The Bilerico Project

Another Catholic Church Red Herring

nancy@bilerico.com (Nancy Polikoff) — Mon, 16 Nov 2009 15:00:00 -0500

Yesterday I wrote that legislation allowing same-sex marriage will have no impact on the issue of the church's provision of foster care and adoption services, because providing those services is already subject to DC's anti-discrimination laws.

The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring.

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The DC Catholic Church's red herring

nancy@bilerico.com (Nancy Polikoff) — Sun, 15 Nov 2009 14:30:00 -0500

To hear the Catholic Church tell it, if same-sex couples can marry in DC they will have to stop providing social services here. At least that's their threat, as reported earlier this week in the Washington Post.

I heard the same thing at the October 26 committee hearing. Their representative said the marriage equality bill would "hurt the people who count on Catholic Charities." (To view the whole hearing click here and select the October 26 meeting of the Committee on Public Safety and the Judiciary).

After their representative lamented about what would happen when they sought relicensing as a foster care agency, Committee Chair Phil Mendelson asked why foster care would be implicated and the answer was that the Catholic Charities would not place children with same-sex couples.

Well, I have news for the church (except I suspect it's not news to them).

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Voting on marriage equality in DC

nancy@bilerico.com (Nancy Polikoff) — Tue, 03 Nov 2009 14:00:00 -0500

The hearing on marriage equality in DC continued today before the City Council Committee on Public Safety and the Judiciary. Last week there were theatrics by those opposing marriage equality, but there was also a common theme. They want the people to vote. That theme continued yesterday.

Under DC law, however, human rights matters are not subject to popular vote. So opponents asked for an "advisory referendum," even though it would not be binding. Last week that gave Council Member David Catania the opportunity to note that the only time such an advisory referendum has been held in the District of Columbia was on December 21, 1865, and the subject was giving freed slaves the right to vote. According to Council Member Catania, the vote was 721-1 in Georgetown and 6591-35 in the rest of the city - and that would be against extending the vote to freed slaves.

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District of Columbia publishes list of registered relationships that will be recognized as domestic partnerships

nancy@bilerico.com (Nancy Polikoff) — Sun, 18 Oct 2009 13:00:00 -0500

Last year's expansion of the District of Columbia's domestic partnership laws included a provision requiring DC to recognize as domestic partnerships those relationships registered elsewhere that are "substantially similar" to domestic partnerships in DC. The law required the Mayor to certify which relationships from elsewhere fall into this category. Well, the Mayor took his time, but today the city published a Notice of Proposed Rulemaking listing the jurisdictions.

The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.

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Now is not the time to eliminate domestic partnership in the District of Columbia

nancy@bilerico.com (Nancy Polikoff) — Fri, 09 Oct 2009 18:00:00 -0500

The bill authorizing same-sex marriages in the District of Columbia contains a disturbing additional provision that has gotten little attention. It eliminates any new domestic partnerships as of January 1, 2011. I don't know why Councilmember David Catania wrote this into the legislation, but I do hope he will reconsider in light of the history of domestic partnership in DC and its eligibility criteria.

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Montana Supreme Court protects children with two same-sex parents

nancy@bilerico.com (Nancy Polikoff) — Wed, 07 Oct 2009 13:00:00 -0500

The Montana Supreme Court has affirmed a trial court decision granting a "parental interest" to a lesbian mother who co-parented two children legally adopted only by her partner. The case, Kulstad v. Maniaci, is a strong and unequivocal victory for recognizing the families that same-sex couples form. The mother who adopted the children, Barbara Maniaci, was represented by the Alliance Defense Fund. As I've noted elsewhere, that organization devotes substantial resources to opposing the rights of children to maintain relationships with both of their functional parents when a same-sex couples splits up.

