I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us. This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage. I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here. But the trial began yesterday, and it is time to sit up and take notice.
I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans. (A Texas judge did so just today). But there is a big difference. The Michigan judge ordered a trial, a factfinding process after which he will rule. The only other recent case that went to a full trial was the "Prop 8" Perry case in California. But DeBoer is significantly different from Perry. The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)
The state of Michigan is going a different route. It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.
Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago. Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time. None of those studied had been raised from birth by a same-sex couple. Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus. (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children. Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.
Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan. She covered yesterday's full day of trial in 11 updates. Today was a short day, and she provided 2 updates. She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness. Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.
If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption. I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal. I'll be following Jane Bassett's blog every day until the trial ends.
Showing posts sorted by relevance for query michigan. Sort by date Show all posts
Showing posts sorted by relevance for query michigan. Sort by date Show all posts
Wednesday, February 26, 2014
Friday, November 7, 2014
It's the children, stupid! ...Or why Ryanne, Nolan, and Jacob still don't have two legal parents
The Sixth Circuit Court of Appeals has upheld the bans on same-sex marriage in four states: Michigan, Ohio, Kentucky, and Tennessee. I hope the Supreme Court hears the case (or the Sixth Circuit, en banc) and reverses, but I have another fish to fry here.
I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose. April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising. In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions. Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married. It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children. And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry. (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents. This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.
Every adoption requires a judge's finding that the adoption is in the child's best interests. All DeBoer and Rowse wanted was for a judge to examine their family and make that determination. Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption. Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did. They filed a challenge under the US Constitution in federal district court in Michigan. In this post, I document what went wrong when the judge decided the case was really about Michigan's marriage ban. His reasoning was that if the couple could marry, then they could do stepparent adoptions.
But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children. Here is what the trial judge said in October 2013, in a footnote:
Consider this. If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down. Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption. But then the lawyers would have appealed that issue as a cross-appeal to the state's appeal of the ruling striking down the marriage ban. THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.
I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition. Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process. In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.
The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption. The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory. When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests. That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children. But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.
I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose. April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising. In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions. Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married. It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children. And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry. (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents. This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.
Every adoption requires a judge's finding that the adoption is in the child's best interests. All DeBoer and Rowse wanted was for a judge to examine their family and make that determination. Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption. Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did. They filed a challenge under the US Constitution in federal district court in Michigan. In this post, I document what went wrong when the judge decided the case was really about Michigan's marriage ban. His reasoning was that if the couple could marry, then they could do stepparent adoptions.
But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children. Here is what the trial judge said in October 2013, in a footnote:
The Court expresses no view on the constitutionality of [the statute that] limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants' enforcement and defense of [the adoption statute]. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the [state's ban on same-sex marriage]. Thus, the relief plaintiffs request hinges on the constitutional validity of [that ban].The case then proceeded to trial on the marriage issue (which I wrote about here and here), culminating in the favorable ruling that the Sixth Circuit reversed yesterday. The trial judge never did squarely address the second-parent adoption claim on its own, and the lawyers for DeBoer and Rowse did not make him. They should have. The judge was factually wrong when he said that: "Plaintiffs may not jointly adopt their children because they are not married." They could not jointly adopt because Michigan does not allow second-parent adoption.
Consider this. If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down. Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption. But then the lawyers would have appealed that issue as a cross-appeal to the state's appeal of the ruling striking down the marriage ban. THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.
I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition. Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process. In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.
The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption. The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory. When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests. That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children. But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.
Tuesday, February 1, 2011
35,000 Michigan state employees to gain "plus one" health benefits
Almost three years ago, the Michigan Supreme Court ruled that granting health benefits to same-sex domestic partners of government employees was a violation of the state's "defense of marriage" constitutional amendment approved by the voters in 2004.
Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.
The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.
I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.
I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.
As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.
Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year.
The University of Michigan responded to the state supreme court's ruling by extending benefits to Otherwise Qualified Adults (OQA), anyone who has lived with the employee for more than six months, not as an employee or a tenant. The individual also cannot be a relative. Children of an OQA are also eligible for coverage. I have not seen the exact language approved by the Commission, so I don't know if it also excludes relatives.
I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.
I have long criticized domestic partner benefits for same-sex couples only. Now different-sex couples in Michigan will be equally eligible for benefits. It's taken a long time, but it looks like Michigan will have a better policy than the one struck down by the court.
