Thursday, March 28, 2013

The limits of marriage equality

The ink isn't dry on the coverage of this week's Supreme Court arguments (okay-there isn't so much ink anymore as digital transmission, but it's a metaphor that still appeals to me).  Still, I'm not willing to leave for long the critiques of the fight for access to marriage that I, and others, have been making for several years.  Here is a particularly concise and insightful one from Scot Nakagawa.  Some of his critical points:  marriage is such a powerful draw because it excludes, so we should think hard about those who are excluded.  Monogamous same-sex couples are the new "model minority" so they are in; still out are a whole lot of other people who should not suffer discrimination.  If gay people win by arguing "we are just like you," then the conservative agenda remains in place, including laws and policies that oppress many family structures.  Anyway, read his piece.

While you're at it, here is a Salon profile of me.  And check out the organization Unmarried Equality, the group formerly known as the Alternatives to Marriage Project, and consider signing their petition to get the American Academy of Pediatrics to change its reasoning for supporting same-sex marriage.  You can read and sign the petition here.  I signed it, but I am not sure why they singled out this one group, when almost every group that expresses support for marriage equality argues that it is good for children and, simultaneously, in subtle or less subtle ways, disrespects and disparages parenting outside of marriage.  I refused to sign on to an amicus brief in the Supreme Court cases that had a couple of sentences to that effect.

Wednesday, March 27, 2013

Don't be fooled by the kinder, softer defense of DOMA

My post on Hollingsworth v Perry yesterday focused largely on the arguments about the wellbeing of children that surfaced on all sides.  If that were my focus of this post, on today's United States v. Windsor, well, there wouldn't be a post.  Paul Clement, representing BLAG (actually the Republican House members committed to defending the indefensible Defense of Marriage Act), did not utter a word against gay and lesbian parents, or even against all the allegedly irresponsible procreation heterosexuals do (and will do more of if same-sex couples can marry, if you believe Charles Cooper's argument yesterday).

No.  Clement defended DOMA as a reasonable effort by Congress to achieve uniformity in the treatment of same-sex couples.  Whether you're in New York or Oklahoma, same-sex couples cannot get the federal consequences of marriage.  That's Clement's idea of uniformity.  It matters not that New York recognizes same-sex marriage and Oklahoma does not.  Those couples should be treated alike.  Clement stressed this, and nothing else, as the purpose of DOMA.  Kagan and Ginsburg, at least, were having nothing of it.  Kagan read from the House Report on DOMA, which stated directly that the law expressed Congress's moral disapproval of homosexuality.  Ginsburg made another reference to the history of sex discrimination (to add to her comments on that basis yesterday) and how long it took the Supreme Court to figure out that the constitution forbids it.  I have no doubt she is going to write an opinion containing impassioned support for lesbian and gay equality, and she is going to write it in this case because she may not have another chance.  I am guessing she will retire while Obama is in office, and she won't have another chance if she doesn't do it now.  I predict Kagan will join her.

What I can't predict is whether she will write a majority opinion, a plurality, a concurrence, or a partial dissent.  There remains a chance that the Court will decide that it can't hear this case -- that BLAG is not a proper party and the government can't appeal a case it won just to get a definitive ruling from the Supreme Court.  But the smart money says they will get to the merits, and if they do, I'm confident five members of the court will find a way to tank DOMA.

The key has always been Kennedy, and he took an odd tack today.  He challenged Clement on whether Congress had the power to define marriages.  This is a federalism challenge, a claim that marriage is for the states and so Congress overstepped its authority.  But that is a huge reach that really seems implausible.  Congress can't say who can marry whom, but it can define who gets benefits or responsibilities under federal law.  Social security, taxes, federal employee benefits -- of course Congress can say who is in and who is out of those.  What Congress can't do is violate the equal protection clause when it says who is in and who is out.  I think it is a strong argument to say that the states define who is married and the federal government has always tracked that; therefore, if Congress is deviating from that historical practice there is probably a bad motive that calls into question the validity of the classification under the equal protection clause.  But that's different from saying Congress doesn't have the power to say who pays what estate tax (the issue facing Edie Windsor).

So why did Kennedy come back to that point several times?  I wonder if Perry spooked him.  He is not ready to tell Alabama it has to let same-sex couples marry.  The DOMA cases don't raise that question, but Kennedy must be realizing how hard it will be to identify a standard of review for equal protection purposes that does not lead down the path to same-sex marriage throughout the country.  Maybe he sees federalism as the way out of that, although truthfully I have a hard time imagining he will relinquish the eloquence of Lawrence for a highly technical opinion on federalism grounds.  But yesterday he spoke of concern for the children of same-sex couples.  Today his only mention of children was again in the federalism context -- that matters involving children are customarily matters for the states.

