Let's keep some perspective on the DADT victory

I'm against discrimination as much as the next gay person, so of course I am pleased that DADT will soon be history. But my enthusiasm is tempered. The two most visible items on the gay rights agenda have been the military and marriage. The demand is so simple to articulate: let us in. I criticize relentlessly the problem with a "let us in" approach to marriage. I do it in my book, and in this blog, and every chance I get. Organizing legal consequences around marriage - making marriage an on/off switch that determines who is in and who is out - is bad family policy and leads to bad results for many people, including many gay men and lesbians. The demand for access to marriage too often glorifies the importance of marriage, often making less space for families and relationships that do not fit the marriage model. Marriage equality rhetoric nevers focuses on what's wrong with marriage, as though the only thing wrong with it was its exclusion of same-sex couples.

Well a "let us in" approach to the military too easily overlooks what's wrong with the military and with US military policy. The poster children for repeal have been those men and women who profess deep loyalty to the military mission, wherever it might be. Discharged servicemembers never claim they want to return to the military to change anything about it, other than its exclusion of lesbians and gay men.

As far as I can tell, the only LGBT rights group in the country to temper its delight at DADT repeal is Queers for Economic Justice, which reminds us that "it is immoral that the military is the nation’s de facto jobs program for poor and working-class people." Read its entire statement here.

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month). The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them. This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son. The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents. The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support. These are cruel results.

I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am. There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

When lesbians conceive through sexual intercourse, different legal issues arise

We don't discuss it much. It confounds notions of fixed sexuality and fidelity. But sometimes when a lesbian couple wants a child one partner conceives through sexual intercourse. Relatively speaking, it is cheap and reliable. But it alters the legal context of everything that follows. In Quebec, the law explicitly recognizes that assisted reproduction can include reproduction through sexual intercourse if the understanding is that the man will not be a father and is engaging in the sex act to allow the woman (or the woman and her partner) to be the only legal parent/s of the child. The impetus for this unique construct was the desire to make it as easy as possible for lesbians to have children and to shield them from the discrimination and cost of using fertility services. No law like that exists anywhere in the United States (or the rest of the world as far as I know). In a handful of cases here where a man and woman (lesbian or not or unknown) have made an agreement that only the woman would be a parent and that the man was assisting her through "artificial insemination by intercourse," no court has ever upheld the agreement. If it gets to court, the man has legal rights and responsibilities.

Well, a case decided this week in Minnesota throws some daylight on this form of conception used by some lesbians. A lesbian couple identified in the court's opinion as J.M.J. and L.A.M. arranged with J.L., J.M.J.'s ex-boyfriend, that he would conceive a child with J.M.J. and then consent to the child's adoption by L.A.M., thereby terminating his parental rights. And that's what he did. L.A.M. became the legal parent of the twin girls born to J.M.J.

First thing to point out is this. Legally speaking, this method of family formation should work out fine any place that allows second-parent adoption. A biological father can consent to his child's adoption by the mother's new husband, thereby terminating his parental rights. All courts are familiar with this practice. The adoption must be in the child's best interests, but where all the parties agree there is not likely to be any difficulty. What the three people in this case did falls squarely in that category. It's the same process used in second-parent adoptions where conception takes place through insemination with a known donor; donor consents to adoption by bio mom's partner and his rights are terminated. The end.

But it wasn't the end for this lesbian couple, whose relationship ended shortly after the adoption. J.M.J. then married a man (not the bio dad), and several years later she filed an action to vacate the adoptions on the ground that Minnesota does not allow second-parent adoption. (This issue has never been settled by an appeals court, but trial court judges do grant these adoptions.) The trial court ruled against J.M.J. on that ground and also on the ground that she waited too long to challenge the adoption. In the ruling from the appeals court this week, the court declined to address the validity of second-parent adoption in Minnesota and instead held simply that J.M.J. could not challenge the adoption so many years later.

The court also upheld a monetary sanction against J.M.J. and her lawyer for bringing a baseless action. Not only was she time-barred from challenging the adoption, but her challenge included a claim that the court was defrauded because it was not told that conception took place through sexual intercourse. There was a statement in the adoption petition about alternative insemination, but it also said the donor was unknown, yet it named J.L. and he fully participated in the adoption action. So the appeals court said the trial judge did not rely on any fraudulent representation and, further, that it made no legal difference how the children were conceived, and that J.M.J. herself perpetrated any fraud and could not now claim that as a basis to vacate the adoptions.

On another factual but legally insignifcant note, J.L. did play a role in the children's lives, even though he was not their legal parent. This isn't uncommon. One reason some lesbian couples use known donors is that they want the man involved in the child's life to some degree; they just do not want him to be a legal threat. A second-parent adoption removes the legal threat, and this kind of arrangement has been working out fine in many families for more than two decades. (The court ruling refers to a recent affidavit signed by J.L. but does not say who offered it in the trial or which side he supported).

So this court ruling is a window we don't often see into some lesbian family practices. They are certainly not the practices that form the picture of lesbian families in same-sex marriage cases. Of course the one practice we do see all too often that is present here is the badly-behaving bio mom trying to get rid of her child's other parent. Fortunately, this one loses.

Gay semen donor obtains parentage order ... then tries to get out of paying child support

It's a common story. Lesbian couple asks gay friend to be a semen donor. They agree he will not be a parent, won't have his name on the birth certificate, but will be in the child's life -- somewhat.