As more states grant formal recognition to same-sex couples, through marriage, civil union, or domestic partnership, the danger exists (and has been realized in many places) that only those who formalize their relationships will be eligible for employee health benefits for their partners. It will, in other words, make marriage mandatory. The LGBT movement should not be happy with such a result. The fight for marriage equality is supposed to be for the choice whether to marry, but there's no choice if it's the difference between health insurance for your partner or no health insurance for your partner. My university doesn't require that choice. Now Michigan doesn't either. Lambda Legal is fighting for benefits for same-sex couples only in Arizona, even though a 2009 law stripped both same-sex and different-sex couples of those benefits. The case that will be argued in the Ninth Circuit on Valentine's Day. I think Lambda is making a mistake, and I'll be writing about that more next week.
Saturday, July 10, 2010
Michigan Court of Appeals blocks nonbio mom's efforts (updated)
Just a few months ago, I wrote about the Michigan trial court ruling in favor of nonbio mom Renee Harmon's efforts to maintain a relationship with her three children. Well, this week the Michigan Court of Appeals reversed that trial judge in a "peremptory order," without even receiving briefs on the issue from the lawyers. The Court ruled that only a biological parent, adoptive parent, or husband of a biological mother can file for custody under Michigan law.
The order cites as support a case in which a man who believed himself to be and held himself out as the father of two children, but was not married to the children's mother, was denied the ability to assert paternity under an "equitable parent" theory. The Michigan Supreme Court held that the doctrine of "equitable parent" would apply within marriage only. By extension, therefore, the doctrine could not apply to Renee Harmon.
We've seen states in which caselaw acknowledging nonmarital, nonbiological fathers is extended to nonbiological mothers. The California case law that establishes parentage for nonbio moms, for example, built on a previous case establishing the parentage of a nonbiological, but nonmarital, father who received a child into his home and held the child out as his own. But Michigan makes marriage the dividing line, even though this cannot make any difference to a child who knows someone as a parent all his/her life. It's wrong for a child with a nonbiological father, and equally wrong for Renee Harmon's children.
The order cites as support a case in which a man who believed himself to be and held himself out as the father of two children, but was not married to the children's mother, was denied the ability to assert paternity under an "equitable parent" theory. The Michigan Supreme Court held that the doctrine of "equitable parent" would apply within marriage only. By extension, therefore, the doctrine could not apply to Renee Harmon.
We've seen states in which caselaw acknowledging nonmarital, nonbiological fathers is extended to nonbiological mothers. The California case law that establishes parentage for nonbio moms, for example, built on a previous case establishing the parentage of a nonbiological, but nonmarital, father who received a child into his home and held the child out as his own. But Michigan makes marriage the dividing line, even though this cannot make any difference to a child who knows someone as a parent all his/her life. It's wrong for a child with a nonbiological father, and equally wrong for Renee Harmon's children.
Tuesday, March 9, 2010
Michigan court to weigh in on right of nonbio mom to see her children
It's still the same old story. This time in Michigan. Nonbio mom Renee Harmon has been prevented from seeing her 10-year-old daughter and 7-year-old twin sons by their bio mom Tammy Davis. Harmon and Davis were partners for 19 years until their split up in 2008. According to one news source, Harmon saw the children on a regular basis after the couple split up, but Davis then stopped the contact. Last September, when Harmon entered the home she had once shared with Davis and the children without Davis's permission, Davis got a restraining order against her. Harmon talks about her family in this news clip, complete with pictures of the happy couple and their children at various ages.
Harmon has filed a court action seeking joint custody of the children. There's no appellate court ruling on this issue in Michigan, but more than 20 years ago the court there recognized the doctrine of "equitable parenthood" to confirm the parentage of a husband who was not the biological father of the four-year-old child born to his wife. Unfortunately, the court later refused to extend that doctrine to a man who thought he was the father of two children born to his nonmarital female partner.
In 2008, the Michigan Supreme Court read the state's Defense of Marriage constitutional amendment very broadly as banning employee domestic partner benefits. (Here's my post about it.) And of course all the press coverage about the Harmon case notes that Michigan does not recognize same-sex marriage. But the courts need to separate marriage from legal parentage. A child's bond to a parent does not turn on whether that parent is married to the child's other parent.
In the 1970s and 80s, if custody rights for lesbian mothers defending against their former husbands had turned on whether the court was willing to validate the mother's new same-sex relationship, then many of those mothers would have lost custody of their children. They won when they could convince courts to rule on the child's best interests and not on the mother's lesbian relationship. Fast forward to the 21st century and we need courts to rule on the parent-child relationships created in a family, not on the perception that a ruling to preserve an existing parent-child relationship is a vote for same-sex marriage. Let's hope the Michigan courts can get it right.
