The Kentucky Court of Appeals has made marriage the dividing line between those children who can have two legally recognized parents and those who can't. In an opinion handed down last Friday, the court ruled that "second-parent adoption" is not permitted under the state's statutes. Second-parent adoption is the way that lesbian and gay couples have both gained the legal status as parents of the biological child of one of the partners. The first such adoption was granted in Alaska in 1985. Several states allow them; some do not; and in others trial court judges have granted adoptions but they have never been reviewed by appellate courts. (That was the case in Kentucky until this court decision!)
Second-parent adoption is analogous to step-parent adoption, but of course the bio parent and the second parent are not married to each other. They can be a same-sex or different-sex couple, or the bio parent and second parent can have a relationship that isn't romantic at all...like two sisters who adopted together in Maryland.
Adoption typically terminates the parental rights of the child's biological parents. Obviously, in a second-parent adoption this is not the desirable or appropriate result. Thus the analogy to step-parent adoption, where the original parent retains parental rights while his or her spouse also becomes a parent.
Well, the Kentucky court ruled that state law limits this type of adoption to a married couple. (and Kentucky is one of the majority of states that bans same-sex marriage). So the only way a lesbian biological mother's partner could become a legal parent is by terminating the parental rights of that biological mother! How absurd! Other states have ruled that such a termination can be waived, but the court ruled that it was against Kentucky's public policy to allow such a waiver. How about a public policy that wants a child to have a legal relationship with both his parents??
The court got it all wrong when it said that the granting of the adoption "elevated the status of the relationship between [the two women] to legal marriage." (The non-bio mom's lawyer also got it wrong when she argued that the court should treat the non-bio mom as a step-parent because it was necessary to give equal rights to gay couples.)
Here are some other interesting points about this case. The couple split up before filing for the adoption. Although that did not affect the court's legal ruling, the court does make a snide and dismissive reference to the idea of former spouses filing to adopt. I think a lesbian couple filing for an adoption AFTER splitting up is not that unusual (it's what my partner and I did!). That is the moment when the legal inequality can seem most disadvantageous for the child.
So the trial judge granted the adoption, and the way the case got to the Court of Appeals was that, more than a year later, when the parents were disagreeing about visitation and other matters, the biological mother went back into the court to undo the adoption, arguing it should never have been granted. This is not the first time a bio mom has done such a thing, but all I can say about it is...someone needed to stop her! She ruined matters for all children of same-sex couples in Kentucky to achieve her goal by any means. And here's the irony...the court did NOT void the adoption IN THIS CASE because it was challenged over a year after it was granted, and that is an absolute no-no in Kentucky unless the trial court was defrauded, which didn't happen here. So this child still has two mothers...as do the children of Kentucky whose second-parent adoptions were granted more than a year ago...but that option will no longer be available in the state.
Tuesday, September 16, 2008
Wednesday, September 10, 2008
FLORIDA ADOPTION BAN DECLARED UNCONSTITUTIONAL
Florida Circuit Court Judge David J. Audlin, Jr.has granted the petition of a gay man to adopt the child who was placed in his home as a foster child in 2001 and whose legal guardians the man and his partner of 15 years became in 2006. The child is identified in the court documents as John Doe. To grant the adoption, the judge had to find unconstitutional Florida’s ban and adoption by lesbians and gay men. In so finding, the judge reviewed what was said about the ban when it was enacted in 1977 and concluded that the origin of the ban was a politically charged climate, dominated by Anita Bryant’s anti-gay crusade that resulted in the repeal of the Miami anti-discrimination ordinance.
Judge Audlin addressed the decision of the 11th Circuit Court of Appeals in the Lofton case, which refused to find the ban unconstitutional. Lofton was decided based on summary judgment, which means there was never a trial with evidence presented about the validity of the ban from a best-interests-of-the-child perspective. The appeals court in Lofton said that the legislature passing the ban might have thought it “premature to rely on a very recent and still developing body of research, particularly in light of the absence of longitudinal studies following child subjects into adulthood and of studies of adopted, rather than natural, children of homosexual parents.”
After hearing testimony from adoption expert Dr. David Brodzinski, Judge Audlin concluded that the Lofton court’s depiction of the research on adoption by gay men and lesbians “is, at minimum, not presently accurate.” Dr. Brodzinski testified that the adoption ban was “irrational and scientifically inexplicable” and the judge said he was “unable to discern any coherent explanation for its enforcement in 2008, other than a willingness to passively leave intact the ban against this politically-disfavored group.” The judge heard testimony from several other witnesses specifically about the best interests of John Doe, including John Doe himself.
