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79 posts categorized "Family law"

June 20, 2011

As Liechtenstein goes...

On Sunday, voters in Liechtenstein overwhelmingly adopted a new law giving gay and lesbian couples the right to formally register their partnership. Official reports stated that 68.8 percent of voters endorsed the law, and 31.2 percent voted against it.

Roman Catholic groups, led by Vox Populi, had challenged legislation establishing partnerships, saying the system would weaken traditional family ties, and demanded a referendum. The population is heavily Catholic; approximately 78% in 2000.

Gay and lesbian couples will now be treated equally with heterosexual couples for purposes of inheritance, social security, immigration and taxation. However, they will still be barred from adopting children or accessing reproductive medical services.

Liechtenstein has a population of roughly 35,000 people.  

March 17, 2011

Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children

By Guest Blogger Nancy Polikoff

It's always risky to predict the outcome of a case based on oral argument. Nonetheless, I'll predict that the Arkansas Supreme Court will affirm the decision of a trial judge that the state's ban on adoption and fostering by anyone living with a nonmarital partner violates the state's constitution. The ban was enacted by voters in 2008. You can watch the argument on the court's website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008.

The plaintiffs are represented by the ACLU, which has once again done a top notch job. Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing.

The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right. If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis."

The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable. When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.

In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.

So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly.

I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning. The lawyers for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent.

The authors of both the majority and concurring opinions in Howard remain on the bench. One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.

And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants who sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.

crossposted from Beyond Straight and Gay Marriage

January 19, 2011

The other gay life: raising children in the South

From today's NY Times, excerpted:

Being gay in [Jacksonville, FL] was once a lonely existence. Most people kept their sexuality to themselves, and they were reminded of the dangers of being openly gay when a gay church was bombed in the 1980s. These days, there are eight churches that openly welcome gay worshipers. One even caters to couples with children.

The changes may seem surprising for a city where churches that have long condemned homosexuality remain a powerful force. But as demographers sift through recent data releases from the Census Bureau, they have found that Jacksonville is home to one of the biggest populations of gay parents in the country.

In addition, the data show, child rearing among same-sex couples is more common in the South than in any other region of the country, according to Gary Gates, a demographer at the [Williams Institute]. Gay couples in Southern states like Arkansas, Louisiana, Mississippi and Texas are more likely to be raising children than their counterparts on the West Coast, in New York and in New England.

The pattern, identified by Mr. Gates, is also notable because the families in this region defy the stereotype of a mainstream gay America that is white, affluent, urban and living in the Northeast or on the West Coast. “We’re starting to see that the gay community is very diverse,” said Bob Witeck, chief executive of Witeck-Combs Communications, which helped market the census to gay people. “We’re not all rich white guys.”

Black or Latino gay couples are twice as likely as whites to be raising children, according to Mr. Gates, who used data from a Census Bureau sampling known as the American Community Survey. They are also more likely than their white counterparts to be struggling economically.

Experts offer theories for the pattern. A large number of gay couples, possibly a majority, entered into their current relationship after first having children with partners in heterosexual relationships, Mr. Gates said. That seemed to be the case for many blacks and Latinos in Jacksonville, for whom church disapproval weighed heavily.

“People grew up in church, so a lot of us lived in shame,” said Darlene Maffett, 43, a Jacksonville resident, who had two children in eight years of marriage before coming out in 2002. “What did we do? We wandered around lost. We married men, and then couldn’t understand why every night we had a headache.”

Moreover, gay men who have children do so an average of three years earlier than heterosexual men, census data shows, Mr. Gates said. At the same time, there are fewer white women of childbearing age nationally, according to demographers, while the number of minority women of childbearing age is expanding...

[L]ast summer, [Valerie] Williams became pastor of St. Luke’s Community Church, one of the oldest gay-friendly churches in the city, and immediately set up a youth program. Attendance by the mixed-race congregation swelled to more than 90 from 25 in just a few months. “All of a sudden you started seeing all of these women coming out,” Ms. Mafett said. “All of them had children.”

In 2009, the Census Bureau estimated that there were 581,000 same-sex couples in the United States, Mr. Gates said; the bureau does not count gay singles.

