Fed court dismisses lesbian hospital lawsuit

(Miami, Fl.)  The United States District Court for the Southern District of Florida today rejected Lambda Legal’s lawsuit filed against Jackson Memorial Hospital on behalf of Janice Langbehn, the Estate of Lisa Pond and their three adopted children who were kept apart by hospital staff for eight hours as Lisa slipped into a coma and died.

“The court’s decision paints a tragically stark picture of how vulnerable same-sex couples and their families really are during times of crisis,” said Beth Littrell, Staff Attorney in Lambda Legal’s Southern Regional Office based in Atlanta. “We hope that because of Janice’s courage to seek justice for her family in this case that more people better understand the costs of antigay discrimination. This should never happen to anyone.”While on a family cruise leaving from Miami, Lisa Pond, a healthy 39 year-old, suddenly collapsed. She was rushed to Miami’s Jackson Memorial Hospital with her partner Janice and three children following close behind. There, the hospital refused to accept information from Janice about her partner’s medical history. Janice was informed that she was in an antigay city and state, and she could expect to receive no information or acknowledgment as Lisa’s partner or family.

A doctor finally spoke with Janice telling her that there was no chance of recovery. Other than one five minute visit that was arranged by a Catholic priest at Janice’s request to perform last rites, and despite the doctor’s acknowledgement that no medical reason existed to prevent visitation, neither Janice – who provided the hospital with a medical Power of Attorney document — nor their children were allowed to see Lisa until nearly eight hours after their arrival.

Soon after Lisa’s death, Janice tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.

Today’s ruling comes after the Public Health Trust of the Miami Dade County, the governing body of Jackson Memorial Hospital, filed a motion to dismiss the case. The court ruled that the hospital has neither an obligation to allow their patients’ visitors nor any obligation whatsoever to provide their patients’ families, healthcare surrogates, or visitors with access to patients in their trauma unit. The court has given the Langbehn-Pond family until Oct. 16 to review the ruling and consider all legal options.

Beth Littrell, Staff Attorney in Lambda Legal’s Southern Regional Office in Atlanta is lead counsel on the case for Lambda Legal. She is joined by co-counsel Donald J. Hayden of Baker & McKenzie, LLP.

Barack Obama gives a nod to same-sex couples in his Family Day proclamation

September 28, 2009, Los Angeles Times
In an official proclamation this afternoon, President Obama declared today Family Day 2009.

What is significant is the way he defined “family.”

The president gave a nod to the gay community when he praised all families, “whether children are raised by two parents, a single parent, grandparents, a same-sex couple, or a guardian.” (Emphasis ours.)

His shout-out to same-sex couples is sure to draw heat from some social conservatives. Interestingly, it has been met with some hostility from gay rights activists too.

One commenter on gay blogger Pam Spaulding’s website called today’s statement “honeyed words, easy to say.”

“Mr. President,” the commenter asked, “when are you going to actually DO something for same-sex couples and their children? Other than make ceremonial proclamations, that is.”

Obama’s proclamation has fueled an ongoing debate among gay rights activists about whether the president is living up to his promise that he would be a “fierce advocate” for LGBT equality.

Many gay rights activists greeted…

…Obama’s inauguration with optimism. But some complain that he has made no significant efforts to further their cause.

They point out that since taking office, Obama has not moved to repeal the military’s “don’t ask, don’t tell” policy. And his administration has defended the Defense of Marriage Act, which says that states don’t have to recognize same-sex marriages performed in other states and that the federal government does not recognize same-sex marriage.

The president’s support for gay rights, they argue, has not been reflected in policy decisions, but has been purely rhetorical. In April, Obama made a point of inviting gay families to the Easter Egg Roll at the White House. And in June, the president declared it Lesbian, Gay, Bisexual and Transgender Pride Month.

Other bloggers have voiced support for the president’s agenda. They note that in June, Obama ordered federal agencies to “extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees” where possible under current law.

The text of the Family Day proclamation appears below.

— Kate Linthicum

Whatever the composition of your family,  click here for Twitter alerts on each new Ticket item. Or follow us    @latimestot or here on Facebook.

