Massachusetts same-sex weddings inspire pioneering author’s new picture book

by Dana Rudolph
contributing writer
Monday May 9, 2011

More than 20 years after she wrote Heather Has Two Mommies, the first picture book for and about children with lesbian parents, Lesléa Newman is still turning out must-reads for lesbian families. Her latest work, Donovan’s Big Day, is a delightful story about a boy preparing for the wedding of his two moms.

Newman, who has over 60 books for children, young adults, and adults to her name, along with numerous literary awards, said she wrote Donovan to be “pure, joyful celebration,” a “gift that I wanted to give our community.”

She got the idea for Donovan in the shower, where she was reflecting that many books featuring gay parents also centered around some kind of “issue.” As an example, she points to Heather itself, which focused on a girl trying to understand why she doesn’t have a dad.

She left “issues” out of Donovan entirely. The young boy has only the problems any child might face while attending a wedding of any sort. He has to dress up, keep clean, and not fidget. Most of all, he has to make sure to hand his moms their rings at the proper moment.

There is just enough light tension to keep young readers engaged as Donovan goes through each step of his preparations. Illustrator Mike Dutton’s dynamic gouache drawings capture Donovan’s earnest spirit with gentle humor.

In creating the character, Newman said, “I just tried to remember what it was like to be a child and to see the day from the child’s perspective.”

The book is also a celebration of wider family. Donovan stays with his grandparents the night before the wedding. His aunt and uncle drive him to the ceremony, and he shares the back seat with his cousins. Upon arrival, there are more relatives and friends to kiss and compliment him.

Newman found inspiration for Donovan from watching same-sex couples in her home town of Northampton, Massachusetts, go to City Hall for marriage licenses on May 17, 2004, the first day they legally could. “There were many, many children present that day — children of those couples, children as bystanders…participating in all the joy,” she recalled.

And at a more recent wedding she attended, the two women ended up holding their fidgety children while saying their vows. “I thought that was such an amazing, beautiful moment,” Newman said, “that I wanted to capture that spirit of love and joy in the book.”

Newman acknowledges that not everyone will welcome another children’s book about two moms. Heather has been one of the books library patrons most frequently ask to be removed or reshelved, according to the American Library Association.

“It’s just so puzzling to me that a book about love could be seen as threatening or something that should be challenged,” Newman said, but adds that librarians “have been absolutely wonderful” in supporting her and following proper procedures when someone complains.

Some things have gotten better over the years, however. She explained that when she and a friend published Heather on their own in 1989, “It was a very grassroots project. We raised money, mostly in $10 donations.” When she went on to write other children’s books, editors chose not to put “Author of Heather Has Two Mommies” on the book jackets, Newman said, “even though that’s what I’m known for.”

Now, Donovan’s publisher, Tricycle Press, a division of mega-publisher Random House, has her authorship of Heather clearly on the cover. “That, to me, is a very interesting way to look at how far we’ve come,” Newman says. “Something that at one point had to be hidden now is out there and celebrated.”

She believes that many publishers are, however, still cautious about picture books that show same-sex parents. They may have financial concerns and feel that only families with two moms or two dads would be interested in buying the book, or they might think “the gay thing” will “alienate” readers, she speculated.

She would like to see more books like the recent Monday Is One Day, by Arthur Levine, “where there are all kinds of families, including families that have two moms, two dads, one mom, one dad, a mom and a dad, interracial couples, and interfaith couples,” she said. “The world is so wonderfully diverse. I really would love children’s literature to reflect that on a more grand scheme.”

Her own upcoming works show her range as a writer. Her picture book A Sweet Passover (Abrams, 2012), is about a girl who is tired of eating matzo during the holiday. And for young adults, her book October Mourning: A Song for Matthew Shepard (Candlewick Press, 2012), will tell “the story of his murder and its aftermath in a cycle of 68 poems.”

As for books that feature LGBT families, she says parents have told her they’d like to see “books that are not ’issue’ books as much as just books about a family having an adventure or doing something interesting. If the kid has two moms or two dads, that’s not the focus of the story.”

And although Donovan may, like Heather, face challenges in libraries and schools, she said that for lesbian parents, “a book is the least of it. What they want is for their child to feel safe in that school and for that child to be able to be open about who his or her family is.” But, she added, “Perhaps a book like this can help that happen.”

