Monday, February 22, 2010

US Supreme Court lets stand California court ruling on nonbio mom's parentage

Last June I posted on a spectacular ruling by the California Court of Appeal in the case of Charisma R. v. Kristina S. The court ruled that the nonbio mom, Charisma, was a parent, based on the couple's joint planning for the child and the fact that the couple brought the child into their home together and held the child out as the child of both of them. It therefore treated the dispute between the two women as a dispute between two parents, rejecting Kristina's claim that she had a constitutional right to raise her child free from interference from Charisma.

The biological mother in the case was represented by the right-wing legal group Liberty Counsel. After the California Supreme Court declined discretionary review of the Court of Appeal ruling, Liberty Counsel filed a petition for certiorari in the United States Supreme Court, asking the Court to find that Kristina's constitutional right to raise her child was infringed by California order. Today, the US Supreme Court declined to hear the case. In a press release praising the denial of cert, Cathy Sakimura of the National Center for Lesbian Rights, points out that Charisma would not have been able to pursue her rights without the free legal assistance provided by NCLR and its partner attorneys.

A denial of cert has no precedential value. In other words, it cannot be cited for the proposition that acknowledging the parentage of a nonbiological mother is definitively constitutional. Still, the California opinion in Charisma R. contains the clearest and most comprehensive analysis of why US Supreme Court cases on parental rights do not foreclose Charisma's parentage and actually protect a person designated as a parent under state law as Charisma was in this case. The cert denial can't help but add the tiniest bit of "oomph" to any citation of the case in other states.

Thursday, February 18, 2010

Louisiana must issue birth certificate naming two dads

After Oren Adar and Mickey Ray Smith completed an adoption in New York of a child born in Louisiana, the couple sought a new Louisiana birth certificate for the child containing the names of the two men as her parents. Louisiana refused to do it, saying it was against the state's public policy to recognize two fathers for the child.

The federal district court in Louisiana ordered the state to issue the birth certificate. Today that decision was affirmed by the Fifth Circuit US Court of Appeals. Thank you, Full Faith and Credit Clause. That's the section of the US Constitution that requires states to recognize the court judgments of other states. This provision is the absolute key to assuring that children who are the subject of adoption decrees or parentage orders in one state will still have two parents when they move to another state. The Adar v. Smith (Smith happened to be the name of Louisiana's State Registrar -- no relation to Adar's partner, Mickey Smith) ruling restates what the US Supreme Court has said continuously, that there is no "public policy" exception to the Full Faith and Credit Clause.

Judgments from a state court are different from a state's statutes. Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union, for example, Louisiana might not have been required to recognize their dual parentage. It's a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.

Louisiana could petition the US Supreme Court to review the decision of the 5th Circuit. I'd bet my legal career the Supreme Court would choose not to hear the case. The 5th Circuit also governs Mississippi and Texas, so those states, too, have now been read the riot act on trying to get out of what the Full Faith and Credit clearly requires, whether they want children to have two same-sex parents or not.

Monday, February 15, 2010

Gay people missing from recent GAO report on Social Security

Shortly after posting about the flaws in the upcoming "Rock for Equality" action, I came across a post on the Elder Law Profs Blog about a Government Accountability Project report released last month. The report, Social Security: Options to Protect Benefits for Vulnerable Groups When Addressing Program Solvency, acknowledges and addresses the way Social Security currently deals with families. It highlights the preferential treatment given one-earner households and the disadvantages faced by dual earner couples. It discusses the vulnerability of women. The report draws the many years of work by researchers at the Urban Institute and the Institute for Women's Policy Research whom I referenced in my previous post, as well as the National Women's Law Center and other advocates and scholars.

There is no mention in the report, at all, of the distinct needs of lesbians and gay men and our families.

If gay rights advocates wanted to strengthen and improve Social Security for the most vulnerable in the LGBT community, they needed to be connected to the broader movement already way ahead in looking at our current system. I have been urging this for years. What I thought was that Social Security was nowhere near the top of the list of issues that gay organizations wanted to address. So to discover that two of our leading gay rights groups do indeed want to focus on Social Security, but without a coalition effort, without acknowledging that their narrow demand will help only one subset of the gay community and will actually replicate part of the problem reformers are trying to address is, well, maddening.

Of course it is also maddening that to date the efforts of feminist and progressive researchers and advocates have completely overlooked the distinct needs of lesbians and gay men and our families when it comes to Social Security. But that's why we have to be connected to those groups, to have the exchange of information and perspective that will ensure that our constituency is represented and that our advocates see the bigger picture of which we are a part.

