Maryland high court hears important oral argument -- and the other side offers no law

The Maryland Court of Appeals heard argument yesterday in Conover v. Conover (oral argument here).  By now the facts are not extraordinary:  Brittany Eckel and Michelle Conover had a child together using anonymous donor semen from Shady Grove Fertility Center, implanted in Brittany.  Jaxon was born in April, 2010 and given Michelle's last name.  Sometime after the couple split up, Brittany denied that Michelle was Jaxon's parent.  A couple of other facts worth noting.  The couple married when Jaxon was five months old and Brittany changed her last name to Conover.  This should not have any legal significance.  It does highlight, however, that the Maryland "artificial insemination" statute makes a consenting husband the legal parent of a child conceived by his wife with donor semen -- a statute that I would bet the farm the Maryland court would apply to lesbian couple married before the child's birth.  But it is the planning of the child together that should matter, not the couple's marital status. Also, Michelle has since transitioned and is now Michael Conover.  This should also have no legal significance, although it does point out the absurdity of refusing to read the words "father" and "husband" gender neutrally.  (By that I mean that the statutes that create a presumption that a man is a legal father should apply equally to a woman asserting she is a legal mother; otherwise Michael now gets to use them because he is male but could not while he was Michelle and female).  I continue to use the name Michelle in this post, only because that is how he is identified in the court proceedings below and in the briefs in the case.

This case highlights how state specific parentage laws are. As I point out here, if Jaxon had been born in a DC hospital he would have a birth certificate naming both Brittany and Michelle as his parents. There is a good legal argument for Michelle's parentage under Maryland law, as Jer Walter ably argued yesterday.  What was more surprising, however, was how poorly Brittany's lawyer argued. He told the court he accepted Brittany's case pro bono for the sake of the child, and offered "common sense" as the reason the statutes should not be read to give Jaxon's two mothers.  He had to acknowledge that Maryland law makes a husband the father of his wife's child born after donor insemination, but he said that in such cases there was the possibility that he was the child's biological father.  This can only mean that to the outside world it might look like there was such a possibility. That was enough for him.  Frankly, he only said out loud what many who oppose parenting by same-sex couples believe -- that a child has one mother and one father, end of story.  His legal position was that any change to that needed to come from the legislature.  He essentially told the judges not to do their job, which is to apply existing law to the cases that come before them, even if they are cases the legislators who enacted existing statutes did not contemplate.  He invoked Justice Scalia numerous times, again not a legal argument about Maryland law.

The court actually has two issues before it.  One is whether Michelle is Jaxon's parent.  The other is whether to overturn its eight-year-old opinion in Janice M. v. Margaret K. that refused to recognize de facto parents in Maryland.  Only two of the Janice M. judges remain on the court, and the opinion's one dissenter, Judge Raker, is sitting by designation in the Conover case.  Margaret Kahlor, the losing mom in Janice M., was in the courtroom for the argument yesterday. Janice M. should be overturned, but this court should not pass up the opportunity to read Maryland statutes to confer parentage on both members of a couple -- same-sex or different-sex -- who use donor insemination to have a child.

A special shout out to Katie Wright, who was my co-counsel on the brief we wrote on behalf of family law professors from Maryland and elsewhere, urging the court to find that Jaxon has two mothers.

Maryland court's approval of same-sex marriages from elsewhere includes nod to adoption by same-sex couples

Port v Cowan, the decision of the Maryland Court of Appeals today (that's the state's highest court) that Maryland recognizes same-sex marriages validly performed elsewhere, is notable in a number of respects.  The case arose in the context of a divorce action, with the trial judge refusing to grant the divorce because Maryland does not allow same-sex marriage.  A Wyoming trial court judge did the same things a couple of years ago.  But when the Wyoming Supreme Court reversed, as I write about here, it did so only to extent of ruling that the couple could divorce in Wyoming, not that the state would recognize a marriage. The Maryland court, on the other hand, was clear that Maryland will recognize same-sex marriages from elsewhere.  Period.  In reasoning that recognizing such marriages is not "repugnant" to Maryland public policy, the court listed all the ways in which state law recognizes and protects gay men and lesbians.  Also, the state's ban on same-sex marriage -- upheld just a few years ago -- does not ban recognition of such marriages from elsewhere.  Although the legislature could write such a ban into Maryland law, that's not going to happen --- not from a legislature that just passed marriage equality!  In a cute quip, the court's opinion refers to Maryland as suffering from "multiple personality disorder" when it comes to treatment of same-sex couples.

Here's perhaps the most amazing part of this ruling -- it was unanimous! And written by the same (conservative) judge who five years ago wrote the majority opinion in Conaway v. Deane upholding the state's ban on same-sex marriage.  In other words, the same judge who wrote that the Maryland constitution does not require the state to marry same-sex couples has now ruled that recognizing such marriages from elsewhere is not repugnant to the state's public policy and therefore they are valid in Maryland under the doctrine of comity.

