Thursday, February 24, 2011

Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about

The New York Supreme Court Appellate Division, First Department, ruled today that the marriage between a decedent and his surviving partner in Canada is entitled to be recognized in New York. (To read the opinion, In re Estate of Ranftle, you need to click here and scroll down to page 8). The couple, J. Craig Leiby and H. Kenneth Ranftle, married in Canada in June 2008, and in August 2008, Ranftle wrote a will. After Ranftle died, Leiby sought to probate the will as his surviving spouse and was opposed by the decedent's brother. The trial court found the marriage subject to recognition in New York, and in this opinion the appeals court affirms.

This opinion is a timely reminder of what yeseterday's Obama administration announcement does not mean. DOJ will no longer defend the constitutionality of DOMA Section 3, the section that denies federal recognition to validly married same-sex couples. Section 2 of DOMA says that states are not required to recognize same-sex marriages from elsewhere. The DOJ announcement is silent on Section 2, because it is not an issue in the pending cases that prompted the DOJ announcement.

Any family law scholar will tell you that DOMA Section 2 was unnecessary, because the rule of law even without it is that a marriage valid where performed will be recognized in a state unless it violates the strong public policy of the state.

In the Rantfle case, the opinion simply recites that rule, notes that New York does not have a specific statute (as the vast majority of states do) refusing to recognizing same-sex marriages from elsewhere, and then concludes that it is not against "natural law" to recognize such marriages. Short and sweet.

In states with statutes refusing recognition to same-sex marriages from elsewhere (here is a chart), a court would not treat Leiby as Ranftle's surviving spouse. Nothing in yesterday's DOJ announcement changes that. At some point there will be a constitutional challenge to such non-recognition. One way the United States could be a party is that a couple could marry, go home to a state that does not recognize them, and then try to get some federal benefit. The federal government goes by state law to determine if you are married, and the couple could claim that by not treating them as married the state they live in is violating the constitution. The administration would have to take some stand on the matter.

But it's more likely that the couple will seek some recognition in their state, in which case the United States won't be a party at all, and we would expect most state courts to uphold the state DOMA. All this will be interesting litigation to come. Meanwhile, New Yorker get one more piece of support for the validity of the marriages they enter outside New York.

Wednesday, February 23, 2011

Obama administration will no longer defend section 3 of DOMA...what now?

The Justice Department has just announced that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). That's the section that defines a married couple for federal law purposes as a man and a woman. The announcement comes in the context of cases pending in the Second US Circuit Court of Appeals brought by GLAD and the ACLU.

Nothing will change right away. The administration will continue to enforce DOMA as written. And it will do everything possible to facilitate the ability of Members of Congress to enter the litigation for the purpose of defending the statute. I am certain they will do so. The administration will wait until a final judicial ruling in the cases (or repeal by Congress) to change its approach to married same-sex couples.

The reasoning behind the decision is as important as the decision itself. DOJ and the President have concluded that sexual orientation should be considered a "suspect classification" under the Equal Protection Clause of the Constitution. That means that all distinctions between gay and straight people would have to be justified as "necessary" to achieve a "compelling state interest." (That's hard to do.) But the US Supreme Court has the final word on Equal Protection analysis, and NYU law prof Kenji Yoshino has a recent article in the Harvard Law Review explaining why the Court is unlikely to expand at all the list of groups entitled to suspect class status.

DOJ released its statement as I was putting the final touches on a short commentary I've written as part of a colloquium of the Harvard Civil Rights-Civil Liberties Law Review centered around a piece by Northeastern law prof Libby Adler critiquing the "equal rights" framework for its limitations in meeting the needs of LGBT people. My commentary focuses specifically on the DOMA litigation that is the subject of this DOJ opinion. (How timely of me!)

Basically, I explain that treating married same-sex couples as married under federal law will help some couples but it will hurt others. That's because not all marriages are equal under federal law. Marriages that are based on the single breadwinner, stay-at-home mom model make out like bandits. They pay less in federal income tax and they get much more in social security benefits than marriages in which the two spouses are closer-to-equal earners. In fact, with respect to social security, all of us, including equal earning spouses, heavily subsidize the white family form of 1939 that lawmakers had in mind when they created social security spousal benefits. Eliminate DOMA and all of us, including same-sex married couples with two close-to-equal earning spouses, will continue to subsidize that 1939 model; but now the model will encompass same-sex couples with one high income earner. The close-to-equal earners will also get socked with the marriage penalty when they pay their income taxes; the traditionally gendered model will get a huge marriage bonus.

