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

The Supreme Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  As Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to subject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.

The New York Times reports today about Lisa Pagan, a member of the U.S. Army Individual Ready Reserves, who brought her two small children (ages 3 and 4) with her when she had been reactivated for service and reported for duty at Ft. Benning, GA, hoping to dramatize her request for an exemption from service on the grounds of family hardship.  Pagan, who had done one tour of duty in Iraq as a truck driver, had been recalled to active duty but claimed that she should be exempted from serving because there was no one to care for her children.  Seems that her husband, Travis, had to travel a great deal for his job in sales, and could not be depended upon to provide child-care for their children.   The Army’s regulations provide that in the case of extreme personal hardship, amounting to “an adverse impact on a Reservist’s dependents resulting from his or her mobilization,” the Reservist may be transferred to another division of the Reserves or discharged. 32 CFR §44.4(f)

Pagan’s plea for exemption was granted this week when she was honorably discharged from the Army.  (The Individual Ready Reserves (IRR) is comprised of former full-time soldiers who still have time remaining on their military commitments. When Army hopefuls sign their enlistment contracts, they are agreeing to an eight-year stint in the service. After four years or so, soldiers who do not wish to become lifers are given discharges and return to the civilian world. But they’re still on the hook as IRR reservists and are supposed to keep the Army apprised of their whereabouts.  Slate has a helpful story about how the IRR functions.)

Pagan’s case raises some difficult questions for those of us concerned with gender-based justice.  On the one hand, the Army, just like any other employer, needs to be sensitive to the dependency needs of the people it employs.  In some respects, the military has taken a lead in addressing the childcare needs of it’s employees.  Several years ago the National Women’s Law Center applauded the model the military set when it came to childcare.  Yet there have also been countless stories in the news of men and women who have been called up to service who are unable to provide adequate care for their children while they are deployed abroad.  A year and a half ago,  Senators Charles Schumer and Representative Carolyn Maloney issues a report entitled: Helping Military Moms Balance Family and Longer Deployments.  Among other things, the report noted that:

• Women make up approximately 14.3 % of the active duty military (one in seven)
• 38% of the women in the active duty forces are mothers
• 44% of the men in the active duty forces are fathers
• Approximately 11 percent of women in the military are single mothers compared to 4 percent of single fathers
• 93 percent of military spouses are women

On the other hand, when I read the Times story I thought: what about the children’s father?  Can’t he take care of the kids?  If their positions had been reversed, and the IRR member called up for active duty had been a man, do you think the military would have allowed him to plead “family hardship” if his wife was unwilling to quit her job to take care of the kids?  Why isn’t the father in the picture in any meaningful way as having a responsibility for taking care of the kids?  His job seems to come first.  For her, childcare comes first.

In fact, the question about why the father isn’t in the picture was made quite clear when you compare the picture (above) that ran with the story in the New York Times, the Houston Chronicle and many other papers with the picture below that ran in the Boston Globe and USA Today:

Even though Dad is included in this picture, it’s interesting that he’s just sort of sitting over there by himself, while the kids are clearly attached to their mother.

I concur with commentators such at Rebekah Sanderlin who writes a blog about family life in the military that this is a hard case, but I don’t think we can adequately assess the legitimacy of Pagan’s plea for exemption from service when men continue to be exempted from service at home.

- Katherine Franke