By complete coincidence, just after I posted earlier this week about restrictions on the custody and visitation rights of gay and lesbian parents, an example of that very thing hit the national news. Carolyn Compton, the mother of a 10 and a 13 year old, and her partner, Page Price, were ordered to separate in order to comply with a provision in Compton's 2011 divorce decree that no unmarried romantic partner could spend the night when the children were present. The judge gave Price 30 days to move out. If she doesn't, the judge could award Compton's ex-husband custody of the children (although no coverage I have seen mentions that). Here is one report that focused on the potential unconstitutionality of the restriction, saying it was ultimately a question for the US Supreme Court.
But as I wrote in my previous post, the Constitution isn't the issue, and Compton is not going to win going down that route. The issue is how the children are doing and what their relationship with Price is like. According to an article in the Dallas Morning News, a "morality clause" banning unmarried overnight romantic partners is standard in several Texas counties. Some accounts focus on the fact that Price and Compton cannot marry, but, as the article I recently published points out, the marital status of the couple should have no significance whatsoever. The focus should be on the children. If a parent remarries and the presence of the spouse is harmful to the children, the fact of the marriage doesn't solve anything and should not absolve the parent from an assessment of whether that parent's choices are good for the children.
For the record, I do believe restrictions on parents' sexual relationships violate their Constitutional rights, but no court in a custody or visitation case has ever ruled in favor of a gay or lesbian parent on Constitutional grounds. Plenty of courts have ruled for gay and lesbian parents by finding that the parent's relationship was having no adverse impact on the children. A few years back, a Tennessee appeals court struck down an automatic provision against the presence of "paramours" (although the court had to do it twice before the trial court would comply).
In my previous post I pointed out that anything a parent does that harms a child should be considered in determining custody and visitation, and that nothing about having a nonmarital partner should be treated differently from any other decision a parent makes. I wouldn't expect Texas to embrace precisely that principle, but it's not too much to expect that an appeals court might require an inquiry, with actual evidence, into the well-being of the children. The couple has made a statement that Price's move will be disruptive and harmful to the children. I can believe it. I hope an appeals court tells the trial judge he has to make an assessment about this family and these children rather than enforce a blanket provision against the presence of unmarried partners. Even in Texas, I believe that's possible.
Saturday, May 25, 2013
Tuesday, May 21, 2013
Why constitutional arguments don't win for LGBT parents leaving heterosexual marriages
I love the relatively new phenomenon of law reviews creating online editions of short pieces. It means instant accessibility for ideas that don't need 75 pages in a law review and don't need a zillion footnotes. So I'm happy to highlight a piece I contributed to UCLA Discourse on the subject of LGBT parents who wind up in disputes with heterosexual ex-spouses over custody and visitation rights. The piece is called Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles. It is part of a larger "volume" containing pieces submitted by participants in a UCLA symposium earlier this year called Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries. You can read all the submissions here.
My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either. Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification. I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point. A parent's sexual orientation can never harm a child. And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.
The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families. It's not that way everywhere.
My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either. Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification. I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point. A parent's sexual orientation can never harm a child. And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.
The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families. It's not that way everywhere.
Thursday, May 16, 2013
Florida: A sperm donor is not a parent -- so far, so good. But a nonbio mom is not a parent, and that's the real problem
In an opinion rendered yesterday in A.A.B. v. B.O.C., a Florida appeals court has reiterated that a sperm donor is not a parent. That's what the Florida statute says, and that's what a previous appeals court held more than a decade ago. A.A.B. applied that statute to find that the trial court was therefore wrong to rule that B.O.C. was the father of 12-year-old C.D.B. in spite of the oral agreement of the parties that he was merely a donor. The appeals court rightly found no distinction based on the fact that the parties performed the insemination at home and not through a doctor.
That's the so far, so good part. The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).
The real problem, however, is lurking in the facts of the case. B.O.C. is the brother of A.A.B.'s former partner, S.C. S.C. and A.A.B. split up when their child was three. They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child. Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C. In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.
So S.C. could not file for custody, and so she pursued a different legal avenue. Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.
This case reminds me of a different series of all too common cases, not in an LBGT context. Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights. The law makes her relinquishment irreversible. So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption. (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).
As I read all those cases, the real issue is that the mother changed her mind. But some states are so quick to accept irreversible relinquishments that she has no recourse. In my mind, that's the real problem in those instances. I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child. And I say this as an adoptive parent, so it's not that I think adoption is bad for children. Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.
