Tag: Supreme

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.”

Supreme Court justices set stage to end marriage equality

Supreme Court justices set stage to end marriage equality

Supreme Court justices set stage to end marriage equality – Equally Wed, modern LGBTQ+ weddings + LGBTQ-inclusive wedding pros

Should Child Welfare Agencies Be Able to Cite Religion to Discriminate? Experts Urge Supreme Court to Say No

Should Child Welfare Agencies Be Able to Cite Religion to

More than 1,000 experts and organizations filed nearly 50 briefs with the U.S. Supreme Court yesterday arguing that taxpayer-funded child welfare agencies should not be able to discriminate against LGBTQ people and others by citing religious beliefs. The implications of this case could go far beyond child welfare, however.

Fulton Infographic - Movement Advancement Project

The case, Fulton v. City of Philadelphia, 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, a violation of the city’s anti-discrimination laws. CSS then brought a lawsuit in federal district court, claiming those laws impinged on their freedom of religion. Both the district court and an appeals court ruled in the city’s favor, saying that it can require foster care agencies with city contracts to adhere to the city’s nondiscrimination laws. CSS appealed to the U.S. Supreme Court, which said in February that it would hear the case this fall; this past Wednesday it scheduled oral arguments for November 4.

In June, the Trump administration filed a brief siding with CSS and saying that taxpayer-funded child service agencies should be allowed to discriminate. Now, major LGBTQ organizations, child welfare professional associations, LGBTQ youth service providers, faith-based foster care agencies, faith leaders, legal scholars, civil rights organizations, bipartisan elected officials, and others have filed 46 friend-of-the-court briefs opposing such discrimination. Freedom for All Americans, one of the groups involved in the strategy behind the briefs, helped recruit signatories including approximately 450 faith leaders and clergy, 35 current and former Republican elected officials and leaders, more than 30 national businesses, and more than 165 mayors and local governments (including the U.S. Conference of Mayors) representing 50 million Americans.

A new report released this week by the Movement Advancement Project (MAP) further shows the harms of religious exemptions in the child welfare system. Among other things, the report reminds us of the extent of taxpayer funding in the system, with $7.3 billion in dedicated federal child welfare funding going to states and counties and then to individual child-placing agencies, and an estimated $29.9 billion in federal, state, and local funds spent on child welfare in 2016. The impact of allowing discrimination in this system would be immense, as MAP explains:

Research finds that Black and Native American children, children with disabilities, and LGBTQ youth are overrepresented in the child welfare system. That’s why robust nondiscrimination protections within the child welfare system based on race, religion, gender, disability, sexual orientation, gender identity, and other characteristics are so important even though many states lack explicit protections for sexual orientation,  gender identity, and gender expression. Without such protections, children may be mistreated or separated from their families because of factors unrelated to their safety and well-being, and otherwise qualified families may be denied the ability to foster and adopt children in need.

Depending on how the Supreme Court rules and how broad or narrow its ruling is, the Fulton case could create a license to discriminate that would go against the best interests of the hundreds of thousands of children and millions of families who receive services through the system, MAP says.

This undermines the very premise of taxpayer-funded social services: that they are designed to serve all of the public.

Beyond child welfare, a very broad ruling could even “result in nearly every entity that receives government funding, ranging from child welfare agencies to soup kitchens and those offering job training programs, being able to claim a religious exemption to a wide array of regulations and laws.” It could mean that “government-funded service providers choosing to serve only those who share their own beliefs or refusing to provide critical services to those who don’t.”

MAP doesn’t pull any punches: “This undermines the very premise of taxpayer-funded social services: that they are designed to serve all of the public.”

Visit the Freedom for All Americans website to read more about the case, sign up for updates, and learn how you can help spread the word about the harm of using taxpayer funds to discriminate.

Why the Supreme Court Decision on Birth Control Is a Queer Issue

Why the Supreme Court Decision on Birth Control Is a

The only time I’ve ever been on birth control was when my spouse and I were trying to have a child. This just goes to show the variety of ways that birth control is used—and why the Supreme Court’s recent decision allowing more employers to refuse to cover it is very much a queer issue.

Birth control pills

Photo credit: ParentingPatch Licensed under CC BY-SA 3.0

First, let me assure you I know how birth control works. My spouse and I, however, were doing reciprocal IVF, with me donating an egg for her to carry. We needed to synch our cycles so that my egg was retrieved when her uterus was ready. Enter the birth control pill, which allows a clockwork prediction of one’s monthly cycle. (More details here on how we did this.) Yet my situation is far from the only one involving queer people and birth control. Bisexual and pansexual people may be in relationships that have the potential within them to create pregnancies, as may transgender and nonbinary folks. Sometimes, too, birth control is used to regulate hormones for medical reasons having nothing to do with procreation.

