Wednesday, July 27, 2011

New government report tells us how many employees can include same AND different-sex domestic partners on their health benefits

This week, the Bureau of Labor Statistics released a report on benefits offered employees in the public and private sphere in March 2011. For the first time, the data include the percentage of employees eligible for health benefits that cover domestic partners. The report includes separate statistics for how many employees can cover same-sex partners and and how many can cover different-sex partners. (The report uses the term "opposite sex." Several years ago some trans folks raised my consciousness about the term "opposite," and ever since I have used "different.")

While a gay rights perspective might be primarily concerned with access for same-sex partners, my "beyond marriage" perspective cares as much about access for different-sex partners. (The report does not include data on employers that offer a "plus one" benefit or access for anyone the employee lives with in an interdependent relationship, something I have written about often).

The big picture: 30% of workers have access to health benefits for a same-sex partner; 25% for a different-sex partner. State and local government employees are more likely than private sector employees to have this benefit. (33% vs 29% for same-sex partners; 28% vs 25% for different-sex partners). The report breaks down availability based on numerous criteria, including type of job, relative wages, geographical area, union and nonunion, and size of workforce.

I specifically looked for where the greatest discrepancy existed based on the sex of the employee's partner. Here are some interesting statistics. Those in unions were much more likely to have access to DP benefits than nonunion employees. But when nonunion employees did have such benefits, 27% could cover a same-sex partners and 23% a different-sex partner. Although 49% of union employees could cover a same-sex partner, only 38% could cover a different-sex partner. Of course 38% is still much higher than that available to nonunion employees, but I find the discrepancy interesting. And it's even higher if one looks only at private sector employees. There, 46% can cover a same-sex partner but only 31% a different-sex partner. Does it mean unions fight harder to cover same-sex partners?

Size of workforce also mattered. Where the workforce was under 100, coverage for same- and different-sex partners was close (18% and 16% respectively). But for workplaces of 500 or more, 49% could cover same-sex partners and only 38% could cover different-sex partners. In the private sphere, the discrepancy was quite large -- 54% compared to 41%. Perhaps the sheer number of heterosexuals who can take advantage of such a benefit is so high in large workplaces that employers resist coverage.

In all instances, there is a smaller discrepancy among public sector employees. When looking at the factor of workforce size, for example, 40% can cover same-sex partners and 34% different-sex partners. In most of the country, public employees were more likely to have DP coverage than private sector employees, but there are some odd anomalies. In the south, private sector employees are significantly more likely to have DP benefits. That's to be expected. But in New England, public sector employees also have less access to DP benefits than their private sector counterparts. I did not expect that.

The big winners? In the Pacific region, 84% of public employees can cover same-sex partners and 82% can cover different-sex partners. There are no percentages anywhere near those for any other region or any other characteristic examined in the report.

Monday, July 25, 2011

I stand corrected...sort of...about marrying a second time in New York

So it turns out that New York law does explicitly allow a married couple to marry each other again. It's strange, but it's true, and no one seems to know why. Lambda Legal has put out an FAQ publication on marrying in New York which you can download here. What they say on this subject is as follows:

If for some reason you are still interested in re-marrying your spouse in New York, the marriage laws permit this, but you would be well advised to consult a private attorney or contact Lambda Legal's Help Desk before you take this step to determine if it could carry legal complications for your family.

I wonder if Lambda could be more helpful, perhaps by enumerating some of the possible "complications." The date of a marriage determines many things, including eligibility for certain benefits and accrual of marital property. The house in one spouse's name bought after the first date but before the second? It's marital property if the first date counts, but if the first date counts then what is the second date? Will someone argue (one of the spouses, even, when things turn ugly) that the first date was somehow symbolic but not legal? Assume the couple lived in New York before New York officially recognized same-sex marriages from elsewhere. It is clear the couple's marriage is now recognized, and that means it is recognized as of the date the couple married. If they marry again, one partner may later argue that the first marriage was, indeed, symbolic, some kind of political act never intended to have legal meaning, and that the later marriage in New York shows the couple intended only from that date on to be legally married.

And if years from now they divorce and mention only the New York marriage date, are they divorced? The possibilities give me a headache.

I've yet to find an LGBT family lawyer in New York who is advising her clients that it's fine to marry again. Yet all the discouraging is not dissuading those couples who really want to do this, and since the state allows it there is nothing to stop them. It's asking for trouble down the road.

Thursday, July 21, 2011

Why is New York City telling married couples they can marry again?

As the date of the first same-sex weddings in New York approaches, consider this. On the website for the Clerk's Office for New York City, there are questions and answers for same-sex couples. Scroll down and find the following: "Can my spouse and I get married in New York City if we already were married in another state or country?" The answer: Yes. The page goes on to say that New York recognizes same-sex marriages from elsewhere, and it says to talk to a lawyer about whether to marry again if you have questions about it. But it has just answered the basic question with a "yes," so who would have a question other than that?

