Does Obama mean all families?

I saw very little press attention to Obama's mention of families in the State of the Union address.  This is what he said:

We’ll work to strengthen families by removing the financial deterrents to marriage for low- income couples and do more to encourage fatherhood, because what makes you a man isn’t the ability to conceive a child, it’s having the courage to raise one. And we want to encourage that. We want to help that. (APPLAUSE) Stronger families. Stronger communities. A stronger America.
 

At first glance it sounds pretty general and benign.  Who could disagree with that?  Well... maybe I do.

Take the first phrase of the first sentence.  As for, "we'll work to strengthen families," I'm all for that.  But the way he wants to strengthen families is "by removing financial deterrents to marriage for low-income couples."  Not by better reentry and job creation programs for those coming out of prison, not by increasing affordable housing, not by mandating paid parenting leave or more broadly defining who can take family leave.  Just by making marriage more finacially attractive to those with low incomes. It's certainly a kinder, gentler way of saying that marriage strengthens families, but it is, nonetheless, saying just that.  For those of you wondering why the Washington Post had so much trouble recognizing Gail Messier's family in her obituary, this speech is a clue. 

Of course I want to strengthen families, the families in which people actually live.  Here is an example.  An employed woman has a child.  Her mom comes to live with her to help care for the child.  Those two people, who have pooled their emotional and economic resources to raise that child, cannot file a joint tax return, even though, with one stay-at-home adult caring for the child they would save money doing so.  Now if they were a married couple with one wage earner, then they could file their taxes jointly.  What we need to do is stop making marriage the dividing line in our laws and policies and start dealing with how people actually arrange their intimate and financial lives.

The other part of Obama's proposal is encouraging fathers to raise their children.  Many children will be better off with their fathers in their lives.  Others won't.  Ask a mother who has been beaten by her child's father and who is trying to fight back against his efforts to have more time with that child because she knows it's about power and control, not love and nurturance.  All the talk about encouraging fathers to raise their children can create another obstacle to a mother's efforts to protect her child.

The worst part of the father-encouragement rhetoric, however, is that it is invariably connected to mother-blaming rhetoric, as in "those single mothers -- they are the problem."  Kudos to Legal Momentum, the organization whose research and policy papers continually prove that there is no inherent connection between births to single mothers and poverty (as they do in this chart).  Higher wages, ending discrimination, more public support for children...these are the policies that work and Legal Momentum fights for them.  Those who push fathers and marriage as the solution tend to oppose all such efforts.  When "fatherhood initiatives" resulted in education and job training programs for fathers only, Legal Momentum's advocacy against sex-discrimination opened those programs to mothers as well.

Back to Obama's speech.  It could have been a lot worse.  The marriage and fatherhood rhetoric was worse under the Bush administration.  But why include it at all?  It is not synonymous with "stronger families," and suggesting that it is sends the wrong message even when it's done gently.

What's wrong with how obituaries define family

When it comes to obituaries, I'm sure there are still many newspapers that refuse to list a deceased's same-sex partner --or different sex unmarried partner for that matter -- as a surviving family member.  But at the Washington Post that changed 15-20 years ago, years into the AIDS epidemic (and too many years at that).  So when Gail Messier died last week -- 51 years old, breast cancer -- her surviving partner Lauren Taylor (who happens to also work part-time at the Post and is one of my oldest friends) had no difficulty being included.

But Lauren wanted all of Gail's close family included, and that meant individuals whom the world describes as ... friends.  Gail was not close to her parents or her siblings.  Her ties were to a few people with whom she had connections that rivaled the closest connections anyone can have to anyone.    Conventional obituary practice does list chosen family -- but only if that chosen family member is a spouse or, maybe, unmarried partner.  (How else but chosen family to describe the person you choose to marry?)  Other than that it is strictly the blood/legal family members that make up legal next of kin -- the people who inherit if a person dies without a will: parents, children, siblings.

Lauren tried to explain this to the Post's obituary writer.  He never did get it. Lauren could not get him to include  the "extensive chosen family" she had listed. So, for the record, here are the names of Gail's family members that Lauren knew were important enough to include: Cheryl Hurwitz (Silver Spring), Jenny Stelloh (Takoma Park), Chris Nichols and Dianne Russell (Mt. Rainier), and nieces Eliana Hurwitz and Kaisa and Lydia Nichols-Russell.  My sincerest condolences to all of them on their loss.

In researching to write this blog post, I discovered that the obituary form provided by the Washington Post calls for names of present and former "spouses," then asks for the names and residences of "survivors," considered "spouses, children, siblings, and parents."  It also asks for the number of grandchildren.  Since the Post is willing to include a partner, I find it curious and troubling that the form it provides does not say that.  Apparently, you have to be a bit of an envelope-pusher to get the Post to do what it has been willing to do for the last two decades.  In other words, if you are a surviving same-sex partner there is no place on the form to indicate that so it can be listed.  You have to affirmatively ask to be listed, something not every surviving partner will know is possible.

