Thursday, October 28, 2010

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.

Tuesday, October 26, 2010

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 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.

Monday, October 25, 2010

California takes the initiative to meet the needs of LGBTQ youth in foster care

The vast majority of states are officially silent on the issue of both LGBT foster parents and LGBT children in the foster care system. We've gotten so used to opposing the states that ban LGBT foster and adoptive parents that we may sometimes forget the difference between permitting (perhaps grudgingly) and actually supporting and nurturing.

Well along comes California to show the way. Last week the state's Department of Social Services issued an "All County Information Notice" on the subject of serving LGBTQ youth, caregivers, and prospective foster and adoptive parents. Here is the most important part:

All children and youth are best served by professionals that understand and nurture their individual needs. The LGBTQ children and youth do not have unique needs. They do, however, have distinct experiences and stressors generated by society’s misunderstanding and biases. Public and private child welfare practitioners need to increase their understanding and tailor their services and supports in ways that respect these individuals’ experiences. As part of their work, child welfare and juvenile justice professionals also can work to assist birth families, relatives, other caregivers and community partners to understand, affirm and nurture LGBTQ youth.

From there the notice provides specific links to best practices.

The phrasing of the notice is both unusual and important. It is not LGBTQ youth who have special needs. But their experiences of bias and misunderstanding are stressful and so they need understanding, affirmance and nurture from all their caregivers, and they need support and services that recognize what their experiences actually are.

Bullying of young people who are gay or perceived to be gay has been in the news recently because of several suicides. If you go to the websites of anti-gay groups, they, of course, cannot support such bullying. They admit that bullying is bad and should be discouraged. They just don't want any attention paid specifically to bullying based on actual or perceived sexual orientation. Discourage all bullying, they say, and that's enough.

This California policy is such a welcome antidote to that mode of thinking. Foster care programs that are silent on the circumstances of the lives of LGBTQ youth will not meet the needs of those youth. They do need to have the bias and misunderstanding they face named as bias and misunderstanding. They do need to be affirmed. And that is precisely the response anti-gay groups oppose.

Kudos to California. I hope it becomes a model for other states.

Saturday, October 23, 2010

Why can't a child have one parent?

The opinion that's the subject of this post is not about children of gay or lesbian parents. The child, Mariano, was born to married heterosexual parents in January 2008. But it's a case that matters because it stands for a proposition that makes it impossible for any woman -- gay or straight -- to be the single parent of a child when there is a man who could be identified as the child's father. Here's what happened in this case, decided last month by the Massachusetts appeals court.

The couple had only been married a month when Mariano was born. Seven months later they split up. The tried to reconcile the next month, but it didn't work. The mother filed for divorce when Mariano was eight months old, in September 2008. That was the last time the father saw him. While the divorce action was pending, the mother filed a petition to adopt the child, accompanied by the father's surrender of parental rights so that the child could be adopted. The parents each had counsel and counsel was appointed for the child.

The 23-year-old father, who worked on and off, testified that he had discussed the adoption surrender extensively with his family and his attorney. He said he felt no bond with the child and that he thought continued association with the mother would be filled with animosity and would be harmful to the child. The mother, a 24-year-old hairdresser who lived with her parents, testified that the father had little to offer the child and that she was providing the child with "ample health, safety, happiness, and affection."

The trial judge found that the mother could provide "love, nurturance, and security" for the child, but dismissed the adoption petition. He concluded that maintaining a link to his "biological identity" was in the Mariano's best interests. The appeals court affirmed. It cited the financial benefits to Mariano, most immediately child support. The court said that Mariano faced a childhood "with a seemingly thin margin of economic safety" and that the adoption would heighten the risk that the child would need public assistance. The court also cited access to public benefits and inheritance.

The appeals court then noted the child's need for parental "consortium," including the need for "closeness, guidance, and nurture....In this instance," the court wrote, "the child has an important interest in the reservation of the father's option for a change of mind or heart over time. A young parent in the emotion of divorce is poorly situated for an irrevocable decision of severance from a biological child." The father had indicated some willingness to visit the child away from the mother and her family, leading the court to characterize his surrender as somewhat equivocal.

It's important to note that the appeals court assumed, and no one otherwise argued, that a mother could adopt her own child. (In fact, this is what happens in second-parent adoptions in Massachusetts; the bio mom and nonbio mom file together to adopt the child, so the bio mom is in fact adopting her own child). And if there had been a second parent in the wings ready to adopt, through the mother's remarriage for example, the adoption would have gone forward. So the court's problem is leaving the child with only one parent, even though single people are permitted to adopt children.

