Thanks to UCLA (and Williams Institute) Law Librarian Stephanie Plotin, the English translation of the Official Summary of the Inter-American Court of Human Rights ruling in Case of Atala Riffo and Children v. Chile is now available here. The Court rejected every argument made by Chile as justification for switching custody of Atala's children to their father after she began living with a same-sex partner. The Chilean Supreme Court granted custody to Atala's ex-husband in 2004. American University Washington College of Law professor Macarena Saez, who represented Atala in the Inter-American Commission on Human Rights as well as the Inter-American Court, wrote about the case here. The Court found that it lacked the jurisdiction to determine the custody of Atala's three daughters, but it reiterated in no uncertain terms that a parent's sexual orientation cannot be a basis for a denial of custody. Some members of the Court spoke to two of the three daughters outside the presence of the parents or parties. Based on what the girls stated, the Court found them to be the alleged victims in the case. The Court found that Chile had violated numerous provisions of the American Convention on Human Rights, causing injury to Atala and her children.
Atala's former husband requested custody in 2003 after Atala began living with her partner. The first court found in his favor, but a subsequent court ruled against him, and that ruling was affirmed on appeal in 2004. The father further appealed to the Supreme Court of Justice, and on May 30, 2004, that court granted final custody to the father. The reasoning of the Chilean Supreme Court echoed arguments that have been made in many US states over the last 40 years. The court said that Atala placed her own interests above those of her children; that the children would be confused about sex roles and sexuality; and that they would be "objects of isolation and discrimination" because of their different family environment.
Before ruling specifically on Atala's case, the Court ruled categorically that discrimination on the basis of sexual orientation violates the right to equality and non-discrimination contained in the American Convention on Human Rights. Article 1.1 of the Convention states that the parties to the Convention "undertake to respect the rights and
freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth,
or any other social condition." The Court found that both sexual orientation and gender identity are categories that fall within "other social condition." This obviously has ramifications well beyond this case.
The Inter-American Court then stated the obvious about the importance of ruling in custody cases based on the best interests of the children. Because alleged risks and harms had to be "real and proven, not speculative and imaginary," the Court ruled that "speculations, presumptions, stereotypes, or generalizations...with respect to certain traditional concepts of the family are not admissible." Referencing the "best interest" standard in the abstract, without proof of risk or harm, could not justify discrimination based on sexual orientation. "Pre-conceptions of the attributes, conduct or characteristics of homosexual persons, or the impact that these could presumably have on girls and boys" are not admissible under the guise of determining the child's best interest.
Furthermore, the Court ruled that social discrimination that the children might face, "proven or not," could not justify a change in custody. Noting greater acceptance of other family forms, such as interracial couples and single parents, the Court said that "both laws and the States themselves should assist society in advancing; otherwise, we run the serious risk of legitimizing and consolidating different forms of discrimination which violate human rights." Therefore, a court determining custody could not consider possible social stigma a valid injury affecting the child's best interest.
To ensure that a custody decision is not based on discrimination, the burden of proving a "concrete, specific, and real injury to the children" rests with the State. In this case, the Chilean Supreme Cort of Justice claimed it was ruling based on concrete evidence of injury, but in fact no evidence existed that the girls were injured because their mother lived with a same-sex partner. The Inter-American Court further made clear that the prohibition against discrimination based on sexual orientation includes the right to "conduct inherent in an exercise of homosexuality," including the right to live with a partner. The Chilean court was wrong to fault Atala for making a new life for herself with her partner. Demanding that a mother limit her life choices, the Inter-American Court said, would mean requiring her to conform to a 'traditional' idea of women's role as mother.
Finally, the Court ruled that the Convention does not contain "any specified, closed concept of family," and the Chilean court was wrong in its conclusion that the girls needed to grow up in a 'normally structured family.' The Court stated that, "the concept of family life is not solely reduced to marriage, and should embrace other family ties where the parties have a shared life outside of marriage."
