Support of adoption by LGBT individuals and couples on the White House website? It is amazing, but the White House doesn't control adoption law. States do that, and, like Arkansas in the last election, states can decide to limit adoption to married couples, to single people who live alone, or to whomever they want (subject to Constitutional challenge like that of the ACLU to the Arkansas law).
For updates on state, as well as federal, politics, and on movement building and racial justice and trans issues and all sorts of things, head to Denver next week for Creating Change, the annual conference sponsored by the National Gay and Lesbian Task Force. The conference begins with two day-long institutes on Wednesday and Thursday, followed by a nine workshop sessions and four plenaries through Sunday afternoon.
I'll be there, doing a Beyond Marriage 2009 workshop, with Nicky Grist of Alternatives to Marriage Project, Terry Boggis of Center Kids, and immigration activist Debanuj DasGupta. The whole program book is now on line, so you can check it out yourself. Freedom to Marry will be there, and certainly there will be talk of marriage and a Prop 8 debrief. But this is the place if your issue is NOT marriage and you want to connect to activists from around the country.
I'm excited about many of the participants, but I'll just highlight two. Pam Chamberlain of Political Research Associates will be there, and her group does critical work on fighting the right wing (and no, they're not going away just because we elected Barack Obama). PRA has recently published scathing reports on what's wrong with federal marriage promotion. John D'Emilio will also be speaking, and his article in the Gay and Lesbian Review remains one of the clearest and most scathing critiques there is of the gay rights movement fight for marriage.
If you come to the conference, please come to Beyond Marriage 2009 and introduce yourself to me!
Thursday, January 22, 2009
Friday, January 16, 2009
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?
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?
Tuesday, January 13, 2009
Former unmarried partner entitled to pension share; thank you again, Washington State
I use Washington state as a shining example of "beyond marriage" in action because its courts will divide property at the end of a nonmarital relationship no matter whose name appears on the property. It is the only state that does this.
Yesterday the 9th US Circuit Court of Appeals ruled that Washington's recognition of "marital rights" to half of a former partner's pension must be implemented by the pension plan and does not violate the federal ERISA law. The case, Owens v. Automotive Machinists Pension Trust, upholds the validity of an state court order granting Norma Owens a 50% interest in her former partner's pension.
ERISA law is complex. Normally, a pension can be paid out only to the person who earned it. But often when a marriage ends the only thing of value is that pension. Federal law allows a portion of the pension to be paid to a former spouse if there is a QDRO (Qualified Domestic Relations Order) in place. Thus it is common for a divorce judgment to include a QDRO as a way of fairly compensating the non-income earning spouse for her contributions to the marriage.
In this case, Norma and Phillip Owens lived together for more than 30 years, raised two children, and held themselves out as a married couple. Phillip earned the money and Norma took care of the home and children. When their relationship ended, their remaining assets were used to pay off debts and the only thing of value left was Phillip's pension. Because Washington treats property acquired during an unmarried relationship as community property, Norma was awarded 50% of the pension.
The pension plan refused to implement this order, claiming that Norma could not receive "marital property rights" because she was not married to Phillip. But the federal court deferred to the definition of marital property rights in Washington state law and upheld Norma's eligibility. The pension plan also argued that the federal Defense of Marriage Act banned recognition of rights for an unmarried partner, but the court ruled that
"DOMA’s legislative history reflects only Congress’s concern for same-sex marriages; it
sheds no light on quasi-marital relationships such as the relationship between Phillip
and Norma that is at issue here."
So what if Norman had been Norman? I'm going to bet on the same result. In Washington state, same-sex and different-sex unmarried partners are treated identically, so a court might well award Norman a share of Phillip's pension. The court would not be asked to recognize a marriage between Phillip and Norman, but rather the rights Norman would have in Phillip's pension as a result of their nonmarital relationship, just like Norma.
So consider this: In Massachusetts or Connecticut, a married same-sex spouse might receive a QDRO upon divorce, but that order might NOT be implemented because of DOMA. But if more states recognized property rights regardless of marital status, gay and straight ex-partners alike would have their economic security preserved.
Yesterday the 9th US Circuit Court of Appeals ruled that Washington's recognition of "marital rights" to half of a former partner's pension must be implemented by the pension plan and does not violate the federal ERISA law. The case, Owens v. Automotive Machinists Pension Trust, upholds the validity of an state court order granting Norma Owens a 50% interest in her former partner's pension.