About a third of lesbians are parents, and a fifth of gay men are. Advocacy groups argue that their children are some of society’s most vulnerable, with fewer legal protections and less health insurance than children of heterosexual parents.

Even so, their ranks have been mostly left out of national policy debates, because the Census Bureau did not conduct its first preliminary count of same-sex couples until 1990. This year, the bureau will count married same-sex partners for the first time. “We don’t know a lot about this group,” Mr. Gates said. “Their story has not been told.”

About 32 percent of gay couples in Jacksonville are raising children, Mr. Gates said, citing the 2009 Census data, second only to San Antonio, where the rate is about 34 percent...

December 22, 2010

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

December 16, 2010

Brazil announces pension benefits for same-sex couples

Based on various postings on the web, including a short report by AP, and with the caveat that I don't speak/read Portugese, here is what I think is going on in Brazil:

The Brazilian Social Security Ministry announced last week that gay couples in a "stable relationship" are entitled to the same social security pension benefits enjoyed by heterosexual couples. The policy covers workers registered in the Social Security system, who pay monthly social security fees.

Last February, a decision of  the Superior Court of Justice of Brazil held that the government had to recognize the right of the surviving partner to receive pension benefits. The decision was pegged to the criteria for a stable affective union for different-sex couples (probably if unmarried). The essential elements pertain to "public, continuous and permanent relationships, established with the goal of starting a family."

In June the Attorney General endorsed the ruling. Now, the Social Security Ministry has apparently promulgated a formal policy of treating gay couples equally.

December 14, 2010

New partner benefits plan for Michigan state employees in limbo

[Based on reporting in The Michigan Messenger and the Lansing State Journal:]

The Michigan Civil Service Commission has tabled its consideration of a proposal to extend health insurance benefits to unmarried, live-in partners of all state employees regardless of sexual orientation or relationship. The plan is supported by outgoing Governor Jennifer Granholm, but is unlikely to gain the backing of Republican Governor-elect Rick Snyder, who takes office Jan. 1.

Under the proposed policy, negotiated by the Office of the State Employer (OSE) and unions representing state employees, health insurance coverage would be available to all non-related people over 18 who have shared a residence with a state employee for at least 12 months, covering both same-sex and opposite-sex partnerships. The children and dependents of those newly eligible would also be extended coverage under the same conditions as any other person eligible for coverage.

Republican members of the state legislature say the plan will cost too much at a time of budget austerity. The governor’s office says the annual cost for the program could be as much as $5.7 million, but the CSC was told this morning the cost could be as low $2.2 million.

Neither figure considers the tax revenue which results from the plan. The IRS has determined that benefits provided under domestic partner like programs are considered taxable income. As a result, the Human Rights Campaign reports that in 2007, people with partner benefits pay an additional $1,069 in federal taxes. The Michigan Department of Treasury was unaware of what amount of income tax in the state is generated by current domestic partner programs — such as those offered by state universities and private employers.

The issue stems from a 2006 contract agreement between state unions and the Granholm administration. Those approved contracts included the option to extend partner benefits for state employees.  A lawsuit challenging domestic partner benefits was based on the broad text of the state constitutional amendment adopted in 2004, which barred recognition not only of same-sex marriage but also of "any other similar union." The Michigan Supreme Court ruled in National Pride at Work v. Michigan, 481 Mich. 56, 748 N.W.2d 524 (2008), that the language prohibited partner benefits for gay couples.

Since then, state officials and employee unions have redrafted the agreement to eliminate specific references to same-sex domestic partners. Universities and other public employers developed Other Eligible Individual (OEI) programs that allow employees to designate an OEI, if that person satisfies criteria such as sharing a residence. 

December 02, 2010

Civil unions likely to begin in Illinois in June

The Illinois state senate passed the civil unions bill yesterday that had been adopted by the House on Tuesday. It now goes to Governor Pat Quinn, who is a strong supporter and likely will sign it this month. The governor has said he will sign it early in 2011. The law will take effect June 1.

