hunter of justice

The week ahead: January 9, 2012

January 10 - Oral argument before the U.S. Supreme Court in FCC v Fox (No. 10-1293). The United States is appealing lower court rulings that the FCC's indecency restrictions on broadcast television and the Internet are unconstitutionally vague.  The communications at issue include images of nudity in a NYPD Blue episode and the use of phrases such as “f***ing brilliant,”  “f*** em,” and “f***ing easy” in a live broadcast.  

Also January 10 - Oral argument before the South Dakota Supreme Court in Rumpca v. Brenner, on the continuing validity of a cause of action for alienation of affection under state law. A hangover from common law, alienation of affection is a tort action that allows recovery of damages from an individual who seduced the plaintiff's (usually former) spouse and thus brought about the end of the marriage. South Dakota is one of seven states that still recognizes it as a valid claim.

Congratulations Justice Robinson

Beth Robinson, whose argument to the Vermont Supreme Court in Baker v. State produced the ruling that exclusion of same-sex couples from marriage was unconstitutional under that state's constitution, was sworn in yesterday as a Justice of the same court. Since handling Baker, which ultimately resulted in the state legislature enacting a civil union law, Robinson had continued to practice law and advocate for lgbt rights. Most recently, she served as counsel to Governor Peter Shumlin, who appointed her to the court.

There are now six openly lgbt justices of state supreme courts: Rives Kistler and Virginia Linder in Oregon, Barbara Lenk in Massachusetts, Sabrina McKenna in Hawaii and Monica Marquez in Colorado, in addition to Robinson. Half of the six - Lenk, McKenna, and Robinson - were appointed during 2011.

Decision on standing in Perry case to be announced tomorrow

At 10 a.m. PST tomorrow, the California Supreme Court will rule on whether the Prop 8 proponents have standing to appeal the District Court decision in the Perry case that Prop 8 violates the federal Constitution.

The Ninth Circuit, where the issue is on appeal, unanimously asked the state supreme court to weigh in, based on the importance of whether the proponents would have standing under state law to the federal law analysis. The California Supreme Court then heard argument on that question on September 6.

What happens next? The Perry litigation saga will return to the Ninth Circuit and the federal court system. The Ninth Circuit will have to issue its own ruling on whether the Prop 8 proponents have standing. If the California court declares that there would be no standing in its system, I think the federal courts are unlikely to grant standing.

At oral argument before the California Supreme Court, however, the tone of the questions suggested the opposite result. If those signals prove correct - and often signals during oral argument are misleading - then the Ninth Circuit will consider the federal standing question in light of the fact that the proponents would be allowed to defend the law if the matter were in state court. A Ninth Circuit ruling in favor of the Prop 8 proponents becomes more likely in that event, although by no means certain.

After the California Supreme Court ruling, the Ninth Circuit panel of judges who heard argument may proceed pretty quickly to issuing a decision. Or they may ask the parties for additional briefing and argument in light of whatever the state court says. (There are no deadlines in the federal court system for when decisions must be issued.)

And when the Ninth Circuit decision comes down, if it finds that the Proponents do have standing, will it also address the constitutionality of Prop 8 at the same time, or will this next decision relate only to standing? When Perry was first argued before the Ninth Circuit, almost a year ago (December 2010), the scope of the argument included both standing and the merits.

The federal appellate court was pretty unhappy with both sides when it heard the first round of argument last winter, referring to "the inexplicable manner in which the parties have conducted this litigation." Eventually (there could be an en banc round as well) we will find out how that court will come down on this technical but far-reaching question.

Stay tuned.

Baltimore courts waive venue for Maryland's gay adoptive parents

This is surprising in a liberal jurisdiction like Maryland, but the Baltimore Sun reports that same-sex couples can be assured of a fair hearing if they seek to adopt children only by coming to Baltimore city courts:

...Baltimore has a recorded history of adoption by gay and lesbian couples that dates to 1996, when a written opinion on the matter was issued. In that case, Judge Kathleen O'Ferrall Friedman granted lesbian partners, who each had a child, parental rights over both children. She reasoned, in part, that adultery does not disqualify a person from adopting, so neither should a person's sexual orientation.