Dana Rudolph is the founder and publisher of Mombian, a blog and resource directory for LGBT parents. She can be reached at drudolph@mombian.com.

in Parenting  by Anthony Brown 0 comments

GOP continues attacks on partner benefits for state employees

Michigan Messenger – By Todd A. Heywood | 05.11.11

After the state legislature failed to override the Michigan Civil Service Commission decision to offer insurance benefits to unmarried partners of state employees, Republicans are trying a different tack. Michigan Attorney General Bill Schuette has filed a lawsuit to void that decision.

The key issue here is whether the state’s anti-gay marriage amendment, passed in 2004, forbids such benefits from being offered. That amendment says:

“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”

It’s the “or similar union” phrase that is at issue here. Does a provision that extends insurance benefits to unmarried partners and their dependents constitute the recognition of a “similar union” to marriage? The state supreme court ruled in 2008 that offering benefits specifically to the partners of gay employees does violate this provision, but the policy being challenged here is not specific to same-sex partners. The courts have yet to rule on this broader kind of policy.

A press release on the Attorney General’s website says the AG will argue two points about the January decision of the Michigan Civil Service Commission:

1) The decision exceeds the Constitutional authority granted to the Commission. The Michigan Constitution grants authority for the Commission to establish compensation rates for State employees. It does not empower the Commission to compensate or otherwise provide benefits to non-family members or non-employees.

2) The decision violates the Equal Protection Clause of the Michigan Constitution. By arbitrarily granting state health plan eligibility exclusively to “non-family” adults and their dependents, the Commission has violated the equal protection rights of actual family members and their dependents not eligible under the plan. If an unmarried state employee lives with a sibling or a cousin, for example, that relative is not eligible for health benefits, yet such benefits are available to any non-family member.

Both Senate Majority Leader Randy Richardville (R-Monroe) and Speaker of the House Jase Bolger (R-Marshall) were quoted in the press release supporting Schuette’s lawsuit.

Denise Brogan-Kator, interim executive director of Equality Michigan, says the law suit is “ridiculous.”

“First, he talks about what he thinks is the Michigan Civil Service Commission’s unconstitutional order,” Brogan-Kator said. “That is not true, in my opinion, I think it certainly meets the letter and the intent of the law and the supreme court decision.”

On top of that, Brogan-Kator took Schuette to task on the cost estimates of the proposal, which would take effect Oct. 1. The governor’s office has said the benefit plan could cost the state as much as $6 million a year.

“He continues to throw around this projected cost that some one literally made up and there is no support for,” she said. “It is purely a scare tactic.”

She also found some irony in the fact that had a citizen sued over the decision, the Attorney General would have to defend the decision.

“How much is this going to cost us?” she asked.

Brogan-Kator is not alone in her criticisms of the lawsuit. Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Michigan, was also critical.

“We believe that the lawsuit brought by the Attorney General, not only is misguided but it completely mischaracterizes the action that was taken by the Michigan Civil Service Commission,” Kaplan said. “This particular contractual provision had been put on hold for more than 6 years, with the passage of Michigan’s Constitutional amendment denying same-sex couples the right to marry. In addition to recognizing what had been collectively bargained for, the action taken by the Michigan Civil Service Commission also recognizes the diversity of the State of Michigan’s workforce and the importance of treating all employees fairly in terms of compensation and access to health insurance benefits.”

“The decision to extend health insurance benefits is not only lawful, but it’s the right decision, as families (both traditional and non-traditional) are always stronger when health insurance is accessible,” Kaplan continued. “Estimates show that less than 2 percent of all eligible households are likely to opt in to this program, making the already inflated cost estimates from Senator Richardville and House Speaker Bolger even more out of line with reality.”

“Family members who are considered to be dependents of state employees can be covered for health insurance benefits in Michigan (whereas non-family dependents are not) and we believe that the Attorney General’s allegations regarding equal protection are legally flawed,” Kaplan said. “At a time when many Michigan residents are suffering the effects of our economic downturn, it is inappropriate for the Attorney General to try to take away health care benefits from state employees and their families that were bargained in good faith.”

The AG’s lawsuit is not the only attack on such partner benefits being launched by state Republicans. Last week, the Michigan House approved an amendment to the education omnibus bill which would penalize state universities and colleges if they offer benefits to unmarried adult partners — called other eligible individuals by both the MCSC and state universities. Under the amendment educational institutions that do not certify they have ended those programs would lose five percent of their state appropriations.

