Politicians refuse to act after churches win right to discriminate against gay foster parents

The Australian – December 27, 2010

BOTH the NSW government and opposition have ruled out any changes to the state’s anti-discrimination laws in the wake of a ruling that charities could bar gay couples as foster carers on religious grounds. In a decision that will open the way for other religious charities to refuse gay couples access to their services, the NSW Administrative Decisions Tribunal ruled that Wesley Mission’s foster care arm, Wesley Dalmar Services, had proved an exemption under the NSW Anti-Discrimination Act allowing it to discriminate against homosexual couples, reported The Australian. Wesley Mission, part of the Uniting Church assembly, argued that providing foster care services to gay couples would put at risk its financial and volunteer assistance from members of the mission who adhered to the doctrine that a monogamous heterosexual partnership was “the norm and ideal of the family”.

The decision overturned a ruling that ordered Wesley Mission to take steps to eliminate unlawful discrimination after refusing services to a gay couple.

NSW’s Anti-Discrimination Act – along with similar acts in most states – provides a series of exemptions for religious bodies. The exemptions apply specifically to the ordination and training of priests and ministers.

However, an extremely broad, non-specific exemption also applies to “any act or practice” of a religious body that conforms to that body’s doctrines.

The Administrative Decisions Tribunal described the ability of a religious group to prove an exemption to the act as “singularly undemanding” and noted that “this may be a matter which calls for the attention of parliament”.

However, a spokesman for NSW Attorney-General John Hatzistergos said yesterday that the legislation struck the right balance between protection from discrimination and the right to religious freedom.

“It is not envisaged that there will be changes to the current exemptions in relation to religious institutions,” the spokesman said.

NSW Opposition Leader Barry O’Farrell also ruled out yesterday any move to push for legislative change on the issue if the Liberals win government next March.

Religious exemptions to anti-discrimination laws are also being tested in Victoria in an appeal before the Victorian Civil and Administrative Tribunal, which must decide whether it was lawful for the Christian Brethren to refuse to allow a gay youth suicide prevention group accommodation at the Christian Youth Camps’ Phillip Island Adventure Resort.

NSW passed laws earlier this year that allowed gay couples to legally adopt children, but allowed church adoption agencies the right to refuse to provide services to gay couples without breaching anti-discrimination laws.

Second-parent adoption no longer available in North Carolina, but nonbio mom can obtain custody; all previously granted adoptions void

Post by Nancy Polikoff – Beyond Gay and Straight Marriage – December 21, 2010

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month). The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina’s adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child’s mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state’s adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them. This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son. The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state’s children, who now lose the economic and emotional security of having two legally recognizaed parents. The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a “best interests of the child” standard because Jarrell acted “inconsistently with her paramount parental status.” Here is the court’s reasoning:

The record…indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act–and acted–as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support. These are cruel results.

I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman — a task she did not accomplish — and to do so she made an argument with enormous cost to North Carolina’s children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorent and unforgiveable. The law couldn’t stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am. There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did someone needs to try to stop it. It’s bad for the individual child and for gay and lesbian families in general.

Gay Teens Face Harsher Punishments

December 6, 2010

By TARA PARKER-POPE  – New York Times –

Gay teens in the United States are far more likely to be harshly punished by schools and courts than their straight peers, according to a new study published in the medical journal Pediatrics. The findings, based on a national sample of more than 15,000 middle and high school students, come at a time of heightened attention to the plight of gay teens. While several high-profile bullying and suicide cases around the country have revealed the harassment of gay teens by their peers, the new data suggests gay teens also suffer a hidden bias when judged by school and legal authorities. “Gay, lesbian and bisexual kids are being punished by police, courts and by school officials, and it’s not because they’re misbehaving more,’’ said Kathyrn Himmelstein, the study’s lead author, who initiated the research while an undergraduate student at Yale University. Ms. Himmelstein, now a high school math teacher in New York City, began the research after spending time working in the juvenile justice system during a leave of absence from college. She noticed a disproportionate number of gay and lesbian teens in juvenile court. After co-workers confirmed the trend, Ms. Himmelstein searched the scientific literature but didn’t find any studies evaluating whether gay teens were more likely to be involved in criminal activity or more severely punished. As a result, she began conducting her own study for her senior thesis at Yale University. She used data collected from the National Longitudinal Study of Adolescent Health, which followed middle and high school students for seven years beginning in 1994. The study is a broad overview of adolescent health but contained information on teen sexuality and both minor and serious misconduct. The study asked teens about nonviolent misdeeds like alcohol use, lying to parents, shoplifting and vandalism, as well as more serious crimes like using a weapon, burglary or selling drugs. Notably, teens who identified themselves as lesbian or gay or who experienced feelings of same-sex attraction were less likely to engage in violence than their peers. However, they were far more likely to be expelled from school, stopped by police, arrested or convicted of a crime. Girls who labeled themselves as lesbian or bisexual appeared to be at highest risk for punishment, experiencing 50 more police stops and about twice the risk of arrest and conviction as other girls who reported similar levels of misconduct. The study wasn’t designed to determine the reasons that behavior by gay and lesbian teens is more likely to be punished or criminalized. However, the authors speculated that the more severe punishments meted out to gay teens may reflect a bias by school and court officials. It may be that gay teens encounter homophobia in educational and child welfare systems and are less likely to receive support services than their straight peers. Or educators and court officials may be less likely to consider mitigating factors, like self defense against bullying, when dispensing punishment against a gay teen. Ms. Himmelstein said that instead of protecting gay teens from bullying and abuse by their peers, authority figures may actually be contributing to their victimization. “Our data show that lesbian, gay and bisexual youth are being excessively punished, but the data don’t say why,’’ says Ms. Himmelstein. “We weren’t able to figure out the circumstances of the punishment, but that’s something that should be investigated more in light of recent events involving bullying and harassment of gay teens by peers.’’