I understand that this is the consequence of an equal rights framework. Same-sex married couples get what different-sex married couples have. That doesn't make it just. Imagine a world in which our tax and benefit structure did not privilege single high wage earner married couples. Apparently that is harder to achieve than federal recognition of same-sex marriages. But if we care about real world impact on the lives of lesbians and gay men, we should be looking for justice, since most of us are not married couples with a single high wage earner.

There will be much rejoicing today. From a gay civil rights perspective there's much to be happy about. But economic justice and fair family policies are another matter, and I won't throw a victory party til we have those.

Gov. Abercrombie to sign civil union bill at 7pm Eastern tonight; different-sex couples included

The modern era of the movement for access to marriage for same-sex couples began in Hawaii in 1993. Of that there is no doubt. That year the Hawaii Supreme Court ruled that the state's ban on same-sex marriage was unconstitutional sex discrimination under the Hawaii state constitution. The court sent the case back to the trial court and instructed the state to justify the exclusion by proving that it was "necessary" to protect a "compelling state interest." Although the people of Hawaii cut short the process begun by that court ruling by passing a constitutional amendment, the ruling served the purpose of demonstrating that is was possible to bring a court challenge and succeed. The rest is history, and of course it is history still in the making.

Well today Hawaii Governor Neil Abercrombie signs a bill creating civil unions. The status confers all the state based consequences of marriage. Both same-sex and different-sex couples can enter civil unions. You can watch the signing live, at 7 pm Eastern time, here. Lambda Legal has prepared a terrific explanation of the new law which you can read here.

The most recent three states to create such a comprehensive status are Hawaii, Illinois (civil union - 2011), and Nevada (domestic partnership - 2009). All three are open to different-sex couples. I hope this marks a trend that will continue. California and Washington allow different-sex couples to enter domestic partnerships if one person is at least 62 years old. (When a divorced person who was married more than 10 years turns 62, that person becomes eligible for social security based on the work record of his or her ex-spouse. Remarriage destroys that eligibility, but domestic partnership or civil union status does not.)

I hope that someday the official name of the civil status that all couples can choose will be something other than marriage. (I describe my views in more detail here.) I like civil partnership, but I'll take civil union.

My favorite place in the world is Kauai. I can highly recommend it for those wishing to formalize their relationships in, well, paradise.

Tuesday, February 22, 2011

Then again the Arkansas nonbio mom ruling falls short...

I was pretty excited when I wrote last week about Bethany v. Jones, the Arkansas case that recognized the right of a nonbio mom to continued visitation rights with the child she raised. The court relied on the doctrine of in loco parentis, which means that Emily Jones functioned as a parent to the child she raised with her ex-partner.

Then I thought about it a bit more and realized I became too excited too soon. Jones is the child's parent. She planned for the child, raised the child as a stay-at-home mother for three years, and the child called her "mommy." A parent has an equal right to custody and is not relegated to a second class status. The court compared Jones to a stepparent, but she isn't a stepparent. A stepparent does not plan for a child to be born. A child does not bear the last name of a stepparent from birth, yet the child in this case had the last name of Jones. Parentage also protects a child in other ways, such as the right to survivors benefits. This child doesn't get that.

In DC, Jones would have been the child's parent. In California, Jones would have been the child's parent. That the Arkansas case did not turn out as badly as it might have shouldn't blind us to the fact that it falls short of fully recognizing this child's family.

Friday, February 18, 2011

Arkansas Supreme Court approves visitation rights for non-bio mom

In a 5-2 decision, the Arkansas Supreme Court yesterday affirmed a trial court ruling granting visitation rights to a nonbiological mother The case, Bethany v. Jones, has a familiar fact pattern. Alicia Bethany and Emily Jones had been together for five years when Bethany gave birth to a child that she and Jones planned for together. They gave the child Jones as a last name and also gave her a middle name for Jones's grandmother. (Bethany changed the child's name after the break-up). Jones was the child's primary caretaker as a stay-at-home mother for three years. The child called Jones "mommy" and Bethany "mama." She also called Jones's parents, "Grammy" and "Poppy."

The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.

Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.

Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.

Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)

Monday, February 14, 2011

Ninth Circuit hears case on Arizona domestic partner benefits...but only for same-sex couples who say they would marry

In 2008, by administrative regulation, Arizona made available to state employees health benefits for their domestic partners, defined by at least a year of living together and a set of criteria demonstrating financial interdependence. Same-sex and different-sex partners were eligible. In August 2009, the Arizona legislature rescinded these benefits through a statute limiting state employee health benefits to spouses. Before the rescission could take effect, Lambda Legal challenged the constitutionality of the legislation, but only on behalf of those state employees with same-sex partners. They won in the District Court, and the Ninth Circuit Court of Appeals hears the state's appeal today, in the case of Collins v Brewer.