ERISA law is complex. Normally, a pension can be paid out only to the person who earned it. But often when a marriage ends the only thing of value is that pension. Federal law allows a portion of the pension to be paid to a former spouse if there is a QDRO (Qualified Domestic Relations Order) in place. Thus it is common for a divorce judgment to include a QDRO as a way of fairly compensating the non-income earning spouse for her contributions to the marriage.
In this case, Norma and Phillip Owens lived together for more than 30 years, raised two children, and held themselves out as a married couple. Phillip earned the money and Norma took care of the home and children. When their relationship ended, their remaining assets were used to pay off debts and the only thing of value left was Phillip's pension. Because Washington treats property acquired during an unmarried relationship as community property, Norma was awarded 50% of the pension.
The pension plan refused to implement this order, claiming that Norma could not receive "marital property rights" because she was not married to Phillip. But the federal court deferred to the definition of marital property rights in Washington state law and upheld Norma's eligibility. The pension plan also argued that the federal Defense of Marriage Act banned recognition of rights for an unmarried partner, but the court ruled that
"DOMA’s legislative history reflects only Congress’s concern for same-sex marriages; it
sheds no light on quasi-marital relationships such as the relationship between Phillip
and Norma that is at issue here."
So what if Norman had been Norman? I'm going to bet on the same result. In Washington state, same-sex and different-sex unmarried partners are treated identically, so a court might well award Norman a share of Phillip's pension. The court would not be asked to recognize a marriage between Phillip and Norman, but rather the rights Norman would have in Phillip's pension as a result of their nonmarital relationship, just like Norma.
So consider this: In Massachusetts or Connecticut, a married same-sex spouse might receive a QDRO upon divorce, but that order might NOT be implemented because of DOMA. But if more states recognized property rights regardless of marital status, gay and straight ex-partners alike would have their economic security preserved.
Tuesday, January 6, 2009
New York Times Comes Through Again...Who's Listening?
This morning's New York Times editorial condemning Arkansas's ban on adoption and foster parenting by anyone living with a same-sex partner or unmarried different-sex partner is a welcome piece of advocacy. NYT calls the law "offensive" and urges the court to strike it down.
More than 15 years ago, I received a call from a member of the NYT editorial board. The board had decided to editorialize after a Virginia judge removed a child from the custody of his mother, Sharon Bottoms, and placed him with Sharon's mother. The Bottoms case received unprecendent press coverage. And so the New York Times published its first editorial expressing unequivocal support of lesbian and gay parents. "In deciding what's best for a child," NYT wrote, "it's fair to look at a large range of issues. But the sexual orientation of parents is not one of them. Gay parents should not have to live in fear of losing their children simply because of who they are."
In some states, LGBT parents still risk losing custody of their children to a heterosexual parent after a divorce. And gay rights advocates expect efforts to reproduce the Arkansas initiative in other states.
I was ecstatic with the 1993 NYT editorial. When the Virginia Court of Appeals reversed the trial judge in Bottoms, citing the research demonstrating no harm to children raised by lesbian mothers, I thought it was the beginning of the end of discrimination against lesbian and gay parents. But the Virginia Supreme Court overturned that Court of Appeals decision, and young Tyler never did go back to his mother.
And as for recognition of the research on the well-being of children with lesbian and gay parents, well it certainly has not received universal acceptance. Neither has the position of the New York Times. Still, today's editorial is a good read.
More than 15 years ago, I received a call from a member of the NYT editorial board. The board had decided to editorialize after a Virginia judge removed a child from the custody of his mother, Sharon Bottoms, and placed him with Sharon's mother. The Bottoms case received unprecendent press coverage. And so the New York Times published its first editorial expressing unequivocal support of lesbian and gay parents. "In deciding what's best for a child," NYT wrote, "it's fair to look at a large range of issues. But the sexual orientation of parents is not one of them. Gay parents should not have to live in fear of losing their children simply because of who they are."
In some states, LGBT parents still risk losing custody of their children to a heterosexual parent after a divorce. And gay rights advocates expect efforts to reproduce the Arkansas initiative in other states.