Harmon has filed a court action seeking joint custody of the children. There's no appellate court ruling on this issue in Michigan, but more than 20 years ago the court there recognized the doctrine of "equitable parenthood" to confirm the parentage of a husband who was not the biological father of the four-year-old child born to his wife. Unfortunately, the court later refused to extend that doctrine to a man who thought he was the father of two children born to his nonmarital female partner.
In 2008, the Michigan Supreme Court read the state's Defense of Marriage constitutional amendment very broadly as banning employee domestic partner benefits. (Here's my post about it.) And of course all the press coverage about the Harmon case notes that Michigan does not recognize same-sex marriage. But the courts need to separate marriage from legal parentage. A child's bond to a parent does not turn on whether that parent is married to the child's other parent.
In the 1970s and 80s, if custody rights for lesbian mothers defending against their former husbands had turned on whether the court was willing to validate the mother's new same-sex relationship, then many of those mothers would have lost custody of their children. They won when they could convince courts to rule on the child's best interests and not on the mother's lesbian relationship. Fast forward to the 21st century and we need courts to rule on the parent-child relationships created in a family, not on the perception that a ruling to preserve an existing parent-child relationship is a vote for same-sex marriage. Let's hope the Michigan courts can get it right.
Wednesday, October 16, 2013
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.
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.
Wednesday, April 21, 2010
Michigan court finds nonbio mom a parent if evidence supports agreement with bio mom
Last month I blogged about Renee Harmon's efforts to maintain her relationship with the 10 year old girl and 7 year old twin boys born during her 19 year relationship with their biological mother, Tammy Davis. Well last week, Michigan Family Court Judge Kathleen McCarthy ruled that Renee will have the opportunity to prove that "an agreement was made to bring these children into this relationship to be jointly raised by these parties." If she can show this by clear and convincing evidence, the court will hold a hearing on custody based on the children's best interests. (To read the court ruling, click on this news story and then on the PDF link to the right of the story.)
Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.
The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.
The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.
According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.
Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:
Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.
Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.
The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.
The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.
According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.
Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:
There is now a significant body of evidence documenting that ... what's important for children's development and adjustment is the quality of the parenting that they obtained from the people who are raising them, and that the gender is not one of those important dimensions.
Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.
Tuesday, November 15, 2011
Single woman may sue Michigan fertility clinic for denial of IVF services
The Michigan Court of Appeals has released for publication its September opinion in Moon v. Michigan Reproductive and IVF Center. In that case, Allison Moon sued a fertility clinic because it would not provide services to her as a single woman. Reversing the trial court, the Court of Appeals ruled that the clinic was subject to the state's anti-discrimination law and could not avoid litigation on the basis of a doctor's alleged right to choose his patients.
Under Michigan law,
The defendant did not dispute that it was a public accommodation, but it did argue that the law requires a doctor-patient relationship to be consensual and that therefore the doctor could decline to treat anyone. The court ruled that the doctor can decline to treat a patient, but not on one of the grounds identified in the anti-discrimination statute. "A contrary interpretation," the court held, "would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian."
The case is extraordinary for a series of emails between Moon and the doctor at the clinic in which he explained his reason for refusing to treat her. His claim was that he would not treat her because he feared that he could be held liable for child support for the resulting child. Although he claimed that a doctor in Massachusetts had been held liable for child support in such a circumstance, no one I know has ever heard of such a case. This is not a case like the Benitez case in California a few years ago, in which the doctor claimed a religious freedom right to discriminate on the basis of marital status.
Under Michigan law,
the opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.A place of public accommodation includes a "health facility" whose services are "available to the public." Such a facility cannot discriminate on the basis of marital status.
The defendant did not dispute that it was a public accommodation, but it did argue that the law requires a doctor-patient relationship to be consensual and that therefore the doctor could decline to treat anyone. The court ruled that the doctor can decline to treat a patient, but not on one of the grounds identified in the anti-discrimination statute. "A contrary interpretation," the court held, "would allow a doctor to follow his personal prejudices or biases and deny treatment to a patient merely because he is African-American, Jewish, or Italian."
The case is extraordinary for a series of emails between Moon and the doctor at the clinic in which he explained his reason for refusing to treat her. His claim was that he would not treat her because he feared that he could be held liable for child support for the resulting child. Although he claimed that a doctor in Massachusetts had been held liable for child support in such a circumstance, no one I know has ever heard of such a case. This is not a case like the Benitez case in California a few years ago, in which the doctor claimed a religious freedom right to discriminate on the basis of marital status.
