The New York Court of Appeals is currently weighing issues of critical importance to families around the state of New York in the matter of Debra H. v. Janice R. The petitioner in the case, Debra H., seeks to prevent the possibility that she may never again see the child she parented since birth.  Respondent, her former partner and biological mother of the child, claims that Debra H. has no legal rights as a parent.  This week, Columbia Law School’s Sexuality and Gender Law Clinic  filed an amicus brief with the New York Court of Appeals on behalf of forty-five family law scholars from every law school in New York State.  The brief was written by Professors Suzanne Goldberg and Ariela Dubler together with Clinic students Harriet Antczak, Mark Musico and Seung-Jae Lee, and urges the Court to bring the State into line with the clear trend in family law by recognizing important functional parent-child relationships.

Given the reality of today’s families, in which children are increasingly parented by adults other than their biological parents, Debra H. is not the only mother with a vital interest in this case.  Rather, at stake are the rights of all “functional parents” like Debra H. and the best interests of their children.

Currently, New York treats functional parents as “legal strangers” to their children, due to the 1991 Court of Appeals case, Alison D. v. Virginia M. There, a lesbian couple planned to have a child together, but when the couple separated, the biological mother attempted to cut off all contact between her former partner and the child.  Ruling on the former partner’s suit for visitation, the Court held that she had no legal rights as a parent.  Because she had no biological or adoptive relationship to the child, the Court found she did not meet its narrow reading of “parent” within the state visitation law.

Mounting evidence shows the harm caused when courts separate children from their functional parents, as in the Alison D. case and many other post-Alison D. cases in which courts have continued to treat functional parents as though they are unrelated to the children they have been parenting.

Taking account of this evidence and the changing realities of the American family, scholars and courts around the country have rejected the rigid conception of the family embraced in 1991 by New York’s high court.  They recognize that only a functional approach can adequately protect the many families in which children are raised by adults who have functional, but not legal or biological, ties to them.

Drawing on the wide consensus among scholars and many courts, the Clinic’s amicus brief calls on the Court to grant functional parents the same rights and responsibilities as legal parents at the point of family dissolution.  As the brief argues, “[t]his functional approach best serves the interests of New York’s children, consistent with New York’s family law jurisprudence and this Court’s equitable authority.”

Specifically, the brief shows two key criteria New York courts should consider in assessing claims to parental status made by functional parents.  First is that the legal parent must consent to the functional parent’s assumption of parental responsibility for the child.  Second, the functional parent actually has to have intended to and assumed parental responsibility.  In addition, courts can consider the parent-child bond between the functional parent and the child.  The brief highlights agreement among courts and scholars that these criteria for defining functional parenthood not only fairly assess claims by functional parents, but also protect the interests of legal parents and serve the best interests of children.

Importantly, the forty-five law school faculty members – hailing from all fifteen of New York’s law schools – demonstrate the best judgment of the legal academics who teach, write about, and practice family law, including many who have particular expertise in child advocacy and scholarship related to the best interests of children.  Their support is a powerful statement to the Court that the time has come to replace the harmful formalistic rule of Alison D. with a functional approach to defining the legal family.

The Supreme Court of Puerto Rico is currently considering whether Puerto Rico’s laws permit the adoption of a child by a non-biological parent who is the same-sex partner of the child’s legally recognized parent.  Such adoptions are typically referred to as “second-parent” adoptions because they occur in situations where the child already has a legally recognized relationship with one (usually biological) parent and the adoption provides the same recognition to an additional parent.  Most U.S. states already allow second-parent adoptions by a same-sex partner, but so far, Puerto Rico does not.

This case, In the matter of AAR, involves two women in a committed relationship who have co-parented a child from birth.  While not contesting that the non-biological mother has functioned in every important respect as the child’s parent, the lower courts have applied a narrow reading of Puerto Rico’s adoption statute and denied her petition, saying second-parent adoption is available only to opposite sex partners.

Significantly, the courts have not inquired as to the best interests of the child in question.  This is unfortunate both because this is standard for adoption decisions in Puerto Rico (and most jurisdictions) and because second-parent adoption is critically important to the children of same-sex couples.   As in most cases, granting the adoption in this case would merely formalize a parental relationship that already exists in fact.  This legal recognition is psychologically significant to children with same-sex parents as an indication of their families’ equal dignity and legitimacy.  Adoption is also of great practical value because of the many rights and privileges that attach to the parent-child relationship.  These practical considerations include custody, inheritance, financial support, medical decision-making, and many other legal protections.  In light of these considerations, second-parent adoption is clearly in the best interests of children being raised by same-sex parents.

