Thursday, May 27, 2010

US Department of State website carries info on gay and lesbian adoption

Just a small indication of the perspective of the Obama administration on gay and lesbian families appears on the State Department website on international adoption. There is a section entitled "GLBT adoption." (Note that "GLBT" is identified as the shorthand for "gay and lesbian" individuals and couples. Does someone in the State Dept not know about the bisexual and transgender part?) While acknowledging that some countries and states have restrictions on "GLBT" adoption, the site does state categorically, "U.S. federal law does not prohibit gay and lesbian Americans or same-sex couples from being an adoptive parent." (Let's ignore the grammatical problem; it should be "from being adoptive parents").

I confess that I like seeing that sentence in print. It does send a message of acceptance, even though it is a simple declarative fact. And it doesn't address the fact that international adoptions into the US are down and likely to drop more as a result of the requirements of the Hague Convention, as it is more difficult for anyone to adopt internationally. There are reasons that make it more difficult specifically for same-sex couples as well. So the State Dept website may have greater symbolic than real significance.

Thursday, May 20, 2010

What went wrong in Arkansas

Earlier this month, the Center for American Progress (CAP) released a report on the passage of Initiated Act 1 in Arkansas in 2008. This was the law that banned adoption and foster parenting by anyone living with an unmarried partner. In addition to describing the chronology and the players in the Arkansas intiative process, the report offers "lessons learned" to guide future struggles.

The report cites lack of outreach to faith communities and disputes over messaging as two of the major shortcomings of opponents of Act 1. The main coalition opposing Act 1 was Arkansas Families First, and its steering committee split over whether the campaign should emphasize children or focus on human rights for LGBT people; the former position prevailed and the group prodcued a DVD featuring child advocates and other professionals. Another group opposing Act 1, the Center for Artistic Revolution, disagreed with that decision and launched its own "All Families Matter" campaign, featuring the couples who would be affected if the ban passed.

The post-election analysis in the CAP report includes the following recommendation: "Leaders must recognize that campaigns need unity on such basic aspects as core messaging." The report further states that "it is essential that campaigns be mindful of the power of a united front."

I have a hard time figuring out how this could happen. Those involved in the Arkansas campaign do not agree even now on whether the dominant focus on children rather than discrimination against LGBT families was the right choice. Arkansas Family First used polling and focus groups and still the initiative passed with 57% of the vote. If pro-gay campaigns had a track record of winning as a result of successful messaging, maybe unity would be called for and easier to obtain. Perhaps the Yale Cultural Cognition project will produce such a result. But until then I cannot blame organizers for disagreeing over framing a campaign and sticking to their positions rather than coming together.

In the end, the difference in messaging may have mattered less than the lack of grassroots outreach, especially to faith communities, even in rural areas. Many of the report's recommendations call for a larger role for religious leaders. The report also draws attention to a Third Way poll of voters in Arkansas, and those results are worth perusing. CAP thinks it notable that 44% of born-again Christians said they would have or did in fact vote against the ban after being informed in more detail about what it entailed. Thus, CAP concludes, opponets of the ban needed to include even evangelicals in their outreach to faith communities.

Perhaps it was just happenstance that I read this report shortly after reading the Yale Cultural Cognition project report, but there is striking similarity between the two. The Yale report suggests that accurate information alone may not sway those whose positions are based on values. The CAP report includes the following: "When confronted with facts that run counter to their values and beliefs, people often dismiss facts as unreliable or irrelevant. As a result, it is crucial to go beyond rational arguments to include appeals that also touch people's hearts and souls."

I like to think that rational argument in the way to win. I give that up begrudgingly. These reports tell me I might need to grow up and face the facts that the years I have devoted to getting better and better at rational argument may never get me the world I want to live in. It's a hard lesson to learn.

Thursday, May 13, 2010

Yale Cultural Cognition Project considers gay and lesbian parenting

Among opponents of gay and lesbian adoption who base their opposition on the welfare of children, only 22% say they would change their mind if shown convincing empirical evidence that children raised by gay and lesbian couples are just as likely to be healthy and well-adjusted as children raised by heterosexual couples. This is just one statistic in the report recently released by the Cultural Cognition Project at Yale Law School.

Cultural cognition, according to the project's website, refers to "the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities." The project's objective is "to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking."

The project's first report on gay and lesbian parenting describes the relationship between respondents' cultural values and their factual belief about the welfare of children raised by gay and lesbian parents. The next phase of the project is assessing "how cultural values influence receptivity to sound information on gay and lesbian parenting." In the final phase, the project will explore what means of communication will make it possible for culturally diverse people to accept the best empirical information on the welfare of children of gay and lesbian parents. The goal of the researchers (who include Naomi Cahn and June Carbone, authors of the recently released Red Families v. Blue Families) is to "create conditions in which individuals are disposed to give empirical data a fair appraisal," thereby advancing "social justice and public welfare."