The legislature will have to vote again on a conference committee bill which would combine the Senate and House versions of the education funding. It is not yet determined whether the amendment will be included in the compromise legislation.

Michigan State University, which was one of the state’s first public bodies to create an other eligible individual insurance program following the 2008 supreme court ruling, issued the following statement from Kent Cassella, the MSU spokesperson.

“We are reviewing the text of the amendment and evaluating what the potential impact might be. MSU has an Other Eligible Individuals program that allows employees to add one other adult to their policy subject to certain restrictions. The governor and house have already proposed cuts as deep as 22 percent for public universities in the coming year. We do not believe the state should consider imposing any additional cuts on top of the already steep reductions proposed and significant reductions taken in recent years.”

But Republican lawmakers are defending the amendment.

In an interview with Craig Fahle on WDET Monday morning, House Appropriations Committee Chair Chuck Moss (R-Birmingham) defended the amendment.

“Well the universities can make their own policy; they just have to pay for it. If they want the money, they are gong to have to comply with the law. The Civil Service Commission found a way to go around it, which in my mind — once again — if you don’t like the law, that’s a legitimate point of view, go change it,” Moss said. “But it’s illegal.”

Equality Michigan’s Brogan-Kator disagreed with Moss.

“The Michigan Supreme Court said explicitly that universities and other state employers could not provide benefits to the partners of their gay employees by virtue of them being their partners. That’s why the universities and the state had to go around and do these, other eligible employee programs,” Brogan-Kator said. “It is not a wink and nod, but because it is living up to the reality imposed by the marriage amendment and the supreme court.”

ACLU’s Kaplan also assailed the legislation.

“The ACLU of Michigan strongly opposes any efforts by the Michigan Legislature to penalize universities that have voluntarily chosen to provide health insurance benefits to designated others of employees, which may include same-sex partners,” Kaplan said. “This action interferes and usurps the authority and autonomy of public universities to decide what kinds of benefits and compensation it offers to employees. At a time where Michigan families are feeling the effects of the economic downturn, why are members of Michigan legislature trying to eliminate the ability of universities to provide access to health care for their employees’ families? This insensitive and intrusive action taken by the Michigan House would also make it more difficult for Michigan universities to attract and retain the best and brightest talent for its faculty and staff, since universities in most other states are able to provide health insurance benefits to employees’ families, including same-sex partners.”

in In the News / Legislation  by Anthony Brown 0 comments

Arrest made in Miller-Jenkins custody battle

Keen News Service, April 22, 2011 – By Lisa Keen

A man accused of helping a former lesbian sneak a child out of the country, violating a court order that the mother turn the child over to her former same-sex partner, was arrested April 18 and will be arraigned in federal court in Vermont on Monday, April 25.

According to court documents, the FBI arrested Timothy David Miller in Alexandria, Virginia, on charges that he aided in the international parental kidnapping of Isabella Miller-Jenkins by one of her two mothers, Lisa Miller.

The FBI statement says Lisa Miller took her child to Mexico in September 2009 “with the intent to obstruct the lawful exercise of parental rights by Janet Jenkins,” her former civil union partner. The statement says Timothy Miller provided assistance with Lisa Miller’s travel from the U.S. to Toronto and then to Mexico City, and provided shelter for her. The Millers then continued on to Managua, Nicaragua, later that month.

A warrant for Lisa Miller’s arrest was issued in April 2010.

Sarah Star, a Vermont attorney representing Jenkins, said Friday that, despite Timothy Miller’s arrest, “We still don’t know where they are now.”

Jenkins issued a statement saying she hopes “Isabella is safe and well” and that she is looking forward to “having my daughter home safe with me very soon.”

But Star said she was not sure what measures might be available to law enforcement officials to attempt to locate and extradite Lisa Miller back to the U.S.

The FBI indicated it has not established whether Lisa Miller is related to Timothy Miller. Timothy Miller reportedly lived in Crossville, Tennessee, and has a wife and four children. But evidence suggests he and the family were living in Nicaragua in November 2008. The Rutland Herald, a Vermont daily newspaper, said Timothy Miller worked as missionary in Nicaragua.

According to one FBI affidavit, the “Lynchburg Christian Academy Payroll Account” provided “multiple payroll checks to Lisa Miller. The Academy is an affiliate of the later Jerry Falwell’s Thomas Road Baptist Church.

The FBI documents indicate agents believe Lisa Miller was going by the name Sarah, and that her daughter was being referred to as Lydia.

