This will be the last of the posts on legal status of same sex parents. It’s a mostly depressing topic, but a complex one, which is why I couldn’t do it in one post.
Previously I talked about the first USAmerican legal tool that granted equal rights to both parents: second parent adoption. This post discusses some newer tools: civil union, domestic partnership, and the Massachusetts version of same sex marriage.
Vermont was one of the early states to be a battleground in the fight for marriage equality. The Vermont Supreme Court ruled in 1999 that the Vermont Constitution forbids denying the rights of marriage to same sex couples. Since it did not expressly forbid Vermont from issuing marriage licenses to same-sex couples, Vermont had the opportunity to meet the requirements of the Supreme Court decree without “debasing” marriage by letting queers into their restricted club. The legislature took that opportunity and passed a law creating a new form of partnership called “civil union” which went into effect in 2000. It is only for same sex couples and grants all the rights that the state gives to married couples, including equal parental rights for those couples who have children while in a civil union. Anyone can go to Vermont and have a civil union ceremony and get a certificate – you don’t need to be a resident. In order to dissolve a civil union, though, you need to be resident in Vermont for a period of 6 months. Connecticut recently passed a similar law.
What’s wrong with civil union?
- It only grants state-related rights of marriage, and most rights (including those that apply to parenting) are at the federal level. There’s a federal law, the ironically named “Defense of Marriage Act” (DOMA), that exists expressly to deny any of the federally granted rights of marriage to us. Bill Clinton signed it into law and the GAO investigated what all those rights are, so that the government could be sure to deny them to queer folk. There were over 1000 rights in the original DOMA GAO report and it’s regularly updated. Couples who have civil unions can’t file joint tax returns at the federal level, can’t receive a variety of federal benefits designed for parents. It’s unclear whether or not some parental benefits would be denied, like Social Security survivor’s benefits, because no one who has done civil union has had need of them yet.
- It’s only available in Vermont (and now in Connecticut). Couples can travel to Vermont and have a civil union, but they will get none of the rights associated with it when they are back home.
- Many states have passed marriage discrimination laws and some have even enshrined them as amendments to the state constitution, expressly to prevent any rights being given to couples who have a civil union or other arrangement.
- It’s not durable. It allows for the best interest of the child to be ignored in the case of acrimonious divorce, because the generally illegal practice of “forum shopping” is permitted when it’s used to discriminate against same-sex couples.
A current case illustrates the last point. There is a former lesbian couple who had a Vermont civil union and had a child: Janet and Lisa Miller-Jenkins. Their daughter, Isabella Miller-Jenkins, has been the subject of a custody battle since their breakup in September of 2003. Lisa Miller-Jenkins, the birth mother, challenged the Vermont Family Court decision that (as she had requested) given her custody and her ex-partner visitation and required her to pay child support. Lisa Miller-Jenkins, now living with the child in Virginia, says that she is no longer a lesbian and her ex-partner is no longer a parent, and Virginia courts have thus far agreed with her, while the Vermont Supreme Court has disagreed. The Virginia proceeding came after the Vermont decision and would clearly be illegal under both federal and Virginia law if they were a heterosexual couple. The Virginia court that heard the case found that the “Affirmation of Marriage Act” – Virginia’s law to prevent rights for same-sex couples – overrides federal and state laws against forum shopping.
The Miller-Jenkins case had a recent victory for Janet Miller-Jenkins, in Vermont, where that state’s Supreme Court upheld the Family Court ruling. It seems likely that this will end up in the U.S. Supreme Court. I think it’s unlikely that the current court, with two new Bush appointees, will strike down DOMA. There’s a good summary of the Miller-Jenkins case here although it doesn’t have the latest developments, which you can find here. Meanwhile as this goes on, Janet Miller-Jenkins and her daughter haven’t seen each other for over two years. The child, who is four years old, is in the sole custody of the parent who denies the other ever was a parent.
California has a Domestic Partners Registry that is intended to grant some of the rights of marriage. According to the state government website “Under current law, registration can protect your rights in times of family crisis, protect your children, and give you access to family benefits at work.” All of the weaknesses of civil union apply to California domestic partnerships. In addition, this vehicle is only available to residents of California and has the further weakness of not having been tested yet in court. Therefore, many couples in California are being advised to go ahead with second parent adoptions, even if they already have domestic partnership. Second parent adoption is an imperfect tool, but it’s the best and most tried and true one we have.
Massachusetts became the first state to issue marriage licenses to same sex couples in May of 2004. All of the problems of civil union apply to Massachusetts marriage, as it is not recognized federally or by states with laws and constitutional amendments intended to promote marriage inequality. In addition, Massachusetts has its own marriage discrimination statute, which has not been used since Loving v. Virginia, but the current Republican governor trotted out to fight marriage equality. That law, intended to support laws in other states that banned inter-racial marriage, prohibits issuing of marriage licenses in Massachusetts to out-of-state couples who could not get legally married in their home state. Some cities and towns in Massachusetts are defying the ban and giving licenses to out-of-towners, but many are not. So, Massachusetts marriage has the advantage of being called “marriage” but is actually less accessible than Vermont Civil Union.
