The Supreme Court will rule in a family law dispute this term, an unusual enough circumstance. This one is in federal court because of a federal statute -- the 1978 Indian Child Welfare Act. ICWA is an important statute, designed to reverse the shameful practice of removing Native American children from their families and placing them for adoption with White families. The most important fact to remember here is that Indian tribes have a type of sovereignty no other sub-group of our population possesses, and for good reason. We (the United States) did steal their land, and the little bit of sovereignty we allowed them through various treaties is all they have left of what was once theirs. One of the most important provisions of ICWA says that for children whose parents are domiciled on a reservation, the tribal courts, not state courts, have the authority to decide who adopts a child those parents place for adoption. That jurisdictional provision of ICWA is not at stake in this case.
Instead, the case is a conflict between the decision of the child's non-Indian birth mother, Christy Maldonado, to place her child for adoption with a couple, the Capobiancos, in South Carolina, and the subsequent claim of the biological father, Dusten Brown, a member of the Cherokee Nation who wants to raise the child himself. Every state has specific statutes designed to identify those unmarried fathers whose consent to an adoption is required. Without such statutes, precious time could pass without placing the child in a permanent home while agencies tried to track down anyone who might be the biological father, and men with nothing but a biological connection to the child could undo an adoption on that basis alone after a child was fully embedded within her adoptive family.
The critical fact for this case under South Carolina law is that Dusten did not live with Christy for the six months prior to the child being placed for adoption and did not support the child or pay for any expenses connected to Christy's pregnancy. If he had met one of those criteria his consent to the adoption would have been required. But he didn't. The US Supreme Court has to decide whether a biological father who is enrolled in an Indian tribe need not meet those requirements. ICWA does indeed define a parent by biology with no qualifications, except that it reads that "it does not include the unwed father where paternity has not been
acknowledged or established." Of course Dusten did acknowledge and establish his paternity, but not until the child was four months old and he realized the child had been placed for adoption. While Christy was pregnant, Dusten told her in a text message that he would surrender his parental rights rather than pay child support, but he says he thought he was surrendering his parental rights to her, which made sense to him since he was about to deploy for Iraq. He says he didn't realize the child was going to be adopted until he received papers to that effect when the child was four months old (and had been with the Capobiancos since birth), at which time he got a lawyer to fight the adoption and got the Cherokee Nation involved as well. He doesn't come off well for implying (or flat out stating) that he didn't want to pay child support, but that won't matter if South Carolina law is inapplicable to Indian fathers.
Here are the things I am keeping in mind about this case. Dusten is not challenging the South Carolina law. He is not trying to expand the constitutional rights a man has to raise a child based on biology alone. This is important. Lesbian couples often use known donors to have a child. State laws do vary on this (and in some places there are no laws and no relevant case law precedent), but Supreme Court cases establishing constitutional principles do make clear that biology by itself is not sufficient to create a constitutional right to raise a child. In an important Kansas case some years ago, the Kansas Supreme Court upheld the constitutionality of a state statute that a semen donor was not a legal parent absent an agreement in writing with the recipient to the contrary. There is no danger that the current case involving ICWA will produce a constitutional ruling that throws a decision like that into question.
On the other hand, the brief of some law professors I greatly admire, who are supporting the father, includes a sentence that "children deserve to grow up with their biological parents when it is possible and safe for them to do so." This is precisely the kind of thinking that leads courts to rule against nonbiological mothers and fathers who have raised children with a same-sex partner. It is also the kind of thinking that can accord a semen donor parental rights over the objection of a lesbian couple who were expecting to have the authority over their child's life. I suspect those lawyers support same-sex couples raising children. But when I see a sentence like that in support of the father I blanch.
Even outside the context of same-sex couples raising children, I think a woman who bears a child is entitled to maximum flexiblity in making plans for that child. She can, after all, have an abortion. If she chooses adoption instead, when she has reason to believe she won't get support from the child's biological father or when he's the kind of guy she is pretty sure will not be a good parent, she should be able to effectuate that plan. Every state gives an unmarried father the right to raise his biological child if he fulfills certain basic requirements. Dusten was still in the country when this child was born. He wasn't there. He thought his text message meant he was surrendering his rights to Christy. Well, he must have really meant he was walking away since he made no efforts to find out anything about the child after she was born. Christy wasn't hiding. Dusten doesn't allege that she was. There are cases of men who assert they want to raise their child, who make it clear to the pregnant woman that's what they want. Dusten isn't anywhere close to that category. The law in South Carolina gave him a fair shot at being a father and he blew it. His regrets about that shouldn't amount to a basis for disturbing an adoptive placement.
But, I keep in mind that tribal sovereignty is regularly under attack from the right. ICWA is sometimes characterized as racially discriminatory because it mandates a preference for adoptive placement with a tribal member or a member of another tribe before placement with a non-Indian. That characterization, however, overlooks the tribal sovereignty issue at the heart of ICWA. You can oppose restrictions on interracial adoption and still understand why the law can prefer placement of Indian children with Indian parents. In addition, a minority of courts have narrowed the scope of ICWA to find that it only applies to a child already living in an existing Indian family (which this child obviously was not). The adoptive parents in this case are asking the Supreme Court to interpret ICWA in that narrow way. That would be wrong.
When I ran the facts of this case by my (not a lawyer) partner, who has a percentage of Indian blood but is not, nor was her mother, an enrolled tribal member, she wanted to know whether the father was actually connected to his tribe. I realized that I had not flagged that as a relevant issue so I looked more closely at the facts in the South Carolina Supreme Court opinion. That opinion relates part of the home study done in the case and demonstrates the connections of the father's parents to tribal customs and cultural practies. That was enough for my partner. It satisfied her that placement with the father was really going to connect the child to her Cherokee heritage and that this isn't a situation where ICWA amounts to a "loophole" getting rights for a biological father who initially showed no interest in being a parent. News reports mention the father's miniscule proportion of Indian blood (and so the child has even less), but the Cherokee Nation says he is Cherokee and that has to suffice. Every tribe has its own definition of who is eligible for enrollment as a tribal member, and it is certainly not the place of anyone outside the tribe to question that.