Going back to Clement's argument, I actually take a bit of comfort in the fact that with the press and public watching (even if the cameras don't roll (as they should!) in the Supreme Court), he was unwilling to say what all the briefs supporting DOMA say:  that the rational basis for the law is an alleged dispute about the impact of same-sex marriage on both the children of same-sex couples and the institution of marriage for heterosexuals.  If that's an argument some who oppose gay rights are unwilling to say out loud, we are winning the culture war.  Nonetheless, the argument is in the briefs and the Justices can certainly rule on that basis.  Roberts, Scalia, and Alito all expressed the anticipated hostility to the arguments of the government and Windsor. (Some people thought Roberts might vote our way.  If I remembered all the bets I made against that in the last couple of weeks I'd be sitting pretty right now.  I never imagined him on our side, and he was pretty vicious.)

If we get to the last couple of days of the term at the end of June, and the opinions in these case have not yet been issued, I'll be going to the Court to be there when they are read.  These are historic moments.

Tuesday, March 26, 2013

The talk about children (and more) at the Supreme Court

Today's case in the Supreme Court, Hollingsworth v. Perry, might go away on standing grounds.  That means the Court could rule that, once the state of California decided not to appeal the judgment of the trial court that Prop 8 was unconstitutional, then the proponents of Prop 8 at the initiative stage could not properly appeal to a higher court.  Many of us would like this result.  Marriage becomes available again in California, and the question of the right to marry under the federal constitution is left for a (hopefully much) later day.  Will there be five votes for such a result?  Maybe.  From the questioning it looked like Roberts could rule that way, and he would only need four of the justices more sympathetic to gay rights to join him.  Sotomayor and Breyer both made comments indicative of leaning against the standing of the petitioners, although Sotomayor also expressed some concern about how a law could ever be defended if the proponents could not do it.

Although all the lawyers addressed the standing question, and were prodded to do so first by Chief Justice Roberts, the majority of argument time went to the merits of the case.  Is Prop 8 unconstitional?  Charles Cooper, representing the Prop 8 supporters, argued that when it comes to marriage, same-sex and different-sex (he used the term "opposite-sex;"  I'm sticking with the term I use here) couples are not similarly situated.  This is the argument about the essence of marriage being procreation.  Justice Kagan pushed him, however, asking how allowing same-sex couples to marry harms the institution of marriage.  In other words, she wanted to know how excluding same-sex couples furthered the state's interest.  Cooper basically that no one knows what will come from allowing same-sex couples to marry and voters should be able to proceed cautiously.

At this point, Justice Scalia brought up children.  And he did not mince words.  Sociologists disagree about whether being raised by same-sex couples harms children, he said, and if you redefine marriage you must permit couples to adopt children.  Justice Ginsburg then jumped in to point out that in California same-sex couples can already adopt children, so that argument doesn't work in California.  Scalia stuck to it, as did Cooper, saying that across all states that wasn't true.  At one point I thought Scalia was making Cooper's argument for him, pointing out the alleged lack of a scientific answer to whether it harms children to be raised by same-sex couples.

When Justice Kennedy joined in, he changed the direction of this dialogue about children, pointing out the 40,000 children in California whose same-sex parents can't marry.  He wanted their "voice" (his word) to be heard.  Cooper conceded that was important but pointed out that the plaintiffs' expert could not say what incremental benefit there would be to the children, given that their parents can already be recognized in domestic partnerships.

The argument returned to procreation when Justice Kagan asked if the state could prohibit two 55 year olds from marrying.  Cooper, of course, said no.  And then came a first for me -- and I have read a lot of briefs on these issues (not all, I confess).  After a series of back and forths, Cooper said that the state interest in the marriage of 55 year olds is that the institution of marriage, designed to promote fidelity and monogamy, makes it less likely that the 55 year old man -- who likely is still fertile -- will engage in irresponsible procreation by siring children outside marriage.  Really.  Few men outlive their fertility, Cooper said.  Their marriage to a woman who cannot procreate keeps them from irresponsibly procreating with other women.  Like I said, this was a new one on me.

Ted Olson argued for marriage as a fundamental right, and then got enmeshed with an insistent Scalia who wanted to know the year marriage for same-sex couples became a constitutional right.  It should not have been a hard question.  The answer is that it was always a right.  Scalia would have scoffed at that answer, but at least it would have been an answer.

