Tag: Court

Michigan Appeals Court Recognizes Parental Rights of Same-Sex Parents-and Points the Way Forward

Michigan Appeals Court Recognizes Parental Rights of Same-Sex Parents-and Points

Last week, the Michigan Court of Appeals recognized that both women in an unmarried same-sex couple, one the genetic mother and one the gestational mother, have parental rights. This is a clear victory—but the ruling also indicates what is still needed for even fuller protection of all families, no matter who’s in them or how they are formed.

Michigan - LeFever v. Matthews

LaNesha Matthews and Kyresha LeFever started dating in 2011 and created their family via reciprocal in vitro fertilization (RIVF), using LeFever’s eggs and Matthews’s womb, plus sperm from an anonymous donor. They planned for Matthews to give birth in Ohio, but their twins came two months early, when the two were still in Michigan. That was a problem because at the time, Ohio would allow both moms to be on the birth certificates, but Michigan wouldn’t. Only Matthews was listed, therefore, but the twins were given LeFever’s last name.

The couple broke up in 2014 and shared custody for several years before going to court after a custody dispute. The trial court ruled last year that Matthews was effectively a surrogate, not a parent; removed her from the birth certificates and from any parental decision-making; and gave her only limited visitation as an unrelated “third party.”

The Court of Appeals unanimously disagreed, stating in its ruling (PDF) that “The trial court erred when it concluded that defendant is not a ‘natural parent’ [under the law] because she lacks a genetic link to the twins that she carried through gestation and birthed.” They said the trial court must reconsider the custody case, treating both women as legal parents.

Good news, yes? But Elizabeth L. Gleicher, a judge on the Michigan Court of Appeals, went even further than her colleagues by issuing a separate opinion (PDF) arguing that while the court was right to recognize both women on the basis that each was a “natural parent” to their child, there are also constitutional arguments to support recognition of all parents, regardless of marital status or genetic connection to the children. (Let’s face it, not all same-sex couples who use assisted reproduction use RIVF (though my spouse and I did); many if not most use IVF with the same parent’s egg and womb, leaving one parent with neither a genetic nor gestational connection.) Gleicher wrote (my bold):

LeFever and Matthews had a constitutional right to create the twins in the manner they chose, and it follows that both women have constitutionally protected due process rights to parent the twins despite their nonmarital status. That Matthews lacks a genetic relationship to the twins is constitutionally irrelevant to her liberty interest in their custody. And even had she not personally gestated and born the children (or had an ovum from a donor other than LeFever been implanted in Matthews’ womb), I suggest that both women would nonetheless be entitled to be considered parents of the twins.

The majority opinion of the court, while it didn’t go this far, did indicate the need for a broader view of what constitutes a parent, adding this observation in a footnote (my bold):

We conclude that the term “natural parent” is elastic enough to include both parents in this case, where the parties divided the female reproductive roles of conceiving a child so that each has assumed a function traditionally used to evidence a legal maternal relationship. However, we note that the advent of assisted reproductive technology has complicated an area of law that traditionally was fairly straightforward…. Our current statutory schemes are poor vehicles for modern-made families to seek relief, and we question whether they are robust enough in their current form to provide equitable outcomes to such families…. Accordingly, we anticipate that the Legislature will need to modernize the law to keep pace with technological advancements and appropriately balance various public policy concerns.

Same-sex couples aren’t the only ones who will benefit from updated parentage laws. A different-sex couple in the state, Jordan and Tammy Myers, recently used surrogacy to have a child after Tammy was diagnosed with cancer. They were then told they had to go through the adoption process to become legal parents, since gestational surrogacy is not permitted in the state. “Being forced to prove they are fit to adopt their own children is ‘offensive,’ said Mr. Myers,” the New York Times reported.

Many of us LGBTQ parents will say, “Yeah, welcome to the club,” about that, since we’re still advised to go through the financial and emotional hassle of second-parent (confirmatory) adoptions even when both parents are on the birth certificate. Yet cases like this show the potential for forming a real alliance across all kinds of families in order to make positive change. (Ellen Trachman at Above the Law has more about Michigan’s outdated surrogacy laws.)