Rock for Equality is a misguided action. I do not support it. In fact, it embarrasses me to be a part of a movement that actually thinks this is the way to tackle the Social Security issue from a gay rights perspective. I explained the problem in detail in my earlier post. It's too late to be included in the recent GAO report. It's not too late to get in touch with the experts who for years have been looking to reform the way Social Security treats families, so we can be included in their future work and the needs of all of us, including single LGBT individuals and same-sex couples with two relatively equal earners, can make their way into the next government report.

Thursday, February 11, 2010

LA Gay and Lesbian Center and NGLTF lead misguided action about Social Security

As a long-time champion of the National Gay and Lesbian Task Force, it pains me to have to criticize that organization, as well as the Los Angeles Gay and Lesbian Center, for its just-unveiled Rock for Equality action. The premise of the action is simple -- and misguided: that same-sex couples, who, even if they marry, cannot have their marriages recognized under federal law, are discriminated against in social security benefits. Leaders of the two groups make the following statements on the action's website:

Lorri L. Jean: "LGBT Americans are being treated unfairly by Social Security—it’s as simple as that. ...Why should a LGBT widow or widower have to give up the home they have shared for years with their partner when that partner dies? Preventing such tragedies is exactly what Social Security Survivor’s Benefits are for!"

Rea Carey: "It’s unthinkable that in America, countless LGBT seniors — widows, widowers, and other retirees — are being systematically short-changed by unfair Social Security policies. ...Social Security was created to protect all Americans in their later years. It is utterly un-American that this institution discriminates against LGBT citizens."

I think most people reading the description of the problem on this website would think, at a minimum, that Social Security gives all married (heterosexual) couples a benefit that it denies to LGBT couples (whether or not they are married in the state where they live). A friend of mine said this to me: "When [my partner] dies, I can't get her social security benefits," as though if she and her partner were recognized as married by Social Security (or if they were a married heterosexual couple), she would get a benefit she is otherwise deprived of. As though every surviving spouse "inherits" something from Social Security.

This is a hard issue to understand and to explain. I'm going to try. One type of married couple gets this kind of windfall under Social Security -- it's the type of family that Congress had in mind in 1939, when it created the system and only 15% of married women earned their own income. When one spouse has earned all or the vast majority of the couple's income, the non-earner or low-earner spouse gets a retirement benefit equal to half her spouse's, even if she never paid into Social Security; and if her spouse dies first, she will then receive the amount of money he was receiving. Example: If his lifetime earnings entitle him to $1,800/month in benefits, she will receive $900 while he is alive and $1,800 once he dies. (So the household has $2,700/mo. while he is alive and $1,800 when he dies).

When a same-sex couple resembles this couple's earning pattern, that couple is, indeed, disadvantaged by being considered unmarried, when the couple is actually married in a state that allows it.

But same-sex couples with two earners, whose lifetime earnings are pretty close to each other(I'm pretty sure my friend and her partner fall into this category), will gain nothing by being considered married. Instead, they will find themselves, like equal-earning heterosexual couples (including most African-American married couples), paying more into the system and getting less out. Let's say each partner is entitled to $1,350/mo. based on her own earnings. Sure, if they are married, each can qualify for a spousal benefit. But that benefit is instead of, not on top of, what each qualifies for on her own. So the spousal benefit is only $675/mo. instead of $1,350, which, of course, no one would choose. So that household also gets $2,700/mo. while both are alive. But when the first spouse dies, the survivor simply keeps her own benefit -- $1,350. The surviving spouse sees a 50% cut in benefits to the household, compared to the 33% cut experienced by the surviving stay-at-home spouse whose deceased spouse earned all the family's income.

So Lorri Jean's outrage about one partner losing his home when the other partner dies happens right now to married heterosexuals, given the 50% reduction in household income, as well as to the survivor of a same-sex couple. If Rock for Equality succeeds in getting social security for same-sex couples on the same basis now afforded different-sex married couples, the surviving partner will continue to suffer this dramatic decrease in income unless his partner's lifetime earnings greatly succeeded his own. This is an action calling for support from the entire LGBT community, when only couples who come close to replicating the one-primary-earner household will be helped should the action succeed. All of us in couples where both partners work full-time and contribute close to equally to the household are being asked to support an action that will not benefit us at all. Not at all.

Scholars and advocates unconnected to the gay rights movement have been pointing out for years how unfair this system equal earning married couples and to single parents, whose lifetime earnings suffer because of their childcare responsibilities and who have no income-earning spouse confering a spousal benefit. Research by the Institute for Women's Policy Research and law professor Dorothy Brown demonstrates that black couples are disadvantaged by the current Social Security system.