Then matters turned toward children again, with Olson pointing out that California could not base denial of marriage on anything to do with access to parenting because same-sex couples are fully recognized as parents in California (true...and it is not dependent on marriage...but no one was discussing that today!).  This became part of what would later go back and forth with the Solicitor General...the possibility that states that DO grant full parenting rights, perhaps in the context of domestic partnership or civil union, can't use child-related arguments in defense of excluding same-sex couples from marriage, but states with no same-sex couple protections at all actually might be able to argue that those are constitutional because of the state's interest in the well-being of children.

Before he finished, Olson of course referred to Loving v. Virginia, and the ban that states once had on interracial marriage.  Kennedy cut him off, referring to same-sex marriage as uncharted waters and noting that interracial marriage was a known quantity for hundreds of years in other common law countries.

Solicitor General Donald Virrilli  represented that federal government's position, which I hate: that states may be able to ban recognition of same-sex couples but if they do recognize same-sex couples they must allow them to marry, rather than enter civil unions or domestic partnerships.  Now I will say that not a single justice seemed to like this argument either.  And it really makes no sense in the real world.  How can it be unconstitutional to give all possible rights to same-sex couples except the word marriage and at the same time be constitutional to give no rights at all to same-sex couples?  Of course I do understand the legal theory -- that denying the word marriage shows animus.  And I do absolutely believe the purpose of such a label is to make same-sex couples appear as second-class couples.  But, still, they are undeniably better off than the couples in Alabama who lack all legal protections and can even lose their children for being in same-sex relationships.

So the Justices hammered Verrilli on this point, making him explain this argument.  Finally he said that, essentially, states that did not already respect same-sex couples raising children could argue that the children could be harmed by allowing same-sex couples to marry.  Really.  In another case, he suggested, the state might be able to build a record that would support "caution" because of the impact of same-sex marriage on children.  To his credit, he said the state would have a heavy burden, and he certainly did not suggest the state could meet that burden, but why go there?  If the government thought handing the Court a possible "8/9 state solution" (the ones with couple recognition not called marriage) would produce a good way out for justices unprepared to go the "50 state solution" route, that turned out to be a miscalculation.  I don't expect a single justice to go that route.

Justice Roberts then brought up an issue I have consistently raised in these blog pages and elsewhere.  He called in an "internal inconsistency" that plaintiffs say children of same-sex couples are doing great and so there is no problem extending marriage to same-sex couples and they say that Prop 8 harms children because their parents can't marry.  I have always found this problematic.  It is why we should not be arguing for marriage saying our children are harmed if we can't marry.  We have said for decades now that children are not harmed being raised by gay and lesbian parents or same-sex couples.  We cite study after study that the children turn out fine, or at least not worse than their peers with heterosexual parents.  We say this constantly.  We cite many studies.  So, how, exactly can this be true if at the same time the children are worse off than their peers with heterosexual parents because those parents can marry?  It gives me no pleasure to have an obvious opponent of same-sex marriage raise this point from the bench.  It's just an obvious point that advocates boxed themselves into when they decided to conflate the well-being of children with marriage.  Verrilli answered by saying marriage was stabilizing, but you see the problem.  If children needs that stabilizing factor (if it is even true for same-sex couples...), then you would expect some harm to them to be visible in the years of research about their well-being.  But there is no such evidence of harm.  So why do they need marriage?  The answer is...they don't, unless you point to specific legal consequences.  But almost all of those flow from legal parentage, not marriage.  We never should have gone the route of justifying access to marriage based on the well-being of children. But here we are.

One final point.  Justice Breyer finds international law valuable when interpreting our constitution.  In this argument, he made some references to "PACS."  I'm betting most people did not get what he was saying.  The court stenographer did not get it, because in the transcript the word is "pacts."  But Breyer was pushing Virrilli on his argument that states could not choose couple recognition without the word "marriage," and he referred to states as having "PACS," which is a reference to what France has. "Pacte civile" is the legal term used in France for both same- and different-sex couples who enter a status that is not called marriage.  It is called, colloquially, PACS.  Someone will have to tell the stenographer so the official record can be corrected.... (And, fyi, the full transcript is here).

Do I have a prediction?  I'll throw my hat in (and I needed one in the early morning freezing temps outside the courthouse) with those who think it will go away on standing, or some other procedural ground that avoids the merits.  That will leave the constitutionally of DOMA as the only issue on which the Court rules this term.  Argument on that tomorrow. Stay tuned.