Our family provides one of the strongest influences on our
lives. American families from every walk of life have taught us
time and again that children raised in loving, caring homes have
the ability to reject negative behaviors and reach their highest
potential. Whether children are raised by two parents, a single
parent, grandparents, a same-sex couple, or a guardian, families
encourage us to do our best and enable us to accomplish great
things. Today, our children are confronting issues of drug and
alcohol use with astonishing regularity. On Family Day, we
honor the dedication of parents, commend the achievements of
their children, and celebrate the contributions our Nation’s
families have made to combat substance abuse among young people.
The 21st century presents families with unprecedented
challenges. Millions of women and men are struggling to balance
the demands of their jobs with the needs of their families.
At the same time, our youngest generation faces countless
distractions in their social environment. They are coming
of age in a world where electronic devices have replaced the
playground, televisions have preempted conversation, and
pressure to use drug and alcohol is far too prevalent. Parents
bear significant stress and burdens to protect their children
from harmful influences.
It is our responsibility to talk with adolescents about the
risks of abusing alcohol, tobacco, or prescription and illicit
drugs, and other harmful behaviors. These substances can
destroy the mind, body, and spirit of a child, jeopardizing
their health and limiting their potential. Active parents,
voicing their disapproval of drug use, have proven themselves
to be the most effective preventative method for keeping our
children drug-free. A strong and engaged family can make all
the difference in helping young people make healthy decisions.

By coming together as a family and discussing the events
of the day, parents can foster open communication, share joys
and concerns, and help guide their children toward healthy
decisionmaking. A strong nation is made up of strong families,
and on this Family Day, we rededicate ourselves to ensuring that
every American family has the chance to build a better,
healthier future for themselves and their children.

United States of America, by virtue of the authority vested in
me by the Constitution and the laws of the United States, do
hereby proclaim September 28, 2009, as Family Day. I call upon
the people of the United States to join together in observing
this day with appropriate ceremonies and activities to honor and
strengthen our Nation’s families.
IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-eighth day of September, in the year of our Lord
two thousand nine, and of the Independence of the United States
of America the two hundred and thirty-fourth.

News from Lavender Law — the latest adoption/foster parenting bans

by Nancy Pollikoff – September 11th, 2009

It’s not called Lavender Law anymore, but I can’t help myself. (Sixth Ave will never be Avenue of the Americas to me…). Its official name is the National LGBT Bar Association Career Fair & Conference, but by any name this is the annual gathering of LGBT lawyers, law students, and law profs (and some straight advocates who work on our issues). This year’s conference is taking place in Brooklyn.

Today I attended a session on “The New Adoption and Foster Care Battle: Cohabitation Bans.” Law professor Carlos Ball started off with the history of bans on adoption or foster parenting by lesbians, gay men, or same-sex couples. The first such ban in 1977 (Florida…hopefully on its way out) predated by more than 20 years the first ban on adoption or foster parenting by anyone living with an unmarried partner — gay or straight (Utah…not on its way out).

Kara Suffredini of Family Equality Council then described recent efforts – largely unsuccessful – to legislate such cohabitation bans. In Tennessee in 2008, for example, the state budget office reported that instituting such a ban would cost the state millions of dollars, given the additional children who would remain in state care. That stopped the bill dead in its tracks. Naomi Goldberg of the Williams Institute followed with the economic analysis she and Lee Badgett performed for Kentucky. Based on the census data on the number of same-sex and unmarried different-sex couples with adopted or foster children in the state, and the current number of children in the foster care system (7027), Williams Institute predicted 630 children would not get foster home placements — thereby requiring more expensive and less desirable institutional placements, and 85 children would not be adopted and would therefore remain in state care. The projected cost: $5.3 million. That bill never got out of committee. (The Williams Institute also reports that if Florida drops its ban on gay adoptions, the state will save $3.4 million in its first year). Of course no one can quantify the human cost to the children who remain in group care or never get permanent families.

Finally, Leslie Cooper, ACLU’s litigator extraordinaire, discussed the litigation challenging the initiative enacted in Arkansas last year that also bans anyone living with a gay or straight unmarried partner from adopting or fostering. (And a gay married couple doesn’t count because Arkansas does not recognize them as married.) The state is defending the ban by pointing to the poorer outcomes for children raised by cohabiting different sex couples as compared with married different sex couples. It’s a regurgitation of the right-wing marriage movement’s basic argument that all our social problems result from the decline of life-long heterosexual marriage. The ACLU knows the drill and is well-equipped to respond. The case is currently in the discovery stage.

It’s a matter of some fascination to me that the right wing has decided that it is easier to defend a foster care/adoption ban on cohabiting couples, gay and straight, than a ban limited to gay men and lesbians. Although Florida is defending its gay ban with every discredited argument in the book (for the details, and the meticulous responses by the ACLU, check out this website), the right is capitalizing on the same ideology that gets us federally funded “marriage promotion” when it argues that unmarried couples should not foster or adopt. The panelists agreed that the real target of these bans is…gay men and lesbians; that although proponents no doubt believe that unmarried straight couples should be discouraged from raising children, the ban is primarily a means to the end of banning gay adoption without having to defend such a ban directly.