On Thursday, November 12, 2009, the Sexuality and Gender Clinic offered its expertise to the Puerto Rican Supreme Court by filing an amicus brief in order to ensure that the most current developments in international and comparative law related to sexual orientation, gender, and family law were made available to the Court.  The Clinic took the position that international and comparative human rights law together support an interpretation of Puerto Rico’s adoption law that would enable children in families with two same-sex parents to be adopted by their non-legal parent.  In doing so the amicus brief drew the Court’s attention to the international human rights norms that enshrine the rights of the child, the rights of the family and the right of the individual to be free from discrimination on the basis of sexual orientation.  It also pointed to the trend in the both the United States and around the world towards interpreting adoption statutes in a way that permits second-parent adoption without regard to sexual orientation.

The Clinic concluded that, by according due consideration to the human rights law and norms that have long informed the Commonwealth’s jurisprudence, the Court can and should interpret the Puerto Rican adoption law at issue to permit the child in this matter to be adopted by a parent she has known her entire life.

Caitlin Boyce LLM, Catherine Poynter 3L, Brian Ward 3L – authors of the AAR Amicus Brief for the Sexuality and Gender Law Clinic

Friday the Iowa Supreme Court held unanimously that the state’s definition of marriage – a union of a man and a woman – violated the Iowa Constitution’s Equal Protection Clause.  This is the first court to do so unanimously, and the first mid-western court to do so.  No more can marriage traditionalists dismiss the idea of marriage equality as an elitist liberalism emanating from the People’s Republic of Massachusetts, the liberal sodom of Connecticut, or the Gomorrah of California.  No, we’ve got Iowa now – a rectangular state smack dab in the middle of the country, with the state motto:  “Our liberties we prize, and our rights we will maintain.”  You bet ‘cha.

I’ve got many thoughts about the ruling in Varnum v. Brien – here are some initial takes.  My critique of Justice Cady’s reasoning from the perspective of queer theory will follow later.

There’s no missing the midwestern tone to this decision.  It reads very differently from the decisions granting marriage rights in Connecticut and California.  Coming from the mid-west myself, I recognized its ethos as characteristically workman-like – what I call “lunch-box lawyering” – no fancy language, it’s straightforward, accessible to the regular person, and its rightness speaks for itself.  Justice Mark Cady, who wrote the opinion for the entire court, stays clear of soaring language about civil rights, about the dignity of gay men and lesbians, or about the sanctity of marriage as a fundamental building block of society.   Solid, clear, step by step.  As I said to Nan Hunter in an e-mail yesterday about the opinion: “Every i is dotted, every t is crossed.  In the end they conclude that ‘gay people are Iowans too – and heck, that’s good enough for us.’  Not the stuff of queer theory, but then it’s the Iowa Supreme Court, gosh dern it.“  After all, look at the plaintiffs:

These are regular folks who do the dishes, go to church, work to pay their mortgages, love their kids – just like straight Iowans.  Indeed, that is what the Iowa Supreme court found, over and over, “Like other Iowans, they (the gay and lesbian plaintiffs) prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected – a belief embraced by our state motto.”  Later the court goes to great pains to point out that the gay plaintiffs are in committed and loving relationships, many raising families, wanting the state to recognize the importance of their relationships and desiring the stability that recognition entails just like regular heterosexual Iowans.

The court also makes every effort to situate the marriage case within the context of local Iowan values.  Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”

What they’re saying here is this: don’t think we’re doing this because of some carpet-bagging gay rights lawyers from Lambda Legal in New York – we’re just taking the next step in a road that is distinctly local and Iowan.  Iowans have never stood for unfairness – even when others did – and we won’t now.  This isn’t a culture war – it’s what good people should do.

This is Iowa – the state with the not-too-flashy Eastern Goldfinch as its state bird, and the dependable Oak as its state tree.  No camelia (Alabama – too smelly), poppy (California – of course), or eastern white pine tassel and cone (Maine – sounds gay to me) for Iowa’s state flower.  They’re happy with the wild prairie rose (pictured left).  And if god-loving gay people want to get married, then it seems only fair that we should let ‘em.

In this may lie the decision’s greatest value – bringing the issue to the middle part of the country in terms that are distinctly mid-western.

