Marriage equality: It’s up to you, New York

The openly gay sponsor of a marriage equality bill in Rhode Island has said he would push for civil unions instead. Six states are considering legislation that would ask voters to ban recognition of marriage for same-sex couples. And all this was on the heels of a loss for a marriage equality bill in Maryland. Has the state legislative fight for marriage equality lost momentum?

Evan Wolfson

The openly gay sponsor of a marriage equality bill in Rhode Island said last week he would push for a civil unions bill instead, setting off a slew of criticism from LGBT groups. Six states are considering legislation that would ask voters to amend the state constitution to ban recognition of any legal relationships for same-sex couples. And all this was on the heels of a dramatic loss for a marriage equality bill in Maryland in March.

Has the state legislative fight for marriage equality lost momentum?

Not according to Evan Wolfson, executive director of the national Freedom to Marry group.

“Both Rhode Island and Maryland are very much still in play,” said Wolfson. “. . . The fact that we don’t win it exactly on the day we want . . . doesn’t change the overall momentum that is strongly in our direction.”

The “highest priority” right now, says Wolfson, is New York. Wolfson said he is “very hopeful” a marriage bill that is expected to pass the New York State Assembly, which is under Democratic control, will also pass the Senate, where Republicans hold a 32 to 26 majority.

Wolfson acknowledges the Senate may be more difficult. While a marriage equality bill passed the Assembly three times in the past four years, an attempt to pass it in the Senate in 2009 failed by 14 votes.

New York Senate Majority Leader Dean Skelos (R), who opposes marriage equality, has nevertheless said he would let a marriage equality bill come to the floor.

And several recent polls show that a majority of voters in the state support marriage equality. A Siena College poll April 11 showed that 58 percent of New Yorkers support it, with 36 percent opposed. A Quinnipiac poll April 14 showed 56 percent support, with 38 percent opposed, and a New York Times estimated projection on the same date also showed 58 percent support.

Additionally, two dozen New York business leaders, including Lloyd C. Blankfein, CEO of Goldman Sachs, and John Mack, chairman of the board of Morgan Stanley, on April 28 issued an open letter arguing that legalizing marriage for same-sex couples would help the state attract talent and remain competitive.

“Winning New York would really be transformative,” said Wolfson, “because New York has enormous cultural and political leadership in the United States and in the world.”

Freedom to Marry and several other LGBT advocacy groups—the Empire State Pride Agenda, the Human Rights Campaign, the League of Women Voters, the Log Cabin Republicans, and Marriage Equality New York—have formed the New Yorkers United for Marriage coalition, which is coordinating efforts to lobby for the marriage equality bill this session, which adjourns in June.

Governor Andrew Cuomo (D), who has expressed strong support for passing such a bill this year, has asked members of his staff to work with the coalition.

In Rhode Island, openly gay House Speaker Gordon Fox (D), a sponsor of that state’s marriage bill, said in a statement April 27 that “there is no realistic chance for passage of the bill in the Senate,” and that he will not move forward with a vote in the House.

But the Providence Journal newspaper also reported that Fox said he did not have the votes to pass the bill even in the House, where Democrats hold 65 seats to Republicans’ 10.

Fox said he will instead sponsor a bill for civil unions and is “optimistic” that such a bill could pass both chambers this session. He was expected to introduce the bill May 3.

But Fox’s decision has not gone over well with LGBT groups. Marriage Equality Rhode Island (MERI), which supports full marriage, is holding a rally at the State House the same day to protest Fox’s decision to drop the marriage equality bill. Gay & Lesbian Advocates & Defenders, and others, issued statements criticizing Fox’s decision and calling it “completely unacceptable”.

“Nothing short of marriage is equality for Rhode Island’s gay and lesbian citizens and their children,” said Karen Loewy, a GLAD senior staff attorney. “More to the point, civil unions tell gay people and their kids that they are second class citizens and that their families matter less than other families.”

Wolfson called Fox’s decision a “miscalculation.” He noted that polls show a majority of support among voters, that Rhode Island already recognizes marriages of same-sex couples performed elsewhere, and that nearby Connecticut, New Hampshire, and Vermont all began with civil unions and have moved to full equality.

Similar to Rhode Island, marriage equality supporters never had a clear majority in Maryland either, even with the support of Governor Martin O’Malley (D). Although the bill passed the Senate in Maryland, but on March 11, the House unanimously to send the bill back to committee.

But in Maryland, several LGBT groups, including Equality Maryland, the leading state organization behind the bill, expressed approval for the move.

Wolfson noted, however, that Maryland was “within a couple of votes” of passage. With “a little more time to make the case and organize,” he thinks achieving equality could happen in early 2012.

Meanwhile, three states have enacted civil union laws this year—Delaware, Hawaii, and Illinois. Wolfson said that, while civil unions are not the true goal, they may still “sometimes can be a stepping stone.”

Camilla Taylor, marriage project director for Lambda Legal, agreed, saying that civil unions “are an important step forward” in states where same-sex couples have no benefits or protections. She added that Lambda is “often very involved,” as it was in Illinois, in drafting such legislation.

But Lambda also brought a suit before the New Jersey state Supreme Court claiming the state’s civil union law did not provide full equality. The Court last June refused to hear the case, saying it must first go through the trial court process.

Taylor said she could not say whether Lambda would be filing any further cases to contest civil unions, noting that it is important in each state to first “develop a record of the ways in which it harms people to deny them equal access to marriage.”

Six states—Indiana, Iowa, Minnesota, North Carolina, Pennsylvania, and Washington, also have active legislation that would ask voters to amend the state constitutions to ban marriage—and in some cases, recognition of any legal relationships, such as civil unions—for same-sex couples.

New Mexico and Wyoming both considered but did not pass such bills this year. Wyoming also rejected a bill that sought to prevent the state from recognizing marriages and civil unions of same-sex couples from other jurisdictions.

Washington State has seen a mish-mash of marriage-related bills. The state already allows same-sex couples to register as domestic partners and, on February 14, bills were introduced in both chambers of the legislature for marriage equality.

And on April 5, Washington State Governor Chris Gregoire (D) signed a bill to recognize legal relationships of same-sex couples from other jurisdictions as domestic partnerships. But there is also a bill in the House that would ask voters to ban marriage for same-sex couples under the state constitution. Democrats have a majority in both chambers.

The situation in New Hampshire is also mixed. A House committee voted March 3 to table a bill that would repeal the state’s existing marriage equality law, thus postponing further consideration until January 2012. But opponents of marriage equality have said they will also introduce a bill next year seeking to ask voters in November 2012 to approve amending the state constitution to ban marriage for same-sex couples.

With children in need, states struggle over gay adoptive parents

Each year, over 100,000 children in the U.S. foster care system are waiting for adoptive homes. And over two million gay and lesbian people are interested in adopting a child. But legislative and court battles are being waged in several states over whether gay and lesbian people should be allowed to adopt.

Jennifer Chrisler

Second of Two Parts (Part One)

Each year, over 100,000 children in the United States foster care system are waiting for adoptive homes, according to the U.S. Department of Health and Human Services (HHS). And over two million gay and lesbian people are interested in adopting a child, according to a 2007 study by the Williams Institute of UCLA.

But legislative and court battles are being waged in several states over whether gay and lesbian people—individually or as couples—should be allowed to adopt. And the outcomes have been mixed.

Under a bill signed April 18 by Arizona Governor Jan Brewer (R), a married man and woman will receive “placement preference” in adoption over a single adult, if all relevant factors are equal. Unmarried individuals may adopt, but only a married husband and wife may adopt jointly. Marriages of same-sex couples are not recognized in the state.

And the Virginia State Board of Social Services voted 7-2 on April 20 to reject a proposal of former Governor Tim Kaine (D) that would have prohibited discrimination against potential adoptive parents on the basis of sexual orientation. Governor Bob McDonnell (R) recommended that they disapprove the proposal, although the Board was not obligated to follow him.

Two other senior state officials had also expressed their opposition to the proposal. Republican Attorney General Ken Cuccinelli II’s office issued a memo April 12, written by Senior Assistant Attorney General Allen Wilson. The memo said the proposed change goes against state law and public policy and the Board “lacks the authority to adopt this proposed language.” The memo “revises and amends” Wilson’s memo from December 2009 (during Kaine’s governorship), in which he said the Board did have that authority.

And Virginia Social Services Commissioner Martin Brown, a McDonnell appointee, also advised against the proposed regulations. Brown is the former executive director of The Family Foundation of Virginia, a conservative organization that includes among the partners listed on its Web site the Family Research Council, classified as an anti-gay hate group by the Southern Poverty Law Center.

In Illinois, however, a state Senate committee killed a bill April 11 that would have allowed religiously affiliated child welfare agencies to refuse a person’s adoption or foster home application if the person was in a civil union.

Court rulings on adoption by same-sex couples have varied. The Arkansas Supreme Court ruled April 7 that the state’s ban on adoption by unmarried, cohabiting couples violated the state constitution. Last September, a Florida appeals court overturned that state’s ban on adoption by gay and lesbian individuals.

But the U.S. 5th Circuit Court of Appeals ruled April 12 that the Louisiana state registrar did not violate the U.S. Constitution by refusing to issue a new birth certificate to a Louisiana-born child adopted in New York by a gay couple. Louisiana officials said to do so would violate the state’s public policy of not allowing joint adoptions by unmarried couples.

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

In Arizona, Virginia, Louisiana, Utah, Mississippi, and Michigan, nearly 12,000 children in foster care are eligible and waiting for adoptive homes, according to the most recent (2009) data from HHS.

Jennifer Chrisler, executive director of the Family Equality Council, said that “the overarching picture right now is looking a little gloomy at the state level.”

But Chrisler added that the adoption battles are in part because of “a growing awareness of the issue of LGBT people and their ways of creating family,” combined with an “opportunistic moment” for conservative politics. Conservatives are using the opportunity “to push through as much of their conservative agenda as they can.”

She sees their actions as “a serious threat” to finding homes for children who need them.

Ellen Kahn, director of the Human Rights Campaign’s (HRC) Family Project, said that society at a “threshold moment in child welfare,” when people have to move beyond old beliefs and traditions, just as they did with adoption by single parents and interracial couples, among others.

But she thinks the issue has hit “the tipping point” with regard to adoption by LGBT parents. Research has shown, she said, that “there’s absolutely no reason to discriminate.”

“Because this issue is so politicized,” however, she said, it gets pulled out of the context of child welfare. This slows down “a natural, organic progression” towards acceptance of LGBT adoptive parents among child welfare professionals.

Sarah Warbelow, HRC’s state legislative director, said the issue of adoption is also tied up with the issue of relationship recognition for same-sex couples, especially in states that ban all forms of relationship recognition—not only marriage—for such couples. Adoption agencies in those states, Warbelow said, are often then “reluctant to allow couples to even consider adopting, because they don’t know how to interpret the language.”

Currently, 18 states have such comprehensive bans. Only one of those, Arkansas, after its April 7 state Supreme Court decision, allows same-sex couples to jointly petition to adopt statewide.

And while only 16 plus the District of Columbia do allow same-sex couples to jointly petition to adopt, Kahn said she works with adoption agencies in states that do not permit joint adoptions by same-sex couples and that many of those agencies will nevertheless treat same-sex prospective parents like a couple, even though they know only one will become the legal parent.

That kind of attitude, she says, “keeps moving regardless of who’s in office” and, “over time, changes the landscape agency to agency and makes a big difference for families.”

On a federal level, the Family Equality Council announced in an e-mail to supporters April 22 that U.S. Rep. Pete Stark (D-Calif.) would on May 3 reintroduce the Every Child Deserves a Family Act, which would withhold federal adoption and foster care assistance funds from states that discriminate against LGBT people in foster placements or adoption. He introduced a similar bill last session, but it died in committee.

And the U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system, and calling LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

HHS urges child welfare agencies to better serve LGBTQ youth

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system.

Bryan Samuels

First of two parts (Part Two)

The U.S. Department of Health and Human Services (HHS) issued a memo April 6 encouraging child welfare agencies to better serve the needs of “lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth” in the foster care system. It said such agencies should avail themselves of federal funds for training staff on how to better serve this community, and it called LGBT prospective parents “a largely untapped resource” for providing foster or adoptive homes to LGBTQ young people.

In the memo, which was issued without a press release, Bryan Samuels, commissioner of the HHS Administration on Children, Youth and Families (ACYF), said, “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

The memo was sent to state, tribal, and territorial agencies that administer federal child welfare funds under Title IV-E of the Social Security Act.

