Illinois civil union law signed today -- more equality yet more injustice

Illinois will become the 12th jurisdiction in the country to provide formal recognition of same-sex couples in a status that confers the state-based rights and responsibilities of marriage. Governor Quinn signs the bill into law later today, and it becomes effective June 1. (To recap -- marriage is available in Connecticut, DC, Iowa, Massachusetts, New Hampshire, and Vermont; civil union is available in Illinois and New Jersey; domestic partnership is available in California, Nevada, Oregon, and Washington -- and also in DC).

That's good news. And adding to the good news, Illinois joins Nevada and DC in making the status available to all different-sex as well as same-sex couples. (California and Washington include different-sex couples if one partner is 62 or older). The bill's sponsor, Rep. Greg Harris, has said it is wrong to write a law that discriminates. I couldn't agree more.

The law will also treat same-sex couples married elsewhere as members of a civil union in Illinois. This is an important provision. Without it, the state's DOMA might leave such a couple with no legal status. The existence of that DOMA, of course, is its own injustice, as it perpetuates the notion that same-sex couples are not good enough for marriage.

But I've got another complaint with Illinois. The state is shameful in its legal treatment of unmarried couples. Under a dreadful 1979 Illinois Supreme Court ruling, the state will not enforce agreements between unmarried couples or allow one partner to have any claim to property owned by the other. That ruling will remain the law for couples who do not enter civil unions. While only Washington state treats property acquired by unmarried partners as "community" property, allowing for a just distribution when the couple splits up (the result I favor), most states do allow one partner to prevail if s/he can prove that there was an agreement to share assets or provide support. It's hard to prove such an agreement, but Illinois goes the additional step and refuses to enforce such agreements even when they can be proven.

Even worse, Illinois does not allow a nonbio mom to file for custody or visitation rights with the child born to her same-sex partner, even if they planned for and raised the child together as two parents. While it may turn out that civil union partners will both be legal parents of a child born to one of them if a doctor performs the insemination and both civil union partners give written consent, a child whose parents do not enter a civil union will have only one parent and will risk losing that parent if the couple splits up.

These two inequities can be remedied only by additional statutes, and I won't wholeheartedly join the celebration in Illinois until neither marriage nor civil union forms such a bright line between whose families count and whose don't.

Thanks to Chicago lawyer Richard Wilson, for keeping me posted on Illinois developments and sharing my concerns.

Some law reviews are bringing academic thought to the wider (on-line) world; Penn Law Review hosts debate on arguing for marriage

I've written my share of law review articles. I wouldn't have tenure if I hadn't. And although that is the customary venue for legal scholarship, I've been increasingly frustrated with its limitations. Who reads law reviews? Well, other law professors do. Law students writing papers and their own articles do. And. And. Hmmm. That is really it. Lawyers handling cases raising new or controversial legal issues may cite law review articles in their briefs, and judges do sometimes cite them in opinions. (I love it when a judge cites one of my articles!) But lawyers don't regularly read law reviews for intellectual sustenance, and if you're not a lawyer, well, there's an access problem. Although there are notable exceptions, law reviews don't generally post their articles on line. And even if they did, if the typical article is a dense 50-70 pages, who even has the time except other academics?

Well something is new in legal academia, and I applaud it. Some journals are posting relatively short pieces on line in novel formats. Harvard Civil Rights-Civil Liberties Law Review is holding a colloquium based on a short on-line article, Gay Rights and Lefts, by Northeastern Law Professor Libby Adler. Adler's piece will appear on February 1, and one month later the journal will post short responses (up to 1000 words) from a couple of dozen lawyers and law profs (including me). It's public intellectual discussion that can engage an audience far greater than the readership of law reviews.

