Mary Cheney Pregnant With Second Child

Advocate.com, Julie Bolcer, October 7, 2009

Sources say that Mary Cheney, the lesbian daughter of former vice president Dick Cheney, is pregnant with her second child.

The staunch Republican and her partner, Heather Poe, expect the baby in mid to late November, according to True/Slant, which spoke with a source close to the Cheney family.

“Cheney has worked as a principal at Navigators Global, a bipartisan communications firm, but recently announced that she would be leaving the company for maternity leave and to begin a new consulting firm with her sister, Liz. Close friends were informed that she was expecting a second child about four months ago and she is now visibly showing her pregnancy, the source says,” according to True/Slant.

Cheney, 40, gave birth to her first child, Samuel David Cheney, in May 2007. She and Poe live in Virginia.

in Adoption / In the News  by Anthony Brown 0 comments

The Higher Lifetime Costs of Being a Gay Couple

October 3, 2009
New York Times
By TARA SIEGEL BERNARD and RON LIEBER

Much of the debate over legalizing gay marriage has focused on God and Scripture, the Constitution and equal protection.

But we see the world through the prism of money. And for years, we’ve heard from gay couples about all the extra health, legal and other costs they bear. So we set out to determine what they were and to come up with a round number — a couple’s lifetime cost of being gay.

It was much more complicated than we initially imagined, and that’s probably why we’ve never seen similar efforts. We looked at benefits that routinely go to married heterosexual couples but not to gay couples, like certain Social Security payments. We plotted out the cost of health insurance for couples whose employers don’t offer it to domestic partners. Even tax preparation can cost more, since gay couples have to file two sets of returns. Still, many couples may come out ahead in one area: they owe less in income taxes because they’re not hit with the so-called marriage penalty.

Our goal was to create a hypothetical gay couple whose situation would be similar to a heterosexual couple’s. So we gave the couple two children and assumed that one partner would stay home for five years to take care of them. We also considered the taxes in the three states that have the highest estimated gay populations — New York, California and Florida. We gave our couple an income of $140,000, which is about the average income in those three states for unmarried same-sex partners who are college-educated, 30 to 40 years old and raising children under the age of 18.

Here is what we came up with. In our worst case, the couple’s lifetime cost of being gay was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs.

These numbers will vary, depending on a couple’s income and circumstance. Gay couples earning, say, $80,000, could have health insurance costs similar to our hypothetical higher-earning couple, but they might well owe more in income taxes than their heterosexual counterparts. For wealthy couples with a lot of assets, on the other hand, the cost of being gay could easily spiral into the millions.

Nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage. One exception is the cost of having biological children, but we felt it was appropriate to include this given our goal of outlining every cost gay couples incur that heterosexual couples may not.

Our analysis is not exact science. Not every couple would get married if they could, and others would not want to have children. We also made a number of assumptions based on average costs, life spans, state of residence and gender.

Our gay family is made up of two women living in New York State in a committed partnership that lasts 46 years, until the first partner dies at age 81. We ran two sets of calculations: in the one that turned out to be our worst case financially, one woman earned $110,000 and the other $30,000. In our second couple, both partners earned $70,000. We started running the numbers when both were age 35.

We received assistance from Roberton Williams, a senior fellow at the Tax Policy Center, who performed our tax analysis, which required simulating more than 900 income tax returns, in part because we followed the partners for 50 years. We also decided to run all scenarios across the three states so that the results would not be skewed by different state taxes. We’ve outlined all the detail in a workbook linked to the online version of this column.

As for the emotional costs of living with these added complexities, they can’t be quantified. Frederick Hertz, a lawyer in Oakland, Calif., who works with same-sex couples, likens heterosexual marriage to being in the car pool lane. “Being part of a same-sex couple, it’s always stop. Wait. Pay a toll,” he said.

