Maps of relationship non-recognition laws often obscure non-recognition of different-sex unmarried couples.

In the process of planning one of my law school classes, I was perusing the websites with maps of the United States showing the status of relationship recognition or non-recognition across the country. There are so many different types of laws that it's a challenge to accurately portray each state with all its nuances. HRC and NGLTF each have useful, easy-to-print one-page non-recognition maps. The Movement Advancement Project has interactive maps more suitable to getting a quick online snapshot of each state's LGBT-related laws.



Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.



So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.



This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.



But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.



I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.



Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.

Parentage not tied to marriage is better...but how to get lesbian couples to understand this?

The DC Gay and Lesbian Activist Alliance Forum noted last week that a married lesbian couple was told by Sibley Hospital in DC that they would have to present their marriage license to get both of their names on the birth certificate of the child that one of them gave birth to. After alerting members of the DC City Council who enacted parentage reform in 2009 (see here for more info on the law), three members sent a letter to Sibley decrying discrimination against the couple. (link to letter on GLAA Forum website). It is absolutely correct that if the hospital does not require a different-sex couple who says they are married to produce a marriage certificate then they cannot make such a request of a same-sex couple.

But neither the letter nor the blog post said anything about the Consent to Parent form that enables a lesbian couple to be listed as parents regardless of whether they are married. I followed up and learned that Sibley Hospital says it gives lesbian couples that form. I'm trying to ascertain if the particular couple that contacted GLAA was offered the form.

This situation highlights what I have come to realize is a BIG problem. Lesbian couples think marriage makes them both parents. Period. In this piece in the Washington Post last month about a lesbian couple who married, the article noted that the right of both of them to be on their child's birth certificate was one of the reasons they got married. I contacted the reporters who wrote the piece and clarified the law -- that for a child conceived through donor insemination the two women are both parents and have the right to be listed on the birth certificate and marriage has nothing to do with it. One of the reporters got back to me; she appreciated the clarification and suggested the women themselves were probably unclear about that.

If the couple who objected to producing a marriage license wanted to be jointly listed because they are married and thought it was some kind of dis to sign the Consent to Parent form, they are confused in a way that could really hurt them and their child. Let me clarify.

A heterosexual couple does not have to be married to both be parents of the child born to the woman. For most of history marriage was a requirement for legal parentage, but that has not been true for more than 40 years. So when a same-sex couple plan for a child together they also should not have to be married to have their joint parentage recognized. DC's Consent to Parent form is a pathbreaking development that guarantees that every child born in the District of Columbia to a lesbian couple who achieved conception through donor insemination (rather than sexual intercourse) gets both moms listed on the birth certificate.

And as I have said many times, parentage based on a statute that makes both women parents because they consented to parent and signed a form saying that gives the family more protection than parentage deriving from a marriage. A state that does not recognize a couple's marriage may refuse to recognize the nonbio mom's parentage if that parentage derives solely from the marriage. This is why from the first day of marriages in Massachusetts the gay rights legal groups have recommended -- and continue to recommend -- that the couple nonetheless do a second-parent adoption. If parentage derives from an adoption it will be recognized by other states. The DC statute takes into account that many couples -- married or not -- do not do second parent adoptions (it takes time; it costs money to hire a lawyer). Under DC law the women are both parents because they agreed to both be parents and the child was conceived through donor insemination. The Consent to Parent form is the best way to prove this, and it gets both names on the birth certificate. It has nothing to do with marriage. That means it will be harder for a state with a DOMA to decide that it won't recognize the nonbio mom's parentage.

So I am starting to worry that couples want parentage based on marriage as though that was the gold star of parentage. Repeat after me: All children can have two parents even when their parents are not married. It is not disrespectful to grant parentage on a basis other than marriage; it's a GOOD thing -- for all children, not just children of same-sex couples.

The DC statute is awesome. It was largely copied by Washington state this year. You can read way more than you probably want to in this law review article I wrote about it.

My message to lesbian couples: Don't get married to give your child two parents. Get married for other reasons if you like, but not that one. To give your child two parents, make sure the child is born in the District of Columbia and sign the Consent to Parent form.

I stand corrected...sort of...about marrying a second time in New York

So it turns out that New York law does explicitly allow a married couple to marry each other again. It's strange, but it's true, and no one seems to know why. Lambda Legal has put out an FAQ publication on marrying in New York which you can download here. What they say on this subject is as follows:

If for some reason you are still interested in re-marrying your spouse in New York, the marriage laws permit this, but you would be well advised to consult a private attorney or contact Lambda Legal's Help Desk before you take this step to determine if it could carry legal complications for your family.

