Tuesday, April 26, 2011

British gay activists urge both marriage for same-sex couples and civil partnerships for different-sex couples

Gay activists in Britain are urging William and Kate to announce their support for marriage for same-sex couples. But at the same time they are advocating access to civil partnership for different-sex couples. At the moment, only same-sex couples can enter civil partnerships. Truncated news coverage has described the marriage equality plea without noting that advocates also back different-sex civil partnerships.

Although recent civil union legislation in Illinois and Hawaii both allow access for different-sex partners, Delaware's bill, which awaits the governor's signature, extends civil union status to same-sex couples only. Newspaper coverage noted than an effort to add different-sex couples was seen as an attempt to "undermine" the bill. That's a way of thinking that I do not follow. What civil union for different-sex couples undermines is the preservation of marriage as the one and only way straight people can announce their commitment. We are more likely to get to a greater recognition of the many ways that people form relationships that matter if we knock marriage off its pedestal. Given straight people options other than marriage is one step in that direction.

Friday, April 22, 2011

FBI arrests Timothy David Miller for aiding in the international kidnapping of Isabella Miller-Jenkins

The FBI has arrested Timothy David Miller for aiding and abetting the international kidnapping of Isabella Miller-Jenkins by her biological mother, Lisa Miller. (For background on the long-running litigation between Lisa, who became an evangelical Christian, and her former civil union partner, Janet Jenkins, declared Isabella's parent by the courts in Vermont, click here and scroll down to earlier posts). Lisa and Isabella appear to be in Nicaragua.

Gay and Lesbian Advocates and Defenders (GLAD), which has represented Janet Jenkins in the Vermont Supreme Court proceedings in this case, released a statement this morning.

A criminal complaint against Lisa Miller for international kidnapping was lodged on April 27, 2010, after the FBI learned that Lisa had crossed into Canada via the Rainbow Bridge at Buffalo, NY, with another passenger, thought to be a minor, on September 22, 2009. Just to put that date in context, Lisa failed to comply with numerous court orders awarding Janet visitation with Isabella. She did not appear at a Vermont hearing on August 21, 2009, concerning Janet's motion for custody of Isabella. The court ruled on November 20, 2009, that Lisa should surrender custody of Isabella to Janet on January 1, 2010. It is now clear Lisa and Isabella left the country after the hearing and before the court's ruling. Lisa's lawyers unsuccessfully appealed the transfer of custody and unsuccessfully sought review by the US Supreme Court.

The affidavit in support of the criminal complaint against Timothy Miller (no relationship to Lisa Miller has been established), which was issued on April 1, 2011, reveals that the FBI determined that Lisa and Isabella flew from Toronto to Managua, Nicaragua (via Mexico City and San Salvador) on September 22-23, 2009. Search warrants for Timothy Miller's email and phone records revealed that he is associated with Christian Aid Ministries (CAM) in Managua, and that he was involved in planning for Lisa to "escape" to Nicaragua, including approving the travel itinerary for Lisa and Isabella. The airfare was paid by a credit card in the name of Elaine and Jesse Cooper. The affidavit says that Elaine Cooper is the mother of Joanna Miller, Timothy's wife.

Lisa Miller was represented by Liberty Counsel, specifically Rena Lindevaldsen. Although Liberty Counsel lawyers informed the Vermont court that they did not know where their client was, the FBI affidavit establishes a connection between Liberty School of Law, where Lindevaldsen teaches, and Lisa Miller's presence in Nicaragua. The father of Victoria Hyden, an administrative assistant at Liberty School of Law, owns a home in Nicaragua. His name is Philip Zodhiates and he is connected to an entity that describes itself as a source of mailing lists for conservative and Chirstian mailers and telemarketers. One of Janet Jenkins's lawyers notified the FBI of a telephone call in June 2010 reporting that Zodhiates had asked Hyden to disseminate a request for supplies for Lisa.

Timothy Miller's emails contained a strand of communication between Zodhiates and another man named John Collmus concerning delivery of personal belongings for "Sarah" (believed by the FBI to be the code name for Lisa Miller) to Nicaragua. The emails said that Timothy Miller would meet Collmus at the airport in Managua and identified "Sarah" as working with Christian Aid Ministries in Managua.