In Curtis v. Prince, a case decided by an Ohio appeals court last week, this scenario went bad...twice. Laura Prince, her partner Vicki Griffin, and their friend, Robert Curtis, signed an agreement to such an effect (although there was no agreement in the record...). But within months of the child's July 2002 birth, Curtis sought and obtained a parentage order. We're not told in this opinion how or why this happened. Curtis was also ordered to pay child support, but he appealed that part of the order succesfully. (No indication whether Prince sought the support or whether the child support agency sought the order; no indication for that matter whether Prince was on public assistance, in which case the child support agency would go after a paternity order on its own to recoup support. And no mention of Prince's partner, Griffin.)

Then Curtis moves to Florida and has nothing to do with the child, and then in 2008, the child support agency "on behalf of Prince" again goes after Curtis for support. (I put "on behalf of Prince" in quotes because that's how it's put in the opinion and I cannot tell whether Prince asked the agency to get child support for her or whether Prince was on public assistance and so she was required to cooperate in getting support but the state is going to keep the money.) Anyway, now Curtis wants to use Ohio's donor insemination statute to say he's not a father because the child was conceived through donor insemination! The trial court bought it, but in this ruling the appeals court said the 2002 parentage order was final and Curtis couldn't get out of it now.

The appeals court seems a tad sympathetic to the trial court's attempt to keep Curtis from paying support. It says, "In light of the personal relationships in place at the time of the child’s conception, the trial court’s attempt to create an equitable result is understandable." Trouble is, I can't figure out what's equitable here. I would oppose Prince and the state going after Curtis based on his biological connection to the child. A semen donor should not be considered a parent absent a written agreement saying he is, and it looks like the contrary agreement existed in this case. But it looks like Curtis broke the agreement by seeking a parentage order, then tried to get out of child support but started to ask for visitation and then changed his mind and moved away. There is no mention of whether he then had anything to do with the child for six years, until the recent child support action.

Questions. What were the facts when Curtis filed for parentage? Prince didn't appeal the parentage order, but maybe she couldn't afford to (later on it's clear she had no lawyer); or was there some other reason? What happened to Griffin? Did Prince expect her to be around to help raise the child and did she split leaving Prince with financial responsiblity she could not bear alone? Did Prince seek support from the only plausible source of money? Did she feel justified because Curtis had broken the agreement first? Had Curtis played any role in the child's life all these years?

I don't know the answers, but I do know this. Legal parentage has consequences. I can't imagine how Curtis got out of the support order the first time around. The opnion says the trial judge in 2003 ruled that Prince had waived her right to support. But it makes no sense that her side of the agreement was upheld but not his. This is one strange case.

Indiana rules against nonbio mom...might be the right result but the wrong reasoning

Indiana has allowed second-parent adoption since at least 2004. (In re K.S.P.). That's part of the background to M.S. v. C.S., a case decided by the Indiana Court of Appeals last week. C.S. is the biological mother of a daughter, S.S, conceived through donor insemination. M.S. was C.S.'s partner when the child was born in 2003 (and for several years before). Instead of filing a second-parent adoption, in 2007 the couple filed a petition for joint legal custody, naming C.S. the primary physical custodian and giving M.S. parenting time (a/k/a visitation). The court granted the order in September 2007.

In April 2009, the couple's relationship ended, after M.S. physically attacked C.S. in the child's presence. A dispute about the child followed, and last week's decision established a number of legal principles. The court found the 2007 custody order void as a circumvention of the state's adoption laws. I can't help but wonder who gave this couple legal advice. Perhaps there was something in their background that made a lawyer believe an adoption would not be granted after a social worker completed a home study. On the other hand, had this couple lived in the District of Columbia (at least under current law), the child would have had two parents from birth based on the couple's consent to the insemination of C.S. with the intent that both women would be parents of the child. (I'm assuming that was the case....why else go to the trouble of getting a court order establishing a legal relationship between the partner and the child?) In other words, M.S. would not have needed to adopt a child that was hers already.

M.S. did argue that she was S.'s legal parent because of her consent to the donor insemination. She asked to be treated the same way a husband would be treated who consented to his wife's insemination. And here is an interesting point about Indiana: It has no statute saying that a husband is the father of a child born to his wife, with his consent, using donor insemination, yet the Indiana Supreme Court held in 1994 that a husband was, indeed, a father under those circumstances. So this court could have been as creative in its reasoning and found that M.S. was a parent. But the court got around that by saying that M.S. didn't raise the issue in the trial court and so could not raise it on appeal. That does leave the door open for a nonbio mom to raise the issue in the future, but I wouldn't count on it being a winning argument.

Finally, the court accepted the possibility that M.S. could get visitation rights even though she was not a parent and even though the previous court order was invalid. The court cited a 2005 Indiana Supreme Court ruling leaving open that possibility when two women raising a child together split up. But since M.S. could only get visitation rights based on the best interests of the child, the court affirmed the trial judge's ruling that such visitation would not be in S.'s best interests. The trial judge held a hearing, and the record showed that M.S. pushed C.S. in the presence of the child and said to S. that she was going to "f***ing kill your mother."

So the good news, sort of, is that M.S. got a hearing based on the child's best interests. It's hard to be sympathetic to M.S., given her actions. But here's what leaves me uncertain. Had M.S. been a legal parent, the case would have proceeded differently. A court would have made a real effort to address the relationship as a whole rather than one possibly isolated event. (Maybe it wasn't isolated, but we don't know that). Fathers get supervised visitation if there is a concern for a child's safety. They don't get cut out entirely. This girl was 6 years old when the couple split up, and if she had two parents then losing one entirely should not be done lightly. On the other hand, if M.S. is the abusive batterer she might be, then she should lose, but so should a father in that situation, and that never happens.

Two wrongs don't make a right, and children of abusive lesbian mothers need protection. I'm left wishing I had more facts. But I'm also clear that the dispute should have been treated as one between parents, and that it surely was not.