The Court concluded that Chile violated the Convention by discriminating against Atala and her children (the latter because Chile used factors it would not have utilized if the children had two heterosexual parents). In considering Atala's sexual orientation, Chile interfered in her private life, something also prohibited by the Convention. Private life, according to the Court, includes "the right to establish and develop relationships with other human beings." In this portion of the opinion, the Court explicitly stated that "sexual orientation is part of a person's intimate life and is not relevant when analyzing aspects related to good or bad parenting by mothers or fathers." The Court also found that Chile arbitrarily interfered with the right to family life provided in the Convention by separating the family unit created by Atala, her partner, her three daughters, and her oldest son. "A single family model does not exist," the Court said. The final right that Chile violated was the right of the children to be heard, since the Supreme Court did not explain why it ruled contrary to the wishes of the children.
Since the Inter-American Court lacked the power to award custody, it fashioned other relief. Chile must provide free mental health treatment to Atala and her children should they request it; must publish the official summary of the decision on an official web site and in a national newspaper of wide circulation; must publicly acknowledge responsibility; must implement educational programs for civil servants and judges; and must pay damages and costs. An article on the website of the Santiago Times puts the damages amount at US$60,000, plus $12,000 in legal fees. The article also suggests that some gay rights advocates will be disappointed that the Court did not require Chile to change its civil code to explicitly ban consideration of sexual orientation in custody cases.
If you are wondering about the impact of the Atala case on custody disputes in the United States, well, the US is not a party to the American Convention on Human Rights and does not accept the jurisdiction of the Inter-American Court. You can find the full list of parties here on the website of the Organization of American States.
Friday, March 23, 2012
Tuesday, March 13, 2012
Transgender father and his family featured on StoryCorps
Last Friday's StoryCorps excerpt on Morning Edition featured a conversation between Les and Scott GrantSmith as their 25th wedding anniversary nears. When they married, Les was a woman; the couple then had two children. Fifteen years ago, Les told Scott she was a woman in the wrong body; she feared Scott would leave and take the children with him. Instead, the couple stayed together. Be sure to click on the link on the website that leads to an excerpt of the conversation between Les and his two daughters, Amanda and Thea; that part did not air on the radio.
Les's fear that transitioning would cost him his children is quite reality-based. Judges are extremely reluctant to grant custody to a trans parent. This is especially true if the children show any signs of anxiety or distress, even though such reactions may be both normal and exacerbated by the reactions of their non-trans parent. One of the most poignant parts of the exchange between both Les and Scott and Les and the children is when Les says he would not have transitioned if it would have meant losing the children. His younger daughter was seven years old at the time. I have to wonder if he really believes he could have spent the subsequent decade living with the depression that finally brought him to talk to Scott.
I am sure many listeners are incredulous that Scott and Les remained together through this process. I don't know of any statistics, but I do know other couples, both personally and through accounts of others, who stay married through one spouse's transition. Those families do not wind up in front of judges. Forty years ago, all judges needed to be educated about gay and lesbian parents, to break down myths and stereotypes and allay fears that children would be harmed living with a gay father or lesbian mother. As readers of this blog know, such prejudice continues today in some parts of the country. Well, for trans parents, we are back where we were in the 70s with lesbian and gay parents. I give a lot of credit to Scott for adapting to a circumstance he could have never imagined the day he got married and for believing that Les remained a good parent to their children. For those whose transition stories don't have this happy ending, we need massive judicial education as well as resources for families and clinicians.
Les's fear that transitioning would cost him his children is quite reality-based. Judges are extremely reluctant to grant custody to a trans parent. This is especially true if the children show any signs of anxiety or distress, even though such reactions may be both normal and exacerbated by the reactions of their non-trans parent. One of the most poignant parts of the exchange between both Les and Scott and Les and the children is when Les says he would not have transitioned if it would have meant losing the children. His younger daughter was seven years old at the time. I have to wonder if he really believes he could have spent the subsequent decade living with the depression that finally brought him to talk to Scott.