A Vermont judge transferred full custody of the daughter to Jenkins in November 2009, after Lisa Miller failed to comply with a court order that she allow Jenkins visitation with the child.

The Miller-Jenkins case took on national prominence after Lisa Miller moved from Vermont to Virginia in an effort to use Virginia’s newly enacted law banning recognition of same-sex relationships as leverage in her battle to prevent Jenkins from having visitation. But Virginia courts, including the state supreme court, ruled that the federal kidnapping law trumps Virginia’s “Marriage Affirmation Act” and the federal Defense of Marriage Act.

Isabella Miller turned 9 this month.

in In the News / Legal / Parenting  by Anthony Brown 0 comments

Adoption bill is signed into law

Married couples will have preference when it comes to adopting children under a new measure signed into law by Gov. Jan Brewer on Monday.

Senate Bill 1188, which was sponsored by Sen. Linda Gray, R-Glendale, would require an adoption agency to give primary consideration to adoptive placement with a married man and woman, with all other criteria being equal.

Agencies are also supposed to consider other factors, including possible placement with relatives, or the wishes of children 12 or older, the law says.

The measure applies to both state-funded and private adoption agencies.

Previously, only Utah had a law requiring priority for married couples, although several other states have bans on adoptions by same-sex couples or by unmarried couples.

Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mother and father.

But critics said the measure would discourage singles from considering adoption in Arizona.

Tom Mann, chairman of the board for Equality Arizona, a group that supports gay rights, criticized the governor for failing to “demonstrate real leadership.”

“The governor’s action today is harmful to children in foster care and group homes who are seeking a permanent home and the support of a loving, caring family,” Mann said.

But Cathi Herrod, president of the Center for Arizona Policy and a strong advocate of SB 1188, said Monday that the bill was among those that dealt with “critical issues of life, marriage and religious liberty,” and that she was “grateful” for the governor’s support.

The bill goes into effect 90 days after the Legislature adjourns its current session, which is expected as early as today.

Republic reporter Mary K. Reinhart contributed to this article.

in Adoption / Legal / Legislation  by Anthony Brown 0 comments

Same-sex adoptions lose ground after Va. board vote

Washington Post – 4.20.11

By Anita Kumar

RICHMOND — The State Board of Social Services has voted overwhelmingly against new adoption rules that some say would allow same-sex couples to adopt in the state for the first time.

In a 7-2 vote Wednesday afternoon, the board opted against the new rules, first proposed by former governor Tim Kaine. In Virginia, only married couples and single men and women, regardless of sexual orientation, can adopt. The proposed changes would require private and faith-based groups, such as Catholic Charities and Jewish Family Services, to allow gay parents to adopt or foster children.

Some members of the board, including Democratic appointees who make up the 5-4 majority, had told The Washington Post on Tuesday they would be guided by advice from Republican Attorney General Ken Cuccinelli II. He said in a memo last week that the proposed new adoption rules would violate state law.

Cuccinelli’s position reverses a 2009 decision made by his predecessor, William C. Mims, a former Republican legislator and now a Virginia Supreme Court justice. Mims did not return messages Tuesday.

Gov. Robert F. McDonnell had also opposed the proposed regulations.

Board chairwoman Bela Sood, who was appointed by former Democratic governors Kaine and Mark R. Warner, said that despite members’ philosophical disagreements, they had to rely on the attorney general’s views. “We have to depend on them,” she said. “They are very clear and direct.”

The proposed regulations would protect against discrimination on the basis of gender, age, religion, political beliefs, sexual orientation, disability, family status, race, color or national origin.

Gay rights and adoption advocacy groups have been pressuring McDonnell and the board — writing them, taking out ads and holding news conferences — to approve the regulations.

“No person who wants to become a parent should be forced to leave the state to do so, and no child should be denied a loving home because of such discrimination,” James Parrish, executive director of Equality Virginia. told the Post on Tuesday.

By Anita Kumar  |  05:45 PM ET, 04/20/2011

in Adoption / In the News / Legal / Legislation  by Anthony Brown 0 comments

Human Egg Donor Antitrust Class Action Lawsuit Complaint Filed Over Alleged Price Fixing Of Human Egg Donor Services.

