Archive for the ‘family law’ Category

More Gay and Lesbian Families? Fewer Rights!

January 20th, 2011 No comments

This article in today’s Times points to census data establishing that there are more gay and lesbian couples raising kids in the South than elsewhere. In fact, the two cities with the largest percentage of such families are San Antonio, Texas (34%) and Jacksonville, Florida (32%).

Texas and (especially) Florida are notoriously lousy places to live if you’re LGBT, at least when considering the matter from the legal perspective. Both have “traditional” marriage enshrined in their state’s constitutions (with Florida’s also banning any kind of relationship recognition), and Florida law still bans gays and lesbians from adopting. (The legal status of the law, as the Times article insufficiently explains, is in doubt because a ruling that it was unconstitutional wasn’t appealed to the state’s supreme court. That could still happen in a future case.)

But the story is a reminder that people’s lives aren’t defined by the law. Although the accounts are anecdotal rather than statistical, it seems that many of these families enjoy support networks and are (to some extent, anyway) welcomed by their communities. In their way, these people are doing as much (one might argue more) than all of the political and legal discourse about the rights of our families.

At the same time, it’s also an invitation to continue to press for equality. The story points out that these families defy the stereotype of the affluent, white gay and lesbian families that are (too) often the face of the marriage equality argument. And because many of them are in challenging financial circumstances, arguments for basic equality under the law should be demanded as a down payment on the need for fuller economic and social justice and opportunity.

Meanwhile, read this article. It will cheer you up.

How Much Will New Rules for Family and Medical Leave Act Help Same-Sex Couples? Not Much

June 22nd, 2010 1 comment

Some good news is coming in about the Labor Department’s imminent announcement of new regulations that allow workers to take (unpaid) leave in order to care for their children.

Here’s the important language from the Family and Medical Leave Act:

§ 2612.  Leave requirement

(a) In general.
(1) Entitlement to leave. [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

Apparently, the new regulations will interpret “son” and “daughter” broadly enough to cover those cared for by those who “act as” parents, even in the absence of legal or blood ties to the child. This interpretation, of course, will benefit not only non-bio, non-adoptive LGBT parents, but all similarly “non-traditional” (whatever that means) parents. Like the Obama Administration’s proposed new rules on hospital visitation, these changes will benefit not only the LGBT community. Smart politics there.

But the story has been misreported (by the AP) as allowing LGBT workers to stay home to care for their partners. That can’t be done under this law, which the Labor Department has no authority to countermand.

The Labor Department can probably expand the definition of “son” or “daughter” in this way, but can’t do so with “spouse” — because of the Goddamned Defense of Marriage Act.

Creative interpretation of existing law can only get you so far. This initiative, while commendable, only underscores that DOMA — a law that the Obama Administration continues to defend in court and has done almost nothing to work toward repeal — must be repealed.

Marriage, Kids, and the Gays

June 18th, 2010 1 comment

This neat summary of how marriage is becoming less child-centered has indirect implications for the marriage equality debate, it seems to me. Tara Parker-Pope, a blogger for the Times, summarizes research establishing that kids rank fairly low on the list of things necessary to a happy marriage; not surprising, given that people are also having fewer kids — and having them later — than generations past.

The story also quotes the testimony of the main witness for the Prop 8 proponents, the disastrous and case-destroying David Blankenhorn, who blathered on about the marriage-reproduction bond,which he regards as insoluble:

Extending marital rights to couples who cannot conceive children would change marriage from “a child-based public institution to an adult-centered private institution” and “weaken the role of marriage generally in society.”

But while Mr. Blankenhorn has been marinating in his think tank, marriage has been changing around him. His airy pronouncements, void of empirical support, are contradicted by reality — a reality that could include (as long as we’re speculating) the strengthening of marriage by allowing same-sex couples in. After all, the couples likeliest to take advantage of the right to marry would be those who have, or want, kids. So the marriage-kids connection might be reinforced, not further pulled apart, by marriage equality.

Valuing a Child’s Best Interest?