I wonder if Lambda could be more helpful, perhaps by enumerating some of the possible "complications." The date of a marriage determines many things, including eligibility for certain benefits and accrual of marital property. The house in one spouse's name bought after the first date but before the second? It's marital property if the first date counts, but if the first date counts then what is the second date? Will someone argue (one of the spouses, even, when things turn ugly) that the first date was somehow symbolic but not legal? Assume the couple lived in New York before New York officially recognized same-sex marriages from elsewhere. It is clear the couple's marriage is now recognized, and that means it is recognized as of the date the couple married. If they marry again, one partner may later argue that the first marriage was, indeed, symbolic, some kind of political act never intended to have legal meaning, and that the later marriage in New York shows the couple intended only from that date on to be legally married.

And if years from now they divorce and mention only the New York marriage date, are they divorced? The possibilities give me a headache.

I've yet to find an LGBT family lawyer in New York who is advising her clients that it's fine to marry again. Yet all the discouraging is not dissuading those couples who really want to do this, and since the state allows it there is nothing to stop them. It's asking for trouble down the road.

Why is New York City telling married couples they can marry again?

As the date of the first same-sex weddings in New York approaches, consider this. On the website for the Clerk's Office for New York City, there are questions and answers for same-sex couples. Scroll down and find the following: "Can my spouse and I get married in New York City if we already were married in another state or country?" The answer: Yes. The page goes on to say that New York recognizes same-sex marriages from elsewhere, and it says to talk to a lawyer about whether to marry again if you have questions about it. But it has just answered the basic question with a "yes," so who would have a question other than that?

Here's what's wrong with this answer. The couple is married. New York recognizes their marriage. Any state that would recognize a New York marriage would also recognize the coupe's marriage from Connecticut, or Massachusetts, or anywhere. Married couples don't marry again. They may renew vows, but this is not marrying again. The first marriage was a real marriage. To marry again suggests otherwise. It also confuses the heck out of WHEN this couple got married. If they divorce and don't mention both marriage dates, will they still be married because they didn't dissolve one of their unions? For government benefits, what date will count? For accumulation of property, what date will count?

New York LGBT family lawyers have been getting calls from clients since the moment the law was signed. They all say the same thing. You are married. Don't marry again. So why ask for all this trouble? I'm assuming that those who want to marry again are couples who live in New York who resent that they had to go elsewhere to marry and who want the validation of marrying at home. Maybe their friends and families could not attend the first wedding because of distance and they want to do it the way they always wished to.

I understand those feelings. But frankly it reminds me of another thing I hear from LGBT family lawyers: When a couple marries and they live in a state that does not recognize their marriage, sometimes one or both thinks they do not have to divorce. Why divorce, asks the married lesbian in Arizona, when Arizona already says I am not married? In other words, they act as though the marriage was not real. That, too, can have bad consequences. These circumstances are similar because in each instance someone who went somewhere to legally marry thinks it appropriate to act as though they are not legally married.

So my advice to married same-sex couples in New York: Don't. And my question for New York City remains. Why this advice? Is it to collect those marriage license fees? If so, balance your budget some other way and don't lead New York residents down a path that suggests their marriages are not real and that spells trouble later.

New York employers ending domestic partner benefits

And so it begins. New York allows same-sex couples to marry, and some employers are now eliminating domestic partner benefits. So the New York Times reported yesterday. This is exactly what Katherine Franke feared in her Times op-ed, published the morning that turned out to be the day (night,really) marriage equality came to New York. And these are large employers, whose policies affect thousands of people...Corning, IBM, Raytheon.

Every gay rights advocate quoted in the Times article opposes dropping DP benefits. But none of their organizations have made it a priority to say that no one should have to marry a partner to provide for their economic and emotional well-being. Case in point: Lambda Legal represents Arizona public employees with same-sex partners who don't want to lose their domestic partner benefits. Employees with different-sex partners are also losing their benefits, but Lambda takes the position that they aren't really losing their benefits because they can obtain them by marrying, which is not available to same-sex couples in Arizona. I decried their approach in this post precisely because it makes marriage mandatory for different-sex couples and suggests that it would be fine to have it mandatory for same-sex couples as well if they could marry.

It's worth remembering that domestic partner benefits started (in 1982) as an alternative to marriage and were always available to both same-sex and different-sex partners. The first employers to establish same-sex only policies were software developer Lotus in Massachusetts and Montefiore Medical Center in New York in 1991. They explicitly said their policies were based on the exclusion of same-sex couples from marriage. The next year, Levi Strauss became the first Fortune 500 company to provide DP benefits, and it chose to cover both same- and different-sex partners. There's been a split among employers ever since. The Times piece yesterday says Eastman Kodak, which covers both gay and straight couples, has no plans to require marriage of anyone.

Finally, as I wrote last fall, my employer, American University, has gone from covering only same-sex couples to covering both same- and different-sex couples. They were nudged in part by the fact that, even though DC allows same-sex couples to marry, DC also has registered domestic partnership which is open to different-sex, as well as same-sex, couples. Insurance policies that cover spouses must also cover domestic partners. American University now has a functional test for those who are not married or registered as domestic partners. The NY Times even published my letter to the editor about it. Scroll to the end of this page to read it. I hope some employers in New York follow.