Human Egg Donor Services Antitrust Class Action Lawsuit ComplaintApril 13, 2011

 

A class action lawsuit has been filed against American Society For Reproductive Medicine (“ASRM”), Society for Assisted Reproductive Technology (“SART”) and Pacific Fertility Center (collectively “Defendants”) in the United States District Court for the Northern District of California (styled Lindsay Kamakahi v. American Society For Reproductive Medicine, Society for Assisted Reproductive Technology and Pacific Fertility Center, Civil Action Case No. 11-Cv-1781) challenging, as allegedly per se illegal under Section 1 of the Sherman Act, an alleged horizontal price fixing agreement among purchasers of human egg donor services (“Donor Services”) in connection with ASRM’s alleged promulgation of certain rules setting forth the maximum compensation its members should pay for donor services (“Maximum Price Rules”), SART’s alleged adoption of such Maximum Price Rules and SART-member fertility clinics’ alleged agreement to follow such rules, according to the Human Egg Donor Services antitrust class action lawsuit complaint.

The Human Egg Donor antitrust class action lawsuit complaint is reportedly brought on behalf of a putative class of persons (the Plaintiff Class), as follows, unless otherwise excluded:

All women who, at any time during the time period starting four years prior to the filing date of the complaint to the present (the “Class Period”), sold Donor Services for the purpose of supplying AR Eggs to be used for reproductive purposes, within the United States and its territories, to any Defendant Class member.

The Human Egg Donor antitrust class action lawsuit complaint reportedly refers to Donor Services as the time, inconvenience, labor and discomfort incurred by women who agree to supply their own human eggs for assisted ferility and reproductive procedures (“AR Eggs”).

The Human Egg Donor antitrust class action lawsuit complaint is also reportedly brought against a putative class of defendants (the Defendant Class), as follows, unless otherwise excluded:

All SART-member Fertility Clinics and all AR Egg Agencies that agreed to comply with SART/ASRM rules on donor egg compensation and who paid for Donor Services at any time during the time period starting four years prior to the filing date of the complaint to the present.

For more information on the Human Egg Donor Services antitrust class action lawsuit complaint, read the Human Egg Donor class action lawsuit complaint.

in In the News / IVF / Legal  by Anthony Brown 0 comments

French Couple Issues Appeal in Surrogacy Case

April 7, 2011 – New York Times
By THE ASSOCIATED PRESS

KIEV, Ukraine (AP) — A French family detained in Ukraine for trying to smuggle out twins born to a surrogate mother is asking any sympathetic country to grant the children citizenship.

The family was detained last month while trying to take the 2-month-old girls into Hungary.

France does not recognize the citizenship of children born to surrogate mothers and is refusing to issue passports for the girls.

In an appeal issued to news media on Thursday, the family urged any nation in the world that recognizes surrogate births to grant citizenship to the girls.

The girls’ father and his father are free on bail while they await trial in the city of Uzhorod in May. The girls’ French mother has not been charged, but she remains in Uzhorod.

in In the News / Legal / Surrogacy  by Anthony Brown 0 comments

McDonnell weighs proposal that would allow gays to adopt

By Anita Kumar, Monday, April , 8:38 PM Washington Post

RICHMOND — Republican Gov. Robert F. McDonnell is considering whether to try to derail proposed regulations developed by his Democratic predecessor that would for the first time allow gay couples to adopt children in Virginia.

McDonnell has less than two weeks to act on the regulations that would force state-licensed private and church-run agencies to allow unmarried couples — heterosexual or homosexual — to adopt children.

Conservatives, including Del. Robert G. Marshall (R-Prince William), are lobbying McDonnell to ask the State Board of Social Services to kill the proposal because they do not think it is healthy for gay couples to raise children.

Marshall said that he considers the change part of a “radical anti-family proposal” and that he does not even think single people should adopt, which is currently allowed by law. “Children need a mother and a father,” he said.

Eric Finkbeiner, McDonnell’s policy director, said that the governor was considering his options but in general “supports and encourages” adoption of children by married couples and single parents.

McDonnell alienated gay rights activists shortly after taking office when he excluded sexual orientation from an executive order that barred discrimination in the state workforce, a break in tradition from his Democratic predecessors.

Later, when Attorney General Ken Cuccinelli II advised the state’s public colleges to rescind policies that ban discrimination on the basis of sexual orientation, McDonnell further angered gay rights activists when, in an attempt to quell the matter, he issued a nonbinding “executive directive” prohibiting discrimination in the state workforce, including on the basis of sexual orientation.

McDonnell must make his recommendation to the State Board of Social Services, a nine-member panel in which all but four members are holdovers from his Democratic predecessor, by April 16.