Illinois will join six other states that offer civil union recognition systems: California, DC (which allows both marriage and civil unions), Nevada, New Jersey, Oregon and Washington.

November 30, 2010

Illinois civil unions bill passes crucial test; enactment likely

Late this afternoon, the Illinois House of Representatives passed SB 1716, a bill that would establish a system of civil unions offering the legal rights and responsibilities of marriage. The bill passed by a 62-51 vote. It now heads to the Senate, where essentially the same bill was voted out of committee today and where passage is expected to be by a bigger margin than existed in the House.

Governor Pat Quinn went to the House floor to demonstrate his support for the bill.  

One distinctive aspect of the Illinois civil unions bill is that it establishes a status open to both same-sex and different-sex couples. Only Nevada and DC have a relationship recognition law that applies equally to straight and gay couples. Four states in addition to Nevada and DC (which also allows same-sex  marriage) have civil union systems in place: California, New Jersey, Oregon and Washington.

The Illinois bill provides that "A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law."

November 21, 2010

Increase likely in anti-gay, anti-abortion state laws

The overwhelming bulk of law that regulates family formation and recognition, criminal law, health care provision, and parenting is enacted at the state level. As a result, the shift to Republican control of state legislatures is likely to generate a big uptick in conservative lawmaking in those fields. 

Unlike left-right polarization within Congress, which produces gridlock, polarization between the states leads to bigger majorities in each state for one direction or the other. It is the state level where a sharply divided political geography produces the greatest schizophrenia in American law.

After this election, the map for state-level lawmaking has a lot more red and the red is a lot darker, as the following article from the Washington Post describes:

...[The National Organization for Marriage] poured $2.5 million into state races this year, investing in more than 100 state legislative candidates. The group focused particularly on Maine, New Hampshire, Minnesota and Iowa, four states grappling with the same-sex marriage issue. The efforts paid off, with Republicans gaining at least one chamber in each of those states...

Before the midterm elections, Democrats controlled 27 state legislatures outright. Republicans were in charge in 14 states, and eight states were split. (Nebraska, which has a single legislative chamber, is officially nonpartisan). Today, Republicans control 26 state legislatures, Democrats 17, and five have split control. In New York, officials are still determining who is in charge in the state Senate. Republicans control more legislatures than they have since 1952...

"We ran on a strict fiscal message," said state Sen. Amy Koch (R), the Minnesota state Senate majority leader...Even so, though same-sex marriage advocates had until recently thought Minnesota would become one of the next states to allow such unions, Koch said the legislature is now unlikely to take up the issue. "I can't imagine we would look at that," she said. "I just think most people are focused on jobs, economy, the budget and that's what we will focus on."

And in New Hampshire, one of five states and the District that allow same-sex couples to legally wed, social conservatives cheered the results of an election that could pave the way for a repeal of that law. Republicans wrested control of both chambers and now outnumber Democrats 3 to 1 in the 400-member House. Democratic Gov. John Lynch was reelected, but Republicans have a veto-proof majority. Social conservatives plan to push for the gay-marriage ban as well as the reinstatement of a law requiring parental notification for minors seeking abortions - but not until lawmakers cut taxes and create jobs as they have promised, said Kevin Smith, executive director of Cornerstone Action, a Christian activist group.

"The social issues were for the most part silent in the election, in that it was really a fiscal message of less spending and less taxes that propelled most Republicans into office," he said. "I expect that to be the focus. That being said, I do think [these] will be two very key social issues that will come up this session."

His group joined with several others to raise about $1.2 million for state-level candidates. Since same-sex marriage was legalized there in January, about 1,000 same-sex couples have wed.

In North Carolina, Christian groups have promised to push for greater restrictions on abortions and a constitutional amendment banning gay marriage. And liberal groups are lining up to protect the Healthy Youth Act, which requires most students in grades 7 through 9 to learn about contraception in addition to abstinence - a requirement conservative groups oppose.

In Wisconsin, Governor-elect Scott Walker (R) has said he opposes the state's expansion earlier this year of a program that provides free birth control to low-income people and youth as young as 15. His agenda will be helped along by the legislature, which will now be controlled by Republicans.