New DOJ Brief Defending Constitutionality of DOMA in Gill v. OPM

Leonard Link

The U.S. Department of Justice, Civil Division, has filed its motion to dismiss in Gill v. Office of Personnel Management, Case No. 1:09-cv-10309 (JLT) (U.S.Dist.Ct., D. Mass.), the constitutional challenge to Section 3 of the federal Defense of Marriage Act filed in federal court in Boston last winter by Gay & Lesbian Advocates & Defenders (GLAD). The brief that DOJ filed on September 18 in support of the motion seems to come from a different universe from the brief they filed in June seeking dismissal of a DOMA challenge on the West Coast. Indeed, comparing the two is like comparing apples and oranges.

Last spring, DOJ first argued that the Smelt case should be dismissed for lack of standing, because the married couple who filed that case did not allege any specific harm they had suffered due to DOMA. DOJ won the motion to dismiss on that ground. But their brief went on to make the outrageous claim that the case should also be dismissed on the merits because DOMA was not discriminatory, but merely an attempt by Congress to be “neutral” in a contentious national debate over same-sex marriage. DOJ’s brief generated most of the public ire, however, in its response to the challenge to Section 2 of DOMA, relieving states of any obligation to recognize out-of-state same-sex marriages, and that section is not involved in the Gill case in Boston.

This time out, DOJ does make some narrowly-focused standing arguments concerning some of GLAD’s plaintiffs, but they are almost beside the point, because there is no dispute that several of the plaintiffs do have standing to raise a constitutional challenge to DOMA due to their exclusion from federal rights and benefits. All of the plaintiffs are either same-sex couples who married in Massachusetts or the surviving spouses of same-sex partners who they had married there, and in each case they had applied for some federal benefits or sought to exercise some federal rights unsuccessfully because of DOMA. DOJ argues that one of the plaintiffs’ cases must be dismissed because only the federal court of claims based in the District of Columbia has jurisdiction over the particular claim. As to another, they demonstrate convincingly that the particular plaintiff’s federal agency employer, the Postal Service, was not a participant in the particular benefits program about which she was complaining.

But turning to the merits, DOJ’s argument is quite straight-forward. After conceding that the Act discriminates and that the Administration is seeking its repeal, the brief nonetheless defends it as constitutional on minimalist grounds. Pointing out that at the time it was passed, no state authorized same-sex marriage and the enactment was provoked by concerns about a pending same-sex marriage lawsuit in Hawaii, DOJ argues that Congress could have rationally reacted to an unsettled situation regarding this new potential social phenomenon by preserving the status quo until the states had worked out a uniform approach to the issue. Making the argument that Congress could rationally believe it was sensible to have one standard for eligibility for federal rights and benefits throughout the nation, DOJ argues that in Section 3 Congress could have decided to preserve existing eligibility rules by adopting a uniform definition of marriage for the federal government. This way, eligibility for federal benefits would not differ from state to state.

DOJ argues that this proposed rational basis would be sufficient to satisfy the “rational basis” test of judicial review, under which statutes are presumed to be constitutional and the burden is on the challenger to prove that there is no non-discriminatory rationale for the statute. LGBT rights groups have been arguing in the courts that a more demanding level of judicial review should pertain to gay rights cases, due to the history of anti-gay discrimination, which illustrates that gays have frequently been the targets of blatantly discriminatory government policies. In cases involving other groups, the Supreme Court has indicated that such a history might require heightened scrutiny of equal protection claims.

The problem here is that the Supreme Court’s rather opaque opinion in Romer v. Evans, the 1996 ruling overturning Colorado’s anti-gay Amendment 2 which is the only equal protection ruling in favor of gay plaintiffs ever issued by the Supreme Court, has left the impression with lower courts that the “rational basis” test is the appropriate test for evaluating anti-gay legislation. The Romer decision was written against a context of national controversy about the constitutionality of the anti-gay military policy as well as same-sex marriage, and it is likely that the Supreme Court was looking for a way to decide that case without significantly affecting the constitutional status of these other issues, which may help to explain why Justice Anthony M. Kennedy’s opinion for the Court takes the approach that it did. It was possible for the Court to invalidate Amendment 2 by holding that it failed even the least stringent standard of judicial review, the rational basis test, without saying anything about whether some stricter standard of review might be appropriate for cases involving other anti-gay legislation. Arguably, if a discriminatory statute lacks even a rational basis, there is no need to undertake more stringent review and the Court can avoid deciding whether more stringent review might apply. Avoiding deciding constitutional issues that need not be decided is a central tenet of judicial restraint.