The heart of the Perry case and why LGBT families should not distance themselves from single mothers

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

New Mexico court ruling on lesbian mom likely to have limited impact -- but it's still dead wrong

New Mexico is the only jurisdiction other than DC that grants parental status to a person (male or female; married or not married) who consents to a woman's insemination with donor semen with the intent to parent the child thereby conceived. That means that for cases beginning this year, where conception takes place through donor semen, both members of a lesbian couple are a child's parents if they have both signed an agreement concerning the insemination or if they have both received the child into their home and held the child out as their own.

This law was not passed in time to help Bani Chatterjee and her daughter, who this week lost their right to a parent-child relationship in a 2-1 ruling from the New Mexico Court of Appeals. And because the child was not born to Chatterjee's partner, but was rather adopted by her, the law would not have made Chatterjee a parent in any event.

The court has all the facts it needed to consider Chatterjee a parent. Chatterjee and her partner, Taya King, were together for 15 years, beginning in 1993. In 2000, they travelled to Russia together to adopt a 13-month-old child, but only King completed a legal adoption since same-sex couples cannot adopt there and because there was prejudice against Chatterjee on the basis of her race. For the subsequent 8 years, the couple raised the child together as two mothers. Then Chatterjee moved out and, after an initial period of allowing visitation, King stopped all contact. Chatterjee filed a petition to establish parentage.

All three judges agreed that the New Mexico parentage statute did not allow Chatterjee to be declared a parent. Its previous version of the Uniform Parentage Act allows a man to be presumed a parent if he "openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child." It also reads that "insofar as practicable, the provisions of the [UPA] applicable to the father and child relationship apply" to determining a mother-child relationship. Since Chatterjee could meet that test, she asked to be declared a parent. It may be understandable for a court to hold that these provisions do not apply at all to a child adopted by one parent. But the majority went further and said they would not apply to any woman's attempt to be declared a parent. This is a ruling in direct contradiction to the California cases interpreting identical language. But because New Mexico's current UPA explicitly makes a woman a parent of her partner's biological child if the couple consented to donor insemination, this section of the court's reasoning is superceded by the new statute for any child born to a woman's partner and conceived using donor semen.

The majority then dismissed Chatterjee's claim to parentage based on various equitable theories. This is where the dissenting judge parted ways. Even though the New Mexico appeals court ruled in favor of a nonbio mom in 1992, becoming one of the first states to do so, this court decided that neither equitable nor psychological parentage gave Chatterjee the standing to request custody of her child. The dissenting judge reasoned that if Chatterjee could prove the elements of psychological parenthood, including King's fostering of a parent-child relationship between Chatterjee and the child, then Chatterjee should be able to argue for custody.

Chatterjee and her child do get a consolation prize. All three judges agreed that she could request visitation rights and that visitation rights could be granted without violating King's constitutional right to raise her child. King relied on the Supreme Court case of Troxel v. Granville, which overturned a ruling granting visitation rights to grandparents. The New Mexico court, however, distinguished that case on its facts and rightly held that Troxel does not require a court to find a legal parent unfit before it awards visitation to another party.

The good news in the case, as a practical matter, is that the ability to get court-ordered visitation gives a mother in Chatterjee's position enough bargaining power to get an agreement with a legal parent for a continuing relationship with the child. The states that preclude any court-ordered visitation give the legal parent the unilateral power to cut off all contact, even in a case like this where the child is 10 years old and has been raised by both women since her adoption as a toddler.

And, as I said at the beginning of this post, for lesbian couples in New Mexico using donor insemination, full parentage, not just access to visitation, is established for a nonbio mom. For those who adopt, however, as this couple did, this case will remain the law unless Chatterjee appeals to the New Mexico Supreme Court and gets a reversal.

Illinois legislature passes civil unions: different-sex couples also eligible

In yesterday's post on the DADT repeal recommendations, I noted that the report opposed creating a "same-sex relationship" status for gay servicemembers, in large part because it would appear unjust and unequal to differentiate between same-sex and different-sex committed couples. Well the Illinois Senate has just approved civil unions there, and the governor will sign the bill, and when it becomes law the status will be available to both same-sex and different-sex couples. Only Nevada and the District of Columbia have created a status that is also open to different-sex couples (both jurisdictions called the status "domestic partnership" but because it extends to those who register virtually all of the state-based legal consequences of marriage it is the same as what others states call a "civil union."). The Hawaii civil union bill which was vetoed earlier this year by the state's Republican governor also included different-sex couples.

Colorado allows different-sex couples to register as "designated beneficiaries" (as well as any two unmarried people), and that gives some of the important legal consequences of marriage, like the right to inherit without a will and the right to sue for wrongful death, but it gives nowhere near all the legal consequences of marriage. (I like this status because those who sign up can choose their own legal consequences.) California and Washington also allow different-sex couples to register, but only if one partner is 62 or older. (This is supposedly to protect benefits that might be lost if a recipient remarried, but the specific age chosen - 62 - does not actually correspond to any legal consequence of remarriage, so go figure...)

If Illinois creates a critical mass and is a precursor of things to come, I say it's about time. We may well have come full circle to the impetus behind the first domestic partner benefits implemented in the 1980's; those benefits were available to gay and straight couples because their purpose was to make marriage unnecessary to protect the well-being of a loved one. When Vermont implemented the first "civil union" status but restricted it to same-sex couples, heterosexual feminists rightly complained that they were being inappropriately forced into marriage.

Same-sex only civil unions send two messages: marriage is really special and different-sex couples should be required to marry to get any recognition; and same-sex couples are less worthy and can be cabined in a status developed just for them. I detest both these messages.