October 8th, 2009 No comments

On Tuesday, the Montana Supreme Court decisively ruled that a non-biological parent who had lived with her same-sex partner for some ten years, and with whom she had co-parented the couple’s children, had parental rights under a state statute. An in-depth analysis of the decision, Kulstad v. Maniaci (and a citation to it),  is available at Art Leonard’s site, and I can’t really improve on his summary of the case.

I do want to take a moment to mention, though, that the need to oppose any law or judicial decision that might conceivably contribute to the recognition of same-sex couples sometimes causes anti-gay groups to take strange positions. In this case, the Alliance Defense Fund argued that the statute under which the court granted parental rights to the non-biological parent was unconstitutional. (Again, see Leonard’s blog for a summary of the argument.) Shouldn’t a conservative legal group, and one that broadcasts its foundation in Christian values at that, be arguing that the children’s best interest would be served by having two committed, loving parents in their lives? The court, perhaps annoyed by the effort to separate the kids from one of their two parent, began its decision by stating:

Far too often this Court faces a situation in which minor children have no adult fit to parent them. This case presents the increasingly unusual situation of two adults fit to parent minor children, L.M. and A.M.

Well, from the ADF’s point of view, I suppose it’s better to have one sinful parent rather than two; and they’re all about biological ties, even when other interests and arguments pull strongly in the other direction.

But…who is on the same side as the ADF? The biological mother, who argues that her former spouse should be a legal stranger to their kids. There is a special place reserved here for gay and lesbian former partners who make these arguments, which, if successful, can set back the progress of LGBT rights — so that the winning partner can deprive her children of a parent’s love and duty: reliable comforts that the kids have relied on all of their lives.

None of these arguments would even be possible if second-parent adoptions were routinely available (and used) for same-sex couples. But there’s no excuse for exploiting bad law. I hope Barbara Maniaci, the bio mom, can live with herself. (Or do I?)

Dallas Judge Declares Texas’s Ban on Same-Sex Marriages Violates the Federal Constitution

October 2nd, 2009 2 comments

Courts sometimes find themselves in a bind: Stray too far from public opinion (even if constitutional principles seem to compel doing so), and they risk vilification and loss of the public’s confidence on which they, to an extent, depend for legitimacy. But ignore the reality of  the litigants before  them, and they run the risk of irrelevance.

The breaking news that a Dallas judge has just recognized the right of a same-sex couple to divorce by finding that the state’s ban on same-sex marriages violates the U.S. Constitution’s guarantee of equal protection highlights the tension between the court’s reliance on public good will and the need to solve problems. As I wrote recently, couples at the end of a marriage must divorce in order to effect a clean separation and to avoid issues — like bigamy — that can surface when they find another partner. Yet in the case I posted on, and Indiana judge denied the divorce (because the court can’t dissolve a marriage that doesn’t exist) while expressing frustration at the result the court felt compelled to reach.

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

This decision reminded me of a Florida court’s ruling that the state’s ban on gay couple’s adopting children violated the Florida state constitution’s right to equal protection under the law. In both cases, a court saw a problem that needed solving — especially in the adoption case, where allowing the adoption by long-term foster parents was clearly in the children’s best interest. But appellate courts, at a remove from these actual problems, often take a more dispassionate view of the law and the facts.

Judge Callahan has an argument (at least on the merits; I’m trying to find a copy of the decision, if one exists, to analyze the persuasiveness of her opinion),1 but decisions like this risk creating bad precedent — in theory, this case, because grounded in the federal constitution, could go all the way to the Supreme Court. Did Judge Callahan consider this in trying to solve the problem before her? Should she?

  1. If I do, I will post my analysis.

Dysfunctional Families in Fact and Fiction (and Marriage Equality)

June 26th, 2009 No comments

Three events coincided yesterday, giving me occasion to reflect on “family” in all of its glorious and sorrowful messiness.