I am sure many listeners are incredulous that Scott and Les remained together through this process. I don't know of any statistics, but I do know other couples, both personally and through accounts of others, who stay married through one spouse's transition. Those families do not wind up in front of judges. Forty years ago, all judges needed to be educated about gay and lesbian parents, to break down myths and stereotypes and allay fears that children would be harmed living with a gay father or lesbian mother. As readers of this blog know, such prejudice continues today in some parts of the country. Well, for trans parents, we are back where we were in the 70s with lesbian and gay parents. I give a lot of credit to Scott for adapting to a circumstance he could have never imagined the day he got married and for believing that Les remained a good parent to their children. For those whose transition stories don't have this happy ending, we need massive judicial education as well as resources for families and clinicians.
Thursday, March 8, 2012
Florida Supreme Court to hear one birth mother/one genetic mother case; trial court to rule on stay of appeals court order
National press is now focused on a Florida case about which I wrote in December. In D.M.T. v. T.M.H., the child's birth mother is claiming that her ex-partner, whose egg was used to create the embryo that became the child, is not a parent. The couple raised the child together for two years before splitting up. The appeals court ruled that both women are parents. This is not the first case of its kind, but I assume the attention it is receiving is at least to some extent its location -- Florida -- where until last year lesbians and gay men could not adopt children. Nothing amazes me anymore, but it does take a lot of nerve to argue, as the birth mother did, that because of that ban Florida has a public policy against the assisted reproduction arrangement the couple used. That's the arrangement the couple -- both women -- used.
The Florida Supreme Court has agreed to review the appeals court ruling. Briefs will be due in April and May. Meanwhile, the birth mother requested a stay of the appeals court order. Yesterday, the state supreme court denied the stay but ordered the trial court to consider the appropriateness of a stay within thirty days. The trial court is to specifically consider the best interests of the child in deciding whether to issue the stay.
The Florida Supreme Court has also denominated the case as "high profile," which means that all the pleadings, motions, briefs, and orders are available on line.
The Florida Supreme Court has agreed to review the appeals court ruling. Briefs will be due in April and May. Meanwhile, the birth mother requested a stay of the appeals court order. Yesterday, the state supreme court denied the stay but ordered the trial court to consider the appropriateness of a stay within thirty days. The trial court is to specifically consider the best interests of the child in deciding whether to issue the stay.
The Florida Supreme Court has also denominated the case as "high profile," which means that all the pleadings, motions, briefs, and orders are available on line.
Monday, March 5, 2012
We won't see the real thing...but you can watch George Clooney and John C. Reilly
From the moment I read David Boies's brilliant cross-examination of David Blankenhorn in the Prop 8 trial (Perry v. Schwarzenegger) I've been hoping the day would come when I could watch it on tape. Unfortunately, that's unlikely. First the Supreme Court said the trial judge (Vaughn Walker) could not live stream the trial. Then Judge Walker said he would make a videotape, but only for himself, and that it would not be released. Fast forward more than a year after Judge Walker struck down Prop 8. Gay rights supporters moved for the release of the videotape. The new judge assigned to the case after Judge Walker retired, Judge Ware, did order the tape's release, but last month the Ninth Circuit reversed and ruled that the tape must be permanently sealed. That dashed my hopes to see Blankenhorn huff and puff and squiggle and wiggle, in an environment he could not control -- the courtroom -- under the questioning of a masterful trial lawyer.
While it's no substitute for the real thing, I nonetheless enjoyed watching George Clooney (confession: I always love watching George Clooney) play the role of David Boies and John C. Reilly play Blankenhorn in the staged reading of 8, Dustin Lance Black's play derived from the trial transcripts. There were other superstars -- Brad Pitt as Judge Walker, Martin Sheen as Ted Olson, Kevin Bacon as Charles Cooper, the lead lawyer for supporters of Prop 8. (Jane Lynch was terrific in some asides as Maggie Gallagher). You can watch the whole performance here. The direct of Reilly and then the cross begins at 1:20, so you can fast forward to there. There's a break from about 1:38 to 1:44 for interaction among the plaintiff lesbian couple and their two sons (I didn't care for those portions of the script....) and the cross examination resumes after that.