Here's what's wrong with this answer. The couple is married. New York recognizes their marriage. Any state that would recognize a New York marriage would also recognize the coupe's marriage from Connecticut, or Massachusetts, or anywhere. Married couples don't marry again. They may renew vows, but this is not marrying again. The first marriage was a real marriage. To marry again suggests otherwise. It also confuses the heck out of WHEN this couple got married. If they divorce and don't mention both marriage dates, will they still be married because they didn't dissolve one of their unions? For government benefits, what date will count? For accumulation of property, what date will count?

New York LGBT family lawyers have been getting calls from clients since the moment the law was signed. They all say the same thing. You are married. Don't marry again. So why ask for all this trouble? I'm assuming that those who want to marry again are couples who live in New York who resent that they had to go elsewhere to marry and who want the validation of marrying at home. Maybe their friends and families could not attend the first wedding because of distance and they want to do it the way they always wished to.

I understand those feelings. But frankly it reminds me of another thing I hear from LGBT family lawyers: When a couple marries and they live in a state that does not recognize their marriage, sometimes one or both thinks they do not have to divorce. Why divorce, asks the married lesbian in Arizona, when Arizona already says I am not married? In other words, they act as though the marriage was not real. That, too, can have bad consequences. These circumstances are similar because in each instance someone who went somewhere to legally marry thinks it appropriate to act as though they are not legally married.

So my advice to married same-sex couples in New York: Don't. And my question for New York City remains. Why this advice? Is it to collect those marriage license fees? If so, balance your budget some other way and don't lead New York residents down a path that suggests their marriages are not real and that spells trouble later.

Thursday, July 14, 2011

Ohio Supreme Court rules against nonbio mom

Over the scathing dissent of a single judge, the Ohio Supreme Court this week ruled that a bio mom, Kelly Mullen, revoked her co-parenting agreement with her ex-partner Michele Hobbs,and that therefore Hobbs could not obtain a hearing on whether she should have joint custody of her now six year old daughter, Lucy. I wrote about the oral argument in the case here.

Ohio does allow a nonbio parent to obtain custody. The legal test is whether the "parent, by her conduct with a nonparent [sic], entered into an agreement through which the parent permanently relinquished sole custody of the parent's child in favor of shared custody with the nonparent." Although Mullen and Hobbs had numerous documents in which Mullen said that she considered Hobbs her child's "co-parent in every way," the court held that the documents were revocable and that Mullen revoked them.

The court reiterated the rule that no written agreement was required to meet the test, yet every nonbio mom in Ohio can count on retaining her status only if she in fact has a written agreement and it contains some magic words that the bio mom is permanently relinquishing sole custody. I say this because the documents in this case appear to do just that but did not have such magic words and somehow the court found them revocable.

The court did not rely on the status of the semen donor in reaching its result, but it did note some things about the semen donor that are worth mentioning because they are atypical (although by no means unheard of). There was a donor agreement between Mullen and the donor, Scott Liming, who was a friend of Hobbs. Hobbs was not a party to the agreement (note to Ohio nonbio moms: be a party to any written donor agreement!). The agreement said Liming's name would be on the birth certificate but that he would have no parental rights and so would have no custody rights and no obligation to pay child support (note to all in Ohio: it was not an issue here, but if everyone agrees the donor is not a parent, keep his name off the birth certificate!). During the litigation, Mullen and Liming revoked their donor agreement. In my earlier post, I wrote about Liming's support for getting rid of Hobbs as a parent. By the way, there was as separate ceremonial birth certificate listing Hobbs and Mullen as Lucy's parents, which the court disregarded along with all the other written documents indicating Hobbs's parental status.

The Ohio Supreme Court repeatedly commented upon Mullen's refusal to sign a shared custody agreement with Hobbs. But, as the dissent points out, the issue of signing such an agreement arose AFTER the relationship between the couple started to fail. Mullen did sign numerous documents before the child was born, and did create a two parent family, and did have the child call Hobbs "Momma," and did go to a lawyer who drew up all those documents precisely to protect Hobbs's relationship with the child. To the fact that the documents referred to Hobbs as a "co-parent," the court said that term was "not synonymous with an agreement to permanently relinquish sole custody in favor of shared legal parenting." The court continued: "'Coparenting' can have many different meanings and can refer to many different arrangements and degrees of permanency."

