Wisconsin court leaves stand a parentage order for a nonbio mom but precludes such orders in the future

The most horrific part of last month's North Carolina Boseman v. Jarrell opinion against second-parent adoption was that it said the court that granted the adoption lacked "subject matter jurisdiction," which means that the order was void, along with all second-parent adoption orders, the moment it was granted. That wiped out every second-parent adoption in the state.

Well, within days of that opinion a Wisconsin appeals court ruled in Dustardy H. v. Bethany H. that the state does not allow a nonbio mom to obtain a parentage order, but it refused to vacate the order that a court had granted in 2004. The trial court did have subject matter jurisdiction, the appeals court ruled, and therefore, although the order was erroneously granted, it remains in effect because the bio mom did not challenge it in enough time.

Wisconsin does not permit second-parent adoption. So when Dusty and Beth had a child, Christian, by donor insemination in 2004 they filed a parentage petition and obtained an order from a trial judge that Dusty, the nonbio mom, was also Christian's parent. The trial court had two theories. First, it applied the state's donor insemination statute, which makes a husband the legal parent of a child born to his wife using donor insemination. It also used the "de facto parent" standard established in a 1995 visitation case and named Dusty a legal parent because she met that standard. These are both plausible theories supporting recognition of both of the Christian's parents. The couple's lawyer clearly sought some mechanism to protect Christian's emotional and economic security and the intent of this couple that their child have two parents.

When the couple split up they informally shared custody of the child, but in 2008 Dusty filed for joint custody and Beth responded by asking that the parentage order be declared void. Beth won, and Dusty appealed.

The appeals court said Beth was right on the law. It limited the insemination statute to husbands, and it said the "de facto parent" test could only support a visitation order, not a parentage petition. On the insemination issue, I blogged a little over a year ago about an Oregon appeals court ruling interpreting a similar statute to apply to the lesbian partner of a woman who gave birth through donor insemination. Unfortunately, the Wisconsin court ruled differently.

But -- and here is where it differed from the North Carolina court -- the Wisconsin court said the trial court that issued the parentage order DID have subject matter jurisdiction to do so. Therefore, it was a valid order unless appealed or unless Beth used a different statute to file for relief from that order within a "reasonable time," which she did not do. So Dusty remains Christian's mother. And similar parentage orders from Wisconsin courts, at least if they are several years old, cannot be challenged by a bio mom trying to get rid of her child's other parent. And if the couple remains together and has such an order it is valid for purposes of determining the right to government benefits, inheritance, or other matters flowing from the parent-child relationship.

It's worth mentioning again that this bio mom has destroyed a source of legal security for children of lesbian couples in Wisconsin while gaining nothing for herself. In the North Carolina case, the court vacated the adoption but ruled that the nonbio mom met the standard for obtaining a visitation order for her child, so the bio mom didn't get what she wanted there either. Instead she wiped out every second-parent adoption in the state, even for happily-still-together families.

And a note for gay male couples: Wisconsin has a surrogacy statute that allows a nonbio dad to obtain a parentage order when the child is born using a donor egg to a gestational surrogate. One of the country's most reputable surrogacy agencies is The Surrogacy Center in Madison, and they happily work with gay male couples.

Supreme Court lets stand New York ruling for Debra H.

I wrote extensively about the dreadful New York Court of Appeals decision last year that refused to recognize parentage of a nonbio mom based on the couple's creation of a two-parent family. That court did, however, find that Debra H. was the parent of the child born to Janice R. because the couple was in a Vermont civil union when the child was born. The fact that a child in New York has two parents if the couple is married or in a civil union but otherwise has one parent, no matter how much that couple planned for and raised the child together, was a major impetus for the conference I'm hosting in March on the "New Illegitimacy."

Anyway, Janice asked the US Supreme Court to hear her case, claiming that granting parental status to her civil union partner violated her Constitutional right to raise her biological child. Yesterday, the Court denied her petition. That's what I expected. The Court hears very few cases at all, and very few specifically in the area of family law, which is generally a matter of state law and varies so much from state to state. Other nonbio moms have also been turned away when they've asked the Court to hear their cases. Refusing to hear a case -- which is called a denial of certiorari in legal-speak -- has no legal significance. In other words, it doesn't add anything to the New York ruling or make it more meaningful in any way. It just leaves it alone.

Publicly appointed marriage commissioners in Canada must marry same-sex couples

Opponents of gay rights now often portray themselves as victims -- victims of discrimination, intolerance, bigotry, hate, etc. (Remember that this is how they convinced the US Supreme Court not to permit video broadcasting of the Perry same-sex marriage trial).