You can read the criminal complaints and affidavits against both Timothy Miller and Lisa Miller here. Timothy Miller will be arraigned in Vermont on Monday.

The FBI has done a great job so far. I hope it continues to investigate any involvement of Liberty Counsel, anyone associated with Lisa's lawyers, and any other connections to right-wing Evangelical organizations. It's hard to take the moral high ground while actively disobeying the rule of law, and certainly any lawyer who aided -- or asked others to aid -- Lisa Miller in any way should face severe professional sanctions as well as criminal prosecution.

Thursday, April 21, 2011

European Court of Human Rights hears appeal of lesbian couple denied second-parent adoption in France

A French lesbian couple, denied a second-parent adoption of the daughter born to one of them using donor insemination, has taken their case to the European Court of Human Rights (ECHR). The couple, Nathalie Dubois and Valerie Gas, began living together in 1989, and their daughter, Alexandra, was born in 2000. Alexandra was conceived in Belgium because assisted reproduction is not available to a lesbian couple in France. The hearing before the ECHR last week is available (with simultaneous English translation) on line.

The European Convention on Human Rights prohibits discrimination under Article 8 and protects family life under Article 14. The two articles together have been the basis for previous challenges. In 2008, the ECHR, in E.B. v. France, ruled in favor of a single lesbian who had been denied the ability to adopt because of her sexual orientation.

Arguing on behalf of the couple, attorney Caroline Mecary presented numerous legal consequences denied Alexandra because Valerie could not adopt her. She contrasted Alexandra's position to that which would be available had her mother had a male, rather than a female, partner. Under French law, an unmarried different-sex couple can both be the parents of a child born to the woman using donor insemination. (European countries, in general, are more likely than the US to treat unmarried and married heterosexual couples equally). Furthermore, French courts do recognize second-parent adoptions granted in other countries.

The attorney for the French government argued that the European Convention on Human Rights does not grant a right to adopt. She tried to reassure the court that Alexandra would be protected under various other French laws, including the fact that Valerie will be allowed to adopt once Alexandra becomes an adult, as French law allows adult adoption that adds a parent for a child.

She argued for distinguishing the E.B. ruling, but then never said how it could be distinguished. She also argued that marriage is the most protective environment for raising children. Lest we think that groups opposing gay and lesbian parenting exist only in the United States, an organization called the European Centre for Law and Justice, affiliated with its American counterpart, commented in a press release that this case is "the latest in a long series of attempts to attack the European common heritage, by introducing new anthropological, moral and social views." Some of France's arguments track precisely arguments here against same-sex marriage, notwithstanding the fact that this case concerns parentage not marriage.

Rob Wintemute, law professor at King's College, University of London, presented argument on behalf of the European region of International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and other organizations. He presented the ECHR information on the many countries/states that do permit a child to have two parents of the same sex. Most eloquently, he began his remarks as follows: "The strongest and most persistent prejudice against the lesbian and gay minority in Europe, is that they represent a threat to the welfare of children." He also urged the court not to adhere to a rigid one-mother/one-father model of family life.

The judges of the ECHR do not ask questions during argument but do ask them after all the lawyers complete argument. (The judges ask all their questions at once and then the lawyers respond.)

Wednesday, April 20, 2011

New Arizona adoption statute prefers married heterosexual parents

Leave it to the Arizona legislature to enact another bad piece of legislation that reflects extreme right wing views. On Monday, Gov. Jan Brewer signed SB 1188 which creates a preference that a child be adopted by "a married man and woman." The act applies to anyone licensed to place children for adoption.

A single individual can be an adoptive parent if one of the following conditions exists: a married couple is not available; the single person is the child's legal relative; the child would otherwise be in extended foster care; there is an established "meaningful and healthy relationship" between the child and the single person; the birth parent(s) places the child with the single person; or the child's best interests require adoption by the single person.

This is different from other adoption statutes. Most statutes are silent about marital status and base adoption on a child's best interests. The Arkansas statute struck down recently (see my post here), as well as the one in place in Utah, ban adoption by a single individual living with an unmarried partner. Arizona's new statute is less restrictive than that because it is not an outright ban on such an adoption. On the other hand, with a preference for a married couple in every case, there is no telling how that will impact a lesbian or gay man -- or a single heterosexual -- seeking to adopt a child. It does suggest that if an agency has a married couple approved to adopt -- or even in the pipeline -- they must choose such a placement over anyone else. It may mean that married heterosexuals get their choice of child while an unmarried person gets the children such couples reject.