Last month the online site of the University of Pennsylvania Law Review hosted a debate on "The Argument for Same-Sex Marriage." (The site is named PENNumbra, a cute name that a law student or lawyer would recognize as a play on the "penumbras" of various constitutional amendments in the Bill of Rights.) It's worth reading. Two law profs, Debroah Widiss and Nelson Tebbe, argue that lawyers should not argue that marriage is a fundamental right. It's not like childbearing or abortion, something you can do without the state. Rather it is a state-conferred status, and the state could abolish marriage for everyone, which it could not do if it was a fundamental right. (I agree completely.) Then they argue that typical equal protection arguments are unlikely to succeed in the Supreme Court, even though they have won in some lower courts. The argument they settle on is what they call an "equal access" argument -- that once the state creates marriage (like once it holds elections, or allows parties to appeal a trial court decision) it cannot selectively exclude people from the important institution it created.

The more interested read in the debate, however, is from Wake Forest law prof Shannon Gilreath, who argues against arguing for marriage. He criticizes the enormous amount of money spent litigating in California over the word "marriage" (since same-sex couples already had the rights under the term domestic partnership). He then critiques marriage from a gay liberation perspective. This isn't new, but he cites many legal scholars whose work is mostly available in law review articles, and so the benefit of this format shines through; you can get a taste of the larger critique in this user-friendly format.

Then he makes a more unusual point. He argues that the home is violent for women and the necessity of divorce to end a marriage creates a dangerous situation. He then discusses violence in same-sex relationships and argues we should not make them more difficult to exit. He also argues that the private family exemplified by marriage is less safe than a more communitarian idea of family. Here I think he misses a lot. Laws that protect against intimate violence extend almost everywhere to same-sex couples, as well as unmarried heterosexual couples. Those laws were once available only to married couples, and so it's an area of law that has actually expanded its reach to address the needs of real people in violent situations, married or not. He doesn't convince me that marriage creates more violence. And economic and emotional dependence can make it hard to leave an unmarried relationship. He did not convince me that the availability of marriage would make gay men and lesbians less safe in the home.

But I do love his last line: I fear that when the history of the Gay movement itself is written it will read more as epitaph than epilogue: Once upon a time there was a Movement... then there was Marriage.

While I'm pointing out critiques of the movement for marriage equality available on line, check out this one by Yale English/American Studies prof Michael Warner (author of The Trouble with Normal), that appeared as an essay in the California Law Review, but is, amazingly, available in full on line. It's longer than the new format of law review websites, but it's worth reading. He argues that gay rights advocates go after marriage because it symbolizes obtaining the dignity and respect of straight people. "To argue for gay marriage on these grounds," he writes, "is to despair that respect can be compelled on any other terms." I couldn't have said it better.

Adar v. Smith oral argument focuses on procedure

I thought there would be numerous press accounts of the oral arguments last week in Adar v. Smith. After all, it's a case that exemplifies a significant "culture war" between states that fully respect the ability of same-sex couples to raise children, including adopted children, and states that wish to signal their disapproval of childrearing by same-sex couples in every way they can. In addition, it was an en banc 5th Circuit argument, meaning that all 16 judges on a court that sits just below the US Supreme Court heard the case. This is not an everyday occurence. (The court's website says that requests for en banc hearings are granted less than 3% of the time).

But I've listened to the oral argument online now (click here and look for Oren Adar v. Darlene Smith), and I realize that probably 95% of the time was taken up by legal issues so technical that I had to listen to it twice before even writing this account. So it's no wonder the argument was not covered in a single newspaper or other mainstream media source.

The Louisiana Attorney General's office hopes the 5th Circuit never discusses adoption by a same-sex couple when it rules in the case. It wants the case dismissed on the basis that the federal court lacks subject matter jurisdiction (meaning the legal authorization) to hear the case. It thinks the Full Faith and Credit Clause is a command to courts and cannot be the basis of a lawsuit against a state registrar to issue a new birth certificate. Don't even try to understand that if you have taken a law school course in both Civil Procedure and Federal Courts. Some of the judges appeared to think the couple needed to take the case to state court.

Then the state argued that the couple lacks standing to challenge the refusal of the state to issue a birth certificate because nothing bad has happened to them. Since there is supposedly no evidence that anyone has failed to recognize both men as parents, there is nothing for the court to decide. If that happens, the state argues, then the couple could go to state court and make an argument there.