Two loving parents, regardless of their gender or sexual orientation, were "consistent with the children's best interest," wrote Friedman, who retired in 2002. Her decision became the legal cornerstone for adoption by Maryland's gay residents, and the interpretation of that precedent has expanded to allow gay couples... to jointly adopt children who are not biologically related to either partner...

Since the late 1990s, at least one judge in Anne Arundel, Baltimore, Frederick, Howard, Montgomery, Prince George's and Calvert counties has granted adoptions to same-sex couples, according to [Mark] Scurti, who also teaches a course on sexual orientation and the law at the University of Maryland School of Law.

The list could be longer, he said, but researching adoption files is "almost next to impossible" because they are sealed. Often the only people who know the gender of the petitioners are judges and attorneys involved in the case.

But Baltimore has remained a more reliably gay-friendly venue. In other jurisdictions, even if one judge in a county has approved an adoption for a same-sex couple, the next couple might appear in front of a different judge who has the opposite opinion.

That happened in June 2000, when Montgomery County Circuit Judge Vincent E. Ferretti wrote an opinion denying a lesbian parental rights over her partner's natural child. It was his last written decision, he said in an interview, and after he filed the 18-page opinion he retired. Ferretti now lives in North Carolina...

...After he left the bench, the couple amended their petition and refiled it in Montgomery County. The amended case was assigned to Judge Paul A. McGuckian, who agreed with Ferretti: Maryland's law is silent on whether two unmarried people, regardless of sexual orientation, can adopt and, in this area of jurisprudence, law created from the bench cannot be a substitute for a statute.

In order to stop the couple filing an appeal — and possibly establishing a legal precedent that could prevent adoptions by same-sex couples — Baltimore City Circuit Judge Joseph H.H. Kaplan reached out to the couple.

Come to Baltimore, he told the couple, and we will grant your adoption. Kaplan, the chief judge for Baltimore's Circuit Court at that time, had instituted a unique procedure — called waiver of venue — that made nonresidents eligible to file adoption cases in the city.

The anti-gay marriage attack on Iowa's Supreme Court

The American Prospect has the backstory on the campaign that defeated three justices of the Iowa Supreme Court in their retention campaigns as payback for votes to allow same-sex couples to marry:

The Iowa Supreme Court publishes, on average, a little more than 100 decisions a year. Each ruling goes online first thing Friday mornings. When Varnum v. Brien went live at 8:15 A.M. April 3, 2009, the court’s website crashed when more than a million visitors tried to read the opinion. In a unanimous decision, the seven supreme court justices--five Democratic and two Republican appointees--had ruled that Iowa’s ban on marriage for same-sex couples violated the equal-protection clause of the state constitution. When county clerks began issuing marriage licenses three weeks later, Iowa became the third state with legalized same-sex marriage...

Opponents of gay marriage... were dismayed. None more so than Bob Vander Plaats, who had risen early that morning and driven three hours to join several evangelical pastors in praying outside the supreme court building... 

Vander Plaats lost the Republican nomination for governor [in 2010], but Varnum gave him the issue he had always been looking for. A year after the decision, he mobilized an unprecedented attack against Iowa’s judiciary, which had been known for its lack of partisanship. With assistance from a powerful evangelical organization from out of state, he exploited an obscure clause of judicial selection and mounted a full-throttle assault against the supreme court judges who legalized same-sex marriage. No laws changed, but three of the judges lost their positions. The state’s progressive community is still grappling with the question: How did a fringe political candidate upend what had once been a model of judicial independence?...

The state owes that reputation [for nonpartisan courts] to its 1962 adoption of the “Missouri Plan” for placing judges on the bench. Under the system, a panel of 15--seven selected by the governor, seven by the bar association, plus a sitting state supreme court justice--interviews potential judges on their experience and knowledge of the law. The panel is barred from asking interviewees their political affiliation. The governor picks from three finalists. Supreme court justices go on the ballot at the first general election after they are selected and every eight years after. Until 2010, Iowa’s retention votes had always been ho-hum affairs. Only four lower-court judges had ever lost a retention vote, in each case because they were accused of malfeasance. A campaign had never been waged against a supreme court justice...