Well, some of those opponents argue that it violates their right to religious liberty for the government to require them to do something they find morally repugnant, like marry same-sex couples or place foster children in a same-sex couple's care. This week, the Saskatchewan Court of Appeal, the Canadian province's highest court, ruled against allowing government appointed marriage commissioners to refuse to marry same-sex couples.

The court considered two proposals -- one to allow those who became marriage commissioners before same-sex marriage existed to refuse to marry gay couples and the other to allow any marriage commissioner to refuse to marry gay couples. Actually the proposals were written more broadly than that -- to permit refusal to conduct any marriage that violated the commissioner's religious beliefs. The court found that both options violate the Canadian Charter's equality principles. The court called the proposals "a retrograde step – a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions."

The proposal's proponents argued there would be insignificant harm to gay couples because they could just find someone else to marry them. The court dismissed this assertion, saying instead that "such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different." The court also noted that, given the vast geography of the Saskatchewan, some same-sex couples might have to travel very far to actually find a willing marriage commissioner.

The court did acknowledge that marriage commissioners would have to violate their religious beliefs to perform same-sex marriages. It suggested the possibility that it would not violate the Charter to have all couples place a request for a marriage commissioner at a "single entry point," where a person knowing which commissioners objected to same-sex marriage could direct the couple to someone who would perform their union. Apparently, such a system is currently in effect in Toronto. The idea is that no couple would ever face rejection on the basis of their sexual orientation. The court did not explicitly rule on whether such a system would be acceptable, and that issue may be decided at some point in the future.

The court summed up its position with the following eloquent language:

In our tradition, the apparatus of the state serves everyone equally without
providing better, poorer or different services to one individual compared to
another by making distinctions on the basis of factors like race, religion or
gender. The proud tradition of individual public officeholders is very much
imbued with this notion. Persons who voluntarily choose to assume an office,
like that of marriage commissioner, cannot expect to directly shape the office’s
intersection with the public so as to make it conform with their personal
religious or other beliefs. Any idea of this sort would sit uneasily with the
principle of the rule of law...

Some day we'll find out if our courts believe the same.

New Mexico update -- Republican governor may repeal domestic partner benefits

One day after New Mexico Attorney General Gary King released an opinion that same-sex marriages performed elsewhere would be recognized in New Mexico, the new Republican governor, Susana Martinez, said she is reviewing whether to eliminate domestic partner benefits for state employees. Both same-sex and different-sex couples receive those benefits, as a result of an executive order signed by Governor Bill Richardson in 2003.

Equality New Mexico says 2300 employees get those benefits, although that number sounds very high to me. When the Arizona legislature eliminated domestic partner benefits for its state employees (also both same-sex and different-sex), it affected about 800 people, and Arizona's population is so much larger than New Mexico's that I expect its state workforce is also much larger.

The Arizona legislation met with an immediate court challenge by Lambda Legal, but only on behalf of the same-sex state employees, something I criticized in this post. Lambda obtained a injunction at the District Court level that has kept the benefits in place, but the state appealed and oral argument in the Ninth Circuit is set for February 14.

No newspaper coverage I've seen has linked Martinez's announcement to the release of the AG opinion, but I read it as escalating her opposition to gay rights in the state.

New Mexico may be heading for showdown over marriage recognition

New Mexico elected a Republican governor, Susana Martinez, who took office earlier this week. Now the state's Democratic Attorney General, Gary King, has issued an opinion that marriages of same-sex couples performed where legally allowed will likely to considered valid marriages in New Mexico. He cited as support a 20-year-old court ruling that a marriage between an uncle and a niece, valid where performed, was not so against public policy even though such a marriage would be a crime in New Mexico.

A spokesperson for Governor Martinez has already issued a statement that Martinez made it clear during the campaign that she opposes same-sex marriage and that no court has ruled on the issue of recognition of those marriages from elsewhere. And a Republican Senator has already said that he will push for a constitutional amendment barring recognition of same-sex marriages. New Mexico has neither a statute nor a constitutional amendment barring same-sex marriages performed elsewhere. This puts it in a position similar to that of Maryland, whose attorney general issued an opinion reaching the same conclusion last February. But Maryland had -- and has -- a Democratic governor. If Gov. Martinez wants to restrict administrative recognition of same-sex marriages from elsewhere, she may well be able to force couples who seek that recognition into court.

When Bill Richardson was governor, he made strong efforts to get the legislature to pass a comprehensive domestic partnership law. He was unsuccessful.

