Friday, October 28, 2011

IRS nods towards surprising interpretation of civil union/domestic may be "married" for tax law purposes

Pat Cain, tax law expert extraordinaire, shared an astonishing piece of news on her blog yesterday.  The IRS Office of Chief Counsel has written a  letter indicating that a different-sex couple in an Illinois civil union is considered married for purposes of filing a tax return at the federal level.  The letter says nothing about same-sex couples, presumably because DOMA blocks treating a same-sex couple as married under federal law.  (I've wondered sometimes if the federal government could recognize a civil union or domestic partnership because it isn't a marriage, which is what DOMA addresses.  But I'll leave that aside for now...)

Here is what's astonishing about this.  One of the reasons different-sex couples enter such a status instead of getting married is to avoid the federal consequences of marriage.  For example, a divorced woman collecting social security retirement benefits on the basis of her former marriage loses those benefits if she remarries.  Presumably this is the reason that some of the states that allow different sex couples into DPs limit it to couples where one person is at least 62 (the minimum age for a nondisabled person to collect social security retirement benefits).  But some states (Illinois, Hawaii, Nevada) as well as DC allow all different sex couples into the status.  And DC allows two people who live together "in a committed, familial relationship" to register as DPs.

As Pat Cain notes, this one letter is not "the law."  And it only applies to filing status.  If it does become the policy of the IRS it is hard to see how it could apply to filing status and not to other tax code provisions, and then it is hard to see how the IRS could consider a couple married without the Social Security Administration doing the same, which is where retirement and death benefits come in.

If this does become "the law" it has a special significance for me.  I'm in a DC registered domestic partnership and, as anyone who reads this blog or hears me speak knows, I do not want to get married.  But I would benefit from filing my federal tax return as "married." So...if DOMA is repealed, a ruling consistent with this recent IRS letter would mean I could stay in my DP and still file my federal taxes as married.  Cool!  It would also allow others to choose "civil union" or "domestic partnership" as an alternative to marriage without federal penalty.  That might make it too good to be true...So I'm not holding my breath!

Thursday, October 27, 2011

Application for social security card recognizes possibility of same-sex parents, but...

A same-sex couple will no longer have to puzzle over filling out an application for a child's social security card.  Where it used to call for "mother" and "father," it now asks about "mother/parent" and "father/parent."  But there is a catch.  The "mother/parent" space asks for name AT BIRTH, while the "father/parent" space does not.  Would it be so hard to ask for the name at birth of both parents?  Husbands do sometimes change their names when they marry.  A student of mine last year wrote a paper on this issue as a result of difficulty he had effectuating a name change when he took his wife's name at marriage. (If you are curious why he did this, well, her name had great meaning to her within her culture, and he was fine changing his name to hers and giving that name to their children.)  And since women do not always change their names, those who have not changed their names will not feel singled out for a reminder that most women do. And...with 40% of births to unmarried women, a lot of mothers apply for a social security card for a child without a second parent.  The "name at birth" instruction to women only surely reminds them that they were supposed to be married (and change their name) before the child was born.  And, finally, same-sex couples as well as straight couples, sometimes take a new name for themselves and their child.  Then each had a different name at birth.

I want all these parental possibilities to appear equally appropriate on our government forms.  Too much to ask?

Tuesday, October 25, 2011

New report on LBGT families with children a must-read

Today the Movement Advancement Project, Center for American Progress, and Family Equality Council released the report, “All Children Matter: How Legal and Social Inequalities Hurt LGBT Families.” This is not just one more report on children of LGBT parents. It is, instead, the gold standard against which every other assessment of the needs of children of LGBT parents will be measured for well into the future. The report identifies three goals, each one of which receives lengthy treatment in a separate section: Goal 1: Securing stable, loving homes for children; Goal 2: Ensuring economic security for children; Goal 3: Ensuring health and well-being for children. The conclusion presents detailed recommendations designed to achieve these goals.

I have often complained in my blog posts about all the reports, press releases, speeches, testimony, etc that attribute the problems facing LGBT families, including the children in those families, to the unavailability of marriage to same-sex couples. This report does not make this mistake.

