Anti-gay discrimination in NJ, Arkansas

Hunter of Justice reports:

The New Jersey Civil Rights Division has issued a Final Report finding that the Ocean Grove Camp Meeting Association discriminated against Harriet Bernstein and Luisa Paster by refusing to rent them a boardwalk pavilion for a civil union ceremony. OGCMA describes itself as "a ministry organization, rooted in Methodist heritage." ...

The agency found that the church was operating the pavilion as a public accommodation, not as a religious facility, evidenced by the fact that it rented it to any and all couples who wanted it for a wedding, regardless of religious affiliation, and had represented to the state that the pavilion was "open to the public" in order to obtain an exemption from property tax. (The group has now stopped renting the pavilion.) I am calling this an early stage in the case, despite the fact that it is the final agency action, because t...[T]he defendant's lawyer, the Alliance Defense Fund, is announcing that it will seek reversal of the decision in court.

Meanwhile, the ACLU has filed a challenge to the statute adopted by Arkansas voters on election day that bars adoption and foster care placement with any unmarried couples. The complaint alleges equal protection and due process violations on both federal and state constitutional grounds; the case was filed in state court....

Doubtless there will be more to come on both these cases in future months.

The NJ case underscores that just being a religious group is not enough to secure exemptions from the law, if you are actually operating as a public accommodation rather than a private faith-based association. The Arkansas case will be an interesting one to watch.

That blog also reports that the Alliance Defense Fund is threatening to sue to block a new legal ethics rule in Arizona that would require lawyers to pledge not to discriminate against clients on the basis of sexual orientation.

The Netherlands: Forced contraception for "unfit" women?

A draft bill in the Dutch parliament is causing a stir among disability activists and others: it would force women judged "unfit" to take contraception or face having any children they have taken away by the state. Notably, the English-language press coverage doesn't indicate the likelihood that this legislation will actually pass.

It's not clear whether there is any other consequence in addition to the immediate taking of any child for foster care. Women in this country who have been judged unfit to parent their previous children already face a high risk of having any additional children they have taken away - though the process is generally not automatic, as it appears would be the case under the Dutch bill.

In any case, the bill would still be an undue infringement on reproductive freedom. To the extent Europe's human rights courts agree, I would think it could be struck down - if it is ever passed - as a violation of the fundamental right to privacy in the European Charter.


H/t Feministing.

Scattered observations on the election

At Bilerico, Jillian Weiss recalls Barney Frank's statement last year that "if we can pick up 15 Democratic [House] seats, then I think we are in a good position to pass a transgender-inclusive ENDA." As Weiss notes, House Democrats picked up at least 19 seats. By the strategic standards of those who supported a non-inclusive ENDA, the time for that strategy is behind us. It is time to move forward with a fully inclusive bill.

Chris at Sex in the Public Square and Renegade Evolution have some reflections on the effort to pass Proposition K in San Francisco.

It now appears that even when all the votes are counted Prop 8 will pass. There is already litigation underway to challenge it. I've previously opined that attempting to challenge the substance of Prop 8, as somehow irreconcilable with the rest of the constitution, is a loser. But the leading argument being made now seems to be that Prop 8 is such a significant change that, under the state constitution, it should have been approved by the legislature before going to the voters (which would never have happened). The alternative argument is that the amendment isn't retroactive. It's not clear to me how strong these arguments are, but how the state's high court rules on them could well be an issue in the justices' 2010 retention races. Arthur Leonard gives a rundown of these suits, as well as the probably constitutional challenge to the Arkansas foster parenting/adoption ban.

Ballot measure, election results!

How Appealing collected the following AP headlines:

"California gay marriage vote still undecided"
(though it's not looking good)

"Florida voters pass amendment banning gay marriage"

"South Dakotans reject second try at abortion ban"

"Colo. voters soundly defeat anti-abortion measure"

"Ark. voters OK unmarried foster, adoption bans"

"Neb. voters approve ban on affirmative action"

Also, Federal Marriage Amendment standard-bearer Marylin Musgrave lost her house seat in Colorado!

