Sunday, March 21, 2010

How same-sex couples fill out the 2010 census form -- is it really asking how we think of our relationships?

If thinking of yourself as married to your partner turned you into husband and husband or wife and wife, then we wouldn't need a marriage equality movement, right? So imagine my puzzlement to find gay organizations instructing us to fill out the 2010 census based on how we think of our relationships. The Williams Institute, to whom I turn for all things demographic about gay men and lesbians, offers this advice, which other groups are repeating:

Same-sex couples who have been legally married or consider themselves to be spouses should identify one person as a "husband or wife".

Other same-sex couples may be more comfortable using the term "unmarried partner". In general, this designation is designed to capture couples who are in a "close personal relationship" and are not legally married or do not think of themselves as spouses.
(emphasis mine).

Now I understand the census is an imperfect instrument (very) for counting our relationships. If a couple does not live together, they will not be counted, because the census counts households and the relationships of the people in each household. There is also no option for those who are registered as domestic partners or in civil unions. I applauded when the Williams Institute and others won from the Obama administration the right to be counted as same-sex spouses when they were same-sex spouses.

But now it appears that labeling the person you live with your husband or wife is actually not going to measure the number of same-sex married couples but rather the number of couples who consider themselves spouses, whatever that means -- and I truly do not know what it means.

Gary Gates, demographer par excellence at Williams, explained to me that the census does not ask marital status. In other words, it does not ask you to say whether you are single, married, divorced, etc. He's right. But it does seem to me that asking us to choose "husband/wife" or "unmarried partner" actually is asking us to say if we are married. Admittedly, whether we are married can be contingent. Those couples who have married in a state or country that allows same-sex couples to marry are married in some places. I think they should mark the "husband/wife" box. Those who have not married are "unmarried partners." To me that is not a lesser status; it's just a different one.

The Williams Institute materials are clear that you can identify only one adult in your home as a "husband/wife." What about those who consider themselves married to more than one person? If the line isn't legal recognition, what is the limiting principle?

How about those who have entered a civil union or the kind of domestic partnership that confers virtually all the state-based consequences of marriage? This is a challenge. My partner and I have been registered domestic partners for many years. When I look at the census form I gravitate to "unmarried partner" because we are not married (and we don't plan to marry even though DC now allows it). Yet I admit that some couples who enter this status because it's available where they live may well consider each other husband/wife, and since there is no way to accurately capture their legal relationship then I'm okay with selecting whichever designation fits their own understanding.

But here's another puzzle in the advice from Williams. What does it mean to say that we "do not think of ourselves as spouses"? Either "spouse" has a meaning and you either are or are not, or, well, it has no meaning at all. If my partner and I were to marry I am not sure I would think of her as "my spouse" if that means some traditional notion of marriage. I know I would never call her my "wife." But if we marry, am I not supposed to check the "wife" box for her regardless of how we think of ourselves?

I've tried to think of this from a straight person's point of view. What do an engaged couple living together mark? "Fiance" is not an option, and they may never have thought of each other as "unmarried partners," but they know they are not yet husband/wife. What do they check? about the couple who think they are "common law" married but they aren't, because their state does not recognize common law marriage (only 10 and the District of Columbia do)? They will check "husband/wife" and it won't be accurate.

Gary Gates tells me that the Census Bureau wants all people who are not sure what to check to select the answer that best reflects their household as they understand it. I could not find that advice anywhere on the Census2010 website. But I did call the census "help line" and said I was in a same-sex registered domestic partnership and did not know which box to check. The person I spoke with said it was my "preference," and if I saw her as a "married partner" I should check "husband/wife" and if I saw her as a "unmarried partner" I should check that.

Gates also says, and I suspect he is right on this, that no amount of education by gay organizations would yield an accurate count of legally married same-sex couples given the constraints of the form itself. So what will gay groups say the census has shown once it's tabulated? Will they qualify the number of claimed "married couples" with the caveat that it is couples who think of themselves as married? I'm guessing there will be comparison of the geographical location, income, etc of those who identify as same-sex unmarried partners and those who identify as same-sex husbands/wives, rather than simply an adding together of the two catgories to tell us about same-sex couples in general. But the categories are unstable and I have trouble imagining what legitimate conclusions could be drawn from the raw data.

And here's another tantalizing nugget from Gates. Apparently the American Community Survey forms (they replaced what were once census "long" forms) ask both marital status and the relationship of the people in the household, and more same-sex couples check "husband/wife" than report being married. He's trying to sort out what that means. Fascinating, isn't it? He's going to have lots more sorting to do over the next several years.

