NY Times covers same-sex couples who don't want to marry

Sunday's New York Times article on same-sex couples who aren't marrying adds a dimension usually lost in all the news of marriage equality, especially because it includes -- indeed focuses on -- couples who really don't want to marry.  Especial hats off to historian John D'Emilio, who features in the article and who has been a long-time outspoken critic of marriage.  The theme that most dominates the article, however, is that these couples choose not to marry but are not unhappy that other same-sex couples have made a different choice.

The article really deemphasizes the legal consequences of the choice these couples are making and never asks whether those legal consequences are appropriate.  If two people own a home together, when the first one dies should the other have to pay taxes to retitle the home?  No.   It shouldn't matter if the two people are married.  What matters is that the survivor is remaining in her home and should get to do so without economic penalty.  In many places only a surviving spouse can do that.  The article does point out that some couples will pay higher income taxes if they marry.  And why should that be?  Many countries tax individual earners; it doesn't matter if they are married.  Not us.  We've got a tax scheme adopted to benefit single earner marriages, and we haven't changed it to deal more fairly with today's families.

I could go on.  I did in fact, in my book, Beyond (Straight and Gay) Marriage.  I agree that perhaps the biggest problem with the emphasis on same-sex marriage is that it invalidates the many other ways that people organize their lives to raise children and meet their needs for emotional support and economic security.  But the bright line the law makes between married couples and everyone else reinforces this point.

I also don't think the gay rights advocacy groups have sufficiently considered the needs of same-sex couples who don't marry, and there will be lots of them.  A Pew study from last spring showed that 30% of gay men and 33% of lesbians had not told their mother that they were gay; 47% of gay men and 55% of lesbians had not told their father.  About 1/5 of each group said they did not do so because the parent would not be accepting. So what does this mean for marriage?  Few people marry in secret, and it is the very public nature of the act of marrying that seems to matter so much to same-sex couples who want to marry.  My hypothesis is that people who are not out to the parents are going to be less likely to marry.  Also there is significant research about same-sex couples who live within their larger African-American communities.  Their lives are often an "open secret," not discussed with family members.  Marriage may well be too "in your face" for such couples.

Now no couple like those above is going to show up in a New York Times article about same-sex couples who don't marry.  By definition, they don't want to be public.  But they are at risk of falling off the agenda of the gay rights movement because the emphasis on marriage has turned the legal consequences of their relationships into problems that can -- and should -- be solved by marriage.

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.

Three parents (or more) okay in California -- by adoption or otherwise

Over three years ago I described in this blog, In re M.C., a California appeals court ruling that a child could not have three parents.  The case mobilized the National Center for Lesbian Rights and other advocacy groups, and yesterday California Governor Jerry Brown signed a bill explicitly permitting more than two parents, by adoption or by operation of California parentage laws.  No other state has such statutes, although lawyers do report some state trial courts that allow third parent adoption, and there are a tiny number of appeals court cases that have allocated parental rights and responsibilities among more than two parents.  I wrote about some examples here.

The law enables adoption beyond two parents by stating that if the existing parents agree in writing, then an adoption can take place without terminating the rights of those existing parents.  The most common scenario of this sort for LGBT parents has been one in which all concerned want both the known donor and the birth mother's female partner to be legal parents of the child.  This statutory authorization, however, is most likely to impact heterosexuals, given how much divorce and remarriage there is.  The provision will mean that if both the custodial and the noncustodial parent agree, then the custodial parent's new husband will be able to adopt the child without terminating the rights of the noncustodial parent.  I have been advocating such a possibility for years, but this is the first law explicitly sanctioning such arrangements.  The divorce rate of second marriages is at least as high as that of first marriages, which means that down the road we will be looking at multiple parent custody and visitation arrangements on a regular basis.

Among LGBT families, I expect to see four parent adoptions as well.  If a gay male couple and a lesbian couple want to raise a child, the new statute will allow the partners of both biological parents to become adoptive parents.  It remains to be seen what evidence of stability a court will require before giving a child four parents with equal legal claims in the event of dissolution.   It's also an open question whether courts will, or even should, be more vigilant about later addition of parents than they are about more than two people setting out to parent a child at the outset.

A court grants an adoption based on a child's best interests.  But there is more to the new law than the availability of adding parents through adoption.  California creates presumption of parentage under numerous circumstances.  Living with a child and holding her out as one's own is one such presumption, and it was the basis for finding parentage of the nonbiological mother in the pathbreaking Elisa B. case.  Marriage to the woman who gives birth to the child also creates a parentage presumption.  The M.C. court found that a child's biological father and her biological mother's wife were both presumed parents (in addition to the mother of course) but that the child could not have three parents under existing law.  The trial judge had found that the child had three parents, and the new law makes that result possible going forward.

But here the standard is something other than best interests.  The court must find that limiting the child to two parents would be detrimental to the child. In determining detriment, the court is to consider

the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.

Detriment does not require finding anyone involved unfit.  As I read this language, in advance of any court interpretation (which will come soon enough given family litigation in California!), this standard will favor a functional parent, and if additional parentage is sought by someone who has not functioned as a parent, that person may well be unable to prove detriment.  That sounds like a good call to me, but we'll have to wait and see how this standard plays out in practice.

Kudos to NCLR and all who worked on this bill!