A friend and I had long discussed going to see August: Osage County on Broadway. Of course, it took the news of its imminent closing to get me to actually go. On the train going up to New York, I discovered that the Mark Sanford affair was conducted on South Carolina’s nickel. Coming back, I learned of Michael Jackson’s death.

Talk about examples of family dysfunction! Sanford’s infidelity, swiftly following Nevada Senator John Ensign‘s, was a reminder that we all, at times, are weaker than we’d like to be. It’s tempting and in a sense justified for the LGBT community to gloat at these transgressions, but I think that’s too easy. Yes, if these guys (particularly Ensign) go on railing against gay marriages, let’s call them on their hypocrisy. And Sanford’s decision to spend taxpayer money for his fling is inexcusable; he should resign for that reason alone. (The impulse to corruption can’t be as powerful as the tug of lust.) But the infidelities themselves are pandemic, and always will be. Gloating turns out to be an expensive luxury for many, sexual orientation aside.

The takeaway lesson was best expressed by one of the characters in August: Osage County, who finally can take no more of her older sister’s stern moral dictates, which bring the family to heel throughout most of the play. Most of the time, things aren’t a simple matter of black and white: we live “in the middle.” If the “middle” is the one portrayed in this terrific play, please nudge me to one side or the other. The Weston family, whose travails are so comically rendered, sets the bar for dysfunction to world-record levels:

“Alcoholism, drug addiction, adultery, sexual misbehavior: The list of pathologies afflicting one or another of the Weston family is seemingly endless, and in some ways wearily familiar.”

Yes, wearily familiar. Every family can recite a (likely less absurd) subset of the list of horrors plaguing this cartoonishly awful family. I recall a conversation with a sneaky-smart colleague, a vocal opponent of marriage equality who told me, after a debate I’d participated in, that he liked my point about how it’s hard to argue for keeping gays out of marriage when straights have done such a poor job of upholding its standards lately.

However sincere, though, his point gets marriage and relationships wrong. It’s not that no-fault divorce or a growing disrespect for marriage have caused these problems, but that human beings are messy — and so are our relationships. I really don’t want to listen to the rote line that “children deserve a mother and a father” one more time. Please, enter the real world and support families (not just through marriage equality, either) that are actually trying to raise kids halfway decently. Trying to make the perfect the enemy of the good is incoherent when the “perfect” doesn’t even exist. Emma Ruby-Sachs says it well, speaking of Sanford’s case:

“[I]nstead of working to find homes for children without parents, politicians like Governor Sanford oppose gay adoptions. Instead of ensuring that each taxpayer is given a credit for their dependants, Governor Sanford opposes the tax rights associated with gay marriage.

“And like anyone who loses touch with reality, Sanford fell victim to his own fictions. His moral code bears no relation to the diverse country in which he lives. It turns out, his moral code bears little relation to his own life.

“Moral politics ignore reality, they serve to ostracize and isolate vulnerable members of society and they are inevitably impossible to follow. Their separation from the messy human condition means that even the people imposing the morally based laws are sinners and transgressors.”

This brings me to the sad end of this post; the early death of Michael Jackson. Watching his physical and emotional disintegration over the years was tough for me. I recall being bowled over on hearing “I Want You Back” for the first time while sitting in my grandparents’ bedroom in 1970. From that moment until sometime after “Thriller,” he didn’t put a foot wrong. But his strange and stage-managed life couldn’t be sustained, and the ensuing years were a stygian whirlpool that I’m pained to recall.

Yet he was married (briefly), and had three children. Is the right of parents to their mother and father really the biggest problem we face? Isn’t it time for a serious discussion of state-sponsored marriage and support for families? Like Ruby-Sachs, I’m increasingly convinced that marriage equality isn’t the toughest issue we face, but until we achieve that marker of formal equality, there’s no oxygen in the room for anything else.

This is what all the fuss was about:

Sex-Deprived Kenyan v. Lysistrata’s Daughters, NGO

May 9th, 2009 1 comment

I find myself unduly interested in the sex life of a Kenyan man.