We hear it said often that obituaries are news stories.  The information in them must meet the journalistic criteria for accuracy.  But a legalistic definition of "survivors" is not an accurate definition of either those who have suffered the greatest loss or those who compose the web of people with whom the deceased lived her life.

The Post obituary writer told Lauren he didn't understand what chosen family meant.  She told him that in a few years he would.  I hope she's right.  I have to wonder, however, if once again the visibility of the struggle for same-sex marriage actually deters people from defining family the way it is lived by so many people.  When obituaries do not include same-sex partners it could look to some like a problem to be solved by allowing same-sex couples to marry.  Like so many policies I write about in these pages, however,  the problem is an incomplete, inaccurate definition of family.  I don't know what it will take to get the Washington Post obituary writers to see it thay way.

A memorial service to honor Gail Messier's life will be held in March.  Her chosen family will be there.  In fact it was their convenience that determined the date, because they are her primary mourners and they need each other to get through this difficult time.  Come to think of it, the Post should send a reporter.  It might help the paper learn something about family that is so clearly lacking in its obituary criteria.

Let's tell all children that their family structure is equal to all others

The Tuesday New York Times article on pending same-sex marriage legislation in Washington state highlights the politicians, including Governor Christine Gregoire, who have switched their positions and now support the bill that would authorize same-sex marriage there.  So far so good.

The problem lies in how the Governor explained her support. “Let’s tell the children of our same-sex couples," said the Governor in her State of the State address, "that their parents’ relationship is equal to all others in the state.”  In a similar vein, State Senator Rosemary McAuliffe, a recent pro-same-sex marriage convert, said this: “I met the families, I met the children of those families, and I had the realization that it is our responsibility to protect all of our citizens against discrimination.”        

Now I understand the argument that denying access to marriage to same-sex couples sends a message that our relationships are not as valuable as those of different-sex couples.  And I certainly oppose discrimination.  But that includes discrimination against the families of children whose parents don't marry -- gay or straight.  I want the large percentage of children born to unmarried couples to feel that their family structure is equal to that of their classmates with married parents.  And what about the children raised by grandparents or other relatives (including those raised by gay or lesbian grandparents or other relatives)? or by single adoptive parents (plenty of gay and lesbian folks doing that as well)?

If we're talking about validating and affirming the equal value of all families, let's really do that.

Creating "truth" through reciprocal citation practices dates back before the internet and cable news

A lengthy segment on The Rachel Maddow Show (I am a huge fan) last Thursday focused on the creation of "truth" through simply repeating falsehoods espoused by others and using those other sources as evidence of the facts asserted. Naturally, Fox News and the internet play large roles in the story.

The segment made me think of a phenomenon first identified by the sociologist Judith Stacey in a 1994 article in Social Text and later more fully described in her 1996 book, In the Name of the Family. The early 1990's saw the emergence of opposition to gay and lesbian families, single mothers, and any childrearing outside life-long heterosexual marriage based not on arguments about God and morality (that was so 1980's) but rather based on social science. Social scientists, historians, and other advocates who claimed they were centrists asserted that children needed to be raised in two-parent mother/father families. Deviation from that family structure, they argued, spelled doom for the mental, physical, and emotional well-being of those children and concommitantly for the well-being of society.

Through carefully tracing who was citing whom (in those pre-Google days), Stacey described the practice of reciprocal citation. "Through the sheer force of categorical assertion, repetition, and cross-citation of each other's publications," she wrote, "these social scientists seem to have convinced most of the media, the literate public, and Clinton himself that a fault-free bedrock of social science research validates the particular family values that they and most American claim to favor, but fail to practice."

After documenting the practice with numerous examples, Stacey concluded:

"It is not often that social construction, or more precisely here, the political construction of knowledge is quite so visible or incestuous as in the reciprocal citation practices of these cultural crusaders."

Rachel Maddow could give us a video montage, while Judith Stacey could only provide words on the page. The visual images are both horrifying and depressing. But even without today's tools of cable news and the internet, the force of reciprocal citation did great harm. It gave us, among other things, "welfare reform" and the Defense of Marriage Act.

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.

What married same-sex couples owe to hippie communes

I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.

Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.

After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.

Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.

Several households challenged the constitutionality of the statute, including two mothers on public assistance living together for economic reasons; a family that took in an unrelated young woman with emotional problems; and named plaintiff Jacinta Moreno, who lived with a mother of three, paying rent and receiving care in return. All were eligible for food stamps but for the fact that none of the households consisted entirely of related individuals.