After Nevada passed its domestic partnership law, I spoke with some of the key players in that political process. They all said that including different-sex couples was virtually a given, that allowing heterosexuals access to domestic partnership was important to garner more widespread support and represented the value of equality. To me, it's all about making marriage matter less as a legal status, and that's a good thing.

"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)

The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers.

The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.

But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.

The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:

We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.

This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.

With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:

There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.

The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.

The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.

But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.

Conference to examine the "New Illegitimacy"

On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."

The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.

I sent the following call for papers to numerous family law academics:

It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.

Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). Massachusetts, the first state to permit same-sex couples to marry, will recognize the spouse – male or female -- of a woman who conceives through donor insemination as a parent. If the couple is not married, however, the child has only one parent. New York also recognizes a nonbiological mother as a legal parent only if she is married to, or in a civil union/domestic partnership with, the child’s biological mother. In Iowa, the state has yet to recognize that married lesbians are both the parents of a child born to one of them, but even when it does there will be no recognition that a child whose mothers are unmarried has two parents. No court has yet extended to the children of same-sex couples the well-established principle that the law should not discriminate against children born outside marriage.

Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.

These developments are taking place in the context of a broader dispute over family structure. Those who argue that children achieve optimal outcomes only when raised by their married biological parents urge legal principles disfavoring all other family forms. Explicitly or by implication, they disparage adoptive families, single mothers and fathers, families formed through assisted reproduction, kinship caregiving, children with more than two functional parents, and numerous other households in which children grow and thrive. Rather than advocate law reform that values all children in all families, they seek to privilege “legitimate” children in a fashion that mainstream family law rejected decades ago.

The American University Journal of Gender, Social Policy & the Law and the National Center for Lesbian Rights are co-sponsoring a conference addressing the issues raised by recent developments privileging the children of married parents. With some states now dividing the children of same-sex parents into those who are “legitimate” and those who are “illegitimate,” it is critical that law reform efforts on behalf of gay and lesbian families forcefully articulate that this approach harms children and furthers no proper public purpose. The conference planners seek papers on this conference theme.

While this debate arises from controversy over the status of children in the various family forms that lesbians, gay men, and transgender people are creating, we strongly encourage papers that tie in the needs of other children facing the stigma of “illegitimacy” because their family does not fit the mold of one biological mother married to one biological father.

Happily, I received far more interest in this topic than I imagined, and there will be a terrific line-up of law professors presenting papers. Confirmed participants include: Susan Appleton (Washington U.), Nicholas Bala (Queens University - Canada), Carlos Ball (Rutgers-Newark), Cynthia Bowman (Cornell), Sacha Coupet (Loyola-Chicago), Ariela Dubler (Columbia), Katherine Franke (Columbia), Joanna Grossman (Hofstra), Leslie Harris (Oregon), Melanie Jacobs (Michigan State), Solangel Maldonado (Seton Hall), Serena Mayeri (U. Penn), Melissa Murray (Berkeley), Julie Shapiro (Seattle), Catherine Smith (Denver), Dean Spade (Seattle), Richard Storrow (CUNY-Queens), and Tanya Washington (Georgia State).

If you are interested in this topic, please plan to attend the conference. There is no registration fee (we ask you to register so we know how many mouths we'll be feeding!).

Kudos to American University for expanding domestic partnership benefits to include different-sex couples

It's no surprise to readers of this blog (or my book) that I dislike domestic partner benefits extended only to same-sex couples. The first employer-provided DP benefits were for same- and different-sex partners, and the theory behind them was that "marriage" was too narrow a category for what counted as family and that a couple should not have to marry for one to be able to protect the economic well-being of the other. The rise of DP benefits for same-sex couples only, however, reflected a different perspective, one based solely on the inability of same-sex couples to marry. Same-sex only benefits accepted marriage as a proper criterion for extending benefits but gave same-sex couples benefits only because they could not marry.

The trend, as states have allowed same-sex marriage or other formal status, has been towards eliminating domestic partner benefits altogether and extending benefits only to married (or civilly united or registered) couples.

So I am thrilled to report on the new policy of my employer, American University. We have had same-sex only benefits for many years (and that is how my partner has health care). Over the years, my heterosexual colleagues have been shocked and angered that they have no access to these benefits for their partners. I can identify one colleague for sure, and there may be others, who married to cover a different-sex partner and would not have done so otherwise.

Well, effective in 2011, American University now provides DP health benefits to both same-sex and different-sex partners. When I inquired about the change I learned that at least one of the reasons is that different-sex couples can register as DPs in the District of Columbia and that insurance products that extend to spouses are required to extend to registered DPs as well. Whatever conversation this precipitated among our Human Resources staff resulted in the change in policy, which is not limited only to those who register in DC.

Here is how the new policy works. Any two people who have registered with a government agency as domestic partners, civil union partners, or reciprocal beneficiaries can automatically obtain coverage as DPs under the American University health plans.

Or, the couple can qualify if they satisfy enumerated criteria and can show that they have met those critieria for at least 12 months. They must live together, intend to do so indefinitely, meet the age/competency/not incest rules applicable to marriages in DC, and be "financially interdependent" and "responsible for each other's common welfare." To demonstrate the latter two criteria, the couple must have two of the following, and must have had them for at least 12 months: joint home ownership or tenancy; joint car ownership; joint bank account; joint credit cards or loans; a will naming the other as a beneficiary; durable powers of attorney; designation as primary beneficiary on a retirement plan or life insurance policy.

I could quibble at the margins with some of these requirements, but basically they hit the mark. The purpose of extending these benefits is to afford economic and emotional security to employees who seek to provide for the well-being of those with whom their lives are most intimately intertwined. Marriage or partnership registration are bright lines, but such lines are unjust; they make marriage mandatory and implicitly disrespect relationships, even long-term ones, between unmarried partners.