Title IV-E provides federal matching funds to states to help with adoption and foster care expenses for eligible children.

In the memo, Samuels states his “fundamental belief that every child and youth who is unable to live with his or her parents is entitled to a safe, loving and affirming foster care placement, irrespective of the young person’s sexual orientation, gender identity or gender expression.”

A higher percentage of LGBTQ youth, he wrote, exist in the child welfare system and among those living on the streets than would be expected based on the estimated percentage of LGBTQ people in the general population.

He noted that more and more child welfare agencies are addressing the needs of youth in foster care who are LGBTQ and said others should explore ways to do so.

Samuels also urged agencies, where appropriate, to “claim available title IV-E reimbursement for costs associated with training staff” to serve LGBTQ youth more effectively.

For FY 2010, the last year for which actual numbers are available, the budget authority for Title IV-E funds was $7.3 billion, enough to assist approximately 600,000 children with foster care, adoption, or guardianship assistance each month.

Samuels also said agencies must be “particularly attuned” to placing LGBTQ foster youth with families “committed to providing a safe, supportive and affirming environment.”

He called on agencies to “recruit, train and provide ongoing support to families, including LGBT individuals and families, who are able to provide a safe, loving family placement for these youth.”

He drew special attention to LGBT foster and adoptive parents, who “can provide a loving, stable home, responsive to the needs of LGBTQ youth in care, and are a largely untapped resource—an estimated 2 million LGB individuals are interested in adopting,” according to a 2007 study by the Williams Institute at UCLA.

And when a foster child’s case plan calls for reunification with his or her family, he said, agencies should support those families to help them “address the young person’s needs in a healthy, understanding manner.”

Adam Pertman, author of Adoption Nation and executive director of the Evan B. Donaldson Adoption Institute, a national, nonpartisan, nonprofit dedicated to improving adoption policy and practice, said in an interview that the memo is “very significant” and “further than I have seen federal instruction go” on the topic of LGBTQ adoptive children and parents.

“It’s not going to have the same impact as if it were enforced by law or regulation,” Pertman said, but “guidance means an enormous amount in the policy world. . . . What comes from the top really matters. It helps shape both practice and attitudes.”

Ellen Kahn, director of the Human Rights Campaign’s Family Project, agreed the memo was “a really important communication” that “outlines what the expectations are regarding LGBTQ youth in foster care, and emphasizes the importance of adequate services, cultural competence, etc., and then segues into inclusion of LGBT resource families and making the case for nondiscrimination,” even though it “doesn’t have the enforcement of law.”

The memo from Samuels is not the first step ACYF has taken to support LGBTQ youth and parents. In October 2010, ACYF awarded the L.A. Gay & Lesbian Center a $13.3 million, five-year grant to create a model program to support LGBTQ youth in the foster care system.

And in 2000, under President Clinton, the ACYF-run National Adoption Information Clearinghouse published a report on “Gay and Lesbian Adoptive Parents: Resources for Professionals and Parents.” It still exists at the ACYF’s Child Welfare Information Gateway (childwelfare.gov).

The older report debunked several myths about children of lesbian and gay parents, such as they were more likely to become gay themselves. At the same time, it stated that “the effects on children of being raised by lesbian and gay adoptive parents cannot be predicted”—an assertion more recently called into question by the social science evidence presented by LGBT advocates in a number of cases involving either adoption or marriage rights. The evidence showed no differences in adjustment or well being among children with LGBT parents.

A bill in Congress that would withhold federal funds from states that discriminate against LGBT people in foster placements or adoption died in committee last session, but U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) are expected to introduce similar bills again this session.

In the past two weeks, three states—Arizona, Illinois, and Virginia—have considered bills or policies that would limit adoption rights for unmarried and/or same-sex couples. Arizona Governor Jan Brewer (R) on April 18 signed a measure giving “placement preference to a married man and woman” over a single adult if all relevant factors are equal. The Illinois measure failed to pass, and the outcome is still unknown in Virginia.

And two major court cases in the last two weeks have ruled in opposite ways on whether treating LGBT couples differently violates constitutional principles. The U.S. 5th Circuit Court of Appeals said “no” (based on the U.S. Constitution) and the Arkansas Supreme Court saying “yes” (based on the state constitution).

Part Two: What are the states doing to help or hinder adoption of children in need by LGBT adults who are seeking to provide homes for them? Why are so many states debating whether LGBT people should be allowed to apply to become foster or adoptive parents?

Back in Congress: Bills against bullies

Congresswoman Linda T. Sánchez on April 15 re-introduced legislation to address bullying and harassment of LGBT students, among others.

“No student should ever be afraid to come to school because they are being intimidated by bullies,” said Rep. Sánchez. “Every student has the right to a safe and comfortable learning environment. Bullying is violent and destructive behavior and we have to stop treating it as a minor nuisance: it is a serious problem that damages a student’s academic progress, not to mention overall mental health.”

Sánchez’ bill (H.R. 1648) is identical to the one introduced in the Senate by Senators Bob Casey (D-PA) and Mark Kirk (R-IL) on March 8 (S. 506). The Safe Schools Improvement Act (SSIA) would require schools and districts receiving federal funds to implement and report on anti-bullying programs. The programs must specifically address bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

Under the bill, bullying and harassment would include actions conducted through electronic communication, such as e-mail or instant messages. The measure would also oblige states to report data on incidents of bullying and harassment to the U.S. Department of Education and make the data available to the public.

Both the House and Senate versions of the bills are structured as a set of revisions to the Elementary and Secondary Education Act (ESEA), the key federal statute governing primary and secondary education. Schools may use funds authorized by ESEA to implement the requirements of the SSIA.

The version of ESEA implemented by Congress at the behest of President George W. Bush was better known as “No Child Left Behind.” President Obama has said reform of ESEA is one of his highest priorities.

Sánchez also introduced the Safe Schools Improvement Act in the previous two sessions of Congress, and Casey introduced his version in the last one. The previous versions all died in committee.

Although both Sánchez and Casey called their bills “bipartisan,” only two of the House bill’s 70 original cosponsors are Republican: Rep. Todd Russell Platts (Penn.) and Rep. Don Young (Alaska).

Senator Kirk remains the only Republican among the 21 Senate sponsors of the SSIA. There is one Independent, Bernard Sanders (I-Vt.) The bill has gained one additional sponsor since its introduction, Jack Reed (D-R.I.)

Congress is also considering several related bills. Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.), reintroduced on March 10 the Tyler Clementi Higher Education Anti-Harassment Act, which establishes anti-bullying requirements similar to the SSIA for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him making out with another man and broadcast the videos online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) introduced the Student Nondiscrimination Act (SNDA) March 10 in their respective chambers. SNDA states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or they will risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

Rep. Polis said in an e-mail to supporters on April 7 that he would be trying to attach the SNDA, too, to the reauthorization of the Elementary and Secondary Education Act (ESEA).

The T-shirt Wars: Courts struggle to find balance between free speech and harassment

A recent federal court decision–in a case stemming from a conservative response to GLSEN’s Day of Silence–has upheld the right of students to express certain anti-gay sentiments.

Richard Posner (Photo credit: University of Chicago Law School)

April 15 marks the 15th annual Day of Silence, a national event organized by the Gay, Lesbian, and Straight Education Network (GLSEN) to bring attention to anti-LGBT name-calling, bullying, and harassment in schools. But a recent federal court decision—in a case stemming from a conservative response to the Day of Silence—has upheld the right of students to express certain anti-gay sentiments.

A leading expert on LGBT youth and the law says the case and others like it show the courts are struggling to define just where the expression of hostile views becomes harassment. And so far, even when they have allowed anti-gay speech, the courts have shown some sympathy to the needs of gay students to be protected against harassment.

In a decision March 1 in Nuxoll v. Indian Prairie School District, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld a lower court ruling that students have a First Amendment right to wear shirts stating “Be Happy, Not Gay.” The school, the court said, had not demonstrated that wearing the shirts would cause “substantial disruption”—a metric the U.S. Supreme Court has used to evaluate permissible speech in schools.

Unlike more overtly confrontational slogans, such as “Homosexuals go to Hell,” wrote Judge Richard Posner for the panel, “Be Happy, Not Gay” is “only tepidly negative.”

“A school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality,” Posner said. “People in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

The Nuxoll case began in 2006, when Heidi Zamecnik, a student at a public high school in Illinois, wore a t-shirt with “Be Happy, Not Gay” on the “Day of Truth,” an event developed by the Alliance Defense Fund (ADF), a conservative Christian legal organization. ADF sees a “Day of Truth” as a conservative response to GLSEN’s “Day of Silence,” and promotes the event on the school day following the “Day of Silence.”

School officials told Zamecnik that her t-shirt violated school policy forbidding “derogatory comments” referring to sexual orientation, among other characteristics. The following year, Zamecnik, now joined by fellow student Alexander Nuxoll, again wanted to wear the shirt on the Day of Truth. This time, school officials suggested alternatives, including the slogan, “Be Happy, Be Straight” and an ADF-produced “Day of Truth” shirt saying “The Truth Cannot Be Silenced.” Zamecnik and Nuxoll refused those options and, with the help of the ADF, filed a lawsuit challenging school officials’ actions.

A U.S. district court in April 2007 found in favor of the school, but the plaintiffs appealed.

The 7th Circuit overturned the first ruling, in 2008, saying the school had not shown that the t-shirt message “Be Happy, Not Gay” would cause “substantial disruption.” But the appeals panel denied ADF’s request that it declare the school’s “derogatory comments” policy unconstitutional.

The 7th Circuit then sent the case back to the lower court with instructions to enter a preliminary injunction allowing the wearing of the t-shirts. It noted that “the district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.”

On remand, the district judge granted the preliminary injunction allowing the two students to wear their t-shirts, then granted a summary judgment in their favor, awarding them each $25 in damages, and issuing a permanent injunction allowing any student to display the slogan on clothing or “personal items.”

This time, the school appealed, claiming in its brief that the district court improperly issued a summary judgment because the school had presented evidence—“numerous examples of emotional, violent and/or threatening reactions of students to the phrase ‘Be Happy, Not Gay’”—that should have warranted a trial.

The 7th Circuit issued its second opinion on the case on March 1, 2011, and said the school had not presented enough evidence that it had “a reasonable belief” the t-shirt would cause “substantial disruption.” It therefore ruled the summary judgment was valid.

Jack Canna, principal attorney of Canna and Canna, which represented the school, said in an interview that he thought “the court should have provided us with a trial into the problems the schools face.”

“A summary judgment presumes no issues of material fact,” he explained. “We felt there were issues related to the impact these messages have on kids,” but the court “just wasn’t impressed with the severity or derogatory nature of this piece of expression.”

Stuart Biegel, a member of the faculty at the UCLA School of Law and UCLA Graduate School of Education and Information Studies, analyzed the early stages of the Nuxoll case in his 2010 book, The Right to Be Out: Sexual Orientation and Gender Identity in America’s Schools. He said in an interview that Posner did show some “sensitivity to what LGBT youth were going through,” as he did in the earlier ruling, while he also “set forth some guidelines that try to respect everybody’s free speech rights.”

The Nuxoll case is only latest of several cases in which courts have been charting the boundary between harassment and free speech with regard to anti-gay sentiments expressed at school.

In the 2001 case Chambers v. Babbitt, a Minnesota high school told a student he could not wear a t-shirt saying, “Straight Pride.” The U.S. District Court for the District of Minnesota found that the t-shirt was unlikely to be disruptive, and therefore, the student had the right to wear it.

Biegel noted in his book that the court in Chambers still “went out of its way” to indicate the opinion was not anti-gay—and parts of Judge Donovan Frank’s opinion may be “among the most supportive of LGBT students” in a federal court decision. Frank noted, for instance, the challenges faced by LGBT youth and praised the school for its efforts to be inclusive.

And in a 2004 case, Harper v. Poway Unified School District, Tyler Chase Harper, a student at a San Diego area high school, wore a t-shirt to school on the Day of Silence saying, “Homosexuality Is Shameful” and that the school “had accepted what God has condemned.”

The school tried to ban the shirt, and Harper sued. In this case, however, the U.S. District Court for the Southern District of California and (on appeal) a panel of the 9th U.S. Circuit Court of Appeals ruled that the t-shirt went too far. Judge Stephen Reinhardt of the 9th Circuit wrote that the slogan interfered with the right of other students to be free from “verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation.”