The judge made the following findings:
The Court finds the foregoing facts to be true: (a) The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner’s sexual orientation, it is in the minor’s best interest to be adopted by Petitioner, (b) Floridians who are gay or lesbian are not for that reason inherently incapable of parenting an adopted child, (c) In view of the less restrictive alternative safeguards that exist, there is no need for the categorical disqualification of all gays and lesbians in Florida from adoption to ensure that no child is adopted by an inappropriate caregiver, and (d) After having listened to and read the legislative history surrounding the enactment of [the adoption ban], the Court finds that there was no non-punitive purpose for categorically excluding every single gay and lesbian Floridian from adopting children.
The judge based his determination of the law’s unconstitutionality on grounds not argued in previous cases. He found that the statute was a “special” rather than a “general” law.
The particular classification scheme chosen by the legislature does not, however, bear a reasonable relationship to a legitimate state objective. Indeed, in situations such as that here, the ban obstructs the legitimate state objective of pursuing the best interest of a legal orphan by providing him an adoptive home with a care-giver whom the State has itself deliberately over the course of many years already encouraged the child to view as his permanent parent. Most dispositively, the statutory disqualification is not based upon proper differences which are inherent in or peculiar to all Floridians who are gay. Section 63.042(3), Fla. Stat., is therefore a prohibited special law pertaining to the adoption of persons.
The judge also found that the adoption ban amounted to punishment of Floridians because of their sexual orientation and was therefore an unconstitutional bill of attainder. The opinion says, “Every Floridian who is gay or lesbian was found guilty by the legislature of being unfit to parent an adopted child without the benefit and protection of a judicial trial… Marking every gay Floridian as necessarily and irrebuttably unwholesome for the purpose of denying them the chance to be considered to raise children exceeds the authority of the legislative branch.”
Finally, the judge found that the ban violated the doctrine of separation of powers because “the legislature may not employ an irrebuttable presumption that is not grounded in established fact to displace the inherent authority and concurrent jurisdiction of the adoption court to allow a petitioner to prove what is in the best interest of the adoptee. Because the categorical ban is not grounded in established fact, the absence of an opportunity to rebut is fatal.” The judge found that the adoption ban “constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made to, exist in actuality.”
The Florida Attorney General’s office did not participate in the litigation, in spite of the fact that they were notified, given opportunity to intervene, and served with all filings in the case. Whether the Attorney General will at this point appeal the decision remains to be seen.
Judge Audlin addressed the decision of the 11th Circuit Court of Appeals in the Lofton case, which refused to find the ban unconstitutional. Lofton was decided based on summary judgment, which means there was never a trial with evidence presented about the validity of the ban from a best-interests-of-the-child perspective. The appeals court in Lofton said that the legislature passing the ban might have thought it “premature to rely on a very recent and still developing body of research, particularly in light of the absence of longitudinal studies following child subjects into adulthood and of studies of adopted, rather than natural, children of homosexual parents.”
After hearing testimony from adoption expert Dr. David Brodzinski, Judge Audlin concluded that the Lofton court’s depiction of the research on adoption by gay men and lesbians “is, at minimum, not presently accurate.” Dr. Brodzinski testified that the adoption ban was “irrational and scientifically inexplicable” and the judge said he was “unable to discern any coherent explanation for its enforcement in 2008, other than a willingness to passively leave intact the ban against this politically-disfavored group.” The judge heard testimony from several other witnesses specifically about the best interests of John Doe, including John Doe himself.
The judge made the following findings:
The Court finds the foregoing facts to be true: (a) The fact that Petitioner is a gay man is irrelevant to his skills as a parent and his fitness to adopt. Irrespective of Petitioner’s sexual orientation, it is in the minor’s best interest to be adopted by Petitioner, (b) Floridians who are gay or lesbian are not for that reason inherently incapable of parenting an adopted child, (c) In view of the less restrictive alternative safeguards that exist, there is no need for the categorical disqualification of all gays and lesbians in Florida from adoption to ensure that no child is adopted by an inappropriate caregiver, and (d) After having listened to and read the legislative history surrounding the enactment of [the adoption ban], the Court finds that there was no non-punitive purpose for categorically excluding every single gay and lesbian Floridian from adopting children.
The judge based his determination of the law’s unconstitutionality on grounds not argued in previous cases. He found that the statute was a “special” rather than a “general” law.
The particular classification scheme chosen by the legislature does not, however, bear a reasonable relationship to a legitimate state objective. Indeed, in situations such as that here, the ban obstructs the legitimate state objective of pursuing the best interest of a legal orphan by providing him an adoptive home with a care-giver whom the State has itself deliberately over the course of many years already encouraged the child to view as his permanent parent. Most dispositively, the statutory disqualification is not based upon proper differences which are inherent in or peculiar to all Floridians who are gay. Section 63.042(3), Fla. Stat., is therefore a prohibited special law pertaining to the adoption of persons.