Beginning with the introduction, the report situates LGBT families within the context of other disfavored families. Noting that only 22% of households are married heterosexual couples raising their biological children and that only 59% of children live with their two married biological parents, the introduction notes that “unequal laws and social stigma harm not just the two million American children with LGBT parents, but also children in other family configurations, such as those with unmarried heterosexual parents.” It also criticizes government safety net programs that fail to support and protect children not living with a married mother and father. So from the beginning of the report, it is clear that the authors do not identify lack of access to marriage as either the primary problem or the primary solution.

In addition, after describing the number of same-sex couples raising children who are disadvantaged by their race, economic disadvantage, and bi-national status, the report makes clear that the needs of those families cannot be met only by looking at the LGBT angle of their lives. For example, in addition to LGBT-related immigration reforms, the report recommends a pathway to permanent residency and citizens for all undocumented immigrants living in the US.

Another strength of the report is its level of detail. I would almost call it mind-numbing detail, to the extent that it is difficult to absorb the volume of factual information and accompanying analysis in the report’s 115+ pages. (The authors prepared an abridged version, but it’s worth slogging through the full report). But anyone truly trying to understand the large number of public programs affecting “parents, “children,” and “families” – terms defined in maddeningly different ways – the report gathers everything in one place, from the school lunch program to public housing to various tax credits.

The section of the report on securing stable, loving homes for children does not address parenting in general terms, but separates five distinct pathways to parenthood – traditional conception, adoption and fostering, blended and stepfamilies, assisted reproduction, and surrogacy. For each, it discusses laws and policies that either block or facilitate establishing and maintaining parent-child relationships. This is the area of law I know the most about, and I did find a few technical errors or misleading statements, but a report of this magnitude that tries to present nuances rather than generalizations is bound to have small mistakes. For the most part, I was enormously grateful for the nuances; a decision from a state’s intermediate appellate court, for example, is not the last word on the state’s law, even if for the moment all trial courts are following it. It’s very hard to convey that when drawing a color-coded map.

Something I love and deeply appreciate about the report is its emphasis on defining family in functional ways. It makes numerous recommendations for basing economic policies, from eligibility for programs to ability to sue for wrongful death, on the functional parent-child relationship. Other strengths include acknowledging the significance of racial disparities and identifying what should be done to overcome them and naming the distinctive circumstances facing transgender individuals who are or want to be parents.

No single post can do this report justice. So consider this the first in a series.

Saturday, October 22, 2011

Evan Donaldson Adoption Institute report identifies best practices in adoption...but supports same-sex marriage for the wrong reason

The Evan B. Donaldson Adoption Institute issued a new report this week on Research-Based Best Practices in Adoption by Gays and Lesbians.  It includes the results of a survey of 158 adoptive parents.  What the researchers learned from those parents, combined with information from other sources about LGBT adoption, produced a series of recommendations.  These includes creating an atmosphere welcoming and respectful of LGBT prospective adoptive parents; promoting sensitivity and competence among agency staff; providing pre- and post-adoption support to LGBT families; providing pre-adoption support and education for birth families and older children; and supporting research on adoption and parenting.  After three previous reports on LGBT adoption: on the number of agencies working with LGBT clients; on the research finding no child-centered reason to oppose LGBT adoption; and on eliminating barriers to LGBT adoption of children from foster care; it's terrific to read a report focused not on whether LGBT individuals and couples should be able to adopt but on how to make those adoptions work better for everyone.

But I do have a quarrel with one recommendation: advocate for the passage of gay marriage laws.  If the researchers had stopped with saying that denial of access to marriage stigmatizes same-sex relationships and that's not good for the children they raise or for creating a climate in which more gay people want to adopt, well, I'd be fine with that.  But this is what they said:
Marriage promotes relationship stability for heterosexual adults compared to cohabitation, and consequently leads to healthier long-term psychological adjustment for children.
On this point, they should know better.  The causal link between marriage and better child outcomes is highly contested.  Those who make this claim generally oppose policies that respect and promote family diversity.  I think the reference to "relationship stability" refers to the length of time the relationship lasts.  Yet the one longitudinal study (peer-reviewed, published in the prestigious journal, Pediatrics) of children of lesbian couples that has studied the children when they were 17 years old found no difference in the well-being of those children whose mothers had split up and those who were still together.