Harper appealed to the U.S. Supreme Court, which vacated the 9th Circuit’s ruling and remanded the case to the 9th Circuit with instructions to dismiss the appeal to the 9th Circuit as moot, since the district court had, by then, entered a final judgment, stating that because Harper had graduated, his claims were now moot. The Harper case, however, spurred the ADF to create the Day of Truth as a counterpoint to the Day of Silence, Biegel noted.

The Day of Truth is now sponsored by the conservative Christian group Focus on the Family and has been renamed the “Day of Dialogue.” ADF is continuing to provide free legal assistance to participating students.

5th Circuit upholds Louisiana’s denial to gay dads

In a case that calls into question the responsibility of states to recognize adoptions granted in other states, a federal circuit court said Louisiana does not have to put the names of two gay fathers on the birth certificate of a Louisiana-born boy whom they adopted in New York.

In a case that calls into question the responsibility of states to recognize adoptions granted in other states, a federal circuit court on Tuesday, April 12, said the state of Louisiana does not have to put the names of two gay fathers on the birth certificate of a Louisiana-born boy whom they adopted in New York.

A ten-member majority of the full 16-member 5th U.S. Circuit Court of Appeals ruled in Adar v. Smith that Louisiana State Registrar Darlene Smith did not violate the Full Faith and Credit Clause and Equal Protection Clauses of the U.S. Constitution by refusing to issue a new birth certificate to a child born in Louisiana in 2006 but adopted in New York by a gay couple, Oren Adar and Mickey Smith.

The men had requested a new birth certificate from Louisiana listing them both as the boy’s parents. It is a common procedure for children adopted outside their birth states. But Louisiana officials said to do so would violate Louisiana’s public policy of not allowing joint adoptions by unmarried couples.

The fathers, assisted by Lambda Legal Defense and Education Fund, filed a lawsuit in a federal district court. Without the revised birth certificate, said Adar and Smith, it had been difficult for Smith to add their son to his health insurance. The couple also had difficulties with airline personnel, who suspected they might be kidnapping the child.

The federal district court ordered the registrar to issue a new birth certificate identifying both men as the boy’s parents. The state appealed to the 5th Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, and a three-judge panel affirmed the district court ruling. The state then appealed to the full 5th Circuit Court.

The full court ruled that the Full Faith and Credit clause of the U.S. Constitution cannot be used to make states act contrary to their own laws in enforcing judgments from other states. Obtaining a birth certificate falls into the realm of enforcement, it said, “and therefore outside the full faith and credit obligation of recognition.”

It also noted that the Louisiana Registrar agreed the state “is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be relitigated in Louisiana,” and thus, “There is no legal basis on which to conclude that failure to issue a revised birth certificate denies ‘recognition’ to the New York adoption decree.”

On the issue of Equal Protection, the court noted that the gay couple claimed Louisiana treats adoptive children of unmarried parents differently from adoptive children with married parents, “and this differential treatment does not serve any legitimate governmental interest.”

The court disagreed, saying the state has a “rational preference for stable adoptive families,” and its birth certificate requirements “flow from its domestic adoption law.”

Lambda Legal issued a statement Tuesday evening, saying it is “astonished” at the ruling, saying “this court seems willing to turn away from the full faith and credit clause of the Constitution just to deny an accurate birth certificate for this child adopted by his two fathers.”

The court also refused to evaluate the case based on “heightened scrutiny,” which requires a higher justification to uphold a law, using instead the lower “rational basis” standard.

“Since adoption is not a fundamental right,” said the majority, “the Louisiana law will be upheld if it is rationally related to a legitimate state interest.”

It explained, “Louisiana may rationally conclude that having parenthood focused on a married couple or single individual–not on the freely severable relationship of unmarried partners–furthers the interests of adopted children.”

In support of this assertion, the court said Louisiana has “a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children”—a quotation from Lofton v. Secretary of the Department of Children and Family Services. That was a 2005 case in which the federal 11th U.S. Circuit Court of Appeals said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. The ban was later challenged again and overturned in state court in 2010.

The majority also cited a 2002 article “Marriage from a Child’s Perspective,” by University of Michigan sociologist Kristin Anderson Moore, which “noted that marriage, when compared to cohabitation, ‘is associated with better outcomes for children,’ since marriage is more likely to provide the stability necessary for the healthy development of children.”

“This fact alone,” said the court, “provides a rational basis for Louisiana’s adoption regime and corresponding vital statistics registry.”

Moore’s paper discussed only opposite-sex couples, not same-sex ones.

Chief Judge Edith Jones, who was nominated to the 5th Circuit by President Ronald Reagan and appeared on President George W. Bush’s “short list” of potential Supreme Court nominees, wrote the opinion.

Of the nine other concurring judges, three others were Reagan nominees, one was a nominee of President George H. W. Bush, four were nominees of President George W. Bush, and one was a nominee of President Jimmy Carter.

One judge, a nominee of George W. Bush, concurred in part and dissented in part.

Of the five dissenting judges, Jacques Wiener, Jr., who wrote the dissent, was a nominee of George H.W. Bush. Three were nominees of President Bill Clinton, and one of George W. Bush.

In the dissent, Wiener said the ruling sets up a “circuit split” between the 5th and 10th Circuit Courts. In 2007, the 10th Circuit Court ruled, in Finstuen v. Crutcher, that an Oklahoma law refusing to recognize adoptions by same-sex couples was unconstitutional.

A circuit split may mean the U.S. Supreme Court will be more likely to hear the case, should it be appealed. A spokesperson for Lambda Legal said they would need to do more analysis of the opinion before making the decision on whether to appeal.

New ad campaign promotes equal access to housing for LGBTs

The U.S. Department of Housing and Urban Development (HUD) announced that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics.

HUD Secretary Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) announced Friday, April 8, that it is launching a national media campaign to promote equal access to housing regardless of sexual orientation and gender identity, among other characteristics. And new data shows a marked increase in the number of LGBT housing discrimination complaints filed under existing law.

The ad campaign is the latest in a series of moves HUD has made to address discrimination against LGBT people or those perceived to be.

The new campaign, “Live Free,” will run throughout the year and include “Facebook ads, targeted print ads, digital videos, and podcasts,” according to a HUD press release.

One print ad asks, “Should Gender Stereotypes Influence Where You Live?” and directs people to learn more about HUD’s LGBT initiatives at HUD’s Fair Housing Web site, www.hud.gov/fairhousing.

Last July, HUD issued a clarification of existing policy, stating that, although the Fair Housing Act—a pivotal civil rights act that prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status—does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover it in other ways. For example, gender-identity discrimination may be seen as sex discrimination.

Since that guidance was issued, the number of complaints from LGBT individuals to HUD about housing discrimination has increased, according to HUD. From July 1, 2010 to February 28, 2011, LGBT individuals filed 47 complaints of gender-based housing discrimination. During the same date range in 2009 and 2010, before the guidance was issued, there were only three such complaints.

No national study has quantified how many LGBT people have faced housing discrimination, although several smaller studies and examples have indicated pervasive discrimination, especially against transgender people and LGBT seniors.

HUD has been preparing a national study to fill this gap, with a target date for reporting findings in late 2012. It may also include LGBT discrimination in its decennial study of housing discrimination, which has, in the past, looked at racial- and ethnic-based discrimination, according to a HUD spokesperson.

HUD has also instructed staff to inform individuals about state and local LGBT protections that may apply to them. And HUD has told its grant applicants—who seek a total of $3.25 billion in federal funding—they must comply with such state and local laws, where they exist.

Additionally, in January 2011, HUD announced a proposed new rule intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs—programs that impact 4.4 million units of housing in the country.

The proposed rule would prohibit owners and operators of HUD-assisted or -financed housing from inquiring about applicants’ sexual orientation or gender identity, and prevent them from excluding otherwise eligible families if one or more members is or is perceived to be LGBT. It would also prevent lenders from using sexual orientation or gender identity of an applicant as a basis to determine eligibility for Federal Housing Administration (FHA) mortgages, which represent one-third of all new mortgages in the country.

A period for public comment on the proposed rule closed on March 25, with nearly 370 comments submitted. HUD must now review them and create the final rule, which a HUD spokeperson said would likely happen by the end of the calendar year.

Many comments on the HUD rule simply expressed support—including a letter representing the 1.1 million members of the National Association of Realtors.

Other comments included specific suggestions. Maya Rupert, Federal Policy Attorney at the National Center for Lesbian Rights, urged “a more explicit definition of who qualifies as a ‘child’ in the definition of ‘family’” under the rule. Rupert suggested specifying “biological or adopted children, stepchildren, children for whom anyone in the family is standing in loco parentis, and foster children,” thus providing protection to families where one parent may not be legally recognized as such.

And several commenters, including Kristina Wertz of the Transgender Law Center, suggested modifying the proposed rule to clarify that housing providers “may only inquire about an individual’s gender identity for the purpose of placing them in a gender- specific accommodation,” but not “regarding a person’s birth sex, anatomy or medical history.”

There are currently no explicit federal protections that ban housing discrimination based on sexual orientation or gender identity. Twenty states plus the District of Columbia have housing protections specific to sexual orientation, and 13 states plus the District have protections specific to gender identity. Approximately 150 cities, towns, and counties have LGBT protections as well, according to HUD.

At the end of the last session of Congress, Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.) introduced the Housing Opportunities Made Equal (HOME) Act, which would amend the Fair Housing Act to prohibit discrimination in housing, not just HUD housing, on the basis of sexual orientation, gender identity, source of income, or marital status. Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

The bill would also expand the Fair Housing Act’s definition of “familial status” to include “anyone standing in loco parentis” to a minor.

A spokesperson for Rep. Jerrold Nadler (D-N.Y.) said Nadler hopes to reintroduce the bill “soon,” although he did not have an exact date.

With Republican control of the House this session, however, Nadler lost his chairmanship of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The new chair for the renamed Subcommittee on the Constitution is Rep. Trent Franks (R-Ariz.). Trent received a 0 percent score from the Human Rights Campaign for each of the past two Congresses, indicating he never voted in favor of legislation to further LGBT equality.

Arkansas Supreme Court strikes down adoption ban

The Arkansas Supreme Court unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

The Arkansas Supreme Court on Thursday, April 7, unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”

Because the ruling was made on state constitutional claims, the case cannot be appealed further.

The Arkansas law, Initiated Act 1, was passed in a voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.

In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.

The state, along with the Family Council Action Committee (FCAC)—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.

The state Supreme Court ruled, in the opinion written by Associate Justice Robert Brown (an appointee of then-Governor Bill Clinton), that Act 1 “directly and substantially burdens the privacy rights” of both opposite- sex and same-sex couples.

The choice faced by these couples is “dramatic,” said the court. “They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

The court explained that state agencies would have to “police” couples to “determine whether they are sexually involved in the event those couples represent that they are celibate.” That is an intrusion “into a couple’s bedroom to enforce a sexual prohibition,” an act found unconstitutional in the 2002 Arkansas Supreme Court case Jegley v. Picado.

Because the Cole case involved a fundamental right, the court upheld the circuit court’s use of “heightened scrutiny” to evaluate it. This meant that Act 1 could only be constitutional if it used “the least restrictive method available narrowly tailored to accomplish a compelling state interest”—that interest being protecting the best interests of children.

Act 1, however, was a “categorical ban against all cohabiting couples engaged in sexual conduct,” and thus not “narrowly tailored,” said the court.

The individualized assessments of prospective foster and adoptive parents by the state are effective in determining whether applicants would be suitable, said the court—and those are the “least restrictive” means to serve the State’s interest in protecting children.

The court noted that “several of the State ’s and FCAC’s own witnesses testified that they did not believe Act 1 promoted the welfare interests of the child by its categorical ban” and that attorneys for the State and FCAC admitted during oral arguments that some cohabiting adults would be suitable foster or adoptive parents.

The court also confronted the defendants’ argument that Arkansas courts often place a restriction on cohabitation on a parent following a divorce, as a condition of child custody. The court said that in those cases, the third party cohabiting with the parent has not undergone the extensive screening of people applying to foster or adopt.

The court said that because it found Act 1 unconstitutional based on privacy claims, it would not address the issues of whether it also violated due process and equal protection under the state constitution, or whether it violated the federal constitution.

Christine Sun, lead counsel for the ACLU on the case, said in an interview Thursday that she was “ecstatic” about the ruling.

“We’re relieved for our plaintiffs. Now the child welfare professionals of Arkansas can do their job and do what’s in the best interests of children.”

Plaintiffs included a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.

The unanimity of the court, Sun said, “indicates our case was very strong.”

