Anna Marie Smith on same-sex parental rights “victories”

Posted on January 29th, 2009 by jeannie.chung

Yesterday, the Gender and Sexuality Law Program kicked off its spring 2009 colloquium with the presentation and discussion of Professor Anna Marie Smith’s paper entitled “Reproductive Technology, Family Law, and the Post-welfare State: The California Same-Sex Parents’ Rights ‘Victories’ of 2005. Professor Smith’s article touches on several facets of parental rights and its intersection with political theory, the law, and same-sex relationships; however, we spent the bulk of the time discussing Smith’s illumination of some of the “unintended consequences” of the National Center for Lesbian Rights (NCLR)’s participation as amici in the Elisa B. case, and the impact those consequences might have on poverty law, family law, and LGBT and single mothers’ parental rights more broadly.

Here are the facts: In California, two lesbian women (Elisa and Emily) in a relationship each bore children via donor insemination. During this time, the women agreed that Emily would be the “stay at home” mother, and Elisa would be the family “breadwinner.” The two women separated after having three children (Elisa moved away, taking her child, while Emily stayed in California with twins); Elisa initially continued financially supporting the children, but after some time, stopped. Emily subsequently applied for California’s public assistance benefit for single mothers of “needy families,” otherwise known as TANF. TANF requires its beneficiaries to initiate proceedings with the state to identify absent second parents of their children to assist in the collection of support payments from him or her. Emily was the absent second parent, so the state went after her for child support, and NCLR filed amicus briefs on behalf of the state. When California won, and Elisa B. was required to pay child support to Emily under TANF, the decision was hailed as a victory for LGBT families everywhere.

Here’s the problem: The state of California brought this case against Elisa B, not Emily. Why? Because TANF requires its recipients to initiate proceedings to identify and go after their ex-partners for child support. This poses a particularly dangerous dilemma for recipients who have experienced domestic violence: get the benefits, or risk the repercussions of opening up contact with the partners who abused them. In fact, Smith points out that indeed, all TANF recipients are robbed of their autonomy to decide whether to contact their former partners at all, or at least, on their own terms, and not via the state.  

Sudhir Venkatesh, a sociologist and Director of the Center for Urban Research and Policy at Columbia University, gave insightful commentary, noting the social and cultural assumptions that all those involved in the litigation process inevitably make in the process of advancing case law. He also brought up the question of decision-making: when TANF recipients are faced with the difficult choice of whether to contact the child support payer in order to receive benefits, what goes into that decision-making process, and are there other ways to negotiate relationships with child support payers?

Other interesting points raised: (1) what about “vertical” family relationships, that is, parent-child relationships, and how does autonomy play into that relationship?  What if there is a conflict between protecting the autonomy of the “horizontal” family relationship to the detriment of the parent-child relationship? (2) Is there a legal consciousness story to be told here, one that centers on affirmative rights to a relationship between the social mother and child versus the responsibilities to which a social mother must adhere vis-a-vis her child after the relationship ends? and (3) To what extent are these cases about redistribution of benefits from one LGBT parent to another, or about recognition of a status relationship between the two?


Jeannie Chung

Jeannie Chung


Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.



  1. Postscript to CLS colloquium: Friday, January 30, 2009.

    As Prof. Suzanne Goldberg stated in our discussion at the colloquium, it is important to bear in mind that the National Center for Lesbian Rights, one of the amici for Emily, the party in real interest, was not well situated to introduce major social change.

    Imagine that you are an advocate, and Emily walks into your office. She is desperately poor (otherwise, why would she be thinking of applying for TANF?) and has twins at home, one of whom has Down’s syndrome, and they are three years old. You know that if she applies for TANF, the state will press her to pursue an absent second parent for child support. You quickly figure out that no other parent is available; the biological father is protected from paternal support claims by the state’s law on donor insemination. You want to help Emily but you also want to advance the state’s family law by getting lesbian parenting recognized on an equal footing to that of unmarried heterosexuals. You carefully ask Emily whether her ex-lover, Elisa, is likely to respond to a court-ordered support obligation with abusive behavior or violence. She replies, no, and then she adds that Elisa can definitely afford to pay support, and that Elisa originally promised to support Emily and the twins. Of course, Elisa’s promise endures until the children turn 18, or, in the case of a severely disabled child, for life. (And to reiterate a point I made the other day, Elisa’s conduct cannot be morally defended; by abandoning her family, and breaking her promise, she is clearly in the wrong.) So what legal advice do you give Emily?