Wednesday, March 17, 2010

Understanding the adoption tax credit for second-parent adoptions

I think everyone knows that marriage affects the amount of taxes we pay; sometimes we pay more as married couples and sometimes less. Tax savings is not a good reason to support same-sex marriage because, among other things, for equal earning couples they will pay more as a married couple than as two single people. (The marriage "bonus" subsidizes families with one high income earner; the marriage "penalty" hurts families with two relatively equal earners).I'd like to see taxation based on individual status not marital status, as many countries do, but that's another story....

Well, if you are doing a second-parent adoption, from a federal tax standpoint it is definitely better not to be married. That's because the adoption tax credit allows a person who adopts a child to claim a credit that can be as high as about $12,000, and this credit greatly reduces the expense of the second-parent adoption because it applies to the cost of both a home study and legal fees. The credit is not available for step-parent adoptions. Since federal law does not recognize a same-sex couple as married, even if they are married under state law, their second-parent adoption is not a step-parent adoption and the adopting parent can claim the credit. The credit is also available if the couple jointly adopts a child that is not the child of either of them. Unfortunately, it is not available for adoptions connected to surrogacy arrangements, so a second-parent adoption by the partner of a man who is a biological father of a child born through surrogacy cannot claim the credit.

There is also no tax credit for obtaining a parentage order. In a jurisdiction that confers parentage on a nonbiological parent through a statute, without an adoption, (like our DC parentage statute), it makes more conceptual sense to obtain an order of parentage from the court; the nonbio mom is already a parent and so the court order confirms that and makes it subject to respect in other states as court judgment. As I say repeatedly, a mother should not have to adopt her own child! When considering your options, however, the fact that a second-parent adoption will be partly subsidized by the adoption tax credit may figure in your thinking, so be sure to discuss it with your lawyer.

Here is an article that explains the rule in great detail and in as close to plain English as you'll likely find in an article about tax law. Plus it's great to see our families explicitly included in the analysis in a very matter of fact way. Thanks to Florida attorney Elizabeth Schwartz for bringing this article to my attention.

Tuesday, March 9, 2010

Michigan court to weigh in on right of nonbio mom to see her children

It's still the same old story. This time in Michigan. Nonbio mom Renee Harmon has been prevented from seeing her 10-year-old daughter and 7-year-old twin sons by their bio mom Tammy Davis. Harmon and Davis were partners for 19 years until their split up in 2008. According to one news source, Harmon saw the children on a regular basis after the couple split up, but Davis then stopped the contact. Last September, when Harmon entered the home she had once shared with Davis and the children without Davis's permission, Davis got a restraining order against her. Harmon talks about her family in this news clip, complete with pictures of the happy couple and their children at various ages.

Harmon has filed a court action seeking joint custody of the children. There's no appellate court ruling on this issue in Michigan, but more than 20 years ago the court there recognized the doctrine of "equitable parenthood" to confirm the parentage of a husband who was not the biological father of the four-year-old child born to his wife. Unfortunately, the court later refused to extend that doctrine to a man who thought he was the father of two children born to his nonmarital female partner.

In 2008, the Michigan Supreme Court read the state's Defense of Marriage constitutional amendment very broadly as banning employee domestic partner benefits. (Here's my post about it.) And of course all the press coverage about the Harmon case notes that Michigan does not recognize same-sex marriage. But the courts need to separate marriage from legal parentage. A child's bond to a parent does not turn on whether that parent is married to the child's other parent.

In the 1970s and 80s, if custody rights for lesbian mothers defending against their former husbands had turned on whether the court was willing to validate the mother's new same-sex relationship, then many of those mothers would have lost custody of their children. They won when they could convince courts to rule on the child's best interests and not on the mother's lesbian relationship. Fast forward to the 21st century and we need courts to rule on the parent-child relationships created in a family, not on the perception that a ruling to preserve an existing parent-child relationship is a vote for same-sex marriage. Let's hope the Michigan courts can get it right.

Wednesday, March 3, 2010

Virginia appeals court agains sides with nonbio mom and against Liberty Counsel

At this point the Miller-Jenkins custody dispute is the most heavily publicized and longest running case over custody of a child born of donor insemination to a lesbian couple. I summarized much of the history in a previous post.

Last week the mainstream press covered the Vermont court's issuance of an arrest warrant for Lisa Miller, who has disappeared rather than adhere to any of the court orders granting Janet Jenkins first, visitation, and then, custody, of their daughter, Isabella. But there was another important ruling in the case last week, this time from the Virginia Court of Appeals. That court rebuffed Lisa's most recent attempt, orchestrated by her lawyers at the right-wing Liberty Counsel, to argue that Virginia should not enforce the orders of the Vermont court.

The legal principle in this latest appellate court ruling has nothing to do with lesbian mothers and everything to do with garden variety civil procedure doctrine. For obvious efficiency reasons, litigants are not able to re-raise issues they have previously litigated in the same case. It's called the "law of the case" doctrine.