We’re seeing this same need for updated parentage laws play out in other states, as I wrote last fall. New York, Rhode Island, and New Hampshire are among the states that have recently updated their parentage laws to better protect all families and all ways of family formation; an inclusive Connecticut parentage bill passed out of committee last month and now moves to the full House. Clearly, though, there’s still lots of work to do.

Nevertheless, one family has benefitted immediately from the Michigan ruling, and for that we should be happy. The National Center for Lesbian Rights (NCLR), along with trial counsel Regina Jemison, represented Matthews. NCLR Family Law Director Cathy Sakimura said in a statement, “We are grateful that our client and her children are once again recognized as a family. We know that families are formed in many ways. Recognizing genetics as the only basis for parent-child relationships leaves out many families and harms children by separating them from their parents.”

Amen—and onward.

Have you read about the Sapporo court in Japan that has said that the same-sex marriage ban is unconstitutional? What do you think about it? : actuallesbians

Have you read about the Sapporo court in Japan that

A place for discussions for and by cis and trans lesbians, bisexual girls, chicks who like chicks, bi-curious folks, dykes, butches, femmes, girls who kiss girls, birls, bois, aces, LGBT allies, and anyone else interested! Our subreddit is named r/actuallesbians because r/lesbians is not really for or by lesbians–it was meant to be a joke. We’re not a militant or exclusive group, so feel free to join up!

A UK court put the smackdown on homophobic ‘Color Purple’ actress / Queerty

A UK court put the smackdown on homophobic ‘Color Purple’

Seyi Omooba. Via YouTube

Seyi Omooba, the actress fired from a UK revival of The Color Purple over homophobic social media posts just suffered a major loss in a UK court. A judicial panel known as the Central London Employment Tribunal ruled against Omooba in a wrongful termination claim.

Omooba had filed the lawsuit following her termination from the Leicester Theatre Trust’s revival of the stage musical version of The Color Purple in 2019. The producers had sacked Omooba following the resurfacing of a Facebook post from 2014 in which she decried LGBTQ people as immoral. The producers felt that casting a homophobic actress as the character of Celie, a lesbian, would not suit the production. The theatre also offered to pay Omooba her full salary, but she refused. The actress then filed suit, claiming that her career had collapsed from the negative backlash. In court, Omooba sought £4,309 from the theatre plus a further £25,000 for damages to her career.

Related: Fired, homophobic ‘Color Purple’ actress sues; claims she’d never play a gay character

The BBC reports that a judicial tribunal found Omooba’s case unconvincing, and on February 17 rejected her claims of discrimination, harassment and breach of contract.

“In the view of the tribunal,” the court wrote in its opinion, “Mr. Stafford [Chris Stafford, chief executive of Leicester Theatre Trust] did not have the purpose of violating the claimant’s dignity or creating an intimidating or humiliating environment for her. His purpose was to save the production.”

“There is no financial loss because she would not have played the part,” the court said. “There is no loss of opportunity to enhance her reputation by performing, because she would not have played the part. If there is damage to her reputation, it was not caused by being dropped from the production but by an unconnected person’s tweeting… of her Facebook post and the outcry resulting from that.”

Attorneys for Omooba expressed their disappointment for the ruling, but have not ruled out options for appeal.

In her original Facebook post–later circulated on Twitter by actor Aaron Lee Lambert–Omooba expressed her disapproval of homosexuality, writing: “I do not believe you can be born gay, and I do not believe homosexuality is right, though the law of this land has made it legal doesn’t mean its right.” Following the controversy over her firing, it also came to light that her father, pastor Adegboyega Omooba, advocates for gay conversion therapy.

Based on the novel by Alice Walker, The Color Purple debuted on Broadway in 2005, and would run for three years. The show also received 11 Tony Award nominations, winning one.  A 2015 Broadway revival of the show won two Tony Awards in 2015, including Best Revival of a Musical and Best Actress for future Oscar-nominee Cynthia Erivo.

Court rules trans woman’s kids can move abroad – and she has to pay

A mother and children playing on the kitchen aisle

A trans woman must pay for her own children to be relocated to live with their other parent abroad. (Stock photograph via Elements Envato)

An Ontario, Canada, court has ruled that a trans woman must pay the travel costs for her two children to move in with their mother in Washington, US.