Friday, March 15, 2013

Colorado includes different-sex couples in civil union wouldn't know it from the press

When I heard about the civil union bill in Colorado, I did what I always do...check the fine print.  And the first thing I looked for was whether different-sex couples were eligible.  I needed to check the bill for that because the press didn't report it, not the New York Times, or Huffington Post, or the Denver Post.  The answer is...yes.  Colorado joins Illinois and Hawaii as states that don't discriminate in civil unions on the basis of sex or sexual orientation.  Nevada and the District of Columbia allow different-sex couples to enter the equivalent status, which they call domestic partnership. (D.C. allows any two people who live together in a committed, familial relationship to enter a domestic partnership).

Colorado also retains a unique status of designated beneficiaries, which I've written about extensively in these posts.  It allows people to tailor the legal consequences they want to their specific relationship, rather than being the all-or-nothing of marriage or civil unions.

With all the focus on same-sex couples and marriage, civil union is generally portrayed as a second-best way station until equality comes with access to the word "marriage."  But when the status is available to different-sex couples it provides a choice for those who have reasons not to marry.  In the first three and a half months in Illinois, 87 different-sex couples registered.  As this survey shows, they had varying reasons.

Illinois may be on its way to marriage equality.  The current proposal leaves civil unions in place.  DC has marriage equality, and it has retained domestic partnership.

Why does all this matter to me?  I want respect for all families.  When marriage is on a pedestal, all other forms of families are devalued. Civil unions for different-sex couples create a small opening, a crack in the pedestal. It's not enough, but it's better than the way station approach.

Monday, March 11, 2013

Has it come to this? Marriage before children for same-sex couples?

Yesterday's Washington Post featured a front page article on Paul Katami and Jeff Zarrillo, one of the plaintiff couples in the Perry litigation on same-sex marriage being argued in the Supreme Court on March 26.  By their own account, they are a conventional, suburban, two-earner couple.  With two French bulldogs, Gracie and Gordy, also prominently featured.

The couple wants children.  But only after marriage, they say.

Come again?  I think it's worth analyzing this sentiment.

Certainly some heterosexual couples living together choose to get married when they decide to have children.  Although the law no longer characterizes children as "illegitimate," social pressure might serve the same function. It's a pressure left over from the days when illegitimacy was not only a stigmatized social status but a legal status carrying grave disabilities.  There are people still alive today whose birth certificates were stamped "bastard."

There is no such historical stigma for same-sex couples with children.  In fact, by the time we started having children openly in the context of our same-sex relationships (as opposed to those born in different-sex marriages/relationships), the legal disabilities based on the marital status of one's parents had been erased.  In notable numbers, we began to adopt children as openly gay couples, and we began using assisted reproduction to have children genetically connected to one partner, in the late 1970's.  If we mark 1993 as the beginning of the modern movement for same-sex marriage (the year the Hawaii Supreme Court said it was a possibility, even though an amendment to the Hawaii constitution meant that possibility did not materialize),  there were already lots of our children (including my daughter) in school.  By the time marriage hit Massachusetts in 2004, children from the first wave of the "gayby boom" were adults.

I cannot recall one meeting, one discussion, one public or private statement, that we should postpone or forego having children because we could not marry.  I'm not sure it's an issue that crossed anyone's mind.

What crossed our mind continuously was the legal status of our parent-child relationships.  And so for the last almost 30 years a group of creative lawyers (I like to count myself in that group) have been pushing the law to recognize the parentage of both members of a couple raising a child together.  We haven't been successful in every state, but through statutes and court rulings in numerous states we have protected the relationships a child has with two mothers or two fathers.  Our latest success:  Kansas, as I wrote about last month.

California, where Katami and Zarrillo live, has the best set of parentage laws in the country.  The couple could adopt a child together.  Or if they used surrogacy to have a child, they could obtain a court order before the child's birth naming them both as parents.  And if they didn't do that, still the nonbiological father would be the child's legal parent simply by living with the child and holding the child out to the world as his child.

Because all legal benefits and obligations flow from recognition as a child's parent, there is nothing the marriage of Katami and Zarrillo would accomplish that parentage does not.  The right to make decisions, review educational records, travel across borders, receive support and public benefits, maintain a connection to both parents if the relationship dissolves, remain in the care of the surviving parent if the other parent dies, etc are all tied to parentage, not marriage.