Put more simply, the project is trying to figure out how to get people to openmindedly consider empirical information about the children of gay and lesbian parents. As the statistic with which I opened this post demonstrates, they have their work cut out for themselves. They do conclude in this report, however, that enough people to effect public policy really do care about child welfare and really do want to credit the best research in the area. The researchers believe that people will be open-minded when they receive information in a way that is compatible with their defining values; by stage three of their project, they hope to identify the methods most like to achieve their goal.

Meanwhile, this first report has some sobering data. My nominee for most disturbing statistic: 81% of respondents strongly agree, agree, or mildly agree that "we should do everything we can to encourage the ideal of children being raised by their biological parents." Even the most strident right-wing "marriage promotion" ideologues have been forced to articulate their support for not all marriages, but for healthy marriages. Yet somehow the public at large (as represented in this study) overwhelmingly imagines, without qualification, that it is ideal for children to be raised with their biological parents.

There's majority support for allowing lesbians and gay men to adopt and be foster parents; but almost the same majority agrees that "the law should encourage that children be raised by heterosexual couples wherever possible." 48% agree that "gay parenting undermines the family in our society;" 45% agree that "because chldren raised by homosexual couples are taught that homosexuality is morally acceptable, they will have trouble learning right from wrong in other areas of life as well;" and, shockingly, 33% believe that children raised by gay or lesbian parents are more likely to be sexually molested than other children. There's much more here, and so I encourage readers to check out the report itself.

The report points out strong dissensus on these issues. It characterizes the dissensus as abnormal because most people cluster not in the middle (mildly agree/mildly disagree) but at the extremes. Indeed, the vast majority of questions have a majority of respondents either strongly agreeing or strongly disagreeing. The report correlates various characteristics to the positions of the repsondents. I found more than a glimmer of hope in its conclusion about age. "If individuals were to stay fixed in their values, practices, and beliefs, then we would expect there to be a sugnificant rise in support for gay and lesbian parenting over the next decade, as the generation most adamantly opposed to and concerned about it ages out of the population."

Finally, I began this post with the statistic on the low percentage (22%) of opponents of gay and lesbian adoption who base their opposition on child welfare but are not likely to be swayed by facts about child welfare to the contrary. Interestingly, of supporters of gay and lesbian adoption, 50% say they would change their view if shown child welfare evidence to the contrary. To a large extent, the report lumps these groups together to show that people overstate the extent to which they base their position on the real consequences to children of being raised by same-sex couples. I actually read it differently. I see the difference in these numbers as demonstrating that people who are open-minded about families and child well-being think in terms that are both more nuanced and more realistic than those who hold rigid beliefs about the superiority of the married, one-mother/one-father family form. It's no accident that the right-wing groups like Family Research Council and Alliance Defense Fund make extreme and simplistic pronouncements about families, while the Council on Contemporary Families qualifies their statements out of respect for the complex nature of family life and child development. The right chooses sound bites; the left chooses sound policy.

Anyway, the report is a great read, and has much more here than I can summarize. (Check out the super majority support for laws ending housing and employment discrimination, 63% support for civil unions, and 45% support for marriage; also there's significantly more distaste for visibily gay male couples than visibly lesbian couples).

I wish the project all the success in the world. The researchers believe they can reach enough people who are open to changing their minds and that this will make a difference in public policy. I hope they're right.

Tuesday, May 11, 2010

Texas rebuffs nonbio spite of previous court order with bio mom's consent

Sheila Haley and Charlena Renee Smith went to court in 2002, when their twin children were four months old, and obtained the equivalent of a joint custody order giving them both rights to the children. Those children were born to Smith. Haley then bore a child using the same semen donor. When the couple split up in 2008, Smith denied Haley access to the twins and got a court order declaring the earlier joint custody order void because there wasn't any real dispute between the parties at the time. (Also it appears that they should have waited until the children were six months old to file, although I doubt that would have made a difference to the court.) (Background to the case here).

Well the Texas appeals court last month rebuffed Haley's efforts to remain connected to the lives of her children. The appeals court ruled that Haley lacked standing under the relevant Texas statute because, at all the times she was parenting the children, their bio mom, Smith, was also caring for them. This case sets up a split in Texas over this issue. (See my post on a ruling from a different court of appeal in favor of the nonbio mom). That means the Texas Supreme Court is likely to have the last word, and its ruling on this issue will be the law all over Texas.