    To be frank, I mostly dodge the practitioner-level issue. For most of the paper, I am trying to step back from the whole situation and ask, well, what do we think about this whole set-up? Bear in mind that nonpoor custodial parents exiting a relationship who are not on TANF can chose, free from government pressure, whether to pursue their ex-partner for child support. And, unlike Elisa, most of the payers (usually men, and usually in heterosexual relationships) who are named in TANF cases are too poor to pay, and many of them do react in a hostile manner, enhancing the risk of retaliation and violence. The TANF mothers do not benefit all that much from this system, since the state seizes the support moneys to pay itself back for her benefits in the first instance.

    So my ideal world answer is this: we ought to have a world in which custodial parents are guaranteed a minimum level of income, thanks to effective anti-poverty policies and a caregiver’s entitlement. I draw support for this ideal world scenario from a long tradition of social movement activism and a large literature in political philosophy and feminist theory, including, by the way, the work of several Columbia scholars (GA Cohen, B Barry, T Pogge, etc.)

    What about the real world, though? Well, on a medium term level, I think we should follow the lead of Rep. Patsy Mink who introduced an alternative TANF bill in 2001 that would have given the TANF recipient a choice about whether to pursue the absent parent for child support. Lets give her subsidized legal services to do so, if she opts in, but if she does not opt in, lets respect her decision. There is simply too much risk of violating her privacy and exposing her to retaliation. And we need to be suspicious about how governments deal with the poor: what looks like a simple equity matter (hey, lets make these guys pay up already!) could actually be yet another opportunity for the state to punish the poor, including the custodial mother herself.

    And in the short-term? Lets go back into the advocacy office and consider what advice to give Emily. I admit up front that this is the part of the paper where I am most in need of further dialogue with actual practitioners.

    My idea was this: in today’s world conditions, lets imagine that the LGBT community has decent charitable foundations in place that specialize in giving aid to poor queer families. (Not true, for the most part, but just imagine that our community did as much for our own as, say, the local Catholic Church that quietly gathers clothing and food donations for their poor parishioners … ) Get private aid to Emily right away, so that she can get out of the TANF program. Then approach her again and say, right, now that you are not in the TANF system, and you now have a more free choice about what to do, do you still want to voluntarily open a child support case, under family law, and if so, we want to help you. In other words, NCLR would not participate in a TANF-related case being brought by California, but it would not abandon Emily either; it would make sure she is ok in the short run and then it would try to move the support case into the voluntary realm of family law.

    But, as Prof. Goldberg says, the state of California is going to go ahead with pursuing lesbians and gays for TANF child support at some point, why not at least get involved so that you can file a brief informing the court about the specifics of lesbian and gay relationships?

    Also, think about the ways that poor single lesbian and gay parents might benefit from the Elisa B precedent. What if Emily’s twins were the result of a previous relationship with a straight guy named Hank. Hank, rather than an anonymous sperm donor, is the biological father. However, Hank is a mean guy, nothing but trouble. Quite reasonably, Emily wants nothing to do with him any more. If Elisa B. means that Emily can direct the state of California to go after her lesbian ex-, Elisa, and to leave Hank out of it, isn’t she better off? And put her case in a deeper legal context. Imagine there is no precedent at all that directs the trial courts to respect lesbian parenting, and recall that there was no second parent adoption in Emily and Elisa’s case. With no Elisa B. decision, the state goes after Hank, Hank gets angry, and he does something that is unfortunately very common: he files a custody case for the twins, even though he previously showed no interest at all in their well-being and did not even help out during the pregnancy. The custody petition would be heard by a judge who would be free to be homophobic in his custody decision. Emily would get her TANF benefits, since she was helping the state to go after Hank, but Hank might end up with sole custody of the twins.