In San Francisco, the tally on Proposition K is reportedly around 57-43 against. I don't know what those heavily involved in the campaign think, but to me that looks like a very strong showing for a highly controversial measure. It has sparked a lot of debate and perhaps will be back in the future.

The election results have me wondering about the following questions:

• Which Justice(s) will be announcing their retirement from the Supreme Court come next summer?
• How will the changed political landscape change the fight over trans inclusion in the Employment Non-Discrimination Act?
• Will any LGBT rights legislation move in Congress in Obama's first year in office?
• Will Proposition 8 (if it passed) be held to be retroactive?
• How many years will it be before voters consider reversing Proposition 8?
• When Arkansas's new adoption ban is inevitably challenged in court, will the Eighth Circuit Court of Appeals split with the Eleventh Circuit, which upheld Florida's ban?
• Will the defeat of the "embryo rights" amendment in Colorado and the all-out abortion ban in South Dakota forestall a push for similar measures in other states? (Hopefully so, and likewise the failure of the anti-trans measure in Montgomery County, MD to make it on the ballot!)

Lawyers for FLDS children profiled in ABA Journal

This month's ABA Journal has a fascinating feature on the Texas FLDS custody debacle this past spring, and the volunteer lawyers who represented the more than 450 children removed by the State of Texas. One of those lawyers is Susan L. Hays, who founded an organization (Jane's Due Process) that helps Texas teens obtain abortions. Hays describes how the experience challenged her expectations about FLDS women.

The article's penultimate paragraph quotes another lawyer with a sentiment one rarely hears when Mormon fundamentalism and polygamy come up:

“The problem is not really polygamy; the problem is the belief that women and children are unilaterally the property of the priesthood, and they raise the girls from the cradle to grow up and be mothers and plural wives. It’s all the girls have ever known.”

Hardly anyone ever considers these things separately, of course; in upholding Utah's criminal polygamy law, the state's high court said the law was justified because of the crimes against women and children associated with polygamy.

Medicaid and gender transition; High school GSA victory; Mixed surrogacy decisions

NY federal court dismisses challenge to New York's Medicaid exclusion for gender transition therapies. The case is Casillas v. Daines, 2008 WL3157825 (S.D.N.Y. Aug. 5, 2008), and concerns a trans woman who had hormone therapy covered by New York Medicaid for over 20 years, until it was cut off a few years ago by a new state rule. Interesting posts about the case are at Leonard Link and hunter for justice. There's also an article in the New York Law Journal. Previous litigation on this issue has been mixed; see The Necessity of Sex Change: A Struggle for Trans and Intersex Liberties (PDF) by Noa Ben-Asher, 29 Harv. J. L. & Gender 51 (2006).

This decision rests on a federal regulation that says states may "place appropriate limits" on Medicaid services through "cost utilization procedures." This suggests a broad discretion to exclude medically necessary services, even if they are otherwise mandated by the law. It cuts very much against the grain of the statutory text, and the court seems to read is granting states broad discretion to cut off services based on cost.

Technically, the decision involves whether the the plaintiff can to sue enforce the Medicaid Act under 42 U.S.C. Section 1983, which provides various remedies for violations of federal law; it does not necessarily resolve whether the Pataki-era regulation actually violates federal law or not (a question that could be presented by, for example, a federal preemption claim). But if "utilization control" reg is read - as the court does here - as limiting the statutory text of Medicaid, proving an actual violation could be an uphill battle as well.

Whatever the legal difficulties of challenging such an exclusion, I very much hopes that, as Arthur Leonard suggests, the much more progressive Paterson administration will be open to reversing this Pataki-era rule.

Via Feministing: Highschool Gay-Straight Alliance wins groundbreaking lawsuit in FL. Read the opinion in Gonzalez v. School Board of Okeechobee County here (PDF).