Increasingly isolated from her family, the upshot of a legal custody battle has seen Darcy feel she is drifting from her children after her former spouse divorced her in 2017.

Her ex is now remarried to a man who works for Microsoft, the Ottawa Sun reported. Darcy and her family were then plunged into a custody battle that sowed division and fear, she said, as her former partner wished to relocate to Washington as her new husband’s job is there.

In the judgment released last month, justices ruled that Darcy’s youngest children can move some 4,000 kilometres away to stay with their mother, step-father and half-sibling.

“I’m in shock, just shock,” the 37-year-old told the outlet.

“They’re moving my kids to a place I can’t go and the idea that I somehow should pay their costs to take my children away seems kind of unfair.”

For a trans mother weary of the US, fears of coronavirus and transphobia loom

Ontario Superior Court justice David Broad considered that while a joint custody agreement would be in the best interests of the children, they need to be allowed to move with their mother.

It’s a decision that has left Darcy reeling, weary of both the rampaging coronavirus keeping country borders shut as well as a US she feels is unwelcoming of trans folk.

“The likelihood of me seeing my kids now is just so low because of COVID,” she explained, finding little respite in the virtual access judges granted her alongside extended long weekends, four weeks in the summer and a week over Christmas vacation.

To her list of woes, she added that as a trans person she “doesn’t feel comfortable” in the US. “I used to travel there for work and I won’t anymore,” she added, worrying that her children would be exposed to transphobia if raised there.

But Broad disagreed. Writing in his judgement: “It was clear from her testimony that the applicant’s concerns respecting these issues are sincere and strongly held.

“However, no expert evidence was led that would suggest that living in the State of Washington, with exposure to the local culture, would adversely affect the children’s development and best interest.”

U.S. Supreme Court Refuses Case Challenging Right of Same-Sex Parents to Both Be Recognized as Legal Parents

Indiana Continues Pressure on U.S. Supreme Court to Deny Same-Sex

This morning, the U.S. Supreme Court refused to take a case in which Indiana was trying to deny the right of married nonbiological mothers in same-sex couples to be recognized as legal parents by being put on their children’s birth certificates. An appeals court had ruled in January that both mothers must be allowed on the birth certificates; because the Supreme Court has refused to take the case, that decision stands.

U.S. Supreme Court

Indiana had been appealing a January 2020 ruling of the 7th U.S. Circuit Court of Appeals in Box v. Henderson that said Indiana must put both same-sex spouses on the birth certificate of a child born to one of them. This right is crucial for giving children with same-sex parents the legal protection of both parents from the moment of birth. In an order (PDF) posted this morning, the Supreme Court “denied certiorari,” meaning they will not hear the case.

I wrote at length about the case in June, when Indiana asked the Supreme Court to take it, and just a few weeks ago, when it filed an additional brief. Please go read those posts if you want to try and understand the convoluted logic by which Indiana was trying to say that only biology, not marital status, matters for birth certificates and that while it does allow a husband’s name to go on a child’s birth certificate even if another man is really the biological father (say, if he and his wife have fertility issues and use a sperm donor), it can treat same-sex couples differently.

Not buying it? Neither, apparently, was the U.S. Supreme Court. The court may also have been reluctant to issue a ruling in opposition to its 2017 decision in Pavan v. Smith, which said that married same-sex couples in Arkansas have the right to both be on their children’s birth certificates. That decision itself rested on the landmark 2015 decision in Obergefell v. Hodges, which said same- and different-sex couples must be treated equally. This case thus threatened not only the rights of same-sex parents, but also the solidity of Obergefell to protect all same-sex couples. The Supreme Court’s refusal to take it is a very good thing.

Congratulations to all of the eight plaintiff couples and their families, to the attorneys from the National Center for Lesbian Rights and Ropes & Gray who worked on the case, and all of the families in Indiana and elsewhere who will benefit.

Indiana Continues Pressure on U.S. Supreme Court to Deny Same-Sex Parents’ Rights

Indiana Continues Pressure on U.S. Supreme Court to Deny Same-Sex

Indiana continues to press the U.S. Supreme Court to take a case that would deny the right of married nonbiological mothers in same-sex couples to be recognized as legal parents by being put on their children’s birth certificates. It doubled down in a brief filed with the court last week. Double down with me as we take a look at the case—and how parenting bloggers are inadvertently playing an odd role.