So imagine the mom is a lesbian who conceives with a known donor. The Massachusetts donor insemination statute applies to married couples only, so it plays no role. It's clear that if the mom has a partner the couple can do a second parent adoption that terminates the donor's parental rights. But after Mariano it looks unlikely that she has any mechanism for assuring that she is the only legal parent of the child, even if that was the intent all along and is what the donor also wants.

I know this issue is particularly tough when the family is economically marginal. The appeals court was explicit about its concern that the state might have to provide financial assistance to the child. But I believe the mother should be entitled to make the call that on balance she and child will be better off without the father and his money. The law does not require her to file for child support unless she receives public assistance. So it does allow her to make that call in most instances. I'd like to see a complete restructuring of the way we provide financial support for children from public funds -- a much longer discussion than what can go in this post. And if I thought the holding of this case would be limited to circumstances where a judge finds a high likelihood of the need for public assistance, I would feel slightly better about it. (There are not enough facts in the opinion to know whether such a test could be met here).

This was not a case in which the father was pressuring the mother to do something so he would not have to support the child. The law should not permit that. A mother who wants both the father's involvement and his money should be able to use the court system to make that happen. But when she doesn't want it, and when the father agrees, structuring the family so the child has one legal parent should be permissible. For lesbians and heterosexual women.

Wednesday, October 20, 2010

LGBT Rights in Latin America

The Inter-American Dialogue today held a program called "LGBT Politics in Latin America and the Caribbean: Why Now and What Next?" The featured speaker was Javier Corrales, an Amherst College professor and co-editor of The Politics of Sexuality in Latin America: A Reader on Lesbian, Gay, Bisexual and Transgender Rights. The book is billed as the first English language reader on LGBT politics in Latin America. The advent of same-sex marriage in Argentina makes the volume especially timely. That development is so new it is not in the book, but Corrales explained it as possible because there is little church attendance and there are few evangelicals in Argentina. One of the commentators, Joseph Palacios, added that the church has little credibility in Argentina because of its support of the military dictatorship.

Among Corrales's interesting points about the difficulty of building an LGBT movement in Latin America is what he described as the comfort of the closet for elites. There is a double standard in married life where someone can have a same-sex relationship while heterosexually married. Because of this such people do not come out, the movement lacks elites, and the lessening of homophobia that happens when more people are out does not happen. In addition, few politicians are out. Corrales described this as a major difference from the US, where the closet is uncomfortable, the world outside is more comfortable, and so people are fed into a movement.

Macarena Saez, a Chilean human rights lawyer now a fellow at American University Washington College of Law, also spoke. Prof. Saez is one of the lawyers working on the case of Karen Atala, a Chilean judge who lost custody of her children when she came out as a lesbian. The trial and appeals court found in her favor, but the Supreme Court of Child reversed. The Supreme Court judges never met her; they simply decided, using best interests of the child language, that the children might fact stigma and so should be raised by their father. Atala's case is now before the Inter-American Commission on Human Rights, the first case before that tribunal about discrimination based on sexual orientation.

Prof. Saez also noted that until the 1990's there was no space for an LGBT movement in Latin America because the lack of basic political rights, the numbers of people in exile, and the focus on staying alive left room for nothing else. It is great news, she noted, that there is enough democratic stability in the region that it is possibility for an LGBT rights movement to emerge.

Prof. Saez also expressed some concern about the focus on marriage. In Columbia, she noted, the law has moved in the direction of giving rights to same sex and unmarried heterosexual partners. She thought it could be a good thing to devalue marriage and shift to something more inclusive as in Canada has done. Her comments are certainly in the "beyond marriage" vein. Now that there are moves towards same-sex marriage recognition in Latin America, there needs to be a concomitant reevaluation about what relationships count. Prof. Saez pointed out that Ecuador defines marriage as a man and a woman in its constitution but could follow Columbia and make marriage matter less.

Thursday, October 14, 2010

Why can't Obama be more like Charlie Crist?