In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse. So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child. And it's that lack of recourse that's the problem in Florida.
Giving B.O.C. parental rights would have been wrong. If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART. But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents. All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.
It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child. But the ruling handed down yesterday doesn't raise that issue, and it should stand.
And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time. They could do it now and that would solidify their family. But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child. Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.
That's the so far, so good part. The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).
The real problem, however, is lurking in the facts of the case. B.O.C. is the brother of A.A.B.'s former partner, S.C. S.C. and A.A.B. split up when their child was three. They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child. Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C. In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.
So S.C. could not file for custody, and so she pursued a different legal avenue. Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.
This case reminds me of a different series of all too common cases, not in an LBGT context. Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights. The law makes her relinquishment irreversible. So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption. (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).
As I read all those cases, the real issue is that the mother changed her mind. But some states are so quick to accept irreversible relinquishments that she has no recourse. In my mind, that's the real problem in those instances. I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child. And I say this as an adoptive parent, so it's not that I think adoption is bad for children. Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.
In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse. So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child. And it's that lack of recourse that's the problem in Florida.
Giving B.O.C. parental rights would have been wrong. If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART. But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents. All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.
It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child. But the ruling handed down yesterday doesn't raise that issue, and it should stand.
And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time. They could do it now and that would solidify their family. But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child. Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.
Monday, May 6, 2013
US Supreme Court will rule on this: Who gets a deceased federal employee's life insurance proceeds, his wife or his designated beneficiary, who happened to be a long-ago divorced ex-wife?
I was plenty busy with the same-sex marriage cases and the Indian Child Welfare Act case, so I'm just now catching up on another case the Supreme Court will resolve by the end of June. It's Hillman v. Maretta, a case raising some very interesting questions, which was argued last month on the last day of this Term.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
The facts are simple. Warren Hillman worked for the federal government. In 1996, he named his wife, Judy Maretta, as the beneficiary of his federal life insurance policy. This employee benefit dates back to the Eisenhower years and was designed to enable employees to carry out their responsibilities to their families and to make the federal government competitive with the private sectors for good employees. The couple divorced in 1998, and Hillman remarried in 2002. He was still married to that wife, Jacqueline Hillman, when he died in 2008.
Warren Hillman never changed his beneficiary. Therefore, his life insurance proceeds, almost $125,000, were paid to Maretta. At this point Virginia state law kicked in. Virginia has a statute that wipes out designations to former spouses upon a divorce, unless the designation is reaffirmed after the divorce. Another way of saying this is that Virginia assumes that people don't want their ex-spouses to get their property, financial accounts, or any other benefit. Rather than require people to change desginations they made during the marriage, the law wipes them out all at once.
Virginia law cannot trump federal law because of the doctrine of preemption. So federal life insurance proceeds still go to whoever is designated by the employee. No one disputes that this Virginia statute cannot change who the insurance plan administrator pays the benefits to. But...another Virginia law gives someone who would get the benefit if the Virginia law did wipe out the designation the right to sue the designated beneficiery and get all the money from her. That's the law being challenged in this case.
The way the widow Jacqueline Hillman sees it, the Virginia law doesn't interfere at all with how the plan is administered. It's simply gives a family member an equitable remedy under state law to effectuate what the state presumes is the intent of its divorced residents. She also points out that federal law explicitly says life insurance proceeds for members of the military are not subject to creditors, evidence that Congress wanted to make sure the designated beneficiary got to keep the money. But nonmilitary federal life insurance doesn't have that same provision. So she argues that the federal statutory scheme does not preempt a state law that effectuates the presumed intent of the deceased employee.
Ex-wife Judy Maretta argues in response that the Virginia statute is a backhanded way of accomplishing what everyone agrees Virginia cannot do directly -- require the plan administrator to pay proceeds to anyone other than the designated beneficiary. She also notes that the handbook for the program given to federal employees specifically says that divorce does not revoke the beneficiary designation to a former spouse. Congress has amended the relevant statute once when it comes to paying proceeds to someone other than the designee, and that is when a properly crafted order from a divorce court awards the proceeds to someone else. If the order is filed with the plan administrator before the employee dies then the plan pays according to the order. (This overcomes the problem that a spouse might get a share of the life insurance proceeds as part of an overall property settlement but the employee might fail to make a beneficiary change in line with the settlement; the way this works in practice is that the lawyer for the spouse who got the settlement will make sure the order goes to the plan administrator.) The federal government agrees with Maretta.