Wednesday, May 7, 2008
MICHIGAN SUPREME COURT NIXES DOMESTIC PARTNER BENEFITS
The Michigan Supreme Court today upheld a lower court ruling that cities, counties, state universities, and other public employers cannot offer domestic partner benefits to their employees. The Court ruled that such benefits violate the state's constitutional amendment that reads: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Gay rights groups, labor groups, and everyone concerned with protecting diverse families now need to advocate employee benefit schemes that allow employees to name any one person with whom they live in a economically interdependent relationship and that person's children as covered on their employee benefits. This is what Salt Lake City, Utah does in Ordinance Number 2.52.100. Their plan has already been upheld against a challenge that it violated the state's laws "defending" marriage. That approach is actually better from a family policy perspective! It means that two people who are not romantic partners but decide to raise their children together, or two friends who pool their resources, can also qualify...as can unmarried straight and gay partners. Some Michigan entities have started this type of criteria, but they all have problems --- requiring living together for too long before covering or excluding different-sex unmarried partners or relatives. I explore these issues at length in chapter eight of my book. Oh...and the people of Michigan need to repeal their offensive constitutional amendment!
Wednesday, March 16, 2011
Health benefits for family of Michigan state workers in doubt
Last month I lauded the recently granted "plus one" benefit scheme implemented for 35,000 Michigan state employees. Well, those benefits are in grave danger. The state senate has already overturned the decision to award these benefits. My thanks to the Alternatives to Marriage Project for alerting me to this grave situation. ATMP is urging everyone to contact the Michigan House before it's too late. No one is surprised that Gov. Rick Snyder takes a decidedly different approach than that of his predecessor, Jennifer Granholm. Let's hope he can be stopped.
Wednesday, October 13, 2010
Wyoming Supreme Court recognizes unmarried partners property rights
Jerald Hofstad and Cathryn Christie lived together from 1996 to 2007, with some breaks. They had two children and also raised five children from Jerald's previous relationship. Their case wound up in the Wyoming courts over a dispute concerning the size of Cathryn's share of the home they owned together. The home was purchased in 2005, using the proceeds from the sale of a home Jerald owned in his own name only. Jerald asked the court to value his share based on his vastly unequal financial contribution to the home, but the trial judge gave Cathryn half the value of the home. In an opinion handed down last week, the Wyoming Supreme Court upheld the 50-50 split.
Wyoming law allocates shares in a home held as "tenants in common" based on contribution to the home's purchase price. But that holds only if there is no "family relationship" between the co-owners. Evidence that one owner meant to give an equal share to the other, in spite of unequal contribution to the purchase price, can also create an equal share.
Jerald argued that, as an unmarried couple, he and Cathryn had no "family relationship." The court disagreed, based largely on the children they had in common. The court said that the couple's twin sons "bind the four of them inexorably and forever, resulting in a family relationship." [Emphasis in original]. Beyond that, the court also said that Jerald told Cathryn she would be an equal owner in the context of their reconciliation, and that indicated his intent to give Cathryn an equal share of the home.
I find it heartening that this ruling comes from Wyoming. I would go further and find a family relationship even without children, based on their years of living together in an intimate relationship. But I am reminded of a ruling over a decade ago in a wrongful death action brought by Laura Solomon when her partner Victoria Lane died in a tragic car accident. The District of Columbia trial judge ruled that Laura was Victoria's "next of kin" in large part because they had completed second parent adoptions and were both the legal parents of the two children they were raising. (The case ultimately settled, so this legal issue never went up on appeal).
Right after I read the court's opinion, I looked up Wyoming's "Defense of Marriage Act." Wyoming law says that marriage is between a man and a woman and nothing more. In other words, it is not a "super-DOMA," containing the kind of language that led to disapproval of employee domestic partner benefits in Michigan. The Michigan Supreme Court ruled that domestic partner benefits violated the part of the state's DOMA that prohibited recognition of a "legal status identical or substantially similar to that of marriage for unmarried individuals." Now I think the Wyoming court could have come out the same way even with a super-DOMA, since "family" is not the same as "marriage." But I also fear that at least some judges would go the way of Michigan and rule that considering an unmarried couple family would be just what the state's DOMA was trying to avoid.
And I also have to say that no state gets it as right as Washington does. In Washington property acquired by either cohabiting partner can be divided as community property when the relationship ends. The Wyoming opinion doesn't tell us how much of Jerald's assets Cathryn never had a claim to because the bright line of marriage kept her from claiming any of "Jerald's" savings, investments, or other assets. Had the home been titled in Jerald's name alone she would have been out of luck. Washington state is a great model. I wish other states would follow its lead.