The exceptions to the married couple preference show a somewhat sophisticated understanding of the common circumstances cited by opponents of adoption restrictions, such as a birth parent's choice or a person with an established relationship with the child. And since best interests itself can be the basis for an exception, there is enough flexibility to permit placements to continue. The statute requires the judge to make written best interests findings for every adoption. It remains to be seen whether judges will require some proof of the unavailability of a married couple unless one of the enumerated exceptions other than best interests applies.

One more thing: The consistent use of "single person" in contrast to a married couple makes clear that two unmarried persons cannot adopt together. So much for the best interests of children.

Tuesday, April 19, 2011

Tennessee adoption ruling bodes ill for same-sex couple second parent adoption

Court rulings that affect same-sex couples raising children often come in the context of heterosexual families. When you think about it, that's inevitable, since there are so many more heterosexuals and they, too, live in a variety of family forms. Well, a decision from the Tennessee Court of Appeals last month, In re Shleby L.B., falls into this category, and the news is not good. (For a Colorado ruling involving heterosexuals that bodes very well for same-sex couples there, read this post from last April).

A child, Shelby L.B., was born to a married heterosexual couple in 1999. When the couple divorced two years later, the child went with her mother and the father had no visitation rights but could petition for them in the future after completing alcohol and drug rehab. The mother later became friends with a 42-year-old man, J.E.N, who began acting as a father to the child when she was five years old. In 2008, the mother and J.E.N. filed a joint petition to terminate the parental rights of the father and allow J.E.N. to adopt the child. The petition alleged that the child called J.E.N., "Dad," and that he supported her financially and spent a substantial amount of time with her forming a parent-child bond. Shortly thereafter, the mother and J.E.N. filed an amended complaint including the fact that J.E.N. had exercised physical custody of the child for substantial times and that the child was presently living with him during the school week. There is no indication that the mother and J.E.N. ever lived together or that they had a romantic relationship.

The father hired a lawyer, opposed the petition, and asked for visitation with the child. Subsequently, he filed a motion to dismiss the petition, arguing that the parental rights of both parents must be terminated before anyone other than a stepparent can adopt a child. The trial court ruled in the father's favor, and the Court of Appeals affirmed.

Here are the Tennessee laws that doomed the petition filed in this case. A biological parent cannot file a petition to terminate the rights of another parent, so the mother could not file to terminate the father's rights. That left J.E.N. He could file an adoption petition, but according to the court's interpretation of the Tennessee statute, he could only do so if he were seeking to terminate the rights of the mother as well as the father. The only exception in the statute is for a stepparent adoption, and since the mother and J.E.N. were not married, he was not the child's stepparent.

This ruling likely dooms any second parent adoption. That's because, of course, the biological parent seeks to retain, not surrender, her parental rights when her partner adopts. The only remaining possibility might be a joint petition by a same-sex couple in which the bio mom gives up her rights as a bio parent but simultaneously gets them back as an adoptive parent. A single person may adopt in Tennessee, but it is not certain that the court would say this means two single persons may adopt together.

I wish we knew more about these people. I am curious about the relationship between the mother and J.E.N. There are plenty of examples of LGBT co-parenting arrangements between other than romantic partners. Since adoption requires individualized assessment of a child's best interests, I believe these arrangements should be able to be formalized through adoption. Plus I realize that I cannot even be certain the adults in this case are heterosexual. I know the mother was once married to a man, and I know there is nothing about her sexual orientation that is reported in the opinion, but it's not impossible that her friendship with J.E.N. is not sexual because one or both of them is gay. (It is also possible the two have a sexual relationship; all we know is that they are not married to each other and they appear not to live together). So I am curious, but in the end the issue should be whether the adoption is in the child's best interests, and that is what the court refuses to address because it says such an adoption is impossible.