The judge also found that the adoption ban amounted to punishment of Floridians because of their sexual orientation and was therefore an unconstitutional bill of attainder. The opinion says, “Every Floridian who is gay or lesbian was found guilty by the legislature of being unfit to parent an adopted child without the benefit and protection of a judicial trial… Marking every gay Floridian as necessarily and irrebuttably unwholesome for the purpose of denying them the chance to be considered to raise children exceeds the authority of the legislative branch.”
Finally, the judge found that the ban violated the doctrine of separation of powers because “the legislature may not employ an irrebuttable presumption that is not grounded in established fact to displace the inherent authority and concurrent jurisdiction of the adoption court to allow a petitioner to prove what is in the best interest of the adoptee. Because the categorical ban is not grounded in established fact, the absence of an opportunity to rebut is fatal.” The judge found that the adoption ban “constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made to, exist in actuality.”
The Florida Attorney General’s office did not participate in the litigation, in spite of the fact that they were notified, given opportunity to intervene, and served with all filings in the case. Whether the Attorney General will at this point appeal the decision remains to be seen.
Saturday, September 6, 2008
CALIFORNIA DREAMIN'
The National Lesbian and Gay Law Association is holding its annual Lavender Law conference in San Francisco this weekend. I took some time off from conference sessions to do some sightseeing today. Dale Chihuly at the deYoung Museum. A walk along the spectacular coastline. A lesbian wedding.
Nashville lawyer Abby Rubenfeld, a Lambda Legal staff attorney more than two decades ago, was in town for Lavender Law and for the meeting of the National Center for Lesbian Rights National Family Law Advisory Council (I'm on it too). So she thought while she was here she'd take advantage of the opportunity to marry her partner, and she invited all us fellow NFLACers to join her. It took place at 1 pm, in between conference sessions, in blue jeans, at the courthouse, performed by out lesbian judge Nancy Davis. Words were said, rings exchanged, and then most of us went back to the conference.
I don't usually go to weddings. So why did I go to this one? Best I can tell, it was indeed about being a tourist here...a chance to do something I can't do at home...or anywhere else in the country other than Massachusetts. I'm glad I went.
Being here in California does impress upon me the importance of defeating Proposition 8 on the November ballot. If it passes, marriage for same-sex couples ends in California. I don't think of it as a vote on marriage; I think of it as a vote on our humanity. If Prop 8 passes, it will energize anti-gay forces across the country to go after us on any issue they can. If Prop 8 is defeated, it will slow those forces down and inspire hope in gay activists and in gay folks too scared to be activists. The No on 8 campaign needs to raise lots of money and to raise it fast. The vote is expected to be very close. Every dollar will be put to good use. Find out how to donate here. I hesitate to overuse the reference, but when it comes to the fight over Prop 8, we are all Californians.
Nashville lawyer Abby Rubenfeld, a Lambda Legal staff attorney more than two decades ago, was in town for Lavender Law and for the meeting of the National Center for Lesbian Rights National Family Law Advisory Council (I'm on it too). So she thought while she was here she'd take advantage of the opportunity to marry her partner, and she invited all us fellow NFLACers to join her. It took place at 1 pm, in between conference sessions, in blue jeans, at the courthouse, performed by out lesbian judge Nancy Davis. Words were said, rings exchanged, and then most of us went back to the conference.
I don't usually go to weddings. So why did I go to this one? Best I can tell, it was indeed about being a tourist here...a chance to do something I can't do at home...or anywhere else in the country other than Massachusetts. I'm glad I went.
Being here in California does impress upon me the importance of defeating Proposition 8 on the November ballot. If it passes, marriage for same-sex couples ends in California. I don't think of it as a vote on marriage; I think of it as a vote on our humanity. If Prop 8 passes, it will energize anti-gay forces across the country to go after us on any issue they can. If Prop 8 is defeated, it will slow those forces down and inspire hope in gay activists and in gay folks too scared to be activists. The No on 8 campaign needs to raise lots of money and to raise it fast. The vote is expected to be very close. Every dollar will be put to good use. Find out how to donate here. I hesitate to overuse the reference, but when it comes to the fight over Prop 8, we are all Californians.
Tuesday, September 2, 2008
MARRIAGE FOR 17-YR-OLD BRISTOL PALIN -- HOW 1950's!
