New York Times hosts online debate on why marriage

I'm always happy to see marriage itself questioned as the relationship entitled to special status under the law.  Kudos to the New York Times for opening its website to several questioning views on this subject.

Brilliant Ninth Circuit opinion strikes down Prop 8, but the serenade to marriage is unnecessary

In a 2-1 ruling, the Ninth Circuit in Perry v. Brown, has ruled that Prop 8 is an unconstitutional violation of federal equal protection law.  The opinion explicitly does not address whether any ban on same-sex marriage is unconstitutional.  Rather, it addresses only Prop 8 -- that is, only the elimination of the state constitutional right to marry announced by the California Supreme Court in In re Marriage Cases.  The court relies on the US Supreme Court precedent in Romer v. Evans that the bare desire to harm a particular group is not a legitimate state interest.

Let me say at the outset that the national gay rights legal groups deserve the credit for urging this approach to Prop 8.  The original litigation, as framed by the Olsen-Boies legal team, was a full-on challenge to the exclusion of same-sex couples from marriage.  The national litigation groups did not think the time was right for such an attack.  For example, GLAD initiated litigation almost three years ago challenging the constitutionality of the part of the Defense of Marriage Act that denies federal recognition to same-sex marriages.  GLAD intentionally did not challenge all marriage bans.  Although Olsen-Boies were not especially responsive to the wisdom of the experts in this area, they did ultimately see the value in at least including in their arguments a more Prop 8-focused challenge.  Numerous amici in the Ninth Circuit urged the court to rule on this more narrow ground.  Everyone assumes this case is headed for the US Supreme Court, where the vote of the author of the Romer opinion, Justice Kennedy, will be critical.  Although his vote is by no means assured, the legal reasoning of the Ninth Circuit stands the best shot at an affirmance.

The court identified the issue as whether the People of California had a legitimate reason for taking away the label "marriage" from the relationships of same-sex couples while leaving such couples with the "domestic partnership" designation.  And the critical backdrop of this issue is that same-sex couples do have access in California to the status of "domestic partnership" which grants all the legal consequences of marriage without the name.

The court found a close analogy to Romer, where the People of Colorado, through what was called Amendment 2, took away from lesbians and gay men the ability to be protected against discrimination under state and local laws; some Colorado cities had enacted those anti-discrimination measures, and Amendment 2 eliminated them.  Again reiterating the narrow reasoning in this case, the court noted that the Colorado cities were not constitutionally required to pass such anti-discrimination measures for the Supreme Court to reason that those protections could not be removed, from gay people only, without a legitimate state interest other than disapproval of gay people.  I particularly love that the Ninth Circuit also cited one of my favorite cases, US Dept. of Agriculture v. Moreno, which found unconstitutional Congress's removal from the food stamp program households of unrelated members, something the record showed stemmed solely from disapproval of hippie communes.  The Constitution did not require Congress to give food stamps to anyone.  But once it did, it could not remove that benefit only from certain groups without a legitimate reason for doing so.

So then all that was left was for the court to review the possible legitimate reasons.  The court rejected the argument that Prop 8 would increase the likelihood of children being raised by their married biological parents, since the parentage laws of California extend to gay men and lesbians and Prop 8 did not change that.  It also found implausible (at one point calling it lacking any "footing in reality") the argument that taking away the designation "marriage" from same-sex couples would cause heterosexuals to procreate more responsibly or would strengthen families headed by a man and a woman.

The court also rejected other arguments, including one that it would protect children from being taught in school that same-sex marriage is the same as "traditional" marriage. (For a terrific analysis of the campaign ads for Prop 8 about what children would learn in school, see this piece by Berkeley law professor Melissa Murray). The usual response to this from the pro-gay side is to say that allowing same-sex marriage has nothing to do with what is taught in school.  And the Ninth Circuit says that as well. But it says something more that actually addresses the substance of the concerns of the opponents of gay rights.  It's important enough to quote in full.

There is a limited sense in which the designation of 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach.  Schools teach about the world as it is; when the world changes, lessons change.  A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them.  But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particulat governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors.  The prospect of children learning about the laws of the State and society's assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy. (emphasis in original)

After disposing of other alleged reasons, the court concludes that the purpose of Prop 8 was disapproval of gay men and lesbian as a class and a desire to withhold the official designation and societal approval of the word "marriage."  "By withdrawing the availabilty of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."  Prop 8 does not change the legal consequences available to same-sex couples, which attach to domestic partnerships, but it "dramatically reduces the societal standing of gays and lesbians and diminishes their dignity."

The dissenting judge essentially applied the most deferential form of rational basis review available.  He concluded that animosity and moral disapproval could motivate Prop 8 as long as there was some other rational reason behind it.  He also placed on the challengers the burden of negating every conceivable rational basis for the law.  Ultimately, he concluded that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."  Those assumptions might be wrong, he wrote, but that they are arguable is sufficient.

All that's left is for me to offer a complaint I've made frequently in these posts.  The equality argument underlying this ruling is unassailable.  It is, of course, true that the voters of California knew there was a legal status called domestic partnership available to same-sex couples and knew that status would remain.  The majority is right on target when it asserts the the only reason to deny the name "marriage" to a same-sex relationship is to confer a status of lesser dignity and worth on lesbians and gay men.