In remarks at the end of the performance, the real David Boies noted the irony that Prop 8 proponents wanted to keep the public from viewing the trial, but the performance of 8, through the wonders of the internet and by virtue of the stars in the roles, would be seen by far more people than would have watched the trial tapes themselves. The play can't capture the twelve day trial, but it does highlight the dominant legal theme. Judge Walker expected real evidence of what society gains from prohibiting same-sex marriage, and the Prop 8 defenders did not, could not, and did not think they should have to, produce such evidence. After David Boies took the depositions of his opponent's expected witnesses, only Blankenhorn and one other wound up testifying. Only Blankenhorn testified about the state's interest in preserving different-sex only marriage, and, well, watch the play yourself and you'll see why he was completely ineffective. Better yet, read his direct and cross beginning on the 11th day of the trial here (on page 2716) and continuing on the 12th day here.
While it's no substitute for the real thing, I nonetheless enjoyed watching George Clooney (confession: I always love watching George Clooney) play the role of David Boies and John C. Reilly play Blankenhorn in the staged reading of 8, Dustin Lance Black's play derived from the trial transcripts. There were other superstars -- Brad Pitt as Judge Walker, Martin Sheen as Ted Olson, Kevin Bacon as Charles Cooper, the lead lawyer for supporters of Prop 8. (Jane Lynch was terrific in some asides as Maggie Gallagher). You can watch the whole performance here. The direct of Reilly and then the cross begins at 1:20, so you can fast forward to there. There's a break from about 1:38 to 1:44 for interaction among the plaintiff lesbian couple and their two sons (I didn't care for those portions of the script....) and the cross examination resumes after that.
In remarks at the end of the performance, the real David Boies noted the irony that Prop 8 proponents wanted to keep the public from viewing the trial, but the performance of 8, through the wonders of the internet and by virtue of the stars in the roles, would be seen by far more people than would have watched the trial tapes themselves. The play can't capture the twelve day trial, but it does highlight the dominant legal theme. Judge Walker expected real evidence of what society gains from prohibiting same-sex marriage, and the Prop 8 defenders did not, could not, and did not think they should have to, produce such evidence. After David Boies took the depositions of his opponent's expected witnesses, only Blankenhorn and one other wound up testifying. Only Blankenhorn testified about the state's interest in preserving different-sex only marriage, and, well, watch the play yourself and you'll see why he was completely ineffective. Better yet, read his direct and cross beginning on the 11th day of the trial here (on page 2716) and continuing on the 12th day here.
Wednesday, February 29, 2012
Trial court gives decisive win to nonbio mom in long-running Ohio dispute
In a 41-page opinion, an Ohio Magistrate has awarded shared legal and physical custody of 8-year-old Maddie Smith to her biological mother, Julie Smith (Smith) and her nonbiological mother, Julie Rowell (Rowell). This is the latest stage of the long-running Rowell v. Smith dispute I have written about before. The case has been going on since October 2008, when Rowell and Smith separated and Smith denied Rowell all access to their daughter.
Magistrate Kathleen Knisely devoted most of the 41 pages to factual findings after extensive testimony. She noted that almost all the facts were disputed. Smith claimed that Rowell was not involved in planning for the child and had no parental responsibility for her and that she and Rowell were not even life partners. Rowell presented them as a couple that was equally involved in planning for and raising the child. The magistrate found that "Smith's testimony, and that of her supporting witnesses, are not credible or supported by any of the ascertainable objective facts and witnesses." Smith's witnesses for the most part appeared uninformed or misinformed about Rowell's relationship with Maddie. For example, "each and every one" was surprised to learn that Smith had filled out forms listing Rowell as a parent or co-parent and listing Rowell's parents as grandparents.