A while ago, I compared the political courage of Liberian women to the moxie shown by Lysistrata and company. Lysistrata, a creation of the comic playwright Aristophanes, was an Athenian woman who led her Greek sisters in a sex boycott until the men stopped their childish and destructive Peloponnesian War. The brave women of Liberia didn’t withhold sex (any more than usual, I guess) but put themselves in harm’s way to make their point.

But the comparison I drew pales beside the real thing: Since I posted that story, Kenyan women were urged to follow Lysistrata more literally — by withholding sex. The difference is that the scales are now balanced by a different concern on the other side; the increasingly fractured coalition government in Kenya. How riveting! If women are going to withhold sex because political parties can’t get along, expect an immediate and permanent decline in the U.S. population.

Perhaps in recognition of the stakes’ being less dramatic than those raised by the Peloponnesian War, the women’s groups organizing this “boy”cott called only for a one-week moratorium on the conjugal act. As far as I know, the groups issued no detailed regulations as to what counted as forbidden sex for purposes of satisfying the moratorium. Former President Clinton could have driven a truck, inter alia, through that lack of precision.

Apparently, though, even that ill-defined, short-duration prohibition was enough to drive one James Kimondo into a litigious frenzy (and perhaps other frenzies). According to this story, he has now filed what would once have been called, at least in the U.S., an “alienation of affections” claim against an entity called the G-10, a sort of collective that houses a group of women’s activist groups. His lawyer said that the suit alleges that the ban “resulted in stress, mental anguish, backaches and lack of sleep.” (Backaches?)

The tort of alienation of affections is mostly a relic today. Its gist is that a third party’s meddling caused a husband (always a husband, of course) to lose the “affection” (sex, mostly) of his wife. It didn’t require adultery, because the idea, to quote Norma Rae, was that the intruder was “in [her] ha-id “(“head,” in Standard English). The tort has little traction in our age and culture, where women are believed to be “people” —  capable of deciding for themselves, thank you, whether to alienate themselves from their husbands. Along the same lines, sort of, men are no longer allowed to rape their wives, either. Male privilege has waned as female autonomy has waxed.

Speaking of waxing (or its absence), Kimondo’s lawyer must believe that his client’s inability to obtain such waxing for his naughty bits still has some legal merit in Kenya. Maybe it does, which would thereby suggest that women have yet to gain the same status there as here — the activists overcame his wife’s fragile will, poor thing. They are to blame, not her. This position is inherently unstable, though, because it changes the alienation of affections narrative to render it self-contradictory. The tort only works if men are the ones o’erbearing frail female will, not if it’s a sister-to-sister thing. Then, who’s empowered as between this woman and these activists? Who can say?

Naturally, I’d like the case to proceed so we can learn about the couple’s sex life, which Kimondo has decided he’s willing to put on display for a possible payday. And how big a bonanza is possible, really, from a week’s worth of missed sex? Admit it — by now you want the details, too.

Equality Forum Day 5: What Now?

May 1st, 2009 2 comments

After a political eternity, several bills directly relevant to LGBT equality are queued up before Congress. In order of both expected ease of passage and anticipated timeline, these are: hate crimes, which has already passed the U.S. House, and is expected to navigate the more treacherous waters of the Senate and be signed, possibly within a couple of months; the bewhiskered Employment Non-Discrimination Act (“ENDA”), which could go through by the end of 2009; repeal of the “Don’t Ask, Don’t Tell” policy, which seems to enjoy broad support but is trickier because it involves the military; and repeal of all or part of the Defense of Marriage Act (date and prospects less clear).

Friday’s National Legal Panel seemed in remarkable agreement on these issues, and more cheered by these seemingly modest anticipated developments than might have been expected. After all, Obama’s in office and the Democrats hold power in both houses of Congress (even a looming filibuster-proof majority in the Senate now seems very likely, given Arlen Specter’s party flip). As the ACLU’s Chris Anders asked rhetorically: “What’s the problem?” Why shouldn’t all of these agenda items so long sought, and for which so much laborious lobbying has been done, sail right through?

