Friday, June 24, 2011

NY Times op-ed weighs in for a "beyond marriage" approach

Columbia Law prof Katherine Franke got a prime placement today in the New York Times for a tempered view of what comes with marriage equality for same-sex couples. The piece is well-timed as everyone watches the cliffhanger in the New York Senate. Among Katherine's excellent points -- that the availability of marriage has made domestic partner benefits disappear and that neither same-sex nor different-sex couples should be forced to marry to provide for the health of their partners. Katherine fears she could be in this position if New York allows same-sex couples to marry.

I had this fear as well, but was thrilled and relieved to discover that my employer, American University, went in the opposite direction. As I wrote about at length in this post last fall, AU switched this year from requiring that different-sex couples marry while providing DP benefits to same-sex couples, to allowing gay and straight employees to provide health care and other benefits to their partners regardless of whether they marry. Marriage or registration as domestic partners permits automatic inclusion in the employee benefits programs; a couple who does neither must meet a perfectly reasonable functional test.

To those who are skeptical about state domestic partner/civil union schemes open to both same-sex and different-sex couples (Nevada, Illinois, Hawaii, in addition to DC), I offer this thought. AU human resources personnel report that the fact that both same- and different-sex partners can register in DC (they can also marry of course) was one factor that led them to equalize the availability to AU employees.

If marriage equality comes to NY, I'll suggest to Katherine Franke that Columbia follow AU's lead.

Tuesday, June 21, 2011

Wisconsin trial court upholds domestic partner registry

Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.

Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.

Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.

Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.

Thursday, June 16, 2011

Let the maps begin! Williams Institute releases first data from Census 2010

Long before I met the incomparable Gary Gates, I admired his work. While at the Urban Institute, Gates co-authored The Gay and Lesbian Atlas, a book with color-coded maps, by state and county, of the numbers of same-sex couples in the entire United States. It is the book that proved the old adage that "we are everywhere." Literally. The data in Atlas came from the 2000 Census. It was quite a revelation that we could learn so much from that source.

Well, Gary Gates is now at the (also incomparable) Williams Institute at UCLA, and today he released the first state maps (again color-coded) with data from Census 2010. Turns out there are 11,259 same-sex couples in Alabama, 27% of whom are raising children. There are 4,248 same-sex couples in Hawaii, 23% of whom are raising children.

Gates has also prepared an explanation of his methodology. The FAQ's are here, with a link to a longer and more technical brief. Next week, Williams will release reports on California, Delaware, Pennsylvania, and Wyoming. Census data by state will be released weekly over the course of the summer.

I've had the pleasure of seeing the glee on Gary Gates's face as data about LGBT people come across his computer screen. How lucky for the rest of us that he can tell us so much about ourselves. Yes, it is very limited. Most especially by the fact that the census counts only same-sex couples, and only couples who live together. There are some data sets that ask directly about sexual orientation, but not the census. Still, no other data set can give us maps like this.

Lucky for me that I will be at UCLA beginning in the middle of July, as the Visiting McDonald/Wright Chair in Law and Faculty Chair of the Williams Institute. That means many chances to see Gary's glee in person!

Tuesday, June 14, 2011

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell's petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court's order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell's attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child's life and who has teamed up with the bio mom can negate a nonbio mom's claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn't get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child's second mother by the sheer passage of time.

Wednesday, June 8, 2011

Center for American Progress highlights ending poverty and protecting all families

Family structure too often is the fall guy for everything bad in society -- violence, illegal drugs, homelessness, illiteracy, and, of course, poverty. The right wing loves to tell us that the root of all social problems is the decline of life-long heterosexual marriage and that the solution is ... life-long heterosexual marriage.

This time of year -- the approach of Father's Day -- is prime time for such messages. Not only do these ideas disrespect families headed by lesbians and gay men, they let off the hook all the social and economic policies that keep poor and low income people where they are and let the rich get richer. If the solution is marriage, then the fault lies with the individuals who don't marry, not with the entrenched interests of the rich.

The Center for American Progress has long been my idol on how to really end poverty. Their 2007 report, From Poverty to Prosperity: A National Strategy to Cut Poverty in Half, is still an excellent road map.

I also highly recommend the program they are hosting tomorrow, June 9, Strengthening Families: Developing a Progressive Agenda that Promotes Family Stability and Cuts Poverty. Here is the description:

A progressive view of the role of government supports the notion that governments should act affirmatively to create and protect the conditions necessary for all families and children to thrive. Developing policies to support and stabilize families should go beyond a narrow focus on marriage promotion and unmarried childbearing; policies should reflect the fact that decisions related to family structure, relationships and parenting are inherently personal, and are made complex by one’s life and economic circumstances. Progressive policies must recognize and address the reality of today’s complex family dynamics.
I couldn't say it better myself. If you can't attend the program in person (here are the details), you can stream it live. The speakers have impeccable credentials. They want to end poverty without blaming those who live in families other than married mother/father form. It doesn't get better or smarter than that.