Harvey Hurdle, who lives in Philadelphia with his partner and their young son, said he was reminded of the disparities every time his Social Security statement arrived in the mail. “It’s pretty insulting,” he said. “It says your spouse would get this much. And it’s like, ‘Oh no he won’t!’ ”

Health Insurance

In our worst case, the lower earner’s employer did not provide health insurance and her partner’s employer didn’t cover domestic partners. So the lower earner had to buy coverage on the private market, while the higher-earning partner provided coverage for herself and the two children. All this cost the gay couple $211,993 more than their heterosexual married counterparts, who were able to take advantage of the higher-earner’s family coverage.

In our best case, health coverage cost the gay couple $28,595 more. We assumed both gay partners were eligible for employer-provided coverage. The higher-earner’s employer also provided domestic partner coverage, which covered her partner for the five years she stayed at home. When she returned to work, she used her own employer’s insurance.

Even though the couple paid nearly $29,000 more in premiums than an identical heterosexual married couple, it was cheaper than using domestic partnership coverage throughout because of the onerous tax implications, according to Mr. Williams of the Tax Policy Center. A nondependent partner’s coverage is taxable income, and she can’t use pretax dollars to pay the premiums, according to Todd A. Solomon, a partner in the employee benefits department of McDermott Will & Emery in Chicago.

Social Security

All our hypothetical individuals started collecting Social Security when they were 66. Same-sex couples are not entitled to a variety of Social Security benefits, including spousal benefits (heterosexual spouses can receive up to 50 percent of a spouse’s benefits while the spouse is alive, if they are higher than their own); survivor benefits (surviving spouses can receive their deceased spouse’s benefits in lieu of their own, if they are higher); and a flat death benefit of $255.

In the worst case, the gay partner who earned $30,000 could not receive higher spousal benefits or survivor benefits from her partner’s much higher earnings record. Nor was she entitled to the death benefit. In total, the gay women collected $88,511 less in Social Security than a similar heterosexual couple. Some couples might try to buy life insurance in an attempt to replace the benefit.

In our best case, when the gay partners had largely identical incomes, neither was at a huge disadvantage because they ended up with about the same monthly benefits. So the only extra benefit a heterosexual married couple received was the $255 death benefit.

Estate Taxes

Heterosexual married couples can transfer an unlimited amount of assets to each other during their lives and at death without paying estate taxes. Everyone else, including married same-sex couples, must pay federal estate taxes on amounts that exceed the 2009 exemption of $3.5 million. Many states also levy their own estate or inheritance taxes, though same-sex couples may be shielded from those in states that recognize their unions. Our couple lived in New York, where the estate tax exemption is $1 million. And though New York recognizes marriages performed elsewhere, that recognition does not extend to state income or estate taxes.

In our worst case, the gay partner who died first in 2055 left an estate that exceeded the state’s threshold by $171,528. That meant a tax bill of $43,378, according to Ron L. Meyers, an estate-planning lawyer with a significant same-sex clientele at Cane, Boniface & Meyers in Nyack, N.Y.

Meanwhile, their identical heterosexual counterparts owed nothing.

The gay couple in our best case had a smaller estate, in part because they were careful to title their home as tenants-in-common, so only the deceased partner’s half of the home was taxable. The estate didn’t exceed the federal or state threshold. So they owed nothing.

Childbearing

Two women who want to have a biological child together need sperm to do it. They may need to purchase sperm from a bank and use a medical professional to inseminate one of the partners. There are also legal adoption costs.

The worst case here totaled $40,000. It included 12 months of sperm and insemination costs, but the big wild card was the possible need to move to a state where same-sex second-parent adoptions were legal. While this may seem extreme, couples often do it, according to Joyce Kauffman, a lawyer in Cambridge, Mass., who has worked with many of them. We estimated a minimum of $20,000 for this cost, including real estate brokerage fees to sell a home and moving costs.

In the best case, there might be no cost at all: the couple could use sperm from a relative of the partner who isn’t bearing the child or from a friend, inseminate at home and take their chances with free legal forms on the Web. Ms. Kaufman does not recommend such a cavalier approach to vital documents.

The cost for men to have a biological child would be much higher if they used a surrogate.

Pension

We assumed that one partner, in both best and worst cases, received a small pension. In both cases, the partner with the pension plan died first.