A Florida school district justified banning a gay-straight alliance because it

1) is necessary to maintain the integrity of the abstinence only program, 2) will avoid unhealthy premature sexualization of students, 3) will protect GSA members from the risk of contact with potentially dangerous outside adult influences, and 4) will ensure that GSA members do not have access to adult only materials.

The district even argued that simply saying it's okay to have a non-heterosexual identity is inconsistent with federal abstinence-only standards! The court saw through each of these transparently bogus justifications. I found particularly interesting the court's observation that "When directed towards non-heterosexual students, [the district's] abstinence only message loses the core of its health and safety and child welfare component because a marriage-dependant abstinence only message is of de minimus relevance to non-heterosexuals" who cannot legally marry in Florida. This is relevant here because the federal Equal Access Act has an exception for promoting students' well-being - and the court held that this exception can't be satisfied by banning a gay-straight alliance in favor of a rigid abstinence-only-until-marriage curriculum. The court also stated clearly that the district's other purported justifications were "speculative at best" and amounted to an argument for banning all student speech on sex

And from Leonard Link:New Connecticut Decisions Differ on Enforcement of Gestational Surrogacy Agreements Involving Gay Male Couples:

These different results arise partly because a recent amendment to the Connecticut law governing birth certificates, which specifically mentions gestational surrogacy contracts, does not go into effect until October 1 of this year, leaving the courts to try to determine how to handle this situation in light of prior statutes that make no mention of such agreements. In addition, the DPH, which plays the crucial role in issuing birth certificates, has taken the firm position that only biological or adoptive parents should be listed on the certificates.

...

There is a pressing need here for some clarity, as it appears from the nearly simultaneous appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy contracts – as evidenced by numerous prior decisions involving married couples contracting with women to bear children for them – has made the state a favored jurisdiction for such agreements. ...

Transgender status in custody decisions (Indiana)

As has been the case with sexual orientation, the transgender status of a parent, or a parent's partner, romantic interest or friend has often been raised in child custody disputes, and some courts have been swayed by anti-trans prejudice. While nowadays most American court recognize that sexual orientation should not be a factor in custody cases, here as elsewhere judges tend to have a harder time seeing past gender variance. A nice overview of the topic is in K.J. Carter, The Best Interest Test and Child Custody: Why Transgender Should Not Be a Factor in Custody Determinations, 16 Health Matrix: Journal of Law-Medicine 209 (2006) (abstract here).

Eugene Volokh recently posted at the Volokh Conspiracy about an interesting, and encouraging, decision from the Indiana Court of Appeals in Lowhorn v. Lowhorn (PDF). There, primary physical custody and joint legal custody had been given to the mother in 2002, but the father had petitioned in 2006 for sole legal and physical custody. He complained that Mom had failed to consult him about various matters, including going to a new church (Jesus Metropolitan Community Church, an LGBT-friendly nondenominational church), but it seems Dad's primary beef was a friend of Mom's. From the trial court's findings:

19. Mother has consistently subjected the children to be publicly scrutinized and embarrassed by forcing them to regularly spend time with Mother's friend, a middle-aged male to female transgendered person.

20. Despite the children pleading with Mother that she not force them to be around this person, Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities.

21. [When] Father learned of Mother's behavior from the children and saw the harmful effects the same had on the children, he confronted Mother about the same.

22. During the confrontation, Mother admitted to the foregoing and promised she would never allow the children to be around her transgendered friend again.

23. Subsequently, [mother], also concerned about the children's discomfort and confusion with her transgendered friend, admits to taking the children to a therapist, Erin Hamilton, without consulting [father] or providing him with any information regarding the children's confusion prior to the children's disclosure to him.

24. Dr. Richard Lawlor stated in his custody evaluation that he did not think Diana's unilateral choice of therapist was appropriate due to concerns that 'the particular therapist involved may have an agenda that would not seriously consider realistic concerns of the children'.

