As I predicted after watching the oral argument, the Arkansas Supreme Court today struck down Act 1, the initative banning anyone living with an unmarried partner from being a foster or adoptive parent. There was no dissent in the case, Arkansas Dept. of Human Services v. Cole. The court held that the ban violates the fundamental right of the plaintiffs to sexual intimacy in their home.
Because the ban burdens a fundamental right, it could survive only if the state could show a compelling interest and that the ban was the "least restrictive method" of achieving that state interest. Protecting the best interests of children is, of course, a compelling state interest. The court noted that Act 1 says that "the people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." But, the court noted, numerous employees of the state's child welfare agency, including the John Selig, director of the Department of Human Services, testified that the categorical ban was not in the best interests of children. Selig also testified that "it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home."
The ruling notes that all the arguments for a categorical ban based on generalizations about cohabiting couples could be addressed through the individual screening process to which all foster and adoptive parents are subject. "We have no doubt," the court stated, "that this individual assessment process is a thorough and effective means to screen out unsuitable applicants." You may recall from my earlier post that the lawyers for both the state and Family Council Action Committee argued that the categorical ban was necessary because the screening process makes mistakes. Really. Bet the state social workers loved that one...
The court's faith in the screening process allowed it to differentiate a 2005 custody case between two parents in which the court had stated that extramarital cohabitation is not condoned, does not promote stability for children, and can be a basis for changing custody. A nonmarital partner in a custody case, the court noted, is a "third party stranger" who has not gone through the rigorous screening applicable in the adoption or foster parent setting. Although I get the court's point, and it works to distinguish the prior case, custody cases are also handled individually by a trial judge determining a child's best interests. I'm disturbed that a parent's nonmarital sexual relationship could result in a change in custody. It's true this factor is not a categorical ban to post-divorce custody, but I would have been happier if the court had just said that custody cases are scrutinized individually and so adoption/foster parenting situations should be handled in the same way.
A few other thoughts. The court found a fundamental right to have a sexual relationship. I love that. It found that denying someone the opportunity to adopt or foster a child for that reason burdened the exercise of that fundamental right. I love that too. But because this triggered "strict scrutiny," the court did not have to decide if the ban would survive the rational basis test. The lower court essentially said the ban was rationally related to achieving the best interests of children but that the state could not meet the higher burden of showing that the ban was necessary. So although I love this articulation of a fundamental right, it should have been unnecessary. The ban should fail the rational basis test. Individual screening means a categorical ban does not serve the interests of children. Period.
Issues related to lesbians and gay men raising children, and unmarried heterosexual couples as well, are ill suited to the ballot box, or even the legislature. The political process allows gross misstatements to reverberate unchecked. It allows prejudice, stereotype, myth, and fear to substitute for reason. In spite of many notable defeats, lesbian and gay parents have fared better in court. Judges care about the well-being of the individual children in front of them. Courts must give real reasons for their rulings. True, state and federal courts upheld the Florida gay adoption ban for decades, and lesbian and gay parents have been denied custody of their children. But lesbian mothers also won custody in some courts 40 years ago, and second-parent adoptions began almost 30 years ago because judges wanted to do right by children. The Arkansas Supreme Court opinion is in that vein.
Showing posts with label Arkansas. Show all posts
Showing posts with label Arkansas. Show all posts
Thursday, April 7, 2011
Thursday, March 17, 2011
Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children
It's always risky to predict the outcome of a case based on oral argument. Nonetheless, I'll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state's ban on adoption and fostering by anyone living with a nonmarital partner violates the state's constitution. The ban was enacted by voters in 2008. You can watch the argument on the court's website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.
Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.
If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.
When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.
In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.
So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.
The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.
One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.
And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.
Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.
If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.
When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.
In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.
So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.
The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.
One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.
And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.
Wednesday, March 16, 2011
Arkansas adoption ban oral argument tomorrow morning -- watch it live
The Arkansas Supreme Court hears oral argument tomorrow at 8:58 am CDT in Arkansas Dept of Human Services v. Cole, the ACLU's challenge to the constitutionality of the initiative enacted by voters in 2008 prohibiting adoption by anyone living with a nonmarital partner. It will stream here. For background on the case, check out the ACLU website. For one analysis of what went wrong in the election campaign, read this.
I'll post about it later in the day tomorrow.
I'll post about it later in the day tomorrow.
Tuesday, February 22, 2011
Then again the Arkansas nonbio mom ruling falls short...
I was pretty excited when I wrote last week about Bethany v. Jones, the Arkansas case that recognized the right of a nonbio mom to continued visitation rights with the child she raised. The court relied on the doctrine of in loco parentis, which means that Emily Jones functioned as a parent to the child she raised with her ex-partner.
