(I originally wrote this as my end-of-year newspaper column a few weeks ago. The Jenkins-Miller case has seen some action since that time. The rest, I hope, is a good look back before we move forward.)
“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.” So said President Obama in proclaiming Sept. 28 as Family Day. That inclusive spirit penetrated many of his announcements this year, from his invitation to LGBT families for the White House Egg Roll to his mention of the need for “full equality in adoption laws for all American families” in his proclamation of November as National Adoption Month.
Rhetoric aside, though, did 2009 help LGBT parents and our children in our struggle to be recognized as families? Let’s take a look back at some of the key court cases and legislation.
One headline case was the ongoing custody battle between Janet Jenkins and her ex-partner Lisa Miller. Miller, who says she is no longer a lesbian, has enlisted the help of the conservative Liberty Counsel. Most recently, Vermont’s Rutland Family Court granted sole custody of their seven-year-old girl to Jenkins, her non-biological mother, because of Miller’s continued refusal to obey court orders and allow the girl to visit Jenkins. Because Jenkins was the only one of the two willing to let Isabella visit the other, giving her custody was the best way to ensure the girl had continued contact with both parents.
Elsewhere, the supreme courts of Ohio, Oregon, and Montana and appeals courts in North Carolina and Texas also upheld the right of non-biological mothers to custody and visitation, or at least the right to file for them. The Montana Supreme Court also upheld the right of a woman whose partner was the only legal adoptive mother of the child they were raising. (Same-sex couples cannot jointly adopt in the state.)
In an adoption case with an interstate twist, the Michigan State Court of Appeals ruled that state courts can oversee a custody dispute between lesbian moms who adopted in Illinois. A lower court had said the state ban on marriage of same-sex couples kept it from enforcing either woman’s parental rights.
On the negative side, courts ruled against non-biological mothers in Louisiana, Missouri, New York, and Utah. (The New York Court of Appeals, however, said it will review the 1991 case that was the basis for its decision.) The Delaware Supreme Court similarly denied joint custody to the non-adoptive parent of a couple. In the Utah case, as in the Montana one and Jenkins-Miller, the legal mom is now married to a man and represented by a conservative legal advocacy group, a disturbing trend we’ve seen in earlier cases as well.
Not all of the cases involved custody battles. Montana saw its first lesbian couple to adopt jointly. The West Virginia Supreme Court ruled that a lesbian couple do not have to turn their 18-month-old foster child over to an opposite-sex couple for adoption, as ordered by a lower court. Most strikingly, in a sweeping affirmation of the reality of our families, Washington, D.C. passed a law granting legal parenthood to both women of a couple who plan a child together using donor insemination.
Gay fathers also benefited from court rulings. The Social Security Administration reversed a decision to deny benefits to the children of a disabled gay father, after earlier citing unspecified issues with the two California parentage orders naming him their legal parent. The Georgia Supreme Court overturned a trial court ruling that a gay father could not visit his four children in the presence of his “homosexual partners and friends.” A federal appeals court, however, ordered a hold on an order for Louisiana to put both gay dads on the birth certificate of a boy adopted in New York but born in Louisiana, where same-sex couples cannot adopt jointly. The court heard the case in October, but has not yet ruled.
The closely watched case of Martin Gill, who has sued the state of Florida for the right to adopt the two boys he and his partner have been fostering since 2004, awaits an appeals court ruling after a hearing in August. A lower court had ruled in his favor in November 2008. In a related, but federal, vein, U.S. Rep. Pete Stark (D-CA) introduced the Every Child Deserves a Family Act, “which would restrict federal funds for states that discriminate in adoption or foster programs on the basis of marital status, sexual orientation or gender identity.” The bill is now in committee.
Several parties in the cases above tried to use the state or federal lack of marriage recognition to deny a parent her rights. The Department of Justice, however, in its reply brief to Smelt v. United States—one of the challenges to the Defense of Marriage Act (DOMA)—stated explicitly that the government has no interest in creating a legal structure that promotes child rearing by both biological parents, and that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” That’s good for the anti-DOMA fight; it may also make it harder to cite DOMA as a reason for denying non-biological parents (or non-legal parents in an adoptive couple) their parental rights. (The DOJ did note, however, that for the moment it must continue to defend DOMA, because it is a federal statute; it simply won’t do so on the basis of arguments related to child rearing.)
If LGBT families still have a long way to go before we are fully recognized throughout our country, there are at least some promising signs of change. We will have our work cut out for us in 2010.
I am indebted to lawyer Nancy Polikoff for her coverage of many of the above lawsuits at beyondstraightandgaymarriage.blogspot.com. Any mistakes above are mine, however.