Archive for December, 2010

Harsh North Carolina Ruling on Parentage Rights

December 23, 2010

The North Carolina Supreme Court this week issued a decisive ruling in the contested issue of second parent adoptions — most of which have been obtained by lesbian couples. The court ruled that no such procedures are available legally in North Carolina, and thus the court has invalidated all of the many second-parent adoptions by same-sex couples that were previously approved by trial courts iin that state.

What is particularly painful about this decision is that it is the result of an angry co-parent fighting against her lesbian former partner – and not arising out of a lawsuit brought by straight homophobes. Even more ironic is that the loser in this case is an out lesbian state senator.

As has been the case in about half the states in this country, when a lesbian has a child by artificial reproductive methods (i.e. sperm donor), typically she is the sole legal parent, and the donor is not a legal parent. If she has a partner and they are living in a state that recognizes marriage or domestic partnership, usually they are both legal parents because of the presumptions of parentage. But if they live in a state doesn’t recognize same-sex marriage or other form of legal partnership, the legal procedure for adding her partner as a parent is called a second-parent adoption. Unlike a conventional adoption where one parent is giving up rights to an adoptive parent, in this instance the legal parent does not give up parentage, but rather, a second legal parent is added.

Some states expressly disallow such adoptions, some states expressly allow them, but many (such as North Carolina) haven’t had clear rules. Some local judges granted them, even in the absence of a clear ruling by the legislature or appellate courts — and that is what happened here.

This process has great benefits for the child and the parents — it provides certainty in case of a break-up, and it also provides for Social Security and other benefits for the child from the second parent, and puts the second parent clearly on the hook for child support if there is a dissolution. It’s also the right thing to do.

Many of those kids have been living with their two parents for more than a decade, with everyone believing that the legal status of the parent-child relationship was not in question.

Most state courts facing the same question have approved second-parent adoptions, and in the few states where courts have ruled otherwise (Connecticut and Colorado, for example), the state legislatures quickly fixed the problem by passing new laws authorizing this procedure. However, most observers believe that is not likely to happen, especially because the newly elected members of the legislature of North Carolina are especially conservative.

Thankfully the justices ruled that the non-legal parent in this case (and presumably others like her) would have a right to seek reasonable visitation and even shared custody of her child in the event of a break-up, on the grounds that this would be in the best interest of the child. Thus, the second mom won’t lose her entire relationship with her child. But still, this decision could lead in other instances to a denial of custody and visitation, and it definitely would lead to a loss of other public and private benefits, even after the child is an adult. It also might enable a non-legal parent to escape having to pay child support obligations.

One of the most difficult aspects of this history is that it penalizes those who took a chance, and went to the trouble to obtain a legal judgment that they all felt was fair, permanent and meaningful. Now, a few justices have overturned those rulings.

Now isn’t this the worst example of judicial activism?

Update on the Texas Gay Divorce Cases

December 16, 2010

A Texas Court of Appeal heard the case of the most recent “no divorce for you” ruling, and the details of the argument are worth reviewing. A detailed story can be found at but here are the key points. A judge in Austin granted the lesbian couple (who had married in Massachusetts previously) a divorce in an initial oral ruling, but before the Judge could sign the formal papers the Attorney General intervened. The AG argued that since Texas didn’t recognize same-sex marriage, the local court couldn’t grant a divorce that implicitly recognized the marriage. In this instance the court had not just granted the “status” divorce; he also had ruled on various property and custody matters. To his credit, the trial judge rejected the request for intervention by the AG and upheld the divorce decree.

Now, the AG has appealed, asking the appellate court to toss out the divorce judgment. In a similar case the northern Texas Court of Appeal sided with the AG and denied the couple a right to obtain a Texas divorce. That ruling is not binding on the Austin court, but it is quite likely that one or both of these cases will end up at the Texas Supreme Court.

The consequences of these decisions are quite significant. There are thousands of same-sex couples who traveled out of state to get married, and if they can’t get divorced in their home state one (or both) of them is going to have to relocate to a marriage recognition state to obtain a divorce. This is an enormous burden on couples, leaving them with the equally undesirable option of remaining married to someone they no longer live with. In the end, this problem will only be resolved when same-sex marriage is recognized in every state of the Union. But until then, there is nothing gained by denying someone who wants to exit a same-sex marriage a fully legal divorce.

A Question of Fairness for Same-Sex Couples

December 12, 2010

One of those small but irritating corners of discrimination against same-sex couples is the way the IRS taxes the health insurance benefits provided to an employee’s domestic partner. When a straight married spouse adds his or her spouse to the employer-paid health insurance, the value of that insurance is provided tax free. However, because same-sex couples are not considered spouses under federal law, the value of that insurance premium is considered taxable income — thus imposing a burden of about 30% on the gay or lesbian employee, above what his or her straight co-workers pay.