Then I thought about it a bit more and realized I became too excited too soon. Jones is the child's parent. She planned for the child, raised the child as a stay-at-home mother for three years, and the child called her "mommy." A parent has an equal right to custody and is not relegated to a second class status. The court compared Jones to a stepparent, but she isn't a stepparent. A stepparent does not plan for a child to be born. A child does not bear the last name of a stepparent from birth, yet the child in this case had the last name of Jones. Parentage also protects a child in other ways, such as the right to survivors benefits. This child doesn't get that.
In DC, Jones would have been the child's parent. In California, Jones would have been the child's parent. That the Arkansas case did not turn out as badly as it might have shouldn't blind us to the fact that it falls short of fully recognizing this child's family.
Then I thought about it a bit more and realized I became too excited too soon. Jones is the child's parent. She planned for the child, raised the child as a stay-at-home mother for three years, and the child called her "mommy." A parent has an equal right to custody and is not relegated to a second class status. The court compared Jones to a stepparent, but she isn't a stepparent. A stepparent does not plan for a child to be born. A child does not bear the last name of a stepparent from birth, yet the child in this case had the last name of Jones. Parentage also protects a child in other ways, such as the right to survivors benefits. This child doesn't get that.
In DC, Jones would have been the child's parent. In California, Jones would have been the child's parent. That the Arkansas case did not turn out as badly as it might have shouldn't blind us to the fact that it falls short of fully recognizing this child's family.
Friday, February 18, 2011
Arkansas Supreme Court approves visitation rights for non-bio mom
In a 5-2 decision, the Arkansas Supreme Court yesterday affirmed a trial court ruling granting visitation rights to a nonbiological mother The case, Bethany v. Jones, has a familiar fact pattern. Alicia Bethany and Emily Jones had been together for five years when Bethany gave birth to a child that she and Jones planned for together. They gave the child Jones as a last name and also gave her a middle name for Jones's grandmother. (Bethany changed the child's name after the break-up). Jones was the child's primary caretaker as a stay-at-home mother for three years. The child called Jones "mommy" and Bethany "mama." She also called Jones's parents, "Grammy" and "Poppy."
The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.
Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.
Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.
Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)
The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.
Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.
Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.
Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)
Thursday, May 20, 2010
What went wrong in Arkansas
Earlier this month, the Center for American Progress (CAP) released a report on the passage of Initiated Act 1 in Arkansas in 2008. This was the law that banned adoption and foster parenting by anyone living with an unmarried partner. In addition to describing the chronology and the players in the Arkansas intiative process, the report offers "lessons learned" to guide future struggles.
The report cites lack of outreach to faith communities and disputes over messaging as two of the major shortcomings of opponents of Act 1. The main coalition opposing Act 1 was Arkansas Families First, and its steering committee split over whether the campaign should emphasize children or focus on human rights for LGBT people; the former position prevailed and the group prodcued a DVD featuring child advocates and other professionals. Another group opposing Act 1, the Center for Artistic Revolution, disagreed with that decision and launched its own "All Families Matter" campaign, featuring the couples who would be affected if the ban passed.
The post-election analysis in the CAP report includes the following recommendation: "Leaders must recognize that campaigns need unity on such basic aspects as core messaging." The report further states that "it is essential that campaigns be mindful of the power of a united front."
I have a hard time figuring out how this could happen. Those involved in the Arkansas campaign do not agree even now on whether the dominant focus on children rather than discrimination against LGBT families was the right choice. Arkansas Family First used polling and focus groups and still the initiative passed with 57% of the vote. If pro-gay campaigns had a track record of winning as a result of successful messaging, maybe unity would be called for and easier to obtain. Perhaps the Yale Cultural Cognition project will produce such a result. But until then I cannot blame organizers for disagreeing over framing a campaign and sticking to their positions rather than coming together.
In the end, the difference in messaging may have mattered less than the lack of grassroots outreach, especially to faith communities, even in rural areas. Many of the report's recommendations call for a larger role for religious leaders. The report also draws attention to a Third Way poll of voters in Arkansas, and those results are worth perusing. CAP thinks it notable that 44% of born-again Christians said they would have or did in fact vote against the ban after being informed in more detail about what it entailed. Thus, CAP concludes, opponets of the ban needed to include even evangelicals in their outreach to faith communities.
Perhaps it was just happenstance that I read this report shortly after reading the Yale Cultural Cognition project report, but there is striking similarity between the two. The Yale report suggests that accurate information alone may not sway those whose positions are based on values. The CAP report includes the following: "When confronted with facts that run counter to their values and beliefs, people often dismiss facts as unreliable or irrelevant. As a result, it is crucial to go beyond rational arguments to include appeals that also touch people's hearts and souls."