She noted that the ruling “should not only have an effect in Arkansas, but on other states that may be considering similar types of bans.” While the ruling is limited to Arkansas, she hopes other states will follow the same legal analysis.

Sun also noted that the federal constitution also has “a robust right to privacy,” and “the same analysis should apply to a claim under the federal constitution.”

Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.

A Florida appeals court in September 2010 overturned that state’s ban on adoption by gay and lesbian individuals, and the state declined to appeal it to the state supreme court.

And Virginia Governor Robert McDonnell (R) is now considering whether to enact a proposal from former Governor Tim Kaine (D) to change state policies prohibiting adoption by unmarried (and by definition, same-sex) couples. McDonnell has indicated he is opposed to the change, concerned about the impact on faith-based adoption agencies. He must make his recommendation to the State Board of Social Services by April 16.

On March 18, U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.

Arkansas Supreme Court reconsiders adoption ban

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas law, Act 1, was passed by voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.

In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.

The state, along with the Family Council Action Committee—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.

Plaintiffs include a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.

The plaintiffs say that Act 1 violates their rights to equal protection, due process, and the right to privacy under the state constitution.

The defendants claim that Act 1 is necessary to protect children.

Defense lawyer Byron Babione, representing the Family Council Action Committee, also told the court that the issues in the case were part of the state’s larger policy of defining marriage as between a man and a woman. Act 1, he said, serves to encourage marriage and to channel children into “home environments where they do best” and are “less likely to be subject to risks.”

Attorney Garrard Beeney, arguing for the plaintiffs, said Act 1 does not serve the purpose of encouraging marriage because it does not exclude single people from fostering—and it does exclude gay people, who cannot marry in the state.

The heart of Beeney’s argument, however, was that two previous state Supreme Court rulings have held that certain actions similar to the ones in this case violate the state constitution.

In a 2006 case, Department of Human Services v. Howard, the court overturned a state policy that had banned gay people from fostering or adopting children. The state supreme court ruled that the policy excluded gays “based on morality and bias,” and the facts of the case showed no correlation between the welfare of foster children and “the blanket exclusion” of gay people.

And in the 2002 case, Jegley v. Picado, the court recognized the “fundamental right” to intimate relations in the home, as the U.S. Supreme Court did a year later in the landmark Lawrence v. Texas.

Two of the justices who authored the majority and concurring opinions in Howard — Donald Corbin and Robert Brown– also heard the Cole case, as did Chief Justice Jim Hannah, who concurred in Jegley. Neither of the dissenting judges in Jegley remains on the seven-member bench.

Act 1, said Beeney, forces couples to choose between the fundamental right to intimate relations, recognized by Jegley, and their desire to raise children. The Act is therefore a “direct” and “substantial impingement” on that right. It can only stand if the government can identify some “compelling” purpose for it and the law is “narrowly tailored” to accomplish that purpose.

Beeney argued this was not the situation with Act 1. He pointed out that, in 2008, before Act 1 passed, DHS itself rescinded its policy of banning unmarried cohabitors from fostering or adopting. And members of DHS—including the director—testified in the lower court that the Act serves no child welfare purpose.

Several of the justices’ questions to both Babione and Beeney focused on whether the Act should be evaluated based on “heightened scrutiny,” which requires a higher justification, or the lower “rational basis” standard.

The lower court found that Act 1 violated the fundamental right to privacy under state law and should thus be evaluated using strict scrutiny as was Jegley. But the court also said that it did not violate any such right under federal law.

The plaintiffs say that heightened scrutiny should apply, even though, as Beeney noted, Act 1 also “miserably fails,” to demonstrate even a “rational basis,” and actually harms children by keeping them in state care when otherwise qualified people are willing to take them into their homes.

Babione, however, said the protection of children was a sufficient “rational basis” for the Act, and that having to choose between cohabiting and fostering represented only an “indirect, limited burden” on the right guaranteed in Jegley.

Several justices, Brown in particular, pressed Babione on that point. Babione responded that Jegley does not punish cohabitation, and that the interests of children are “paramount.”

Brown then asked him why the state’s extensive screening process for foster parents was not enough to evaluate candidates.

Act 1, Babione responded, serves the purpose of filtering out the “highest risk” people—although he admitted the system is “not foolproof” and might overlook some qualified parents.

Deputy Attorney General Colin Jorgensen agreed, telling the court, “No screening system is perfect.” Because the DHS system is understaffed, he said, it ends up with better applicants if officials “have more time to dedicate to clients who are lower risk.”

Justice Corbin also asked Babione, “What evidence have you presented in this case that indicates that homosexual or gay parents present potential harm to a child?” When Babione referred him to the citations in the defense brief, Corbin questioned whether they were opinion or fact. Babione said they were opinions based upon social science research.

Christine Sun, lead counsel for the ACLU on the case (but who did not argue it on March 17), said she expects a ruling before the court adjourns at the end of June. She said that, depending upon the outcome and how the ruling is written, asking the U.S. Supreme Court to hear the case is “definitely an option.”

In 2005, the U.S. Supreme Court declined to hear a case, Lofton v. Secretary of the Department of Children and Family Services, in which the federal 11th Circuit Court of Appeal said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. Babione quoted the Circuit Court in Lofton near the beginning of his argument in Cole, saying, “The state stands in the shoes of the parents that children have lost.”

On March 18, Senator Kirsten Gillibrand (D-N.Y.) and Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.

Delaware Supreme Court confirms lesbian mom is a parent

The Delaware Supreme Court issued a ruling upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not.

The Delaware Supreme Court issued a ruling March 14 upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not. The ruling was based on the amending of a state law to expand the state’s definition of a “parent” to give full, equal rights to lesbian and gay parents who may not have biological or adoptive ties to their children.

The custody battle between the women not only relied on the amended law, but, in an earlier phase, it had motivated the legislature to amend the law. And in its decision, the Delaware Supreme Court ruled against a challenge to the newly amended law’s constitutionality.

The state Supreme Court ruling upheld a lower court decision stating that Carol Guest had the right to joint custody of the child she had been raising with her former partner, Lynn Smith, even though Smith was the only one who had adopted the child. (The names in the case are pseudonyms used by the court.)

Smith and Guest had obtained the child through a service in Kazakhstan, but that country does not permit two women to adopt a child jointly. Because of that, only Smith filed papers to legally adopt the child in March 2003, but both women raised the child together. According to court documents, a lawyer advised the couple in June 2003 that Guest could petition for adoption in the United States after she lived with the child for a year, but Guest did not do so and the couple split in May 2004. Smith cut off Guest’s contact with their child shortly after that.

The case made two passes through the state courts.

When Guest initially sought custody and visitation through the Family Court, in 2004, Smith countered that Guest had no standing to bring a custody action under the Delaware Uniform Parentage Act (DUPA), which defines who may be considered a “parent” under state law. But the Family Court ruled for Guest in June 2006, saying she had standing as a “de facto” parent—someone who acted as a parent to the child—although she was not a legal parent.

The Supreme Court in February 2009 overturned the Family Court’s ruling and denied Guest custody. The court said the DUPA did not recognize de facto parents and noted that changing the law “is a public policy decision for the General Assembly to make.”

The legislature did so in July 2009, amending the DUPA to define a “de facto” parent as someone who has the “support and consent” of the legal parent(s) and has acted as a parent to that child for long enough to have established “a bonded and dependent” parental relationship with the child.

After Guest went back to the Family Court and was granted custody under the new law, Smith challenged the decision and appealed to the state Supreme Court, which considered the women’s situation for a second time.

This time, Smith claimed the Family Court ruling violated her right to raise her child, as maintained by the 2000 U.S. Supreme Court case of Troxel v. Granville. In that case, the high court struck down a Washington state law that allowed any third party—such as a grandparent—to petition for child visitation rights, even if the parents objected.

But the Delaware Supreme Court said that the cases differed because, in Troxel, the third party had no claim to a parent-child relationship.

“Guest is not ‘any third party,’” the court explained, but a “de facto” parent. As such, under the newly amended law, she is also a legal parent of the child and has “a co-equal ‘fundamental parental interest’” in raising the child.

The definition of “de facto” parent varies from state to state, and not all states give de facto parents full legal status, as does Delaware, explained LGBT family law expert Nancy Polikoff, in an interview. Some states may recognize them as having a claim only to visitation or custody, but not as full parents for the purpose of government benefits and inheritance rights.

Only four other states—Maine, New Jersey, Pennsylvania, and Washington—will, like Delaware, recognize non-biological, non-adoptive parents as having the full rights and responsibilities of parentage. They base their recognition on the person’s relationship with the child, according to the National Center for Lesbian Rights, in an October 2010 fact sheet, “Legal Recognition of LGBT Families.”

States that recognize marriage or civil unions of same-sex couples may also recognize non-biological, non-adoptive parents as full parents under state law. But in Delaware and the other four states, the parents’ rights are based upon their relationship to the child, not to the other adult. Their parental rights are thus not subject to challenge under the Defense of Marriage Act (DOMA) or other state laws banning the recognition of same-sex relationships.

Cold feet: Maryland House backs off vote on marriage

Supporters of allowing same-sex couples to marry in Maryland could see the altar: passing the House and sending the bill to a governor who said he would sign it. But on March 11, the House unanimously voted to send it back to committee.

The road to marriage equality in Maryland had never been a short and smooth one, but supporters of allowing same-sex couples to marry could see the altar: passing the House and sending the bill to a governor who said he would sign it. But supporters never had a clear majority, and some got cold feet in the days leading up to the House vote. On March 11, instead of voting for the bill, the House unanimously voted to send it back to committee. Even some LGBT activists conceded it was the thing to do.

The Maryland vote reduced to two the number of states that could possibly see marriage equality move through the state legislature this year—Rhode Island and New York. Iowa could lose existing marriage equality rights through actions in the legislature this year, and six states that already have statutes that prevent same-sex couples from obtaining marriage licenses—Indiana, Minnesota, New Mexico, North Carolina, Pennsylvania, and South Dakota—could add constitutional amendments to protect the bans from legal challenges. An attempt to do so in Wyoming died in committee in February.

Equality Maryland, the state’s leading LGBT advocacy group, said in a statement that, although they are “disappointed” the bill didn’t pass, sending it back to committee was “a strategic step that will allow us to fight and win in the future.” Board member David Lublin explained to Maryland Politics Watch that, if the bill failed in a vote on the merits, it would have been harder later to convert the delegates who had already voted no in public.

And a coalition of groups including Equality Maryland, the Human Rights Campaign, Freedom to Marry, and Gill Action released a joint statement after the vote, saying, “Over the past several days it has become clear that additional time to continue the marriage conversation in the state will better position the Civil Marriage Protection Act for success.”

The full Senate had passed its version of the bill on a vote of 25 to 22 February 24.

Action then moved to the House, where the Judiciary Committee had voted 12-10 on March 4 to send the bill to the floor, even though committee chair Joseph F. Vallario Jr. (D-Prince George’s), who cast the deciding vote to do so, indicated he would not support marriage equality on the floor.

Support for the bill had already grown shakier. Committee member Sam Arora (D-Montgomery), an original co-sponsor, had said March 3 he would vote against it on the floor, and he only wanted to send it to the full House so voters could have their say in a likely referendum. The state constitution allows voters to submit new laws to a referendum if they can collect the 55,736 signatures necessary to do so.

And Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—were no-shows at the first scheduled committee vote. Alston said she wanted more time to weigh her decision based on diverse feedback from constituents and others. Carter said she was just trying to draw attention to other legislation. Alston eventually voted against sending the bill to the floor, but Carter voted in favor of doing so.

Sponsor Melvin Stukes (D-Baltimore City), who was not on the Judiciary committee, announced at the end of February that he was withdrawing his sponsorship. He said he had come to realize that the bill would grant full marriage equality instead of civil unions.

Three days before the full House vote, the bill was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery) in an interview March 8, adding, “There is still a large block of undecided who will go to the floor undecided.”

Democrats hold a 98 to 43 majority in the chamber.

Even Governor Martin O’Malley (D), who has said he would sign the bill, appeared to shift towards the idea of a voter referendum—something equality advocates have shunned. He told reporters March 3 “We should let the people decide,” according to the Baltimore Sun. After the bill was recommitted, he told the Associated Press, “I would have hoped that we could have resolved this issue and then let the people decide.”

The full House vote came after nearly four hours of debate on March 9 and 11. Debate centered around religious beliefs regarding homosexuality, whether the LGBT community’s political movement for equal rights could be compared to that of African-Americans, and whether same-sex marriage would negatively impact children.