This case really bothers me. In 2006, an Arizona referendum that would have barred both same-sex marriage and any legal recognition of unmarried partners, gay or straight, failed at the polls. Prop 107, as it was known, is the only ballot measure against same-sex marriage that has ever been defeated. The campaign against it prominently featured different-sex couples who feared losing domestic partner benefits. Two years laters, Arizonans did pass a constitutional amendment simply limiting marriage to one man and one woman. It did not preclude recognition of unmarried couples or of civil union or domestic partner status. The only reason the state employee domestic partner benefits could exist in the first place for anyone is because Prop 107 failed.

Lambda not only carved same-sex couples out from the group of people with domestic partner benefits, they actually say in the briefs, repeatedly, that heterosexual state employees have not lost their benefits. This is inaccurate. Heterosexual employees have lost benefits for their domestic partners (or will when the law goes into effect). They can get benefits if they marry their partners, and Lambda believes this means it is accurate to say in the litigation that the new law deprives only gay and lesbian employees of benefits. I do not believe this is accurate.

The other thing that bothers me is that the gay and lesbian plaintiffs all had to say they would marry their partners if they could. So what happens to those who don't want to marry? Lambda isn't representing those employees either. I wonder how the conversations went between the Lambda lawyers and the gay and lesbian state employees. Did the lawyers say "we can't represent you unless you sign an affidavit that you would marry your partner"? Or did they first talk to all the couples and find out how they felt about marrying? And then tell them that they had already picked out a legal theory that would require the couples to say they would marry? I guess I'm asking if the legal theory came first or if the genuine wishes of all the gay and lesbian employees came first.

It's a grave matter to separate out different-sex domestic partners. I applaud the fact that the most recent civil union/ domestic partner statutes (Nevada, Illinois, and hopefully Hawaii) are open to both same-sex and different-sex couples. And with the unique history of political common cause in Arizona, it seems especially grave. But dividing the gay couples into those who want to marry and those who don't and representing only those who want to marry carves deep into our own community as well.

The press will likely report this case the way Lambda is portraying an attempt to stop a law from going into effect that will deprive only same-sex couples of domestic partner health benefits. That doesn't tell the whole story.

Sunday, February 13, 2011

Two moms on Maryland birth certificates...not the victory it might sound like

Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.

Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.

Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.

And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.

In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.

While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.

If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.

This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.

In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.

Friday, February 11, 2011

Law prof. Art Leonard summarizes 2010 legal developments

New York Law School professor Art Leonard, founder and editor of Lesbian/Gay Law Notes, has prepared a summary of the major legal developments of 2010 affecting LGBT people, and he has posted it online here. His monthly Law Notes publication is the single best way to keep abreast of the legal news that matters to the lives of LGBT people.

Thursday, February 3, 2011

Ohio Supreme Court hears argument in claim by nonbio mom

Last year about this time I wrote about three cases in which a bio mom was teaming up with the sperm donor to force a nonbio mom out of a child's life. One of those cases, In re L.K.M., was argued yesterday before the Ohio Supreme Court. Lambda Legal represents Michelle Hobbs, and Lambda Senior Staff Attorney Christopher Clark did a terrific job on her behalf. You don't have to take my word for it; you can watch the oral argument here. You can also read all the briefs filed in the case here, something that is rare in state appeals courts. (And so this is where you can see that this case involves yet another bio mom who accepted help from the virulently anti-gay Alliance Defense Fund and Liberty Counsel, each of whom filed a separate friend of court brief on her behalf.)

The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.

Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).

Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.

Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.

Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.

Wednesday, February 2, 2011

19-year-old son of lesbian couple gives moving testimony in Iowa hearings

Iowa is holding hearings on same-sex marriage. We know to expect to hear lots of comments about how bad it is for children to be raised by gay or lesbian parents. Well, listen here to the testimony of Zach Wahls, the 19-year-old son of a Iowa lesbian couple. It's a show-stopper.

Tuesday, February 1, 2011

35,000 Michigan state employees to gain "plus one" health benefits

Almost three years ago, the Michigan Supreme Court ruled that granting health benefits to same-sex domestic partners of government employees was a violation of the state's "defense of marriage" constitutional amendment approved by the voters in 2004.

Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.

The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.

I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.

I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.

As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.