    In our current situation, then, TANF lesbian mothers with children born as a result of sexual intercourse with men who now cannot be trusted to refrain from hostility and retaliatory custody suits are definitely better off if they happen to live in a state that has an Elisa B type precedent, and legal protections for lesbian parenting.

    So I concede these short-term points entirely, and I am grateful to have been prodded by my patient colleagues like Prof. Goldberg to work all this out.

    But I would remind folks that this we find ourselves in these predicaments precisely because TANF law is bad law. I maintain my positions about the medium and long term frames: the state has interests in recognizing alternative family structures that have nothing to do with individual rights for LGBT people, and everything to do with trimming their poverty rolls and punishing the poor. So where we, the LGBT community, benefit, either consciously and deliberately, or even unintentionally, from this very powerful anti-egalitarian policy trend, we incur a significant social solidarity debt.

    At the very least, we need to do the research on how an anti-poor state can become deeply interested in providing alternative relationships with legal recognition. We need to discuss these dilemmas openly within our community. The myth about queer wealth needs to be dismantled and the presence of severe poverty among LGBT families should be fully documented. And, in this historical and legal context, we owe it to all poor Americans, queer or straight, to speak out against punitive poverty policies and to work for more equitable reforms.

    The NCLR is now starting to do work on exactly these issues, for which I commend them.

    Now Nancy Polikoff says that we ought to make marriage matter less. I think this is a great idea, but I would add: one of the most important ways that we could make marriage matter less is to create a world in which we would have less poverty. TANF is problematic not only because it compels the custodial mothers to cooperate in a child support case, but also because it sets up the case according to a one-size fits-all heteronormative model. In almost every case, its a marital or marriage-like biological tie that determines the identity of the payer. The actual lived kinship of the poor is totally disregarded.

    In my example above, in a non-Elisa B. state, the court would go after Hank regardless of what the lesbian mom thought about it, and what kind of intimate relationships she was currently pursuing. But lets assume that our lesbian mother client lives in California and that the Elisa B. precedent is in already in effect. However, lets also imagine that Elisa’s intimate life is much more complex. Lets say that she and her (donor inseminated) twins live alone, but she has three lesbian lovers and one very close best friend. Each of the four loves her and the twins very much, and each spends a lot of time in Elisa’s home, often staying over the night. But no single one of them can be easily identified as the primary second parent. Each has a slightly different approach to co-parenting, with different caregiving styles, approaches to joint meal preparations, shared housekeeping duties, and so on. There is a complicated agreement among all five about mutual support. Their relationships break down, Emily is left on her own, and she applies for TANF. Now what? The TANF caseworker would probably make an arbitrary decision to identify one of the co-parents as the second parent, and Emily will be directed to go after her for support. The TANF law would fail to respect her previous intimate decisions, and her current vision of her actual kinship relations.

    This might sound far-fetched, but the ethnographic data suggest that the kinship lives of poor custodial mothers are often much more complicated than you would think on the basis of the TANF model (marital/biological tie) alone.

    If Emily had received a universal caregiver’s benefit when Elisa left her, then she would have been lifted above the poverty line. Her next decisions about legal action would have had an entirely different character. Mothers, queer or straight, who have been abandoned by their partners, even though those partners solemnly promised to be their breadwinners such that the mothers relied upon those commitments, should have access to the courts, but again, I want them to be able to make the decision to enter the court in a manner free from a mandatory requirement. When they seek a legal remedy, I want them to be liberated from the unacceptably narrow heteronormative model that is present under TANF today. I want to maximize their freedom to choose to pursue their life projects according to their own values by removing the coercive effects of deprivation and heteronormativity.

    Anna Marie Smith


  3. Imagine that you are an advocate, and Emily walks into your office. She is desperately poor (otherwise, why would she be thinking of applying for TANF?) and has twins at home, one of whom has Down’s syndrome, and they are three years old. You know that if she applies for TANF, the state will press her to pursue an absent second parent for child support. You quickly figure out that no other parent is available; the biological father is protected from paternal support claims by the state’s law on donor insemination.

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