Delegate Mizeur, in one of the most personal speeches during debate, spoke of reconciling her deep Catholic faith with being a lesbian. She said that, if the bill failed, it would not stop her and her wife from loving each other, but the lack of legal protections would “make it really, really difficult for us in the worst, most challenging times.”

Committee Chair Vallario asked, “Where would Martin Luther King be on this issue?”

“I don’t know,” he said, but introduced a motion to recommit the bill to his Judiciary Committee. The House unanimously approved.

One other bill remaining in that committee seeks to ask voters to amend the state constitution to ban same-sex marriages. Spokespeople for both the bill’s sponsor, Delegate Don Dwyer (R-Anne Arundel), and Vallario could not say whether that bill would receive a vote before the session ends April 11.

In the remaining states, the Rhode Island House and Senate Judiciary Committees have held hearings on marriage equality bills in recent weeks, but neither chamber has yet scheduled a vote.

New York Governor Andrew Cuomo (D) has said he will urge the legislature to take up marriage equality this session. He met with LGBT advocates March 9 to discuss the matter.

White House Calls for Coordinated Anti-Bullying Efforts

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together.

President Barack Obama

The White House held a high-visibility conference on bullying prevention March 10, with the President and First Lady calling on parents, teachers, students, and communities to address the problem together. Members of Congress also this week introduced several LGBT-inclusive bills designed to address bullying and harassment of students.

In his opening remarks, President Obama said the one overarching goal of the conference was “to dispel the myth that bullying is just a harmless rite of passage or an inevitable part of growing up.” Instead, he said, “Bullying can have destructive consequences for our young people.”

The President also noted that bullying is “more likely to affect kids that are seen as different, whether it’s because of the color of their skin, the clothes they wear, the disability they may have, or sexual orientation.”

Attending the event were senior administration officials and approximately 150 students, parents, teachers, advocates, and others, including representatives from the Gay, Lesbian and Straight Education Network (GLSEN), the Human Rights Campaign (HRC), the National Center for Transgender Equality, and the Trevor Project.

“No school can be a great school until it is first a safe school,” said Secretary of Education Arne Duncan.

And Secretary of Health and Human Services (HHS) Kathleen Sebelius asserted, “Bullying is not an education problem or a health problem—it is a community problem.”

Breakout sessions led by other administration officials discussed school policies and programs, campus and community programs, and cyberbullying. Although there were no sessions or speeches specific to anti-LGBT bullying, the need to address it came up numerous times in breakout sessions and speeches.

Kevin Jennings, the openly gay Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education, and the founder of GLSEN, said in a call with reporters that bullying has reached a “tipping point” where it “is no longer tolerable.” What pushed it to that point, he said, was the media attention surrounding a string of five suicides last fall related to anti-LGBT bullying.

The event also served to launch the Web site StopBullying.gov, which consolidates federal anti-bullying resources for students, parents, educators, and others. On the homepage is a prominent rainbow-colored box titled “LGBT Bullying,” which links to LGBT-specific information and resources.

The conference also highlighted several private, national campaigns to address bullying, including ones from the National Education Association, the American Federation of Teachers, and the National PTA.

MTV said it will launch a new coalition—of which the Gay and Lesbian Alliance Against Defamation (GLAAD) will be part—to fight bullying and intolerance online.

And Facebook said it will soon enhance the anti-bullying resources in its online Safety Center. It will also create a “Social Reporting” system so that, when people report content that violates Facebook policies, harassing content can be removed quickly, and parents or teachers can be notified.

Already, the administration has taken several steps to address bullying:

  • The Departments of Education, Justice, HHS, Agriculture, Defense, and Interior formed a federal task force on bullying in 2009, and convened the first-ever National Summit on Bullying in August 2010.
  • The Department of Education’s Office of Safe and Drug-Free Schools awarded $38.8 million in grants to 11 states in October as part of a new Safe and Supportive Schools program. The program requires states to survey students, family, and staff about school safety issues, including bullying, and direct grant money where there is the greatest need.
  • The Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.
  • The Department of Education issued a memo to all chief state school officers in December 2010, providing examples of effective state anti-bullying laws as a reference for developing or revising their own.
  • HHS launched a Stop Bullying Now! campaign for students five to eighteen years old, with tool kits to help youth mentor younger children about bullying prevention.

Members of Congress also announced several pieces of anti-bullying legislation this week.

Senators Bob Casey (D-PA) and Mark Kirk (R-IL) reintroduced the Safe Schools Improvement Act March 8, which would require schools and districts receiving federal funds to implement anti-bullying programs and to report data on incidents of bullying and harassment, including bullying done through electronic communication. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.) on March 10 reintroduced the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him in an intimate encounter with another man and broadcast the video online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) introduce the Student Nondiscrimination Act (SNDA) March 10, which states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

Student anti-bullying, non-discrimination bills face uncertain path

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10.

Bob Casey

Members of Congress are introducing a flurry of bills this week designed to address bullying and harassment of students, including LGBT students, and timed to coincide with a major White House conference on bullying prevention March 10. And President Obama and the First Lady, in preparation for Thursday’s event, posted a video March 9 to the StopBullying.gov Facebook page, reaffirming their commitment to addressing the issue. Bullying “affects every single young person in our country,” the president said. “Putting a stop to bullying is a responsibility we all share.”

Bills aimed at doing that died in committee last session, however. And one LGBT leader worries that the anti-bullying legislation does not go far enough to provide effective protections.

The Safe Schools Improvement Act (SSIA) introduced March 8 by Senators Bob Casey (D-PA) and Mark Kirk (R-IL) would require schools and districts receiving federal funds to implement and report on anti-bullying programs. The programs must specifically include bullying and harassment based on the actual or perceived sexual orientation and gender identity of students and those with whom they associate, among other attributes.

Bullying and harassment under the Casey-Kirk bill would include actions conducted through electronic communication, such as e-mail or instant messages. The bill would also oblige states to report data on incidents of bullying and harassment to the U.S. Department of Education and make the data available to the public.

During a press call Tuesday, Casey noted that LGBT students, and those perceived to be, are among the most frequent targets of bullies. The recent media attention surrounding several cases of LGBT-related bullying, he said, has made bullying “much more of a national issue” and is one of the reasons people in Washington have paid more attention to bullying in general.

Casey called the SSIA “a strong and bipartisan bill designed to ensure that no child is afraid to go to school for fear of being bullied.”

But, so far, Kirk is the only Republican among the 20 original sponsors of the SSIA. There is one Independent, Bernard Sanders (I-Vt.) When the bill died in committee last session, it had 18 sponsors, also all Democrats except for Kirk and Sanders.

A spokesperson for U.S. Rep. Linda Sánchez (D-CA) said she will soon introduce a House version of the bill, as she did last session.

And Senator Frank Lautenberg (D-N.J.) and Rep. Rush Holt (D-N.J.), plan to reintroduce on March 10 the Tyler Clementi Higher Education Anti-Harassment Act, which establishes similar anti-bullying requirements for colleges and universities receiving federal student aid. The bill is named after a gay Rutgers University student who committed suicide in September 2010 after two other students videotaped him making out with another man and broadcast the videos online.

Senator Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.) will also introduce the Student Nondiscrimination Act (SNDA) March 10 in their respective chambers, according to spokespeople from their offices. SNDA states that elementary and secondary schools must not discriminate against students on the basis of real or perceived sexual orientation or gender identity in any program or activity receiving federal funds, or they will risk losing those funds. “Discrimination,” under SNDA, includes harassment, bullying, intimidation, and violence based on sexual orientation or gender identity.

A federal law could help students even though states have been passing their own anti-bullying laws, said Kara Suffredini, executive director of Mass Equality, the leading LGBT advocacy organization in Massachusetts. The SSIA, she said, goes further than most state laws in providing a specific enforcement mechanism—the withholding of funds. It also goes further than most states, including Massachusetts, in its reporting requirements and in prohibiting bullying based upon specific, enumerated characteristics, such as sexual orientation and gender identity.

A 2007 survey of students by GLSEN found that, where school policies enumerated bullying based on sexual orientation, students were more likely to report problems to staff and staff were more likely to help.

And, in Romer v. Evans, a landmark 1996 U.S. Supreme Court decision that struck down Colorado’s anti-gay Amendment 2, the high court noted, “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”

But enumeration has been a stumbling block in passing anti-bullying legislation in several states. A Texas House committee recently removed enumerated categories from an anti-bullying bill in an effort to mollify those who say enumeration creates special rights for people in the listed groups. And competing bills—enumerated and not—were reintroduced into the Michigan legislature this year after legislators failed last session to resolve whether to include enumerated categories.

Steven Goldstein, chair of Garden State Equality, New Jersey’s leading LGBT advocacy group, cautions that, while enumeration of sexual orientation and gender identity is absolutely necessary, it is not sufficient for truly effective anti-bullying protections. Goldstein helped lead the fight for New Jersey’s Anti-Bullying Bill of Rights, the country’s most sweeping anti-bullying law, enacted in January 2011.

He said that, while he supports the SSIA, it does not go far enough in “specifying what [state] policies should be,” such as “what the deadlines should be for reporting and resolving an incident of school bullying.” The New Jersey law, in contrast, requires bullying incidents to be reported by teachers, investigated, and resolved within specific timeframes.

The SSIA and SNDA’s likelihood of passage remains unclear. Casey said he is not sure yet whether the SSIA will progress as an independent piece of legislation or attached to a larger bill, such as the reauthorization of Elementary and Secondary Education Act (ESEA), the key federal statute governing primary and secondary education. And a spokesperson for Rep. Polis said last session that the Congressman hoped SNDA would also become part of ESEA, but that he would push for it as a standalone bill if necessary.

Marriage Equality Hanging Tough in Md., N.H.

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states–Maryland and New Hampshire–more critical battles seem almost inevitable, perhaps on the ballot in 2012.

Heather Mizeur (Photo credit: Maryland State Archives)

Proponents of marriage equality are holding their own this week in two battleground states, despite tough skirmishes that threatened ground they had previously gained. But in both states—Maryland and New Hampshire—more critical battles seem almost inevitable, perhaps on the ballot in 2012.

In Maryland, a House committee passed a marriage equality bill by a narrow margin on March 4, even though key supporters—including some co-sponsors—appeared ready to cave in to opponents. The full House is now debating the measure and will likely vote on it this week. But opponents have promised to petition for a voter referendum in November 2012, if the bill passes.

In New Hampshire, the House Judiciary Committee voted March 3 to table a bill that seeks to repeal the state’s existing marriage equality law. That action postpones further consideration of the repeal bill until January 2012. But opponents of marriage equality in the Granite State have said they, too, will introduce a bill next year—one seeking to place a question on the ballot in November 2012, asking voters to amend the state constitution to ban same-sex marriages.

The struggle in Maryland grew especially fierce in the House Judiciary Committee, when a vote scheduled for March 1 was delayed because Delegates Tiffany Alston (D-Prince George’s) and Jill Carter (D-Baltimore City)—both co-sponsors—failed to appear. Alston issued a statement saying she wanted more time to weigh her decision based on “the diverse and diametrically opposed feedback” from constituents and others. Carter, in an interview with WBAL-TV, claimed her absence was an effort to draw attention to other legislation.

Then, on March 3, Delegate Sam Arora (D-Montgomery), an original co-sponsor of the marriage equality bill, told House Majority Leader Kumar Barve (D-Montgomery) that he would vote against the bill on the floor. The turnabout was especially stinging for Equality Maryland, the statewide LGBT group that endorsed Arora in the last general election.

“I wrestled with this issue in a way I never had before,” said Arora, in a statement posted to his Web site. He said he would vote support the bill in committee but now believes Maryland should offer same-sex couples civil unions only.

In the final committee vote, with all members present, Arora and Carter were among the 12 delegates, all Democrats, who voted for the bill. Alston was among the 10 voting against it.

Committee Chair Joseph F. Vallario Jr. (D-Prince George’s and Calvert), who has indicated he does not support marriage equality, cast the last–and deciding–vote to send the bill to full House.

Arora clarified that he voted for the bill in committee, and will support it on the House floor, only because he expects voters will have a chance to weigh in on the issue in November 2012, should the full House pass the bill and Governor Martin O’Malley (D) signs it, as promised.

On his Web site, he said the issue “has such impact on the people of Maryland that they should have a direct say. . . . On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls.”