Same-sex marriage and polygamy in the same breath? Two (plus one) New York Times debaters think so

Yesterday's "Room for Debate" in the New York Times is about "Marriage: The Next Chapter." I found it interesting that two of the six commentators used the opportunity to mention polygamy. Philosophy professor John Corvino notes that opponents of same-sex marriage "continue to predict a slippery slope to polygamy, polyamory and other “untested, experimental” family forms." He continues: "The grain of truth in their prediction is this: recent progress reminds us that marriage is an evolving institution and that not everyone fits in the neat boxes that existing tradition offers." (That's before remarking that polygamy is actually quite traditional). Law professor Rick Banks predicts that "over time, our moral assessments of [polygamy and incest] will shift, just as they have with interracial marriage and same sex marriage."

Advocates of marriage equality typically distance themselves as far as possible from polygamy. Those most averse to a discussion that includes both ideas in the same conversation may be troubled by the latest book from a third of the New York Times debaters, sociologist and long time gay rights ally Judith Stacey. Her comment in the Times debate does not mention polygamy at all; it's about the unfairness of privileging marriage and the importance of family policies that respond to the needs of all the ways people live (with a special shout-out to me that I deeply appreciate).

But Stacey's new book, Unhitched: Love, Marriage, and Family Values from West Hollywood to Western China, places the connection between gay couples and polygamous families front and center. Stacey's research on gay men in Los Angeles occupies the first part of the book, presenting pictures of the complex lives of 50 men born between 1958 and 1973 and those connected to them. She conducted the first interviews between 1999 and 2003 and then followed up in 2008 with the 29 men she could still locate. I am especially appreciative of Stacey's attention to the men raising children (about half of them) including those in what she calls poly-parent families.

The next part of the book presents the field research Stacey conducted of polygamous families in South Africa. The women Stacey describes agree to a family structure of one husband and more than one wife, not as their first choice, but as the best choice among their available options. Their options were pretty bad, and the picture Stacey paints is not an attractive one. Yet she strongly opposes criminalization of polygamy and believes that legal recognition in the US would make it easier to regulate abuses (underage marriage, rape) and could "nudge" polygamy towards gender equality. She also hopes her book will make it easier for feminists to both "fathom and countenance" polygyny. While that might be too much to expect, Stacey's arguments against criminalizing polygamy are strong. And her two fellow New York Times debaters also resist separating entirely the legal claims for marriage equality and polygamy.

Judith Stacey has been an expert witness for marriage equality and a tireless supporter of the ability of gay and lesbian parents to raise healthy children. The legal rights of gay and lesbian families are farther along today because of her work than they would have been without it. But like all those who tell the truth about families, she does not simplify what is complex. In the process, she has publicly articulated views that make gay rights advocates uncomfortable.

She wrote in 2001 that there were differences -- not deficits, but differences -- between children raised by lesbian mothers and those raised by heterosexuals. This confounded those whose legal strategy had been dependent upon arguing that lesbians should not be denied parental rights because there were no such differences. Unhitched makes the case that legalizing same-sex marriage is not a demand completely divorced from the legal status of polygamous unions. From the looks of yesterday's New York Times debate, she's not the only gay rights supporter willing to say this out loud.

Wyoming Supreme Court allows married same-sex couple to divorce

The five justices on the Wyoming Supreme Court ruled unanimously yesterday that a lesbian couple married in Canada could divorce in Wyoming. The opinion in Christiansen v. Christiansen reverses a lower court ruling that the couple could not divorce because Wyoming law prohibits same-sex marriages.

Paula and Victoria Lee Christiansen were married in Canada in 2008. Paula filed for divorce in February 2010. Wyoming has a statute defining marriage as between a man and a woman. The court defined the issue as "whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding." The court pointed out that Wyoming also has a statute saying marriages validly entered into in another country are valid in Wyoming. That rule, the court said, is not absolute because the state can find a marriage invalid if it is "contrary to the law of nature" or if it is a marriage "which the legislature of the state has declared shall not be allowed any validity." (Those quotes from an earlier court opinion.)

The court reconciled this "public policy" exception to recognizing foreign marriages by saying the following: "Recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship." The court specifically noted that the couple was not trying to live as a married couple in Wyoming or "enforce any right incident to the status of being married."

This is a very interesting ruling. The appellant's brief says that the couple acquired real and personal property and debts during the marriage and asked the trial court to resolve those issues. Property division (and spousal support) are "incident to the status of being married." Also, the reasoning of the court could apply equally to any consequence of one spouse dying. So intestate succession, workers comp survivors benefits, and other benefits conferred on widows would also not involve "recognition of a marriage as an ongoing relationship."