I was ecstatic with the 1993 NYT editorial. When the Virginia Court of Appeals reversed the trial judge in Bottoms, citing the research demonstrating no harm to children raised by lesbian mothers, I thought it was the beginning of the end of discrimination against lesbian and gay parents. But the Virginia Supreme Court overturned that Court of Appeals decision, and young Tyler never did go back to his mother.
And as for recognition of the research on the well-being of children with lesbian and gay parents, well it certainly has not received universal acceptance. Neither has the position of the New York Times. Still, today's editorial is a good read.
Friday, January 2, 2009
Why Lawyers Recommend Second-Parent Adoptions (even if you're married)
When I posted on Thomas Beatie (aka the pregnant man), I noted that his wife Nancy needs to adopt their child to be certain that her relationship with the child will be protected and recognized everywhere. (My crosspost on Bilerico generated many, often indignant, comments). All the LGBT legal groups advise same-sex couples to do second-parent adoptions, even when they are married, or in civil unions or domestic partnerships that give both people parental rights over a child born to either of them.
A recent decision from a federal court judge in Louisiana explains why. In that case, litigated by Lambda Legal, the state of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy.
Rejecting the state's argument, the District Court Judge Jay Zainey explained the meaning of the federal constitution's "full faith and credit" clause. That clause requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. The judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." (my emphasis). But, Judge Zainey continued,
"There is no 'roving public policy exception' to the full faith and credit obligation of states to recognize judgments. Instead, the Supreme Court has held in a number of cases that full faith and credit must be given to the judgment of another state even if...the judgment contravenes the public policy of the forum state." (my emphasis)
So if someone is the parent of a child by virtue of a state statute that gives that person a status with respect to the person who gave birth to the child (spouse, domestic partner, civil union partner), another state may not recognize that parent-child relationship. But an adoption is a court proceeding that results in a judgment granting the adoption, and that must be given full faith and credit, even in states hostile to gay families.
Readers of this blog and my book know that I abhor the argument that same-sex couples should be allowed to marry for the sake of their children. Marriage equality advocates make claims about the benefits to children of having married parents. Since no child is supposed to face discrimination as a result of having unmarried parents (whether those parents are same-sex or different-sex), I always argue that the solution to any disadvantage is to clarify that marriage is not necessary for children of either straight or gay couples.
But the claimed benefits of marriage for children are also misleading. If a married same-sex couple thinks they are both parents of the child born to one of them, they may be in for a shock if they move to or travel in a state that doesn't recognize their marriage (more than 40!). It's a second-parent adoption that protects the parent-child relationship, and for that the couple doesn't need to be married!
A recent decision from a federal court judge in Louisiana explains why. In that case, litigated by Lambda Legal, the state of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy.
Rejecting the state's argument, the District Court Judge Jay Zainey explained the meaning of the federal constitution's "full faith and credit" clause. That clause requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. The judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." (my emphasis). But, Judge Zainey continued,
"There is no 'roving public policy exception' to the full faith and credit obligation of states to recognize judgments. Instead, the Supreme Court has held in a number of cases that full faith and credit must be given to the judgment of another state even if...the judgment contravenes the public policy of the forum state." (my emphasis)
So if someone is the parent of a child by virtue of a state statute that gives that person a status with respect to the person who gave birth to the child (spouse, domestic partner, civil union partner), another state may not recognize that parent-child relationship. But an adoption is a court proceeding that results in a judgment granting the adoption, and that must be given full faith and credit, even in states hostile to gay families.
Readers of this blog and my book know that I abhor the argument that same-sex couples should be allowed to marry for the sake of their children. Marriage equality advocates make claims about the benefits to children of having married parents. Since no child is supposed to face discrimination as a result of having unmarried parents (whether those parents are same-sex or different-sex), I always argue that the solution to any disadvantage is to clarify that marriage is not necessary for children of either straight or gay couples.
But the claimed benefits of marriage for children are also misleading. If a married same-sex couple thinks they are both parents of the child born to one of them, they may be in for a shock if they move to or travel in a state that doesn't recognize their marriage (more than 40!). It's a second-parent adoption that protects the parent-child relationship, and for that the couple doesn't need to be married!