As I wrote those last words I found myself in pain and furious. It is completely clear what this couple did. They planned for a child together. They had a child and raised her as two moms for more than two years. They wrote documents to protect Hobbs's relationship as the child's parent. The lawyer who wrote those documents testified that he wrote the documents "to protect the rights of the co-parent to be a full co-parent." When they split up, Mullen made an argument that the court bought that removed Hobbs from Lucy's life. "Coparent" may mean different things in different circumstances, but in this case its meaning was clear and the court disregarded it.

I do find myself wondering if the presence of a "father" for the child influenced some on the court. As I wrote about here, Mullen and Liming gave a tv interview in which they said they really wanted Lucy to have one mom and one dad so she would not be confused. Add to that the fact that the Alliance Defense Fund and Liberty Counsel both supported Mullen's position, and you can see this erasure of Hobbs for the rewriting of history that it is.

In some states, a nonbio mom can't even get her foot in the door. (That's you, New York, unless the nonbio mom was married to or in a civil union with the bio mom, or adopted the child). Ohio does let a nonbio mom in the door, but this case suggests that what she has to prove will make it much harder than it should be to protect the child's parental relationships.

The dissent ends with the following: "Mullen taught her daughter to call another woman "Momma" and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough. It shouldn't be." Lots of parents wish they had not had children with a former spouse/partner. That's a common feeling when the couple's relationship deteriorates and one parent wishes she could raise the child without ever interacting with the other parent. But creating a child together has consequences, and it does tie parents to each other long after their relationship fails. That's the rule for different-sex couples and it should be the same rule for same-sex couples. I'm sorry the Ohio Supreme Court disagrees.

Wednesday, July 13, 2011

Lambda Legal requests US Supreme Court review of Louisiana birth certificate case

This week, Lambda Legal filed a petition for certiorari in the US Supreme Court, asking the Court to hear an appeal of Adar v. Smith. That case, which I have written about since the first court ruling almost a year and a half ago, challenged Lousiana's refusal to grant an accurate amended birth certificate to a child born in Louisiana and then adopted in New York by a same-sex couple.

In February, the Fifth Circuit, sitting en banc,issued an outrageous opinion upholding Louisiana's position. Although states must give Full Faith and Credit to court judgments from other states (which an adoption decree is), the 5th Circuit said that the couple had no right to sue that state to force its compliance with the Full Faith and Credit clause of the US Constitution. The cert petition points out that other Circuit Courts have ruled differently, and a "Circuit split" is one reason the Supreme Court hears cases.

Louisiana justified its policy by saying that it does not allow unmarried couples to adopt, even though denying this child an accurate amended birth certificate has no impact on what adoptions the courts in Louisiana grant. (And has no impact on the fact that this child has two unmarried, same-sex parents). The Lambda cert petition does a great job of demonstrating the long line of cases in which the Supreme Court has ruled that a child should not suffer because of the choices made by his/her parents, including many about children of unmarried parents.

The Supreme Court hears few cases. I hope it takes this one. It's scary to think of losing there, but the 5th Circuit opinion could do a lot of damage if other courts follow its scurrilous reasoning.

Saturday, July 9, 2011

New York employers ending domestic partner benefits

And so it begins. New York allows same-sex couples to marry, and some employers are now eliminating domestic partner benefits. So the New York Times reported yesterday. This is exactly what Katherine Franke feared in her Times op-ed, published the morning that turned out to be the day (night,really) marriage equality came to New York. And these are large employers, whose policies affect thousands of people...Corning, IBM, Raytheon.

Every gay rights advocate quoted in the Times article opposes dropping DP benefits. But none of their organizations have made it a priority to say that no one should have to marry a partner to provide for their economic and emotional well-being. Case in point: Lambda Legal represents Arizona public employees with same-sex partners who don't want to lose their domestic partner benefits. Employees with different-sex partners are also losing their benefits, but Lambda takes the position that they aren't really losing their benefits because they can obtain them by marrying, which is not available to same-sex couples in Arizona. I decried their approach in this post precisely because it makes marriage mandatory for different-sex couples and suggests that it would be fine to have it mandatory for same-sex couples as well if they could marry.

It's worth remembering that domestic partner benefits started (in 1982) as an alternative to marriage and were always available to both same-sex and different-sex partners. The first employers to establish same-sex only policies were software developer Lotus in Massachusetts and Montefiore Medical Center in New York in 1991. They explicitly said their policies were based on the exclusion of same-sex couples from marriage. The next year, Levi Strauss became the first Fortune 500 company to provide DP benefits, and it chose to cover both same- and different-sex partners. There's been a split among employers ever since. The Times piece yesterday says Eastman Kodak, which covers both gay and straight couples, has no plans to require marriage of anyone.