After [the] hearing [in Varnum], the justices [met] in a small conference room on the fourth floor of the supreme court building. ...Justice Mark Cady, one of the two Republican appointees, had been randomly selected to write the majority opinion on the Varnum case, which meant that he would speak first. If any of the justices were going to find fault in the plaintiffs’ interpretation of the constitution, it would likely be Cady, the strictest constitutionalist of the group. After laying out both sides’ arguments, Cady announced he was ruling in favor of the plaintiffs. The justices went clockwise around the granite-topped table. They did not agree on every legal point, but after two hours, all of them had sided with the plaintiffs. “We went around the table, and we just pushed back and said, ‘Jeez, this is going to be unanimous.’ We were just shocked,” a justice later told me.

Wrongful death claims from state fair accident will test Indiana law on partner recognition

From the IndyStar:

Legal claims filed by the lesbian partners of two women killed in a stage collapse at the Indiana State Fair last month could lead Indiana to examine how it defines survivors in wrongful death cases despite the state's stance against same-sex unions.

Christina Santiago, 29, Chicago, and Tammy VanDam, 42, Wanatah, Ind., were among seven people who died after a strong gust of wind toppled the stage rigging before an Aug. 13 concert by country band Sugarland. Santiago's partner, Alisha Brennon, and VanDam's partner, Beth Urschel, were injured.

A wrongful death lawsuit has been filed on behalf of Urschel, and a wrongful death tort claim -- a precursor to a possible suit -- has been filed with the state of Indiana on behalf of Brennon.

Indiana's wrongful death statute allows next of kin to collect damages. But those are technically people related by DNA, adoption or marriage, said Jennifer A. Drobac, a professor at the Indiana University School of Law-Indianapolis.

VanDam and Urschel had registered several years ago in Hawaii as reciprocal beneficiaries, a status that confers some of the legal benefits of marriage -- including survivor benefits -- to unmarried couples. Friends and colleagues said Brennon and Santiago had gone through a civil union in Illinois and planned to marry.

Indiana doesn't recognize those acts. But the courts could choose to define next of kin more broadly to include people who live together, share bank accounts, have children together or are otherwise committed to sharing their lives, Drobac said...

California Supreme Court appears likely to find Prop 8 proponents have standing

By all press accounts that I've seen, the California Supreme Court sent signals during yesterday's oral argument to expect a ruling that Prop 8's proponents should be accorded standing to defend its constitutionality. Although predicting an outcome from the tone of oral argument is often hazardous, this outcome - if it materializes - will not be much of a surprise, given past cases in which this court has allowed ballot measure proponents to participate in litigation. 

The plaintiffs in Perry v. Brown want the state supreme court to advise the Ninth Circuit that the proponents cannot defend Prop 8, in the hopes that this will effectively cut off any way that the federal trial court's decision can be appealed. A neat trick, but perhaps too much of a trick, at least in the eyes of the state court.

How the Ninth Circuit will rule on the standing question, when the case returns there, is a more difficult call, not least because there will probably be at least two rounds in the Ninth Circuit on this issue: first before the three-judge panel and then before an en banc panel. After that, since the standing issue will be preserved on appeal no matter what the decisions are from lower courts, the U.S. Supreme Court may well have the last word.

From the L A Times:

The California Supreme Court appeared ready Tuesday to rule that the backers of Proposition 8 and other ballot measures have the right to defend them in court...During an hour of oral arguments, several justices appeared skeptical that only elected state officials may defend measures passed by voters, as gay-rights lawyers claimed...

Justice Ming W. Chin observed that the power of the people to enact laws would be curtailed if initiatives could be blocked in court every time officials refused to defend them. "So the attorney general and the governor get to pick the laws they want to enforce?" asked Chin, a conservative on the court.