25. However, Mother has continued to subject her children to these circumstances repeatedly, despite the children's and Father's pleading.' ...

Wowza. For those not familiar with family law, a custody change requires a "substantial change" in circumstances that were relevant to the original custody determination. When reviewing the trial court's change of custody, the appeals court is supposed to affirm unless it is "clearly erroneous," i.e., there is no evidence at all to support the trial court's findings. The appeals court found that the findings of a substantial change with regard to Dad's other concerns were clearly erroneous. It went on to reach the same conclusion regarding the mother's friendship.

The Good: The court found no evidence that the children's contact with their mother's friend was harmful, and cited cases concerning parents' sexual orientation and same-sex relationships. This indicates that the court properly understands a case like this is analogous to those cases: neither the individual status nor a relationship involving someone of that status should be a custody decision, only the way in which the parent carries on their relationships. The court quoted the psychologist's custody evaluation, which stated that "there is no psychological research to support the finding that involvement with transgendered individuals is of any risk to children."

Furthermore, the court found no support for the conclusion that, to the extent the children were distressed, this was caused by the mother's friend or her friendship rather than by parental reactions to it. In cases where social prejudices come into play, this is a crucial distinction to make, because children's reactions to a situation may be heavily influenced by their parents' reactions.

The Bad: At the same time, the court seemed to buy into the idea that the mother was as much to blame as the father for the children's distress. The court quoted the psyhologist's opinion that "the children's discomfort is a combination of [their father]'s conservatism and their mother's extreme liberalism" and "overly aggressive approach to trying to make sure both children grow up unprejudiced." This "overly aggressive approach" apparently involved taking them to MCC a few times with a trans friend, took them out to dinner with the same friend, and thereafter invited that friend over to dinner at her home two or three times a month. While one can certainly imagine a hypothetical in which an "overly aggressive approach" to teaching tolerance to one's children had harmful effects, such a characterization seems unfounded here.

Perhaps more to the point, the appeals court left the door open to show that mother's friendship with a trans woman did in fact merit a custody change, if it be shown that "the primary origin of the children's confusion and discomfort" is internal rather than caused by their parents' responses to the situation. In other words, the court leaves open the question whether, if children are themselves sufficiently prejudiced against a group of people that being around them is distressing, such exposure can be the basis for a custody change. The lesson would seem to be to harden your children's prejudices early, before your ex starts introducing them to lesbians, transsexuals, Jews, atheists, etc.

Finally, the court seemed to find it significant that the children only saw Mom's trans friend "dressed as a female" once, and not in a public place. The apparent inference is that if the kids had been exposed to a trans woman dressed as a woman - particularly in public - this might be a different story. This is directly contrary to observation made by the psychologist, and recognized by the court, that being around trans people is not harmful to kids.

To suggest that this lack of harm is somehow become harm when trans people present as their authentic, post-transition gender seems akin to drawing a distinction between a parent having a same-sex relationship and the children meeting the parent's same-sex partner. Obviously if parents, or their friends or lovers, lack appropriate boundaries that is one thing. But suggesting that kids should only be exposed to trans people if they present as their birth sex is like saying that the kids can meet Mommy's girlfriend only if she's introduced as a "roommate" and they are never seen holding hands. It also invites what will inevitably be arbitrary line-drawing by courts about at what point in transition, if ever, it is appropriate for trans people to present as their authentic gender around their or someone else's kids.

All in all, the appeals court's decision in Lowhorn v. Lowhorn sets a positive precedent, moving the law in the direction of disregarding transgender identity and expression in custody determinations - just as sexual orientation is now generally disregarded - even if this court isn't all the way there.

What's at stake in November: ballot initiatives

At her blog hunter of justice, the inestimable Nan Hunter has compiled a list of ballot initiatives that would change laws relating to gender and sexuality. The list includes nine states and ranges from initiatives to repeal local antidiscrimination laws in Maryland and Michigan; to bans on marriage, abortion, and adoption by unmarried couples; to a Colorado initiative to endow fertilized eggs with all the legal rights of persons. It's not just in California that ballot measures could make a big difference this year.