Wyoming law allocates shares in a home held as "tenants in common" based on contribution to the home's purchase price. But that holds only if there is no "family relationship" between the co-owners. Evidence that one owner meant to give an equal share to the other, in spite of unequal contribution to the purchase price, can also create an equal share.
Jerald argued that, as an unmarried couple, he and Cathryn had no "family relationship." The court disagreed, based largely on the children they had in common. The court said that the couple's twin sons "bind the four of them inexorably and forever, resulting in a family relationship." [Emphasis in original]. Beyond that, the court also said that Jerald told Cathryn she would be an equal owner in the context of their reconciliation, and that indicated his intent to give Cathryn an equal share of the home.
I find it heartening that this ruling comes from Wyoming. I would go further and find a family relationship even without children, based on their years of living together in an intimate relationship. But I am reminded of a ruling over a decade ago in a wrongful death action brought by Laura Solomon when her partner Victoria Lane died in a tragic car accident. The District of Columbia trial judge ruled that Laura was Victoria's "next of kin" in large part because they had completed second parent adoptions and were both the legal parents of the two children they were raising. (The case ultimately settled, so this legal issue never went up on appeal).
Right after I read the court's opinion, I looked up Wyoming's "Defense of Marriage Act." Wyoming law says that marriage is between a man and a woman and nothing more. In other words, it is not a "super-DOMA," containing the kind of language that led to disapproval of employee domestic partner benefits in Michigan. The Michigan Supreme Court ruled that domestic partner benefits violated the part of the state's DOMA that prohibited recognition of a "legal status identical or substantially similar to that of marriage for unmarried individuals." Now I think the Wyoming court could have come out the same way even with a super-DOMA, since "family" is not the same as "marriage." But I also fear that at least some judges would go the way of Michigan and rule that considering an unmarried couple family would be just what the state's DOMA was trying to avoid.
And I also have to say that no state gets it as right as Washington does. In Washington property acquired by either cohabiting partner can be divided as community property when the relationship ends. The Wyoming opinion doesn't tell us how much of Jerald's assets Cathryn never had a claim to because the bright line of marriage kept her from claiming any of "Jerald's" savings, investments, or other assets. Had the home been titled in Jerald's name alone she would have been out of luck. Washington state is a great model. I wish other states would follow its lead.
Monday, July 6, 2009
Should Wisconsin have a more inclusive partner registry?
Wisconsin made history last week with the passage of its domestic partner registry because it is the first state with a "super DOMA" to take such a step. A word about "super DOMAs." These are the constitutional amendments passed by states that reject not only marriage for same-sex couples but legal protections for or recognition of unmarried couples of any sexual orientation. Because of such a DOMA, the Michigan Supreme Court ruled last year that its public employers (like the University of Michigan) could not provide domestic partner benefits.
Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.
The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.
But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).
In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.
So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.
My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?
When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.
And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.
Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.
The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.
But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).
In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.
So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.
My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?
When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.
And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.
Tuesday, March 4, 2014
Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer
THIS I find unusual. The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association. I can't remember ever seeing anything like that!
As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates. Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.
To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent. He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent. He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children. I just cannot see how his testimony helps the state. He is certainly saying that children do best with their married biological parents. He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it. Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.
As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage. Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational. A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed. And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.
If you want to stay tuned, just check in a few times a day with the websites above. And thanks to the writers for making it possible for the rest of us to get these details.
As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates. Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.
To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent. He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent. He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children. I just cannot see how his testimony helps the state. He is certainly saying that children do best with their married biological parents. He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it. Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.
As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage. Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational. A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed. And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.
If you want to stay tuned, just check in a few times a day with the websites above. And thanks to the writers for making it possible for the rest of us to get these details.
Wednesday, March 6, 2013
Second parent adoption -- in the European Court of Human Rights, the Supreme Court of Puerto Rico, and federal district courts in Michigan and North Carolina
Adoption should be about the best interests of the children involved, not the marital status, gender, or sexual orientation of the parents. A number of recent rulings and pending cases show how wrong courts can be when they stray from this basic principle.
I wrote extensively about X. and others v. Austria, when it was argued last fall in the European Court of Human Rights. Austria allows a second-parent adoption by a mother's male, unmarried partner, but not by a mother's female partner. Last month, the ECHR ruled in favor of the plaintiffs. The Court found that it was unlawful discrimination on the basis of sexual orientation. This is the good news.