Welcome to the sausage factory! All of these bills have to be introduced, go through committees, survive amendments, and then go to the floor for  passage. Then there’s reconciliation of possibly differing versions of the legislation between the two chambers. According to Georgetown law professor and legislative expert Chai Feldblum, the complexity of the process and the list of backed-up agenda items from various constituencies means that we’ve been “given” two slots for this legislative session: one for hate crime and one for ENDA. Time is the most precious resource on Capitol Hill; getting the “face time” you need is vital to move things forward.

The hate crimes law (“The Local Law Enforcement Hate Crimes Prevention Act“) isn’t strictly a “gay rights bill,” because it also covers criminal acts motivated by a victim’s race, religion, disability, national origin, or gender. It thus has a broad coalition working toward its passage. ENDA is trickier; whether the version that’s passed will offer “gender identity” discrimination is unclear. That’s the goal, but the TG community could be thrown overboard to get the bill enacted. I wouldn’t be in favor of  such a bill, because no one needs workplace protection as much as those who are gender nonconforming, and if they’re not included now — forget it. They’ll never get a bill through on their own.

Penn law professor Tobias Wolff, who advised the Obama campaign on issues of interest to the LGBT community, offered a rich and complex account of Obama’s support. Wolff said he “lost count” of the number of times Obama mentioned issues of gay equality on the campaign trail, even when his audience (say, a conservative black church) might have been less than fully receptive to it. Yet Obama never did a presentation before any of the national LGBT advocacy groups; which was also unprecedented (this time not in a good way) for a Democratic candidate. This might be looked at as less than supportive, but Wolff’s interpretation was that Obama preferred to construct coalitions that were more broad-based, and not especially associated with any particular interest group. He also related that Obama isn’t going to independently decide to do things for us; he expects advocacy and persuasive arguments, and can be moved by them. So in an odd yet paradoxically exhilarating way, there’s more work to do with a sympathetic President and Congress, not less.

According to Hayley Gorenberg, Deputy Legal Director for Lambda Legal, much less promising are the prospects for any kind of substantial help from the U.S. Supreme Court on marriage equality or the military policy. Here the situation is markedly different from that of the state level, where courts have often been strong allies, especially in recent marriage equality cases and on family law questions, such as second-parent adoptions. Although the Court has some good precedent cases (Romer v. Evans, which declared anti-gay animus an unconstitutional basis for legislation; and Lawrence v. Texas, striking down statutes that criminalize intimate sexual conduct between consenting adults), they’re very deferential to the military and not likely to require marriage equality any time soon. The Court might be receptive to the carefully crafted challenge to the part of DOMA that denies federal benefits to legally married couples; that case, though, has just been filed and would take years to reach the Court. By then, perhaps DOMA would have been repealed.

At least as far as “don’t ask, don’t tell” is concerned, though, the Obama Administration could adopt some internal policies and rules that would greatly lessen its arbitrariness and devastating impact on dedicated military personnel. And that interplay between decisional law, legislation, and regulatory law was consistently emphasized by the panelists, especially Feldblum. Moderator Nan Hunter, a Georgetown law professor, did a nice job in getting the participants to explain these relationships, and the law itself, in a way that the “lay” audience could understand.

What we’d have trouble understanding is a lack of movement. If these initiatives fail, the panelists agreed that we’d be forced to take responsibility for that failure. This prospect, though, wasn’t enough for anyone to seek the return of the Bush era.

Equality Forum Day 3 (Part 2): It’s Always Personal

April 30th, 2009 1 comment

Family Law is an exciting yet weird course to teach. The law school model (now admittedly under both siege and reconstruction) emphasizes legal reasoning and analysis, the parsing of cases and statutes, and the occasional foray into broader constitutional issues. Of course, very few legal scholars or students today think that a legal result can be fully explained by logical analysis, but we continue — in most courses, anyway — to mostly pretend otherwise in order to get some actual material covered. This polite fiction kind of falls apart in Family Law. Students can’t refrain from talking about their divorced parents (or their own divorces), the annulment that wiped out a student’s parents twenty-year marriage, their extended families, their own adoptions, etc. And at least one professor (me) is complicit, peppering the discussion with examples drawn from people I know, as well as from celebrities. Why? Because it’s interesting stuff. Michael Douglas and Catherine Zeta-Jones have a pre-nuptial agreement that increases her “take” if he’s adulterous; Madonna has trouble adopting a Malawi kid despite her international clout; and Britney Spears (remember her?) marries and immediately “takes it back” in Vegas. Try matching that, “Sales and Leases”!