Now to the details of the AU standards. The 12-month requirement is long enough to accomplish two goals: minimize attempts to gain benefits when there is no real partnership between the employee and the other person, and ensure that there is the kind of financial interdependence that makes it appropriate to recognize the two people as a unit for employee benefit purposes. I strenuously oppose requirements like this when the legal issue is surrogate medical decision-making or hospital visitation (see my blog post here); whom the patient would choose to make a medical decision has little to do with joint bank accounts. If a person has not written a medical power of attorney naming a surrogate decision-maker, the default rule should be designed to pick the person the patient would pick and pick the person who most knows what the patient would want. That doesn't even require two people who live together; a close friend may be a better choice than a distant and estranged sibling.

But I'm satisfied that financial interdependence is appropriately required for a benefit that is based on the assumption that two people are making decisions, including decisions about employment, that reflect financial circumstances they have assessed as a unit. My beef is with any rule that presumes that only married couples do this. I'm thrilled that American University now agrees with me.

The new federal hospital visitation rules: "Conscience clauses" do not apply .. and what else the final rule does or does not cover

Of the 78 page publication available today from the Department of Health and Human Services, only 4 contain the actual regulations that will become effective 60 days after publication in the Federal Register. The gist of those four pages is simple. Hospitals governed by the rules of the Medicare and Medicaid programs must tell each patient that s/he has the right to receive the visitors she wants and visitation shall not be denied on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.

This is good news.

The other seventy or so pages report on the comments the agency received on the proposed regulations and the agency's responses to those comments. Here are the points that are most important to the well-being of hospitalized LGBT people.

Number one: The regulations have no impact whatsoever on medical decisionmaking when someone is unconscious or otherwise unable to make decisions. Several comments to the proposed rule raised issues related to medical decisionmaking, and the responses in this document consistently state that the matter is governed by state law and beyond the scope of the new rules. There is a gentle nudge to not only write out an advance directive naming a surrogate decisionmaker but to register that advance directive with a database that hospitals may have access to. (I have long advocated a federal database for advance directives, but for now the only options are some states or a commercial database).

Number two: The "conscience clauses" that you hear about for doctors and other medical personnel who do not want to peform procedures that are inconsistent with their values do not apply to refusing to carry out a patient's wishes concerning who visits or who makes medical decisions pursuant to an advance directive. In other words, a doctor who does not approve of same-sex relationships cannot exercise his "conscience" to refuse to let a same-sex partner make medical decisions if that partner is named in an advance directive.

Number three: Today's document goes to great length to educate medical providers about circumstances that could include medical care for a child of a same-sex couple. It says that a legal adoption is "generally recognized" in another state (the language of the Full Faith and Credit clause would have been more accurate) and that this includes default decision-making that goes with being a legal parent, even if the parent and child cross state lines into a state that would not have granted the adoption. While pointing out that the legal status of a nonbiological or nonadoptive parent is governed by state law, the document also notes that "some states in fact recognize 'de facto' or 'functional' or 'equitable' parenthood, i.e. recognize non-biological and non-adoptive parents as legal parents."

Number four: Oral designation of a "support person" is sufficient to establish who can visit. That person then has the right to make decisions about who visits the patient if the patient becomes unable to say for him/herself whether a visitor should be allowed. The term "support person" is used, rather than "representative," because the latter is thought to have a definition in state law that is too narrow to serve the purpose of these regulations.

Number five: Only when a patient is incapacitated and so cannot make an oral designation, and more than one person claims the right to be the patient's "support person," can a hospital require any documentation. In those instances, the documentation the hospital can examine includes an advance directive, shared, residence or property or business ownership, financial interdependence, "marital/relationship status," existence of a legal relationship recognized in another state, an affidavit acknowledging a committed relationship, something in writing from the patient even if not a legally recognized advance directive.

So if your go to the hospital with your partner or your close friend, and that person is unconscious, you should not be required to provide documentation to show that you qualify as a support person. Think Karen Thompson arriving at the hospital to see Sharon Kowalski, turned away when she identified herself as a close friend who lived with Sharon. Sharon's parents were not around at the time. Under the new rules, she should not be turned away.

If both Karen and Sharon's father are there, however, the hospital can require documentation, but the rules do not require the hospital to pick a legal relative (e.g., parent) over someone with no legal relationship as the "support person." Again, this is not the same as a medical decisionmaker, which is governed by state law.

When there are conflicts between two people, the response to several comments notes that "[medical facilities] may also choose to utilize their own social work and pastoral counseling resources to resolve such conflicts to assure the patient's well-being." (Aside from me: Some states -- Colorado is one -- actually require by law that if all the people concerned about an unconscious patient cannot agree on a health care decision, they have to get together and try to agree; otherwise, any of them can go to court to try to get guardianship. "Close friends" are included in this group. I've had a doctor in Colorado tell me it works really well...)

A final note of interest. In response to some comments asking for examples of when patient visitation rights had been violated, the final rule refers the reader to the website that contains all the personal submissions that prove this really has been a problem in numerous instances. Of course there are 1266 public submissions so don't delve in unless you're prepared for a lot of pointing and clicking!

DADT hurts gay parents and their children

On The Nation website today, National Center for Lesbian Rights attorneys Ilona Turner and Daniel Redman write about the impact of DADT on servicemembers with families. The article contains numerous examples of servicemembers subject to a form of blackmail by ex-spouses who fight for custody of children born during prior heterosexual marriages. It doesn't matter whether the lesbian or gay parent lives in a state that fully supports the rights of LGBT people to raise children; the parent may not lose her child, but she will lose her job. As the authors point out, DADT doesn't really mean don't tell the military; it means don't tell anyone. Unfortunately, DADT is also a weapon that a gay civilian can use against a military ex-partner; San Francisco attorney Deb Wald describes such a situation in the article.

