NCLR attorney Maya Rupert ties marriage equality to support for all families

The National Center for Lesbian Rights Federal Policy Director, Maya Rupert, wrote a terrific blog post that appeared on the Huffington Post yesterday. "The fight for marriage equality is about fighting for equal recognition of all families," Rupert writes. "It's about combating the assumption that someone else can tell us what our families should look like." The piece highlights the common interest shared by both LGBT families and black families in protecting all family forms. Highly recommended read!

You want to add the name of the person you live with to your deed and mortgage? Now you can.

Is an explanation of a long hiatus in blogging necessary? I took a long summer vacation and then there were all those just-getting-back-to-work efforts (and the Lavender Law conference). But it's the day after Labor Day, a traditional day for new beginnings (to be followed shortly by the Jewish New Year tomorrow night), so this is a great day to resume, and I get to do it with good news.

Lambda Legal has settled a case on behalf of a lesbian couple who faced foreclosure when one partner added the name of the other to her deed. In 2005, Countrywide Mortgage told Adola DeWolf that, because her partner Laura Watts was not a member of her family, the addition of Watts to her deed was grounds for calling in the mortgage. Had the couple been unable to refinance within 30 days, DeWolf would have faced foreclosure and the couple could have lost their home. Lambda filed suit in 2007 alleging violating of the Equal Credit Opportunity Act which prohibits discrmination on the basis of marital status.

In my 2008 book, Beyond (Straight and Gay) Marriage, I criticized Lambda's messaging of the DeWolf case. The original press release turned the case into a call for marriage equality by saying that had the couple been able to marry they would not have been mistreated. Lambda also called for home loan lenders to "treat unmarried same-sex couples as they do married different-sex couples." I criticized this spin because federal law bans marital status discrimination and should therefore protect all unmarried couples, gay or straight. No one should have to get married to add a partner's name to a deed and mortgage, and I thought that should have been the message around the case.

Well Lambda has done better than achieve equality for all couples, married or unmarried. After negotiations with Fannie Mae (whose policies, according to Countrywide, required their action against DeWolf), Lambda has announced that Fannie Mae will now allow a homeowner to add the name of anyone who will live in the home to the deed and mortgage. That's a great result because it doesn't privilege couples of any sort, married or unmarried, over any other people who choose to live together and share the ownership of and financial responsiblity for a home. So a couple need not marry and others who want to live together and pool resources, like close friends or two single moms, can also add a name to a deed and loan without discrimination.

This Lambda victory is a "beyond marriage" victory. Congratulations all around.

Contemplating gay and lesbian families in New Mexico in 2010

I'll be heading home to DC tomorrow from our annual end-of-year sojourn to our second home in Las Cruces, NM. There's lots to keep an eye on in New Mexico in the coming weeks.

On January 1, 2010, New Mexico's new parentage laws go into effect. Read Sections 7-703 & 704 of the new statute. It says that "a person who...consents to assisted reproduction...with the intent to be the parent of a child is a parent of the resulting child." The consent is supposed to be in writing before the assisted reproduction takes place. If the requisite written consent does not take place, the intended parent is still a parent "if the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent’s own."

New Mexico thus becomes the second jurisdiction in the country to recognize the parentage of the same-sex partner of a woman who conceives through donor insemination. The District of Columbia was the first. Because the DC statute also amended the law governing birth certificates, lesbian couples in DC can now receive a birth certificate naming both women as parents. It remains to be seen whether New Mexico will make it easy for lesbian couples to obtain original birth certificates listing both moms. Otherwise, the couple will need to seek a parentage order from a court. Even if the birth certificate does list both moms, the couple should get a court order of parentage or adoption to guarantee that other states will recognize both women as parents. As I've said about lesbian moms in DC, only a court order is entitled to "full faith and credit" in other states.

As for couple recognition, New Mexico is one of a small handful of states that has no "defense of marriage act." But it also has no legal status available to same-sex couples. There will be numerous opportunities for the state and the courts to determine whether same-sex couples married elsewhere will be recognized as married in New Mexico. Albuquerque attorney N. Lynn Perls reported earlier this year that when a child is born to a lesbian couple married elsewhere the state will issue a birth certificate naming both women as parents if there is also evidence of no other parent (meaning, I assume, proof of anonymous donor insemination or perhaps known donor insemination in a state that makes clear the donor is not a parent).

Governor Bill Richardson supports domestic partnership legislation, but the bill introduced in the 2009 legislative session failed. Rumor has it he will try again. This year's session is only 30 days (January 19 to February 18) so the suspense won't last long. To date, no DP bill has been pre-filed. (A DOMA bill has been pre-filed, calling for a vote on a constitutional amendment stating that marriage is only between a man and a woman; no one thinks there's danger of that bill passing.) Equality New Mexico will be front and center on these legislative issues.

Meanwhile, when discussing New Mexico I always like to mention that unmarried partners are entitled to make medical decisions for each other here, even without medical powers of attorney. If a person isn't married, top priority in the absence of a medical power of attorney goes to "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being." (That's N.M. Stat 24-7A-5). New Mexico also allows an unmarried partner to recover damages under certain circumstances if his or her partner dies as the result of someone's negligence. This makes New Mexico one of the states that sometimes values all families, along the lines I advocate in my book.

Same-sex and different-sex domestic partners of foreign service personnel to receive benefits

The Advocate has printed the draft of a letter by Secretary of State Hillary Clinton detailing the extension of benefits to the domestic partners of foreign service personnel assigned abroad. In describing the letter, the Advocate article begins by saying it "details her intentions to extend certain benefits to same-sex partners of foreign service officers posted abroad."