I like to think that rational argument in the way to win. I give that up begrudgingly. These reports tell me I might need to grow up and face the facts that the years I have devoted to getting better and better at rational argument may never get me the world I want to live in. It's a hard lesson to learn.
The report cites lack of outreach to faith communities and disputes over messaging as two of the major shortcomings of opponents of Act 1. The main coalition opposing Act 1 was Arkansas Families First, and its steering committee split over whether the campaign should emphasize children or focus on human rights for LGBT people; the former position prevailed and the group prodcued a DVD featuring child advocates and other professionals. Another group opposing Act 1, the Center for Artistic Revolution, disagreed with that decision and launched its own "All Families Matter" campaign, featuring the couples who would be affected if the ban passed.
The post-election analysis in the CAP report includes the following recommendation: "Leaders must recognize that campaigns need unity on such basic aspects as core messaging." The report further states that "it is essential that campaigns be mindful of the power of a united front."
I have a hard time figuring out how this could happen. Those involved in the Arkansas campaign do not agree even now on whether the dominant focus on children rather than discrimination against LGBT families was the right choice. Arkansas Family First used polling and focus groups and still the initiative passed with 57% of the vote. If pro-gay campaigns had a track record of winning as a result of successful messaging, maybe unity would be called for and easier to obtain. Perhaps the Yale Cultural Cognition project will produce such a result. But until then I cannot blame organizers for disagreeing over framing a campaign and sticking to their positions rather than coming together.
In the end, the difference in messaging may have mattered less than the lack of grassroots outreach, especially to faith communities, even in rural areas. Many of the report's recommendations call for a larger role for religious leaders. The report also draws attention to a Third Way poll of voters in Arkansas, and those results are worth perusing. CAP thinks it notable that 44% of born-again Christians said they would have or did in fact vote against the ban after being informed in more detail about what it entailed. Thus, CAP concludes, opponets of the ban needed to include even evangelicals in their outreach to faith communities.
Perhaps it was just happenstance that I read this report shortly after reading the Yale Cultural Cognition project report, but there is striking similarity between the two. The Yale report suggests that accurate information alone may not sway those whose positions are based on values. The CAP report includes the following: "When confronted with facts that run counter to their values and beliefs, people often dismiss facts as unreliable or irrelevant. As a result, it is crucial to go beyond rational arguments to include appeals that also touch people's hearts and souls."
I like to think that rational argument in the way to win. I give that up begrudgingly. These reports tell me I might need to grow up and face the facts that the years I have devoted to getting better and better at rational argument may never get me the world I want to live in. It's a hard lesson to learn.
Friday, September 11, 2009
News from Lavender Law -- the latest adoption/foster parenting bans
It's not called Lavender Law anymore, but I can't help myself. (Sixth Ave will never be Avenue of the Americas to me...). Its official name is the National LGBT Bar Association Career Fair & Conference, but by any name this is the annual gathering of LGBT lawyers, law students, and law profs (and some straight advocates who work on our issues). This year's conference is taking place in Brooklyn.
Today I attended a session on "The New Adoption and Foster Care Battle: Cohabitation Bans." Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida...hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner -- gay or straight (Utah...not on its way out).
Kara Suffredini of Family Equality Council then described recent efforts - largely unsuccessful - to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements -- thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.
Finally, Leslie Cooper, ACLU's litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn't count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It's a regurgitation of the right-wing marriage movement's basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.
It's a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded "marriage promotion" when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is...gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.
Today I attended a session on "The New Adoption and Foster Care Battle: Cohabitation Bans." Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida...hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner -- gay or straight (Utah...not on its way out).
Kara Suffredini of Family Equality Council then described recent efforts - largely unsuccessful - to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements -- thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.
Finally, Leslie Cooper, ACLU's litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn't count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It's a regurgitation of the right-wing marriage movement's basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.
It's a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded "marriage promotion" when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is...gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.
Tuesday, January 6, 2009
New York Times Comes Through Again...Who's Listening?
This morning's New York Times editorial condemning Arkansas's ban on adoption and foster parenting by anyone living with a same-sex partner or unmarried different-sex partner is a welcome piece of advocacy. NYT calls the law "offensive" and urges the court to strike it down.