Tuesday, June 7, 2011

Wyoming Supreme Court allows married same-sex couple to divorce

The five justices on the Wyoming Supreme Court ruled unanimously yesterday that a lesbian couple married in Canada could divorce in Wyoming. The opinion in Christiansen v. Christiansen reverses a lower court ruling that the couple could not divorce because Wyoming law prohibits same-sex marriages.

Paula and Victoria Lee Christiansen were married in Canada in 2008. Paula filed for divorce in February 2010. Wyoming has a statute defining marriage as between a man and a woman. The court defined the issue as "whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding." The court pointed out that Wyoming also has a statute saying marriages validly entered into in another country are valid in Wyoming. That rule, the court said, is not absolute because the state can find a marriage invalid if it is "contrary to the law of nature" or if it is a marriage "which the legislature of the state has declared shall not be allowed any validity." (Those quotes from an earlier court opinion.)

The court reconciled this "public policy" exception to recognizing foreign marriages by saying the following: "Recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship." The court specifically noted that the couple was not trying to live as a married couple in Wyoming or "enforce any right incident to the status of being married."

This is a very interesting ruling. The appellant's brief says that the couple acquired real and personal property and debts during the marriage and asked the trial court to resolve those issues. Property division (and spousal support) are "incident to the status of being married." Also, the reasoning of the court could apply equally to any consequence of one spouse dying. So intestate succession, workers comp survivors benefits, and other benefits conferred on widows would also not involve "recognition of a marriage as an ongoing relationship."

Some Wyoming legislators tried to file a friend of the court brief in the appeal, with representation by the Alliance Defense Fund. The court denied, twice, motions to permit ADF lawyers to appear and to file the amicus brief. The pleadings, motions, and orders are available on the court's website and make for an interesting read. The court did not say why it denied leave to file the amicus brief, but the objection filed by the appellant's lawyers noted that the legislators and ADF were pursuing a "political agenda" that did not belong in the court. Given the interest that some legislators have taken in this issue, it is bound to come up again. Wyoming does not now have a constitutional amendment banning same-sex marriage or recognition of same-sex marriages from elsewhere.

Sunday, June 5, 2011

NCLR attorney Maya Rupert ties marriage equality to support for all families

The National Center for Lesbian Rights Federal Policy Director, Maya Rupert, wrote a terrific blog post that appeared on the Huffington Post yesterday. "The fight for marriage equality is about fighting for equal recognition of all families," Rupert writes. "It's about combating the assumption that someone else can tell us what our families should look like." The piece highlights the common interest shared by both LGBT families and black families in protecting all family forms. Highly recommended read!

Saturday, June 4, 2011

Civil unions in Illinois good news for same-sex couples there who need to divorce

It's a growing problem that will only grow more. Same-sex couples from around the country, who have travelled to places that allow them to marry, go home, later split up, and find out they cannot divorce. Family law practitioners specializing in LGBT families are working on creative solutions that allow those couples to go their separate ways without further legal entanglement.

When Illinois joined the ranks of states allowing civil unions this week, it also became a state in which couples can end their marriages, domestic partnerships, or civil unions from elsewhere. That's because Illinois now recognizes those relationships as Illinois civil unions, and therefore they can be dissolved in the same way that Illinois civil unions are dissolved. Chicago attorney Richard Wilson, who was instrumental in the drafting of the new law, reports that as couples flocked to the County Clerk's office on June 1 to get their civil union licenses, he headed off to Circuit Court Clerk's office to file several Petitions for Dissolution of Civil Union.

The difficulty couples face is a result of the fact that states don't require residency to marry (think destination weddings or Las Vegas wedding chapels), but they do require residency to divorce. So the couples who married in Massachusetts, DC, etc, cannot divorce if they live in a state that won't recognize their marriage, at least for purposes of getting divorced. Some couples think this means they can just go their separate ways, but it's not that simple. They are still married in states that recognize same-sex marriage. And if what they have is a civil union, say from Vermont which was the first place to allow them, they are still in a legal relationship in those states that recognize civil unions from other states, even if they don't recognize marriages.

And a couple's status in their home state can change. Here's what happened in Illinois. Before June 1, a couple in an Iowa marriage had no legal relationship in Illinois. Likewise a couple registered as domestic partners in DC. Those couples might have split up already without doing anything to adjust their legal status, thinking they had no status in Illinois. Well, as of June 1, 2011, both those couples are in civil unions in Illinois. Rights of inheritance and other potentially weighty matters turn on marital status, so those couples need to dissolve their relationships. Now they can...and they must.

Bottom line: Anyone who entered a formal status with a same-sex partner, in any state, needs to talk to a lawyer if that relationship ends.