Justice Joyce L. Kennard, one of the court's more liberal members, appeared to agree. Denying initiative sponsors the right to appeal, she said, would be "nullifying the great power that the people have reserved for themselves" and "would not promote principles of fundamental fairness."

"What we are going to hold is not limited to gay issues," Kennard said. "Our holding will apply to any other circumstance when proponents of initiatives are asserting standing" — the legal term for the right to bring a case in court...

During Tuesday's hearing, Chief Justice Tani Cantil-Sakauye suggested that there would be no one to "safeguard the precious power" of citizen initiatives if their sponsors were not allowed to defend them. "Doesn't that make the initiative process illusory?" she asked.

Justice Carol A. Corrigan pointed out that the courts, not the governor or the attorney general, are supposed to decide a law's constitutionality. She asked whether elected officials have "pocket vetoes" over voters.

The state high court has long allowed sponsors to defend ballot measures, but has never before ruled on whether they have an automatic right to do so..

Justice Kathryn Mickle Werdegar suggested the California high court could avoid making a specific rule and simply write a decision that explained the practice of permitting initiative sponsors to intervene in court cases. Allowing both state officials and initiative sponsors to represent California could spark confusion, she implied. "Can there be two entities that represent the state in federal court?" she asked. Justice Marvin R. Baxter indicated that would pose no problem. "There need not be one unified message," Baxter said.

Justice Goodwin Liu, a UC Berkeley law professor sworn in last week as the court's newest justice, ...said it seemed as though the California court was being asked to rule on an issue that had relevance only for the federal courts.

Report from San Francisco Chronicle after the jump

California Supreme Court to consider whether Prop 8 proponents have standing to appeal decision striking it down

This morning at 10 a.m. (PDT), the California Supreme Court will hear oral arguments on the highly technical but extremely important question of whether the proponents of Prop 8 (the group that secured its placement on the 2008 ballot) can appeal the 2010 decision in the Perry case declaring Prop 8 to be unconstitutional.  Normally, either the Governor or the Attorney General of a state will defend the constitutionality of a state law. In this instance, however, neither office - both before and since the election of new officeholders that year - has been willing to defend it.

Although Perry is being litigated in federal court and is before the Ninth Circuit Court of Appeals, that court has asked the state's supreme court to render an opinion about whether the proponents would have standing under state law. Under its rules, the California Supreme Court must issue a decision within 90 days after argument.

If the state court finds a lack of standing, it is likely that the Ninth Circuit will find that federal law does not supply the basis for standing. Logically such a ruling would lead to a dismissal of the appeal and a reinstatement of Judge Walker's order, meaning that Prop 8 would be invalidated. And eventually it might. But first this case will go through another round or two of appeals, possibly to the Ninth Circuit sitting en banc, and almost certainly at least a petition for review by the Supreme Court.

If the California Supreme Court finds that the proponents do have state law standing, the Ninth Circuit would still have to determine standing under federal law; it is possible that they will rule that the same group lacks standing in federal court even if it would have standing in state court. (The details are just too complex to get into.) If it concludes that state law standing is sufficient or determinative or just plain persuasive, the Ninth Circuit would then reach the merits of the case and issue a ruling either upholding or reversing the District Court decision that Prop 8 is unconstitutional.

And then, of course, the next round of appeals will begin on the merits.

One footnote to this morning's argument is that a brand new state Supreme Court Justice, Goodwin Liu, will be on the bench. Liu, formerly a professor at Berkeley Law, was unable to secure Senate confirmation after the President nominated him to sit on the Ninth Circuit. Of course, the federal courts should be so lucky as to have judges of Goodwin's caliber. Standard operating procedure in Congress.

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

The day after: How bad was it?

Pretty bad, especially in DC where progressives will go back to playing defense in Congress. Bills that seemed like viable prospects a few months ago - ENDA, the Domestic Partners Benefits and Obligations Act - are seriously dead, perhaps for years. Will DADT repeal make it through the Senate in the lame duck session? Anybody's guess. On the positive side, there is a fourth openly gay member of the House: David Cicilline from Rhode Island (photo below); and Barney Frank was re-elected, although by a smaller margin than he is used to.