This case is also a reminder that when we lose second-parent adoption it is not inherently an anti-gay ruling; it may simply be a narrow reading of an adoption statute. Since adoption customarily does terminate the rights of the existing parents, statutes were written in a way that produces that result automatically. When a court reads such a statute to prohibit a parent retaining rights while adding a second parent, that may simply be reluctance to construe a statute beyond its literal wording. Of course many state courts have read their adoption statutes broadly enough to encompass second parent adoption without terminating the first parent's rights. Thank goodness for that.

Friday, April 15, 2011

Illinois rejects adoption restrictions

It's become commonplace for religiously affiliated adoption agencies to object to same-sex marriage or civil union bills on the ground that they will be forced to place children in homes with same-sex couples. Of course, if you ask them whether they will support same-sex marriage or civil union if they receive an exemption for adoption placements, they will still say "no." So, really, it becomes a disingenuous way to fight recognition of same-sex couples.

With Illinois about to allow civil unions, such agencies attempted to obtain legislation permitting them to decline to place children with a person in a civil union. Earlier this week, the bill failed in committee by one vote. The Illinois ACLU took the lead in opposing the bill. Its position paper against the bill is very forceful. Read it here. It points out that there is no child welfare basis for such a law and that it amounts to unconstitutional discrimination. One of its other arguments, which I love, is that such a law would send a "cruel and harmful message to gay and lesbian foster children: When you grow up, the agency that provides your care, would never let you take care of other kids."

Almost 15 years ago I wrote an article about the benefit to gay and lesbian children in foster care of openly licensing gay and lesbian foster parents. I don't usually hear that argument made in the political context. Kudos to the Illinois ACLU for making it here.

Wednesday, April 13, 2011

Adar v. Smith continued...why two gay dads still have no birth certificate for their son

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarried biological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

Tuesday, April 12, 2011

Fifth Circuit en banc ruling in Adar v. Smith denies birth certificate to child adopted by two men

Late today, the Fifth Circuit Court of Appeals issued an en banc ruling in Adar v. Smith. As I noted in several earlier posts about this case, Oren Adar and Mickey Smith jointly adopted a child in New York. The child was born in Louisiana, and the couple sought an amended birth certificate listing both of them as parents. Louisiana refused to issue the birth certificate, citing its own law prohibiting an unmarried couple from jointly adopting a child. The couple is represented by Lambda Legal, whose senior staff attorney Ken Upton argued the case in January. The couple won in the trial court and in a Fifth Circuit panel opinion. This loss comes after rehearing by the entire Fifth Circuit.

Tomorrow I will write more about the court's ruling that the couple could not sue the state for violating the Full Faith and Credit Clause. Tonight I will just note that the court ruled against the argument that the state is denying the child equal protection of the law by refusing to issue a birth certificate based on the marital status of his parents.

Citing the despicable 11th Circuit Lofton ruling upholding Florida's ban on adoption by gay men and lesbians, the majority said that Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." It then cited one 2002 report for the principle that marriage is associated with better child outcomes than cohabitation because it is more likely to provide stability. Because this provides a rational basis for denying unmarried couples the opportunity to adopt, it therefore is sufficient support for denying a child adopted by an unmarried couple a birth certificate with two names. Both the logic and the sentiment here are appalling. This reasoning (or lack thereof) stands in sharp contrast to that of the Arkansas Supreme Court, which just last week ruled that the state's ban on adoption by anyone living with an unmarried partner was unconstitutional. The Adar v. Smith Fifth Circuit ruling also dismissed almost out of hand the argument that the state is violating the constitutional prohibition on discrimination against nonmarital children by denying a child with unmarried parents a birth certificate reflecting his legal parentage -- something granted routinely to children with married parents.

There's a strong dissent. And there is a contrary case from the 10th circuit five years ago, also argued by Lambda Legal. I hope Lambda asks for review by the US Supreme Court. The "circuit split" raises the odds that the Court would hear the case.

Thursday, April 7, 2011

Arkansas Supreme Court strikes down adoption and foster parenting ban

As I predicted after watching the oral argument, the Arkansas Supreme Court today struck down Act 1, the initative banning anyone living with an unmarried partner from being a foster or adoptive parent. There was no dissent in the case, Arkansas Dept. of Human Services v. Cole. The court held that the ban violates the fundamental right of the plaintiffs to sexual intimacy in their home.