Some Wyoming legislators tried to file a friend of the court brief in the appeal, with representation by the Alliance Defense Fund. The court denied, twice, motions to permit ADF lawyers to appear and to file the amicus brief. The pleadings, motions, and orders are available on the court's website and make for an interesting read. The court did not say why it denied leave to file the amicus brief, but the objection filed by the appellant's lawyers noted that the legislators and ADF were pursuing a "political agenda" that did not belong in the court. Given the interest that some legislators have taken in this issue, it is bound to come up again. Wyoming does not now have a constitutional amendment banning same-sex marriage or recognition of same-sex marriages from elsewhere.

Boston Review program on the future of marriage available online

In March, I spoke on a panel sponsored by Boston Review. It is now available online here. Harvard historian Nancy Cott, known for her expert testimony in the California litigation challenging the constitutionality of Prop 8, was the primary speaker. (You can read the transcript of her testimony in the Perry litigation by going to this website and clicking on days 1 and 2 of the transcript). If you have not followed her assessment of the history of marriage and why allowing same-sex couples to marry is consistent with that history, this talk is a concise summary of her work. Other speakers were Mary Bonauto of GLAD, Michael Bronski, and an opponent of marriage equality.

It was especially interesting to me that more than one audience member challenged the panelists to think about arrangements other than couples. Audience questions and our responses are included on the video.

MD Delegate Tiffany Alston had a good idea for a bad reason

When I first heard that Maryland Delegate Tiffany Alston wanted to replace marriage with civil unions for all I was hopeful she had a principled reason and that it was an idea that might catch on. I'm still waiting for a state to change the name of the status it grants couples, leaving "marriage" as a religious term or a generic term couples use for themselves. But it soon became clear Del. Alston was not really looking for a way to get the state out of the marriage business. She was just looking for a way to avoid voting for same-sex marriage.

I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.

So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.

Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.

Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about

The New York Supreme Court Appellate Division, First Department, ruled today that the marriage between a decedent and his surviving partner in Canada is entitled to be recognized in New York. (To read the opinion, In re Estate of Ranftle, you need to click here and scroll down to page 8). The couple, J. Craig Leiby and H. Kenneth Ranftle, married in Canada in June 2008, and in August 2008, Ranftle wrote a will. After Ranftle died, Leiby sought to probate the will as his surviving spouse and was opposed by the decedent's brother. The trial court found the marriage subject to recognition in New York, and in this opinion the appeals court affirms.

This opinion is a timely reminder of what yeseterday's Obama administration announcement does not mean. DOJ will no longer defend the constitutionality of DOMA Section 3, the section that denies federal recognition to validly married same-sex couples. Section 2 of DOMA says that states are not required to recognize same-sex marriages from elsewhere. The DOJ announcement is silent on Section 2, because it is not an issue in the pending cases that prompted the DOJ announcement.

Any family law scholar will tell you that DOMA Section 2 was unnecessary, because the rule of law even without it is that a marriage valid where performed will be recognized in a state unless it violates the strong public policy of the state.

In the Rantfle case, the opinion simply recites that rule, notes that New York does not have a specific statute (as the vast majority of states do) refusing to recognizing same-sex marriages from elsewhere, and then concludes that it is not against "natural law" to recognize such marriages. Short and sweet.

In states with statutes refusing recognition to same-sex marriages from elsewhere (here is a chart), a court would not treat Leiby as Ranftle's surviving spouse. Nothing in yesterday's DOJ announcement changes that. At some point there will be a constitutional challenge to such non-recognition. One way the United States could be a party is that a couple could marry, go home to a state that does not recognize them, and then try to get some federal benefit. The federal government goes by state law to determine if you are married, and the couple could claim that by not treating them as married the state they live in is violating the constitution. The administration would have to take some stand on the matter.

But it's more likely that the couple will seek some recognition in their state, in which case the United States won't be a party at all, and we would expect most state courts to uphold the state DOMA. All this will be interesting litigation to come. Meanwhile, New Yorker get one more piece of support for the validity of the marriages they enter outside New York.

Some law reviews are bringing academic thought to the wider (on-line) world; Penn Law Review hosts debate on arguing for marriage

I've written my share of law review articles. I wouldn't have tenure if I hadn't. And although that is the customary venue for legal scholarship, I've been increasingly frustrated with its limitations. Who reads law reviews? Well, other law professors do. Law students writing papers and their own articles do. And. And. Hmmm. That is really it. Lawyers handling cases raising new or controversial legal issues may cite law review articles in their briefs, and judges do sometimes cite them in opinions. (I love it when a judge cites one of my articles!) But lawyers don't regularly read law reviews for intellectual sustenance, and if you're not a lawyer, well, there's an access problem. Although there are notable exceptions, law reviews don't generally post their articles on line. And even if they did, if the typical article is a dense 50-70 pages, who even has the time except other academics?