 There will be a major increase in pressure on the White House to do more positive things by administrative action, since Congress has gone over to the dark side. Unfortunately, however, an administration that was timid and gunshy on lgbt issues to begin with will now face the prospect of Republicans using their new House majority to initiate many, many oversight hearings and investigations. Most of these will probably center on financial issues and health reform, but the GOP base may want some action on social issues as well.

The only silver lining I see to the Tuesday bloodbath is that there are now more strongly pro-gay governors than ever, including Brown in CA, Cuomo in NY, Dayton in MN, Hickenlooper in CO, possibly Quinn in IL (race is still undecided), and Patrick (re-elected) in MA. In addition, NH Governor John Lynch, who signed a marriage bill, was re-elected. So far as I can tell, no gubernatorial candidate who endorsed marriage equality lost his race (unless the very close MN race eventually goes to the Republican; some news sites still list it as undecided). 

Other follow-up from my pre-election post:

A Republican won the Attorney General race in Florida, a Dem was elected in New York, and the California race is still too close to call, although the Dem holds a tiny lead.

In other House races, DADT repeal leader Patrick Murphy lost his job, and Palm Springs Mayor Steve Pougnet fell short in the effort to turn out Mary Bono Mack. Hometown update: McIntyre won.

State legislatures:

Marcus Brandon (photo right) was elected to the state legislature in North Carolina, another openly gay African-American officeholder, and a rare bright spot from the election. Other openly gay public officials are listed here.

In several states, both chambers of the legislature now have Republican majorities. In New Hampshire, that may lead to an effort to repeal the equal marriage law there, although presumably Gov. Lynch would veto such legislation. (However, a reader points out that the Republicans have a veto-proof majority.) In NC, it may allow Republicans to get a state constitutional amendment banning same-sex marriage through the legislature, which a Dem majority had been able to kill year after year. Same is true in Pennsylvania. And it's pretty safe bet that there won't be much equality legislation getting enacted in Maine for awhile.

In general, adoption of state civil rights laws will almost certainly slow down.  In 7 out of the 10 most populous states in the nation, there is no state-wide anti-discrimination protection for lgbt people: Florida, Texas, Pennsylvania, Ohio, Michigan, Georgia and North Carolina. As of today, both chambers of the state legislature have Republican majorities in every one of those states; all but North Carolina also have Republican governors. That's a pretty serious brick wall.

As for judgeships, the most important race produced a huge defeat when a 54% majority of Iowa voters dumped three Iowa Supreme Court justices who joined that court's marriage equality opinion.

Still, I can end on a bright note: in California state court, Victoria Kolakowski became the nation's first openly transgender judge. 

Vermont Supreme Court again rules in Janet Jenkins' favor

by Nancy Polikoff

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.

crossposted from Beyond Straight and Gay Marriage

Quiz: Which is more terrifying, the Iowa Supreme Court or this ad?

 

And what's even scarier is that the Des Moines Register reports that polls show a tie between supporters and opponents on the retention vote for the three state supreme court judges on the ballot, all of whom joined the ruling that gay couples must be allowed to marry.

See other attacks on judicial independence at Slate.  HT: Doug Nejaime.

Will DC be the next California?

Same-sex marriage became legal in DC in March over protests led by Bishop Harry Jackson, a local minister, who has crusaded first to block the law and now to have it repealed by means of a voter referendum. The DC Board of Elections denied a petition to put the question on the ballot on the ground that, if adopted, the repeal would violate the local anti-discrimination law, a category of proposed laws that the D.C. Charter (analogous to a state constitution) prohibits from being adopted by referenda. 

Jackson's organization - Stand for Marriage DC - tried to get the case before the U.S. Supreme Court on an emergency petition early this year, but the Court declined to hear the case. Writing separately, however, Chief Justice Roberts stated that the petitioners' "argument has some force," but that the proper procedure would be for them to first litigate in the DC court system. Bishop Jackson's group, he wrote, would "have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time." 130 S.Ct. 1279, 1280 (2010). That is what is known as a hint.

