hunter of justice

Forecasting the 2012 election results for marriage referendum questions

Nate Silver has projected results for ballot initiatives on gay marriage already slated in Minnesota and possible in North Carolina. The bottom line is that he predicts a statistical toss-up in Minnesota, with the edge going to pro-gay forces opposing such an amendment, but a likely win for the anti-gay forces in North Carolina. If an anti-gay marriage state consitutional amendment is defeated in Minnesota, it will be only the second time that has happened.

So, let's imagine that you are advising the White House -- It's hard to build a win in the 2012 election without Minnesota. North Carolina, on the other hand, may be expendable - it produced the narrowest margin for Obama of any state in 2008. But note the raw numbers: Minnesota has 10 Electoral College votes, while North Carolina has 15. One indicator of how badly the White House wants to carry North Carolina again is the fact that the 2012 Democratic Convention will be in Charlotte. 

If you want to know why Obama hasn't evolved already, do the math.

Nate Silver's detailed analysis after the jump -->

NC Supreme Court voids second-parent adoptions, allows custody

By Guest Blogger Nancy Polikoff

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month).

The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them.

This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son.

The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents.The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support.

These are cruel results. I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorrent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am.

There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did, someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

Crossposted from Beyond Straight and Gay Marriage

Legality of second parent adoptions before NC Supreme Court

A case that has drawn considerable interest because the non-bio mom is a state senator will decide whether second parent adoptions can be done in North Carolina. Julia Boseman, the only openly gay member of the state legislature, is defending the adoption she secured with the consent of the bio mom (Melissa Jarrell) before the two of them split up. Now the bio mom is arguing that the courts should not allow a same-sex partner to adopt. A number of public interest, professional and religious groups have filed amicus briefs. It's an old story, but a question of first impression in North Carolina.

Here's the Raleigh News & Observer on the oral argument held yesterday:

...[A trial court] judge granted Boseman's request to adopt Jarrell's son in 2005. The Durham County judge also waived a requirement that Jarrell relinquish her parental rights to Jacob, who will turn 8 years old next month.

The couple broke up the next year and in the custody fight both women received joint custody. But Jarrell argued the adoption should be voided because "second parent" adoptions don't exist in North Carolina law.

A trial court and the Court of Appeals panel upheld Boseman's adoption, but Jarrell attorney Leslie Fritscher told the justices an "activist adoption court pushed along by activist attorneys" exceeded the reach of state law by granting the adoption and allowing Jarrell to keep her parental rights. State law lays out four ways adoption can occur, but not this method, according to Fritscher.

"Courts may not substitute their own preferences for those of elected legislative representatives," Fritscher said. "Here the adoption court created its own adoption procedure, cobbling together various statutes to make a new kind of adoption that's not provided for in the adoption statutes."

Justice Patricia Timmons-Goodson pointed out that Jarrell consented to Boseman's adoption and now wants it voided: "Should we be concerned about her then coming and complaining about this?" Fritscher said it doesn't change that the lower court judge skirted adoption rules.

Boseman attorney Jim Lea called the adoption a "direct placement" adoption identified in the law in which Jacob was placed with a prospective adoptive parent. The Legislature hasn't expressly barred such cases where the adoptive parents are unmarried partners and one is a biological parent, he said.

Jarrell missed all deadlines to challenge the adoption and expressly sought it in 2005. Now she's changed her mind, and voiding it now would harm the well being of their son and his two-parent family, Lea told the court.

"Anything that's in dispute in the adoption process is supposed to be construed in favor of the child," Lea said. "That's what we can't miss here, that it's all about Jacob."

Associate Justice Paul Newby postulated that under Lea's reasoning three parents could adopt a child. Lea disagreed, but Newby said the adoption raised questions whether alternative adoptions are allowed. "Isn't that just evidence this is a policy argument best for the Legislature?" he asked Lea....

At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign. Judges in Orange and Durham counties have regularly decreed such adoptions in recent years, so family law lawyers are looking for clarity.

"This really is going to be the next wave of family law focus," said Michelle Connell, a Winston-Salem family law specialist who isn't involved in the case. "These situations are not going away because there are (local courts) that are doing this."

Groups representing law professors, female attorneys and the American Civil Liberties Union filed briefs urging the court to uphold the adoption. Several Christian groups wrote asking the court to reverse the lower court decision because Boseman is neither an adoptive parent nor a third party who has a right to custody.

Jarrell and Boseman were living together when the child was born in 2002. Jarrell conceived through artificial insemination, and Boseman has been actively involved in Jacob's life ever since, according to court documents.

Boseman, a Democrat, became the state's first openly gay legislator when she was elected to the Legislature in 2004. She didn't run for re-election in November and will complete her term at year's end.

Out in Carolina politics: an interview with NC State Senator Julia Boseman

Julia Boseman, North Carolina's only out state senator, was the solitary holdout who voted no on the resolution honoring Sen. Jesse Helms after he died last year. She is also the successful plaintiff in a custody case, in which the North Carolina Court of Appeals accepted the validity of a second-parent adoption. What absolutely boggles my mind is that if I still lived in the very conservative town where I grew up, she would be my state senator.

Durham Indy interview conducted by Steven Petrow:     

In sitting down with the Indy recently at her Wilmington home, Boseman, a 43-year-old Democrat from New Hanover County, spoke frankly and movingly about [a number of issues].