There are other specific details of what was and wasn't done when this child was an infant concerning the tribe. For example, the child was born in Oklahoma and the adoptive parents (who were present for the birth) needed paperwork to take the child back to South Carolina with them. That paperwork did not identify the child as an Indian child. Had it, the tribe says it would have blocked removal of the child from the state. Also, the mother did report the father's Indian background but a check with the Cherokee Nation showed him not a tribal member. Problem is, his first name was spelled incorrectly and his date of birth was incorrect. Deliberate or accidental? I don't know. It does mean everyone acknowledges that rules governing Indian children had to be taken into account in the first instance.
But here is another fact that troubles me. I feel for the adoptive parents, who had been unable to have biological children. I'm an adoptive parent. They knew the father had texted his willingness to surrender parental rights and really didn't think he was going to be a barrier to the family they were creating with their daughter. But they found out the contrary when she was four months old. They did have the option of turning her over to Dusten at that point and chose not to. They made an open adoption arrangement with Christy. I wonder if they tried this with Dusten. Were they full of love for this child? Of course. Reluctant to put themselves through the pain of giving her up? Of course. Scared their dreams of a family with children would be dashed forever? Of course. But now the talk is how the South Carolina Supreme Court ruling took a 27-month-old child away from the only parents she had ever known. If that's what tips the equities towards the Capobiancos, aren't we encouraging other possible adoptive parents to keep litigating when they should actually minimize the heartbreak all around by returning the child to a biological parent who stands a good chance of winning?
Here it is, almost 1:30 pm on the day of the oral argument, which ended two hours ago. ScotusBLOG has just posted its recap of the argument. I can't find any news reports yet about the argument. What a constrast to last month's same-sex marriage cases. It may mean just that the public is less interested in Native Americans than in gay people, but I consider that a sad commentary. We aren't undoing the warfare and land grab that displaced Indians from their homes, but ICWA takes a shot at undoing the efforts to obliterate tribes by stealing their children. I take it very seriously. I hope the Court does also.
Tuesday, April 16, 2013
Friday, April 12, 2013
Two more big Supreme Court cases -- April 15th -- breast cancer patients vs. big business
This coming week sees two important cases in the Supreme Court. The one about parents I'll get to in my next post. The first one, set for argument Monday, is not about family law at all. But if you are reading this and you are over 40 you almost certainly know a woman who has been diagnosed with breast cancer. If you're over 60, you almost certainly know someone who has died of breast cancer, and it may seem to you -- as it does to me -- that every month someone else I know is diagnosed. One in nine women. That is a lot of cancer.
The case before the Court, Association for Molecular Pathology v. Myriad Genetics, Inc, is a patent case. It's about whether Myriad can properly hold a patent on the BRCA genes that determine much about a woman's risk of breast cancer (and to a lesser extent ovarian cancer). They have that patent now, as a result of which the test for the gene costs thousands of dollars (and often is not covered by insurance). Scotusblog explains the legal issues in (relatively) plain English for us non-scientists here. Basically, the argument is whether a gene is natural, in which case it cannot be patented. If it seems too obvious for words that our genes are natural and not human invention, well, the success of Myriad Genetics so far is more evidence of the triumph of capitalism over public good.
Breast Cancer Action, one of the plaintiffs in the lawsuit challenging Myriad's patent, has much information about it on its website. Here is a conversation with one of its lawyers. Here is a description by BCA's executive director of the organization's involvement in the case. Here is BCA's testimony at a hearing before the US Patent and Trademark Office. BCA was one of the original plaintiifs, unafraid to take on Big Pharma in its pursuit to put the needs of breast cancer patients first (something not all breast cancer groups do.) Its website also contains the statements of many women about how Myriad's patent deprives them of information they need for their own health.
If you will be in DC on Monday, BCA is organizing a rally at the Supreme Court. Join them. Learn more, and help support all the work of BCA, at an event Monday evening.
The case before the Court, Association for Molecular Pathology v. Myriad Genetics, Inc, is a patent case. It's about whether Myriad can properly hold a patent on the BRCA genes that determine much about a woman's risk of breast cancer (and to a lesser extent ovarian cancer). They have that patent now, as a result of which the test for the gene costs thousands of dollars (and often is not covered by insurance). Scotusblog explains the legal issues in (relatively) plain English for us non-scientists here. Basically, the argument is whether a gene is natural, in which case it cannot be patented. If it seems too obvious for words that our genes are natural and not human invention, well, the success of Myriad Genetics so far is more evidence of the triumph of capitalism over public good.
Breast Cancer Action, one of the plaintiffs in the lawsuit challenging Myriad's patent, has much information about it on its website. Here is a conversation with one of its lawyers. Here is a description by BCA's executive director of the organization's involvement in the case. Here is BCA's testimony at a hearing before the US Patent and Trademark Office. BCA was one of the original plaintiifs, unafraid to take on Big Pharma in its pursuit to put the needs of breast cancer patients first (something not all breast cancer groups do.) Its website also contains the statements of many women about how Myriad's patent deprives them of information they need for their own health.
If you will be in DC on Monday, BCA is organizing a rally at the Supreme Court. Join them. Learn more, and help support all the work of BCA, at an event Monday evening.
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.
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.
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.
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 legislation...you 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.
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.
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.
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