Saturday, October 20, 2012

Garnering support for marriage equality with a problematic message

By now everyone knows there are four same-sex marriage ballot initiatives coming up next month. Minnesota's is the old-fashioned kind -- a constitutional amendment to ban same-sex marriage.  Maryland and Washington will vote on whether to keep from going into effect legislation passed last term allowing same-sex couples to marry.  In Maine, voters will decide whether to enact marriage equality by popular vote; if it passes, it will be the first state to grant marriage equality this way.  Three years ago, Maine voters rejected a marriage equality law passed by the legislature.

Of course I hope the Maine initiative is successful (and that the other measures fail).  But I am deeply troubled by an apparent switch in focus by the campaign for marriage equality.   According to Thursday's Los Angeles Times,  the campaign manager of Mainers United for Marriage, Matt McTighe, reports that campaign volunteers going door-to-door talking to voters "talk less about gay rights and more about marriage as a stabilizing force in society."  In other words, this fight for marriage equality is less about equality and more about marriage.

But what does it mean to sell same-sex marriage because marriage is a stabilizing force?  If we denominate those who marry the virtuous ones, then those who don't marry must be de-stabilizing.  I have never understood how this can be a pro-gay message, when up until recently there have been no same-sex marriages but there have been a whole lot of long-term same-sex relationships, with and without children, contributing to civic life and their communities.  The gay rights message can't be that we think those families were a de-stabilizing force on society because they weren't married.  So the message must be a dig at heterosexuals who don't marry, and that's the same message right wing organizations use when they blame single mothers for all our social problems, thereby displacing responsibility from the income inequality, inadequate education system, race and sex discrimination, and lack of public support for childrearing that really cause our nation's problems.  (For more on this, read one of my early blog posts here.)

Long-time marriage equality opponent David Blankenhorn got a lot of attention this past summer for his conversion to marriage equality supporter.  In a recent video opposing Minnesota's constitutional amendment, Blankenhorn explains that he dropped his opposition because opposing gay marriage was not helping achieve his goals of having "society renew its commitment to the marital institution" and having more children grow up in stable two parent homes.  In his New York Times piece explaining his conversion, he called for a coalition of gay and straight people who want to "strengthen marriage."  And he tells us what that means. His agenda is:  people should marry before having children and should marry rather than "cohabit." He also hopes this coalition will agree that children born from assisted reproduction should have a "right to know and be known by" those who donated the semen or eggs that resulted in their birth.  (He calls those people "their biological parents," but I am more critical of using the word "parent" in this context.)  So by his account, same-sex couples should not live together until they marry; should not have children unless and until they marry; and should not use anonymous sperm or egg donors to procreate.  With friends like that....

I'm not saying that Mainers United for Marriage believes those things.  But consider its name.  Not Mainers United for Marriage Equality, or even Mainers United for the Freedom to Marry.  Mainers United for Marriage.  If you didn't know otherwise, that could be the name of a group opposing marriage for same-sex couples, because, after all, those groups say they are for marriage. I, on the other hand, am for equality.  And proud of it.

Friday, October 19, 2012

Kentucky Appeals Court reverses trial court ruling against lesbian mother

It still happens today.  Lesbian mothers lose custody of their children to their ex-husbands because they are lesbian.  Hard to believe, in this era when conservatives often support civil unions -- just not marriage -- for same-sex couples.  But it's true.

And that's what happened to Angela Maxwell and her three children earlier this year when a Hardin County, Kentucky judge awarded sole custody to the children's father, Robert. The judge also limited Angela's time with the children and said neither parent could live with a nonmarital partner while the children were with that parent. For more than a year before the trial, the children who were about 14, 12, and 6, had been alternating weeks between the two parents.  That temporary arrangement included a prohibition on unrelated guests spending the night when the children were there, so it appears that Angela was not living with her same-sex partner, Angel.  At the custody trial, Angela asked that the joint custody continue and that the overnight restriction be lifted.

The trial judge was not subtle about the reason she awarded sole custody to Robert.  "The [mother] is seeking to live an unconventional life-style that has not been fully embraced by society at large," the judge ruled, "regardless of whether or not same-sex relationships should or should not be considered sexual misconduct.  Like it or not, this decision will impact her children in ways that she may not fully have considered and most will be unfavorable."

In an opinion released today in Maxwell v. Maxwell, the Court of Appeals reversed, noting that there was no evidence that the children were harmed by their mother's relationship.  The child were doing well; the two older children wanted the every-other-week schedule to continue; and the youngest child's teacher thought a change in the custody arrangement would not be good for the child.