Rowell's lawyers, Lee Ann Massucci and Carol Fey, presented overwhelming, detailed evidence about Rowell's involvement in planning for a child, in the pre-natal care and birth, and in making the decisions about Maddie's care for the first five years of her life. A school administrator testified that the couple presented as equal parents and that the school dealt with them in that way. Photographs, videos, and such things as mother's day cards and gifts all supported Rowell's version of their family.
The couple had no written agreement nor any wills or other legal documents. Smith said she never intended to share parental rights with Rowell, never considered her part of her family. Magistrate Knisely found that "Smith's actions belie her adamant position" and that the failure of both women to prepare important documents was something many individuals did.
The magistrate concluded that Smith "contractually relinquished shared custody of Maddie to Rowell" and that she "acceded to and actively fostered the formation, establishment and growth of a parental relationship between Rowell and Maddie." Rowell, the magistrate found, "assumed the obligations of parenthood by taking signifcant, equal, responsibility for Maddie's care, education and development as well as contributing financially to Maddie's support without any expectation of financial compensation...Rowell has acted in this parental role for an extended period of time and has a fully developed, bonded parental relationship with Maddie."
The evidence showed that Smith repeatedly violated both the letter and the spirit of temporary visitation orders. For example, when Rowell was to have Maddie after school at 5 pm, Smith informed the school not to allow Rowell inside the building and arrived at the school herself to walk Maddie out the door, where the child would run to Rowell and leap into her arms. Smith had twice been found in contempt of court and given three day suspended jail sentences for her noncompliance with visitation orders. Smith argued that Maddie was afraid of Rowell, but the magistrate found no evidence to support that and furthermore found that it was Smith's actions that caused anxiety for Maddie.
When the magistrate noted that Smith was unlikely to comply with court orders I actually expected her to switch physical custody to Rowell. She didn't. She awarded full shared physical custody, on a schedule for each of two full days every week plus three weekend days every other weekend. Although the couple has shared legal custody, the court gave Smith the right to make final decisions about health care, religion, education, and extracurricular activities. The order requires consultation with Rowell, something that seems more aspirational than realistic given the history and the magistrate's own findings.
Here are some of my own thoughts about this case. Rowell is lucky that Maddie continued to feel connected to her and showed happiness (captured on video) at being with her throughout most of the last three years. When a bio mom succeeds in alienating a child from a nonbio mom, a trial court can feel justified in limiting or even terminating contact. Given Smith's hostility, I am very skeptical about whether joint physical custody will work. In fact the research on joint custody after heterosexual divorce shows it is never a good choice in high conflict cases, and Smith turned this into a high confict case. I know that Maddie has lived with Smith for the three years since the separation, so disrupting that should not be done lightly. But I can't help but wonder what the court would have done had this been an equally contentious dispute between a formerly married heterosexual couple. I think it more likely that custody would be switched to Rowell, who could be counted on to allow contact between Maddie and Smith.
Don't get me wrong. This case counts as a victory for a nonbio mom. But for all the magistrate's findings about Smith's interference with Maddie's relationship with Rowell, she ultimately gave Smith greater parental authority.
Lurking in the case appears to be a possible move by Smith to be with her new partner, who relocated from Ohio to Boston. (Smith began this new relationship while she was still living with Rowell). The order requires either party to notify the court if she intends to move. This may then lead to a court hearing on whether to modify the time schedule. Obviously, a move will be the end of shared physical custody. Perhaps Smith will be concerned about the possibility of switching physical custody to Rowell and will stay in Ohio. But the fact that the magistrate already gave her greater legal authority may instead embolden her to push the envelope by relocating. At least we can be confident that Massachusetts will recognize the status granted Rowell by the Ohio court.
Under Ohio law, a husband who consents to his wife's insemination with donor semen is the legal father of the child born of the insemination, when the insemination takes place under medical supervision. Ohio law is fairly typical of older "artificial insemination" statutes. Under the newer statutes in DC, New Mexico, and Washington, parentage extends without regard to the gender or marital status of the birth mother's consenting partner. Rowell and Smith went to the doctor's office together, and Rowell pressed the syringe plunger for the insemination. Had a gender and marital status-neutral law been in effect, the couple would have been presented with a consent form, and they would have signed it. That by itself should settle the question of parentage, with no need for the many years of litigation this case represents.