The bad news is the ECHR's previous ruling against the lesbian couple in Gas and DuBois v. France. France does not allow any unmarried partner to adopt. Gas and DuBois were unable to complete a second parent adoption because they were not married; an unmarried different-sex couple would also be unable to do a second-parent adoption in France. This is because, like some American states, the adoption by the nonbiological mother or father would automatically cut off the rights of the biological mother, unless the couple was married. The ECHR said that this was not discrimination on the basis of sexual orientation because the rule applied to same-sex and different-sex couples. The ECHR further said, essentially, that marriage is special and there is no discrimination if a country treats married couples differently from unmarried couples. In X and others v. Austria, the ECHR reiterated that a country need not allow any unmarried partner to adopt.
Last month, the Puerto Rico Supreme Court ruled that it was not unconstitutional to deny a second parent adoption to a lesbian couple. News reports leave it at that, but I discovered today, reading an English translation of the opinion, that Puerto Rico does allow a man who is not married to a mother to adopt her child without terminating her parental rights. Specifically, the statute says that a single parent's rights are not terminated by an adoption of the child by someone of a different sex. The court said this was not sex discrimination because it applies equally to men and women. In other words, a man would not be able to adopt a child of his male partner. (Really.) With the moral force of the ECHR ruling in X and others v. Austria, and the powerful anti-discrimination norm articulated by the Inter-American Court of Human Rights last year in Atala v. Chile, this case should go next to the Inter-American Commission on Human Rights (the first step to the Court). The mothers' lawyers have filed for reconsideration. Perhaps they will head to the Inter-American Commission next.
Finally, the conflation of adoption and marriage is showing up tomorrow in Detroit when Federal District Court Judge Bernard Friedman hears argument in the case of April DeBoer and Jayne Rowse, who last year challenged the constitutionality of denying them the ability to complete second-parent adoptions of their three children in Michigan. At an initial hearing on the case last year, Judge Friedman suggested the underlying problem was the state's ban on same-sex marriage and invited the couple to challenge that ban, which they did. The state's motion to dismiss will be heard tomorrow.
But the problem is not the marriage ban. Adoptions are evaluated individually based on the best interests of the children. Requiring a couple to marry in order to both be parents of a child they are raising together is bad law and bad policy. If a child has two functional parents, nothing should stand in the way of a court finding that they can both be legal parents through adoption. When the highest court in New York approved second parent adoptions close to two decades ago, the challengers were both a lesbian couple and an unmarried different-sex couple. Lambda Legal reprsented both couples. Judge Friedman should not have turned the case into a case about marriage. And the couple and their lawyer should have insisted that is not what it's about. (In contrast, the ACLU, in Fisher-Borne v. Smith, is challenging the constitutionality of North Carolina's ban on second-parent adoption as a matter rightly distinct from the state's ban on same-sex marriage.)
I wrote extensively about X. and others v. Austria, when it was argued last fall in the European Court of Human Rights. Austria allows a second-parent adoption by a mother's male, unmarried partner, but not by a mother's female partner. Last month, the ECHR ruled in favor of the plaintiffs. The Court found that it was unlawful discrimination on the basis of sexual orientation. This is the good news.
The bad news is the ECHR's previous ruling against the lesbian couple in Gas and DuBois v. France. France does not allow any unmarried partner to adopt. Gas and DuBois were unable to complete a second parent adoption because they were not married; an unmarried different-sex couple would also be unable to do a second-parent adoption in France. This is because, like some American states, the adoption by the nonbiological mother or father would automatically cut off the rights of the biological mother, unless the couple was married. The ECHR said that this was not discrimination on the basis of sexual orientation because the rule applied to same-sex and different-sex couples. The ECHR further said, essentially, that marriage is special and there is no discrimination if a country treats married couples differently from unmarried couples. In X and others v. Austria, the ECHR reiterated that a country need not allow any unmarried partner to adopt.
Last month, the Puerto Rico Supreme Court ruled that it was not unconstitutional to deny a second parent adoption to a lesbian couple. News reports leave it at that, but I discovered today, reading an English translation of the opinion, that Puerto Rico does allow a man who is not married to a mother to adopt her child without terminating her parental rights. Specifically, the statute says that a single parent's rights are not terminated by an adoption of the child by someone of a different sex. The court said this was not sex discrimination because it applies equally to men and women. In other words, a man would not be able to adopt a child of his male partner. (Really.) With the moral force of the ECHR ruling in X and others v. Austria, and the powerful anti-discrimination norm articulated by the Inter-American Court of Human Rights last year in Atala v. Chile, this case should go next to the Inter-American Commission on Human Rights (the first step to the Court). The mothers' lawyers have filed for reconsideration. Perhaps they will head to the Inter-American Commission next.