Sarah Palin's 17 year old daughter, Bristol, is pregnant. So why no uproar from conservative Christians (as Sarah Palin describes herself), or from those abstinence-only sex-education Republicans?? Because she's marrying her boyfriend, Levi Johnston, that's why!
How 1950's! That's the decade that saw a peak number of teenage pregnancies (the national teen birth rate reached a peak in 1957, at 96 births per 1,000 women ages 15-19.) Half the pregnancies resulted in "shotgun weddings" to preserve the young woman's honor. Those marriages didn't fare too well, but Bristol's is sure to last through the November election, which is all that really matters, right? (Of those young women who did not marry, over 25,000 a year were sent to more than 200 unwed-mother homes where they gave birth secretly and almost always relinquished their children for adoption. Women who gave birth and kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including eviction from public housing and denial of public assistance. More on this in Chapter 2 of my book.)
Of all the legal and social changes of the late 1960's and 1970's, none is more significant than the end of "illegitimacy" as a legal category and the reduction in social stigma associated with nonmarital birth. Women now have the choice to bear children without a husband, with the knowledge that the law won't discriminate against those children. They also can choose an abortion...although I doubt Bristol Palin really had that choice, in spite of the fact that the Alaska legislature this year kept a bill requiring parental consent from passing. (You might want to donate to Planned Parenthood Alaska to help keep it that way.)
Still, it's no surprise that the daughter of a prominent abstinence-only conservative is pregnant. Abstinence-only sex education doesn't work. Meanwhile, we haven't heard a date for the wedding, so I'm thinking this marriage plan is, well, somewhat last minute. You see, if Bristol wanted to raise this baby on her own --like the teenage girls in Gloucester, MA -- this story would be playing completely differently.
How 1950's! That's the decade that saw a peak number of teenage pregnancies (the national teen birth rate reached a peak in 1957, at 96 births per 1,000 women ages 15-19.) Half the pregnancies resulted in "shotgun weddings" to preserve the young woman's honor. Those marriages didn't fare too well, but Bristol's is sure to last through the November election, which is all that really matters, right? (Of those young women who did not marry, over 25,000 a year were sent to more than 200 unwed-mother homes where they gave birth secretly and almost always relinquished their children for adoption. Women who gave birth and kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including eviction from public housing and denial of public assistance. More on this in Chapter 2 of my book.)
Of all the legal and social changes of the late 1960's and 1970's, none is more significant than the end of "illegitimacy" as a legal category and the reduction in social stigma associated with nonmarital birth. Women now have the choice to bear children without a husband, with the knowledge that the law won't discriminate against those children. They also can choose an abortion...although I doubt Bristol Palin really had that choice, in spite of the fact that the Alaska legislature this year kept a bill requiring parental consent from passing. (You might want to donate to Planned Parenthood Alaska to help keep it that way.)
Still, it's no surprise that the daughter of a prominent abstinence-only conservative is pregnant. Abstinence-only sex education doesn't work. Meanwhile, we haven't heard a date for the wedding, so I'm thinking this marriage plan is, well, somewhat last minute. You see, if Bristol wanted to raise this baby on her own --like the teenage girls in Gloucester, MA -- this story would be playing completely differently.
Sunday, August 31, 2008
SAME-SEX MARRIAGE AND VISITING LOVED ONES IN THE HOSPITAL DO NOT BELONG IN THE SAME SENTENCE
By now we all know what Obama said about us in his acceptance speech, but here it is in total:
I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination.
Now I can't criticize the "live lives free of discrimination" part...amen to that. But as for hospital visitation, don't all hospital patients deserve visits from the people they love?? Don't all gay people deserve this...and isn't marriage a completely different issue?? By putting these two concepts in the same sentence, Obama has fallen into the rhetorical morass created by the marriage equality movement.
The rhetoric goes roughly like this...A lesbian is denied the ability to see her hospitalized partner; spouses are allowed to visit each other in the hospital; therefore lesbian (and gay) couples must be allowed to marry so they can visit each other in the hospital. So then Obama steps into this conversation, saying that we can't agree on marriage but we can agree that couples who can't marry should still be able to visit each other in the hospital.
But try this. Hospital accreditation standards include those who play a significant role in a patient's life, even if not legally related, within the definition of family. Neither gay nor straight couples should have to marry to visit each other in the hospital. Gay people without partners need assurance that those they love and consider family will be allowed to visit them in the hospital. Consider that LGBT people may be more likely than heterosexuals to move away from unsupportive families of origin and/or to more accepting cities or towns.
If we make any discussion of hospital visitation policies about same-sex couples, we are going to miss the vast numbers of unpartnered LGBT people who don't want their estranged parents given hospital access while their closest friends are kept out or who don't want to be left all alone because their families of origin live at a great distance and their families are choice are excluded.