More than 15 years ago, I received a call from a member of the NYT editorial board. The board had decided to editorialize after a Virginia judge removed a child from the custody of his mother, Sharon Bottoms, and placed him with Sharon's mother. The Bottoms case received unprecendent press coverage. And so the New York Times published its first editorial expressing unequivocal support of lesbian and gay parents. "In deciding what's best for a child," NYT wrote, "it's fair to look at a large range of issues. But the sexual orientation of parents is not one of them. Gay parents should not have to live in fear of losing their children simply because of who they are."
In some states, LGBT parents still risk losing custody of their children to a heterosexual parent after a divorce. And gay rights advocates expect efforts to reproduce the Arkansas initiative in other states.
I was ecstatic with the 1993 NYT editorial. When the Virginia Court of Appeals reversed the trial judge in Bottoms, citing the research demonstrating no harm to children raised by lesbian mothers, I thought it was the beginning of the end of discrimination against lesbian and gay parents. But the Virginia Supreme Court overturned that Court of Appeals decision, and young Tyler never did go back to his mother.
And as for recognition of the research on the well-being of children with lesbian and gay parents, well it certainly has not received universal acceptance. Neither has the position of the New York Times. Still, today's editorial is a good read.
More than 15 years ago, I received a call from a member of the NYT editorial board. The board had decided to editorialize after a Virginia judge removed a child from the custody of his mother, Sharon Bottoms, and placed him with Sharon's mother. The Bottoms case received unprecendent press coverage. And so the New York Times published its first editorial expressing unequivocal support of lesbian and gay parents. "In deciding what's best for a child," NYT wrote, "it's fair to look at a large range of issues. But the sexual orientation of parents is not one of them. Gay parents should not have to live in fear of losing their children simply because of who they are."
In some states, LGBT parents still risk losing custody of their children to a heterosexual parent after a divorce. And gay rights advocates expect efforts to reproduce the Arkansas initiative in other states.
I was ecstatic with the 1993 NYT editorial. When the Virginia Court of Appeals reversed the trial judge in Bottoms, citing the research demonstrating no harm to children raised by lesbian mothers, I thought it was the beginning of the end of discrimination against lesbian and gay parents. But the Virginia Supreme Court overturned that Court of Appeals decision, and young Tyler never did go back to his mother.
And as for recognition of the research on the well-being of children with lesbian and gay parents, well it certainly has not received universal acceptance. Neither has the position of the New York Times. Still, today's editorial is a good read.
Tuesday, October 21, 2008
ARKANSAS ADVOCATES FOR CHILDREN NEED YOUR HELP!
With the presidential campaign front and center and the votes on marriage in California, Florida, and Arizona getting lots of attention, I'm worried that the fight over adoption and foster parenting by unmarried same-sex and different-sex couples in Arkansas is being overlooked. This would be truly a tragedy -- mostly for the children of Arkansas. But it would also be an unwelcome boost for the nationwide anti-gay movement. It's a movement that idealizes heterosexual marriage and disparages all other family forms -- hence the ban on unmarried straight couples as well.
Watch this video. Send it around. Get it to anyone who knows anyone who votes in Arkansas. Spread the word to vote NO on Initiated Act 1. The Foster Care Alumni of America oppose it. A group of retired Arkansas judges oppose it. The Arkansas Department of Human Services is licensing unmarried couples as foster parents, and the Governor, Mike Beebe, opposes Initiated Act 1 (not loudly enough).
And send donations to Arkansas Families First!
Watch this video. Send it around. Get it to anyone who knows anyone who votes in Arkansas. Spread the word to vote NO on Initiated Act 1. The Foster Care Alumni of America oppose it. A group of retired Arkansas judges oppose it. The Arkansas Department of Human Services is licensing unmarried couples as foster parents, and the Governor, Mike Beebe, opposes Initiated Act 1 (not loudly enough).
And send donations to Arkansas Families First!
Thursday, August 14, 2008
AN ARKANSAS INITIATIVE THAT MUST BE DEFEATED!
After a hiatus for my summer vacation, I'm back...and with some urgent news. Arkansas voters will have an initiative on their November ballot that, if it passes, will ban all unmarried couples from adopting children or becoming foster parents. That's right. An unmarried heterosexual couple will have to marry, and a same-sex couple will be completely boxed out. (The initiative makes clear that only marriages recognized in Arkansas -- those between one man and one woman -- count). Also, as the words of the initiative make clear, a person will be unable to adopt or foster a child as an individual if he or she is living with an unmarried partner of any sex! This initiative is based on the right-wing marriage movement ideology that blames all our social problems on the decline of life-long heterosexual marriage...ideology I critique in my book.
The coalition fighting this needs your help now! Please get involved with Arkansas Families First.
The coalition fighting this needs your help now! Please get involved with Arkansas Families First.
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