My favorite part of the opinion, however, is what it says about gay people raising children.  First it refers to its own decisions banning discrimination in custody/visitation disputes.  (I'm proud to say that I was appellate counsel on one of the cited cases, Boswell v. Boswell.)  Then there's a footnote that says the following:

Although the issue has not been addressed in a holding by the Court, Judge Raker, in her concurring/dissenting opinion in Conaway, expressed her view that Family Law Article § 5-3A-29 permits same-sex couples to adopt children.

Conaway is the case upholding the ban on same-sex marriage.  The code portion cited is that which says that any adult may petition to adopt a child.  No appeals court in Maryland has ruled on whether two same-sex partners can adopt a child together.  One argument for permitting it is the usual statutory construction rule that the singular means the plural.  Trial judges have been granting joint and second-parent adoptions for maybe 15 years, but without a definitive ruling from an appeals court  there was always the possibility that some appeals court, in some context, would say that the Maryland statute does not allow it.  There was absolutely no need for the court in this case to even mention same-sex couples adopting children.  So I take this mention by the judge who ruled against same-sex marriage of something written in the same-sex marriage opinion by a judge who wanted to rule in favor of same-sex marriage as a sign that he and his colleagues think adoption by same-sex couples is indeed permitted.  Yippee!!!!

Shannon Minter awesome (as usual) in Maryland Court of Appeals argument on availability of divorce for same-sex couples

Can a married lesbian couple divorce in Maryland even though they could not marry there? (yet)  A trial court in Maryland said no, and the appeal of that ruling was heard today in the Maryland Court of Appeals.  You can watch the oral argument by NCLR legal director Shannon Minter here.  (Click on document 4/6/12 - No. 69 -- Port v. Cowan)

MD Delegate Tiffany Alston had a good idea for a bad reason

When I first heard that Maryland Delegate Tiffany Alston wanted to replace marriage with civil unions for all I was hopeful she had a principled reason and that it was an idea that might catch on. I'm still waiting for a state to change the name of the status it grants couples, leaving "marriage" as a religious term or a generic term couples use for themselves. But it soon became clear Del. Alston was not really looking for a way to get the state out of the marriage business. She was just looking for a way to avoid voting for same-sex marriage.

I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.

So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.

Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.

Two moms on Maryland birth certificates...not the victory it might sound like

Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.

Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.

Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.

And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.

In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.

While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.

If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.

This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.

In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.

Maryland misses the chance to protect the children of same-sex couples

Two years ago, the highest court in Maryland ruled that the state did not recognize "de facto" parents. Thus, when a same-sex couple raises a child as two parents and then splits up, only the parent who gave birth to the child or adopted the child has the right to custody; the other parent is a legal stranger, no different from a relative, friend, or neighbor. The court's opinion invited the Maryland General Assembly to change the state's law through a statute.

Well, the General Assembly session ended yesterday without passing a promising bill that defined "de facto" parents and gave them the right to custody and visitation and the obligation to pay child support. Both the Senate and the House held hearings on the bill, which very much resembled legislation enacted in Delaware last year.

The votes to pass the bill were probably there, but it never made it to a floor vote. After Maryland Attorney General Doug Gansler issued an opinion that the state recognizes same-sex marriages validly performed elsewhere (which came coincidentally on the same day the Senate held the hearing on the "de facto" parent bill), a state senator indicated that if the "de facto" parent bill came to the floor he would submit an amendment stating that Maryland does not recognize same-sex marriages from elsewhere; then every senator would have had to go on record on that issue. With that threat at hand, bill sponsor Senator Jamin Raskin pulled the bill from consideration.

The "de facto" parent bill was not only about children of same-sex couples, and it had support from organizations and individuals seeking to protect the relationships all children have with the people they consider their parents. But apparently the subject of same-sex marriage was considered close enough to the subject of the bill that the amendment would have been procedurally proper, and that was enough to kill the bill.

The politics of same-sex marriage derailed this year's efforts. The children of Maryland go unprotected for another year.

HOW WRONG CAN A COURT BE??

Very wrong, if it's the highest court in Maryland and they are considering same-sex couples raising children. Today the Maryland Court of Appeals ruled that, after the end of an 18 year relationship that included raising a five year old child together, the mom whose name was on the child's adoption decree could exclude the mom whose name wasn't on the decree from the child's life. The court said that a "de facto" parent has no more ability that a grandparent, babysitter, teacher...or stranger to receive custody or visitation rights. The trend in the states is in the other direction...towards recognizing the reality of a child's family. We need the Maryland General Assembly to fix this next term! In the District of Columbia, we've got a statute that would protect Margaret's relationship with her daughter, because Margaret could prove by clear and convincing evidence (that's technical for LOTS of evidence!) that she is Maya's de facto parent, and in DC a de facto parent and a parent have the equal right to custody and visitation and the equal obligation to pay child support.