The Court found that Congress created the food stamp program to alleviate hunger and malnutrition and that distinguishing between related and unrelated persons was irrelevant to that purpose. The Court further rejected the government's assertion that limiting aid to related individuals would reduce the likelihood of fraudulent use of food stamps. The Court did examined the legislative history of the 1971 amendment, and it found this: The amendment was enacted to prevent hippies and hippie communes from receiving food stamps.

And to this the Court said:

The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

It's that language that Justice Kennedy resurrected in Romer v. Evans and that Judge Tauro cites in Gill.

Moreno had a dissent by Justice Rehnquist who thought that Congress was perfectly within its rights to limit food stamps to "some variation on the family as we know it - a household consisting of related individuals." Rehnquist was not yet Chief Justice. As everyone knows, the Court became considerably more conservative in later years, with Rehnquist at its helm and as Republican presidents selected more Justices. It is very likely that the Rehnquist Court would have upheld the food stamp restriction.

But in 1971 hippies were not the only challenge to the traditional family. Feminism and the gay liberation movement were right in there. As I write about in my book, it was a time when defying both conventional sexual morality and the nuclear family norm were part of the vision for creating a better society. And that view was accepted enough that the Supreme Court of the United States thought that Congress could not punish people proclaiming -- and living -- that vision.

Today LGBT people are the beneficiaries of Moreno. It's the only case that Justice Kennedy could cite to strike down Colorado's Amendment 2 in Romer. Romer read gay people into the Equal Protection Clause of the Constitution. Without it there would be no Gill. Whenever you see Moreno cited, thank the hippies, and the legal services lawyers who stood up for them before the Supreme Court.

And if you are not married, don't aspire to marry, and indeed have a more fluid idea of what family ought to count under our laws, Moreno is the case that someday, with some change in the Court's personnel, might mean your liberation as well.

New FMLA regs clarify what was already the law so let's not claim this is a dramatic shift

When the Obama administration issues its regulations on taking leave to care for a partner's child under the Family and Medical Leave Act, it will simply be reiterating what is already the law. It makes me a tad crazy that the new regulations suggest they are a change. While I believe that employers might have acted in violation of the law in the past (as the story of one couple in this New York Times article suggests), the regulations implementing the FMLA have always extended the right to leave to care for a child to whom one stands "in loco parentis." Such a person is anyone who is acting as a parent to a child, and the regulations have always made clear that neither a biological nor a legal relationship was necessary.

Now the NY Times article accurately states the language of the existing regulations, but still its thrust is that the Obama adminstration is doing something new; the first sentence of the article says that Obama's actions "expand" the rights of same-sex couples with children. But adding language that explicitly names the nonbiological parent in same-sex couple is not the same as "expanding" the law when the law already covers those relationships. I would concede that the new regulations clarify the law by expliciting naming same-sex couples and their children.

This is not a minor quibble. The language of the statute referring to "in loco parentis" relationships always recognized, since the FMLA's passage in 1993, that children may be cared for by individuals who are neither a legal nor a biological parent. To fulfill the law's purpose of allowing a worker to care for a sick or newborn child without losing his or her job, the law had to encompass all the circumstances under which an employee may end up with day-to-day responsibilities for a child's care and support. And it did. From the beginning. And if the statute was not clear enough, the original regulations explicitly stated that a legal or biological relationship was not required.

What more did a nonbio mom or dad need to take leave to care for a partner's biological child? Nothing. And many nonbio parents have taken such leave. (I did an informal survey of lawyers around the country about this in 2007, and this confirmed the availability of the leave for nonbio parents). The Tucson nonbio mom mentioned in the NY Times article could have filed a complaint against her employer, and she would have won -- not to take care of her partner, but to take care of their child. If she assumed the law would not apply to her parental relationship because it did not apply to her partner relationship, she was wrong.

I'm dismayed about the coverage of this for another reason. In my mind it plays into the idea that if a same-sex couple is not explicitly included within a law then the law provides them no benefits. But this wasn't true for the federal employee sick and bereavement leave policy that was the subject of final regulations last week. (See my earlier post.) Same-sex couples had been entitled to use their sick leave to care for one another because they fell within the larger category of those with a "close association." And that broader formulation meant that relationships beyond "couples" could also qualify for the leave.

For FMLA leave, same-sex couples can't be named because that would require a statutory change, but parent-child relationships exist independent of couple relationships. The "in loco parentis" standard was always the right standard; it's not because of a woman's relationship with her partner, but rather because of her relationship with the child that she should be allowed FMLA leave. And that's been in placed for the better part of the last two decades.

There is value in explicit naming. But it also turns the issue into part of the culture war about same-sex relationships and same-sex marriage. That's not where it belongs. No one should object to an adult taking leave to care for a child for whom s/he has day-to-day responsibility.

How same-sex couples fill out the 2010 census form -- is it really asking how we think of our relationships?