U.S. Supreme Court

The Case

Indiana is appealing a January 2020 ruling of the 7th U.S. Circuit Court of Appeals in Box v. Henderson that said Indiana must put both same-sex spouses on the birth certificate of a child born to one of them. This right, recognized not only in that case but also in the 2017 U.S. Supreme Court ruling Pavan v. Smith, is crucial for giving children with same-sex parents the legal protection of both parents from the moment of birth.

In its petition to the Supreme Court, filed June 15th, however, Indiana maintains that the 7th Circuit ruling “is in tension with the traditional, constitutionally protected understanding that, at birth, only a baby’s biological parents have legal rights and obligations toward the child.”

In early November, however, the plaintiffs, eight female same-sex married (or previously married) couples and their children, filed a response to Indiana’s request that the Supreme Court take the case. As Mark Joseph Stern noted at Slate, this was by request of the court, and “This unusual step indicates that the justices are interested in taking up the case.” Indiana last week followed up with an additional filing of its own, responding to the plaintiff’s response.

I covered the case and its arguments in some detail in an earlier post. In brief, Indiana is arguing that it is basing its practice on biology, not on marital status. That way, it claims, it does not run afoul of two U.S. Supreme Court rulings about marital status: Obergefell v. Hodges, which legalized marriage for same-sex couples, and Pavan v. Smith, which said Arkansas may not prevent married same-sex couples from having both mothers’ names on their children’s birth certificates. Because those rulings only forbid discrimination on the basis of marital status, Indiana argues, discriminating on the basis of biology is just fine and dandy (my paraphrase).

Defining a Father

The plaintiffs’ recent response (PDF) to this argument noted that Indiana’s Birth Worksheet, which collects information for the birth certificate, “asks the mother if she is married to the child’s ‘father,’ and, if so, to identify him. It does not use the term ‘biological’ or otherwise indicate that the ‘father’ must have a genetic tie to the child.” Therefore, although Indiana says it “treats the term ‘father’ to mean ‘biological father,’” the plaintiffs say “that meaning is neither evident from the form nor supported by Indiana law, and it is contradicted by the form itself.” In other words, the plaintiffs argue, Indiana is not, as it claims, making its decisions based strictly on biology.

Indiana, in its latest response (PDF) to the plaintiffs, notes that it is true that the Birth Worksheet does not define “father” as meaning a biological father—but it then asks incredulously, “But what else would it mean?” It continues, “The word ‘father is commonly understood to mean ‘biological father’ or, as defined by Merriam-Webster, ‘a man who has begotten a child.’” That’s actually the second definition of “father” by Merriam-Webster. Conveniently, Indiana ignores the first definition, which is simply “A male parent,” no begetting necessary.

Next—and here’s the really ludicrous part—it tries to prove that “the word ‘father’ is commonly understood to mean ‘biological father’” by citing three posts by dad bloggers, at Dadtography, Dad Fixes Everything, and Mind Journal, that explore the differences between being a “father” and being a “dad.” Each argues that being a “father” is simply a matter of biology, whereas a “dad” is someone who is active in raising a child. Certainly some may make that argument—and I’m definitely all for encouraging men to be hands-on in their parenting. Yet Indiana’s lawyers are again being very selective in choosing these posts. These may be fine blogs, but we don’t know if they’re necessarily representative of widespread opinion. One can easily find just as many pieces by men who have adopted children, i.e., children not biologically related to them, and use the term “adoptive father.” (Here are one, two, three of them that I found fairly easily.) And the Dad Fixes Everything post they cite even undercuts the state’s argument by noting that “Merriam-Webster doesn’t offer much clarity on the difference between these two titles [dad and father] for men.”