This latest appeals court ruling just refused to see the difference between planning for and raising children together as two parents and a third party helping a parent raise her children. The court refers to a case in which grandparents were denied standing even though their grandchildren had lived with them, because the children's parents were also living in the home and caring for them. But that situation is completely different from the typical lesbian couple planning for and raising children together. Haley and Smith appear to be such a typical lesbian couple.

The ruling is primiarily based on Texas statutes concerning who may file for custody/visitation, otherwise known as standing to file; without standing a court does not even hear evidence about the well-being of the children. But the court also suggests that the constitutional right of parents to raise their children is violated if it is too easy for third parties to file for custody. This is also an issue other courts have considered. I especially like the rulings in past few months from Kentucky and California. Haley should be considered a parent, in which case she would also possess the constitutional right to raise her children. Had the children been born in the District of Columbia under our current law, both women would be the legal parents of these children.

Some Texas courts do grant second-parent adoptions. But Texas is also the land where by state statute an adopted child's revised birth certificate cannot list the names of two mothers or two fathers, even when a court in another state has granted a second-parent adoption. I'm not too optimistic about how the Texas Supreme Court will rule on this issue...

Tuesday, May 4, 2010

New York court fails the children of same-sex couples; don't be fooled by press reports to the contrary

Debra H. is the mother of her six-year-old son, a child she raised with Janice R,. her ex-partner who is the child's biological mother. So ruled the New York Court of Appeals today (and that's the highest court in NY, so their decision is final). For that reason, press reports, at least the early ones, refer to the opinion as expanding the rights of gay parents.

Not so fast. What the court actually did was limit the rights of children of same-sex couples to a relationship with only one parent, unless the parents married each other (or entered a civil union or a domestic partnership comferring all the rights of marriage) or completed a second-parent adoption. (Debra H. and Janice R. were in a Vermont civil union.) This is not good news. Children are not supposed to suffer for the decision of their parents not to marry. That has been an elemental principle of family law for more than four decades. Yet suffer they will, those New York children, because apparently that principle goes out the window when it comes to lesbian couples raising children.

New York is not an isolated case. In Massachusetts, where same-sex couples have been allowed to marry for six years, a child born to a married lesbian couple is the child of both parents, but a child born to an unmarried couple, under identical circumstances (such as conception using an unknown donor) has only one parent, unless the nonbiological parent completes a second-parent adoption. Such adoptions take time and money, both often in short supply. (In a New Jersey cases a few years back, the couple made the economically sensible decision to have their second child and then go through one adoption proceeding for both of them. Unfortunately, the nonbio mom died unexpectedly before any adoption took place, and the child was unable to collect social security survivors benefits because under the law he had only one parent.) I have said repeatedly (and it's the title of my new Stanford Journal of Civil Rights and Civil Liberties article), A Mother Should Not Have to Adopt Her Own Child.

The New York court had other options. The relevant statute allowed a "parent" to file an action for custody or visitation. The statute did not define "parent." There is no universal definition of what makes someone a legal parent. That has always been a matter of law, often decided by courts. In fact, it is the job of courts to interpret the words in statutes. The increased use of assisted reproductive technologies, for straight and gay people alike, has challenged courts to find an appropriate definition of "parent" when genetics, gestation, intent, and function are divided up among multiple individuals. The New York court was simply not up to the challenge.

Instead, the majority extolled the value of "bright line" rules. But I have news for those judges: The brightest line rule of all is the rule that a man is the father of the children born to his wife and no other children. That was, in fact, the rule for centuries. In 1972, the US Supreme Court said it was an unconstitutional rule, and specifically said that there are "higher values than speed and efficiency." In California, a man or a woman who receives a child into his/her home and holds the child out as his/her own is presumptively a parent. In Kentucky, a child has a second mom if "the legal parent has voluntarily chosen to create a family unit and to cede to [that person] a sufficiently significant amount of parental responsibility and decision-making authority to create a parent-like relationship with his or her child." In Oregon, a woman who consents to her partner's insemination with the intent to be a parent of the resulting child is a parent of that child. Those are all court rulings reflecting the reality of the lives of the children involved, not some fictional "bright-line" rule.

New York does not have marriage, civil union, or statewide domestic partnership for same-sex couples. Responding to the decision today, Empire State Pride Agenda included the following in their press release: "This case demonstrates why New York State needs to pass marriage equality legislation." No it does not. Nothing should be proposed that would further divide children of married same-sex couples from children of unmarried same-sex couples.