The trial judge had relied on an earlier case holding that the court did not have to wait until children were harmed to consider a parent's misconduct.  But the appeals court said the issue was whether being in a same-sex relationship is sexual misconduct.  The court found it was not, citing the decriminalization of sodomy and a Kentucky case awarding visitation rights to a nonbiological lesbian mother (which I wrote about here).  The court went further, however.  It cited the US Supreme Court decision in Romer v. Evans for the principle that "homosexuals cannot be singled out for disparate treatment," which the trial judge had done here.  It also cited Palmore v. Sidoti, in which the Supreme Court found unconstitutional a change in custody of a white child based on her mother's marriage to a black man, for the principle that "custody cannot be denied based on the biases of others."  The court also cited a Kentucky case for the principle that Angela had a fundamental right to raise her children, concluding that "it is a violation of Angela's due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor."

The trial judge had cited as future harm to the children the possibility that they might be teased about their mother's relationship.  The appeals court properly pointed out that if that happens it will occur whether their mother has custody or not, and that it is more harmful to the children to deprive them of a loving and positive relationship with their mother.

With all of this, and the great principle this case stands for, I offer a number of caveats.  First, as I began this post, this mother should have never lost in the first place. Most custody disputes settle before trial.  They settle in the shadow of what will happen in court.  It is very expensive and emotionally draining to go through a trial and then an appeal.  Knowing that a trial judge can rule the way this one ruled can influence a gay or lesbian parent to accept a bad settlement (like one that includes a restriction on living with a partner, or that settles for visitation rather than custody).  And that still happens today, in 2012, precisely because of the bias this trial judge showed.

Which leads to my next caveat.  This trial court was transparent about its reasoning.  All parents make mistakes and there is almost always something other than sexual orientation that a judge can use as a basis for a decision.  In fact, in spite of this appellate court win, the court sent this case back to be retried.  In other words, it's not over yet for Angela Maxwell and her children (I can only hope they settle at this point.)  Even the prohibition on her partner's overnight presence is still on the table; there just need to be evidence tying the restriction to the children's best interests.  Some children are uncomfortable with a parent's same-sex partner, and that has been used over and over to justify restrictions.  The two older Maxwell children said they liked their mother's partner, but what if they hadn't?  Furthermore, all the children were doing well; the appeals court calls them "flourishing."  Well, not all children do well.  It is still possible for a trial judge to find  a causal link where none exists between a parent's sexual orientation and the problems that a child might be experiencing.

And here is a final caveat.  The appeals court says this to the trial court's consideration of the children's best interests on remand when it comes to the restriction on Angela's partner:  "Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant."  I'm thinking the changes-in-moral-standards part is about how homosexuality isn't thought of as immoral in the way it once was.  But the inability to marry part?  Are we headed to a time, when same-sex marriage is more common, when a gay parent will be faulted in a custody dispute for not marrying a same-sex partner?  That's not a day I look forward to.....

Wednesday, October 17, 2012

Illinois nonbio mom can pursue custody and visitation

The Illinois Appellate Court, Fifth District, has afforded a huge win to nonbio moms of children conceived through donor insemination.  The decision in In re T.P.S. and K.M.S. was handed down last week.  The opinion is remarkable because previous Illinois appeals courts have ruled against nonbio moms.  And in a horrendous opinion a few weeks ago, a different Illinois appeals court ruled in In re Scarlett Z.-D. against the parentage claim of a man who raised an adopted child for four years with his female partner but never did a second parent adoption.  The child had a last name consisting of the hyphenated name of her two parents, and called her father "daddy," but the court allowed the adoptive mother to completely erase the man from the child's life when their relationship ended.  (To the lesbians-behaving-badly cases I now add a category of heterosexuals-behaving-badly...).

The T.P.S. court took no position on whether Scarlett Z.-D. was corrected decided.  Instead, it ruled that the status of children born through donor insemination should be analyzed under different legal rules.  The case the court relied upon is In re M.J., from the Illinois Supreme Court.  I am very familiar with this case.  The court allowed a mother to pursue child support from her former unmarried partner for a child she conceived through donor insemination, with his consent, while they were together as a couple.  There are numerous cases involving children born to married heterosexual couples who use donor insemination, even when no statute clarifies parental rights and responsibilities.  M.J. is the only one I am aware of where the heterosexual couple was not married but the court nonetheless determined that the mother could pursue a common law child support claim.

The T.P.S. court read M.J. as carving out law specific to children born of donor insemination.  Such children have a right to support from their "parents"  which allows a common law cause of action for support against a nonbiological parent.  Similarly, they also have a right to the "physical, mental, and emotional support" of both parents, which means that Cathy, who was the children's primary caretaker, could file a common law action for custody and visitation rights.  Illinois has a statute that makes a husband who consents the parent of a child conceived through donor insemination of his wife.  The M.J. court concluded that this did not bar a common law support action between unmarried partners, and the T.P.S. court extended that reasoning to common law actions to establish an unmarried partner's parental rights.  "Without an express legislative intent," the court wrote, "we will not assume that the legislature intended for the children born to unmarried couples through the use of reproductive technology to have less security and protection than that given to children born of married couples whose parentage falls within the purview of the Illinois Parentage Act."