Well something is new in legal academia, and I applaud it. Some journals are posting relatively short pieces on line in novel formats. Harvard Civil Rights-Civil Liberties Law Review is holding a colloquium based on a short on-line article, Gay Rights and Lefts, by Northeastern Law Professor Libby Adler. Adler's piece will appear on February 1, and one month later the journal will post short responses (up to 1000 words) from a couple of dozen lawyers and law profs (including me). It's public intellectual discussion that can engage an audience far greater than the readership of law reviews.

Last month the online site of the University of Pennsylvania Law Review hosted a debate on "The Argument for Same-Sex Marriage." (The site is named PENNumbra, a cute name that a law student or lawyer would recognize as a play on the "penumbras" of various constitutional amendments in the Bill of Rights.) It's worth reading. Two law profs, Debroah Widiss and Nelson Tebbe, argue that lawyers should not argue that marriage is a fundamental right. It's not like childbearing or abortion, something you can do without the state. Rather it is a state-conferred status, and the state could abolish marriage for everyone, which it could not do if it was a fundamental right. (I agree completely.) Then they argue that typical equal protection arguments are unlikely to succeed in the Supreme Court, even though they have won in some lower courts. The argument they settle on is what they call an "equal access" argument -- that once the state creates marriage (like once it holds elections, or allows parties to appeal a trial court decision) it cannot selectively exclude people from the important institution it created.

The more interested read in the debate, however, is from Wake Forest law prof Shannon Gilreath, who argues against arguing for marriage. He criticizes the enormous amount of money spent litigating in California over the word "marriage" (since same-sex couples already had the rights under the term domestic partnership). He then critiques marriage from a gay liberation perspective. This isn't new, but he cites many legal scholars whose work is mostly available in law review articles, and so the benefit of this format shines through; you can get a taste of the larger critique in this user-friendly format.

Then he makes a more unusual point. He argues that the home is violent for women and the necessity of divorce to end a marriage creates a dangerous situation. He then discusses violence in same-sex relationships and argues we should not make them more difficult to exit. He also argues that the private family exemplified by marriage is less safe than a more communitarian idea of family. Here I think he misses a lot. Laws that protect against intimate violence extend almost everywhere to same-sex couples, as well as unmarried heterosexual couples. Those laws were once available only to married couples, and so it's an area of law that has actually expanded its reach to address the needs of real people in violent situations, married or not. He doesn't convince me that marriage creates more violence. And economic and emotional dependence can make it hard to leave an unmarried relationship. He did not convince me that the availability of marriage would make gay men and lesbians less safe in the home.

But I do love his last line: I fear that when the history of the Gay movement itself is written it will read more as epitaph than epilogue: Once upon a time there was a Movement... then there was Marriage.

While I'm pointing out critiques of the movement for marriage equality available on line, check out this one by Yale English/American Studies prof Michael Warner (author of The Trouble with Normal), that appeared as an essay in the California Law Review, but is, amazingly, available in full on line. It's longer than the new format of law review websites, but it's worth reading. He argues that gay rights advocates go after marriage because it symbolizes obtaining the dignity and respect of straight people. "To argue for gay marriage on these grounds," he writes, "is to despair that respect can be compelled on any other terms." I couldn't have said it better.

Publicly appointed marriage commissioners in Canada must marry same-sex couples

Opponents of gay rights now often portray themselves as victims -- victims of discrimination, intolerance, bigotry, hate, etc. (Remember that this is how they convinced the US Supreme Court not to permit video broadcasting of the Perry same-sex marriage trial).

Well, some of those opponents argue that it violates their right to religious liberty for the government to require them to do something they find morally repugnant, like marry same-sex couples or place foster children in a same-sex couple's care. This week, the Saskatchewan Court of Appeal, the Canadian province's highest court, ruled against allowing government appointed marriage commissioners to refuse to marry same-sex couples.

The court considered two proposals -- one to allow those who became marriage commissioners before same-sex marriage existed to refuse to marry gay couples and the other to allow any marriage commissioner to refuse to marry gay couples. Actually the proposals were written more broadly than that -- to permit refusal to conduct any marriage that violated the commissioner's religious beliefs. The court found that both options violate the Canadian Charter's equality principles. The court called the proposals "a retrograde step – a step that would perpetuate disadvantage and involve stereotypes about the worthiness of same-sex unions."

The proposal's proponents argued there would be insignificant harm to gay couples because they could just find someone else to marry them. The court dismissed this assertion, saying instead that "such effects can be expected to be very significant and genuinely offensive. It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different." The court also noted that, given the vast geography of the Saskatchewan, some same-sex couples might have to travel very far to actually find a willing marriage commissioner.

The court did acknowledge that marriage commissioners would have to violate their religious beliefs to perform same-sex marriages. It suggested the possibility that it would not violate the Charter to have all couples place a request for a marriage commissioner at a "single entry point," where a person knowing which commissioners objected to same-sex marriage could direct the couple to someone who would perform their union. Apparently, such a system is currently in effect in Toronto. The idea is that no couple would ever face rejection on the basis of their sexual orientation. The court did not explicitly rule on whether such a system would be acceptable, and that issue may be decided at some point in the future.