If thinking of yourself as married to your partner turned you into husband and husband or wife and wife, then we wouldn't need a marriage equality movement, right? So imagine my puzzlement to find gay organizations instructing us to fill out the 2010 census based on how we think of our relationships. The Williams Institute, to whom I turn for all things demographic about gay men and lesbians, offers this advice, which other groups are repeating:

Same-sex couples who have been legally married or consider themselves to be spouses should identify one person as a "husband or wife".

Other same-sex couples may be more comfortable using the term "unmarried partner". In general, this designation is designed to capture couples who are in a "close personal relationship" and are not legally married or do not think of themselves as spouses. (emphasis mine).

Now I understand the census is an imperfect instrument (very) for counting our relationships. If a couple does not live together, they will not be counted, because the census counts households and the relationships of the people in each household. There is also no option for those who are registered as domestic partners or in civil unions. I applauded when the Williams Institute and others won from the Obama administration the right to be counted as same-sex spouses when they were same-sex spouses.

But now it appears that labeling the person you live with your husband or wife is actually not going to measure the number of same-sex married couples but rather the number of couples who consider themselves spouses, whatever that means -- and I truly do not know what it means.

Gary Gates, demographer par excellence at Williams, explained to me that the census does not ask marital status. In other words, it does not ask you to say whether you are single, married, divorced, etc. He's right. But it does seem to me that asking us to choose "husband/wife" or "unmarried partner" actually is asking us to say if we are married. Admittedly, whether we are married can be contingent. Those couples who have married in a state or country that allows same-sex couples to marry are married in some places. I think they should mark the "husband/wife" box. Those who have not married are "unmarried partners." To me that is not a lesser status; it's just a different one.

The Williams Institute materials are clear that you can identify only one adult in your home as a "husband/wife." What about those who consider themselves married to more than one person? If the line isn't legal recognition, what is the limiting principle?

How about those who have entered a civil union or the kind of domestic partnership that confers virtually all the state-based consequences of marriage? This is a challenge. My partner and I have been registered domestic partners for many years. When I look at the census form I gravitate to "unmarried partner" because we are not married (and we don't plan to marry even though DC now allows it). Yet I admit that some couples who enter this status because it's available where they live may well consider each other husband/wife, and since there is no way to accurately capture their legal relationship then I'm okay with selecting whichever designation fits their own understanding.

But here's another puzzle in the advice from Williams. What does it mean to say that we "do not think of ourselves as spouses"? Either "spouse" has a meaning and you either are or are not, or, well, it has no meaning at all. If my partner and I were to marry I am not sure I would think of her as "my spouse" if that means some traditional notion of marriage. I know I would never call her my "wife." But if we marry, am I not supposed to check the "wife" box for her regardless of how we think of ourselves?

I've tried to think of this from a straight person's point of view. What do an engaged couple living together mark? "Fiance" is not an option, and they may never have thought of each other as "unmarried partners," but they know they are not yet husband/wife. What do they check? Or...how about the couple who think they are "common law" married but they aren't, because their state does not recognize common law marriage (only 10 and the District of Columbia do)? They will check "husband/wife" and it won't be accurate.

Gary Gates tells me that the Census Bureau wants all people who are not sure what to check to select the answer that best reflects their household as they understand it. I could not find that advice anywhere on the Census2010 website. But I did call the census "help line" and said I was in a same-sex registered domestic partnership and did not know which box to check. The person I spoke with said it was my "preference," and if I saw her as a "married partner" I should check "husband/wife" and if I saw her as a "unmarried partner" I should check that.

Gates also says, and I suspect he is right on this, that no amount of education by gay organizations would yield an accurate count of legally married same-sex couples given the constraints of the form itself. So what will gay groups say the census has shown once it's tabulated? Will they qualify the number of claimed "married couples" with the caveat that it is couples who think of themselves as married? I'm guessing there will be comparison of the geographical location, income, etc of those who identify as same-sex unmarried partners and those who identify as same-sex husbands/wives, rather than simply an adding together of the two catgories to tell us about same-sex couples in general. But the categories are unstable and I have trouble imagining what legitimate conclusions could be drawn from the raw data.

And here's another tantalizing nugget from Gates. Apparently the American Community Survey forms (they replaced what were once census "long" forms) ask both marital status and the relationship of the people in the household, and more same-sex couples check "husband/wife" than report being married. He's trying to sort out what that means. Fascinating, isn't it? He's going to have lots more sorting to do over the next several years.

Several witnesses will urge DC to retain domestic partnerships

Hearings on the bill to grant marriage equality in the District of Columbia begin today. So many people signed up to testify that the Committee on Public Safety and the Judiciary, chaired by Councilmember Phil Mendelson, has already announced that it will hear the first 100 today and the remaining ones next Monday.