The opinion's takeaway:  "Parental rights may be asserted based on conduct evincing actual consent to the artificial insemination procedure by an unmarried couple along with active participation by the nonbiological partner as a coparent."  In this case, not only was there coparenting but the couple had obtained a guardianship for Cathy over the two children.

The T.P.S. court found that a 1999 appeals court ruling against a nonbio mom was not good law because it was decided before M.J.  There is one other truly terrible Illinois appeals case, and this came after M.J.. In In re Simmons, an Illinois appeals court ruled that the marriage between a woman and a female-to-male transgender man was a void same-sex marriage.  The couple had a child through donor insemination who was six years old when the relationship dissolved.  The court ruled that the father could not file for custody or visitation because he was not a biological or adoptive parent.  The T.P.S. court determined, essentially, that Simmons applied M.J. incorrectly.

Nonbio mom Cathy can now prove common law contract and promissory estoppel theories to support her claim for custody and visitation.  Although the language is a little ambiguous, I actually think the court has said that Cathy can prove she is a parent of the two children born to her partner through donor insemination.  "If an unmarried person causes the birth of a child by the delibrate, premeditated conduct of artificial insemination under the express agreement with the mother to serve as a coequal parent," the court wrote, "that person should receive the same treatment in the eyes of the law as a person who biologically causes conception."  Right on!  The importance of determining that Cathy is the children's parent is that they thereby gain the right to inherit, obtain survivors benefits, etc that go with parentage.  Also Cathy would be able to block any attempt by her ex-partner to allow someone else, like a new partner, to adopt the children.

As for any constitutional claim by Dee, the children's biological mom, the court says that her voluntary agreement to create a family through assisted reproduction and coparent with her partner takes care of any such concerns.  Cathy actually made some arguments about her constitutional right to raise the children as their equitable parent; the court rejected this claim.

It's too soon to know if the bio mom will ask the Illinois Supreme Court to hear this case.  If it does, I hope that M.J. will give the court the ability to head off any possible distinction between "legitimate" and "illegitimate" children of lesbian couples in Illinois.  By that I mean the following.  Illinois lesbian couples can now enter civil unions.  Doing so gives them the rights and responsibilities of marriage. This means that children born through donor insemination to civil unioned couples have two parents by virtue of the statute that makes a consenting husband the father of a child born to his wife using donor insemination.  If a child of the identical couple who have not entered a civil union has only one parent, then there will be two classes of children in Illinois based on the marital status of their parents -- something the demise of "illegitimacy" decades ago was supposed to end for children of heterosexual couples.

Monday, October 8, 2012

The survey that proves nothing about the intracommunity debate about same-sex marriage

It's September 12, 2001. Are you a patriotic American?  Yes or no.  Just yes or no.  No other choices and no discussion.  I venture to guess that almost every American would have said yes if asked on that day.  There is something about being attacked that produces unity against an enemy.  But the answer to that question at that moment in time would have said nothing about deep divisions in this country over American imperialism or treatment of immigrants from Muslim countries.  For that, more questions would need to be asked.  And those answers would certainly have shown disagreements.

What I have just written seems so obvious, and yet two researchers of LGBT issues have made a mistake of a similar nature.  In this Bilerico post last week, Ken Sherrill and Andrew Flores report on a survey asking almost 1200 LGBT respondents whether they support allowing same-sex couples to marry.  Yes or no. 85% said yes.  And the small minority opposing it were much more likely to be conservatives than liberals.  From this Sherrill and Flores have concluded that the view Paula Ettelbrick expressed over twenty years ago, skeptical of same-sex marriage, lacks support, that "marriage equality is not a matter of serious debate among rank-and-file LGBT people."  The authors actually suggest that maybe intellectuals, academics and journalists were the only ones to ever doubt the goal of marriage equality.

Do you support security for Jews in Israel?  Yes or no.  Just yes or no.  Can you imagine 85% of Jews saying yes and then concluding there is no serious debate among Jews about the parameters and policies of the state of Israel?  It's ridiculous, as any one day's perusal of Haaretz would reveal.

Political opposition to marriage for same-sex couples today is an attack on LGBT people.  Opponents think our open and proud existence causes social harm and that our relationships are less valuable than heterosexual ones.  So to a yes-or-no question about supporting marriage for same-sex couples, gay rights supporters will almost always say yes.  Paula Ettelbrick said yes.  I say yes, and readers of my book and my blog know I think much of the advocacy in the name of marriage equality is divisive, destructive, and misguided.  85% of LGBT people saying yes says nothing about the extent and the content of disagreement about the tactics and priorities of the movement for marriage equality.