Abortion foes say they expect several states where Republicans made significant gains to consider barring, under the new federal health-care overhaul, some private insurance companies from covering abortions as part of their routine plans. So far, Arizona, Missouri, Mississippi, Tennessee and Louisiana have passed such legislation.

"Ninety percent of pro-life legislation happens at the state level, so the landscape change that we have now is huge," said Daniel McConchie, vice president of governmental affairs at Americans United for Life, an antiabortion group.

November 19, 2010

French high court to hear gay marriage case

The Constitutional Court (or Council) of France will consider a case challenging that nation's ban on same-sex marriage. France's highest court of appeal, the Cour de cassation, referred the case to the Constitutional Council, which has sole authority to rule on whether the prohibition of gay marriage violates the French Constitution. 

According to press reports

The request came after individuals in August asked a court in the northeastern city of Reims to look at the legality of articles of the civil code which ban same-sex marriages. The unnamed individuals said the articles were unconstitutional because they "limit the personal freedom of a French citizen to marry someone of the same sex". 

The Court of Cassation said that gay marriage "is today the subject of a broad debate within society, notably because of the evolution of morals and the recognition of same-sex marriages by the laws of several foreign countries". 

According to the Court of Cassation website, the questions presented in the case (No. F 10-40042) are as follows:

"Sections 144 and 75 of the Civil Code - are they inconsistent in their application [with] the preamble to the Constitution of 1946 and 1958, in that they limit the liberty of a French citizen to marry a person of same sex? "

"Sections 144 and 75 of the Civil Code - are they inconsistent in their application [with] the provisions of Article 66 of the Constitution in that they prohibit a court judge to authorize marriage between persons of the same sex?"

Since 1999, French law has included the legal status of PACS, or pacte civil de solidarité, which is roughly comparable to civil unions. Both same-sex and different-sex couples have the option to enter a PACS, which is registered by a clerk of court. In some areas, couples signing a PACS can choose to have a formal civil ceremony, comparable to a wedding performed by a court official.

If the Constitutional Court eliminates the ban on gay marriages, presumably all couples would then be able to choose between marriage and a PACS. (This is also the outcome being sought by a new equal relationship rights campaign in Britain.) It is only in that legal environment that the goal of genuine choice in family formation could be said to exist.

November 18, 2010

HHS issues final hospital visitation reg

After considering thousands of comments on a proposed regulation requiring all hospitals that receive Medicare funds (which essentially = all hospitals in the U.S.) to develop visitation policies that allow patients to designate anyone, including same-sex partners, as visitors, the Department of Health and Human Services has issued the final regulation. It will take effect in 60 days.

Here is reporting from The Advocate, based on a conference call between Secretary Sebelius and HHS Deputy General Counsel (and former ACLU LGBT Rights Project attorney) Ken Choe with advocates:

The rule change is the result of a directive that President Barack Obama gave to HHS in April after hearing stories of people who were denied access to their same-sex partners during the critical and, in some cases, final hours of their lives.

Hospitals will be required to have written policies and procedures detailing visitation rights and the specific circumstances under which a hospital can restrict access based on reasonable clinical needs. Hospitals must also inform incoming patients of their right to choose their visitors, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.

Ken Choe, deputy general counsel at HHS, said no documentation will be required to prove any particular kind of relationship. Patients need only give an oral designation of whom they wish to permit access to, a designation that can also be revoked at any point during their stay.

If a patient enters the hospital unconscious, Choe said complications with access would only arise if two people claimed to be the person who should be making visitation decisions on the patient’s behalf. In that case, hospitals would be allowed to ask for documentation in order to determine who should be allowed access to the patient.

Choe said complaints can be lodged against hospitals believed to be out of compliance in several ways. All hospitals must have a formalized internal grievance process, and people can also report hospitals to their state’s Survey and Certification Process, which governs Medicare and Medicaid participation. Medicare beneficiaries can also take their concerns to Quality Improvement Organizations (QIOs) in every state.