This case demonstrates that the legislature needs to pass a law along the lines of the DC or New Mexico parentage acts or the Delaware de facto parent statute. DC also has a de facto parent statute that does not create parentage for all purposes but does allow someone in Debra H.'s position to obtain custody or visitation (and pay child support). I hope ESPA lobbies hard for such measures and leaves marriage out of it.

One of the odder aspects of today's ruling is the companion case of H.M. v E.T., concerning the obligation of a nonbio mom to pay child support. The majority ruled that the Family Court does have jurisdiction to hear a child support action, even though the statutes refer to "parents" supporting their children. The court did not actually rule that the nonbio mom in that case was a parent; it simply said the Family Court could consider the matter. It is in Debra H. that the court hints that the doctrine of equitable estoppel, a concept based on not allowing someone to walk away from circumstances that s/he created and others relied upon, can create a support obligation. Yet in Debra H. the court explicitly rejected equitable estoppel as the basis for continuing a child's emotional relationship with a nonbiological parent through custody or visitation. It makes little doctrinal sense, and even less sense to a real, live child.

The New York legislature has to act. If it doesn't, it will have the suffering of countless New York children on its hands.

New York draws line between "legitimate" and "illegitimate" children of lesbian couples. I want to throw up.

I confess that wanting to throw up is not a rationally sound or doctrinally astute reaction to a court ruling. I don't care. There is no other response I can have to today's ruling from the highest court in New York (the New York Court of Appeals) that a child born to a lesbian couple who are married or in a civil union has two parents while a child born to an unmarried/not unioned couple has one parent unless the nonbiological mom adopts that child.

Over forty years ago the US Supreme Court first found unconstitutional a state law dividing children into "legitimate" and "illegitimate." It is widely accepted now that children should not suffer because their parents do not marry. Widely accepted, that is, except when it comes to the children of same-sex couples. New York now joins Massachusetts in making this distinction. It's a travesty.

Stay tuned as I blog in more detail later about the court's ruling, and the companion case ruling that a nonbiological mother may be required to pay child support.

Monday, May 3, 2010

Hawaii civil union bill creates equal rights for same-sex and different-sex couples

The Hawaii legislature took everyone by surprise last week when it approved the creation of civil unions in the state. The gay press generally reported the development as approval of civil unions for same-sex couples, but that's not what the legislation does; it approves civil unions for any two unrelated adults who are not in another civil union, a marriage, or a reciprocal beneficiary arrangement. If Governor Lingle signs the bill (and she has weeks to decide), Hawaii will join Nevada and the District of Columbia in allowing both same-sex and different-sex partners to enter a legal status granting the state-based consequences of marriage (Nevada and DC call the status domestic partnership.)

This development in Hawaii is particularly notable because last year, when the bill to enact civil unions failed, numerous commentators suggested the bill tanked precisely because it included different-sex couples. As law professor Art Leonard noted, including different-sex couples can be seen as a challenge to traditional marriage. In an interview on Hawaii Public Radio, the executive director of Hawaii Family Forum, Dennis Arakaki, said including different-sex couples made the bill "much worse" than a bill limited to same-sex couples. On the other hand, at least one legislator reportedly changed his previous "no" vote to "yes" precisely because the bill now includes different-sex couples.

According to Equality Hawaii, there had been talk over a few years about whether to include different-sex couples in a civil union bill. Gay rights supporters ultimately decided to limit civil unions to same-sex couples precisely because they feared an argument that civil unions for heterosexuals would lead to an erosion of marriage. (The reciprocal beneficiary status now available in Hawaii extends to any two people who are prohibited from marrying -- so it's for same-sex couples and relatives; straight couples who want protection for their relationship have no choice but to marry.)

In 2009, a bill for same-sex couples only passed the House and came up in the Senate with only one day left in the 2009 legislative term. The bill was expected to pass, but opponents were able to stall the bill by amending it, and the amendment they chose was...extending civil unions to different-sex partners! The bill passed, but because of the amendment it needed another reading, which could not take place until the 2010 session. So this did sort of make it look as though the reason civil unions did not become law in Hawaii was because the bill included straight couples, but the bill including straight couples did pass; it just could not become law because the legislative session was over. In other words, the inclusion of straight couples created a procedural problem for the law, not a problem based on a substantive opposition to inclusion of straight couples.

The amended bill passed the Senate again on January 22, 2010, and then it had to go back to the House (because it had been amended). The House postponed voting on the bill but finally did approve it last week, That's how a bill for both gay and straight couples has come before Governor Lingle. So far no press is reporting that she might veto it specifically because it includes different-sex couples.