Arora’s position echoed that expressed by several state senators during their deliberation of the Senate bill February 24. State Senator Nancy Jacobs told the chamber that opponents of marriage equality have already been meeting with “people all around the country who have run successful referendums on this issue.”

The state constitution allows voters to submit laws to a referendum if they can collect enough signatures: 55,736. Collection can start as soon as a bill passes the legislature. One-third of the signatures must be submitted by June 1, and the rest by June 30.

If enough signatures are collected for a referendum, no same-sex marriage licenses could be issued until 30 days after the November 2012 referendum—at which point, the results of the referendum would determine whether they could begin. If there is no referendum, the state could begin issuing marriage licenses to same-sex couples as early as October 1, 2011.

A 2001 attempt to hold a referendum to repeal the state’s new law banning discrimination based on sexual orientation failed after the ACLU of Maryland won a lawsuit charging that referendum proponents had failed to collect enough valid signatures.

Two other states have rescinded marriage equality through voter referenda: Maine, in 2009, repealed a law newly passed by the state legislature; California, in 2008, turned back a state supreme court ruling that the state constitution required marriage equality. In the latter case, Proposition 8 amended the state constitution to establish a ban on same-sex marriage. That measure is under challenge in federal court.

Passage in the Maryland House remains uncertain, however. As of Tuesday, the marriage equality bill had 58 sponsors in the House, but was still “probably one to two short” of the 71 votes needed for passage, said Delegate Heather Mizeur (D-Montgomery), in an interview March 8. “There is still a large block of undecided who will go to the floor undecided.”

Last week, Delegate Melvin Stukes (D-Baltimore City) said he would withdraw as a sponsor (he had been No. 59), after realizing the bill would grant full marriage equality instead of civil unions.

Mizeur said supporters in the House hope to pass an identical bill to the one passed by the Senate, allowing it to go directly to the governor for his signature. If the House bill is amended in any way, a House and Senate conference committee would need to agree on a final version to be voted on again in each chamber.

Marriage equality in Maryland: still a long road ahead

Marriage equality in Maryland looks set to take one of two paths–and neither is likely to enable same-sex couples to marry in the Free State for many months to come.

Heather Mizeur (Photo credit: Maryland State Archives)

Marriage equality in Maryland looks set to take one of two paths—and neither is likely to enable same-sex couples to marry in the Free State for many months to come. First, the State House could follow the Senate and pass a marriage equality bill, which Governor Martin O’Malley (D) has said he would sign; but if that happens, opponents have vowed to launch a campaign to put the measure before voters in November 2012, and that would put the legislation on hold until then. Second, the marriage equality bill could fail in the House, thus ending its chances this session.

The House Judiciary Committee held an eight-hour-long hearing on the bill February 25 and will likely vote this week. It heard testimony from the six openly gay or lesbian members of the House, along with dozens of people on both sides of the issue, including Morgan Meneses-Sheets, executive director of Equality Maryland, and Maggie Gallagher, president of the New Jersey-based National Organization for Marriage.

House Majority Leader Kumar Barve (D-Montgomery) told the committee, “For me, this is about rights, respect, family, and love.” He spoke of same-sex couples he knows, including a cousin who is a gay dad. If the bill passes, he said, “My marriage is not going to be diminished one iota.”

Delegate Heather Mizeur (D-Montgomery) spoke about her relationship with her spouse Deborah, who remains “a legal stranger” to her. She urged delegates to vote for the bill because they believe in “the sacredness of marriage” and “the pledge to forever” and because they feel “the state has a role in protecting these commitments.”

Opponents spoke in favor of a competing bill, introduced by Delegate Don Dwyer (R-Anne Arundel), which would ban marriages and other legal relationships for same-sex couples under the state constitution.

The state Senate passed its version of the marriage equality bill on a vote of 25 to 22 February 24, after a debate that legislators on both sides commended for its civility. State Senator Allan Kittleman (R-Howard County) was the only Republican supporter.

Before a preliminary vote February 23, the Senate adopted two amendments to clarify that clergy, churches, and other religious institutions could refuse services, goods, or public accommodations for same-sex weddings.

It rejected two amendments that would have allowed adoption/foster care agencies and individuals authorized to perform marriages to cite religious convictions in order to refuse services to same-sex couples. It also rejected amendments that would have required that same-sex marriage “not be promoted in a public elementary school through teaching or educational materials” and that would have allowed public school teachers to use their religious beliefs as a reason to refuse to teach materials that “promote same-sex marriage.”

The one win for opponents of the bill was in changing the name of the bill from the “Religious Freedom and Civil Marriage Protection Act” to the “Civil Marriage Protection Act.”

During the Senate debate, bill sponsor Jamie Raskin (D-Montgomery) invoked the recent announcement by the Obama administration that the Department of Justice (DOJ) has concluded one section of the Defense of Marriage Act is unconstitutional and that it will not defend that part in two pending cases. Raskin said everyone should understand “how deeply invested Maryland is, as a state,” in that change, and “how significant” will be the more than 1,000 federal benefits that married same-sex couples in Maryland would receive.

But several opponents indicated that, even if the bill passes, it would be put before voters in a November 2012 referendum.

Senator Nancy Jacobs told the chamber, “This is an issue that is important enough to the people of Maryland that we’re going to be taking it to referendum.” She indicated such efforts were already underway, adding “I just guarantee” it will be on the ballot.

“When we knew we did not have the votes [to defeat the measure], that’s what we started investing our time in,” said Jacobs. “We’ve met with people all around the country who have run successful referendums on this issue.”

The state constitution allows voters to submit laws to a referendum if they can collect enough signatures: 55,736. Collection can start as soon as a bill passes the legislature. One-third of the signatures must be submitted by June 1, and the rest by June 30.

If enough signatures are collected for a referendum, no same-sex marriages would be allowed until 30 days after the referendum—at which point, the results of the referendum would determine whether they could begin.

It remains an open question, however, whether sufficient signatures can be gathered. In 2001, an attempt to hold a referendum to repeal the state’s new law banning discrimination based on sexual orientation failed after the ACLU of Maryland won a lawsuit charging that referendum proponents had not collected enough valid signatures.

Two other states have rescinded marriage equality after voter referenda: Maine in 2009 and California in 2008. California’s ban—Proposition 8—was declared unconstitutional by a U.S. district court in August 2010, but the 9th Circuit U.S. Court of Appeals has issued a stay on that ruling, pending an appeal.

If the Maryland House does not pass the bill, a referendum is a moot point.

The marriage equality bill has 58 sponsors, but is “a couple short” of the 71 votes needed for passage, said Delegate Mizeur, in an interview with MarylandReporter.com on February 25. She expressed confidence that they would find the votes needed. But last week, Delegate Melvin Stukes (D-Baltimore City) said he would be withdrawing as a sponsor (he had been No. 59), after he realized the bill would grant full marriage rights instead of civil unions.

At the start of the House hearing last Friday, committee chair Joseph Vallario (D- Prince George’s and Calvert) said he hoped the committee would take up the bill near the beginning of the week of February 28. His office could not confirm an exact date by press time. Twelve of the 22 members of the Judiciary Committee are co-sponsors of the bill.

Getting to ENDA: On the Road Less Traveled

On the long list of hopes that LGBT advocates put together at the beginning of the Obama administration was the idea that the president should issue an executive order requiring the federal government enter into contracts only with companies that have non-discrimination policies protecting employees based on sexual orientation and gender identity.

President Obama

Second of two parts

On the long list of hopes that LGBT advocates put together at the beginning of the Obama administration was the idea that the president should issue an executive order requiring the federal government enter into contracts only with companies that have non-discrimination policies protecting employees based on sexual orientation and gender identity.

Fred Sainz, vice president of communications for the Human Rights Campaign (HRC), noted that HRC included the recommendation as part of its “Blueprint for Positive Change” document, put out at the beginning of the Obama administration.

Richard Socarides, president of the recently formed LGBT media and communications group Equality Matters, told the Washington Blade February 2 that such an order “ought to be something the president seriously considers doing” now.

Both said the action would be a step towards full protection against employment discrimination—an important step now, when the more far-reaching Employment Non-Discrimination Act (ENDA) appears unlikely to move during the 112th Congress.

Federal contractors comprise approximately 22 percent of the U.S. civilian workforce, according to the U.S. Department of Labor.

But when it comes to civil rights for LGBT people, the administration has eschewed executive orders and other official directives. Instead, it has taken the route of interpreting existing regulations more broadly than they have been in the past. And rather than having the president take the lead in doing so, it has let the heads of the various federal departments announce the expanded coverage.

President Obama has issued only two official directives regarding civil rights protections for LGBT people. The first was a memorandum, in June 2009, that directed Secretary of State Hillary Clinton and the Director of the Office of Personnel Management John Berry to determine what benefits provided to the spouses of straight federal employees could also be offered to the partners of gay federal employees under existing laws.

The second was a memorandum, in April 2010, that directed the Department of Health and Human Services to ensure that hospitals participating in the federal Medicare or Medicaid reimbursement programs allow patients to designate their own visitors, including same-sex partners.

A presidential memorandum has the same legal force as an executive order, according to a memo from Randolph Moss, acting assistant attorney general to President Clinton, in 2000. Unless otherwise specified, either remains in effect even after a new administration takes office. A subsequent president could also change either.

One difference is that executive orders follow a more formal process for publication. They are numbered and must be published in the Federal Register, the official record of executive branch documents. Presidential memoranda are not numbered and do not have to be published in the Register—although they may be. President Obama specified that both of his LGBT-related memoranda be published.

Without a public directive of either kind from the White House, however, OPM quietly extended employment protections for federal employees to cover gender identity in January 2010.

Similarly, without a public presidential missive, the Department of Labor (DOL) in June 2010 issued a statement clarifying that the Family and Medical Leave Act (FMLA) allows any private employee covered by the FMLA “who assumes the role of caring for a child” to take family leave “regardless of the legal or biological relationship” to the child. In doing so, it recognized nonbiological, nonadoptive parents in same-sex relationships.

Like the DOL, two other federal departments have—without official presidential requests—issued “guidance” about how to interpret existing regulations to be more inclusive of LGBT people, even if the regulations don’t specify sexual orientation or gender identity.

The Department of Education issued guidance to school officials last October, reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students. Even though current laws enforced by the department’s Office for Civil Rights do not explicitly address harassment based on sexual orientation, they do prohibit sexual harassment and gender-based harassment directed at LGBT students or those perceived to be.

And the Department of Housing and Urban Development (HUD) issued guidance last July stating that, although the Fair Housing Act (FHA) does not explicitly cover sexual orientation- or gender identity-based housing discrimination, such discrimination may be covered by the FHA in other ways. For example, gender-identity discrimination may be seen as gender discrimination, and discrimination against a gay man because of fear he will spread HIV/AIDS may constitute illegal discrimination on the basis of a perceived disability.

None of the departmental guidance was in reaction to President Obama’s June 2009 memo because the guidance covered people other than federal employees.

Yet another example of letting a department lead the way was the February 23 announcement from Attorney General Eric Holder that the Department of Justice (DOJ) has concluded one section of the Defense of Marriage Act is unconstitutional and it will not defend that part in two pending cases.

Unlike other LGBT-related departmental announcements, Holder’s statement made it clear that the president was actively involved in the decision—but the announcement still came from DOJ, not the White House.

There is precedent for presidents to issue executive orders aimed at prohibiting discrimination. President Lyndon B. Johnson in 1965 issued an order prohibiting federal contractors and subcontractors from discriminating in employment decisions “on the basis of race, color, religion, sex, or national origin.” President Richard Nixon, in 1969, issued an executive order prohibiting discrimination on the basis of race, color, religion, sex, national origin, handicap, and age in federal civilian employment. In 1995, President Bill Clinton issued an executive order prohibiting federal agencies from discriminating on the basis of sexual orientation for the purpose of granting security clearances. And in 1998, he issued an executive order to add “sexual orientation” to the non-discrimination protections for federal civilian employees.

The executive order called for under HRC’s Blueprint is one that would add sexual orientation the non-discrimination protections for the employees of companies that contract with the federal government.

The Department of Labor enforces anti-discrimination laws that apply to federal contractors, but so far, the department has made no move beyond the FMLA in reinterpreting existing regulations to clarify protections for LGBT people.

Similarly, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws among most private employers with more than 15 employees, has issued no guidance on how existing EEOC laws might still cover some types of anti-LGBT discrimination—such as gender discrimination—in the absence of fuller ENDA protections.