In Miller's latest effort to thwart the court orders, she argued that even though the Virginia Supreme Court in 2008 ruled that Virginia must register the orders of the Vermont court, that did not mean that Virginia had to enforce those orders. Last week's ruling from the Virginia Court of Appeals affirmed a Virginia trial judge's ruling that the Vermont orders must be enforced.

The court noted that from the beginning of her litigation in Virginia, Lisa has asked that the Vermont orders in the case not be enforced. The Virginia Supreme Court has twice heard appeals in this case, and the rulings it has made govern any future litigation between the parties. In other words, there's nothing new to argue; the Virginia courts have heard it all. Lisa's attempt to parse registration and enforcement is not a new issue, but a re-hashing of the exact same issues she has been arguing for years. She has lost before and she has just lost again.

The most important question at the moment is where Lisa is hiding with Isabella. But I've got another question, triggered by some basic principles of civil litigation that I teach my first year law students. When will a Virginia court censure, and maybe even fine, Liberty Counsel for making frivilous legal arguments?

Monday, March 1, 2010

Catholic Charities chooses worst option for complying with DC law...and pretends it has no choice

The long wait is over. Catholic Charities of Washington, DC has settled upon its response to the District of Columbia's approval of marriage for same-sex couples. Effective tomorrow, its employees will no longer be able to add a spouse to employee health benefit coverage. Spouses who are currently covered will continue to be covered. Catholic Charities describes its response as "necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith."

So let's be clear. This response was not necessary. Catholic Charities had other options. As I noted previously, Catholic Charities could have taken advantage of a complex federal law that would have removed it from local anti-discrimination laws (that's what Catholic Charities of Portland, Maine did so that it would not have to comply with Portland's mandate to cover same-sex couples). Or it could have allowed employees to cover another adult in their household as Georgetown University has done. So the decision to disadvantage married heterosexuals was a choice. And it's a choice invidiously designed to breed resentment towards the agency's gay employees, perhaps disguising the real benefit to the agency -- lowering costs by providing fewer benefits to employees.

Seems to me it's time for a social service provider other than Catholic Charities to lure away the dedicated staff at that agency, apply for contracts with the city, and provide comprehensive health benefits to all staff. Any current employee planning to marry (or remarry) would have strong incentive to leave Catholic Charities, and anyone looking for a job as a new hire will prefer an employer who provides health benefits to spouses.

Meanwhile, I presume Catholic Charities still allows an employee to cover his or her children. Under DC law, a woman married to or in a domestic partnership with a woman who gives birth to a child is a parent of that child.

I predict we have not heard the last of this issue. Catholic Charities should be ashamed of itself. Apparently it is not. But no one should be dissuaded from pointing a finger at them and screaming "Shame!" by their bogus claim of necessity. It just isn't so.

Check out this fascinating history of the removal of homosexuality as a mental disorder

In 1973, the American Psychiatric Association removed homosexuality from its list of mental disorders in the DSM (Diagnostic and Statistical Manual of Mental Disorders)-III. This was a critically important early post-Stonewall victory. The visibility of the gay rights and feminist movements and the improvements in the economic opportunities for women made it more possible than ever in the early-mid 1970's for women who had married men to come out, leave their marriages, and development same-sex relationships. But there was a catch. Ex-husbands could and did use lesbianism as a basis to deny a mother custody of her children.

As long as homosexuality was a mental disorder, it was virtually impossible for a lesbian mother to claim the right to custody of her children. After all, she had a mental illness. The removal of homosexuality from the DSM-III transformed that mother into a parent with a legitimate claim that her lesbianism should not be automatic grounds for denying her custody. Forward thinking judges began awarding custody to openly lesbian mothers, even in some surprising states (South Carolina comes to mind).

Well, I thought I knew the history of the change in the DSM-III, but an episode of This American Life that aired this past weekend contains a level of detail that I never knew and also has interviews with some of the key players. I always knew about the gay psychiatrist who spoke to the association in disguise because he was afraid to be identified, but the interview with this "Dr. Anonymous" is a priceless piece of gay history. The episode presents kitchen table strategy sessions and other meetings and discussions in a way that illuminates the micro level at which the change came about. It's a nice touch that the narrating journalist's grandfather played a pivotal role in the change and that it's his kitchen table that the journalist presents.

The APA change cleared the way for further progress in defending lesbian and gay parents. For example, in 1976 the American Psychological Association passed a resolution opposing use of sexual orientation as a primary component in custody, adoption, or foster-parenting determinations. This would have been unthinkable without the change in the DSM-III.

The episode is a great listen.