I am number 49 on the list and so I will be testifying today. Naturally, I support marriage equality, but the bulk of my testimony urges the committee to remove the section of the bill that would end new domestic partnerships in DC effective January 1, 2011. You can read my entire testimony, but here is an excerpt:

From its inception in 1992, the status of domestic partnership in DC was about recognizing family relationships other than marriage. Unlike some jurisdictions, it was not a status granted only to same-sex couples and only because of their exclusion from marriage. Not only can different-sex unmarried couples register, but two people not in a romantic couple, including relatives, can register if they live together in a “committed, familial relationship.” Availability of marriage for same-sex couples, as a statement of the equal value of gay and straight relationships, does not diminish the appropriateness of providing a legal status to those who do not marry...

Once DC authorizes marriage for same-sex couples, it will be appropriate to reevaluate DC relationship recognition law. That work must include considering the needs of the wide range of family relationships that exist in this city – the very motivation for instituting domestic partnership in 1992. This is a critical undertaking, and we have numerous models to consider.

Let me give you just one example. The first substantial benefit granted to domestic partners in this city was the ability of a DC government employee to include a domestic partner on his or her employee benefits, including health insurance. Today, Salt Lake City, Utah public employees can cover on their benefits an “adult designee” and that person’s children. The employee and the adult designee must have lived together for more than year, must intend to continue living together, and must be economically dependent or interdependent, according to specific criteria. The City Council members who enacted this law articulated that they were recognizing nontraditional families and support systems, that they were allowing unmarried employees to provide for a primary family member, and that true equality recognizes the needs and living situations of all employees.

This Council could embark on such a reevaluation now, as part of this legislation. I believe the better course of action, however, is to leave our domestic partnership scheme intact until marriage equality is in place. At that point, I will wholeheartedly support, and gladly participate in, the Council’s careful determination of the needs of the wide range of relationships that make up the families of the District of Columbia.

I am in good company. Bob Summersgill and the vice president of the DC Gay and Lesbian Activists Alliance, Rick Rosendall, both oppose ending domestic partnerships. They are the number 1 and number 2 witnesses today, so this position will be articulated early on in the hearings. Bob and Rick have worked with Councilmember Mendelson over many years to create the domestic partnership regime we have in place. The New York-based Alternatives to Marriage Project has already submitted testimony opposing the end of domestic partnership here, and they are urging supporters to email the Councilmembers.

I'll be posting about today's hearing later.

Defining family for purposes of family caregiving leave

Thanks to Nan Hunter for alerting me to the proposed regulations implementing my favorite family leave policy: the one that allows federal government employees to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." I've had numerous posts on this topic. I love the current policy because it allows employees to define their own family members. Whenever advocates for marriage equality cite the unfairness of preventing one partner from caring for another who is ill, I always respond by arguing that the solution to that problem isn't marriage --- it's an employee leave policy like the federal government's! Such a policy encompasses same-sex couples but also ensures that unpartnered LGBT individuals, who may be estranged from or live far from their families of origin, can receive care from the people they consider members of their families of choice.

The proposed new regulations make clear that "domestic partners" are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other's "common welfare and financial obligations," but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands "in loco parentis" (in other words, functions as a parent).

Most importantly for my analysis, the broad definition of family remains. The regulations read:

"We are not re-defining the phrase ‘‘[a]ny individual related by blood or affinity’’ whose close association with the employee is the equivalent of a family relationship. We have broadly interpreted the phrase in the past to include such relationships as grandparent and grandchild, brother and sister-in-law, fiance´(e), cousin, aunt and uncle, other relatives outside definitions (1)–(4) in current 5 CFR 630.201 and 630.902, and close friend, to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law."

The late Senator Ted Kennedy was the lead sponsor of the "Healthy Families Act," proposed legislation that would require private employers to provide paid sick leave to their employees. It includes the same definition of whom a worker must be allowed to use their leave to care for as that contained in the standard for federal employees. There is also a movement to get states to pass such laws. Every paid sick leave bill has a definition of the family members the employees may use their leave to care for. I have long argued for the definition in the Healthy Families Act, and I continue to do so.

States with super-DOMAs (those prohibiting recognition of all unmarried couples as well as same-sex marriages) are probably unable to pass a paid sick leave law that includes "domestic partners." But such states can definitely use the broader definition of family. That definition does not single out couples for protection; it simply says that employees must be able to use their sick leave to care for the people closest to them whom they consider members of their family. It's been working for the federal government for 15 years. It respects diverse family relationships. It helps employees balance their work and caregiving responsibilities. And from a LGBT rights perspective it respects all our close relationships, not just those that mirror heterosexual marriage.

I have no problem with changes that specify that same- and different-sex couples are included regardless of marital status. I'm just thrilled they made it crystal clear that the broader definition of family remains. And I'd like to see LGBT rights groups advocate that broader definition in federal and state legislation.