Eggs-pert Opinion

Another point Indiana addresses in the new filing is when a couple (like one of the plaintiff couples), used one person’s egg and the other’s womb. In the initial filing, they called this “the rarest of cases” and said little more about it. (It’s not that rare; it’s the method my spouse and I used and I know plenty of other couples who have.) Indiana now notes that state law conveys biological parental rights on the egg donor, and claims that the State’s refusal to list the gestational mother on the child’s birth certificate (where she would have had to be listed in the “biological father” spot) is “reasonable,” since she is the child’s biological mother, not biological father. “Her remedy is to file a maternity action,” they say. That’s right: after nine months of pregnancy, even when married to the person who provided the egg, the state wants a mother to jump through legal hoops to prove her parenthood. A better answer: Change the form.

Looking Ahead

Indiana continues to press its case to a Supreme Court made even more conservative with the recent addition of Justice Amy Coney Barrett. It even directly addresses the conservative justices who dissented in Pavan, reminding them of their dissent and offering them here a chance to finally have their way (my bold):

As three [dissenting] justices recognized in Pavan, “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court’s precedents suggest just the opposite conclusion.” This case gives the Court a critical opportunity to clarify that States may, consistent with Obergefell and Pavan, establish a biology-based system for allocating parental rights (reflected on the child’s birth certificate) without insisting that every supposed biological parent undergo genetic testing and adjudication.

The two new filings from the plaintiffs and the state have been distributed to the court for its conference on December 11, when the justices will likely consider whether to take the case. If they do, it would still be months before a decision.

Yes, even if they take the case and rule in Indiana’s favor, nonbiological parents in same-sex couples could still get second-parent (co-parent) adoptions to secure their legal rights. Second-parent adoptions, however, usually cost several thousand dollars in attorney’s fees and require an intrusive home study, background check, and court appearance in most states (though a few are simplifying the process). They can also take months to complete, leaving a child without the legal protection of both parents during that time, and at risk if the biological mother dies or is incapacitated.

As always, I’ll remind readers that even if you’re a nonbiological/nongestational mother and are on your child’s birth certificate, you should still do a second-parent adoption if you can. Only an adoption or other court order of parentage is guaranteed “full faith and credit” by other states, and secures the nonbiological parent’s legal ties to the child regardless of marital status. See my October post for more information about this. Nevertheless, having accurate birth certificates is a vital right that not only gives children the immediate protection of both parents, but also gives parents a key document that is required for completing school registrations and other important forms in our children’s lives. Denying children of same-sex parents this right is discrimination, pure and simple.

The plaintiffs in Box v. Henderson have also argued that the Supreme Court does not usually take cases “to resolve questions of state law,” but that is what Indiana is asking it to do. The Court of Appeals “faithfully” applied both the Supreme Court decision in Pavan and state law, and so nothing in the case warrants the Supreme Court’s review, they assert. Let’s hope the Supreme Court agrees and refuses to take the case. If it doesn’t, the rights of queer families will once again be on the line.

Kansas Supreme Court Recognizes “Notorious” Nonbiological Parents

Kansas Supreme Court Recognizes "Notorious" Nonbiological Parents

The Kansas Supreme Court ruled last week that nonbiological mothers may be recognized as parents simply by acknowledging maternity at the time a child is born and showing that the birth mother consented to shared parenting. The case also brings us what could be the best use of the word “notorious” since RBG.

Flag of Kansas

The two cases, In re M.F. and In re W.L., involved nonbiological, nongestational mothers who were trying to establish parental rights after they had separated from their partners. The couples had never married and had not made any written co-parenting agreements. In one case, both of the mothers’ names were on the child’s birth certificate; in the other, they were not, although the twins’ last names were hyphenates of the mothers’ names. Neither nonbiological parent had done a second-parent (co-parent) adoption. Two lower courts said the nonbiological mothers were not legal parents, but the state Supreme Court has now overturned those rulings.

The Supreme Court had also decided in a nonbiological mother’s favor in a 2013 decision involving a separated same-sex couple—but in that case, the women had a written co-parenting agreement. The parents in the current cases did not. Nevertheless, the court ruled last week, just because the earlier couple had a written agreement didn’t mean that subsequent couples were required to show written agreements or their oral equivalents.

They concluded in the current two cases that based on current state parenting statutes, “A woman seeking to establish parenthood who relies on the presumption of maternity under [state law] need not show the existence of a written or oral coparenting agreement between her and the birth mother. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child’s birth” and that “the birth mother has consented to shared parenting at the time of the child’s birth.”