Meanwhile, this opinion is almost certainly not the last word. Ohio has two levels of appeals courts, and Smith seems likely to keep fighting in spite of the unassailable factual findings of the magistrate.
Magistrate Kathleen Knisely devoted most of the 41 pages to factual findings after extensive testimony. She noted that almost all the facts were disputed. Smith claimed that Rowell was not involved in planning for the child and had no parental responsibility for her and that she and Rowell were not even life partners. Rowell presented them as a couple that was equally involved in planning for and raising the child. The magistrate found that "Smith's testimony, and that of her supporting witnesses, are not credible or supported by any of the ascertainable objective facts and witnesses." Smith's witnesses for the most part appeared uninformed or misinformed about Rowell's relationship with Maddie. For example, "each and every one" was surprised to learn that Smith had filled out forms listing Rowell as a parent or co-parent and listing Rowell's parents as grandparents.
Rowell's lawyers, Lee Ann Massucci and Carol Fey, presented overwhelming, detailed evidence about Rowell's involvement in planning for a child, in the pre-natal care and birth, and in making the decisions about Maddie's care for the first five years of her life. A school administrator testified that the couple presented as equal parents and that the school dealt with them in that way. Photographs, videos, and such things as mother's day cards and gifts all supported Rowell's version of their family.
The couple had no written agreement nor any wills or other legal documents. Smith said she never intended to share parental rights with Rowell, never considered her part of her family. Magistrate Knisely found that "Smith's actions belie her adamant position" and that the failure of both women to prepare important documents was something many individuals did.
The magistrate concluded that Smith "contractually relinquished shared custody of Maddie to Rowell" and that she "acceded to and actively fostered the formation, establishment and growth of a parental relationship between Rowell and Maddie." Rowell, the magistrate found, "assumed the obligations of parenthood by taking signifcant, equal, responsibility for Maddie's care, education and development as well as contributing financially to Maddie's support without any expectation of financial compensation...Rowell has acted in this parental role for an extended period of time and has a fully developed, bonded parental relationship with Maddie."
The evidence showed that Smith repeatedly violated both the letter and the spirit of temporary visitation orders. For example, when Rowell was to have Maddie after school at 5 pm, Smith informed the school not to allow Rowell inside the building and arrived at the school herself to walk Maddie out the door, where the child would run to Rowell and leap into her arms. Smith had twice been found in contempt of court and given three day suspended jail sentences for her noncompliance with visitation orders. Smith argued that Maddie was afraid of Rowell, but the magistrate found no evidence to support that and furthermore found that it was Smith's actions that caused anxiety for Maddie.
When the magistrate noted that Smith was unlikely to comply with court orders I actually expected her to switch physical custody to Rowell. She didn't. She awarded full shared physical custody, on a schedule for each of two full days every week plus three weekend days every other weekend. Although the couple has shared legal custody, the court gave Smith the right to make final decisions about health care, religion, education, and extracurricular activities. The order requires consultation with Rowell, something that seems more aspirational than realistic given the history and the magistrate's own findings.
Here are some of my own thoughts about this case. Rowell is lucky that Maddie continued to feel connected to her and showed happiness (captured on video) at being with her throughout most of the last three years. When a bio mom succeeds in alienating a child from a nonbio mom, a trial court can feel justified in limiting or even terminating contact. Given Smith's hostility, I am very skeptical about whether joint physical custody will work. In fact the research on joint custody after heterosexual divorce shows it is never a good choice in high conflict cases, and Smith turned this into a high confict case. I know that Maddie has lived with Smith for the three years since the separation, so disrupting that should not be done lightly. But I can't help but wonder what the court would have done had this been an equally contentious dispute between a formerly married heterosexual couple. I think it more likely that custody would be switched to Rowell, who could be counted on to allow contact between Maddie and Smith.