So why do they think marriage should come first?  And if they lose in the Supreme Court does that mean they forego having a child entirely?

Perhaps they believe that heterosexuals should marry before having children and that equality means living by the same rules.  When David Blankenhorn switched sides in the marriage equality debate, he said he hoped it would further a conversation of the importance of marriage in the lives of children.  But if the Katami/Zarrillo position gains any prominence it will be a tragic example of mission creep.

Same-sex marriage is supposed to be about the equal value of lesbian and gay relationships.  We aren't second-class members of society and we shouldn't have a term applied to our relationships that suggests we are.  It shouldn't be about buying into the "marriage promotion" agenda I have long decried in this blog.  And yet it clearly is for some people.  That is, after all, what explains Ted Olson's role.  He likes gay couples getting married because marriage is a conservative value.  Come to think of it, maybe Katami and Zarrillo's position isn't so hard to explain; Olson picked them to be plaintiffs in this case.

Wednesday, March 6, 2013

Second parent adoption -- in the European Court of Human Rights, the Supreme Court of Puerto Rico, and federal district courts in Michigan and North Carolina

Adoption should be about the best interests of the children involved, not the marital status, gender, or sexual orientation of the parents.  A number of recent rulings and pending cases show how wrong courts can be when they stray from this basic principle.

I wrote extensively about X. and others v. Austria, when it was argued last fall in the European Court of Human Rights.  Austria allows a second-parent adoption by a mother's male, unmarried partner, but not by a mother's female partner.  Last month, the ECHR ruled in favor of the plaintiffs.  The Court found that it was unlawful discrimination on the basis of sexual orientation.  This is the good news.

The bad news is the ECHR's previous ruling against the lesbian couple in Gas and DuBois v. FranceFrance does not allow any unmarried partner to adopt.  Gas and DuBois were unable to complete a second parent adoption because they were not married; an unmarried different-sex couple would also be unable to do a second-parent adoption in France.  This is because, like some American states, the adoption by the nonbiological mother or father would automatically cut off the rights of the biological mother, unless the couple was married. The ECHR said that this was not discrimination on the basis of sexual orientation because the rule applied to same-sex and different-sex couples.  The ECHR further said, essentially, that marriage is special and there is no discrimination if a country treats married couples differently from unmarried couples. In X and others v. Austria, the ECHR reiterated that a country need not allow any unmarried partner to adopt.

Last month, the Puerto Rico Supreme Court ruled that it was not unconstitutional to deny a second parent adoption to a lesbian couple.  News reports leave it at that, but I discovered today, reading an English translation of the opinion, that Puerto Rico does allow a man who is not married to a mother to adopt her child without terminating her parental rights.  Specifically, the statute says that a single parent's rights are not terminated by an adoption of the child by someone of a different sex.  The court said this was not sex discrimination because it applies equally to men and women.  In other words, a man would not be able to adopt a child of his male partner. (Really.) With the moral force of the ECHR ruling in X and others v. Austria, and the powerful anti-discrimination norm articulated by the Inter-American Court of Human Rights last year in Atala v. Chile, this case should go next to the Inter-American Commission on Human Rights (the first step to the Court).  The mothers' lawyers have filed for reconsideration.  Perhaps they will head to the Inter-American Commission next.

Finally, the conflation of adoption and marriage is showing up tomorrow in Detroit when Federal District Court Judge Bernard Friedman hears argument in the case of April DeBoer and Jayne Rowse, who last year challenged the constitutionality of denying them the ability to complete second-parent adoptions of their three children in Michigan.  At an initial hearing on the case last year, Judge Friedman suggested the underlying problem was the state's ban on same-sex marriage and invited the couple to challenge that ban, which they did.  The state's motion to dismiss will be heard tomorrow.

But the problem is not the marriage ban.  Adoptions are evaluated individually based on the best interests of the children.  Requiring a couple to marry in order to both be parents of a child they are raising together is bad law and bad policy.  If a child has two functional parents, nothing should stand in the way of a court finding that they can both be legal parents through adoption. When the highest court in New York approved second parent adoptions close to two decades ago, the challengers were both a lesbian couple and an unmarried different-sex couple.  Lambda Legal reprsented both couples.  Judge Friedman should not have turned the case into a case about marriage.  And the couple and their lawyer should have insisted that is not what it's about. (In contrast, the ACLU, in Fisher-Borne v. Smith, is challenging the constitutionality of North Carolina's ban on second-parent adoption as a matter rightly distinct from the state's ban on same-sex marriage.)