But it get worse.  The next sentence reads:
If the well-being of children is to be paramount, then there is reason to expect that the marriage of their parents -- including when they are gay or lesbian -- will further the same objective.
Now this is the same organization that, along with every other highly regarded national child welfare organization, asserts that a substantial body of research demonstrates that children of LGBT parents suffer no psychological detriment when compared to children raised by heterosexuals.  And those were unmarried LGBT parents. In other words, children have done fine living with LGBT parents who could not marry each other, so what is this assertion that marriage of those parents will produce healthier children?

 I appreciate that the researchers support marriage equality.  But they should know better than to do so in the name of producing better-adjusted children.  It gives too much credit to arguments that are used inappropriately when discussing heterosexuals, and it disregards the well-being of the children LGBT parents have been raising for decades.

Wednesday, October 19, 2011

Gay rights lawyer Beth Robinson appointed to Vermont Supreme Court -- becomes 4th lesbian high court judge in the last 12 months

Yesterday, Vermont governor Peter Shumlin appointed gay rights lawyer and marriage equality advocate Beth Robinson to the Vermont Supreme Court. That brings to four the number of open lesbians appointed to state supreme courts in the last twelve months. The other three are, in chronological order, Monica Marquez, appointed December 2010 to the Colorado Supreme Court; Sabrina McKenna, appointed February 20011 to the Hawaii Supreme Court; and Barbara Lenk, appointed May 2011 to the Massachusetts Supreme Judicial Court. Before December 2010, there was only one openly lesbian state supreme court judge, Virginia Linder, appointed in 2007 to the Oregon Supreme Court.

State courts are hugely influential in determining family law disputes, including those that involve same-sex couples and LGBT parents. Four of these five judges are serving in states that have marriage (Vermont and Massachusetts) or comprehensive recognition (Oregon-domestic partnership and Hawaii-civil union) for same-sex couples. Issues will arise in those states not only for same-sex couples who marry but for those who don't.

Beth Robinson, who has been deeply involved in marriage equality efforts for most of the last two decades, knows my critique of making marriage the dividing line between relationships that count under the law and those that don't. She has been focused on the equality aspect of access to marriage. I hope in her new position, having achieved the equality she fought hard to obtain, she will focus on doing justice for all LGBT parents and their children in Vermont, whether the couples marry or don't.

But that's all in the future. For today, a big congratulations to Beth! And props to the governor who selected her.

Wednesday, October 12, 2011

Texas Supreme Court lets stand lower court order registering the parentage judgment of a gay male couple

On September 30, the Texas Supreme Court denied review in a case brought by the nonbiological father of a child born using his ex-partner's sperm to a California surrogate mother. The couple, Jerry Berwick and Richard Wagner, lived in Texas, and had a child in December 2005 pursuant to a gestational surrogacy contract in California. Berwick is the biological father. Pursuant to agreements filed in the California court by the two men, the surrogate, and her husband, the California court issued a pre-birth parentage judgment naming the two men the child's legal parents. The order was stayed until the child's birth, as is customary with a pre-birth order. Upon the child's birth, a birth certificate was issued naming both men as parents (although, oddly, Wagner was listed in the space denominated "mother.")

The couple raised the child as two parents in Texas until 2008 when Berwick ended the relationship. Ever since, he has been arguing that he is the child's only parent. And, as we have seen too often before, he is represented by the anti-gay Alliance Defense Fund (ADF).

Wagner, represented by Ken Upton in the south central office of Lambda Legal, filed to register the California judgment in Texas pursuant to a statute that exists in every state. Those statutes, part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), mandate that every state register child custody judgments from other states and give them Full Faith and Credit. The ADF lawyers argued that the parentage judgment did not determine "child custody" and therefore did not fall under the statute. In a decision last February, the Texas Court of Appeals ruled in Wagner's favor. Because the California judgment established that the birth mother and her husband were not the child's legal parents, it did determine that Berwick and Wagner would have custody of the child and the "presumed" parents (the woman who gives birth and her husband) would not. It is that ruling which the Texas Supreme Court declined to review two weeks ago. According to the Texas Supreme Court website, Berwick can still file a motion for rehearing next week.