But such an argument does not require glorifying marriage.  It will be oft-quoted that the majority opinion references Groucho Marx, Shakespeare, Lincoln, and Marilyn Monroe in conveying the meaning of marriage.  (See page 38 of the opinion through the above link).  "The designation of 'marriage,'" the court writes, "is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it."  Marriage finds its place in poetry, to be sure.  But commitment exists in so many relationships, often those that endure longer than marriages.  The more marriage is glorified, by marriage equality opponents and supporters alike, the less able we are to see those commitments all around us and to honor them and confer upon them appropriate legal consequences.  For that problem, today's ruling solves nothing.

Massachusetts Appeals Court confirms parentage of same-sex spouse...but marriage shouldn't be the dividing line between a child with two mothers and a child with one mother

In a ruling that could not possibly have come out otherwise, the Appeals Court of Massachusetts ruled last Thursday, in Della Corte v. Ramirez, that the consenting female spouse of a woman who bears a child through anonymous donor insemination is a parent of the child.  This case could not have been decided otherwise because Massachusetts has a statute that a husband who consents to his wife's insemination is a parent.  In a case I have roundly criticized, T.F. v.B.L., the Massachusetts Supreme Court ruled in 2004 that a woman who consented to her partner's insemination was not the child's parent and therefore could walk away with no obligation to support the child.  But the court specifically noted that it would have reached a different result had the couple been married.

Ramirez was "involved in the insemination process and was an integral part of the couple's decision to conceive."  The couple married about two months after conception.  The statute does not require marriage at the time of conception; it refers to a child "born" to a married woman.  Both women's names appear on the child's birth certificate, and when they separated they signed a separation agreement saying Ramirez was a parent and giving her joint legal custody and visitation rights.  Ramirez pays child support.  Della Corte brought an action to modify the joint custody order.  The judge rejected her argument that Ramirez was not a parent because she did not adopt the child, as well as her argument that there had been a substantial and material change in circumstances since the earlier order justifying a change in the custody arrangement.

I don't have any problem with this ruling, as far as it goes.  The problem I have -- and it's a strong one -- is that it solidifies the marital status discrimination of the statute itself.  Without the marriage, Ramirez is still a parent of the child that resulted from the couple's decision that Della Corte would bear a child through donor insemination.  In New Mexico, Washington, and the District of Columbia, a gender and marital-status neutral consent-to-insemination statute would make Ramirez a parent whether or not she and Della Corte married.  In Oregon, she would be a mother by operation of a court ruling that an identical "husband consents to wife's insemination" statute is unconstitutional unless it also applies to a same-sex consenting partner.  In California, Ramirez would be a parent because she received the child into her home and held the child out as her own.  In Delaware, she would qualify as a "de facto" parent under the state's Uniform Parentage Act and would thereby be a legal parent.  None of the mechanisms I've listed depend on whether the couple marries.

I won't jump up and down about parentage law in Massachusetts until there's a marital status-neutral consent-to-insemination statute.  The state that first brought us same-sex marriage should be ashamed to have a distinction between "legitimate" children born to married same-sex couples and "illegitimate" children, deprived of a second parent, if the couple is not married.

Williams Institute study analyzes characteristics of same-sex couples raising children

Williams Institute demographer Gary Gates begins his new article in National Council of Family Relations by indicating that the gay parents in the hilariously funny Modern Family (okay- the hilarious part is my editorializing, not Gary's analysis) are decidedly not the typical same-sex couple raising children.

The most important conclusion from Gates's review of census data and several other large scale surveys is that large numbers of children of same-sex couples almost certainly are the product of previous heterosexual relationships.  For example, 28% of those who were previously married have children in their home, while the figure is 16% for those who were never married.  When looking at who has a biological or step-child,  23.5% of those who were previously married are in that category;  for those who were never married the figure is 9.5%.  Conversely, couples who do not report a previous marriage are twice as likely as those who do to have an adopted child.

There is other, fascinating, evidence supporting the likelihood that most lesbians raising children have a child from a previous heterosexual relationship.  In the 2009 California Health Survey, which asks respondents to identify their sexual orientation (unlike census data, which can only report numbers of same-sex couples raising children, thus exclusing gay men any lesbians raising children without living with a partner ), 22.4% of heterosexual women reported having a child before age 20, while 37.9% of lesbian and bisexual women reported having a child before age 20.  (Does denial about one's sexual orientation lead to riskier behavior? less likelihood of using birth control?  The data doesn't give us the "why," only room to speculate...)

In this article, Gates repeats information he has provided elsewhere, for example that the greatest percentage of same-sex couples raising children is in the south.  Also, couples with less than a high school education are almost three times as likely to be raising children as couples with a graduate degree.  (This discrepancy does not exist for heterosexual couples).  Furthermore, African-Americans in same-sex couples are 2.4 times more likely than their White counterparts to be raising children.  On the other hand, looking at adopted children only, White same-sex couples are almost twice as likely to have an adopted child when compared with couples where at least one partner is not White, and the couples with adopted children are more likely to have completed higher education.