Virginia lets Vermont visitation ruling stand

Those of who hoping for a dramatic clash of states-beginning-with-V in the U.S. Supreme Court will no doubt be disappointed: Virginia's Supreme Court (PDF) today apparently closed a long-running dispute between feuding same-sex parents, leaving untouched a Vermont court's award of visitation rights to the non-biological mother. No doubt even more disappointing for those in the bleachers, the high court didn't address whether the state's anti-marriage constitutional amendment stood in the way of enforcing the Vermont court order.

Instead, the court resolved the appeal on the basis of the "law of the case doctrine": because Lisa Miller-Jenkins failed to file a timely appeal from an earlier Virginia Court of Appeals decision in a separate, but essentially identical, lawsuit, she was barred from raising the same issues before the state's highest court now.

The earlier Virginia appeals decision, in accord with the Vermont Supreme Court's decision in the same case, held that under the federal Parental Kidnapping Prevention Act, Vermont had exclusive jurisdiction over custody of the child. The point of the PKPA is to prevent parents who get a court decision they don't like from making off with the child to another jurisdiction to re-litigate the issue there. Under the PKPA, whether a Vermont civil union -- which the two women in the case formerly had -- would be recognized by Virginia courts is beside the point.

How Appealing sums up early press coverage.

Equality Virginia (which represented non-biological mother Janet Miller-Jenkins) provides a FAQ on the case.

While this appears to resolve the Miller-Jenkins case, it also means the Virginia Supreme Court could consider similar arguments -- that its anti-marriage law and amendment preclude recognizing other states' family court orders, notwithstanding the PKPA -- in a later case.

Miscellany: News on Abortion Rights, Discrimination, Parenting

Law.com report: "3rd Circuit: Woman Cannot Be Fired for Having Abortion." The plaintiff was an office manager for a company that insured used cars. In the second trimester, she learned of severe deformities in her pregnancy and had an abortion. Her employer claimed her firing was because she mishandled the scheduling and use of leave time for the procedure and after, but plaintiff sought to prove it was really because of the procedure itself. The Sixth Circuit held in 1996 that the Pregnancy Discrimination Act protects employees' right to terminate their pregnancies, and the EEOC endorses this view, but other circuits had not addressed it. The Third Circuit now agrees that the term "related medical conditions" includes abortion. Opinion here (PDF)

The AP reports : "A federal appeals court says Virginia's law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban has been upheld by the U.S. Supreme Court. The 2-1 decision Tuesday by the 4th U.S. Circuit Court of Appeals affirms the same court's 2005 ruling striking down the law. The Supreme Court had ordered the appeals court to take another look at the law after the ruling on the federal ban." Opinion here (PDF).

The Baltimore Sun reports: "Court denies visitation to gay ex-partner; Md. ruling has broad impact for nontraditional families": "In a decision with broad ramifications for nontraditional families, Maryland's highest court ruled Monday in favor of an adoptive mother who is seeking to deny her former partner visitation rights to a child that both had cared for during their relationship." You can read the decision at this link (PDF), and the Sexual Orientation and the Law Blog discusses the decision here.

Also at Law.com: Circuit Courts Address Discrimination Based on Interracial Association - I've discussed this topic recently, and this article gives a cogent discussion, including the parallel to discrimination based on same-sex relationships.

From Feministing (a couple weeks late!): UK won't lower abortion limit from 24 weeks - Conservatives in Parliament had advocated restricting abortions after 20 or 22 weeks instead of the current 24 weeks. Both measures failed, by 332-190 and 304-233 respectively. Hat tip to Reproductive Rights Profs Blog.