Finally, as I wrote last fall, my employer, American University, has gone from covering only same-sex couples to covering both same- and different-sex couples. They were nudged in part by the fact that, even though DC allows same-sex couples to marry, DC also has registered domestic partnership which is open to different-sex, as well as same-sex, couples. Insurance policies that cover spouses must also cover domestic partners. American University now has a functional test for those who are not married or registered as domestic partners. The NY Times even published my letter to the editor about it. Scroll to the end of this page to read it. I hope some employers in New York follow.

Thursday, July 7, 2011

Ohio Supreme Court reinstates nonbio mom visitation

The Ohio Supreme Court today stayed the order of an appeals court that halted visitation between nonbio mom, Julie Rowell, and the child she raised with her former partner, Julie Smith. I wrote about the appeals court ruling here last month. Today's order, signed by Ohio Chief Justice Maureen O'Connor, explicitly reinstates the visitation ordered by the trial judge who heard the case.

The issue in the appeal is whether a trial judge has the authority to order temporary visitation during the time it takes for a nonbio mom's custody petition to go to trial. Without such an order, the child's relationship with the nonbio mom is completely disrupted for the months -- or longer -- it can take for the case to be resolved. Lack of contact over that period of time is bound to have an impact on the child and could affect the judge's final decision about what custody arrangement is in the child's best interest.

I hope this stay is an indication that the Ohio Supreme Court knows the appeals court was way off base.

Tuesday, July 5, 2011

NY Times highlights family trees complicated by assisted reproduction

It's shaping up to be a banner week for the New York Times attention to LGBT families. Yesterday's paper edition included a front page article, "Who's on the Family Tree? Now It's Complicated."

Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).

Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.

The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.

This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.

One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.

There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).

Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.

Complicated, indeed.

Monday, July 4, 2011

Same-sex marriage and polygamy in the same breath? Two (plus one) New York Times debaters think so

Yesterday's "Room for Debate" in the New York Times is about "Marriage: The Next Chapter." I found it interesting that two of the six commentators used the opportunity to mention polygamy. Philosophy professor John Corvino notes that opponents of same-sex marriage "continue to predict a slippery slope to polygamy, polyamory and other “untested, experimental” family forms." He continues: "The grain of truth in their prediction is this: recent progress reminds us that marriage is an evolving institution and that not everyone fits in the neat boxes that existing tradition offers." (That's before remarking that polygamy is actually quite traditional). Law professor Rick Banks predicts that "over time, our moral assessments of [polygamy and incest] will shift, just as they have with interracial marriage and same sex marriage."

Advocates of marriage equality typically distance themselves as far as possible from polygamy. Those most averse to a discussion that includes both ideas in the same conversation may be troubled by the latest book from a third of the New York Times debaters, sociologist and long time gay rights ally Judith Stacey. Her comment in the Times debate does not mention polygamy at all; it's about the unfairness of privileging marriage and the importance of family policies that respond to the needs of all the ways people live (with a special shout-out to me that I deeply appreciate).

But Stacey's new book, Unhitched: Love, Marriage, and Family Values from West Hollywood to Western China, places the connection between gay couples and polygamous families front and center. Stacey's research on gay men in Los Angeles occupies the first part of the book, presenting pictures of the complex lives of 50 men born between 1958 and 1973 and those connected to them. She conducted the first interviews between 1999 and 2003 and then followed up in 2008 with the 29 men she could still locate. I am especially appreciative of Stacey's attention to the men raising children (about half of them) including those in what she calls poly-parent families.

The next part of the book presents the field research Stacey conducted of polygamous families in South Africa. The women Stacey describes agree to a family structure of one husband and more than one wife, not as their first choice, but as the best choice among their available options. Their options were pretty bad, and the picture Stacey paints is not an attractive one. Yet she strongly opposes criminalization of polygamy and believes that legal recognition in the US would make it easier to regulate abuses (underage marriage, rape) and could "nudge" polygamy towards gender equality. She also hopes her book will make it easier for feminists to both "fathom and countenance" polygyny. While that might be too much to expect, Stacey's arguments against criminalizing polygamy are strong. And her two fellow New York Times debaters also resist separating entirely the legal claims for marriage equality and polygamy.

Judith Stacey has been an expert witness for marriage equality and a tireless supporter of the ability of gay and lesbian parents to raise healthy children. The legal rights of gay and lesbian families are farther along today because of her work than they would have been without it. But like all those who tell the truth about families, she does not simplify what is complex. In the process, she has publicly articulated views that make gay rights advocates uncomfortable.

She wrote in 2001 that there were differences -- not deficits, but differences -- between children raised by lesbian mothers and those raised by heterosexuals. This confounded those whose legal strategy had been dependent upon arguing that lesbians should not be denied parental rights because there were no such differences. Unhitched makes the case that legalizing same-sex marriage is not a demand completely divorced from the legal status of polygamous unions. From the looks of yesterday's New York Times debate, she's not the only gay rights supporter willing to say this out loud.