Well there have been some problems faced by the couple, but, in any event, argued Ken Upton from Lambda Legal on behalf of the couple, not having a birth certificate is an injury. This caused a judge to ask whether a state could refuse to issue new birth certificates at all for any children after they were adopted. That would be an injury without a remedy, Upton answered (because there is no constitutional right to have a birth certificate changed). And therein lies the heart of the case: the state does issue new birth certificates, but only for children adopted by a single individual or a married couple. That is the equal protection claim in the case, and it's the dispute about that claim that was so absent in the oral argument.

Anyway, from the Louisiana Attorney General's office, Kyle Duncan argued that the Full Faith and Credit Clause binds the parties only, so neither Dad could challenge the adoption in Louisiana (and the birth parents could not relitigate their consent to the adoption). He said that Louisiana might, and I want to emphasize might, have to recognize both men as parents should it come up in such context as the right to recover for the wrongful death of a parent. But he argued that Louisiana does not have to issue a new birth certificate. One state's adoption decree cannot require another state to change its public records, he said. That "might" drove me nearly insane as I listened to it. The state is not even conceding that the child actually has two legal parents of the same sex. This is very scary stuff.

The state argued that its DOMA requires Louisiana to interpret all its statutes to negate recognition of marriage by same-sex couples. This couple isn't asking for recognition as a married couple at all, so that argument is out of line. But because there is a plausible question under state law about whether, in fact, the registrar is applying the law properly by considering the state DOMA in refusing to issue a birth certificate, some judges seemed to want the case heard in state court so that a state court could decide what the state law requires.

There is a bottom line here. Whatever the Full Faith and Credit Clause means, the Equal Protection Clause prohibits a state from distinguishing between children of married parents and children of unmarried parents unless doing so is substantially related to an important governmental objective. Even if the court judged the case on a "rational basis" standard, the state would have to say that the distinction between those to whom it gives new birth certificates and those to whom it does not is rationally related to a legitimate state interest. Here the state says that its birth certificate policy is in keeping with its adoption law that only married couples can adopt in Louisiana. The state argues as though the plaintiffs cannot win unless the court rules it is unconstitutional to deny unmarried couples the ability to adopt children. Here's the quote from the state's brief (although, again, this did not come up in the oral argument):

Louisiana’s birth certificate policy, like the adoption laws undergirding it, enacts a simple intuition: a marriage recognized by law and a common culture provides a better basis for raising children than other relationships. We have not yet reached the point where federal courts will declare, by their own power, that such judgments are nothing more than bigotry.

Maybe so. But this is not what the plaintiffs seek.

So here is where I am left after digesting the oral argument and the briefs in this case. The District Court and the panel of the 5th Circuit that ruled for the plaintiffs ducked the Equal Protection claim by ruling on the Full Faith and Credit claim. If the en banc court disagrees about the merits of the Full Faith and Credit claim, then I don't see how it can duck the Equal Protection claim. A win on that ground would be sweet, and a loss devastating.

Fifth Circuit hears argument en banc tomorrow on case testing interstate recognition of adoption decrees

Early last year, a panel of the Fifth US Circuit Court of Appeals ruled in Adar v. Smith that Louisiana was required to issue a new birth certificate naming two men as the parents of a child born in Louisiana, after the couple adopted the child together in New York. The Louisiana registrar of vital records refused to issue the birth certificate with both fathers' names because unmarried couples are not permitted to adopt in Louisiana.

Well, the court granted the state's motion for rehearing en banc, and tomorrow all the judges on the 5th Circuit will hear oral argument in the case. The state is making an insidious argument that threatens the validity of all second-parent adoptions across state lines. While conceding that the adoptions are valid in the states where they were issued and bind the parties who litigated in all states, Louisiana is arguing that the Full Faith and Credit Clause of the Constitution does not require it to enforce an adoption decree that is against its public policy.