Oregon court: child gets a say in circumcision

The Oregon Supreme Court today blocked a father from having his 12-year-old son circumcised. The case has garnered a fair bit of attention, including amicus briefs from religious and medical organizations. However, the court declined to weigh in on the pros and cons of the procedure; instead, it remanded to the trial court to determine how the child felt about being circumcised, and how that should bear on the custody arrangement.

Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M.

However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.

The court's narrowly reasoned decision is hardly a clear victory for either proponents or opponents of male circumcision, or for that matter of children's autonomy in medical decisionmaking. It would be easy enough, for example, to distinguish this case from that of two parents disputing whether to surgically "correct" an intersexed infant, given the supreme court's emphasis here on the child's near-pubescent age. Still, given the high profile of this case, other litigation on this and related issues is bound to follow, and to be very interesting indeed.

In vaguely related news (via Reproductive Rights Profs Blog), Rwanda has launched a campaign to promote circumcision for men as an HIV-prevention measure. There is, of course, recent evidence that circumcision has a protective effect. I have the impression that HIV/AIDS activists are ambivalent about this strategy; after all, circumcision alone may have some protective effect, but doesn't compare to condoms. And of course, anti-circumcision advocates are plenty ticked.

Ohio courts just don't get transgender issues

There's been a fair amount of media attention of late (including a New York Times piece last December and a 20/20 special last week) on the question of how parents should deal with their young transgender children -- most particularly, should they permit them to present as the "opposite" gender at home and at school? This coverage has been, on the whole, surprisingly sympathetic to parents who answer "yes."

Although litigation on this issue between warring parents was inevitable, it had not arisen in this country until now. The Family Court of Australia has delivered the most thorough treatment of the issue, in holding that a 13-year-old ward of the state should receive hormone therapy to delay puberty an, in the long term, to facilitate gender transition.

Now, the latest Lesbian/Gay Law Notes reports an Ohio appellate decision affirming the denial of custody to a previously custodial mother because she brought her child to transgender support groups and registered her at school as a child (in contrast to her birth sex). I don't think I can add much to the discussion of the case in Arthur Leonard's lengthy blog post, but this decision -- which stands in contradiction to the balance of expert psychological opinion -- looks like a cry for judicial education. Ohio is, after all, one of the few states that persists in the just-because position that gender is immutable.

Parents' challenge to gay-positive curriculum dismissed

Massachusetts's federal district court on Friday dismissed a suit by parents challenging the use of gay-positive books in their children's elementary classrooms. The parents objected particularly to the presence and occasional use of storybooks such as King and King, Molly's Family and Who's in a Family?, which positively depict same-sex couples and families. Since the parents believe that homosexuality is immoral, they claimed that the curriculum violated their right to raise their children and to exercise their religion.

In a strict sense, the dismissal in this case breaks no new legal ground. The district court was bound by First Circuit Court of Appeals holding in Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995), which held that "In Brown, the First Circuit held that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion."

The district court's view of Brown as indistinguishable from the present case, however, is significant, and its discussion of the interests of students who have queer parents or may be queer is even moreso.

Brown concerned a high school assembly in which an outside presenter used a particularly salacious approach to promote safer sex. (Very much the sort of edgy presentation I once gave to college students, actually. While the use of such an over-the-top approach with high school students surprises even me, I've no doubt that parental objections directed to school authorities would be sufficient to ensure a more toned-down approach in future.) That the present case concerned elementary students might at first glance suggest that more deference to parents is warranted, but Brown's holding, based in essence on the discretion required by all public schools, applies equally at all levels. Brown's holding has been followed by the other circuits, and the district court was right not to deviate here.

The court noted multiple reasonable bases for the inclusion of positive discussions of queer families in the curriculum: fostering mutual respect in a diverse nation; eradicating past discrimination; preventing future discrimination; and creating a learning environment in which queer students and students with queer parents can excel.