A "beyond marriage" perspective on the anniversary of Stonewall

Lisa Duggan, an original drafter of the "beyond marriage" vision statement, has a piece in the Nation and appears on today's Democracy Now. In her Democracy Now interview, she is especially eloquent about who the movement for marriage equality leaves out and how thinking more broadly about family and relationship recognition can benefit more LGBT people and be a basis for building real alliances with straight people who also do not live in marital units. Check it out.

SEIU resolution values all families

Service Employees International Union (SEIU) has been reading my book, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law

Here is the full text of Resolution # 109 Adopted at the 2008 SEIU Convention

Valuing All Families

Members of SEIU work hard every day to provide for their families and build for them a better future. Our members’ love of and commitment to their families reflect true family values.

Members of SEIU live in a broad array of family structures. Many of us care for and live with family members– including aging parents, grandchildren, adult siblings, and more – who are not recognized by our employers or our government as “family” because they are not related to us by marriage, blood or adoption.

Laws and policies that narrowly define “family” as limited to two legally-married adults of the opposite sex raising their biological children are often used against immigrants, people of color and the working poor who are more likely to live in family structures that differ from this model.

Narrow definitions of family exclude many relationships that our members call family, including relationships with individuals for whom we have primary care-taking responsibility and relationships with individuals with whom we share economic and emotional interdependence.

Government and employer-provided benefits should support individuals with day-to-day responsibilities to care for and financially support minor children and dependent adults in all family forms, and should protect interdependent adult relationships.

Therefore be it resolved:

This convention affirms SEIU’s commitment to valuing all families, and to protecting the widest possible range of family structures.

SEIU will make it a collective bargaining and legislative goal to ensure that all of our members’ families are respected, protected, and enjoy equal rights and benefits.

SEIU will support and advocate for legislative efforts, at all levels of government, that allow workers to define for themselves who will be considered their family.

SEIU will oppose efforts to penalize working people who live in family structures different from the nuclear family model, such as “overcrowding” regulations that seek to restrict who is permitted to live together in one household and have been used to target immigrant communities and communities of color.

Thanks for Nicole Berner, SEIU Associate General Counsel, for bringing this to my attention (and telling me it was based on my book). Berner notes that this resolution allows SEIU to take positions consistent with the resolution without the need for further consideration or action. Thanks also to SEIU General Counsel Judith Scott for her decades of devotion to the labor movement.

More on Colorado's designated beneficiary law

Last week I wrote about the new Colorado law that allows any two unmarried adults to become "designated beneficiaries" and thus gain what essentially amounts to next-of-kin status. I love this law!

But it's still not a statute that matches the purpose of various laws to the families/relationships that the law should encompass. Here's what I mean. It's perfect that the law allows designation of a medical and burial decisionmaker and a person who will inherit if you die without a will. That's because the purpose of any law on those subjects is to advance individual autonomy.

But the selection of a designated beneficiary also establishes who can sue for wrongful death or obtain employee partner benefits. When I consider the purpose of those laws, I don't think autonomy; I think economic interdependence. So ability to recover for wrongful death should attach to anyone in a relationship of economic dependence or interdependence. No marriage or registration should be required. In fact, even married couples should have to show economic interdependence to come within these laws.

Colorado does this now for workers compensation survivors benefits. The purpose of these benefits is compensation for the loss of an economic provider. A spouse -- and now a designated beneficiary -- cannot receive the benefit if s/he was not living with the worker who died or not dependent, at least in part, on the worker who died. So far so good.

But the benefit should go to anyone dependent in whole or in part of the deceased worker. A few states do this now. Those laws should be models for all states.

I'm still so excited about the new Colorado law. It's a big improvement over the all-or-nothing status based on whether a couple is married, and I love the fact that the two people can pick the legal consequences they want. More laws like this and it will be easier to see the wisdom of matching the purpose of any law and the relationships subject to that law.

The extraordinary new Colorado law

When a legislature blinks on same-sex marriage, we hear about it in the news everywhere. But the law signed by Colorado's governor last week has garnered little attention, and it has some transformative possibilities that deserve lots and lots of attention. (Thanks to Bilerico's Alex Blaze for highlighting it -- but not a single comment to his post.) Colorado now has a simple form, with a menu of options, that allows any two unmarried people to designate each other as entitled to numerous legal consequences usually reserved to married couples.

The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.

Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.

In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.

Colorado has now come close to that model.

I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.

So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)

You'll be hearing more from me about the Colorado law soon.

2 Mums and a Dad...and the law in Australia

I've been in Australia for more than a month now, on a Fulbright Specialist grant, teaching, lecturing, conferring, etc at two universities -- University of Technology Sydney and University of Melbourne. Of all my duties here, one of the most fun was my participation today on a panel after a screening of the film 2 Mums and a Dad. Australian filmmaker Miranda Wills followed a lesbian couple and the man they choose as a semen donor/father for 18 months, during which time they planned for and had a child, negotiated and renegotiated their parenting arrangements, and went through many highs and lows.