The social services board has spent more than a year working on developing regulations. It received more than 1,000 responses during a public comment period, which ended Friday.

If the board approves a significantly changed regulation, 25 people could ask that the public comment period be reopened and implementation be delayed.

Kaine, who is expected to run for U.S. Senate next year, proposed the change to the regulations in November 2009, less than two months before he left the office to become the full-time chairman of the Democratic National Committee.

Currently, only married couple and single men and women — regardless of sexual orientation — can adopt in Virginia. The proposal, according to the governor’s office, would mandate that gay singles and unmarried couples be able to access faith-based groups, such as Catholic Charities and Jewish Family Services, to adopt children.

Claire Guthrie Gastanaga, general counsel to Equality Virginia and a former chief deputy attorney general, disputed that the proposed regulations would not allow unmarried couples to adopt. “They’re trying to create problems where none exist,” she said.

Victoria Cobb, president of the Family Foundation, said she contacted the governor’s office and is confident that the administration plans to recommend the removal of the language.

Cobb said her organization, which is against gay couples adopting children, opposes the regulations more strongly on the basis of religious freedom. She said private adoption agencies deserve to have the ability to screen prospective parents based on the agency’s beliefs.

Jeff Caruso, executive director of the Virginia Catholic Conference, the public policy arm of the state’s Catholic dioceses, said his organization also opposes the new regulations on the basis of religious freedom.

“Faith-based agencies have certain deeply held convictions,” he said. He said it’s important to preserve freedom of conscience.

Marshall said he notified the governor’s office last week when he first heard about the proposal. Finkbeiner said the administration has known about the regulations for the past year but waited to act because the governor generally weighs in after the public comment ends.

Marshall said he also asked Cuccinelli for an opinion on the matter Friday but had not heard back.

in Adoption / In the News / Legal / Legislation  by Anthony Brown 0 comments

New Social App Helps Lesbians Find Sperm Donors

Mombian.com, Friday April 1, 2011

Lesbians seeking to get pregnant now have a new tool at their disposal: Dōnr, a new app for mobile devices that lets women check out the credentials of potential sperm donors. Like Grindr, the social app that helps gay men find potential mates nearby, Dōnr lets lesbians access profiles of men in close proximity to see if they might be suitable candidates for providing genetic material.

“Lesbians have long used cutting-edge science to create their families,” said Elizabeth Bean, the CEO of Dōnr, Inc., herself the mother of twins. “It’s time that the search for sperm donors catches up with the rest of the family creation process and takes advantage of modern technologies.”

After their phone alerts them to the presence of a potential donor, lesbians can use the app’s extensive profile information to check out details such as education, hobbies, health, and whether the man wants contact with the child. They can then connect with the man to talk in person.

Bean says her company will soon be coming out with several related apps: Bāstr, which allows lesbians to find the nearest LGBT-friendly fertility clinic, and Lawyr, which helps them find an attorney to do the legal paperwork necessary to protect their families.

in Anonymous/Known Donation / IVF / Parenting / Resources / Services  by Anthony Brown 0 comments

Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children

Thursday, March 17, 2011 – Nancy Polikoff –
Beyond (Straight and Gay) Marriage

It’s always risky to predict the outcome of a case based on oral argument. Nonetheless, I’ll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state’s ban on adoption and fostering by anyone living with a nonmarital partner violates the state’s constitution. The ban was enacted by voters in 2008. You can watch the argument on the court’s website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.

Before the US Supreme Court’s decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state’s constitution. The importance of that case, Jegley v. Picado, played a large role in today’s hearing. The trial court found the ban a violation of the plaintiffs’ constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.

If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a “rational basis.” The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of “cohabiting” couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.

When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied “heightened scrutiny,” he said no. He said the “life” of the child was at stake (that’s how he characterized the state’s interest on several occasions) and that the state couldn’t be required to place children in the “riskiest” and “poorest performing” home environments.

In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state’s screening process is not good enough to weed out unsuitable applicants. They called the process “imperfect” and “not foolproof” and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and “slip through” their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.

So this is what it’s come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.

The lawyers for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between “cohabitation” and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court’s decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.

One of the court’s newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn’t live with a partner. (I wish she has left the qualifier “gay” off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.

And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants who sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that’s not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don’t think the Arkansas Supreme Court is buying it.

in Adoption / Foster Care / Foster Parenting / In the News / Legal  by Anthony Brown 0 comments