But its most interesting comments concerned the future of this dispute outside of federal court. The parents are free to pursue in state court a claim that the curriculum violates a state law guaranteeing a parental opt-out for any curriculum that "primarily involves human sexual education or human sexuality." The State argues that the statute does not apply. The court urged the parties to seek a compromise out of court, but acknowleged that

Finding a reasonable accommodation may be a challenging task. Allowing parents to exempt their children from classes primarily involving human sexual education may not injure the value of those classes for the students who remain. However, as Ralph Waldo Emerson wrote in his journal, " 'I pay the school master, but 'tis the school boys that educate my son.' " [...] An exodus from class when issues of homosexuality or same-sex marriage are to be discussed could send the message that gays, lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging effect on those students. Cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954). It might also undermine the defendants' efforts to educate the remaining other students to understand and respect differences in sexual orientation.

An opt-out for sex ed risks no implied message about any particular group of people. A similar treatment of any discussion of same-sex relationships has quite different applications. The court's citation to Brown v. Board here is wholly appropriate (notwithstanding subsequent criticism of the education studies cited in that case), but nonetheless amazing.

This dismissal will almost certainly be upheld on appeal; it will indeed be interesting to see what, if any, compromise the parties may be able to reach.

Parental rights in France

Yesterday France's Cour de Cassation denied a lesbian mother the opportunity to adopt her nonbiological child. My French is minimal, and I would love to see a decent translation of the rulings in the case. From what I can glean, however, the court hewed closely to France's Civil Code (it is a civil law country after all), which seemed to say that Mother A could not adopt with Mother B surrendering her parental rights. That, obviously, would not be in the best interest of the child, and on that basis the adoption was denied. The only other way both mothers could be full co-parents was for them to marry, currently not an option in France - but apparently a hot issue in the current presidential elections.

To further confuse things, I cannot quite figure out the difference between the above ruling and a ruling by the same court a year ago, which appeared to allow a lesbian bio-mom to delegate substantial parental authority to the nonbiological mother. (This based on what little I can make of the original French, along with a couple of news reports.) What this seems to mean is that a nonbiological co-parent in a pacte civil can take on a substantial parental role, but this is always subject to the (presumably revocable) consent of the natal parent. This sort of parental status is precarious indeed, and as breakup of the parents could destroy it. If you can help clarify matters here, please comment.

Utah rejects de facto parenthood

Utah's Supreme Court Friday flatly declined to follow Wisconsin, Washington, Massachusetts, New Mexico, Rhode Island, Pennsylvania, New Jersey and Massachusetts in recognizing a status of de facto or psychological parent at common law. It therefore denied standing to Keri Jones, a lesbian mother, to press for visitation rights for her young daughter. Jones had entered a civil union with the biological mother; had gones through insemination, prenatal care and birth as an intended parent; had been designated co-guardian of the girl, who shared both women's surnames; and helped raise for her two years before she separated from her partner, who subsequently had her stripped of guardian status and denied her all access to their daughter.

The court avoided any discussion of lesbian parenthood specifically, insisting that this was a major question of social policy to be decided by the legislature. It was the court's view that a common law parentage doctrine would inevitably be far too amorphous to determine a putative parent's standing (and thus jurisdiction), as it would essentially merge the question of standing with the merits of the case. It said that while the common law was always evolving, it could only work incrementally. And it further contended that it would be particularly inappropriate for the court to make this leap because "there simply are no bedrock principles" for determining de facto parentage. Apparently the doctrines (admittedly somewhat varied) of eight states do not count.

I find the argument that common law innovation can only be "incremental," and that recognizing de facto parentage would exceed these bounds, to be disingenuous. First-year tort law alone taught me that many of the "incremental" changes wrought by common law courts have profound affects. It seems to me that, in those areas that are still governed to a considerable extent by evolving common law, the court may always seek to adapt the law to new situations coming before it. The legislature can always abrogate their innovations.