Wednesday, December 31, 2008
End of the Year Thoughts on Beyond (Straight and Gay) Marriage
Well, this is my first year keeping a blog, and it's been a big one. My book came out in February, and now it's in paperback. I've traveled around the country and met so many people who have appreciated my point of view. Perhaps my favorite comment after one of my talks came last spring from a marriage equality activist in California who told me that my book articulated for her the things she had felt uneasy about in her work -- but that she had never had the words to explain why. So many gay rights advocates fall into marriage equality work without questioning it, without realizing there are other ways to think about families and relationships.
When people ask me why I wrote the book I tell them about my law students. For all of their politically aware lives, same-sex marriage has been in the news. The Defense of Marriage Act (DOMA) passed Congress in 1996. States passed "mini-DOMAs." Vermont enacted civil unions in 2000. Marriage in Massachusetts in 2003; introduction of a Federal Marriage Amendment; passage of state constitutional amendments banning same-sex marriage in the majority of states; blaming (wrongly) the turnout for the ballot initiatives on those amendments for Bush's victory in 2004; marriage in California; Prop 8; and so much more. That's what they've heard.
So my students come to law school thinking that the only thing wrong with family law and marriage is that gay couples can't marry, and that the problems gay people face will be solved by marriage. Since they (overwhelmingly) support gay rights, they of course support marriage for same-sex couples.
I wrote the book to give them another lens. The early gay rights movement contributed to a critique of marriage and was part of a set of forces that changed the significance of marriage. Those forces included feminism and the sexual revolution that destigmatized nonmarital sex and brought increasing acceptance of women without husbands bearing children. The legal changes that accompanied those social forces made marriage matter less: the end of sex discrimination in marriage, the right to abortion, legal equality for children born to married and unmarried women, no fault divorce.
Today, it is the right-wing "marriage movement," of which I've written much this past year, and the gay rights marriage equality movement that make the most noise about how much marriage matters. Sure, they have different visions, but marriage is at the center of both of those visions. Forced to choose between the two, I will always pick marriage equality. But my vision is really altogether different. It is of a world where our laws support economic security and emotional peace of mind for the wide range of families and relationships that exist among LGBT -- and straight -- people; one where, as I often put it, marriage is not the dividing line between the relationships that count and those that don't.
When I get a chance to relate my vision -- to my students and to the audiences who come to hear me speak -- I get so much positive feedback. And if I can help move public policy in the direction of that vision, I will feel that I have really been of use.
Happy new year to all.
When people ask me why I wrote the book I tell them about my law students. For all of their politically aware lives, same-sex marriage has been in the news. The Defense of Marriage Act (DOMA) passed Congress in 1996. States passed "mini-DOMAs." Vermont enacted civil unions in 2000. Marriage in Massachusetts in 2003; introduction of a Federal Marriage Amendment; passage of state constitutional amendments banning same-sex marriage in the majority of states; blaming (wrongly) the turnout for the ballot initiatives on those amendments for Bush's victory in 2004; marriage in California; Prop 8; and so much more. That's what they've heard.
So my students come to law school thinking that the only thing wrong with family law and marriage is that gay couples can't marry, and that the problems gay people face will be solved by marriage. Since they (overwhelmingly) support gay rights, they of course support marriage for same-sex couples.
I wrote the book to give them another lens. The early gay rights movement contributed to a critique of marriage and was part of a set of forces that changed the significance of marriage. Those forces included feminism and the sexual revolution that destigmatized nonmarital sex and brought increasing acceptance of women without husbands bearing children. The legal changes that accompanied those social forces made marriage matter less: the end of sex discrimination in marriage, the right to abortion, legal equality for children born to married and unmarried women, no fault divorce.
Today, it is the right-wing "marriage movement," of which I've written much this past year, and the gay rights marriage equality movement that make the most noise about how much marriage matters. Sure, they have different visions, but marriage is at the center of both of those visions. Forced to choose between the two, I will always pick marriage equality. But my vision is really altogether different. It is of a world where our laws support economic security and emotional peace of mind for the wide range of families and relationships that exist among LGBT -- and straight -- people; one where, as I often put it, marriage is not the dividing line between the relationships that count and those that don't.
When I get a chance to relate my vision -- to my students and to the audiences who come to hear me speak -- I get so much positive feedback. And if I can help move public policy in the direction of that vision, I will feel that I have really been of use.
Happy new year to all.