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Chai Feldblum nominated to EEOC

nancy@bilerico.com (Nancy Polikoff) — Tue, 15 Sep 2009 12:30:00 -0500

The White House announced Monday that it will nominate Chai Feldblum, LGBT rights scholar and advocate, to the Equal Employment Opportunity Commission. Chai is a Georgetown Law Professor, former law clerk to former Supreme Court Justice Harry Blackmun, a primary mover behind passage of the Americans with Disabilities Act, and a longtime advocate for people with disabilities. She is also the partner of Bilerico contributor Nan Hunter.

Chai is the first openly gay or lesbian person appointed to the EEOC, which issues regulations implementing anti-discrimination laws (including ENDA when it passes!) and which authorizes test case litigation under anti-discrimination laws. If confirmed, she will serve a five year term.

Bilerico readers who remember the early Clinton years may remember the Senate confirmation battle over Roberta Achtenberg, nominated to be Assistant Secretary of HUD. She was confirmed, but not before Jesse Helms referred to her as that "damn lesbian." Achtenberg was the former executive director of the Lesbian Rights Project/National Center for Lesbian Rights. So she wasn't just a lesbian, she was an activist.

Jesse Helms is long gone, but the Alliance Defense Fund already has set its sights on Feldblum.

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Will New York finally get it right for children of lesbian couples?

nancy@bilerico.com (Nancy Polikoff) — Wed, 02 Sep 2009 19:00:00 -0500

It's almost 20 years since the highest court in New York ruled that a child planned for by a lesbian couple, born to one partner using donor insemination, and raised as the child of two mothers, nonetheless has only one legal parent; and that legal parent has complete autonomy to decide whether the child maintains a relationship with the nonbio mom once the couple splits up. No exceptions.

This isn't Texas. Or Missouri. Or another state known for hostility to same-sex couples raising children. (Texas won't allow the names of two same-sex adoptive parents to appear on the birth certificate of a child born in Texas but adopted elsewhere; Missouri has more reported opinions denying custody to a gay or lesbian parent in favor of a straight ex-spouse than any other state in the country).

No, this is New York. But the case of Alison D v. Virginia M. was decided by the New York Court of Appeals (the state's highest court) in 1991 and it established an iron-clad rule that a nonbiological parent has no standing to bring an action for custody or visitation rights. So unless the couple went to a lawyer and spent the money and time on a second-parent adoption, the child risks the loss of a parent, including the loss of financial support, if the couple splits up.

Well, that may change.

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ACLU argues - again - that Florida's ban on adoption by gay men and lesbians is unconstitutional

nancy@bilerico.com (Nancy Polikoff) — Thu, 27 Aug 2009 13:00:00 -0500

Last November, I predicted that Florida's ban on adoption by gay men and lesbians was on its way out. Yesterday, the fight to end the ban took another step forward.

Gay rights lawyers are cautiously optimistic that Florida's Third District Court of Appeals will affirm the trial court ruling declaring the ban a violation of the state's constitution.

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North Carolina upholds second-parent adoption!

nancy@bilerico.com (Nancy Polikoff) — Tue, 18 Aug 2009 16:30:00 -0500

The South is the region with the worst laws in the country for gay and lesbian parents. Well today add North Carolina to the list of states that approve second-parent adoption.

Today's decision from the North Carolina Court of Appeals came in the case of Boseman v. Jarrell. Pretty straightforward facts: Julia Boseman and Melissa Jarrell had been together four years when, in 2002, Melissa gave birth to a child, conceived through donor insemination and planned for by both of them. The child called Melissa "Mommy" and Julia "Mom." The couple filed for a second-parent adoption, which was granted in 2005. As is common given state adoption statutes, the couple asked the court to waive the statutory provision that an adoption terminates the biological mother's parental rights. The court ruled that it had the power to do that, and the adoption decree specifically reads that it does not terminate Melissa's parental rights.

So far so good.

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Important elder law publication...with a caveat

nancy@bilerico.com (Nancy Polikoff) — Thu, 13 Aug 2009 14:00:00 -0500

I was so excited to see the National Center for Lesbian Rights' new publication, Planning with Purpose: Legal Basics for LGBT Elders, available on line here. Basically, I love any publication that explains the law to people in a clear and useful way.