This was, of course, not a holding that anti-gay legislation does not merit a higher standard of review, but merely a ruling that Amendment 2 would fall to the lowest standard of review, because the Court saw the amendment as a product of pure animus against gay people, and had previously held in cases on other subjects that pure animus against a particular class of people is never a legitimate basis for discriminatory legislation.

Unfortunately, however, the 1st Circuit Court of Appeals, which would have jurisdiction over any appeal of GLAD’s case from the Massachusetts District Court, issued a ruling last year holding that in light of Romer v. Evans it concluded that the rational basis test was the appropriate standard for evaluating an equal protection challenge to the military “don’t ask, don’t tell” policy. The court’s opinion in that case, Cook v. Gates, is itself somewhat elusive on the point, but seems to take the position that inasmuch as the Supreme Court did not adopt a higher standard of review in Romer and avoided discussing the equal protection issue in Lawrence, the 1st Circuit would follow the lead of other circuit courts in using the rational basis standard.

Thus, District Judge Joseph L. Touro, before whom this case is pending in Boston, is arguably bound by 1st Circuit precedent to use the rational basis test in deciding this motion to dismiss. The argument about national uniformity advanced by DOJ in support of its motion is just the kind of argument that usually wins a rational basis case, given the presumption of constitutionality. It is possible that GLAD can, in its responding brief, find support in the legislative history for the argument that animus played a significant role in the enactment of DOMA, or can persuade the court that Justice Sandra Day O’Connor’s discussion of equal protection in her concurring opinion in Lawrence shows that gay rights cases merit “more searching scrutiny” which requires a trial rather than disposition by motion to dismiss.

Of course, this case was planned to go to the appellate level in any event, so a dismissal by Judge Touro will merely hasten its progress by propelling it to the First Circuit more quickly. Touro could easily conclude that in light of First Circuit precedent, a trial can be avoided for now, and that the place to hold the purely legal argument about whether heightened scrutiny applies is at the court of appeals.

One point about the DOJ brief which is worthy of comment is its extensive textual footnote 10, which disavows any reliance on the argument that DOMA is justified under the reprehensible “responsible procreation and child-rearing” theory, a theory that has been at the heart of the same-sex marriage cases that have been decided adversely over the past few years. “Since the enactment of DOMA,” says the brief, “many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.” The brief also notes in this footnote that “Justice Scalia acknowledged in his dissent [in Lawrence v. Texas] that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because ‘the sterile and the elderly are allowed to marry.’ Thus, the government does not believe that DOMA can be justified by interests in ‘responsible procreation’ or ‘child-rearing.’”

This footnote, which cites half a dozen professional sources for its factual assertions, is clearly the result of meetings that gay rights groups held with Civil Division attorneys after the uproar over last June’s DOMA brief in the Smelt case in California. Indeed, the DOJ reply brief in Smelt, filed shortly before the court granted the DOJ dismissal motion in that case on procedural grounds, already backed away from the worst arguments from the original brief, and disavowed these same arguments.

Is this new DOJ brief so “weak” in defending DOMA that it is giving up the game in hopes that the court will strike it down, saving the administration the effort to get it repealed by Congress? I don’t think so. In fact, in retreating from the more outrageous approach of the earlier brief, this brief actually lands on a facially plausible, non-discriminatory rationale for DOMA.

A handful of states allows same-sex marriage, while almost all of the rest ban it by constitutional amendment or statute, so it is plausible to assert that if Congress desired a national standard for eligibility for benefits, it could have believed that the way to preserve uniformity as of 1996 was to take the then-existing definition of marriage in every state and adopt it as the federal standard. I would argue, given the historical context, that this sudden, rather belated concern with uniformity in administering programs that in many cases were decades old was clearly sparked by a desire to exclude same-sex couples from eligibility just in case same-sex marriages became legal anywhere, and thus it embodied a discriminatory motive, but in rational basis cases it is unusual for the court to look behind the face of the statute at such arguments. (Under Justice O’Connor’s “more searching scrutiny” standard, I think such evidence clearly becomes relevant, but O’Connor’s statement comes from a concurring opinion, not the Court’s opinion, although it is itself a synthesis of prior decisions by the Court in cases involving other groups, so it was “nothing new.”)