I have urged gay rights groups to connect with those advocates who criticize the failure of Social Security to equally value current family structures. Instead, Rock for Equality suggests that the social security system in uniquely unfair to same-sex couples. It's an opportunity for coalition work missed...and for what? Or I should say for whom? For the segment of our community who can afford to have one partner work part-time, or be a stay-at-home parent, or make employment choices based on criteria other than maximizing income.

The Rock for Equality website has a graphic presenting the amount of lost social security income to a couple when one earns $95,000/yr and the other earns $45,000. Leaving aside just how much this household has, compared to average households, the graphic would look very different if each partner earned $70,000. Then the cost of the "discrimination" would be ... zero. (I'm not counting the $255 death benefit that every surviving spouse receives based on the marriage alone ; I'm pretty sure if the only loss to same-sex couples was $255, this issue would not would not form the basis of a major stand-alone campaign.)

And if one spouse earned $140,000 and the other earned nothing, another graphic could show that those two people pay far less into Social Security than the $70,000-each couple, and yet they get far more out in terms of social security payments. That's the windfall that goes to the couples social security was originally designed for. Every one of us subsidizes those couples.

The Rock for Equality website cites Williams Institute data that, on average, lack of access to spousal social security benefits costs same-sex couples $5700/yr. Even if that figure is an accurate average, this is one place where average doesn't tell the story. If one couple loses $11,400/yr and another couple loses nothing, the average loss is $5700/yr. But one couple isn't hurt at all, and, in fact, is subsidizing the other couple's benefits. The Task Force and the LA Center are not asking all LBGT couples to come out and support an action that will benefit half of us; their rhetoric suggests that all our couples are victims of this discrimination. This is not true.

It's past time for a conversation about the redistribution of income from single earners and dual earner couples to married couples with one primary earner. The Urban Institute has been pushing that conversation for many years. Now two gay rights groups want to enter a conversation about discrimination in social security, but only to ask that when same-sex couples have one primary income earner they, too, should be subsidized by the rest of us -- including all the same-sex couples with two equal-income earners.

I am well-known for my stance that marriage should not confer "special rights." That may make some who disagree with me inclined to discount my criticism of the Rock for Equality effort. So let me be clear. This action, if it succeeds, will result in some same-sex married couples getting an advantage at the expense of other same-sex married couples, who will not benefit at all.

Why is that a good use of movement resources?

Tuesday, February 2, 2010

It's economic interdependence, not marriage, that should afford benefits to partner of deceased state trooper

Missouri highway patrol officer Dennis Engelhard died in the line of duty on Christmas day. His surviving partner of 15 years, Kelly Glossip, is not entitled to a lifetime benefit of $28,000 a year. That benefit is reserved for spouses (and children). Defenders of the system point out that unmarried different-sex partners also do not get the benefit. I discuss many examples like this in my 2008 book and it's a perfect opportunity to illustrate the valuing-all-families methodology I advocate. Simply put, any law should include within its purview the relationships that are consistent with the purpose of the law.

The Missouri survivor's pension system no doubt dates to a time when married women were economically dependent upon their husbands (and from a time when women could not serve as highway patrol officers, I would guess.) The system's purpose is compensation for that dependency, given that the wage-earner has died serving the public interest. Why else would it exist? Well today there is no longer such a clear fit between marriage and economic dependency. The pension should go to a person who was financially dependent upon, or interdependent with, the deceased. Married or not.

Right now, there are state workers compensation systems that work this way. (The benefit is not as large, but it's a benefit that goes to the survivor of any worker who dies on the job; the size of the highway patrol officer's benefit recognizes the risk faced by public safety officers). Had the September 11th attacks occurred in Los Angeles, for example, surviving same-sex partners would have received the same workers comp survivors benefits available to spouses, because California looks to economic interdependency, not marriage, in awarding those benefits.

The article on Engelhard's death notes that Glossip may be eligible for a federal benefit. That's true. The Mychal Judge Act, passed after September 11th (and named for a beloved -- and openly gay -- Catholic priest who worked for the New York fire department and who died administering last rites at the World Trade Center site), authorizes a one time federal payment to the survivor of any public safety officer who dies on the job. If the person is not married and has no children, the payment goes to whomever the officer has selected. Englehard would have had an opportunity to select Glossip as a beneficiary. If he did, that's the end of the matter.