“Notorious” in its legal sense means something “generally known and talked of.” I now sort of want a t-shirt that says “Notorious Parent.” (Maybe this can be the next fundraiser from one of our LGBTQ legal organizations….)

The court made a further important point, stressing that in one of the cases, it was the nonbiological parent K.L.’s “notorious recognition” of her parentage, not (as the lower courts had said) any “open and notorious demonstrations of parenting” or “open and notorious assumption of parenting responsibilities” that mattered. They explain the distinction:

It simply was not necessary that she demonstrate she was an attentive, hands-on, involved mother. Rather, she had to show that she notoriously recognized her maternity, including the rights it would give her and the duties it would impose upon her. The two [lower] courts’ focus … needed to be on whether K.L. had qualified as one of M.F.’s [the child’s] two parents, not on whether she had later turned out to be a model of parenting success.

In other words, nonbiological parents needn’t feel the pressure to prove they are model parents in order to be recognized as parents, something many earlier LGBTQ parents have had to struggle with as they fought for legal rights to their children.

Furthermore, the court said, it is important that the nonbiological mother’s acknowledgment of maternity and the biological mother’s consent happen at the child’s birth, in order to establish stability for the child:

Allowing unilateral action by either party to thwart the maternity of the other after a child has arrived and vital bonds with both have begun to form is unacceptable…. [A] demand that each individual have made up her mind as of the time of the baby’s arrival incentivizes stability for that child over surmountable relationship disappointments that are bound to occur…. In the case of the birth of a child, the crystallization of the parties’ individual intents at the time the child enters the world configures the family.

This is great news, showing that even in Kansas, a very red state, we can make progress for queer families.

Supreme Court Considers Whether Child Service Agencies Can Discriminate Against LGBTQ People

Next Week, a Crucial SCOTUS Case on Discrimination in Foster

Even as we have been waiting for the results of the presidential election, the U.S. Supreme Court heard a case yesterday that will determine whether taxpayer-funded foster care and adoption agencies—and possibly any provider of government-contracted services—can cite religious beliefs as a reason to discriminate against LGBTQ people and others. Here are some of the arguments made.

U.S. Supreme Court

For detailed background on the case, Fulton v. City of Philadelphia, I refer you to my piece from last week. In short, it began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court, which ruled for the city, as did an appeals court. CSS appealed to the Supreme Court, which took the case in February 2020. In June, the Trump administration filed a brief siding with CSS.

Yesterday, in front of a court that included the newly seated Amy Coney Barrett, lawyers for both CSS and the city presented their cases. All of the justices pushed on the question of whether CSS, in taking the city’s contract, was doing the city’s work or doing its own work and simply being licensed by the city. If the latter, the city would have less authority to enforce its nondiscrimination laws.

Justice Sonia Sotomayor pointed out that the city was paying CSS, and the government does not pay entities to take a license. Justice Stephen Breyer noted that the city isn’t asking CSS to endorse marriage for same-sex couples, merely that they meet the statutory requirements to be foster parents.

Prompted by more conservative Justices Samuel Alito and Brett Kavanaugh, however, CSS claimed that no same-sex couple had ever applied to the agency. If they had, it said, they would simply have been referred to another agency. CSS also emphasized its 200-year history of providing services to children and families and said the city was targeting it because of its religion.

Attorney Neal Katyal, arguing for the city, said it is not targeting CSS because of its religious beliefs, but because there are no exemptions to the city’s nondiscrimination laws. This isn’t a matter of religion versus LGBTQ rights, they said, but rather of religion versus religion. A ruling in favor of CSS could mean that people are turned away from government services because of their religion.

Alito, however, seemed to side with CSS in opining that the city wasn’t actually trying to ensure that same-sex couples could be foster parents, but that it simply “can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

CSS also argued to overturn the 1990 Supreme Court case Employment Division v. Smith, in which former Justice Antonin Scalia, writing for the majority, said that Free Exercise Clause of the Constitution, which permits freedom of religion, does not mean that there are exemptions from “a neutral, generally applicable law” that is “not specifically directed to religious practice.” It was hard to tell if the justices seemed interested in overturning Smith, however.