That's not the end of it. It never is with ADF (or its fellow traveler, Liberty Counsel, who represents Lisa Miller in the long-running Miller-Jenkins litigation.) Berwick is still arguing in the lower court that Wagner is not a parent. Stay tuned.

Tuesday, October 11, 2011

Supreme Court denies cert in Adar v. Smith, leaves child without accurate birth certificate

This morning the US Supreme Court declined to review Adar v. Smith, the ruling from the Fifth Circuit Court of Appeals (en banc) that Louisiana need not issue an amended birth certificate naming as the child's parents an unmarried couple who adopted the child in another state. A gay male couple had adopted the child in New York.

I have written about the case extensively here, including the massive effort by Lambda Legal to gain Supreme Court review.

A denial of certiorari is not a seal of approval for a lower court's ruling, so it does not make the law worse than it already is. (As opposed to a loss in the Supreme Court, which has nationwide ramifications). That said, the ruling that stands is very bad. It is the crack in the door that other states, and their courts, may walk through to deny recognition to same-sex couples raising children in a variety of contexts. Its differential treatment of children with married parents and those with unmarried parents is also deeply disturbing.

Friday, October 7, 2011

Paula Ettelbrick dies after a life of service to LGBT rights; NY Times obit emphasizes her skepticism about marriage

After battling cancer for over a year, Paula Ettelbrick died this morning in New York. She was 56.

I met Paula when she joined Lambda Legal in the 1980's. In the group of gay rights lawyers from around the country that met regularly at the time, we both opposed prioritizing marriage. She and I shared an expansive definition of family and a broad vision of social justice. I remember when she called me to discuss an essay she was writing defending her (our) position on marriage. It was to appear in (the now defunct) Out/Look magazine in tandem with a piece by Tom Stoddard, Lambda's executive director, who held the opposing view. Little did we know that the Stoddard/Ettelbrick debate on marriage would become the iconic articulation of the different visions about the proper place of marriage within our movement.

Tom died of AIDS in 1997, also at far too young an age.

The Stoddard/Ettelbrick essays have been reprinted in many textbooks and essay collections.

While at Lambda, Paula also represented Alison D., a nonbiological mother who was denied access to the child she had raised with her partner. In spite of her superb advocacy, the New York Court of Appeals ruled that Alison D. was nothing more than a stranger to her child and could not obtain court-ordered visitation. The same court, two years earlier, had expansively defined family to allow the partner of a deceased New York City tenant to remain in the rent-controlled apartment the couple had lived in together, even though only the deceased partner's name was on the lease. Paula told me she thought the court wasn't willing to deliver a second gay rights win in such a short period of time. Unfortunately, and to Paula's deep dismay, the same court upheld Alison D. in a 2010 case.

Paula was a deeply engaged, optimistic, and loving person. After Lambda, she held other important positions in gay rights organizations. When she was executive director of the International Gay and Lesbian Human Rights Commission, she told me how great it felt to work on sexual liberation in countries around the world.

After her diagnosis last year, Paula wrote many people, including me, described her status, and told us that what she wanted was to see us. Over brunch last November, she was as full of life and positive as ever. She will be honored later this month by SAGE. I'm sorry she did not live to receive the award in person.

May her memory be a blessing.

I'm amending this post to link to the New York Times obituary on October 8. The obituary highlights her family -- a partner, two children by a former partner (gay rights law professor Suzanne Goldberg), and a life that included Suzanne and her new partner. It also highlights her skepticism about marriage equality and quotes from the essay I referred to above.

Tuesday, October 4, 2011

El Paso has inclusive definition of domestic partners; Mayor and council members face recall

I've got a special connection to El Paso, given that my partner and I have a residence across the New Mexico border in Las Cruces. El Paso is our local airport. It's also a city hard hit by the Mexican drug wars across the border in Juarez, something we were following as a local story for years before the national press picked up on it.