Bottom line: I suspect Judge Touro will find it convenient based on the DOJ arguments to dismiss the lawsuit, GLAD will promptly appeal, the issue of appropriate level of review will be joined in the First Circuit, where the Cook v. Gates decision might also be invoked as binding in a three-judge panel but could be open to debate through en banc review. And, of course, ultimately there will be no final judgment in this case until the Supreme Court decides it, and there are too many imponderables about who may be sitting on the high court by then to make any prognostications on the merits now. Justice O’Connor is retired. Will any other member of the Court embrace the idea that at least “more searching scrutiny” than the ordinary rational basis test provides is appropriate in gay rights cases?

Defining family for purposes of family caregiving leave

Sunday, September 20, 2009

Thanks to Nan Hunter for alerting me to the proposed regulations implementing my favorite family leave policy: the one that allows federal government employees to use their sick leave to care for “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” I’ve had numerous posts on this topic. I love the current policy because it allows employees to define their own family members. Whenever advocates for marriage equality cite the unfairness of preventing one partner from caring for another who is ill, I always respond by arguing that the solution to that problem isn’t marriage — it’s an employee leave policy like the federal government’s! Such a policy encompasses same-sex couples but also ensures that unpartnered LGBT individuals, who may be estranged from or live far from their families of origin, can receive care from the people they consider members of their families of choice.

The proposed new regulations make clear that “domestic partners” are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other’s “common welfare and financial obligations,” but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands “in loco parentis” (in other words, functions as a parent).

Most importantly for my analysis, the broad definition of family remains. The regulations read:

“We are not re-defining the phrase ‘‘[a]ny individual related by blood or affinity’’ whose close association with the employee is the equivalent of a family relationship. We have broadly interpreted the phrase in the past to include such relationships as grandparent and grandchild, brother and sister-in-law, fiance´(e), cousin, aunt and uncle, other relatives outside definitions (1)–(4) in current 5 CFR 630.201 and 630.902, and close friend, to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law.”

The late Senator Ted Kennedy was the lead sponsor of the “Healthy Families Act,” proposed legislation that would require private employers to provide paid sick leave to their employees. It includes the same definition of whom a worker must be allowed to use their leave to care for as that contained in the standard for federal employees. There is also a movement to get states to pass such laws. Every paid sick leave bill has a definition of the family members the employees may use their leave to care for. I have long argued for the definition in the Healthy Families Act, and I continue to do so.

States with super-DOMAs (those prohibiting recognition of all unmarried couples as well as same-sex marriages) are probably unable to pass a paid sick leave law that includes “domestic partners.” But such states can definitely use the broader definition of family. That definition does not single out couples for protection; it simply says that employees must be able to use their sick leave to care for the people closest to them whom they consider members of their family. It’s been working for the federal government for 15 years. It respects diverse family relationships. It helps employees balance their work and caregiving responsibilities. And from a LGBT rights perspective it respects all our close relationships, not just those that mirror heterosexual marriage.

I have no problem with changes that specify that same- and different-sex couples are included regardless of marital status. I’m just thrilled they made it crystal clear that the broader definition of family remains. And I’d like to see LGBT rights groups advocate that broader definition in federal and state legislation.

Official: No Ukrainian adoption for Elton John

(Kiev, Ukraine) Elton John will not be able to adopt a 14-month-old Ukrainian child because the pop star is too old and isn’t traditionally married, Ukraine’s minister for family affairs said Monday.

The pop signer toured a hospital for HIV-infected children in eastern Ukraine on Saturday as part of a charity project and said that he and his male partner David Furnish wanted to adopt an HIV-infected boy named Lev.

But the country’s Family, Youth and Sports Minister Yuriy Pavlenko told The Associated Press that adoptive parents must be married and Ukraine does not recognize homosexual unions as marriage.

John and Furnish, his longtime partner, tied the knot in 2005 in one of the first legalized civil unions in the United Kingdom.

Pavlenko also said John was too old. The singer is 62 and Ukrainian law requires a parent to be no more than 45 years older than an adopted child.

“Foreign citizens who are single have no right to adopt children … and the age difference between the adopter and the child cannot be more than 45 years,” Pavlenko said. “The law is the same for everybody: for a president, for a minister, for Elton John.”

John gave Lev a big kiss at the orphanage in Makiyivka.

“I don’t know how we do that, but he has stolen my heart. And he has stolen David’s heart and it would be wonderful if we can have a home,” John said.

Pavlenko said Ukraine was grateful for the singer’s charity work and expressed hope that his desire to adopt Lev would spur the domestic adoption of more children with health problems, which is still rare in Ukraine.