Let's keep some perspective on the DADT victory

I'm against discrimination as much as the next gay person, so of course I am pleased that DADT will soon be history. But my enthusiasm is tempered. The two most visible items on the gay rights agenda have been the military and marriage. The demand is so simple to articulate: let us in. I criticize relentlessly the problem with a "let us in" approach to marriage. I do it in my book, and in this blog, and every chance I get. Organizing legal consequences around marriage - making marriage an on/off switch that determines who is in and who is out - is bad family policy and leads to bad results for many people, including many gay men and lesbians. The demand for access to marriage too often glorifies the importance of marriage, often making less space for families and relationships that do not fit the marriage model. Marriage equality rhetoric nevers focuses on what's wrong with marriage, as though the only thing wrong with it was its exclusion of same-sex couples.

Well a "let us in" approach to the military too easily overlooks what's wrong with the military and with US military policy. The poster children for repeal have been those men and women who profess deep loyalty to the military mission, wherever it might be. Discharged servicemembers never claim they want to return to the military to change anything about it, other than its exclusion of lesbians and gay men.

As far as I can tell, the only LGBT rights group in the country to temper its delight at DADT repeal is Queers for Economic Justice, which reminds us that "it is immoral that the military is the nation’s de facto jobs program for poor and working-class people." Read its entire statement here.

Yes, the North Carolina adoption ruling really is that bad

Since my post on Tuesday about the North Carolina Supreme Court ruling in Boseman v. Jarrell that second-parent adoption is not authorized by the state's statutes, I've received numerous disbelieving emails. Everyone wants me to say it's really not all that bad. Everyone thinks there must be a way around what the court actually did. So I'm going to use this post to clarify the status of gay and lesbian adoption in North Carolina.

First, the good news. A lesbian or gay man can adopt a child as a single person in North Carolina. Such an adoption is allowed regardless of whether the adoptive parent is living with a partner. In other words, the state has no ban on adoption by lesbians and gay men (as Florida did/does - the law is still on the books but the agency and courts are not enforcing it pursuant to an appeals court ruling that it is unconstitutional); nor does it ban adoption by a person who lives with an unmarried partner (as Utah and Arkansas do, although the constitutionality of the Arkansas ban is currently in the state supreme court).

The good news ends there. A same-sex couple cannot adopt jointly in North Carolina, because a separate statute (not at issue in Boseman) states that when an unmarried person petitions to adopt a child no other person can join in the petition. So two unmarried people, gay or straight, cannot adopt together in North Carolina. This eliminates both the ability of the couple to adopt a child from a public or private adoption agency and the ability of the couple to adopt together a child born to one of them. (In some states the way around the adoption statute's termination of the parental rights of the "natural" parent is for the couple to file a joint adoption petition whereby the bio parent loses her rights as a "natural" parent but simultaneously gains parental rights as an adoptive parent.)

And, in the most far reaching, shocking, and unique aspect of Boseman, all second-parent adoptions that have been granted in the state are void. With the stroke of a pen, hundreds of North Carolina children have gone from having two legal parents to having only one. While other courts have ruled that second-parent adoptions are not permitted, until this case none had ruled that all previously granted adoptions were invalid. The court ruled that a second-parent adoption granted in North Carolina is void ab initio, a Latin term for "from the beginning." The following analogy might be useful: a man and a woman can get a marriage license and even have a wedding ceremony, but if one of them is still legally married to someone else (whether s/he realizes it or not), the couple is not married. They have a signed piece of paper that says they are married, but when it matters legally, they are not married. They were never married...from the beginning. So it is with the adoption decrees now sitting in the files, or adorning the walls, of the state's same-sex couples. They were never valid, from the beginning.

The pieces of paper still exist, and, if not challenged, they may facilitate keeping a child on the nonbio mom's health insurance or letting the nonbio mom make a medical decision or pick up a child from day care. But the validity of the adoption can be challenged by anyone -- a relative who does not want the child to inherit as a grandchild of the nonbio mom's parents, for example; or the nonbio mom after the couple splits up, as Jarrell did in this case -- and then it will be as though it never existed.

When an egregious case surfaces, the lawyers who care about these issues (including me) will try to come up with theories to protect the well-being of the children. For example, there may be a child right now receiving social security survivors benefits because her nonbio mom died after a North Carolina second-parent adoption was granted. If the government tries to cut off those benefits, we're going to work hard to develop an argument that the child has a right to continuing receiving them. And we may indeed find something that works. We don't give up without a fight when it comes to justice for our families.

But the Boseman ruling is unusually extreme. I'll be looking to gay rights attorney par excellence Sharon Thompson to see what she comes up with next to protect the children of North Carolina's same-sex couples.