- Katherine Franke

News Flash: the Iowa Supreme Court has announced that it will release its decision in the same sex marriage case, Varnum v. Brien, tomorrow at 8:30 am (CST).  The decision will be available here.
- Katherine Franke

Last Thursday, the California Supreme Court heard arguments in Strauss v. Horton, the case challenging the constitutionality of Proposition 8. For those of you who missed it, you can watch all three hours of it here (fast forward 15 minutes to skip the Cal. Sup. Ct. promo and get to the real argument). This is the first of what I imagine to be three posts with my thoughts about the argument and its implications for the future of the gay rights movement.

The case took three hours to argue because six different lawyers were given the opportunity to address the court. Shannon Minter and Michael Maroko each argued on behalf of the individual plaintiffs, lesbian couples who had married during the period between when the State of California permitted same-sex couples to marry in June (as a consequence of the California Supreme court’s decision in the Marriage Cases) and the passage of Prop 8 on November 4th; Raymond Marshall argued on behalf of a group of civil rights groups who had entered amicus, or friend of the court, briefs in support of finding Prop 8 unconstitutional; Therese Stewart represented the City and County of San Francisco, the plaintiff in a separate suit challenging the constitutionality of Prop 8; Christopher Krueger argued on behalf of the California Attorney General Jerry Brown (in support of the plaintiffs); and Pepperdine Law School Dean (and Clinton/Lewinsky special prosecutor) Kenneth Starr argued in defense of the constitutionality of Prop 8. Pictures and quick bios of the attorneys who argued the Prop 8 case can be found here.

The Court wanted the lawyers to address three different issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

I have some general observations about the arguments made last Thursday, but cutting to the chase, it’s hard to avoid the impression from the tone and content of the Justices questions that it will hold, by a rather substantial majority most likely, that Prop 8 was constitutional, BUT that the ± 18,000 couples who were married between June and November did not have their marriages retroactively invalidated by Prop 8.

In terms of appellate advocacy skills I would grade the lawyers: Minter: B+, Maroko: A, Stewart: A; Krueger: B-; Starr: A. Maroko and Starr are very comfortable in front of this court – having made numerous appellate court appearances, and in Starr’s case as U.S. Solicitor General, appearing often in front of the U.S. Supreme Court. Stewart was a bit more stiff, but very effective nonetheless – she, unlike Maroko and Starr, underwrote the strength of her arguments with, well, an undertone of anger that I, for one, appreciated. Minter, Stewart, Maroko and Krueger were all back before the court for the second time on the same sex marriage issue, having all done oral arguments in 2008 in the Marriages Cases.

Minter, who led off the arguments, appeared rather mechanical but nevertheless made the points he needed to make to defend the lead plaintiffs’ position (some of which I have rather strong disagreements with) that Prop 8 amounted to a diminution of the rights of an unfavored minority which cannot be done, if at all, as an amendment to the California Constitution through proposition. Marriage, he argued, is a fundamental right and depriving this right to same-sex couples marks them as second class citizens, denies them the dignity and respect that should be afforded to all, and inflicts a particular harm on the children of same sex couples. Minter was quite strong in rebuttal, hammering home the dignity and stigma point as an exclamation point to the court.

Marshall and Maroko took a different tact from that of Minter in making the case for the unconstitutionality of Prop 8. Marshall argued well that there were implications for all disfavored minorities if the equal protection provisions of the California Constitution could be easily watered down or diminished through the proposition amendment process. Maroko stressed the notion of equal protection in a different way: if the state of California is going to be in the marriage business it must do so fairly. “If gays don’t have the right to marry, straights can’t either.”

Stewart directed her argument more to the technical legal question before the court: in what way is Prop 8 a revision of, not an amendment to, the California Constitution. She stressed over and again that it amounted to a fundamental alteration of fundamental principles contained in the California constitution – that of equality. If, as the Court had held in the Marriage Cases, sexual orientation is a suspect class, then a majority of the people of California cannot diminish or pick away at the rights that same sex couples enjoy. “A notion of equality that is subject to amendment is no notion of equality at all,” she claimed.

Christopher Krueger, arguing for the State Attorney General Jerry Brown seemed, well, rather like deer in the headlights. Before he had taken his first breath Justice Kennard was all over him (as she was with all the others – the first Justice to jump in with questions before any of them had really gotten their arguments underway), wanting clarification as to what side the Attorney General was coming in on. Typically it is the job of the Attorney General’s office to defend the State and its laws. Since Prop 8 was a state law, the AG should make the argument in favor of its constitutionality. But in December, Brown surprised everyone by coming out in opposition to the constitutionality of Prop 8 on the ground that it deprives same sex couples of an inalienable right by a mere majority of voters. Brown’s brief and statements to the public stressed the fundamental nature of the right to marry, rather than the process issue of whether the substance of Prop 8 amounted to a revision of or amendment to the California Constitution. Krueger stumbled and stalled, but the gravamen of his argument was that Prop 8 should be held invald on morality grounds.