This is not a how-to-do-it movie. And it is not a feel-good movie. It's the real story of real people, and it isn't always pretty. At the end of the movie, when Darren is upset about the restraints on his time with the baby, Marley, he tells the camera that his "trump card" is the desire of the two women to have another child with him. He figures that's the way he can get what he wants with Marley. I've rarely seen any behavior so unflattering in a parent.

I was pleased -- and more than a little surprised -- to learn from the filmmaker at the Q and A after the film that the three adults did, in fact, resolve their issues well and have another baby.

When the film was made, Darren would have been recognized as the child's father, and the nonbio mom would not have been a parent. But massive law reform in Australia has changed all that. Now a child born to a lesbian couple using donor insemination is the child of the two women and not of the donor. And the law is retroactive. A whole lot of children now have two moms -- even if the moms have since separated. All that's required is that the nonbio mom consented to the bio mom's insemination while the couple was together.

With this law reform, Australia joins a number of Canadian provinces in recognizing a child's two mothers from birth. No adoption required.

What about the donor? Well, in Australian law a person who is not a parent can still obtain a court order for access to a child if the person has a significant relationship with the child. So Darren would qualify (as did nonbio moms before the new law reform turned them into legal parents.) In other words, not being a legal parent doesn't leave a person who functions as a parent entirely at the whim of the legal parent, as so many US states do.

Four Australian lawyers spoke on the panel after the film, explaining the new laws. Two of the four are also parents -- both in four-parent families consisting of both a lesbian and a gay couple. One has a newborn, but the other has a seven-year-old. And that's a seven-year-old with four parents who work well together. But the law only recognizes two of them as parents.

In the US there have been a few third-parent adoptions. Those are adoptions that create a second legal mom for a child while leaving a semen donor with parental rights. Before we can figure out how best to protect the parent-child relationships in all our families, we in the US need to get the basic family form -- a lesbian couple who plans for and has a child as two moms -- recognized in American law. And a second-parent adoption shouldn't be required. Because a parent shouldn't have to adopt her own child. A husband doesn't have to adopt the child his wife gives birth to using donor insemination, and a lesbian couple shouldn't have to go through that process either.

The Australians have beaten us to it. Let's learn from them.

Something's Up in Colorado

Thanks to my colleague, Tony Varona, for alerting me to new legislation introduced in Colorado allowing two unmarried people to designate each other as entitled to make medical decisions, inherit, sue for wrongful death, and more, through use of a simple form.

I discussed an earlier Colorado effort along these lines in my book. The previous proposal, however, was not open to unmarried heterosexual couples. I said in the book, and I'll say again here, that any scheme that omits unmarried heterosexual couples reinforces the supremacy of marriage. It tells straight people that if they want to protect the economic or emotional security of their families they need to marry. And it tells everyone else that they have second-rate families and relationships, and since they can't marry the state will throw them some kind of bone.

Sure enough. The article reporting this legislation quotes a sponsor of the previous bill, Senator Shawn Mitchell, as opposed to this one because it includes different-sex couples. That, he says, dilutes marriage. Good thing, I say. And here's what a whole lot of Colorado folks have to say about the bill.

What makes a parent?

This is one of the most common questions that arises when same-sex couples have children. Seattle University law professor Julie Shapiro blogs almost exclusively on this topic. The significance of a genetic connection to the child is a constant theme.

So I was fascinated by last week's LA Times story about the Kincaid project, which involved DNA testing of 147 people named Kincaid. Two brothers discovered they had a different biological father, something they find too painful to discuss. The article quotes studies that suggest 4% of children are not the biological children of the man they consider their father. One man, Don Severs, was able to confirm that his great-great-great-grandfather was a Kincaid who had an affair with the family's housekeeper, who was then married off to a man named Severs. DNA testing can also uncover relatives who were never told they were adopted.

If we DNA tested every child, we would know at birth whether the mother's husband was the child's genetic father. We don't do this. That alone shows that we value some things above biology, and rightly so. At a recent symposium, I asked Brigham Young law professor Lynn Wardle whom he would consider the father of a child born to a married woman but not her husband's biological child. I posed the question with the assumption that the husband wants to raise the child as his own and the biological father wants to raise the child as well. His answer: the husband. He's not going to say that of course for a married or otherwise partnered same-sex couple. But once we set the stage for parenthood based on function, relationship, or anything not biology, we open the door for what the children of same-sex couples already know: biology is neither necessary or sufficient for parenthood.

A Conflict of Interest for Hillary Clinton? Isn't Marriage the Wrong Dividing Line?

Hillary Clinton's confirmation hearing contained many references to potential conflicts of interest posed by her job as Secretary of State in the face of fundraising by her husband -- our former president -- for his foundation. I've followed the controversy (which might be too large of word to use in this instance), and it makes me wonder.