Employers do not have to provide survivor pension benefits to a same-sex spouse, but many do anyway (which would put our best case at $0). In our worst case, however, the higher-earning partner died first and did not work for such a company. So the surviving partner got nothing. A similarly situated heterosexual surviving spouse would receive $32,253 before dying herself several years later.

Spousal I.R.A.

You generally need to earn income to contribute to an Individual Retirement Account. But heterosexual married couples can contribute up to $5,000 annually to a spousal I.R.A. for a nonworking spouse. Stay-at-home gay partners, however, cannot make these contributions. So they end up with smaller retirement accounts.

We assumed that all the couples would have either saved 7 percent of the stay-at-home parent’s previous year’s salary, or $5,000, the maximum contribution. So the gay couple with one partner who started out earning just $30,000 would have saved less (had she been legally able to) than someone earning $70,000. In both cases, that five-year gap in savings early on in the partners’ lives haunted them later because they weren’t able to benefit from decades of compounding returns.

The couple with the lower-earning partner at home ended up $48,654 behind by the time that partner died, assuming she invested in a portfolio mixed equally between stocks and bonds that returned 5.94 percent annually. The surviving spouse from the gay couple with equal incomes ended up $112,192 behind.

Tax Preparation

Instead of filing one joint federal tax return and one state income tax return, same-sex couples must file two sets of returns. In both best and worst cases, those couples paid an additional $12,300 in tax preparation fees over the 46 years they are together.

Financial and Legal Planning

Even married same-sex couples are encouraged to create a number of documents that try to replicate the protections and rights of heterosexual marriage because their unions are not universally recognized. In the worst case, our gay couple spent $5,500 more than their heterosexual counterparts on their additional paperwork. That included a revocable living trust, which is more difficult to contest than a will, and what is known as a pour-over will, which ensured that anything left out of the trust would be included. They also each set up financial powers of attorney, health care proxies, living wills and a domestic partnership agreement.

In the best case, our couple didn’t spend any more than a prudent heterosexual couple would. Both couples created two wills, financial powers of attorney, health care proxies and living wills.

Income Taxes

Married heterosexual couples with two working spouses with similar incomes often pay more in federal taxes than if they remained single because of the so-called marriage penalty. This occurs when a couple’s combined income pushes them into a higher tax bracket than they would have been in if they filed as singles. But some couples — especially those with a wide disparity in income or with a stay-at-home parent — usually pay less when they file jointly. They benefit from what’s known as a marriage bonus.

In our worst case, where one gay partner earned $110,000 and one earned $30,000, the couple paid $15,027 less in taxes over their lifetimes than their heterosexual counterparts. Though the gay and heterosexual married couple had identical salaries, the married couple collected more income in retirement — a direct result of their marriage status — and thus owed more in taxes (though they still benefited from the marriage bonus). For instance, the married couple collected higher Social Security spousal benefits and survivor benefits, pension income and income derived from a spousal I.R.A. The gay couples weren’t entitled to any of these benefits.

In our best case, where the partners each earned $70,000, the gay couple paid $112,146 less in income taxes. “That is the marriage penalty rearing its ugly head,” Mr. Williams said.

in Estate Planning / Family Stories  by Anthony Brown 0 comments

Fed court dismisses lesbian hospital lawsuit

By 365gay Newswire
09.30.2009 9:36am EDT

(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.

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

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.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
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.

NOW, THEREFORE, I, BARACK OBAMA, President of the
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.
BARACK OBAMA

in Parenting  by Anthony Brown 0 comments

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.

in Legal / Resources  by Anthony Brown 0 comments

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?

in In the News / Legislation  by Anthony Brown 0 comments

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.

Posted by Nancy Polikoff at 8:43 AM 0 comments
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in In the News  by Anthony Brown 0 comments

Official: No Ukrainian adoption for Elton John

By The Associated Press
09.14.2009 11:39am EDT

(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.

in Adoption / In the News / Personal Stories  by Anthony Brown 0 comments

Lawmakers in Uruguay Vote to Allow Gay Couples to Adopt

September 10, 2009, New York Times
By REUTERS

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.

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

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
Couple
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
2008.
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.

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