When DADT means that a servicemember can lose her children, it turns those children into a form of collateral damage. Does anyone remember that DADT was supposed to be an improvement on the prior rule, which completely excluded gay people from serving in the military? The increase in discharges put the lie to that. And lesbian servicemembers continue to be discharged at a higher rate than gay male servicemembers. We should thank the authors of this piece for bringing to light the harm DADT causes them and their children.

Lesbian mother vs. convicted murderer father is the subject of an upcoming documentary

I spend a lot of time writing about gay couples having children and their ensuing legal issues. But I never forget about the gay and lesbian parents who defend their right to their children against heterosexual ex-spouses or other relatives. Filmmakers are preparing a documentary about one such case, Ward v. Ward, decided in Florida in the mid-1990's. Mary Ward lost custody of her 12-yr-old daughter to her ex-husband, who had murdered his first wife. John Ward was remarried, and he and his wife charged that the child had been exposed to improper influences in her mother's home.

You can watch a trailer for the movie, Unfit. The filmmakers are seeking funding to get the movie finished. National Center for Lesbian Rights Executive Director Kate Kendell will appear at a fundraiser for the film in Miami Beach next week.

These gay vs straight custody disputes are not ancient history; they continue today. Lesbian mothers still lose. But they also win. Even in conservative states, there are judges who will not modify custody or visitation rights based on a parent's sexual orientation. We tend not to hear about most cases, because they aren't appealed. Even though a win for one lesbian mom or gay dad could be a huge boost to the morale of another parent fighting for custody, the parent who has won at the trial level is unlikely to want to publicize that victory and risk having the publicity used to claim s/he is not acting in the child's best interests. The key for any parent facing such a custody challenge is finding a lawyer who knows this area of law or is willing to be guided by the experts at the National Center for Lesbian Rights.

Supreme Court -again- turns back Lisa Miller

Just a couple of weeks ago, the Vermont Supreme Court upheld a trial court's ruling that custody of Isabella Miller-Jenkins should be transfered to her nonbio mom Janet Jenkins. Isabella is, of course, the child at the center of the longest running dispute between lesbian ex-partners over custody of the child they planned for and raised together. Bio mom Lisa Miller has lost in the courts of Vermont and Virginia on multiple occasions, and is now living in hiding with the child.

Well this week Miller got one more rebuff, this time from the US Supreme Court, which refused to hear the most recent ruling from the Virginia courts requiring enforcement of the Vermont court orders. I wrote about the latest Virginia ruling here. It's not surprising the Supreme Court isn't hearing the case. It hears very few cases, and the legal issue concerning recognition of child custody rulings properly granted in other states is settled law. It's not surprising either that Liberty Counsel, who represents Lisa in both Vermont and Virginia, keeps asserting legally untenable positions. And with Isabella underground, all these rulings are just so many pieces of paper.

National Longitudinal Lesbian Family Study reports findings on 17 year old children of lesbian moms

Earlier this year, I wrote about the well-being of the 17 year old children of lesbians in the US National Longitudinal Lesbian Family Study (NLLFS). Now there's more data on these children, this time published in the Archives of Sexual Behavior. The current article examines the sexual orientation, sexual behavior, and sexual risk exposure of seventy-eight 17 year olds whose mothers enrolled in the NLLFS before their birth. Psychiatrist Nanette Gartrell and her colleagues have been studying these children and their families beginning in 1986. Their research findings are the response to all the naysayers who argue that there is no longitudinal research on the children raised in planned lesbian families. Turns out there is.

Here are the punchlines on the data in this report: None of the children had been physically or sexually abused. They were less likely (and for the boys much less likely) than an age- and gender-matched group from the US National Study of Family Growth (NSFG) to be sexually active. And those who were sexually active were older at first contact than the NSFG group. Those findings, on a general level, rebut assertions that our families are highly sexualized and expose children to a heightened risk of sexual abuse. On this latter point, the researchers note that the children grew up in homes without adult males, and adult heterosexual males are largely the perpetrators of sexual abuse in the home. (Utah law professor Clifford Rosky has argued the importance of acknowledging the gender of sexual abuse and of responding to arguments about gay fathers with the research showing that gay men are no more likely than straight men, in proportion to their numbers, to sexually abuse children. The NLLFS includes only children of lesbian mothers.)

As for the sexual orientation and sexual behavior of the children, the researchers asked them to self-rate on the Kinsey scale (0-6, with 0 exclusively heterosexual and 6 exclusively homosexual). Grouping 0-1 as essentially/predominantly heterosexual, 2-4 as on a bisexual spectrum, and 5-6 as essentially/predominantly homosexual, researchers found that about 81% of the girls and 91% of the boys were heterosexual, about 19% of the girls and 3% of the boys were bisexual, and no girls and about 5% of the boys were homosexual. The girls, but not the boys, were more likely than the age matched NSFG group to have engaged in same-sex activity.

Sociologists Judith Stacey and Timothy Biblarz wrote in 2001 that one would expect the children of same-sex couples to be more open to exploration of same-sex relationships. They criticized advocates for LGBT parents for insisting there were no differences between children raised by gay parents and children raised by straight parents. Rather, Stacey and Biblarz asserted that there were no differences that should count as deficits and no differences that should cause judges and child welfare agencies to discriminate against gay parents.