To their credit, several employers (Google was the first, now followed by Facebook, Bain & Company, Kimpton Hotels, Cisco and the Gates Foundation, and soon the Boston Consulting Group) now cover the additional tax burden imposed by the federal government. This is viewed, correctly I think, as a way of equalizing the benefit, making up for the burdens imposed on the employees by a discriminatory tax system.

As a political statement and as a way of signaling their understanding of what it “costs” to be in a same-sex relationship, this is a good step for these companies to make. However, a recent tax development for couples living in California actually provides tax savings to many couples. The new ruling requires state-registered domestic partners in California to “split” their community property income 50/50, with each partner reporting half of the total income. Because these couples are not recognized as married under federal law, some of them will actually see a reduction in their taxes — since they are not hit by the “marriage penalty” that straight married couples encounter. So, should those couples get a reduction in their benefits, to adjust for the windfall they are receiving because of this new tax ruling?

I think not. Overall, the research has shown that on average same-sex couples face more than $400,000 in additional costs over a lifetime of discrimination. For some couples it is the loss of social security survivor benefits, for others it is the cost of adoption or surrogacy fees. In many instances the legacy of discrimination is a reduction in wages and career opportunities. It is not possible for any employer to conduct an individual evaluation of the tax and other financial burdens experienced by each couple. Instead, the underlying discriminatory laws should be eliminated — but in the meantime, the most eggregious mistreatment should be alleviated whenever possible — which is exactly what these enlightened companies are doing.

Proposition 8 Appeal Hearing in San Francisco

December 6, 2010

Today’s hearing on the appeal of the Proposition 8 federal case was quite dramatic — both from a policy and a legal perspective. The first hour of the argument was focused on the “standing” issue — whether or not the proponents of the initiative have a right to pursue this appeal, and the second hour focused on the core legal issues of the decision.

On the standing issue, the judges expressed serious concern over the validity of the appeal, asking whether there were any appellate decisions authorizing a proponent to pursue an appeal, and focusing in particular on whether the Imperial County deputy clerk has the right to appeal (where the state did not file an appeal). Many attorneys thought that once the trial court had allowed the proponents to intervene, they would have the right to appeal the decision — but it turns out this is not the law. And, now that the newly-elected governor and attorney general have both stated they would not support an appeal of Judge Walker’s decision, a favorable ruling on the standing issue could end the case altogether — leaving the trial court decision in effect.

Interestingly, the judges also appeared to be interested in whether or not the trial court’s decision is actually binding outside of Alameda and San Francisco counties, given that this is the region where the case was heard. It was suggested that the decision might not be directly binding on the other counties, but rather, would have to be enforced by the Governor if any county refused to honor the court’s ruling. This is not likely to be a significant matter, however. Rather, the main concern of the court was whether a denial of standing to the proponents would allow the Governor to effectively nullify the initiative, simply by refusing to defend the law in the face of a court challenge.

On the substantive side of the case, the proponents argued that there is no constitutional right to marry, and therefore this situation is not at all comparable to the mixed-race marriage decisions. They also argued that if there is any rational basis to justify the traditional definition of marriage, the court should not have the power to throw out Proposition 8 — and they definitely believe there is a very rational basis, which is the “natural production” of children resulting from heterosexual bonding. Most fundamentally, they argued that the “people” have the right to make the decision, and not a federal court judge.

The judges did not appear impressed with the proponents’ arguments. One judge asked what public policy is furthered by denying gay couples the “word” marriage, when they already have all the rights of marriage, and where the motivation behind the initiative seems to have been based upon bias against a particular group of people. Another judge referred to the United States Supreme case of Roemer, which prevented the state of Colorado from passing an initiative re-instating an anti-gay ordinance.

The Boies-Olsen team did a bang-up job, responding clearly to the judge’s questions and strenuously defending Judge Walker’s decision. They emphasized the Supreme Court’s long history of protecting the right to marry, as a fundamental aspect of our constitutional right to liberty and the pursuit of happiness. Thus, they did not rely solely on the state court’s prior ruling on same-sex marriage, but rather, on the broader federal right of access to marriage for everyone. But some of the judge’s comments suggest that they are more inclined to stick with the state court-related argument, and apply the Roemer case to invalidate Proposition 8 — but only because of the prior state court ruling on same-sex marriage. If this is the case, the ruling would only apply in California, and not in any other state.

The three-judge panel will issue its ruling in the next few months. Then, it is possible that a 11-judge court panel will re-hear the case and issue its own ruling — which then could be appealed to the United States Supreme Court.