For Boseman (and North Carolina's LGBT community), it's been, as she says, a "really good year," one where she successfully led the fight as primary sponsor of the School Violence Prevention Act (known informally as the anti-bullying bill), which specifically protects LGBT kids and marks the first time that sexual orientation and gender identity are included in North Carolina law. The year also marked the passage of the Healthy Youth Act, which provides young people with life-saving information about STDs as part of a comprehensive sex education program that teaches more than just abstinence....

Indy: When you first ran for office, were you out as a lesbian?

Sen. Boseman: Yes!

How much do you think your sexual identity has been a driver in your political life?

I have to say it's much easier with the whole world knowing that you're gay. I can remember when I ran in 2000 for county commissioner, I had a choice: I can either be closeted or I can run as an openly gay candidate. If I run as an out gay person, I take away the biggest bombshell that they can use against me. There was a lot of interest in my race at that time—especially my first Senate race [in 2004]—because there have only been a handful of openly gay elected officials in North Carolina. So people from around the country had concerns.

[In the end], I made a conscious decision to run as an out lesbian. I have to say it was a little unnerving when the media went through my campaign reports and they found out I got support from the Gay and Lesbian Victory Fund. They came into my office with the cameras running, saying, "You're a lesbian. You're openly gay."

"Yes, I am. I am going to be honest with the people about who I am, just as I will be about honest with them about the issues that affect them."

So what's it like to be the lesbian, the only out state senator, the poster child for being an elected dyke here in North Carolina?

I never really think of it like that. People automatically assume things about you because you're gay—like you're going to raise taxes through the roof because you're liberal. You want everything that's considered liberal. Actually, we care about all the same things as other people—getting a good education, roads, where's the guy who's picking up my trash.

What advice do you have for other LGBT folks who are thinking about politics and public service?

You better have a really thick skin. You better want it real bad. You need to work hard. Don't get distracted from the light at the end of the tunnel.

Safer schools in North Carolina

Since one of the first posts on this blog, a little more than a year ago, was about the failure of the North Carolina legislature to pass an anti-bullying bill because it would protect gay and transgender kids, I thought it only fair to note that this year, the legislature got the job done. 

The NC School Violence Prevention Act was signed into law by the Governor on June 30. It requires each local school district to adopt, publicize and enforce explicit anti-bullying policies. The new law squeaked by in both houses of the state legislature: by votes of 26 to 22 in the state senate and 63 to 51 in the house.

The act is the first state-wide law in NC to protect against any form of discrimination based on sexual orientation or gender identity and the first state-wide law in any southern state to protect against gender identity discrimination. Congrats to Equality NC!

NC judges under attack for second-parent adoptions

HT to Nancy Polikoff for alerting me to the following story from the News & Observer about the backlash against progressive North Carolina judges, whose willingness to grant second-parent adoptions became publicly visible in the wake of such an adoption being upheld in the Boseman case. This will be a state to watch as conservative groups seek opportunities to enact anti-gay laws.

Hundreds of gay couples in North Carolina have turned to judges in Orange and Durham counties to give them what most courts won't: the legal right to be a parent to their partner's child. The discreet and little-known practice came to light this week in a state Court of Appeals ruling on a custody battle between a biological mother and her estranged partner, a state senator. Now that the practice has been exposed, some lawmakers and legal experts say the adoptions should stop.

The judges who granted them say they're more confident and committed than ever to extending parental rights to unmarried partners. "These are nothing but good situations, nothing but harmony and hope and a desire to care for a child," said Pat DeVine, a recently retired Orange County District Court judge who works as a substitute judge. "It's 2009, and we have situations we didn't have 20 years ago. The polar star is what's in the best interest of the child."...

"Everyone wishes there's a mother and a father and a happy family, but the truth is that our families are not like that," said Marcia Morey, Durham County District Court judge who granted Boseman's adoption in 2005. "Families come to us for answers, and we will give them based on the best interest of the child."

Such adoptions became commonplace in Durham County in 2002. Sharon Thompson, a Durham family lawyer and a former state representative, asked her county clerk of courts and local judges to consider what she had seen a few other states do: waiving the requirement that a parent forfeit rights before another can adopt.

Thompson said that citizens can waive legal rights. She argued that surrendering legal parenthood before an adoption is a benefit and protection for the parent who wishes to give up the child. Therefore, she argued, the surrender is a right that can be waived.

"I certainly didn't invent the concept," said Thompson, who has handled hundreds of these adoptions in Durham and Orange counties. "It's not widely used, but it's legally sound." Parents from across the state have hired Thompson to secure a second-parent adoption. She said that she's presented these cases in her home county of Durham and also had success in neighboring Orange County....

"If people fault me for going to Durham County, the fault is with counties that refuse to follow the law and deny adoptions simply because someone is gay," she said.

Adoption law experts say Thompson's method isn't valid. Even the Court of Appeals gently criticized the process in its ruling this week. Cheryl Howell, a family law expert at UNC-Chapel Hill's School of Government who trains district court judges, said it's a mistake for judges to view the Court of Appeals ruling as a validation of second-parent adoptions. "The statute doesn't allow for second-parent adoptions," Howell said. "I stand firm on that." ...

"The effect of this is that adoption policy can now be set by our district court judges," said state Rep. Paul Stam, a Wake County Republican and a lawyer. "All people have to do now is find one district court judge who will do what they want. That's the lowest common denominator adoption policy."

State Sen. Jim Forrester, a Gaston County Republican, said it might be time for legislators to explicitly tell judges what kind of families can adopt children. Judges, who are elected, have broad discretion to interpret and rule on laws. This often leads to very different decisions rendered in similar cases across the state. ...