Additionally, Hashim Moopan, a Justice Department lawyer arguing for CSS, said that the city does permissibly consider race or disability in placing children with foster parents. Why can’t it also consider sexual orientation? The city’s lawyers countered that there was a difference between child placements and the screening of potential parents, and it is the latter, where there are no exceptions, at issue here. When asked if CSS’ position of allowing exemptions to nondiscrimination laws could lead to discrimination on the basis of race, Moopan indicated that it wouldn’t, leading Breyer to ask whether “discrimination on the basis of race is different from discrimination based on gender, religion, and sexuality.” Moopan responded that “Race is unique in this country’s constitutional history,” and that eradicating racial discrimination “presents a particularly unique and compelling interest.” When pushed by Justice Elena Kagan on whether it is a compelling state interest to eradicate discrimination against gays and lesbians, he equivocated.

Alito seemed to side with the idea that racial discrimination and discrimination against same-sex couples are fundamentally different, citing Obergefell v. Hodges, the 2015 decision that legalized marriage for same-sex couples. “Didn’t we say in Obergefell that there are honorable reasons to continue to oppose same-sex marriage?” he asked. (The Obergefell decision, written by former Justice Anthony Kennedy, does indeed say, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”)

Justice Brett Kavanaugh also brought up this point in Obergefell, and told the city’s lawyers that while he understood the “stigmatic harm” of CSS’ policy on same-sex couples, “What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”

Overall, the justices seemed split along ideological lines, although Chief Justice John Roberts’ thinking was less clear. The newest justice, Barrett, while she didn’t seem eager to overturn Smith, at one point tried to get Katyal to respond to a hypothetical situation in which a city has taken over all health care and contracts with private entities to provide it. Must a Catholic hospital then perform abortions? Katyal replied that the current case does not involve a government monopoly of previously private services, and that the government takeover of a private care system in itself raises constitutional problems.

Depending on how the court rules, the case could have far-reaching implications beyond just child services, as I explained last week. What’s next? Now we wait—even longer than for the outcome of the presidential election. A decision is expected by the end of the court’s current term next June.

H/t to C-SPAN and to ACLU lawyers Chase Strangio and Josh Block, who live tweeted the hearing.

Queer couples marry before Amy Coney Barrett takes Supreme Court seat

queer couples marry before Amy Coney Barrett confirmation

16 queer couples got married at St Louis City Hall before Amy Coney Barrett’s Supreme Court confirmation. (FOX2now)

Queer couples in America are racing to get married before before far-right nominee Amy Coney Barrett is confirmed to the US Supreme Court, fearing she could roll back marriage equality.

Anti-LGBT+ Catholic judge Amy Coney Barrett is expected to be confirmed to the Supreme Court on Monday (October 26), with the Republican controlled Senate rushing through the appointment of the Trump nominee just one week before the presidential election on November 3.

Barrett’s anti-LGBT+ record, including her membership of the Catholic group People of Praise which kicks members out for having gay sex and her ties to listed anti-LGBT+ hate group Alliance Defending Freedom, has sparked fears that she could roll back marriage equality when she is appointed to the Supreme Court.

In response, Tori Jameson, a non-binary, queer, sex-positive pastor who serves the LGBT+ community in St Louis, Missouri, decided to do something while there was still time.

They said: “She has made statements against Roe, against immigration. I worry about our rights being rolled back if she gets in. But I don’t have a lot of political power. I’m just a community pastor.”

According to them., Jameson offered “pop-up elopements” to the local queer community at St Louis City Hall, allowing couples to tie the knot “while [they] still have the chance”.

The four days of free wedding ceremonies saw 16 queer couples get married, while florists, bakers, photographers and other vendors offered their services for free.

Jameson added: “We are going to take care of our own. You can be hateful, but there is an opportunity here to celebrate love and be joyful.”

Fears are mounting among the queer community that the confirmation of Amy Coney Barrett could undo marriage equality.

On October 4, a week after Donald Trump nominated Amy Coney Barrett, two conservative Supreme Court justices launched a chilling attack on the 2015 equal marriage ruling.

Clarence Thomas and Samuel Alito wrote in a statement that Obergefell v. Hodges, the case that legalised same-sex marriage in all 50 states, had “ruinous consequences for religious liberty”.

“Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws,” the pair wrote.