Lawmakers in Uruguay Vote to Allow Gay Couples to Adopt

September 10, 2009, New York Times

MONTEVIDEO, Uruguay (Reuters) — Lawmakers voted Wednesday to extend adoption rights to gay couples in Uruguay, the latest measure to relax laws on homosexuality that has drawn criticism from church leaders in the country, which is predominantly Roman Catholic.

Members of Congress said the law made Uruguay the first Latin American country to permit gay couples to adopt. The measure, which will now go to President Tabaré Vázquez for his signature, will also for the first time allow unmarried couples to adopt.

“This law is a significant step toward recognizing the rights of homosexual couples,” Diego Sempol, a member of the gay rights group, Black Sheep, told Reuters Television earlier this week.

Gay people are allowed to adopt under Uruguayan law, but only as individuals rather than jointly as a couple. Gay marriage remains illegal.

The Parliament in Uruguay, a small South American nation with a secular state structure, passed a law in late 2007 to permit gay couples to have civil unions, which grant similar rights as marriage.

Earlier this year the center-left government also lifted a ban on gay people serving in the armed forces.

Church leaders criticized the new adoption law, and the center-right National Party voted against it.

“The family is the bedrock of society and this measure weakens it,” said Senator Francisco Gallinal of the National Party. “For us, allowing children to be adopted by same-sex couples is conditioning the child’s free will.”

Latin America is home to about half of the world’s Roman Catholics, and government policies in most countries on gay rights and other divisive issues like abortion tend to reflect the church’s conservative stance.

Texas Appeals Court Issues Adverse Ruling on Co-Parent’s Suit Seeking Conservatorship or Adoption

Arthur Leonard Lesbian/Gay Lawnotes – 9.09

The Court of Appeals of Texas in Dallas issued a
ruling Aug. 11 affirming a decision by a trial
court in Dallas County rejecting an attempt by a
lesbian co-parent to be appointed conservator
or to adopt the child born to her former partner
through donor insemination. In the Interest of
M.K.S.-V., A Child, 2009 WL 2437076. The
court rejected the plaintiff’s claim that her extensive
visitation with the child sufficed to create
standing for her to seek to be appointed a
conservator, and found that the birth mother’s
adamant refusal to consent was a bar to adoption.
The parties met in the fall of 1997, began living
together in 1998, and decided to have a
child together. T.S. was inseminated in 2003,
and gave birth to M.K.S. in May 2004. T.S. and
K.V. “co-parented” until their relationship
broke up in August 2005, when T.S. moved out
with M.K.S. However, conceding the importance
ot “continuity” for M.K.S., T.S. agreed to
a liberal visitation schedule for K.V., who continued
to play an active role with the child.
However, T.S. was upset when K.V. accessed
the child’s school records without consulting
T.S., and cut off her visitation, transfering the
child to a different school without consulting
K.V. K.V. then filed suit, seeking to be appointed
conservator or to adopt the child in a
second-parent adoption proceeding.
T.S. challenged K.V.’s standing to be appointed
a conservator, and refused to consent to
the adoption. K.V. was relying on statutory provisions
that allowed an unrelated adult who had
a substantial parental relationship to seek appointment
as a conservator, but the court found
that the arrangement she had with T.S. did not
qualify under Texas precedents to confer that
status in this case. Furthermore, the court found
that T.S.’s refusal to consent was an absolute
bar to adoption by K.V. K.V. also made estoppel
arguments, contending that she had an agreement
with T.S. concerning continued contact
with the child, but the court was unwilling to
enforce the agreement, either through a breach
of contract or estoppel theory.
K.V. is represented by Michelle May O’Neil,
and T.S. by Paul Brumley. A.S.L.
Tax Court Rejects Joint Filing Status for Same-Sex
The United States Tax Court ruled on July 13
that millionaire gay activist Charles Merrill
could not benefit from joint tax filing status for
the tax years 2004 and 2005 because he was
not married to his long-term same-sex partner,
Kevin Boyle, during those tax years. Merrill v.
Commissioner of Internal Revenue, T.C. Memo.
2009–166, 2009 WL 2015106.
According to the opinion for the court by
Judge Diane L. Kroupa, Merrill had previously
been married to Johnson & Johnson heiress
Evangeline Johnson Merrill, then began a relationship
with Boyle after Evangeline’s death.
Merrill and Boyle have been partners for more
than 18 years, and married in California in
Merrill never filed tax returns for 2004 and
2005. When the IRS contacted him about the
missing returns, he responded that he had not
filed as a protest because he should be able to
file jointly with his partner but it was not allowed
by the IRS. The tax agency prepared
forms based on whatever information it had
about Merrill’s finances and assessed him deficiencies
for the years in question. Merrill took
the issue to the Tax Court, claiming that in light
of his long-term relationship with Boyle, the denial
of joint filing status discriminates against
same-sex couples in violation of the constitution.
The Tax Court generally does not pass on
constitutional questions. In this case, Judge
Kroupa pointed out, the Code provides that in
order to benefit from joint filing status, one
must at least file a return claiming such status,
which Merrill had never done, thus his appeal
must be dismissed. “We need not address his
constitutional claims,” she wrote, but then
dropped a footnote citing half a dozen prior rulings
rejecting constitutional claims brought to
challenge the filing status provisions. Of
course, a perfectly plausible argument could be
made that it is inequitable to treat long-term
same-sex couples differently from married couples
under tax law, but turning that into a legal
claim is tricky since the two don’t have the same
legal status. However, now that Merrill and
Boyle are married, one suspects that they could
raise a constitutional claim against any refusal
to accept a joint return for their 2008 taxes,
should they attempt to file one. A.S.L.