November 17, 2010

Sexual behavior and risk among adolescents in lesbian mom families

A new study based on a unique longitudinal study of lesbian mothers compares the 17-year-old children of lesbian parents to a national sample of adolescents as to sexual orientation, sexual behavior and risk of abuse. The study found a complete absence of sexual or other physical abuse. The authors also found a mixture of similarities and differences in sexual behaviors and self-identified orientation:

  • The teens in the study were significantly older than the national sample at the time of first heterosexual activity;
  • The daughters in the study were significantly more likely to have had same-sex activity than the national sample of girls; and
  • There was no difference between the boys in the two groups with regard to having engaged in same-sex behavior.

As to self-identification (for which there were no comparable data), 20% of the girls and 2.7% of the boys identified as predominantly to exclusively bisexual; none of the girls and 5.4% of the boys identified as predominantly to exclusively homosexual.

The results come from an a computer survey of 78 teenagers (39 girls and 39 boys) in lesbian families who have been part of Dr. Nanette Gartrell's National Longitudinal Lesbian Family Study since birth. The online nature of the questionnaire allowed them to answer outside the presence of their parents. The families are not representative by SES level, race or geography, but the NLLFS is by far the longest continuing study of the same cohort of gay families. 

The study is published online in Archives of Sexual Behavior, a peer-reviewed academic journal.

Colombia says no to marriage, Mexico on path to legalize partner benefits

Mixed news from Latin America in the last week:

The Constitutional Court of Colombia rejected a petition to allow same-sex couples to marry. According to CNN:

Colombia's Constitutional Court voted 5-4 to dismiss a lawsuit arguing for a change in the country's civil code that would allow same-sex marriage in the South American country, claiming there was not sufficient evidence to proceed, CNN affiliate Caracol TV reported.

The lawsuit, filed in September 2009, aimed to change the definition in the country's civil code which defines marriage as "a solemn contract through which a man and a woman unite," Caracol said. Felipe Montoya, the lawyer who filed the suit, wanted judges to eliminate the expression "man and woman" from the code, Caracol reported. But the court ruled that the lawsuit did not have sufficient legal arguments for the court to take the case.

Closer to home, one chamber of the Mexican national legislature voted to extend social benefits to same-sex partners:

Mexico's House of Representatives has voted to amend social security rules to include medical and social benefits for same-sex couples. The vote Tuesday was 232 in favor and 58 against. The measure now goes to the Senate for debate.

The amendment deals with the Social Security Institute, which provides benefits to employees of private companies, and with a benefits program for government employees.

Unfortunately, I am unable to locate copies of the original documents in English, so am necessarily relying on news accounts. In Spanish, you can read the court decision or a longer report on the Mexican vote.

November 04, 2010

Equal Love campaign challenges exclusions from both marriage and civil partnerships

Four gay and four straight couples are challenging the UK’s ban on gay couples marrying and straight couples having civil partnerships. Four same-sex couples will apply for civil marriages and four heterosexual couples will apply for civil partnerships will alternate applications every week from the beginning of November to December 14th.

According to campaign organizer Peter Tatchell, “If the couples are turned away, we plan to take legal action. We will argue in the courts that in a democratic society gay and straight couples should be equal before the law. Both civil marriages and civil partnerships should be open to everyone without discrimination.”

The Equal Love campaign’s legal case is being prepared by Robert Wintemute, Professor of Human Rights Law at Kings College London.“These bans violate the UK’s Human Rights Act and are open to challenge in the courts,” said Professor Wintemute.

Mr Tatchell added: “Our aim is to secure equality in civil marriage and civil partnership law. We want both systems open to all couples, gay and straight, so that everyone has a free and equal choice. Denying couples the right to civil marriage and civil partnership on the basis of their sexual orientation is wrong and has to end.”

A Populus opinion poll in June 2009 found that 61 per cent of the British public believe that ‘gay couples should have an equal right to get married, not just to have civil partnerships’. Only 33 per cent disagreed.

Source: Pink News

November 01, 2010

Vermont Supreme Court again rules in Janet Jenkins' favor

In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.

The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:

We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.
 
Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.

The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."

At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.

Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.

The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.

I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.

I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.

I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.

But my heart still goes out to Isabella.