Finally, Kenneth Starr brought up the rear, making the case in favor of the constitutionality of Prop 8 – and for this the court had allotted him a full hour of time (the others were given closer to 30 minutes each).

Starr was smooth, comfortable, at times eloquent and chatty, doing a tremendous job arguing the point that upholding Prop 8’s constitutionality is completely in keeping with all of the Court’s prior cases, and required by the principle of popular sovereignty. When asked whether marriage was a fundamental right, he acknowledged that it was “foundational” but this fact did not mean that the people through their elected officials or directly through the ballot couldn’t amend or alter the meaning of marriage. He cited the Walton case – which established no fault divorce in California – and how upset the wife in that case had been in arguing against the establishment of no fault divorce; she did not want her husband to be able to walk away from the marriage for no reason. Much of the questions to Starr were devoted to the third question the court took in the case: If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? He insisted that for those who were married between the time same sex marriage was legalized and November 4th when Prop 8 was passed, their marriages became not invalid, but unrecognized by the State of California. To blunt the seeming inequity of this position to those couples who were married and who relied on the validity of the marriage law at the time they were married, Starr argued that other states could recognize the California same-sex marriages if they chose, and that they could fall back on the equitable principle of putative marriage in California – which is somewhat like common-law marriage. Following a question from the Chief Justice as to whether this was similar to a change in the state marriage law that raised the age of consent to 21, or that prohibited first cousins from marrying, thus “unmarrying” a number of people who had thought they were legally married – Starr agreed that they too could fall back on the ameliorative doctrine of putative marriage.

Of most interest to me was a set of questions posed by the Court to all those who argued that was nomenclatorial in nature. The Chief Justice and Justice Kennard in particular wanted to know why Prop 8 didn’t merely deny same sex couples the term “marriage” for their relationships, since it did not deny them any of the material and legal benefits of marriage since that had been already accomplished through the creation of Civil Unions. I’ll reflect on that issue in my next post.

The court will issue its ruling within 90 days.

- Katherine Franke

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

Columbia Law School’s Sexuality and Gender Law Clinic Director and co-Director of the Gender and Sexuality Law Program, Suzanne Goldberg, has recently published a new essay discussing the significance of the Allison D. v. Virginia M. case – the first case to come before the New York State Court of Appeals raising the rights of lesbian co-parents. It challenges us to think about what we mean when we think of ‘law reform” litigation, and reveals the story behind this important, ground-breaking case:

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking—and disturbing—in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, we might be especially inclined to think that love should carry some weight in determining whether a parentchild relationship will be recognized. Yet even here, again, love is often not relevant to the analysis. While an adult might feel like a parent, be treated like a parent, and be “Mom” or “Dad” to the child, in many states that adult will not actually be a parent within the law, absent adoption or biological parentage. For families in those states, a non-legal parent may have no legal recourse if a couple separates and the “legal” parent bars him or her from seeing the child. As a matter of law, the non-legal parent and child in this situation are no closer than strangers.

Ironically, given the law’s disinterest in love, the chief hope for the non-legal parent to regain contact with his or her child lies in showing the court the love that once defined the family and continues to define the parent-child relationship. Put another way, non-legal parents must persuade the court to see the family as it once was. If the court does not understand that the adults and children before it once functioned as a family, claims that the parent-child relationship should survive the parents’ breakup have little chance of success.

The case of Alison D. v. Virginia M. provides an important opportunity to examine this complex relationship between family life and family law. Although it was decided in the early 1990s, the case and surrounding advocacy present questions that remain in play today, and the decision represents one significant point on the spectrum of family recognition decisions that continue to shape the lives of many families. The case arose after Alison’s former partner, Virginia, barred Alison from seeing the child whom the two women had been raising together. Despite many efforts by Alison’s lawyers to tell the family’s story during nearly three and a half years of litigation, New York’s highest court held in 1991that Alison, as a “biological stranger” to her son, lacked standing to petition the court for visitation. Simply put, the New York Court of Appeals found that Alison, despite being called “mommy” and having “nurtured a close and loving relationship with the child,” was not her son’s parent in the eyes of the law.

Download the entire article here.