The court summed up its position with the following eloquent language:

In our tradition, the apparatus of the state serves everyone equally without
providing better, poorer or different services to one individual compared to
another by making distinctions on the basis of factors like race, religion or
gender. The proud tradition of individual public officeholders is very much
imbued with this notion. Persons who voluntarily choose to assume an office,
like that of marriage commissioner, cannot expect to directly shape the office’s
intersection with the public so as to make it conform with their personal
religious or other beliefs. Any idea of this sort would sit uneasily with the
principle of the rule of law...

Some day we'll find out if our courts believe the same.

New Mexico may be heading for showdown over marriage recognition

New Mexico elected a Republican governor, Susana Martinez, who took office earlier this week. Now the state's Democratic Attorney General, Gary King, has issued an opinion that marriages of same-sex couples performed where legally allowed will likely to considered valid marriages in New Mexico. He cited as support a 20-year-old court ruling that a marriage between an uncle and a niece, valid where performed, was not so against public policy even though such a marriage would be a crime in New Mexico.

A spokesperson for Governor Martinez has already issued a statement that Martinez made it clear during the campaign that she opposes same-sex marriage and that no court has ruled on the issue of recognition of those marriages from elsewhere. And a Republican Senator has already said that he will push for a constitutional amendment barring recognition of same-sex marriages. New Mexico has neither a statute nor a constitutional amendment barring same-sex marriages performed elsewhere. This puts it in a position similar to that of Maryland, whose attorney general issued an opinion reaching the same conclusion last February. But Maryland had -- and has -- a Democratic governor. If Gov. Martinez wants to restrict administrative recognition of same-sex marriages from elsewhere, she may well be able to force couples who seek that recognition into court.

When Bill Richardson was governor, he made strong efforts to get the legislature to pass a comprehensive domestic partnership law. He was unsuccessful.

The heart of the Perry case and why LGBT families should not distance themselves from single mothers

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

There will be no popular vote on marriage equality in DC

The DC Court of Appeals, sitting en banc, ruled this morning in Jackson v. District of Columbia Board of Elections and Ethics that the marriage equality legislation enacted last year by the DC City Council is not a proper subject for the initiative or referendum process. That means there will be no popular vote on marriage equality in DC.

The ruling was 5-4, but the specific subject of same-sex marriage played little role in the dispute between the majority and the dissent. Most of the 81 pages of the Court's majority and dissenting opinions are devoted to the question of whether the DC City Council, in the 1970's, had the authority under our Home Rule Charter to exempt matters that would violate the city's Human Rights Act --all such matters-- from the initiative process. The four dissenters said it did not. What they ruled was not specific to same-sex marriage or even sexual orientation discrimination.

The five-member majority ruled, of course, that the City Council did have that authority. Then it ruled that interpreting whether a proposed initiative would violate the Human Rights Act must consider the Human Rights Act as it exists when the initiative is proposed, not the Human Rights Act in effect in 1978. Under that reasoning, the fact that the DC Court of Appeals ruled in the Dean case in 1995 that the same-sex marriage ban did not violate the Human Rights Act is irrelevant to the current question. The current question is only whether putting the issue of same-sex marriage to a popular vote could authorize discrimination on the basis of sexual orientaton now. Given last year's legislation granting marriage equality, taking that right away from couples on the basis of their sexual orientation would, according to the majority, clearly violate the Human Rights Act now.

We are used to thinking that a court case about same-sex marriage is, well, a court case about same-sex marriage. This one wasn't. It was about an interpretation of the structure of government of the District of Columbia.

Remember, everyone, that Congress can pass any law it wants to about DC. If it wants us to vote on same-sex marriage, all it has to do is pass a law and have it signed by the President. I'm thinking it's a good thing that the pre-election recess is coming up momentarily. I'd hate to hand Republican challengers in Congressional races around the country another anti-gay issue to run on...

Catholic Charities chooses worst option for complying with DC law...and pretends it has no choice

The long wait is over. Catholic Charities of Washington, DC has settled upon its response to the District of Columbia's approval of marriage for same-sex couples. Effective tomorrow, its employees will no longer be able to add a spouse to employee health benefit coverage. Spouses who are currently covered will continue to be covered. Catholic Charities describes its response as "necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith."

So let's be clear. This response was not necessary. Catholic Charities had other options. As I noted previously, Catholic Charities could have taken advantage of a complex federal law that would have removed it from local anti-discrimination laws (that's what Catholic Charities of Portland, Maine did so that it would not have to comply with Portland's mandate to cover same-sex couples). Or it could have allowed employees to cover another adult in their household as Georgetown University has done. So the decision to disadvantage married heterosexuals was a choice. And it's a choice invidiously designed to breed resentment towards the agency's gay employees, perhaps disguising the real benefit to the agency -- lowering costs by providing fewer benefits to employees.