So a year ago I never would have asked such a question! But this week brings us diametrically opposing decisions from these two executives. Both executives had to decide whether to appeal court rulings striking down a statute as unconstitutional. Florida Governor Charlie Crist decided not to appeal the Florida Court of Appeals ruling that the state's ban on lesbian and gay adoptions is unconstitutional. Obama, on the other hand, has appealed two lower court rulings striking down the portion of the Defense of Marriage Act that requires the federal government to treat gay couples as unmarried even when they actually are married in the state where they live. Writing about Obama's decision, National Center for Lesbian Rights legal director Shannon Minter states that
there is no honor in defending a blatantly unconstitutional law. There is no shame in letting a decision striking down such a law stand. There is no duty to defend a morally and legally bankrupt law. President Obama’s belief that he must defend DOMA is no doubt sincere, but it is mistaken.

I would not necessarily attribute Obama's decision to his sincere belief that he must defend DOMA. More likely his decision is political, as was the decision of Bill Clinton to sign DOMA in the first place. Congress sent DOMA to Clinton (along with "welfare reform") within three months of his bid for reelection in 2006. While I assume he had a sincere belief that "welfare reform" was appropriate (and that is a true shame on his presidency), I doubt he wanted to sign DOMA. He was a sincere gay rights ally, but it would have been political disaster to veto this bill handed him by a Republican Congress. Although it's not Obama who's on the ballot next month, it's unlikely he would want to give Republicans one more basis for attacking him and by extension any Democrat running for office.

On the other hand, Crist is on the Florida ballot (running for Senate as an Independent), which makes it extra-interesting that he sees no down-side to his decision to eliminate the adoption ban without a final ruling from the state's highest court. It's especially interesting because the Florida attorney general may still appeal on his own, a decision he has until next week to make.

Wednesday, October 13, 2010

Wyoming Supreme Court recognizes unmarried partners property rights

Jerald Hofstad and Cathryn Christie lived together from 1996 to 2007, with some breaks. They had two children and also raised five children from Jerald's previous relationship. Their case wound up in the Wyoming courts over a dispute concerning the size of Cathryn's share of the home they owned together. The home was purchased in 2005, using the proceeds from the sale of a home Jerald owned in his own name only. Jerald asked the court to value his share based on his vastly unequal financial contribution to the home, but the trial judge gave Cathryn half the value of the home. In an opinion handed down last week, the Wyoming Supreme Court upheld the 50-50 split.

Wyoming law allocates shares in a home held as "tenants in common" based on contribution to the home's purchase price. But that holds only if there is no "family relationship" between the co-owners. Evidence that one owner meant to give an equal share to the other, in spite of unequal contribution to the purchase price, can also create an equal share.

Jerald argued that, as an unmarried couple, he and Cathryn had no "family relationship." The court disagreed, based largely on the children they had in common. The court said that the couple's twin sons "bind the four of them inexorably and forever, resulting in a family relationship." [Emphasis in original]. Beyond that, the court also said that Jerald told Cathryn she would be an equal owner in the context of their reconciliation, and that indicated his intent to give Cathryn an equal share of the home.

I find it heartening that this ruling comes from Wyoming. I would go further and find a family relationship even without children, based on their years of living together in an intimate relationship. But I am reminded of a ruling over a decade ago in a wrongful death action brought by Laura Solomon when her partner Victoria Lane died in a tragic car accident. The District of Columbia trial judge ruled that Laura was Victoria's "next of kin" in large part because they had completed second parent adoptions and were both the legal parents of the two children they were raising. (The case ultimately settled, so this legal issue never went up on appeal).

Right after I read the court's opinion, I looked up Wyoming's "Defense of Marriage Act." Wyoming law says that marriage is between a man and a woman and nothing more. In other words, it is not a "super-DOMA," containing the kind of language that led to disapproval of employee domestic partner benefits in Michigan. The Michigan Supreme Court ruled that domestic partner benefits violated the part of the state's DOMA that prohibited recognition of a "legal status identical or substantially similar to that of marriage for unmarried individuals." Now I think the Wyoming court could have come out the same way even with a super-DOMA, since "family" is not the same as "marriage." But I also fear that at least some judges would go the way of Michigan and rule that considering an unmarried couple family would be just what the state's DOMA was trying to avoid.

And I also have to say that no state gets it as right as Washington does. In Washington property acquired by either cohabiting partner can be divided as community property when the relationship ends. The Wyoming opinion doesn't tell us how much of Jerald's assets Cathryn never had a claim to because the bright line of marriage kept her from claiming any of "Jerald's" savings, investments, or other assets. Had the home been titled in Jerald's name alone she would have been out of luck. Washington state is a great model. I wish other states would follow its lead.