This characterization of Clinton's letter is true, but it is also incomplete. The benefits will be extended to both same-sex AND different-sex domestic partners. Clinton's letter says, "At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do." The Advocate article gets to this at the end of its fourth paragraph.

While granting benefits to same-sex partners is huge, granting them to different-sex partners is monumental. The original concept of domestic partnership, dating to the early 1980's, was that marriage should not be a prerequisite for various legal consequences. The first domestic partner employee policies covered both gay and straight couples.

Over time, the right wing started blaming all social problems on the decline of life-long heterosexual marriage, and "marriage promotion" became a staple of public policy. And the gay rights movement made achieving access to marriage a priority. In this context, many employers chose to provide domestic partner benefits only to same-sex couples. Since different-sex couples could marry, they had to marry to obtain the benefits. By this thinking, domestic partner benefits existed solely to compensate gay employees for the inability to marry. With such a rationale, no wonder several Massachusetts employers stopped offering domestic partner benefits once same-sex couples there could marry.

In an earlier post on Senate hearings on extending same-sex domestic partner benefits to all federal employees, I noted that Maine Senator Susan Collins spoke favorably about covering both different-sex and same-sex couples. I hope that Clinton's decision gives a needed push to this more inclusive approach.

Same-sex marriage proponents often say they want couples to have the choice to marry. But it's no choice if it's the only path to protecting the economic security of an employee's family. Thank you, Secretary Clinton, for really getting it.

Next I'll be looking at these important details when the policy is released: how is domestic partner defined, and when can an employee obtain benefits for children who are the legal children only of the partner? Stay tuned.

Remember this about Washington state law when the Governor signs Domestic Partnership bills on Monday

On Monday, May 18, Governor Gregoire will be signing the bills expanding domestic partnership in Washington state. Once the provisions go into effect (some --the ones that cost the state the most money-- are not effective until 2014!), registered domestic partners in Washington will have all the state-based consequences of marriage. The Washington approach mirrors that of California's domestic partnership laws.

This is a good time to note a way in which Washington state is unique in the US. Both married and unmarried couples (different-sex and same-sex) get the same rules of property division when they split up. By virtue of a number of state supreme court opinions, community property principles apply to the breakup of cohabiting couples even if they have not married.

The American Law Institute recommended almost a decade ago, in its Principles of the Law of Family Dissolution, that the financial consequences of ending a domestic partnership and ending a marriage should be the same. They used Washington state as one of their models. (Australia has such rules as well).

To me, this is a no-brainer. The division of property always looks backwards at how the couple lived. A court can do that just as easily for an unmarried couple as for a married couple. The reason we don't apply general contracts and property law to divorces is that special rules are needed to prevent injustice; a spouse may act for the common good of the family or household, and without special rules (s)he could be left with nothing. Well the same holds true for unmarried partners, and they deserve justice as well.

Consider this fact, which continues to amaze me: In British Columbia, in 1972, the courts ruled that when an unmarried couple splits up one partner can be required when appropriate to provide some ongoing financial support to the other partner. More than thirty-five years later, not a single American state has such a rule. Even Washington state. But at least they have gone part of the distance towars recognizing that marriage (and now registration as domestic partners) shouldn't be the dividing line between relationships that count and those that don't.

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.

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.

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.

DIVIDING THE PROPERTY WHEN A RELATIONSHIP ENDS

Lambda Legal won a case this week for a California man who thought he was in a registered domestic partnership, only to find when his relationship ended that his partner hadn't filed all the paperwork. The appeals court held that the "putative spouse" doctrine, which protects a spouse who thinks s/he is married but isn't (say her "spouse" lied about getting a divorce from his wife), should apply to those in domestic partnerships. Lambda has spun this case as evidence that only marriage equality can protect partners. But there IS another option, and it's a better one for family policy. Like Washington state, all states should extend the rules designed to do economic justice when a marriage ends to cohabiting unmarried couples. The mainstram American Law Institute recommends this in Chapter 6 of its Principles of the Law of Family Dissolution.

THE LESSON OF ACADEMY AWARD WINNING "FREEHELD"

The best short documentary Oscar went to "Freeheld," a film about a dying police officer's fight to ensure that her surviving partner would receive her pension. Gay rights groups are using the example of this movie as evidence of the need for marriage for same-sex couples. But the actual ending of the story is that the law changed to allow officers to leave their pensions to anyone they choose! This is the right result. If same-sex couples could marry, and officers could only leave pensions to their surviving spouses, then married gay and straight couples would be protected. But what about everyone else? The officer earned that pension and should be able to pass it on to those who need it most. That has nothing to do with marriage. Let's achieve marriage equality where possible as a civil rights goal. Let's achieve family policies that value all families. That will help more LGBT -- and straight -- people.

CALIFORNIA CONSIDERING MARRIAGE EQUALITY...BUT ALREADY VALUES ALL FAMILIES IN ONE IMPORTANT WAY

On Tuesday, March 4, the California Supreme Court will hear THREE HOURS of oral arguments in the cases seeking access to marriage for same-sex couples. With so much attention focused on California, it would be great for everyone to notice an aspect of California law that should be a model for all states -- including those with explicitly anti-gay policies. In California, a household member who depends on a worker's income can receive survivor's benefits if that worker dies on the job; marriage is NOT a prerequisite! Now that's an example of a law that values all families! The purpose of worker's comp survivor's benefits is to compensate someone for the loss of an economic provider; marriage is irrelevant to achieving that purpose. When openly gay San Francisco Supervisor Harvey Milk was assassinated in 1978, his surviving partner received these benefits. Marriage isn't the only way -- or the best way -- to assure economic security and emotional peace of mind for all families and relationships.