bank. And, I might add, when that report came out Canadian law already included unmarried partners on the list of those subject to special rules.

All the talk about Hillary and Bill just reinforces the idea that it's their marriage that causes the possible conflict. But consider just one high-profile close friendship: Oprah Winfrey and Gayle King. If Oprah was up for a position subject to conflicts of interest concerns, I'd put Gayle on the list of folks who would be in the mix for investigation. Any law that missed her would really miss the point, wouldn't it?

Tuesday, January 13, 2009

Former unmarried partner entitled to pension share; thank you again, Washington State

I use Washington state as a shining example of "beyond marriage" in action because its courts will divide property at the end of a nonmarital relationship no matter whose name appears on the property. It is the only state that does this.

Yesterday the 9th US Circuit Court of Appeals ruled that Washington's recognition of "marital rights" to half of a former partner's pension must be implemented by the pension plan and does not violate the federal ERISA law. The case, Owens v. Automotive Machinists Pension Trust, upholds the validity of an state court order granting Norma Owens a 50% interest in her former partner's pension.

ERISA law is complex. Normally, a pension can be paid out only to the person who earned it. But often when a marriage ends the only thing of value is that pension. Federal law allows a portion of the pension to be paid to a former spouse if there is a QDRO (Qualified Domestic Relations Order) in place. Thus it is common for a divorce judgment to include a QDRO as a way of fairly compensating the non-income earning spouse for her contributions to the marriage.

In this case, Norma and Phillip Owens lived together for more than 30 years, raised two children, and held themselves out as a married couple. Phillip earned the money and Norma took care of the home and children. When their relationship ended, their remaining assets were used to pay off debts and the only thing of value left was Phillip's pension. Because Washington treats property acquired during an unmarried relationship as community property, Norma was awarded 50% of the pension.

The pension plan refused to implement this order, claiming that Norma could not receive "marital property rights" because she was not married to Phillip. But the federal court deferred to the definition of marital property rights in Washington state law and upheld Norma's eligibility. The pension plan also argued that the federal Defense of Marriage Act banned recognition of rights for an unmarried partner, but the court ruled that

"DOMA’s legislative history reflects only Congress’s concern for same-sex marriages; it
sheds no light on quasi-marital relationships such as the relationship between Phillip
and Norma that is at issue here."

So what if Norman had been Norman? I'm going to bet on the same result. In Washington state, same-sex and different-sex unmarried partners are treated identically, so a court might well award Norman a share of Phillip's pension. The court would not be asked to recognize a marriage between Phillip and Norman, but rather the rights Norman would have in Phillip's pension as a result of their nonmarital relationship, just like Norma.

So consider this: In Massachusetts or Connecticut, a married same-sex spouse might receive a QDRO upon divorce, but that order might NOT be implemented because of DOMA. But if more states recognized property rights regardless of marital status, gay and straight ex-partners alike would have their economic security preserved.

Tuesday, January 6, 2009

New York Times Comes Through Again...Who's Listening?

This morning's New York Times editorial condemning Arkansas's ban on adoption and foster parenting by anyone living with a same-sex partner or unmarried different-sex partner is a welcome piece of advocacy. NYT calls the law "offensive" and urges the court to strike it down.

More than 15 years ago, I received a call from a member of the NYT editorial board. The board had decided to editorialize after a Virginia judge removed a child from the custody of his mother, Sharon Bottoms, and placed him with Sharon's mother. The Bottoms case received unprecendent press coverage. And so the New York Times published its first editorial expressing unequivocal support of lesbian and gay parents. "In deciding what's best for a child," NYT wrote, "it's fair to look at a large range of issues. But the sexual orientation of parents is not one of them. Gay parents should not have to live in fear of losing their children simply because of who they are."

In some states, LGBT parents still risk losing custody of their children to a heterosexual parent after a divorce. And gay rights advocates expect efforts to reproduce the Arkansas initiative in other states.

I was ecstatic with the 1993 NYT editorial. When the Virginia Court of Appeals reversed the trial judge in Bottoms, citing the research demonstrating no harm to children raised by lesbian mothers, I thought it was the beginning of the end of discrimination against lesbian and gay parents. But the Virginia Supreme Court overturned that Court of Appeals decision, and young Tyler never did go back to his mother.

And as for recognition of the research on the well-being of children with lesbian and gay parents, well it certainly has not received universal acceptance. Neither has the position of the New York Times. Still, today's editorial is a good read.

Thursday, January 1, 2009

Why Lawyers Recommend Second-Parent Adoptions (even if you're married)

When I posted on Thomas Beatie (aka the pregnant man), I noted that his wife Nancy needs to adopt their child to be certain that her relationship with the child will be protected and recognized everywhere. (My crosspost on Bilerico generated many, often indignant, comments). All the LGBT legal groups advise same-sex couples to do second-parent adoptions, even when they are married, or in civil unions or domestic partnerships that give both people parental rights over a child born to either of them.

A recent decision from a federal court judge in Louisiana explains why. In that case, litigated by Lambda Legal, the state of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy.

Rejecting the state's argument, the District Court Judge Jay Zainey explained the meaning of the federal constitution's "full faith and credit" clause. That clause requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. The judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." (my emphasis). But, Judge Zainey continued,

"There is no 'roving public policy exception' to the full faith and credit obligation of states to recognize judgments. Instead, the Supreme Court has held in a number of cases that full faith and credit must be given to the judgment of another state even if...the judgment contravenes the public policy of the forum state." (my emphasis)

So if someone is the parent of a child by virtue of a state statute that gives that person a status with respect to the person who gave birth to the child (spouse, domestic partner, civil union partner), another state may not recognize that parent-child relationship. But an adoption is a court proceeding that results in a judgment granting the adoption, and that must be given full faith and credit, even in states hostile to gay families.

Readers of this blog and my book know that I abhor the argument that same-sex couples should be allowed to marry for the sake of their children. Marriage equality advocates make claims about the benefits to children of having married parents. Since no child is supposed to face discrimination as a result of having unmarried parents (whether those parents are same-sex or different-sex), I always argue that the solution to any disadvantage is to clarify that marriage is not necessary for children of either straight or gay couples.

But the claimed benefits of marriage for children are also misleading. If a married same-sex couple thinks they are both parents of the child born to one of them, they may be in for a shock if they move to or travel in a state that doesn't recognize their marriage (more than 40!). It's a second-parent adoption that protects the parent-child relationship, and for that the couple doesn't need to be married!