For years, opponents of same-sex couples raising children have engaged in a sleight of hand when discussing research on the well-being of children. When a study supports their point of view, they use it without critique of its methodology; when a study does not support their point of view, they trash it for methodological weakness. What will they do with this study? They will certainly want to use the finding on the same-sex sexual activity of the girls, but they won't want to mention that the children were less likely to be sexually active at all, and were older on first sexual contact, than the comparison group.

But advocates for our families need to watch out also. I've already seen a headline that "study finds 0% abuse in lesbian-headed households." As far as I know, no one has ever claimed that children with gay parents are more at risk for non-sexual physical abuse; the alleged concern is always sexual abuse. Well women commit very little sexual abuse period. In fact, if we were using general data on sexual abuse in making child placement decisions we would always pick single or coupled women as custodial, foster, and adoptive parents. We ought to admit, as Clifford Rosky has argued, that the concerns about sexual abuse are directed at gay men, not at gay and lesbian parents lumped together. Then we can fight back with the data that gay men are not more likely than straight men to sexually abuse children. There is such data. Just not in this research.

This child has two fathers....sort of...and this is not a story about gay dads

A California appeals court has provided us with yet another story of complex family life to which law must respond. The case is Citizens Business Bank v. Carrano. Doesn't sound like a family law case, does it? Turns out it's a case about inheritance, specifically about the terms of a trust. The law of wills, trusts, and estates is often really family law....it's just that someone is dead.

In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.

The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.

The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.

The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.

So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.

There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.

As I often tell my family law students, I couldn't make up these facts....

Creating "truth" through reciprocal citation practices dates back before the internet and cable news

A lengthy segment on The Rachel Maddow Show (I am a huge fan) last Thursday focused on the creation of "truth" through simply repeating falsehoods espoused by others and using those other sources as evidence of the facts asserted. Naturally, Fox News and the internet play large roles in the story.

The segment made me think of a phenomenon first identified by the sociologist Judith Stacey in a 1994 article in Social Text and later more fully described in her 1996 book, In the Name of the Family. The early 1990's saw the emergence of opposition to gay and lesbian families, single mothers, and any childrearing outside life-long heterosexual marriage based not on arguments about God and morality (that was so 1980's) but rather based on social science. Social scientists, historians, and other advocates who claimed they were centrists asserted that children needed to be raised in two-parent mother/father families. Deviation from that family structure, they argued, spelled doom for the mental, physical, and emotional well-being of those children and concommitantly for the well-being of society.

Through carefully tracing who was citing whom (in those pre-Google days), Stacey described the practice of reciprocal citation. "Through the sheer force of categorical assertion, repetition, and cross-citation of each other's publications," she wrote, "these social scientists seem to have convinced most of the media, the literate public, and Clinton himself that a fault-free bedrock of social science research validates the particular family values that they and most American claim to favor, but fail to practice."

After documenting the practice with numerous examples, Stacey concluded:

"It is not often that social construction, or more precisely here, the political construction of knowledge is quite so visible or incestuous as in the reciprocal citation practices of these cultural crusaders."

Rachel Maddow could give us a video montage, while Judith Stacey could only provide words on the page. The visual images are both horrifying and depressing. But even without today's tools of cable news and the internet, the force of reciprocal citation did great harm. It gave us, among other things, "welfare reform" and the Defense of Marriage Act.

More conservative state supreme court judges could hurt LGBT family law

By now everyone knows that the three Iowa Supreme Court justices up for a retention election all lost their bids to remain on the court, the result of a coordinated, highly financed campaign to send a message against their vote for marriage equality. In a segment on Democracy Now this morning, Adam Skaggs of the Brennan Center for Justice puts the Iowa vote in the larger context of judicial elections across the country. His report on the funding of state court judges elections is a sobering look at both the present and the future.

There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts. I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.

Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.

It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.

This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.

Vermont Supreme Court agains rules in Janet Jenkins' favor

In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.

The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:

We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.

Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.

The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."

At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.

Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.

The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.

I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.

I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.

I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.

But my heart still goes out to Isabella.

New York court upholds California parentage judgment in surrogacy case

Surrogacy is illegal in New York (DC also!). That doesn't stop a New Yorker from going someplace where surrogacy is legal to have child. A gay male couple, DP and TR, did just that. They went to California, where a gestational mother became pregnant using a donor egg and semen from DP. Pursuant to a standard California practice, they went to court there, along with the surrogate and her husband, and obtained a pre-birth order naming DP and TR the parents of the twins about to be born. The children were born in August, 2001, and the names of both men appear as the parents on the birth certificates. The twins were born prematurely and hospitalized for over four months. During that time DP and TR relocated to California to be near them until they could be released to travel to New York.

At some point, the couple broke up, and DP filed for child support in New York Family Court. TR argued that, because surrogacy was against the public policy of New York, parentage deriving from the surrogacy arrangement should not be recognized in New York. On October 4, Magistrate Rachel Parisi rejected that argument. She noted first that there is no public policy exception to the enforcement of judgments from courts in other states. Therefore, the parentage judgment was entitled to Full Faith and Credit in New York. She independently relied on a 2005 ruling that New York statutes contemplate that a court will determine parental rights and responsibilities even when a child has been born from a surrogacy arrangement. (That's the law in DC as well; one of the first second parent adoptions granted in DC, in the early 1990s, was in the case of a gay male couple whose child was born in Virginia as a result of a surrogacy arrangement.)

DP's lawyer, Steven Weissman, is quoted in today's New York Law Journal as saying that the decision is significant for the number of New Yorkers who enter surrogacy arrangements elsewhere, and especially for gay male couples who often travel to California because pre-birth orders are available there.