Oregon Appellate Court Adopts Progressive Interpretation of Donor Insemination Statute in Custody Dispute Between Lesbian Former Partners

Arthur Leonard Lesbian/Gay LawNotes 9.09

A lesbian who had separated from her partner
challenged the constitutionality of two Oregon
statutes: one that creates a presumption that a
husband is the father of a child born to his wife,
so long as the spouses are not separated; and
another that gives a husband parental rights
over a child born as a result of his wife’s artificial
insemination, so long at the husband consented
to the insemination. An Oregon appellate
court deemed the former statute
constitutional and inapplicable to lesbian couples,
but held the latter statute unconstitutional
unless it extends to give parental rights to a
same-sex domestic partner of an artificially inseminated
woman. Thus, the statute was upheld,
but judicially amended to apply under
circumstances such as those presented here.
Shineovich and Kemp, 230 Or. App. 670, 2009
WL 2032113 (Or. App. July 15, 2009).
The appeal by the woman cut off from her
partner’s children was argued by Mark Johnson
of Johnson and Lechman-Su of Portland, Oregon,
with amicus briefs from the American Civil
Liberties Union, ACLU Foundation of Oregon,
Inc., and Basic Rights Oregon. Murphy
McGrew of Lake Oswego, Oregon, represented
the birth mother.
Sondra Lee Shineovich and Sarah Elizabeth
Kemp had a 10–year relationship during which
Kemp was artificially inseminated and bore two
children. Shineovich alleges that she consented
to the insemination. Around the time of
the birth of their first child, the couple was married
in Multnomah County, but the marriage
was later declared void when the courts determined
that the county did not have authority to
issue marriage licenses to same-sex couples.
After the couple’s separation, Shineovich
sued for a declaration of parental rights. The
lower court dismissed her suit for failure to state
a claim, and only cursorily discussed the constitutionality
of the statutes. Shineovich appealed,
contending that laws that extend parental
rights to husbands must be read to extend
such rights to same-sex partners of women who
give birth during their partnership.
One statute challenged by Shineovich, Or.
Rev. Stat. Section 109.070(1), created a presumption
that a husband was the parent of his
wife’s child, but only if he was not impotent or
sterile at the time of the conception. (The provision
regarding impotency or sterility was removed
from the statute in 2007, after the events
precipitating this action.) The court held that
because this statute relates only to biological
paternity, and specifically applies only to people
capable of fertilizing a woman’s egg, it could
not, even if it were phrased in gender-neutral
terminology, grant parental rights to a woman; it
is not possible for a woman to fertilize the egg of
another woman. Thus, the lesbian partner of a
birth mother is in the same position, under this
statute, as an impotent or sterile man. Since the
presumption equally excludes any man or
woman incapable of fertilizing an egg, the statute
is not unconstitutionally discriminatory, according
to the court.
The second statute challenged by Shineovich
is quite different. Under Or. Rev. Stat.
Section 109.243, the relationship, rights and
obligation between a child born as a result of artificial
insemination and the mother’s husband
is viewed as the same as if the child had been
naturally and legitimately conceived by the
mother and the mother’s husband, so long as
the husband consented to the performance of
artificial insemination. Thus, the statute gives a
status to “husbands” that is not available to
other similarly situated persons. Under Oregon
law, therefore, a woman partnered with another
woman cannot be a “husband,” or any other
type of spouse, thus, the statute privileges men
and discriminates against women. Further, homosexuals
are a suspect class under Oregon jurisprudence,
and laws that disfavor a suspect
class are only justifiable if there is a genuine
difference between that class and other persons
granted some sort of privilege or immunity.
Thus, the court found the latter statute to contravene
the equal protection clause of Oregon’s
The appeals court also considered the section
of the Oregon Constitution that prohibits
legal recognition of same-sex marriage . Unlike
such provisions in other states’ constitutions,
Oregon’s constitution does not prevent
marital-type benefits from being extended to
same-sex partners. (The court compared the
provisions in Georgia, Ohio, and Utah.) Definitions
of marriage from both legal and non-legal
sources do not indicate that “marriage,” in and
of itself, encompasses any particular benefits.
Thus, it is not unconstitutional under the marriage
amendment to extend statutory privileges
to same-sex partners on the basis of unequal
treatment of women or homosexuals. Such an
extension does not impinge on prerogatives integral
to the concept of “marriage.”
Under the rules of statutory interpretation
recognized in Oregon, if a statute is defective
because of under-inclusion, there exist two remedial
alternatives: a court may either (1) declare
the statute a nullity and order that its
benefits not extend to the class that the legislature
intended to benefit, or (2) extend the coverage
of the statute to include those who are aggrieved
by exclusion. In order to decide which
path to choose, the court sought to determine
which course would further the legislative objective.
The objective of the statute was, according
to the court, to protect children conceived
by artificial insemination from being
denied the right to support by the mother’s husband
or to inherit from the husband. Invalidating
the statute would undermine that purpose,
and might nullify the legal parent-child relationship
of any such child and the mother’s
“On the other hand,” said the court, “extending
the statute’s coverage to include the children
of mothers in same-sex relationships advances
the legislative objective by providing
the same protection for a greater number of
children.” Thus, “the appropriate remedy is to
extend the statute so that it applies when the
same-sex partner of the biological mother consented
to the artificial insemination.”
Under the first statute, the appellate court ordered
the trial court to enter a judgment declaring
that Shineovich is not the legal parent of
Kemp’s children, because she is not biologically
capable of being the genetic parent of
Kemp’s children.
Under the second statute, however, the trial
court, on remand, must treat Shineovich the
same as it would treat a mother’s husband.
Note, however, that the latter statute includes
an element of consent. Thus,Kemp alleged that
Shineovich could not prove that she “con-
Lesbian/Gay Law Notes September 2009 157
sented” to the artificial insemination because
no writing evidenced such consent. The court
held that writing is not essential to show consent,
and the lack of a writing does not foreclose
a claim. On the other hand, on remand, Shineovich
must prove that she in fact consented to
the insemination. Whether she consented is a
factual issue appropriate for determination by
the trier of fact. (Note: The appeals court also rejected
an attempt to dismiss this suit on jurisdictional
grounds, namely, that the petitioner must
name the state as a party whenever a state statute’s
constitutionality is challenged in an action
for declaratory relief.) Alan J. Jacob