The Full Faith and Credit Clause requires states to enforce judgments from the courts of other states, without regard to their own public policies. A state is not required, however, to give Full Faith and Credit to another state's laws. An adoption decree is a judgment, but Louisiana is saying that the law that allowed a gay male couple to adopt in New York is what is really at issue and it is not required to give Full Faith and Credit to that, at least when it comes to enforcement through issuing a birth certificate that could not be issued under Louisiana's laws.

It's an argument that should lose. The 10th Circuit ruled four years ago in Finstuen v. Crutcher that an Oklahoma statute refusing to recognize adoptions from other states by same-sex couples and provide new birth certificates was unconstitutional. In the pending case, Louisiana tries to distinguish that opinion, but also argues that it was just plain wrong. If the 5th Circuit sides with the state, that will set up a Circuit split that could only be resolved by the US Supreme Court.

The state's argument also reminds me of the permutations argued by Lisa Miller in the longstanding litigation over Virginia's obligation to recognize Vermont's determination that Janet Jenkins is a parent of the child they planned together and entitled to visitation or custody. While that case turned on a specific federal statute requiring recognition of custody rulings from other states, rather than on the Full Faith and Credit Clause, after Miller lost on Virginia's obligation to recognize the Vermont order she argued that the statute did not require Virginia to enforce the Vermont order. It's a distinction with no legal difference, and Miller keeps losing.

While this case involves two men, Oren Adar and Mickey Rae Smith, Lousiana claims it would not issue an amended birth certificate for any unmarried couple who adopted a child born in Louisiana, because Lousiana prohibits such adoptions. A friend of the court brief filed on behalf of two law professors, Joan Hollinger and Barbara Bennett Woodhouse, and one of the most distinguished family law practitioner in Texas, Harry Tindall, who was chair of the committee that wrote changes to the Uniform Parentage Act, argues that this is unconstitutional discrimination against children of unmarried parents. I find it no accident that the first US Supreme Court case declaring discrimination against nonmarital children unconstitutional also came from Louisiana.

Lousiana's response to this? Essentially they say that while it is unconstitutional to discriminate against a child born to an unmarried couple, it is not unconstitutional to discriminate against a child adopted by an unmarried couple. Really.

The court will release a recording of the oral argument (here), but probably not until next week.

Wisconsin court leaves stand a parentage order for a nonbio mom but precludes such orders in the future

The most horrific part of last month's North Carolina Boseman v. Jarrell opinion against second-parent adoption was that it said the court that granted the adoption lacked "subject matter jurisdiction," which means that the order was void, along with all second-parent adoption orders, the moment it was granted. That wiped out every second-parent adoption in the state.

Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.

Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.

When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.

The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.

But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.

It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.

And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.

Supreme Court lets stand New York ruling for Debra H.

I wrote extensively about the dreadful New York Court of Appeals decision last year that refused to recognize parentage of a nonbio mom based on the couple's creation of a two-parent family. That court did, however, find that Debra H. was the parent of the child born to Janice R. because the couple was in a Vermont civil union when the child was born. The fact that a child in New York has two parents if the couple is married or in a civil union but otherwise has one parent, no matter how much that couple planned for and raised the child together, was a major impetus for the conference I'm hosting in March on the "New Illegitimacy."

Anyway, Janice asked the US Supreme Court to hear her case, claiming that granting parental status to her civil union partner violated her Constitutional right to raise her biological child. Yesterday, the Court denied her petition. That's what I expected. The Court hears very few cases at all, and very few specifically in the area of family law, which is generally a matter of state law and varies so much from state to state. Other nonbio moms have also been turned away when they've asked the Court to hear their cases. Refusing to hear a case -- which is called a denial of certiorari in legal-speak -- has no legal significance. In other words, it doesn't add anything to the New York ruling or make it more meaningful in any way. It just leaves it alone.