Given my experience in the classroom, I therefore wasn’t surprised when last night’s Same-Sex Families panel was dominated by discussion not of the legal and political issues surrounding gay families, but by stories about the families themselves. To a great extent, this emphasis was directed by the moderator, long-time Philadelphia Inquirer reporter Gail Shister, who began by asking the couple how their families “came out,” and later asked about how the couples decided on what names they’d use (“daddy” and “papa” seem to be close to universal for gay men; lesbians have to be more creative). But for gay families (maybe for all families?), every personal question calls for a somewhat political answer.

Thus, consider these responses to the “coming out” question. Jennifer Chrisler, Executive Director of the Family Equality Council, noted that her seven-year-old  twins have to constantly explain who they are and where they came from. Philanthropist and founder of, Jamie Marks, talked about his discussions with potential nursery schools over such matters as how they dealt with Mother’s Day. (One school said that the kids would just do a special project for “mom” and then give it to whichever gay dad was “the mother.” Next!) Nancy Polikoff, a law professor at American University in Washington, D.C., noted that her daughter was 26 so that it was harder for her than it likely is now: the numbers of kids being raised by same-gender couples was truly tiny back then. Penn psychiatrist Steven Sokoll explained the decision-making process that led his family (including a son and a daughter) to a supportive suburb, and to a public school there. The importance of such support has caused the parents to leave their daughter in the public school despite what he described as a less-than-ideal academic fit.

On the names issue, Chrisler’s response was particularly interesting: Names matter. Who are these people to the family, and how should we describe them to create the appropriate relationship between them and our families? For adoptive kids, that might mean referring to “birth mother”; for kids conceived through surrogacy, parents who want to make clear that the sperm donor isn’t a father shouldn’t use that word in describing him.  In a way, I understood Dr. Sokoll’s point about forms to be a qualification to Chrisler’s comments: Yes, we decide what names to use, but we’re not the only “deciders.” Schools, businesses and governments send messages about our families too, either by changing forms to reflect the reality of same-gender parents (or not, as I discussed in this earlier post about my experience with the Social Security office), or by granting us the name and status of marriage (as opposed to no recognition, or the more limited “civil union” status).

Shister, who has a terrific sense of humor but was somewhat out-of-date in her knowledge of current developments, did move the discussion towards more scholarly, educational topics at times. Polikoff, one of the nation’s leading experts on cutting-edge family law issues, was given just enough time for a breathless run-through of some of the difficult issues that same-gender parents face, including having to adopt their own children (think about it!). I urge anyone interested in this and other topics of interest to gay families to pick up her excellent book, “Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law.” I devoured it last summer. Polikoff is good at explaining complex issues in a common-sensical, clear way. The book changed my thinking about the importance we assign to marriage over other forms of families that also need legal protection and social support.

The final question, about the importance vel non of opposite-gender role models, became the highlight of the session. Polikoff situated the question within its sociological context, reminding everyone that the data show that parental gender doesn’t matter (a new, meta-analysis of the data making the point even more decisively is about to come out, she said). Marks related a story about a friend, who, on seeing Marks’s daughter having trouble removing her nail polish, said: “You too?”

Then Chrisler brought down the house. Rising up in an escalating indignation, she went after the supposed need for “role models” of the same sex, calling it “based on social gender stereotyping” that, in turn, is code for slamming same-sex parents as deficient in parenting because the couple is “missing” a gender.

Please don’t make me teach “Sales and Leases.”