Brian Moulton, chief legislative counsel for HRC, acknowledged that his organization’s focus to date has been on ENDA, rather than “half measures,” such as reinterpretations of existing policies across an array of federal departments and agencies. But now that Republicans control the House and the prospects for passing ENDA have dimmed for the near future, the topic is worth a look, he said, because “the world’s a little different.”

Marriage two-step: forward in Maryland, backward in Indiana

Marriage equality and legal recognition for same-sex relationships took a few big steps forward this past week—in Maryland, Colorado, Delaware, Hawaii, New Mexico, and Rhode Island. But they took a few steps backward, too—in Indiana, New Hampshire, and Wyoming.

Marriage equality and legal recognition for same-sex relationships took a few big steps forward this past week—in Maryland, Colorado, Delaware, Hawaii, New Mexico, and Rhode Island. But they took a few steps backward, too—in Indiana, New Hampshire, and Wyoming.

The most dramatic action right now is taking place in Maryland where supporters of a marriage equality bill have picked up some critical support but are still counting votes to stop any procedural effort to defeat the measure.

Equality advancing:

Maryland: Debate is scheduled to begin today (February 23) on the marriage equality bill in Maryland. The final vote in the Senate could come as early as Thursday but may not come until next week, depending on the amount of discussion and whether opponents try a filibuster.

The face of the opposition is not all Republican. There are 35 Democrats in the 47-member Senate, and not all support the bill. But the measure recently picked up several additional Democratic supporters and appears to have the 24 votes needed to pass.

Ironically, it was comments from opponents of the measure during a recent public hearing on the bill that seemed to have bolstered support. Senator Jim Brochin (D-Baltimore County), who had previously backed only civil unions, announced in a press release February 9 that he had been appalled by some of the comments made by opponents of the bill, who “vilified the gay community, and described gays and lesbians as pedophiles.” Brochin was one of seven members of the Senate Judicial Proceedings Committee who voted February 17 to send the bill to the floor. Four committee members voted against it.

But supporters of the bill are trying to get enough votes (29) to break a filibuster, should one develop. Neither Equality Maryland nor the office of the bill’s sponsor, Senator Jamie Raskin (D-Montgomery), would confirm whether they have those votes, but Senate President Thomas Mike Miller (D-Prince George’s) told the Baltimore Sun he would work to stop any filibuster and end debate.

Meanwhile, the Maryland House of Delegates has scheduled a hearing on its version of the bill for February 25. It is expected to pass the House, and Governor Martin O’Malley (D) has said he would sign it.

Hawaii: The Hawaii state Senate voted 18-5 on February 16 to pass a bill allowing both same- and opposite-sex couples to obtain civil union recognition. Democratic Governor Neil Abercrombie, a strong LGBT civil rights supporter, plans to sign the measure into law today (February 23).

Colorado: Colorado is considering civil unions, too. State Senator Pat Steadman (D-Denver) used the occasion of Valentine’s Day to introduce a bill into the Colorado Senate, seeking to establish civil union recognition for both same- and opposite-sex couples. State Rep. Mark Ferrandino (D-Denver) is sponsoring a version of the bill in the House.

All 20 Democrats in the 35-member Senate have co-sponsored, so it is expected to pass there. But in the House, Republicans hold a 33 to 32 majority, so even though 27 of 32 Democrats have co-sponsored the measure, the road to passage is much steeper. Rep. Ferrandino told the Denver Post he believes there will be Republican support if the bill reaches the floor.

Same-sex couples in the state have some limited rights based on a 2009 designated beneficiary law, but marriage for them was banned under the state constitution in 2006 through a voter-passed constitutional amendment.

Delaware: Delaware is a third state with civil union legislation. The newly formed Equality Delaware announced it has drafted civil union legislation and that state Rep. Melanie George (D-Bear) and state Senator David Sokola (D-Newark) have agreed to be lead sponsors, who will file the bills in March.

Washington: Washington State already has domestic partnership status and, on Valentine’s Day, State Rep. Jim Moeller (D-Vancouver) and State Senator Ed Murray (D-Seattle) introduced bills seeking full marriage equality for same-sex couples. But the legislature has a hodge-podge of relationship bills before it. The House is considering a bill that would ask voters whether to ban same-sex marriage under the state constitution. And the state House Judiciary Committee on February 17 approved a bill to recognize legal relationships of same-sex couples from other jurisdictions as domestic partnerships under state law. It now goes to the House floor, where its 55 co-sponsors ensure passage. There is, however, no corresponding Senate bill.

Rhode Island: Hundreds attended a House Judiciary Committee hearing February 9 on a marriage equality bill, Independent Governor Lincoln Chafee, a long-time support of LGBT equality, has said he supports it, and Democrats hold large majorities in both chambers. But all that may not be enough. Senate President M. Teresa Paiva Weed opposes marriage equality, making it unclear whether a bill can pass.

New Mexico: The House Consumer and Public Affairs Committee tabled three bills February 17 that would have asked voters to ban marriage for same-sex couples under the state constitution and to ban recognition of same-sex marriages and civil unions from other jurisdictions. This likely kills the bills for the session.

Hostility advancing:

Indiana: The Indiana House passed a bill 70-26 that would ask voters to amend the state constitution to ban same-sex marriage and civil unions. Ten Democrats voted in favor of the bill, including Minority Leader Patrick Bauer (D-South Bend), who had blocked a vote on such a bill when he was speaker during the last session. The bill now goes to the Senate, where it is also expected to pass.

In order to go before voters, however, the measure must pass both chambers during next year’s legislative session.

Meanwhile, State Senators Scott Schneider (R-Indianapolis) and Carlin Yoder (R-Middlebury) have introduced a bill that seeks to prevent state-funded colleges from offering medical or other emergency benefits to same-sex partners of University employees.

New Hampshire: The House Judiciary Committee held a hearing February 17 on three marriage-related bills: one would repeal the existing marriage equality law, one would establish “domestic unions” for same-sex couples, and one would ban both marriage and other forms of relationship recognition.

New Hampshire Freedom to Marry said the House Sergeant-at-Arms estimated a record attendance of 800 people, at least 700 of whom opposed repeal.

Bill sponsors Rep. David Bates (R-Windham) and Rep. Leo Pepino (R-Manchester) asked the committee, however, not to take action on the bills until next year, citing a need to focus on the economy. This is in accord with the wishes expressed by Republican state party leaders in January. Bates said they have told him the bill would be considered in 2012. The committee has not yet confirmed they will wait, however.

Wyoming: The state Senate in Wyoming passed a bill February 18 that seeks to prevent the state from recognizing marriages and civil unions of same-sex couples from other jurisdictions. An amendment was added to let couples in civil unions from other states have access to Wyoming courts to resolve disputes about their relationships. The House had passed the legislation last month, but must now do so again because of the amendment. A vote is expected this week.

One other anti-gay bill—which would ask voters to amend the state constitution to ban marriage for same-sex couples—looks dead for this session, however. Joe Corrigan, chair of Wyoming Equality, said in an interview that Republicans do not have the votes needed to send it to the floor and it has been pulled from the calendar.

North Carolina: Senator James Forrester (R-Gaston) filed a bill February 22 that would ask voters to approve a state constitutional amendment stating that marriage between a man and a woman is the only recognized domestic union in the state. A companion bill is expected in the House.

Forrester has filed similar bills each session since 2004. Democrats have stopped the bill in committee every time, but they lost control of the General Assembly in November 2010 for the first time in more than a century.

Warning: Anti-Gay States May be Hazardous to Your Health

Same-sex couples with adopted children living in states with anti-gay adoption laws and attitudes had more mental health issues in their first year of parenthood than couples with adopted children living in more accepting states, a new study has found.

Abbie Goldberg

Same-sex couples with adopted children living in states with anti-gay adoption laws and attitudes had more mental health issues in their first year of parenthood than couples with adopted children living in more accepting states, a new study has found. In addition, same-sex couples with adopted children who perceived higher support from their family and workplace and lived in more gay-friendly neighborhoods reported better mental health than those who did not.

While the results may seem like common sense, this is the first study to examine changes in depression and anxiety across the first year of adoptive parenthood in same-sex couples. It is also the first study to examine mental health among new gay male parents either adoptive or biological.

Dr. Abbie Goldberg, assistant professor of Psychology at Clark University in Worcester, Massachusetts, co-authored the work with JuliAnna Smith at the Center for Research on Families of the University of Massachusetts-Amherst. Their report appears in the in February 2011 issue of the Journal of Counseling Psychology, a peer-reviewed publication of the American Psychological Association.

Goldberg profiled 180 individuals in 90 same-sex couples (52 lesbian couples and 38 gay male couples) at three separate times during their first year of parenting an adopted child.

She said in an interview that while the sample size is not huge, the data extends over time, which is an improvement over previous studies that have tried to make related observations looking only at one point in time.

Gay and lesbian adoptive parents living in states with unfavorable laws regarding adoption by gay people showed greater increases in symptoms of depression and anxiety (as measured by standard clinical scales) during the period of study than did individuals living in states with more favorable legal climates.

The effect was most pronounced among those with high levels of internalized homophobia—which was assessed by a questionnaire asking participants how strongly they agreed with statements such as, “If someone offered me the chance to be completely heterosexual, I would accept the chance.”

In comparison, individuals with high levels of internalized homophobia, but who lived in states with favorable legal climates, experienced decreases in symptoms of depression during the period of study.

Arkansas, Michigan, Mississippi, Nebraska, and Utah have laws or policies restricting same-sex couples (or unmarried couples, which in those states means all same-sex couples) from jointly adopting. A number of other states also restrict “second-parent adoptions” in which one partner adopts a child who is already the legal child of the other parent.

An Arizona Senate committee on February 2 passed a bill that would give married couples preference in adoption placements. Five days later, a Utah Senate committee tabled a bill that would have allowed second-parent adoptions.

Goldberg explained in an interview that the anti-gay attitudes reflected in anti-gay adoption policies are likely to “trickle down into community attitudes.” These attitudes, her data suggests, can have a negative effect on the mental health of gay and lesbian parents.

While studies show that many people, including straight ones, show an increase in depressive or anxious symptoms in early parenthood, Goldberg explained, most recover later. But, she added, higher levels of depression or anxiety “could have negative effects beyond the individual,” including among their children, especially if the factors causing them—unsupportive workplaces, families, neighborhoods, or laws—don’t change.

In addition to state legal climates, other factors in the study that predicted lower symptoms of depression and/or anxiety among new adoptive parents were workplace support, friend support, relationship quality, and family support.

“Families of origin appear to continue to occupy a socially meaningful role in many lesbians’ and gay men’s lives, even as they begin to form families of their own,” wrote Goldberg. “ . . . Nonsupport may have particularly deleterious consequences on mental health during the transition to parenthood.”

This echoes the findings of Dr. Caitlin Ryan of San Francisco State University, whose Family Acceptance Project has found that acceptance of LGBT youth by parents and caregivers can help protect them against depression, substance abuse, and suicide in early adulthood. Conversely, LGBT young adults whose families rejected them were more than three times as likely to have suicidal thoughts and to report suicide attempts.

Goldberg’s paper notes some of the limitations of her adoption study. A majority of participants lived in states that were “relatively supportive” of adoption by same-sex couples. The study also looked at the effect of anti-gay adoption laws but not at other anti-gay laws, such as marriage bans, and it did not consider the impact of certain factors, such as racial identity.

But Goldberg wrote that the study is “an important first step” towards understanding the mental health of new lesbian and gay adoptive parents.

Although this is the first study to look at lesbian and gay mental health among new adoptive parents, several previous studies have shown a general correlation between states with anti-LGBT laws and negative mental health in LGBT people. Most recently, the American Foundation for Suicide Prevention released a comprehensive report on the causes of suicidal behavior in LGBT adolescents and adults. It concluded, “discriminatory laws and public policies have a profound negative impact on the mental health of gay adults.”

The report, published in the January 2011 Journal of Homosexuality, was the result of a conference on LGBT suicide risk sponsored by the Foundation, the Gay and Lesbian Medical Association, and the Suicide Prevention Resource Center (SPRC). SPRC is a congressionally mandated and federally funded initiative, managed through the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services (HHS).

And HHS’s Healthy People 2020 report, which came out in December 2010 and sets the nation’s 10-year goals and objectives for health promotion and disease prevention, stated that “Research suggests that LGBT individuals face health disparities linked to societal stigma, discrimination, and denial of their civil and human rights. Discrimination against LGBT persons has been associated with high rates of psychiatric disorders, substance abuse, and suicide.”