Don't get me wrong. This case counts as a victory for a nonbio mom. But for all the magistrate's findings about Smith's interference with Maddie's relationship with Rowell, she ultimately gave Smith greater parental authority.
Lurking in the case appears to be a possible move by Smith to be with her new partner, who relocated from Ohio to Boston. (Smith began this new relationship while she was still living with Rowell). The order requires either party to notify the court if she intends to move. This may then lead to a court hearing on whether to modify the time schedule. Obviously, a move will be the end of shared physical custody. Perhaps Smith will be concerned about the possibility of switching physical custody to Rowell and will stay in Ohio. But the fact that the magistrate already gave her greater legal authority may instead embolden her to push the envelope by relocating. At least we can be confident that Massachusetts will recognize the status granted Rowell by the Ohio court.
Under Ohio law, a husband who consents to his wife's insemination with donor semen is the legal father of the child born of the insemination, when the insemination takes place under medical supervision. Ohio law is fairly typical of older "artificial insemination" statutes. Under the newer statutes in DC, New Mexico, and Washington, parentage extends without regard to the gender or marital status of the birth mother's consenting partner. Rowell and Smith went to the doctor's office together, and Rowell pressed the syringe plunger for the insemination. Had a gender and marital status-neutral law been in effect, the couple would have been presented with a consent form, and they would have signed it. That by itself should settle the question of parentage, with no need for the many years of litigation this case represents.
Meanwhile, this opinion is almost certainly not the last word. Ohio has two levels of appeals courts, and Smith seems likely to keep fighting in spite of the unassailable factual findings of the magistrate.
Monday, February 27, 2012
Another court once again dismisses concerns about children of same-sex couples
Another judge has ruled DOMA unconstitutional. Last week, US District Court Judge Jeffrey White found in Golinski v. OPM, that the federal government's refusal to extend spousal health care benefits to the same-sex spouse of federal employee Karen Golinski violates her right to Equal Protection.
As is necessary in any Equal Protection case, the court needed to determine what level of scrutiny to apply. This court applied heightened scrutiny, finding that the denial of federal recognition to the marriage of same-sex couples needed to be at least substantially related to an important governmental objective. And as we have come to expect, the defenders of DOMA (not the Obama administration which refuses to defend it, but a group of members of Congress) always argue something about protecting the well-being of children. Well once again child development expert Michael Lamb stepped up to defend the equal ability of gay men and lesbians to raise children. In my favorite line of the opinion, the court noted that "the evidence presented by Professor Lamb demonstrates that parents' genders are irrelevant to children's developmental outcomes."
I love this sentence, and not only on behalf of same-sex couples raising children. The right wing "marriage movement" has been asserting for the better part of the last two decades that the decline of life-long heterosexual marriage endangers children precisely because they need to be raised by their married, biological, mother and father. Dr. Lamb's conclusion from the research shows that argument for what it is -- an empty pronouncement that distracts attention from meeting the real needs of children. "There is...no empirical support for the notion that the presence of both male and female role models in the home promotes children's adjustment or well-being," Dr. Lamb continued.
DOMA defenders unsuccesfully attacked the methodological validity of the research in this area. They submitted three articles -- none from peer-reviewed journals -- criticizing the studies Dr. Lamb relied upon. This flimsy response to the more than 50 peer-reviewed articles about research on children with lesbian or gay parents that Dr. Lamb relied upon was completely dismissed by the court.
Of course the court also pointed out that denial of federal benefits to same-sex spouses does nothing to change their status as parents under state law. It may just hurt children by denying their parents the privileges federal law bestows on married couples. This of course begs the question of why children's economic security should depend on whether their parents marry. But readers of this blog know full well that same-sex marriage litigation never questions the validity of granting benefits to married couples -- and their children -- that are denied to other family forms. No point expecting an opinion like Golinski to comment on that.