Seems to me it's time for a social service provider other than Catholic Charities to lure away the dedicated staff at that agency, apply for contracts with the city, and provide comprehensive health benefits to all staff. Any current employee planning to marry (or remarry) would have strong incentive to leave Catholic Charities, and anyone looking for a job as a new hire will prefer an employer who provides health benefits to spouses.

Meanwhile, I presume Catholic Charities still allows an employee to cover his or her children. Under DC law, a woman married to or in a domestic partnership with a woman who gives birth to a child is a parent of that child.

I predict we have not heard the last of this issue. Catholic Charities should be ashamed of itself. Apparently it is not. But no one should be dissuaded from pointing a finger at them and screaming "Shame!" by their bogus claim of necessity. It just isn't so.

Perry v. Schwarzenegger -- week one -- the "beyond marriage" perspective

The last time we saw a full-blown trial on the constitutionality of a ban on same-sex marriage it was 1996 in Hawaii. The Hawaii Supreme Court had ruled that the state would need to show a "compelling state interest" in excluding same-sex couples from marriage and that the exclusion was necessary to achieve that interest. At the trial on remand, the state claimed that children do best with their married biological mother and father. After hearing the evidence, including the state's expert witnesses -- all of whom agreed that same-sex couples could be good parents -- the trial court ruled that the state had failed to show that banning same-sex marriage furthered the state's interests in providing for the welfare of children. The opinion is a great read. (The people of Hawaii later passed a constitutional amendment giving the state legislature the right to ban same-sex marriage, which it promptly did. That made the litigation moot.)

Since then, the state courts ruling on the constitutionality of the same-sex marriage ban have reviewed evidence in writing -- affidavits or deposition transcripts from plaintiff couples and from experts.

So the trial that began this week in a San Francisco federal courtroom is unusual, and not only because conservative lawyer Ted Olson is one of the attorneys for the plaintiff couples. The judge is hearing actual testimony, including cross-examination, of individuals and expert witnesses. After the US Supreme Court blocked broadcast of the proceedings (a terrible and unprincipled ruling), even into courtrooms in other jurisdictions, the best way to follow the trial is through one of the numerous blog post summarizing each day's proceedings. My favorites are the one by National Center for Lesbian Rights legal director Shannon Minter and Prop8trialtracker.com. From the mainstream press, I like the one by San Jose Mercury News reporter Howard Mintz.

Early in the trial the judge raised the question I have discussed in an earlier post: could the state eliminate the word "marriage" and call the legal status for all couples something different? (My favorite choice: civil partnership). There's no equal protection violation if the name of the status is the same for both gay and straight couples, so the answer to the question turns on whether there is a constitutional right to the word marriage, something I dispute.

Anyway, I was surprised to see the issue come up immediately in this trial. Judge Walker interrupted Olson's opening statement to ask (among other things) if California could get out of the marriage business altogether and just provide domestic partnership for all couples. He pressed the point through additional questions, even though Olson said the state would never "get out of the marriage business."

Subsequently, according to Prop8trialtracker.com, (scroll down to 3:20 pm update), the judge asked one of the plaintiffs, Sandy Stier,

"If the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy: I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I'd not have to worry about access to it because no one else would either."

Note that this is not the common answer from proponents of marriage equality. Yet it is precisely the glorification of marriage that I find so disturbing about same-sex marriage advocacy. On the same day of testimony, Sandy's partner, Kris Perry, (scroll to 2:46 pm)testified that:

"I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not."

And in what I find the most disturbing portrayal of marriage, plaintiff Jeff Zarrillo said (scroll to 11;34 am):

"We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. It would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family."

Of course this is completely in keeping with the argument that children do best with married parents, but that's an argument with its origin in opposition to same-sex marriage (Just look at the Hawaii litigation, for example.) Back when marriage equality was not a prominent item on the gay rights agenda, LGBT rights advocates opposed that reasoning, arguing that children do just as well with a gay or lesbian parent or with a same-sex couple. Now in furtherance of marriage equality, advocates assert that children with same-sex parents will be better off if those parents are married. Let me tear my hair out now. The tangible benefits of having two parents are not supposed to turn on whether those parents are married. I've written about this at length.

Many folks may think that the goal of marriage equality is important enough to win with any argument, and if glorifying marriage and/or the superiority of married parents does the trick then that's fine. I disagree. Equality is an important legal doctrine, and gay couples deserve it. So as long as marriage exists we should have access to it. But an argument that marriage is superior is fundamentally an argument that hurts the vast number of LGBT people (and striaght ones!) whose families are organized in other ways. It is also a license to discriminate against the unmarried once same-sex couples do win the right to marry. I cannot get behind that.