The case underscores the importance of obtaining a court judgment (either of parentage or adoption) any time a same-sex couple is raising a child, even if they are married or in a registered relationship (civil union or domestic partnership). And even here in DC where both women in a lesbian couple are the legal parents of any child born to one of them using donor insemination. Parentage by virtue of a state statute may be challenged elsewhere. Parentage confirmed by a court judgment is entitled to Full Faith and Credit everywhere. I know I've said this often in this blog, but it bears repeating. What seems like a legal technicality, and what may be intimidating and expensive because it requires a lawyer and a court, turns out to be the only guarantee that a child planned as the child of two parents will have two legal parents forever.

Oregon Tax Court ruling points the way towards compulsory marriage

Last month the Oregon Tax Court ruled on the constitutionality of an administrative rule allowing same-sex but not different-sex partners to exempt from state tax the imputed value of their domestic partner health insurance benefits.

The challenge was filed by Yvonne Haldeman, a taxpayer with an unmarried different-sex partner who, in 2007, tried to subtract $5313 from her gross income because that was the imputed value, for federal tax purposes, of the health insurance provided by her employer for her partner. (The details of her specific situation are in the opinion of a tax court magistrate who heard the case in 2008).

Haldeman argued that the rule violated the Oregon Constitution's privileges and immunities clause which "forbids inequality of privileges or immunities not available upon the same terms...to any class of citizens." She argued that the class of citizens of which she was a member was unmarried different-sex partners. The background for this issue is the 1998 Tanner case, in which the Oregon appeals court found it unconstitutional to grant health insurance benefits to the spouse of a married public employee but not to a same-sex partner who could not marry the employee. The Oregon Attorney General subsequently concluded that it would violate the state constitution to permit a spouse, but not a same-sex domestic partner, to subtract the value of the health insurance benefit from gross income for tax purposes. The administrative rule at issue defines "domestic partner" as someone under no legal disability to marry the other person but for the fact that each is the same sex and who would marry that person if Oregon law permitted it.

Haldeman argued that the class for purposes of constitutional analysis was unmarried different-sex partners vs unmarried same-sex partners. The Tax Court rejected this, specifically because the rule applied only to those same-sex partners who would marry if they could. Therefore, the Tax Court found the class to be married vs unmarried persons. Tanner found sexual orientation to be a suspect class. It also determined that immutability was not an absolute requirement for suspect class status; rather a class is suspect if its characteristics are "historically regarded as defining distinct, socially recognized groups that have been the subject of adverse social or political stereotyping or prejudice." The Tax Court then determined that marital status was not a suspect class and that neither single status nor marital status has resulted in routine targeting for adverse treatment over the years. The opinion states that Haldeman did not argue that her class had historically suffered prejudice or stereotyping. Rather she argued that the very rule she challenged put her through "adverse social and political prejudice," and the Tax Court disregarded this, stating that she "does not elaborate on this assertion, does not contribute any evidence of her assertion, and does not cite to any case law supporting an argument of mistreatment of unmarried persons."

As a result of the above, Haldeman was not in a suspect class. Applying the rational basis ("any conceivable state of facts") test, the Tax Court found that the rational basis was avoiding the litigation that would likely have followed after Tanner had the state continued to include the value of the benefit in the gross income of an employee with a same-sex domestic partner. The Tax Court did not adopt the reasoning of the magistrate in his 2008 ruling that "it was rational for the legislature to assume that the financial benefit inuring from the exemption provided an incentive for people to marry." Yet the reasoning it did use seems not credible to me. How can the purpose of a rule be avoiding litigation, as opposed to some substantive benefit provided by the rule? As it turned out, the rule did not avoid litigation; after all, Haldeman sued.

I applaud the Tax Court's implicit (unfortunately) rejection of promoting marriage as the legitimate interest furthered by the distinction in the rule. But I question the part of its reasoning that disregards precisely the prejudice and stereotyping that unmarried couples have historically suffered. Once immutability is not a prerequisite for determining a suspect class, there is a strong evidence of the longstanding prejudice against unmarried couples.

Of course this issue feeds into the argument I have been making over many years. The arguments for access to marriage for same-sex couples glorify marriage. They diverge from the arguments made in the past that marriage should not determine who gets benefits. In 2000, Lambda Legal filed a friend of the court brief in 7th Circuit Court of Appeals in support of Milagros Irizarry, a heterosexual city employee denied access to domestic partner health benefits available to same-sex couples. Irizarry lost, but Lambda Legal entered the case even though gay and lesbian employees were receiving the benefits. Lambda Legal took a position against making marriage compulsory for straight couples. I doubt the organization would have assisted Yvonne Haldeman in her case in the Oregon Tax Court.

In fact, Lambda Legal is not representing the different-sex domestic partners who lost their benefits in Arizona. You could read all of Lambda's publicity about the case, Collins v. Brewer, without ever realizing that different-sex domestic partners were receiving benefits and that those benefits were also terminated. In fact, this Lambda press release describes Arizona's action as "eliminating health benefits for gay state employees" when all state employees lost their domestic partner benefits. The University of Arizona recently notified its employees that a court injunction issued in July does not prevent the termination of benefits to different-sex partners.

The fight for domestic partner benefits started in the 1980's as a fight against mandating marriage before an employee could protect the health of his or her family. All the early domestic partner benefits (think The Village Voice and Ben & Jerry's) were open to unmarried couples of any gender. A decade ago, Lambda Legal endorsed that position. Apparently it no longer does.

I'm reminded all the time by leaders in the marriage equality movement that they are fighting for the choice to marry. And I consistently reply that there is no "choice" when marriage is the only way to obtain economic protections for a family unit. Both Haldeman and Collins v. Brewer prove my point.