The court also went on to say that DOMA fails even rational basis review. Denial the federal benefits of marriage to same-sex couples is not rationally related to the well-being of children. It does not change the recognition of gay people as parents; all is does is deny a couple federal benefits. To the argument made by "some people" that biological parents should be the preferred childrearers, the court points out that the law right now does not recognize a distinction among parents based on whether they are biologically related to their child. The court does not elaborate, but presumably the reference is to the full range of parents who lack that biological connection, including adoptive parents and parents who conceive using assisted reproduction. There are way more straight parents who fall into these categories than there will ever be gay parents.
As is necessary in any Equal Protection case, the court needed to determine what level of scrutiny to apply. This court applied heightened scrutiny, finding that the denial of federal recognition to the marriage of same-sex couples needed to be at least substantially related to an important governmental objective. And as we have come to expect, the defenders of DOMA (not the Obama administration which refuses to defend it, but a group of members of Congress) always argue something about protecting the well-being of children. Well once again child development expert Michael Lamb stepped up to defend the equal ability of gay men and lesbians to raise children. In my favorite line of the opinion, the court noted that "the evidence presented by Professor Lamb demonstrates that parents' genders are irrelevant to children's developmental outcomes."
I love this sentence, and not only on behalf of same-sex couples raising children. The right wing "marriage movement" has been asserting for the better part of the last two decades that the decline of life-long heterosexual marriage endangers children precisely because they need to be raised by their married, biological, mother and father. Dr. Lamb's conclusion from the research shows that argument for what it is -- an empty pronouncement that distracts attention from meeting the real needs of children. "There is...no empirical support for the notion that the presence of both male and female role models in the home promotes children's adjustment or well-being," Dr. Lamb continued.
DOMA defenders unsuccesfully attacked the methodological validity of the research in this area. They submitted three articles -- none from peer-reviewed journals -- criticizing the studies Dr. Lamb relied upon. This flimsy response to the more than 50 peer-reviewed articles about research on children with lesbian or gay parents that Dr. Lamb relied upon was completely dismissed by the court.
Of course the court also pointed out that denial of federal benefits to same-sex spouses does nothing to change their status as parents under state law. It may just hurt children by denying their parents the privileges federal law bestows on married couples. This of course begs the question of why children's economic security should depend on whether their parents marry. But readers of this blog know full well that same-sex marriage litigation never questions the validity of granting benefits to married couples -- and their children -- that are denied to other family forms. No point expecting an opinion like Golinski to comment on that.
The court also went on to say that DOMA fails even rational basis review. Denial the federal benefits of marriage to same-sex couples is not rationally related to the well-being of children. It does not change the recognition of gay people as parents; all is does is deny a couple federal benefits. To the argument made by "some people" that biological parents should be the preferred childrearers, the court points out that the law right now does not recognize a distinction among parents based on whether they are biologically related to their child. The court does not elaborate, but presumably the reference is to the full range of parents who lack that biological connection, including adoptive parents and parents who conceive using assisted reproduction. There are way more straight parents who fall into these categories than there will ever be gay parents.
Wednesday, February 15, 2012
Give to Breast Cancer Action, not Komen
The Komen controversy about Planned Parenthood was just the tip of the iceberg as far as I'm concerned, and I am thrilled to link to an op ed on the subject in today's Los Angeles Times by Peggy Orenstein. I won't repeat what Orenstein eloquently describes. But while she urges readers to give their breast cancer-related donations elsewhere, she does not name names, and that I will do.
Send your money to Breast Cancer Action. Its "think before you pink" campaign long predates the recent attention to Komen. What's more, they fit Orenstein's criteria of a worthy group: not shying away from objectively reviewing the science of screening; aggressively pushing for more investigation into the causes of cancer, including environmental causes; and refusing money from corporations whose policies or products are not good for women's health.
Send your money to Breast Cancer Action. Its "think before you pink" campaign long predates the recent attention to Komen. What's more, they fit Orenstein's criteria of a worthy group: not shying away from objectively reviewing the science of screening; aggressively pushing for more investigation into the causes of cancer, including environmental causes; and refusing money from corporations whose policies or products are not good for women's health.
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