Publicly appointed marriage commissioners in Canada must marry same-sex couples

Opponents of gay rights now often portray themselves as victims -- victims of discrimination, intolerance, bigotry, hate, etc. (Remember that this is how they convinced the US Supreme Court not to permit video broadcasting of the Perry same-sex marriage trial).

Well, some of those opponents argue that it violates their right to religious liberty for the government to require them to do something they find morally repugnant, like marry same-sex couples or place foster children in a same-sex couple's care. This week, the Saskatchewan Court of Appeal, the Canadian province's highest court, ruled against allowing government appointed marriage commissioners to refuse to marry same-sex couples.

The court considered two proposals -- one to allow those who became marriage commissioners before same-sex marriage existed to refuse to marry gay couples and the other to allow any marriage commissioner to refuse to marry gay couples. Actually the proposals were written more broadly than that -- to permit refusal to conduct any marriage that violated the commissioner's religious beliefs. The court found that both options violate the Canadian Charter's equality principles. The court called the proposals "a retrograde step – a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions."

The proposal's proponents argued there would be insignificant harm to gay couples because they could just find someone else to marry them. The court dismissed this assertion, saying instead that "such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different." The court also noted that, given the vast geography of the Saskatchewan, some same-sex couples might have to travel very far to actually find a willing marriage commissioner.

The court did acknowledge that marriage commissioners would have to violate their religious beliefs to perform same-sex marriages. It suggested the possibility that it would not violate the Charter to have all couples place a request for a marriage commissioner at a "single entry point," where a person knowing which commissioners objected to same-sex marriage could direct the couple to someone who would perform their union. Apparently, such a system is currently in effect in Toronto. The idea is that no couple would ever face rejection on the basis of their sexual orientation. The court did not explicitly rule on whether such a system would be acceptable, and that issue may be decided at some point in the future.

The court summed up its position with the following eloquent language:

In our tradition, the apparatus of the state serves everyone equally without
providing better, poorer or different services to one individual compared to
another by making distinctions on the basis of factors like race, religion or
gender. The proud tradition of individual public officeholders is very much
imbued with this notion. Persons who voluntarily choose to assume an office,
like that of marriage commissioner, cannot expect to directly shape the office’s
intersection with the public so as to make it conform with their personal
religious or other beliefs. Any idea of this sort would sit uneasily with the
principle of the rule of law...

Some day we'll find out if our courts believe the same.

New Mexico update -- Republican governor may repeal domestic partner benefits

One day after New Mexico Attorney General Gary King released an opinion that same-sex marriages performed elsewhere would be recognized in New Mexico, the new Republican governor, Susana Martinez, said she is reviewing whether to eliminate domestic partner benefits for state employees. Both same-sex and different-sex couples receive those benefits, as a result of an executive order signed by Governor Bill Richardson in 2003.

Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.

The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.

No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.

New Mexico may be heading for showdown over marriage recognition

New Mexico elected a Republican governor, Susana Martinez, who took office earlier this week. Now the state's Democratic Attorney General, Gary King, has issued an opinion that marriages of same-sex couples performed where legally allowed will likely to considered valid marriages in New Mexico. He cited as support a 20-year-old court ruling that a marriage between an uncle and a niece, valid where performed, was not so against public policy even though such a marriage would be a crime in New Mexico.

A spokesperson for Governor Martinez has already issued a statement that Martinez made it clear during the campaign that she opposes same-sex marriage and that no court has ruled on the issue of recognition of those marriages from elsewhere. And a Republican Senator has already said that he will push for a constitutional amendment barring recognition of same-sex marriages. New Mexico has neither a statute nor a constitutional amendment barring same-sex marriages performed elsewhere. This puts it in a position similar to that of Maryland, whose attorney general issued an opinion reaching the same conclusion last February. But Maryland had -- and has -- a Democratic governor. If Gov. Martinez wants to restrict administrative recognition of same-sex marriages from elsewhere, she may well be able to force couples who seek that recognition into court.

When Bill Richardson was governor, he made strong efforts to get the legislature to pass a comprehensive domestic partnership law. He was unsuccessful.