Because the ban burdens a fundamental right, it could survive only if the state could show a compelling interest and that the ban was the "least restrictive method" of achieving that state interest. Protecting the best interests of children is, of course, a compelling state interest. The court noted that Act 1 says that "the people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." But, the court noted, numerous employees of the state's child welfare agency, including the John Selig, director of the Department of Human Services, testified that the categorical ban was not in the best interests of children. Selig also testified that "it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home."

The ruling notes that all the arguments for a categorical ban based on generalizations about cohabiting couples could be addressed through the individual screening process to which all foster and adoptive parents are subject. "We have no doubt," the court stated, "that this individual assessment process is a thorough and effective means to screen out unsuitable applicants." You may recall from my earlier post that the lawyers for both the state and Family Council Action Committee argued that the categorical ban was necessary because the screening process makes mistakes. Really. Bet the state social workers loved that one...

The court's faith in the screening process allowed it to differentiate a 2005 custody case between two parents in which the court had stated that extramarital cohabitation is not condoned, does not promote stability for children, and can be a basis for changing custody. A nonmarital partner in a custody case, the court noted, is a "third party stranger" who has not gone through the rigorous screening applicable in the adoption or foster parent setting. Although I get the court's point, and it works to distinguish the prior case, custody cases are also handled individually by a trial judge determining a child's best interests. I'm disturbed that a parent's nonmarital sexual relationship could result in a change in custody. It's true this factor is not a categorical ban to post-divorce custody, but I would have been happier if the court had just said that custody cases are scrutinized individually and so adoption/foster parenting situations should be handled in the same way.

A few other thoughts. The court found a fundamental right to have a sexual relationship. I love that. It found that denying someone the opportunity to adopt or foster a child for that reason burdened the exercise of that fundamental right. I love that too. But because this triggered "strict scrutiny," the court did not have to decide if the ban would survive the rational basis test. The lower court essentially said the ban was rationally related to achieving the best interests of children but that the state could not meet the higher burden of showing that the ban was necessary. So although I love this articulation of a fundamental right, it should have been unnecessary. The ban should fail the rational basis test. Individual screening means a categorical ban does not serve the interests of children. Period.

Issues related to lesbians and gay men raising children, and unmarried heterosexual couples as well, are ill suited to the ballot box, or even the legislature. The political process allows gross misstatements to reverberate unchecked. It allows prejudice, stereotype, myth, and fear to substitute for reason. In spite of many notable defeats, lesbian and gay parents have fared better in court. Judges care about the well-being of the individual children in front of them. Courts must give real reasons for their rulings. True, state and federal courts upheld the Florida gay adoption ban for decades, and lesbian and gay parents have been denied custody of their children. But lesbian mothers also won custody in some courts 40 years ago, and second-parent adoptions began almost 30 years ago because judges wanted to do right by children. The Arkansas Supreme Court opinion is in that vein.

Wednesday, April 6, 2011

Nonbio mom, Sondra Shineovich, successful on remand from Oregon Court of Appeals

In 2009, I wrote extensively about the Oregon Court of Appeals ruling in Shineovich v. Kemp. The court held that the consent of a biological mother's same-sex partner to her insemination, with the intent to parent the resulting child, made the nonbio mom a legal parent. The court reviewed the state's statute making a husband the parent of a child born to his wife using donor insemination to which he had consented. Then the court found it unconstitutional to deny that status to a woman's same-sex partner.

The appeals court sent the case back to the trial court for a determination of the status of the nonbio mom, Sondra Shineovich. The trial court heard testimony over four dates last November and December and admitted 110 exhibits into evidence. Judge Katherine Tennyson of the Multnomah County Circuit Court made written factual findings, in a letter to counsel dated March 31, 2011, that Sondra and her partner, Sarah Kemp, had a "committed partnership which intended, in addition to financial interdependence, to produce and raise children together." The judge further found that

It is also overwhelming [sic] apparent from all credible evidence on this record, that the parties worked together to achieve the goal of conceiving and raising children. There is no question that Shineovich consented to this process. She contributed with her actions, money and emotions. This goal was a topic of discussion between Shineovich and Kemp and was a joint effort between them. These children were an integral part of their partnership.