Finally, the conflation of adoption and marriage is showing up tomorrow in Detroit when Federal District Court Judge Bernard Friedman hears argument in the case of April DeBoer and Jayne Rowse, who last year challenged the constitutionality of denying them the ability to complete second-parent adoptions of their three children in Michigan. At an initial hearing on the case last year, Judge Friedman suggested the underlying problem was the state's ban on same-sex marriage and invited the couple to challenge that ban, which they did. The state's motion to dismiss will be heard tomorrow.
But the problem is not the marriage ban. Adoptions are evaluated individually based on the best interests of the children. Requiring a couple to marry in order to both be parents of a child they are raising together is bad law and bad policy. If a child has two functional parents, nothing should stand in the way of a court finding that they can both be legal parents through adoption. When the highest court in New York approved second parent adoptions close to two decades ago, the challengers were both a lesbian couple and an unmarried different-sex couple. Lambda Legal reprsented both couples. Judge Friedman should not have turned the case into a case about marriage. And the couple and their lawyer should have insisted that is not what it's about. (In contrast, the ACLU, in Fisher-Borne v. Smith, is challenging the constitutionality of North Carolina's ban on second-parent adoption as a matter rightly distinct from the state's ban on same-sex marriage.)
Wednesday, April 28, 2010
Non-bio dad win in Colorado bodes well for non-bio moms
A Colorado Appeals Court ruled earlier this month that a man with a six-year father-child relationship was the child's parent for all legal purposes, including joint legal custody and visitation. Although it's not obvious that such a case would be a win for the children of lesbian couples, in fact the basis for the court's decision is applicable by analogy to the situation in which a non-bio lesbian mom raises a child with the child's bio mom.
Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.
The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.
This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.
Nicholas Rueda and Lavern Davis had been romantic partners. They separated. Lavern gave birth to a daughter, A.D., in 2001. Eleven months later, Davis and Rueda reconciled, and they lived together as a family until 2007. For the next year, A.D. spent several nights a week with Rueda. Davis discontinued the relationship in February 2008, and weeks later Rueda filed a parentage action. Davis conceded that Rueda "received A.D. into his home and openly held her out as his natural child." This made him a presumptive father under Colorado law.
The mother, Davis, argued that because Colorado defined the parent-child relationship as the legal relationship between a child and his/her "natural or adoptive" parents, that Rueda was not a parent because he was not a biological or adoptive parent. The court declined to interpret the statute in that manner since the "holding out" parentage presumption does not require a biological tie. The court explicitly cited a California Supreme Court ruling upholding parentage for a nonbio dad who raised the child with the child's biological mother; that case, in turn, provided support for the California Supreme Court's later ruling that the lesbian partner of a biological mom is also a child's parent if she takes the child into her home and holds the child out as her own. Hence my optimism that after this ruling Colorado courts will recognize dual parentage for a child raised by a same-sex couple.
This month the Michigan trial court ruling in favor of a non-bio lesbian mom also declined to interpret "natural" parent as requiring a biological tie. When people refer to the husband of a woman who gives birth as a "natural" parent they don't actually know that he is the child's biological parent. Like every word in a statute, "natural parent" has a legal definition. If a statute does not make biology a necessary component of "natural" parentage, then a court is free to consider other factors. And when a statute creates parentage for a person who receives the child into his home and holds the child out as his own, that can certainly be a woman as well as a man.
Tuesday, June 21, 2011
Wisconsin trial court upholds domestic partner registry
Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.
Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.
Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.
Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.
Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.
Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.
Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.
Monday, November 29, 2010
Conference to examine the "New Illegitimacy"
On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."
The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.
I sent the following call for papers to numerous family law academics:
It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.
Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). Massachusetts, the first state to permit same-sex couples to marry, will recognize the spouse – male or female -- of a woman who conceives through donor insemination as a parent. If the couple is not married, however, the child has only one parent. New York also recognizes a nonbiological mother as a legal parent only if she is married to, or in a civil union/domestic partnership with, the child’s biological mother. In Iowa, the state has yet to recognize that married lesbians are both the parents of a child born to one of them, but even when it does there will be no recognition that a child whose mothers are unmarried has two parents. No court has yet extended to the children of same-sex couples the well-established principle that the law should not discriminate against children born outside marriage.
Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.
These developments are taking place in the context of a broader dispute over family structure. Those who argue that children achieve optimal outcomes only when raised by their married biological parents urge legal principles disfavoring all other family forms. Explicitly or by implication, they disparage adoptive families, single mothers and fathers, families formed through assisted reproduction, kinship caregiving, children with more than two functional parents, and numerous other households in which children grow and thrive. Rather than advocate law reform that values all children in all families, they seek to privilege “legitimate” children in a fashion that mainstream family law rejected decades ago.