In 2007, Virginia passed a law that requires hospitals to allow patients to choose their visitors. Gay and straight; coupled and not. That's the law Obama should support...along with a federal advance health care directive registry. He should also support LGBT equality..including in access to marriage...but not in the same sentence.
I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination.
Now I can't criticize the "live lives free of discrimination" part...amen to that. But as for hospital visitation, don't all hospital patients deserve visits from the people they love?? Don't all gay people deserve this...and isn't marriage a completely different issue?? By putting these two concepts in the same sentence, Obama has fallen into the rhetorical morass created by the marriage equality movement.
The rhetoric goes roughly like this...A lesbian is denied the ability to see her hospitalized partner; spouses are allowed to visit each other in the hospital; therefore lesbian (and gay) couples must be allowed to marry so they can visit each other in the hospital. So then Obama steps into this conversation, saying that we can't agree on marriage but we can agree that couples who can't marry should still be able to visit each other in the hospital.
But try this. Hospital accreditation standards include those who play a significant role in a patient's life, even if not legally related, within the definition of family. Neither gay nor straight couples should have to marry to visit each other in the hospital. Gay people without partners need assurance that those they love and consider family will be allowed to visit them in the hospital. Consider that LGBT people may be more likely than heterosexuals to move away from unsupportive families of origin and/or to more accepting cities or towns.
If we make any discussion of hospital visitation policies about same-sex couples, we are going to miss the vast numbers of unpartnered LGBT people who don't want their estranged parents given hospital access while their closest friends are kept out or who don't want to be left all alone because their families of origin live at a great distance and their families are choice are excluded.
In 2007, Virginia passed a law that requires hospitals to allow patients to choose their visitors. Gay and straight; coupled and not. That's the law Obama should support...along with a federal advance health care directive registry. He should also support LGBT equality..including in access to marriage...but not in the same sentence.
Wednesday, August 20, 2008
LESBIANS ENTITLED TO FERTILITY TREATMENT...BUT UNMARRIED WOMEN?
As I wrote in May, doctors in California hoped to escape liability for refusing to provide fertility treatment to Lupita Benitez by arguing that her unmarried status, rather than her sexual orientation, led to their denial. They also argued that they had a religious objection to treating her and that this was protected by the First Amendment guarantee of religious freedom. This week, the California Supreme Court issued its opinion.
The Court ruled unanimously that the doctors could not claim a First Amendment basis for denying fertility treatment to lesbians. State law made clear that businesses could not discriminate on the basis of sexual orientation, and the doctors were required to comply with that law. So far, so good. But at the time the denial of treatment took place, discrimination on the basis of marital status was not banned in California. So the court's ruling says that the doctors can still defend the Benitez lawsuit by arguing as a factual matter that they denied her treatment because she was single, not because she was a lesbian.
When asked whether she would treat a married lesbian, one of the defendant doctors said, "I don't know." But that's the wrong question, isn't it? Marital status shouldn't determined who has access to fertility treatment. That's the law now in California and should be the law everywhere.
The Court ruled unanimously that the doctors could not claim a First Amendment basis for denying fertility treatment to lesbians. State law made clear that businesses could not discriminate on the basis of sexual orientation, and the doctors were required to comply with that law. So far, so good. But at the time the denial of treatment took place, discrimination on the basis of marital status was not banned in California. So the court's ruling says that the doctors can still defend the Benitez lawsuit by arguing as a factual matter that they denied her treatment because she was single, not because she was a lesbian.
When asked whether she would treat a married lesbian, one of the defendant doctors said, "I don't know." But that's the wrong question, isn't it? Marital status shouldn't determined who has access to fertility treatment. That's the law now in California and should be the law everywhere.
Thursday, August 14, 2008
AN ARKANSAS INITIATIVE THAT MUST BE DEFEATED!
After a hiatus for my summer vacation, I'm back...and with some urgent news. Arkansas voters will have an initiative on their November ballot that, if it passes, will ban all unmarried couples from adopting children or becoming foster parents. That's right. An unmarried heterosexual couple will have to marry, and a same-sex couple will be completely boxed out. (The initiative makes clear that only marriages recognized in Arkansas -- those between one man and one woman -- count). Also, as the words of the initiative make clear, a person will be unable to adopt or foster a child as an individual if he or she is living with an unmarried partner of any sex! This initiative is based on the right-wing marriage movement ideology that blames all our social problems on the decline of life-long heterosexual marriage...ideology I critique in my book.
The coalition fighting this needs your help now! Please get involved with Arkansas Families First.
The coalition fighting this needs your help now! Please get involved with Arkansas Families First.
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