Although Kemp told the court that the decision to have the children was "'my process; my children'", the court found that view "not supported by the credible evidence in this case." The evidence included numerous witnesses, including Kemp's aunt, and many "cards, letter, video and documents created contemporaneously with events" that contradicted Kemp's testimony at the trial as to her "memory" of past events. The court also found that the older child, Parker, "viewed Shineovich as his parent in every sense of the word." Kemp was pregnant with the younger child when she moved out of the family home in 2006.

The court ordered the parties to schedule a conference to set a hearing date to determine the issues of custody and parenting time.

Shineovich was represented at trial by Owens, Sneller, Pinzelik and Wood, P.C., who issued a press statement about the ruling.

Friday, April 1, 2011

Lesbian couple's marriage changes nothing about their ownership of previoiusly purchased property...and a thought about marital name changes

An otherwise unremarkable ruling from a New York trial court last month highlights a circumstance bound to impact many same-sex couples in the future. Jane Taylor and Diane Taylor (see my comment below about their names)bought a home as tenants in common in July 2008. A tenancy in common means each person owns her own share, the shares need not be equal, either owner can sell her share through a court action known as partition, and if one dies the other does not inherit the property.

They married in Connecticut a few months later, and before that they wrote a "pre-nup" agreeing that their separately owned property from before the marriage would remain separate and the home they bought would, if sold, result in each person getting what she put into the home with the profit divided equally.

When they split up last year, Jane filed a partition action. Diane tried to stop the action, claiming that division of the property could only take place as part of a divorce. She lost because the property was purchased before the marriage and therefore not a marital asset.

This last point is the one that matters. This couple jointly owned the home before their marriage. But what this case illustrates is that if one person buys a home and then later marries the home is not a marital asset. No matter how long the couple lives in the home, its value will not be divided upon divorce according to "equitable distribution" principles. Of course if the non-owning spouse put money into improving the value of the home there may be a property claim, and if there is a contract there may be a breach of contract claim, but those are very different from equitably dividing assets at divorce.

Given that same-sex couples are marrying now, often after having been together for many years, this could work a real hardship on the person whose name is not on the deed to the house. The rule applies equally to heterosexual couples, but since marriage has only recently become available to same-sex couples, many of those couples will have lived together for a long time before marrying.

This illustrates the arbitrariness of the rule that rigidly divides property into "marital" and "nonmarital" and allows division of only the former, yet that is the rule in the vast majority of states. Washington state is an exception. The courts there treat couples who live together without marrying the same as married couples when it comes to the accumulation and division of community property. I like that rule.

But there is another way to achieve a similar result for a couple who does, ultimately, marry. A few states look at all the property owned separately or together by the two spouses and allow divison of all of it according to equitable principles. This is called the "hotchpot" approach. The current version of the Uniform Marriage and Divorce Act contains this approach, but few states have adopted it. Most maintain a rigid distinction and do not allow a judge to allocate the pre-marital property of one spouse to the other.

We are seeing only the tip of the iceberg of divorces of same-sex couples, but I predict this issue will loom large. Even if some judges will be persuaded that they can divide the family home even if it is titled in the name of only one spouse and was purchased before they married, that will not help the couples who do not marry. For them, the rule in Washington state is the only fair answer, but I don't see the law moving in that direction.

Meanwhile, about their names. Each spouse has a "formerly known as" and a different name listed in the caption of the case. So it looks like they both changed their names to a common name at some point. I hope someone is studying whether there are distinct characteristics of same-sex couples who do this. The tradition of a wife assuming the name of her husband once served as a visible expression of her loss of identity in marriage. A couple who takes an entirely new name obviously is not making this statement, but is still saying something about their desire to be seen as a unit.

This issue surfaced in South Dakota in the last couple of months, with lesbians married in Iowa unable to use their marriage certificates as a basis for a name change on their drivers' licenses because the state does not recognize same-sex marriage. The ACLU represented a couple, Jessica Dybing and Andrea Jorgenson, denied the ability to get new licenses in their hyphenated name; in the other instance, one woman, Amy Muston, wanted to adopt the last name of her spouse, Ashley Stabe. The women were granted the name changes by a judge last month, in a routine name-change proceeding. Generally, a judge will grant any name change petition as long as the reason for the change is not fraudulent. Of course this still does not answer my question about why two women feel they need the same last name.