Same-sex marriage reaches television game show

This past week a category on the long-running game show Jeopardy was about life in Des Moines. One of the "answers" (this is a paraphrase) was something like "Pridefest this year was more festive because of an April 2009 court ruling authorizing this." In the privacy of my tv room, I yelled out "same-sex marriage!" A contestant buzzed in and said "gay marriage." She got credit and continued playing. Unremarkable, perhaps, but surely it says something about the cultural saliency of the issue that it makes its way into American homes as a fact worth knowing.

Or maybe it just strikes me because over 35 years ago (when it was a daytime show) I was a Jeopardy contestant. (I lost).

Catholic Charities of DC President questioned on Kojo Nnamdi

The President and CEO of Catholic Charities of Washington DC, Ed Orzechowski, appeared on the Kojo Nnamdi Show last week. You want to listen to this show. I had the opportunity to call in, but even before taking my question and comments on the air, Kojo pressed his guest on his agency's policies, asking him repeatedly if his agency's policies were already in violation of DC non-discrimination law. Mr. Orzechowski said, among other things, that Catholic Charities places children with gay and lesbian individuals as foster and adoptive parents, but that couples must be married. When Kojo repeated the question as to whether that already puts the agency in violation of existing laws, the guest said that the District was aware of their policies. He did not say that the policy complied with the law.

Right. As I've written about, the District -- like the gay community -- has let the discrimination slide. But if the church is going to rub our nose in it, well, that's uping the ante. And by the way, if anyone reading this is, or knows of, a gay or lesbian individual who has sought approval as a foster or adoptive parent from Catholic Charities in DC, I would love to hear from that person. I'm skeptical. If such approval has ever happened, I wonder if a person living with a partner is excluded, even as an individual, from adopting or fostering a child. (Let's not even go to where it is so clearly better for a child to have two loving, cooperating parents than one...)

To my point that federal law gives private employers the abililty to ignore local anti-discrimination laws when it comes to employee health and pension benefits, Mr. Orzechowski first said that they did not want to stop providing employee benefits altogether. When I pointed out that this was misleading because they can continue to provide heterosexual married couples with benefits, he said, "We want to abide by all the laws." He did not respond at all to my comment that Catholic Charities of Maine continues to provide benefits to heterosexual married couples but not to same-sex couples, in spite of local law, and that this is legal because of federal law. Frankly, the answer that they want to abide by all the laws is laughable. It is the law, federal ERISA law, that gives private employers to the right not to follow local laws. Lots of private employers around the country are allowed to discriminate because of this.

One more thing. When Council Member David Catania appeared on Kojo's Friday show (the Politics Hour), Kojo asked him about whether Catholic Charities was already in violation of DC anti-discrimination law with respect to adoption and foster care. CM Catania said this was unlitigated. That's true because, as I've said, gay men and lesbians are approved by the city and by other agencies and so there has never been a reason to pick a fight with them. Now it's Catholic Charities picking the fight.

By the way, with respect to employee benefits, CM Catania is now arguing what amounts to a page right out of my book...that Catholic Charities can cover on an employee's benefits one other adult household member, and then it is not about marriage at all. He points out, quite rightly, that Georgetown University, also a Catholic institution, does this through covering a person they call a "legally domiciled adult," someone with a "close personal relationship" with the employee. When I discuss this in my book I note a limitation with the Georgetown policy, that it does not extend coverage to the LDA's children. But since DC parentage law now makes the nonbiological mother a parent from the moment of birth, that is less of an issue here.

The Catholic Church's red herring #2

Yesterday I wrote that legislation allowing same-sex marriage will have no impact on the issue of the church's provision of foster care and adoption services, because providing those services is already subject to DC's antidiscrimination laws.

The church makes one other claim: that they will be forced to include same-sex spouses on their employee benefit plans. That, too, is a red herring. The employee benefit that matters the most and costs the most is health insurance, and here is the only fact about health insurance that matters -- no state (or in this case DC) can make any private employer cover anyone, married or not married, same-sex or different-sex. The federal government has complete control of the rules governing the most important employee benefits, including health insurance and pensions. For this reason, the benefits provided by private employers have been off limits to discrimination charges, even in states that allow same-sex couples to marry.

It is true that states and the District can regulate insurance products. Right now every insurance product offered in the District must treat all married couples identically, including DC same-sex couples married elsewhere. I explain this here. But my guess is that the Catholic Church, including Catholic Charities, self-insures. This means that it doesn't buy an insurance product. This is fairly common for large employers. My employer, American University, self-insures.

Bottom line: DC cannot make the Catholic Church provide health and pension benefits to same-sex spouses. Can't now. Won't be able to once those couples can marry in DC.

So when the church makes the threat that it will stop serving the poor in DC if it has to recognize same-sex married couples, it is a baseless bluff. The church is trying to make the City Council and the public think there is a choice between letting same-sex couples marry and keeping Catholic Charities at work in DC. But it's another red herring.