Same-sex parents’ rights: It’s not Hollywood, it’s war

A film about two lesbian moms, The Kids Are All Right, is an Oscar contender this month. ABC’s Modern Family, which features two gay dads, won last year’s Best Comedy Emmy. But a series of court cases in the past two months shows that the right of lesbian and gay people to be recognized as parents is still very much open to challenge–and one legal expert says the challenges will increase.

Nancy Polikoff

A film about two lesbian moms, The Kids Are All Right, is an Oscar contender this month. ABC’s Modern Family, which features two gay dads, won last year’s Best Comedy Emmy. But a series of court cases in the past two months shows that the right of lesbian and gay people to be recognized as parents is still very much open to challenge—and one legal expert says the challenges will increase.

Challenges to lesbian and gay parental rights have usually fallen into one of three categories: challenges to adoptions and court orders—usually when one parent seeks to block the rights of the other parent after their relationship ends; challenges to parental rights based on marriage or civil union status; and challenges by some states to parental rights established by other states.

While the first two types tend to be limited to state courts, the last may move into federal court jurisdiction.

Challenges to adoptions and court orders

Most cases in the past several years involving lesbian and gay parents have been custody battles emerging from the break-up of a relationship. Typically, the biological parent challenges the rights of the nonbiological parent who has not secured legal parentage through a second-parent adoption or court order.

The Ohio Supreme Court heard arguments February 2, for example, in just such a case, In re L.K.M. After the parents broke up, the nonbiological mother petitioned for joint custody, which was granted by a magistrate judge but then overturned by the juvenile court. An appellate court upheld the reversal. The Ohio Supreme Court then accepted the case for review.

Three recent cases, however, involved a biological mother challenging the rights of the nonbiological mother despite the fact that she had secured an adoption or court order. Nancy Polikoff, professor of law at American University and an expert in LGBT family law, says this is a new and worrisome trend.

In In re Adoption of T.A.M. and E.J.M., a Minnesota appeals court on December 14 refused to overturn a nonbiological mother’s second-parent adoption because of the “extreme tardiness” of the biological mother’s legal challenge. Under Minnesota law, a person who wants to challenge an adoption must do so within 90 days of the final decree, and, in this case, the challenge came eight years later. The court did not say whether state law permits second-parent adoptions by same-sex parents.

On December 21, a Wisconsin appeals court ruled in a similar case, In re the paternity of Christian R.H. Wisconsin does not permit second-parent adoptions, so the nonbiological mother had obtained a court order of parentage, an alternate route for legal recognition in some places. The state appeals court found that the parentage order must remain in effect because, again, the biological mother waited too long to challenge it. But the court also made clear that such parentage orders are not allowed under state law.

And in the harshest blow to same-sex parents’ rights, the North Carolina Supreme Court on December 20 voided the second-parent adoption of a nonbiological mother, in Boseman v. Jarrell. Instead of simply saying that the adoption court had misapplied state statutes—which would have overturned the adoption in question and stopped any future ones—the state’s highest court said the adoption court did not have the authority to grant the adoption in the first place. That cast doubt on the legality of all previous second-parent adoptions in the state as well.

The North Carolina Supreme Court also rejected the argument that the biological mother filed her appeal too late to challenge the adoption. The majority said that, because the judgment was declared void, it could be challenged at any time. Two judges dissented on this point.

The court did, however, allow the nonbiological mother joint custody, saying it was in the best interests of the child.

Polikoff says there may be an “escalation” in the number of these cases that challenge even adoptions and court orders because more same-sex couples are raising children and legally securing both parents’ rights.  And, as with all couples, some percentage of the couples will break up.

“The question is what kind of obligation does the bio mom feel to the integrity of the family that she created?” said Polikoff, noting that conservative legal organizations are quick to offer free services to biological mothers in these cases.

Challenges to parentage based on marriage or civil unions

Polikoff said that the spread of marriage equality and civil unions may paradoxically create more challenges to parental rights, too. In states that recognize same-sex unions, nonbiological mothers are presumed to be legal parents, without needing an adoption or parentage order.

But LGBT legal organizations, such as Gay and Lesbian Advocates and Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), recommend that nonbiological parents get an adoption or parentage order anyway, because other states might not honor parental rights that are based on a marriage or union the state doesn’t recognize. Under the federal Defense of Marriage Act (DOMA), states are not obligated to recognize same-sex marriages from other states.

Polikoff says many parents will not know this, however. With four states adopting marriage equality between the end of 2008 and the beginning of 2010, she said, “we haven’t even begun” to see cases challenging parental rights that are based on those unions, as couples travel and move to other states.

One prominent example of such a challenge is the long-running case of Lisa Miller and Janet Jenkins, who had a civil union and a child in Vermont. Miller, the biological mother, moved to Virginia after the couple broke up and tried to get Virginia to deny rights to Jenkins on the grounds that Virginia did not recognize their civil union. After a series of lower court battles, the Virginia and Vermont Supreme Courts upheld Vermont’s jurisdiction and Jenkins’ parental rights. Miller appealed to the U.S. Supreme Court, which in November 2010 refused to hear the case.

Interstate challenges

Almost all courts that have heard challenges by one state to another state’s adoption decrees, however, have ruled that adoptions by same-sex parents are entitled to full faith and credit under the U.S. Constitution. These include the 10th Circuit U.S. Court of Appeals, which in 2007 struck down an Oklahoma law that banned recognition of adoptions secured by same-sex parents in other states; a Florida Court of Appeal that in 2009 said Florida must recognize a second parent adoption granted in Washington state; and the Nebraska Supreme Court, which in 2002 said Nebraska must recognize a second-parent adoption granted in Pennsylvania. Neither Florida nor Nebraska would have granted the adoptions under its own laws.

Still unsettled, however, is Adar v. Smith, in which the state of Louisiana claims it does not have to grant a new birth certificate to a Louisiana-born child adopted by a gay couple in New York, because Louisiana does not allow joint adoptions by unmarried couples. In February 2010, a three-judge panel of the U.S. Fifth Circuit Court of Appeals ruled that Louisiana must issue the birth certificate. The state has appealed the panel ruling to the full court, which heard arguments January 19.

Mathew Staver, founder of the conservative Liberty Counsel, has said cases such as Adar provide a “back door” to marriage equality.

“If a sister state is required to recognize same-sex adoption,” he said in a statement about the case in 2009, “even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

Brightening the outlook for same-sex parents is the January 5 Connecticut Supreme Court decision in Raftopol v. Ramey that a gay male couple are both legal parents to the twins they had via a gestational surrogate—one who is not genetically related to the children. That judgment should be given full faith and credit in other states, Polikoff said—but noted such a ruling has not yet faced a challenge.

Marriage: Maryland advances

Marriage equality in Maryland got a boost in the past week from two prominent politicians, but a winter storm delayed a marriage equality hearing in Rhode Island. Elsewhere, conditions were variable.

Marriage equality in Maryland got a boost in the past week from two prominent politicians, but a winter storm delayed a marriage equality hearing in Rhode Island. Elsewhere, conditions were variable.

Maryland: State Senator Allan Kittleman (R-Howard County) announced on February 2 that he supports a pending marriage equality bill. Kittleman had earlier said he would introduce a separate civil union bill. He then resigned as minority leader January 18, saying Republican colleagues did not want a “social moderate” as leader.

In a statement about his shift in support, Kittleman described himself as “a strong follower of Jesus Christ,” and added, “while my faith may teach that marriage is between a man and a woman, our government is not a theocracy. . . . Therefore, while my spiritual life is extremely important to me, it cannot be the sole basis for my decisions as a state senator.”

Kittleman also noted that his father, the late state Senator Robert Kittleman (R-Howard County), helped fight racial discrimination in the 1950s and 1960s, which “instilled in me the belief that everyone, regardless of race, sex, national origin or sexual orientation, is entitled to equal rights.”

A public hearing on the Senate bill is scheduled for February 8.

Maryland Lt. Governor Anthony Brown (D) also made his first public statement in support of the marriage bill.

Brown, a colonel in the U.S. Army Reserves, released a statement in December applauding the repeal of the federal “Don’t Ask, Don’t Tell” ban on openly gay servicemembers.

The marriage bill is expected to pass the legislature, and Governor Martin O’Malley (D) has said he will sign it. Brown told the Washington Blade, however, that he expects opponents will gather enough signatures for a voter referendum on the bill in 2012, but believes voters will uphold it.

A poll from Gonzales Research and Marketing released January 25 showed 51 percent of Maryland residents support full marriage equality, 44 percent oppose it, and 5 percent did not respond.

Iowa: The full Iowa House approved a bill February 1 to put a measure on the ballot asking voters whether to amend the state constitution to ban legal recognition for same-sex relationships. The 62 to 37 vote was largely partisan, with only three Democrats joining the united Republican majority in favor of the bill.

The vote came after a packed public hearing that included the testimony of nineteen-year-old Zach Wahls, a University of Iowa student raised by two mothers. His speech has become an Internet sensation, receiving over a million viewings on YouTube.

Senate Majority Leader Mike Gronstal (D-Council Bluffs) had said he would block a vote on the bill in his chamber, where Democrats have a 26-24 edge.

California: State Supreme Court Chief Justice Tani Cantil-Sakauye told the Los Angeles Times Feburary 2 that the state’s high court may decide “as soon as next week” whether it will take up a request from the 9th Circuit U.S. Court of Appeals asking if any state law or authority justifies giving Yes on 8 proponents of Proposition 8, the state’s ban on same-sex marriage, standing to appeal the case in federal court.

Colorado: Openly gay State Senator Pat Steadman (D-Denver) said on his Facebook page February 3 that he would be introducing a civil union bill “early next week.” State Rep. Mark Ferrandino (D-Denver), who is also gay, will introduce the House version.

In 2006, Colorado voters approved a state constitutional amendment banning same-sex marriage and rejected a bill for domestic partnerships. Since 2009, however, unmarried couples have been able to obtain a designated beneficiary agreement that gives them limited rights over each other’s medical, financial, and end-of-life matters.

Colorado was the setting for Romer v. Evans, the landmark 1996 LGBT civil rights case in which the U.S. Supreme Court struck down the state’s Amendment 2, which prohibited ordinances protecting people based on sexual orientation.

New Hampshire: The House Judiciary Committee announced it will hold a public hearing February 17 on two bills that seek to repeal the state’s one-year-old marriage equality law. One bill, introduced by State Rep. David Bates (R-Windham), would ban only marriage for same-sex couples; the other, introduced by State Rep. Leo Pepino (R-Manchester), would also prohibit civil unions.

New York: Barbara Bush, daughter of former President George W. Bush, taped a video expressing her support for marriage equality and calling on New Yorkers to join her. And a Quinnipiac University poll released January 27 found that New York State voters support marriage equality legislation by 56 to 37 percent, the highest margin ever for that poll. A Siena poll released January 18 showed similar numbers.

Rhode Island: A House hearing on State Rep. Arthur Handy’s (D-Cranston) bill to enact marriage equality was postponed until February 9 because of a winter storm. State Senator Rhoda Perry (D-Providence) has introduced a similar bill in the Senate.

But three other bills—also filed by Democrats—would put a measure on the ballot in 2012 asking voters if they would like to amend the state constitution to ban same-sex marriage. State Rep. Jon Brien (D-Woonsocket) and Senator John Tassoni Jr. (D-Smithfield) on February 3 filed identical bills to do so. Senator Frank Ciccone (D-Providence) filed a slightly different one February 27, which would leave open the option of civil unions for same-sex couples.

Democrats hold large majorities in both chambers, and House Speaker Gordon Fox (D-Providence), who is openly gay, is a cosponsor of Handy’s bill. Senate President Teresa Paiva Weed, however, opposes marriage equality.

Utah: State Rep. LaVar Christensen (R-Draper), who introduced the 2004 bill (now law) that bans same-sex marriage under the state constitution, filed two bills February 2 that could further limit rights for same-sex couples.

One would require that “publicly funded social programs, government services, laws, and regulations designed to support families be carefully scrutinized to ensure that they promote the family.” The bill defines “family” as “the legal union” of a man, a woman, and their children, “consistent with the Laws of Nature and Nature’s God.”

Christensen’s second bill—nearly identical to one that narrowly failed in 2006—states, “An arrangement, agreement or transaction that is unlawful or violates public policy is void and unenforceable.”

Brandie Balken, executive director of Equality Utah, told the Salt Lake Tribune that among other implications, the two laws taken together could invalidate contracts between members of same-sex couples, such as medical directives and wills.