A spirited dissent makes similar arguments, articulating a de facto test borrowing from other jurisdictions. It stated:

The child in this case is the product of a same-sex relationship, but she just as easily could have come from a more traditional one. Her opportunity to have the courts determine whether visitation with one of her parents is important to her present and long-term best interests should not be foreclosed. Indeed, children of dissolving, nontraditional relationships are just “as likely to become . . . victim[s] of turmoil and adult hostility as [are children] subject to the dissolution of a [traditional] marriage.” ... These children “need[] and deserve[] the protection of the courts as much as [children] of [] dissolving traditional relationship[s].” Id. To deny the forum of the courts for the resolution of children’s interests in nontraditional contexts would be to deny those children the protections afforded to all other children. This is contrary to “the public welfare and the true interests of justice.”

The dissent further noted that the legislature had not squarely considered the question now before the court, and thus it fell precisely within the "interstices" of the law (to use the majority's phrase) that the common law courts worked to fill.

What are the broader implications of this decision? Well, it reminds us that the strong trend toward nontraditional parental rights, at common law or by statute, is not an ineluctable one in the short term. Conservative state courts may still refuse to go this route, and from the point of view of the LGBT movement it may be wise not to litigate this issue at present in certain states. For my money, the court's assiduous avoidance of the "l word" suggests that even courts hostile to LGBT family rights are increasingly hesitant to take explicitly anti-LGBT positions when they justify their rulings facially neutral doctrinal terms. And that's progress of a sort -- for all the good it does Ms. Jones.

Ontario Appeals Court: three legal parents OK

Ontario's Court of Appeal on Thursday granted a lesbian mom's request for a declaration of parentage, without stripping the biological father of his parental rights. The two moms made this unusual petition in lieu of seeking a second-parent adoption, because that would have required Dad -- their friend, sperm donor, and a regular part of the five-year-old's life -- to surrender his parental rights. I originally wrote about this case back in 2003, when a lower court denied the petition on jurisdictional grounds. Frankly, I had thought nothing would come of this action. Howard Bashman's How Appealing blog (which I check compulsively) links to a variety of press items on the case.

I'm not sure what to think about this decision. To be sure, I think the outcome is a good one: the child (like many other children) really has three parents, and it is in his best interest that the law recognize this. Nevertheless, in a case like this I am much more sensitive to the argument that this is not a decision for the courts than I am with regard to same-sex unions and parents. While opponents claim that there are many unknown factors that should be studied and weighed by legislators, same-sex couples are, in every way that should concern the law, just like opposite sex parents. (Note the qualifier: I do not intend to take a position on whether queers are "just like" straights in other senses.) By contrast, multi-parent families do, simply by dint of numbers, arguably raise important and unfamiliar practical issues more properly within the purview of legislators.

That argument might be persuasive if this were a constitutional case. But the Court of Appeal here dismissed constitutional claims because they hadn't been raised below, and instead decided the case on the basis of parens patriae, a special kind of inherent jurisdiction in family case. Both court opinions in the case focused on jurisdiction, and the two courts basically disagreed on what kind of "legsilative gap" allowed decisions based on parens patriae. The appellate court held that, since the relevant statute was written a generation ago and its drafters had not even considered cases like this one, jurisdiction was appropriate. Under a doctrine like this, where courts are already given the right to go beyond statutory law in dealing with unforeseen cases, the court's chartering these unfamiliar waters seems wholly appropriate. After all, if the court had refused to consider the merits, and the family been forced to go to the legislature, they would remain in a vulnerable position in the meantime. This, I think, is precisely the point of a doctrine like parens patriae. Note that no such doctine would apply to a case concerning a right to polygamy.

Curiously, while both courts incorporated policy considerations into this analysis, the appellate court did not discuss at all any special considerations raised by the three-parent situation, but instead relied upon the case law on lesbian mothers. I am very curious to see what comes of this case in terms of public and political reaction, and whether there is any further litigation. At first glance, the latter seems unlikely inasmuch as the only parties to the case are the three parents. But it would seem that now the legislature is on notice of this "legislative gap," and could act on it one way or another.