Well El Paso has been in the news for another reason. The city provided health benefits to the domestic partners of its employees, which led to a successful referendum to repeal them, which the City Council then rejected. Now El Pasoans for Traditional Family Values is trying to recall the mayor and two council members. The New York Times website covered the dispute here.

The article reports that 150 city employees were told they would lose benefits. "19 were in domestic partnerships, including 2 who are gay," the article states. I was confused about who actually the recipients were, so I located the form that employees must fill out.

The El Paso definition allows two people who have lived together for six months and plan to do so indefinitely, who are not related to a degree that would ban marriage between them, who are not married and have not had a different domestic partner within the last six months, and who can produce two documents indicating interdependency, to register as domestic partners. The article suggested some of the domestic partners were "foster children, retirees and disabled relatives cared for by city employees." I guess the relatives were distant enough that they could not marry each other, since that's a requirement.

Children of the domestic partner, if primarily dependent on the employee for support, can also be covered.

This kind of inclusive definition helps so many people. I'm curious about the vast majority of relationships. Even if such a small number are same-sex couples, that does not stop right wing groups from denouncing the effort as they have in El Paso. I do think the more inclusive definition is designed to keep the issue from being solely a gay issue, but in truth it is more than a gay issue. When an employee lives in an interdependent relationship s/he should be able to assure the health of the person whose life is so bound up with his/hers. A program like that in El Paso is better than one that extends benefits to only married couples and insists that same-sex couples marry (or enter civil unions) to be included. And it's better than a program that makes different-sex couples marry and covers same-sex couples who say they would marry if they could (like the Ninth Circuit Collins v. Brewer case I've written about (now known as Diaz v. Brewer)...decided in favor of the plaintiffs but now pending a request for en banc review.)

Sunday, October 2, 2011

Arkansas law on same-sex couples raising children is...complicated

Same-sex couples have a constitutional right to carry on a sexual relationship in their home. So do different-sex couples. That's what the Arkansas Supreme Court said in Cole v. Arkansas, the case striking down the ban on adoption and foster parenting by anyone living with a nonmarital partner. The court's ruling was based on the Arkansas constitution. (For more about the case, read here).

So how can an Arkansas court repeat the following: "It is true that unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided"? I can't explain it, but that quote comes directly from a custody case decided in September in which a lesbian mother received custody of her two children but was ordered not to have her partner spend the night when the children were with her. The case, Bamburg v. Bamburg, comes from the Arkansas appeals court and does not mention the Cole case. The quote in turn cites to an Arkansas Supreme Court case from 2001.

Bob appealed the custody awarded to his ex-wife, Lisa, but Lisa did not appeal the restriction placed on her partner's presence. She may have been grateful to get custody at all, especially given the fact that she and her partner lied about their relationship at a temporary custody hearing. The judge's restriction does not allow either parent to have a nonmarital partner present, but it does not appear that Bob has a nonmarital partner. What disturbs me about this is not its unequal burden. It is accurate that Bob can marry under Arkansas law and Lisa cannot, but no parent should be required to marry to have a life that includes his/her children and his/her partner. And you would think that would be clear in Arkansas after the Cole case.

Cole itself said that child custody principles and striking down the foster parent/adoption ban were not in conflict because foster and adoptive parents are individually scrutinized. But in a custody case a parent's partner is also individually scrutinized. Think how odd is the result in the Bamburg case: Lisa and her partner, Mary Alice, must be allowed to adopt a child if they are found suitable, even while living together. But by this ruling they are not allowed to live together with Lisa's biological children. And that is so even though the daughter, who was 15 years old at the time of the trial, stated that she wanted to live with her mother, had a good relationship with Mary Alice, had no problem with their relationship, and did not like that she had been unable to see her while the divorce was pending.

It amounts to this: the state cannot object to Lisa and Mary Alice's home, but Lisa's ex-husband can. And if he does, a court will be more than happy -- with no individualized justification at all -- to send a message to Lisa's children that there is something wrong with being a lesbian mother. Shame on him. And shame on the state for validating his discrimination which the state itself cannot practice.