Accordingly,the group sought review in the D. C. Court of Appeals (equivalent to a state supreme court), which last summer upheld the decision of the Board of Elections. 999 A.2d 89 (2010).

Now they are back at the Supremes. The Alliance Defense Fund has filed a new cert petition, hoping that Chief Justice Roberts and at least three other Justices will vote to hear the case. (A minimum of four votes is required for the Court to grant cert.)

The case contains obscure questions of federal law that pertain only to DC because of DC's status as a unique quasi-colony in the federal system. If any other issue were involved, I think that the Court would be very likely to deny cert, finding that the legal questions presented did not merit highest court review, in part because of their very limited ramifications.  On gay marriage, though, with four extremely conservative Justices including one who signaled that he was sympathetic, I think all bets are off.

If the Supreme Court does reverse the DC courts, their decision would not involve the constitutionality of gay marriage one way or another. However, a vote on whether to repeal the equal marriage law would be scheduled in DC. The result would amount to an East Coast rerun of Prop 8, with issues of religion and race foregrounded.

In other words, the legal stakes are small, but the political stakes are enormous. This is a case to watch.

Florida AG will decide whether decision allowing gay adoption is appealed

Florida's Department of Children and Families has decided not to appeal the ruling last month by a state appellate court that the statutory ban on gay adoption is unconstitutional. However, Florida Attorney General Bill McCollum has the authority to appeal the decision on his own, even though DCF disagrees. 

McCollum has until October 21 to make his decision.

In an August interview during his unsuccessful campaign for the Republican nomination for governor this year, the AG told Florida Baptist Witness that he opposed allowing gay people either to adopt or to serve as foster parents.  He explained:

I really do not think that we should have homosexuals guiding our children. I think that it’s a lifestyle that I don’t agree with. I realize a lot of people do. It’s my personal faith, religious faith, that I don’t believe that the people who do this should be raising our children. It’s not a natural thing. You need a mother and a father. You need a man and a woman. That’s what God intended.

Meanwhile, under Florida law, the decision of the intermediate appellate court is binding throughout the state, and would remain so until or unless another appellate court reached a contrary conclusion. 

 

Florida appeals court invalidates ban on gay adoptions

A Florida state appeals court ruled today in Florida Dept of Children and Families v. In re Adoption of XXG and NRG that the state law banning adoption by prospective parents who are gay is unconstitutional. The court affirmed an order by a Miami trial court judge granting Martin Gill (in photo at left with one of his children) the right to adopt two children for whom he had been a foster parent.

The court ruled that the adoption ban violated the equal protection provision of the state constitution. Applying a rational basis test, the court reviewed the evidence presented at trial and concluded that there was no legitimate scientific support for the argument that children suffer if adopted by gay parents. It is apparent from the court's discussion that the ACLU LGBT Rights Project team, led by Leslie Cooper, did a terrific job at trial, both in marshaling support for the value of gay parenting and in discrediting the witnesses offered by the state, which included George Rekers, who since the trial has acquired the nickname "rentboy."

Gov. Charlie Christ announced that enforcement of the ban would cease pending any further court rulings. The head of the Department of Children and Families has stated that he favors pursuing a further appeal to the state's supreme court, in the interest of obtaining a conclusive determination as to the validity of the statute. The Court of Appeals ruling is binding only on courts in Dade and Monroe counties, although trial courts elsewhere have approved adoptions by gay parents.

Like California, Florida is poised to elect a new governor, and the election outcome could influence whether the state appeals the new decision to the state supreme court or what arguments it will make in an appeal. Republican gubernatorial candidate Rick Scott opposes the ruling and supports the adoption ban. The Dem candidate Alex (Adelaide) Sink takes the opposite position and issued this statement:

I support today's appeals court decision striking down Florida's ban on gay adoption. I believe that these decisions should be made by a judge, who is focused solely on what is in the best interest of the child. For more than 30 years Florida has been the only state with a blanket ban, based on prejudice rather than good sense. As a mom who cares about what is in the best interest of Florida's children, I support the end of this ban.