Isn't it time to stop thinking of conflicts of interest in the specific context of marriage and other formal family relationships? It's a habit to think that way, but it's a habit that has outlived its usefulness. We want public officials who act in the public interest. All sorts of relationships might give pause, including unmarried partners and their family members and close friends whose well-being is dear to a person in consideration for a high government position.

When our laws limit required disclosures to spouses and immediate family, they miss the more expansive way many people define family today. Canada's Beyond Conjugality report addressed this is the context of financial dealings with banks and concluded that special rules should apply to anyone who had a close personal relationship with a director, officer, or significant shareholder of a bank. And, I might add, when that report came out Canadian law already included unmarried partners on the list of those subject to special rules.

All the talk about Hillary and Bill just reinforces the idea that it's their marriage that causes the possible conflict. But consider just one high-profile close friendship: Oprah Winfrey and Gayle King. If Oprah was up for a position subject to conflicts of interest concerns, I'd put Gayle on the list of folks who would be in the mix for investigation. Any law that missed her would really miss the point, wouldn't it?

BLACK JACK, MISSOURI DOES IT AGAIN

Thanks to the Alternatives to Marriage Project for bringing to my attention that Black Jack, Missouri is once again trying to keep an unmarried heterosexual couple raising children from living in the town. Go to the ATMP website and sign their petition.

LAWS FOR LGBT FAMILIES WITH CHILDREN

Tomorrow is “Blogging for LGBT Families Day.” Here’s my contribution:

The worst news recently for LGBT families was the decision of Maryland’s highest court that eviscerated the family of Janice and Margaret and their daughter, Maya. You see, only Janice legally adopted Maya. After the couple split up, Janice argued she was Maya’s only parent. The lower courts gave Margaret visitation rights as a “de facto” parent. Maryland courts had done this regularly since 2000. But the Maryland Court of Appeals decided that Maya had only one parent, and that Margaret was no different from a babysitter, neighbor, teacher, or relative. She would have to prove Janice’s unfitness or some other “extraordinary circumstances” in order to maintain her relationship with her daughter.

LGBT families are challenging conventional definitions of parenthood. Children are losing when the courts make narrow legalistic rulings that don’t reflect the child’s lived reality. So here’s my platform for respecting the families we create:

1) Stay out of court! Where were Janice’s friends when she was arguing that Margaret was nothing more than a babysitter? If Janice thinks Margaret is a bad parent, let her argue that, but if she thinks Margaret is not a parent at all, well even her closest friends should tell her she’s wrong. We all recognize as anti-gay the argument a straight parent may make that his or her now-gay former spouse shouldn’t get custody of a child because gay parents shouldn’t raise children. It’s time to recognize that using law designed for heterosexual families to argue that a gay parent isn’t a parent is just as bad. Unless one partner has been physically violent, a couple who can't resolve their dispute about custody and visitation should use a gay-friendly mediator to help resolve their differences.

2) We need new laws that do a better job of assigning parentage, and here are some proposals. They are only a start!

1. A semen donor is not a parent unless he has an agreement in writing to the contrary with the semen recipient. This is what most people intend when a lesbian uses a known donor, so it should be the default rule. But it also leaves room for recognizing the donor as a parent if the participants write that down. Last year the Kansas Supreme Court upheld the constitutionality of such a statute.

2. The partner of a woman who conceives through donor insemination is also a parent of the child if both women agree at the time she will be a parent. That’s similar to the rule that applies to married couples, and there should be no difference if a couple is unmarried – same-sex or different-sex. Such a rule would have required a Massachusetts woman to pay child support for a child born to her former partner. Instead, she got to walk away from a child she participated in creating.

3. If a couple agrees to adopt a child but only one person legally adopts (something many states require), the other partner acquires “de facto” parent status immediately, with an equal right to custody and visitation and an equal obligation to pay child support. That’s a law that would have helped Margaret and Maya maintain their relationship, and as of 2007 it’s the law in the District of Columbia (DC Code 16-831.01).

Finally, marriage/civil union/domestic partnership isn't the law that's going to solve these problems. An unmarried heterosexual couple who has a child together are every bit as much the parents of that child as a married heterosexual couple. We need the same result for our families, but without the biological connection to both parents we need a different set of laws. Plus, in many states marriage only creates a "presumption" that the husband is the child's father. If it's a presumption that can be rebutted by showing the lack of biological connection, well...that still leave our families vulnerable.

Do you live in a state that allows second-parent adoption? Find out by contacting the National Center for Lesbian Rights or, if you are in New England, Gay & Lesbian Advocates & Defenders (GLAD). Do it if you can! It's the best protection for your parent-child relationships...even if you are married, in a civil union, or in a domestic partnership.