What's the purpose of the federal benefit? It appears to be public recognition of the value of a deceased public safety officer -- a way of valuing and honoring his or her work. Mychal Judge himself died without a spouse, parents, or children, and so no one was eligible to receive the federal benefit in existence up until that time. It was to remedy that wrong that Congress amended the law to allow the officer to designate a beneficiary. (Judge's benefit went to his sisters, whom he had designated as the beneficiaries of his life insurance policy.) Congress might have decided that compensation for the loss of an economic provider was the purpose of the benefit. If it had, then Judge's death would have created no benefit, since no one depended upon him. So Congress actually choose a different basis -- a kind of a parting gift to the estate of the fallen officer. Since each of us gets to decide where our assets go when we die, then it makes sense to allow an officer to select a beneficiary.

Gay rights groups might use Engelhard and Glossip as yet another reason why same-sex couples must be allowed to marry. I use it to illustrate that marriage is the wrong dividing line between who gets a survivors benefit and who doesn't.

Monday, February 1, 2010

Pennsylvania ends discrimination against gay and lesbian 2010!?

There's some truth to the red state-blue state divide when it comes to LGBT parents, but the law is actually more complicated than that. My post last week about Kentucky's recognition of a two-mom family is one example of a red state clearly understanding and respecting the families we create. Then there's the Pennsylvania case, also from last month, overruling a 25 year old opinion disfavoring a gay or lesbian parent in a custody dispute with a heterosexual parent. Who realized there was such a disadvantage in Pennsylvania until this year?

Same-sex couples having children through assisted reproduction dominates a lot of the public attention to LGBT families, so many people may overlook what still is likely the most frequent dispute over gay parenting to hit the courts: A married heterosexual couple with children splits up; one parent comes out; the other uses the parent's sexual orientation as a basis to gain an upper hand in a dispute over custody or visitation. I don't have statistical proof that this is still an everyday occurence, but I believe it is. The number of people who grow up, get married, have children, and then come out remains significant. (One of the Perry plaintiffs, Sandy Stier, meets that profile.) A heterosexual ex-spouse who is either homophobic or strategic (or both) may try to use the other parent's sexual orientation to get custody or impose supervised or restricted visitation rights.

Which brings me to M.A.T. v. G.S.T., an appeal from an August 2008 order from a Pennsylvania trial judge awarding primary custody of a 3-yr-old daughter to a heterosexual father. The lesbian mother was given every other weekend visitation and six weeks in the summer. A custody evaluator had recommended joint custody or, if the judge rejected joint custody, primary custody to the mother. The trial judge's order specifically said that "when weighing [Daughter's] best interests between the two households we believe those interests are better served by placing her in a traditional heterosexual environment." The judge relied on the 1985 case, Constant A. v. Paul C. A., and a subsequent 1991 case, for placing the burden on the gay parent to prove that the child would not be harmed by being exposed to a gay relationship. The mother had not offered evidence that her relationship would not have an adverse effect on her daughter, so the judge ruled against her.

That's the bad news, and it's really bad. The good news is that the appeals court reversed, and in doing so explicitly overruled Constant A. and the cases that had followed it. "A homosexual parent," the appeals court ruled, "bears no special evidentiary presumption in a child custody case." The Constant A. presumption had been based on

"unsupported preconceptions and prejudices -- including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship. Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court."

Now Pennsylvania allows second-parent adoption and also recognizes some legal rights and responsibilities for a nonbiological mom who raises children with her partner but does not adopt the children. That was true long before 2008. Yet the Constant A. presumption lingered until this year. What accounts for this? I've got two thoughts. The first is that the presence of a heterosexual option presents a judge with a different circumstance than that of a lesbian couple raising children, whether they are still together or not. The pull towards placing a child with a heterosexual parent when that is available may be irresistible, even to judges who tolerate gay couples raising children.

Beyond that, there's the judge-by-judge nature of family court practice. No matter what the law on the books, a judge hearing a custody dispute can make factual findings that will be hard to reverse on appeal. When a divorcing parent faces the prospect of going to court over custody, the attitudes of the judge who will hear the case matter more than all the statutes and appeals decisions in the state. The judge in M.A.T. left no doubt about his reasoning, and that made reversal easy. But, even so, the child in the case has lived with her straight father almost a year and a half. Most parents are risk-averse, and the prospect of losing custody in the trial court and maybe winning years later on appeal is not an inviting one. So a lesbian mother or gay father may settle for less than she or he wants to avoid the possibility of a worse result.

The M.A.T. case is a reminder that the legal issues raised by the relatively new family form of a same-sex couple planning for and raising a child together do not eliminate, and should not eclipse, the remaining barriers facing a gay parent who wants his or her old-fashioned custody dispute with an ex-(heterosexual) spouse decided without stereotypes or bias.