“It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law.

“But it is quite another when the court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the free exercise clause, leaving those with religious objections in the lurch.”

Chase Strangio of the ACLU explained that the statement suggests the justices “are eager to overturn Obergefell already — even though it is only five years old”.

He added: “The brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection. What we can expect is the continued erosion of legal protections gained over the past century.”

Appeals Court Upholds U.S. Citizenship of Child Born Abroad to Married Gay Dads

Appeals Court Upholds U.S. Citizenship of Child Born Abroad to

A panel of the U.S. Court of Appeals for the Ninth Circuit last Friday unanimously upheld a lower court ruling recognizing the birthright citizenship of a boy born abroad by surrogacy to two married gay dads, one of whom is a U.S. citizen. The Trump Administration’s State Department had refused to recognize the dads’ marriage and tried to deny the boy’s citizenship—even though it recognized his twin brother as a citizen.

Dvash-Banks Family

U.S. citizen Andrew Dvash-Banks and his husband, Israeli citizen Elad Dvash-Banks, had met while Andrew was studying in Israel. They were unable to live together in the U.S. because of the Defense of Marriage Act (DOMA), so they married and settled in Canada, where they had twin sons through surrogacy. After the U.S. Supreme Court in its 2013 Windsor decision repealed key parts of DOMA, they relocated to California in July 2017 in order to be near Andrew’s family.

When they sought recognition of the twins’ U.S. citizenship, however, the State Department demanded DNA tests and other documentation of their biological relationships to the boys. Aiden was conceived with the Andrew’s sperm and his twin brother Ethan with Elad’s sperm, so the State Department treated Ethan as if he was born out of wedlock, denying him citizenship while granting it to Aiden. Ethan thus had to enter the U.S. on a tourist visa, which expired in December 2017, putting him at risk of deportation.

According to Immigration Equality, however, which represented the Dvash-Banks (in conjunction with pro bono lawyers from Sullivan & Cromwell), the law imposes no biological requirement. The family therefore filed a lawsuit against the State Department, and in February 2019, the U.S. District Court for the Central District of California ruled in their favor, recognizing Ethan’s birthright citizenship. In May, the State Department appealed that decision to the Ninth Circuit Court of Appeals.

Friday, a three-judge panel of the Ninth Circuit asserted that the District court had correctly applied settled Circuit case law affirming that the section of the Immigration and Nationality Act (INA) pertaining to married couples, “does not require a biological relationship between a child and the citizen parent through whom citizenship is claimed.” That means that both of the Dvash-Banks twins are U.S. citizens.

Immigration Equality noted, though, that Friday’s ruling “does not extend to the unknown number of families affected by the State Department’s policy.” What we do know is that three other same-sex couples besides the Dvash-Banks have also sued the department because of its policy: the U.S. District Court for the District of Maryland ruled in one two-dad family’s favor in June; the U.S. District Court for the Northern District of Georgia found in favor of another at the end of August; and a two-mom family is awaiting movement in their case in New Jersey, after a federal judge in Washington, D.C. rejected the State Department’s motion to dismiss it and leave their child a non-citizen. (See more about them in my February 2019 piece.) The district courts in Maryland and Georgia both found, like the Ninth Circuit, that a biological relationship with a citizen parent is not necessary for a child to claim citizenship.

It remains an open question whether the State Department will further appeal any of these rulings. The next step for the Dvash-Banks’ case would be the Supreme Court (or, though I think less likely, the full Ninth Circuit), though SCOTUS might be unlikely to take the case until other appeals courts have weighed in on the similar cases. If all of the courts find in favor of the families, however, then SCOTUS might not even want to review any of the cases, since one of the main reasons for them to do so is when there are conflicting decisions among the circuit courts. Having said that, it sometimes also takes them “if the case could have national significance … or could have precedential value,” per the United States Courts website. Are these nationally significant? Marriage equality certainly is. Beyond that, I will leave it to the lawyers to speculate. I will opine, however, that a Biden State Department might support these families and others like them by quickly changing its policy, which would make any continuation of these cases unnecessary.

Learn more at Immigration Equality about the Dvash-Banks’ and the other three same-sex couples that have sued the State Department to ensure their children’s citizenship.