So why the caveat? Well, the section on relationship recognition begins with a section entitled "Federal Law Discriminates Against Same-Sex Couples." Of course this is about DOMA and the federal government's unwillingness to treat as married those same-sex couples who are legally married in their states. This is the beginning of an incomplete picture of the significance of marriage under federal law, especially involving elders. Bottom line: Sometimes it is economically BETTER to be an unmarried couple.

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The legal status of same-sex relationship recognition

nancy@bilerico.com (Nancy Polikoff) — Fri, 07 Aug 2009 13:30:00 -0500

Anyone reading my Bilerico posts and my blog knows that I am not a fan of fighting for access to marriage for same-sex couples. But I am certainly a fan of providing accurate, readable information to LGBT folks about the state of the law. With that in mind, I recommend to everyone a three part series of columns by law professors Joanna Grossman and Ed Stein.

Part One summarizes the history of the fight for same-sex marriage, from early challenges to the victory in Massachusetts in 2004. Part Two surveys the current legal landscape. Part Three addresses the issue of recognition of formalized same-sex relationships in states that don't afford formal recognition.

The columns pack much information into few words. Read them and learn.

Ever thought of adopting your partner?

nancy@bilerico.com (Nancy Polikoff) — Mon, 03 Aug 2009 09:30:00 -0500

Ever thought of adopting your partner? Not likely. But in times past -- sometimes not so distant -- that was the mechanism some couples chose to establish a legally recognized relationship. A few appellate court opinions on the subject have made it into family law textbooks. New York ruled famously in the 1980's that such an adoption violated the state's public policy. But many states allow it. Interestingly, two different Florida judges told me in the 1990's that they had granted such adoptions.

Gay rights lawyers have pretty uniformly discouraged such proceedings. You can't divorce your adopted child/parent. You probably have to present yourselves to the court in a manner that is dishonest. But they still happen.

The most recent example to come to public attention is the adoption of Patricia Spado by her then partner Olive Watson. The case has gotten lots of press coverage because Spado stands to inherit oodles of money pursuant to a trust established by Thomas Watson Jr, the son of the founder of IBM. The trustees have been trying to undo the adoption, and they just lost in the Maine Supreme Court. If you don't want to read the court's whole opinion here, you can read Professor Art Leonard's fine summary. Basically, Maine law allowed such adoptions at the time (not anymore), and the court found that the parties satisfied the jurisdictional requirements under Maine adoption law even though they only spent summers there.

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Anti-gay former chief justice of Alabama Supreme Court still spewing hate

nancy@bilerico.com (Nancy Polikoff) — Sat, 25 Jul 2009 10:00:00 -0500

Most of the country remembers former Alabama Supreme Court Justice Roy Moore for his refusal to obey a court order to remove a monument to the Ten Commandments from the courthouse.

I remember him because he once referred to "homosexual conduct" as "abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated....The courts of this State have consistently held that exposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected." That was in a 2002 custody case upholding a trial court order leaving children with their violent - but heterosexual - father rather than transfer custody to their lesbian mother.

In a country where some states allow us to freely adopt children, adopt our partner's children, and, as of this week, become legal parents of a child from the beginning without needing to adopt, it can be hard to remember that, in other states, being a lesbian is grounds to lose your children forever.

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Wisconsin domestic partnership law under attack

nancy@bilerico.com (Nancy Polikoff) — Fri, 24 Jul 2009 11:00:00 -0500

The Wisconsin Family Action has filed a suit to block implementation of the Wisconsin domestic partnership law. This is no surprise. In a post two weeks ago, I argued that a more inclusive registry would have actually made such a challenge less likely to succeed. Wisconsin limited the registry to same-sex couples who are not blood relatives closer than second cousins, who live together, and who are not married or in a DP with someone else. A registry for any two interdependent people living together would have made it harder to argue that it is violating the state's defense of marriage act which says "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

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