Gay adoption ruling may boost economy

By Jason Lawrence

Staff Editor – The Famuan

Published: Thursday, September 3, 2009

Updated: Thursday, September 3, 2009

Lesbian, gay, bisexual and transsexual rights have been swept under the rug by lawmakers since the infamous Gay Rights Movement began in the summer of 1969.  Now, here we are 40 years later and not much has changed, especially in Florida.

Not much attention has been paid to those who identify as same gender loving. A 1997 Legislative Session voted largely to uphold the Defense of Marriage Act. In the 2008 election a measure calling for same sex marriage to be legalized was placed on the ballot in the form of Amendment 2. Voters defeated the amendment by 62 percent.

Just weeks after the election a Miami judge ruled Florida’s ban on gay adoption unconstitutional saying that the states’ ban on adoption was “not in the best interest of the children.”

The state however, is not completely at fault for the lack of attention paid to the issue by politicians and voters. Gay rights activists haven’t been as vocal as you would think in pursuing those basic rights denied to those they represent.

Speaking of representatives, what about the lawmakers who serve some 1.5 million Florida residents who identify as LGBT (lesbian, gay, bisexual, transsexual)? It’s probably safe to say that they haven’t examined the benefits of a gay friendly Florida.

According to a report by the University of Florida, the state reportedly saw its first decline in residents for the first time in 46 years after the housing bubble reached its limit in 2008. Maybe lifting bans on same sex marriage and allowing LGBT persons to adopt would make way for Florida to find a new vice outside its endless sunshine, tourism and low taxes.

Jason Lawrence for the Editorial Board.