Tuesday, December 23, 2008
If you read ONE article on Prop 8, make it this one
I've been silent about the Prop 8 debacle because I had nothing to add, but today I read a piece that is so good I have to recommend it to everyone. Surina Khan, who was once the ED of the International Gay and Lesbian Human Rights Commission, has written an article on how the right got Prop 8 passed. It appears on the website of Political Research Associates, whose research on the right is must reading for anyone working for progressive social change.
The organizing efforts she describes were amazing, rivaling the organizing that got Barack Obama elected. In fact, the Yes on Prop 8 folks implemented the same strategy on election day that I was involved in as part of the Hampton, VA Obama organizing effort. Pre-election day, 100,000 Prop 8 supporters identified voters who were with them. On election day, they made sure those voters turned out; five workers in every precinct contacted those who had not yet voted to get them to the polls. (In Hampton, the woman I stayed with received 5 phone calls from Obama volunteers -- this because she had not cast her vote before 1:30 pm, when volunteers at the precincts delivered to volunteers on the phones the names of those who had voted so that those who hadn't could be contacted.)
Surina Kahn's article does more than describe the superior organizing work of the right wing leaders who developed the Yes on 8 strategy. She says:
it’s important to recognize that the Christian Right’s opposition to same-sex marriage is only one part of a broader pro- (heterosexual) marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom.
She criticizes marriage equality as a stand alone issue and urges a broad coalition effort to strengthen diverse households and families. Among the issues she names are economic security, immigration status, incarceration, and health benefit for non-married family members.
Too often, when the marriage equality movement talks about coalition building, what it means is getting organizations with other primary missions to support marriage for same-sex couples. That is not real coalition building. Real coalition building is getting groups to work together on common concerns, recognizing the ways they rise and fall together. In the early days of the gay rights movement, we did this. The coalition that fought the attempt of the right to capture the 1979 White House Conference on Families included gay rights groups, feminist groups, reproductive rights groups, and about fifty moderate and liberal mainstream organizations. (I discuss this in my book, but for all the details you'll have to go to get an out-of-print book (try your library) -- Creating Change: Sexuality, Public Policy, and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid, and read the chapter by Thomas J. Burrows, who was there through it all.)
Surina Khan was one of the drafters of the Beyond Marriage statement. She's a wise woman and this is a wise piece.
The organizing efforts she describes were amazing, rivaling the organizing that got Barack Obama elected. In fact, the Yes on Prop 8 folks implemented the same strategy on election day that I was involved in as part of the Hampton, VA Obama organizing effort. Pre-election day, 100,000 Prop 8 supporters identified voters who were with them. On election day, they made sure those voters turned out; five workers in every precinct contacted those who had not yet voted to get them to the polls. (In Hampton, the woman I stayed with received 5 phone calls from Obama volunteers -- this because she had not cast her vote before 1:30 pm, when volunteers at the precincts delivered to volunteers on the phones the names of those who had voted so that those who hadn't could be contacted.)
Surina Kahn's article does more than describe the superior organizing work of the right wing leaders who developed the Yes on 8 strategy. She says:
it’s important to recognize that the Christian Right’s opposition to same-sex marriage is only one part of a broader pro- (heterosexual) marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom.
She criticizes marriage equality as a stand alone issue and urges a broad coalition effort to strengthen diverse households and families. Among the issues she names are economic security, immigration status, incarceration, and health benefit for non-married family members.
Too often, when the marriage equality movement talks about coalition building, what it means is getting organizations with other primary missions to support marriage for same-sex couples. That is not real coalition building. Real coalition building is getting groups to work together on common concerns, recognizing the ways they rise and fall together. In the early days of the gay rights movement, we did this. The coalition that fought the attempt of the right to capture the 1979 White House Conference on Families included gay rights groups, feminist groups, reproductive rights groups, and about fifty moderate and liberal mainstream organizations. (I discuss this in my book, but for all the details you'll have to go to get an out-of-print book (try your library) -- Creating Change: Sexuality, Public Policy, and Civil Rights, edited by John D'Emilio, William Turner, and Urvashi Vaid, and read the chapter by Thomas J. Burrows, who was there through it all.)
Surina Khan was one of the drafters of the Beyond Marriage statement. She's a wise woman and this is a wise piece.
Subscribe to:
Posts (Atom)