So, the legal picture for same sex parental rights is pretty bleak at the moment. What’s the answer? I have a few suggestions:
- Couples need to know how limited their rights are and plan accordingly. They should put together whatever set of documentation is available to them to grant as close to equal rights as possible. They need to recognize that the social safety net does not apply to their families, and provide for catastrophic events like the death of a parent without counting on any government assistance.
- Couples should make absolutely clear their intention to jointly parent, even if no legal tools are available to support them. A consistent paper trail that says that you are a family no matter what the law says will help you in the long run, because it establishes your social and moral obligation to each other and your children, even in the absence of legal obligation. Such a paper trail may keep parents from reneging on their obligations in the event of a contentious divorce, by reminding them of the importance of their agreement. Some suggested stops along the paper trail (not all will be available or applicable to all couples): Birth announcements sent to family and friends, identifying you both as parents; birth announcements in work newsletters, religious organization newsletters, newspapers, giving both parents’ names; religious ceremonies welcoming the child to the family, with related certificates; baby showers that include both parents; co-parenting contracts that aren’t legally enforceable but state intentions clearly; giving children both last names or, if choosing to give only one name, using the non-legal parent’s name; putting both parents’ names on all doctors’ forms, school forms etc.; letters unambiguously telling all extended family that you are both equal parents, with copies retained.
- Stay out of court if you do break up. The courts are not friendly to our families and the commitments made are often not upheld. Mediation and – if it fails – binding arbitration are alternatives to deciding custody, visitation and financial issues in court.
- Speak up if someone is abrogating a parenting agreement during a break up. People don’t want to get involved and I understand that, but it’s really enabling the bio mother who pulls rank when the women who were at her baby shower and baby naming and so forth don’t say, “She may not be your partner anymore, but she’s still the other mother.” A lot of why people pull rank in that way is that it has been done without social repercussions so many times that they don’t perceive risk in doing it. I think we need a community ethic that says this behavior is unacceptable, and we need to enforce it ourselves. It won’t help with cases like Lisa Miller-Jenkins, who has “left the homosexual lifestyle” and turned her back on all her friends and community, but it will stop a whole lot of people who are just frustrated with dealing with ex-partners who are driving them crazy sometimes (if they didn’t ever drive each other crazy they probably would have stayed together) and looking at what seems to be the easy solution. We can make it the socially difficult solution, even if the legal structures aren’t there to stop it.
Ultimately, I think only marriage will solve this, at least in this country. And by that I mean real marriage, the kind available to heterosexuals in all 50 states and all the territories, not the Massachusetts style version. It won’t happen quickly, and as long as the Republicans are in power, it may never happen. But I do believe in the fundamental fairness of the American people and do think it will happen eventually. The Republicans have cast this fight as one defending marriage, and even Democratic POTUS Bill Clinton signed onto that characterization when he signed DOMA into law. Yet I think as heterosexuals get to know lesbians and gay men they'll see that our marriages don't threaten theirs. It's no coincidence that in every poll on gay rights the greatest correllate for a positive answer on whether we should have equal rights in all areas is a "yes" answer to the question "Do you know any homosexuals personally?" It's no coincidence that the very right wing Dick Cheney who is with his party on all the socially conservative issues except those denying same-sex couples rights has a lesbian daughter. Everyone knows homosexuals - we really are everywhere. But not everyone knows out lesbians and gay men, so not everyone knows that their neighbors, teachers, cow-orkers, sisters, brothers, parents, and children are gay.
Well, I've been out for over 20 years, in every venue pretty much. But I found the first time that I was pregnant (in 1988) that you're never out like you are when you have kids. People at work who'd never said three personal words to me started asking about my pregnancy and parenting plans, including mistaken questions about my "husband." People who thought they'd never met a lesbian or gay man before found out they were working with a lesbian or the neighbor of a lesbian couple or sitting next to a lesbian on the bus. Sometimes they were flustered, sometimes they were embarrassed, sometimes they didn't know what to say or whether to ask questions. I always reassured them saying, "I may be the first lesbian mother you're meeting, but I won't be the last. I'd be glad to explain anything to you that you don't understand." I'm still explaining about lesbian family, and now the kids are old enough to explain, too.
Not all lesbian and gay parents are out by the time they have kids, and some try to maintain a level of closeted existence at least in some venues, even after the children are born. But it's very hard to hide the existence of a family, and as kids get older they need to talk about their families, too. In general, I think those who choose to bring children into gay or lesbian families are more out than your average same-sex couple, and all same-sex parents tend to become more out over time, even those who start out very closeted. I have hopes that even Jodie Foster will publicly acknowledge her kids have two mothers at some point!
I think that the more of us who have kids and are out as families, the more heterosexuals will get to know us in schools and community centers and playgrounds. And the more they will eventually realize that it’s fundamentally unfair to our children not to have the rights that their children take for granted. I do think that justice will prevail. I’m even optimistic enough to think it will happen in my life time.
Next up: Choosing a School That's Supportive of Gay Families