Okay, so here is what interests me about this case. In my world, a victory for a designated beneficiary is a good thing. If the employee doesn't name anyone, the proceeds go...as you would expect...to a surviving spouse (e.g. Hillman), and if there isn't one, to -in order- children, grandchildren, parents. Since a default order of preference never includes an unmarried partner or others closest to the deceased but not on the traditional list, I wholeheartedly support allowing individuals to decide for themselves who receives a benefit. The fact that this benefit has always allowed the employee to designate a beneficiary means that, even though providing for their families was one reason expressed for first offering life insurance as a benefit, there was always the idea that the employee could select anyone and that selection would be honored.
But. On the other hand, we want a person's real intent to govern. When an Oklahoma man's will leaving his property to his life partner was successfully challenged by distance relatives because it lacked one of the required witness signatures, that was an outrage. Since providing for their families was one of the reasons for this benefit, it seems like the person living in an economically interdependent relationship with the deceased should actually have a leg up.
The federal government doesn't care at all about intent. It wants the plan administration to be simple. Look at the forms. See whose name is there. Pay the benefit. That is the very definition of simple. Hillman says the federal government gets to do what is simple; only after that does state law kick in and let her recover the funds from Maretta, and that shouldn't concern the feds because they play no role in that lawsuit.
The underlying Virginia law that wipes out all designations of a spouse after divorce (unless reaffirmed) makes some sense since it is reasonable to think that most people ending a marriage think the divorce has settled all their future economic obligations. If that is the proper default rule, designed to effectuate real intent, then it seems like Virginia has come up with a straightforward way of making that happen without disturbing the simplicity the feds need to efficiently operate the plan.
So I'm back and forth on this one. Ultimately, however, I come down on Maretta's side. Preserving the name the employee put on the document is the best way to know that we all get to choose whomever we wish, including nonmarital partners; close friends; specific favored relatives; and, yes, even ex-spouses (who can certainly sometimes remain close friends). Until the default list adds, at the very least, a cohabiting, economically interdependent, nonmarital partner, it's not a list that does a good enough job implementing the deceased's intent...or providing for his or her family.
Friday, May 3, 2013
Iowa Supreme Court rules birth mother's female spouse must be listed on child's birth certificate
I've written extensively about the Gartner case, in which Lambda Legal represented a married lesbian couple challenging the refusal of the Iowa Department of Health to place the name of the nonbiological mother, Melissa Gartner, on the child's birth certificate. Today the Iowa Supreme Court ruled that the Department was wrong. Mackenzie Gartner gets a birth certificate naming both her moms. This is good news.
So why am I not celebrating? In other posts I have criticized this litigation because it helps only children whose moms are married. I stand by that criticism. The court's opinion makes me more concerned than ever. The court says "we recognize the strong stigma accompanying illegitimacy." Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate? Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.
But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption. Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways. Here is just one example. Every state has a statute that paternity judgments must be given Full Faith and Credit by other states. Every state. Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers. The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers. That is the wrong result, and it will hurt many, many of our families.
In this part of the opinion the court also showed that it does not understand parentage law across the country. In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong. Here are the two most egregious mistakes. The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological. And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.
I actually feel great outrage at this footnote. It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child. Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.
So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate. It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child." The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way. As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.
There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate). Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions. But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status. Many states have done this, including states without same-sex marriage. I have written about them in these posts over the years, so I won't try to summarize here. But that's what our families need and deserve.
So why am I not celebrating? In other posts I have criticized this litigation because it helps only children whose moms are married. I stand by that criticism. The court's opinion makes me more concerned than ever. The court says "we recognize the strong stigma accompanying illegitimacy." Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate? Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.
But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption. Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways. Here is just one example. Every state has a statute that paternity judgments must be given Full Faith and Credit by other states. Every state. Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers. The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers. That is the wrong result, and it will hurt many, many of our families.
In this part of the opinion the court also showed that it does not understand parentage law across the country. In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong. Here are the two most egregious mistakes. The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological. And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.
I actually feel great outrage at this footnote. It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child. Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.
So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate. It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child." The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way. As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.
There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate). Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions. But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status. Many states have done this, including states without same-sex marriage. I have written about them in these posts over the years, so I won't try to summarize here. But that's what our families need and deserve.
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