To get at real divisions among LGBT people, here are just a few questions a survey could ask:
Should a couple have to marry to make health care decisions for each other?
Should a couple have to marry for a court to have the power to divide their property fairly if their relationship ends?
Do you think the fight for same-sex marriage has taken money and time away from more critical issues?
Do you think marriage should be a religious institution only and that the civil status for all couples should get a new name, like civil partnership?
Should an employer provide domestic partner benefits to both same-sex and different-sex couples?

Or how about this more complex question:
Imagine two married couples.  The income in each household is $80,000 a year, but in one household one spouse earns all the income.  In the other household, the two spouses each earn $40,000 a year. Right now our Social Security system gives much more money to the couple in which one spouse earns all the money than it gives to the couple in which the two spouses contribute equally to the income.
Which goal is more important to you?
A.  Make sure married same-sex couples with one earner get the benefits that married different-sex couples with one earner get now, or
B.   Change the way Social Security is calculated so that two-income marriages, gay and straight, are no longer discriminated against?

(Caveat:  I do not claim any competence in designing appropriately worded survey questions so I would leave that to someone else....)

I think those types of questions would uncover the differences that exist among LGBT people about marriage.  And I think the conclusion that Sherrill and Flores drew from the yes-or-no survey data they analyzed, that there is no left critique of same-sex marriage, is wrong enough that they should withdraw it.

Wednesday, October 3, 2012

European Court of Human Rights hears another second-parent adoption case

Earlier this year, the European Court of Human Rights ruled against a lesbian couple's claim that France's refusal to allow second-parent adoption violates the European Convention on Human Rights.  I wrote about that case, Gas and Dubois v. France, in an earlier post.  Today, the ECHR heard another case, X. and others v. Austria, but this case raises a different issue.  France did not allow adoption by any unmarried partner of the birth mother.  Austria, on the other hand, allows a mother's unmarried different-sex partner to adopt, but does not allow a mother's same-sex partner to adopt.  Thus this case is explicitly about the distinction based on sexual orientation.  In Gas and Dubois, the ECHR ruled that the case was not about sexual orientation.  (That doesn't make it better in my opinion, as every adoption is examined to be certain that it serves the child's best interests and that analysis can be done for unmarried as well as married couples.)

The webcast of the case argued today is available in English here.  The lawyer representing Austria stated that Austrian law is based on the principle that the child has one father and one mother.  She argued that adoption law is based on this principle as well because adoption attempts to recreate the circumstances of the biological family.  She also asserted that sexual orientation was irrelevant, although that seems patently ridiculous since she explicitly said Austria did not want a child to have two mothers or two fathers.  (Austria passed a statute in 2010 forbidding adoption by same-sex couples, but that law is not at issue in this case, which was decided under prior law.  That statute sure does show the position of the Austrian government, however.)

The couple is represented by Helmut Graupner, an Austrian attorney who is a leading European gay rights advocate.  He pointed out that only four European countries allow an unmarried different-sex partner to adopt but not a same-sex partner.  Forty-two countries, on the other hand, either allow only a married partner to adopt or allow both different- and same-sex unmarried partners to adopt.  Graupner argued directly that children of same-sex couples are not disadvantaged when compared to children of different-sex couples, and he listed all the child welfare professional associations who support adoption by same-sex couples.  He also referred to all the ECHR law against discrimination based on sexual orientation, and the Inter-American Court of Human Rights ruling in Atala (which I covered in this post and which is the strongest ruling in favor of lesbian and gay parents under international human rights law.)

Intervenors supporting Austria provided the Regnerus study for their position against allowing adoption by same-sex couples, which Graupner refuted by noting, as everyone has done by now, that the study compared children of intact married heterosexuals with children whose parent had ever had a same-sex relationship, not with children who had lived for a long period with a stable same-sex couple.  (For an example of a typical rebuttal to Regnerus, see this friend of the court brief filed in one of the DOMA cases.)

The child in this case has been raised by the mother and her partner for thirteen years (the case started when he was nine; he is now seventeen.) The child does have a biological father who did not consent to a second-parent adoption. The lawyer for Austria stressed this, but Graupner noted that there is a legal process and standard for overcoming the father's objection, and that process and standard would have been applied had the mother's partner been male, but it was not available to her female partner.  The lower courts explicitly ruled against the couple based on the mother's partner's legal inability to adopt, something one of the courts approved based on the child's need for attachment to one male and one female parent. So no court ever ruled on whether the father's refusal was justified or should be overcome.