Nineteen percent of same-sex couples with children have an adopted child, almost double the percentage in 2000.  Yet the percentage of all same-sex couples raising children has decreased.  It looks like lesbians and gay men are less likely to have children in heterosexual relationships now -- hence the more recent decline, perhaps because they are coming out earlier -- and that for all the attention to the "gayby boom," the actual number of children deliberately born or adopted into gay or lesbian families cannot make up the shortfall.

Couples raising one partner's biological child from a prior relationship have legal concerns that can be different from those of couples raising children planned for by the couple together.  For example, if there is another biological parent in the picture at all, that parent would have to consent to a second-parent adoption (where that's possible -- which it isn't in many of the southern states with concentrations of such couples).  And we shouldn't forget that in some parts of the country a heterosexual parent or relative can still challenge a lesbian or gay parent for custody of a child, a circumstance that isn't going away any time soon.

Once again, Gary Gates's data collection and analysis makes a huge contribution to our community and gives us lots to think about.

California appeals court clarifies presumed parent status; it's about the parent-child relationship, not the relationship between the adults

California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own.  Last week came the latest addition to that body of law.  California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other.  In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.

This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P.  J.V. was pregnant when she became good friends with E.C.  E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V.  J.V. and the child moved in with E.C. when the child was three months old.  They began a sexual relationship after they were living together, something they did not tell their families until a year later.  Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child.  After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.

At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent.  J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more.  The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes.  The court said that "[J.V.] never intended [E.C.] to be another parent.  She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."

On appeal, the court held that the trial judge had applied the wrong legal standard to the facts.  Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V.  Whether the two women  had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant.  Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so.  It's the conduct after conception and birth that matters, ruled the court.  (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)

There was much evidence of E.C.'s parental relationship with the child.  As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said:  "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."

Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard.  If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.

The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support.  The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.

I'm struck by a number of things in this case.  I can't give my complete support to a policy whose goal is find two parents for a child.  To me, it comes from the same point of view that in other contexts vilifies single parents.  It also suggests that two is some magic number, even when there are more than two.  Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.

After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out.  At that point it's understandable that J.V. regreted some of her decisions.  But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism.  J.V. shouldn't be allowed to rewrite her daughter's life.

Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California.  It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents.  I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.

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.

Iowa birth certificate case limited to children of unknown donor insemination

Congratulations to Lambda Legal for its initial success in Gartner v. Newton, the case challenging Iowa's refusal to list Melissa Gartner, wife of Heather Martin Gartner, as a parent on the birth certificate for Mackenzie Gartner, who was born to Heather after she and Melissa married.  The state can appeal the ruling if it chooses.

The state's position was that the statute requiring the listing of a husband as the father of a child born to his wife should continue to be read in a gender-specific manner.  The state argued that at least 90% of the time this rule produces a birth certificate with the names of the child's two biological parents.  Applying such a rule to a same-sex couple, the state argued, would produce a biologically accurate birth certificate 0% of the time.

The trial court ruled that the purpose of the birth certificate is not the creation of a biologically accurate record.  I certainly agree with that. In fact, what I like best about this opinion is that it says the presumption that the spouse is the other parent of the child is based on protecting the "integrity of the family" regardless of biological connection.

But there are some troubling aspects to the ruling as well.  The court notes that the Varnum opinion (establishing the right of same-sex couples to marry) cited one of the benefits of marriage as the legitimacy of children.  Refusing to put Melissa's name on the birth certificate, the court said, frustrated recognition of the child's legitimacy.  The court also relied on a 1945 Attorney General's opinion that a married woman's husband must be on the birth certificate even if he was away at war, the mother had an extra-marital affair, and she and the biological father wanted that man's name on the birth certificate.  But the denomination of any children as "legitimate" inherently conveys that some children are "illegitimate," and that is unacceptable.  Consider this language that the court cites from a 1933 case:  "The presumption of paternity 'is founded on decency, morality, and public policy.  The child is...safeguarded against future humiliation and shame..."  This language makes me cringe; it recalls a time when a nonmarital birth carried life-long stigma for the mother and the child.  There is nothing to be happy about when such thinking creeps into reasoning about our families.

And here is the kicker, something that news coverage of the case decision omitted.  The ruling is limited to births where conception has occurred through anonymous donor insemination.  The court says that explicitly.  It won't help couples who conceive with a known donor or where conception occurs through sexual intercourse.  Implicitly, the ruling credits Iowa's argument that the state's asserted interest in identifying the biological father could prevail in those forms of conception.

This highlights how little was really at stake in this case.  A name on a birth certificate does not prove parentage.  It is certainly evidence of parentage, and if no court dispute arises Melissa should be able to use the birth certificate with her name on it to show she is Mackenzie's mother.  But this court was unwilling to give even a birth certificate to a lesbian spouse if there might be a man who could assert rights based on biology.

What Iowa needs is a parentage statute that would protect all lesbian couples, without regard to method of conception and without digging into the despicable ideology of "legitimacy" and "illegitimacy" that we are all well rid of.