The American University Journal of Gender, Social Policy & the Law and the National Center for Lesbian Rights are co-sponsoring a conference addressing the issues raised by recent developments privileging the children of married parents. With some states now dividing the children of same-sex parents into those who are “legitimate” and those who are “illegitimate,” it is critical that law reform efforts on behalf of gay and lesbian families forcefully articulate that this approach harms children and furthers no proper public purpose. The conference planners seek papers on this conference theme.
While this debate arises from controversy over the status of children in the various family forms that lesbians, gay men, and transgender people are creating, we strongly encourage papers that tie in the needs of other children facing the stigma of “illegitimacy” because their family does not fit the mold of one biological mother married to one biological father.
Happily, I received far more interest in this topic than I imagined, and there will be a terrific line-up of law professors presenting papers. Confirmed participants include: Susan Appleton (Washington U.), Nicholas Bala (Queens University - Canada), Carlos Ball (Rutgers-Newark), Cynthia Bowman (Cornell), Sacha Coupet (Loyola-Chicago), Ariela Dubler (Columbia), Katherine Franke (Columbia), Joanna Grossman (Hofstra), Leslie Harris (Oregon), Melanie Jacobs (Michigan State), Solangel Maldonado (Seton Hall), Serena Mayeri (U. Penn), Melissa Murray (Berkeley), Julie Shapiro (Seattle), Catherine Smith (Denver), Dean Spade (Seattle), Richard Storrow (CUNY-Queens), and Tanya Washington (Georgia State).
If you are interested in this topic, please plan to attend the conference. There is no registration fee (we ask you to register so we know how many mouths we'll be feeding!).
The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.
I sent the following call for papers to numerous family law academics:
It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.
Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). Massachusetts, the first state to permit same-sex couples to marry, will recognize the spouse – male or female -- of a woman who conceives through donor insemination as a parent. If the couple is not married, however, the child has only one parent. New York also recognizes a nonbiological mother as a legal parent only if she is married to, or in a civil union/domestic partnership with, the child’s biological mother. In Iowa, the state has yet to recognize that married lesbians are both the parents of a child born to one of them, but even when it does there will be no recognition that a child whose mothers are unmarried has two parents. No court has yet extended to the children of same-sex couples the well-established principle that the law should not discriminate against children born outside marriage.
Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.
These developments are taking place in the context of a broader dispute over family structure. Those who argue that children achieve optimal outcomes only when raised by their married biological parents urge legal principles disfavoring all other family forms. Explicitly or by implication, they disparage adoptive families, single mothers and fathers, families formed through assisted reproduction, kinship caregiving, children with more than two functional parents, and numerous other households in which children grow and thrive. Rather than advocate law reform that values all children in all families, they seek to privilege “legitimate” children in a fashion that mainstream family law rejected decades ago.
The American University Journal of Gender, Social Policy & the Law and the National Center for Lesbian Rights are co-sponsoring a conference addressing the issues raised by recent developments privileging the children of married parents. With some states now dividing the children of same-sex parents into those who are “legitimate” and those who are “illegitimate,” it is critical that law reform efforts on behalf of gay and lesbian families forcefully articulate that this approach harms children and furthers no proper public purpose. The conference planners seek papers on this conference theme.
While this debate arises from controversy over the status of children in the various family forms that lesbians, gay men, and transgender people are creating, we strongly encourage papers that tie in the needs of other children facing the stigma of “illegitimacy” because their family does not fit the mold of one biological mother married to one biological father.
Happily, I received far more interest in this topic than I imagined, and there will be a terrific line-up of law professors presenting papers. Confirmed participants include: Susan Appleton (Washington U.), Nicholas Bala (Queens University - Canada), Carlos Ball (Rutgers-Newark), Cynthia Bowman (Cornell), Sacha Coupet (Loyola-Chicago), Ariela Dubler (Columbia), Katherine Franke (Columbia), Joanna Grossman (Hofstra), Leslie Harris (Oregon), Melanie Jacobs (Michigan State), Solangel Maldonado (Seton Hall), Serena Mayeri (U. Penn), Melissa Murray (Berkeley), Julie Shapiro (Seattle), Catherine Smith (Denver), Dean Spade (Seattle), Richard Storrow (CUNY-Queens), and Tanya Washington (Georgia State).
If you are interested in this topic, please plan to attend the conference. There is no registration fee (we ask you to register so we know how many mouths we'll be feeding!).
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