The Supreme Court upheld the Trump administration’s desire to allow almost any employer, even for-profit ones, to cite religious or moral beliefs as a reason to refuse to cover birth control for its employees. In doing so, it gutted provisions of the Affordable Care Act (ACA) that say employers must cover this. (The ACA did, in fact allow exemptions for religiously affiliated organizations, while also giving their employees ways of having birth control covered by having the organizations not pay the costs directly, as CNN explains.) Now, the Supreme Court has said even employers who are not religiously affiliated may use religious or moral reasons not to cover birth control. Between 75,000 to 125,000 women could lose birth control coverage, by the government’s estimate.

As Justice Ruth Bader Ginsberg said in her dissent, joined by Justice Sonia Sotomayor, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

This is deeply frightening, especially given the other ways this administration is pushing for religious exemptions to nondiscrimination laws—say, in adoption and foster care,

I wish I had some words of encouragement—but all I can do is agree with RBG. One more reason for us all to vote in November.

Democrats demand end to Donald Trump’s abhorrent trans military ban once and for all in wake of historic Supreme Court ruling

Democrats demand end to Donald Trump's abhorrent trans military ban

Army Sergeant Shane Ortega laces up boots before posing for a portrait at home at Wheeler Army Airfield on March 26, 2015 in Wahiawa, Hawaii. (Kent Nishimura/Getty Images)

Democratic lawmakers have pressed for an end to Donald Trump ‘s ban on transgender people serving in the military, in wake of the Supreme Court’s landmark ruling on LGBT+ civil rights protections.

In its ruling last month, the Supreme Court made clear that anti-discrimination protections enshrined in the 1964 Civil Rights Act also protect people from discrimination in employment based on their sexual orientation or gender identity.

LGBT+ activists are hopeful that the ruling means that days are numbered for the ban on trans people serving in the armed forces, which was imposed in the wake of an infamous Trump tweet-storm in 2017.

Trump administration warned of ‘certain defeat’ over trans military ban

In a letter to Defense Secretary Mark Esper and Attorney General William Barr published Wednesday, Democrats in the House of Representatives urged the Trump administration to “immediately” eliminate the ban and cease resisting court action on the issue in the face of “almost certain defeat.”

The letter states: “This policy denies transgender people the ability to enlist in the military and puts transgender troops at risk of being discharged for living openly and authentically.

“The Bostock decision unambiguously clarified that Title VII’s prohibition against discrimination on the basis of sex includes protections for LGBTQ workers.

“Justice Gorsuch wrote ‘[t]he statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.’”

Noting the four ongoing lawsuits challenging the ban working their way through the court system, the letter adds: “The US Supreme Court’s ruling in Bostock will provide significant weight to those already substantial claims: the principle announced— that gender-identity discrimination is discrimination ‘because of sex’—applies equally to claims under the Constitution.

“Prolonging the litigation in the face of almost certain defeat, and thereby prolonging the existing policy, will continue to inflict serious harm on transgender people seeking to serve our country and on those already serving while living in the shadows, enduring the dignitary harm of being told they’re a burden.

“This policy is an attack on transgender service members who are risking their lives to serve our country and it should be reversed immediately.”

Democratic lawmakers joined activists to rally against the transgender military service ban.
Democratic lawmakers joined activists to rally against the transgender military service ban. (Alex Wong/Getty Images)

The White House declined to comment on the letter, according to forces outlet Stars and Stripes.

The letter, spearheaded by Washington Democrat Suzan DelBene, is signed by 113 Democratic members of Congress, including every single out LGB House lawmaker – David Cicilline, Angie Craig, Sharice Davids, Sean Patrick Maloney, Chris Pappas, Mark Pocan and Mark Takano. There are no out transgender people elected to the House of Representatives.

Joe Biden has already vowed to immediately scrap trans ban

Presumptive Democratic presidential nominee Joe Biden has already pledged to scrap the ban if elected in November.

Former Vice President Joe Biden
Joe Biden has vowed to strike down the trans military ban (Michael Brochstein / Echoes Wire/Barcroft Media via Getty Images)

His policy plan makes clear: “Every American who is qualified to serve in our military should be able to do so—regardless of sexual orientation or gender identity and without having to hide who they are.

“Biden will direct the US Department of Defense to allow transgender service members to serve openly, receive needed medical treatment, and be free from discrimination.”

Supreme Court protects LGBTQ workers from discrimination

Supreme Court protects LGBTQ workers from discrimination

Photo by Chip Somodevilla/Getty Images

In a major defeat for the Trump Administration, the Supreme Court decided that civil rights law protects gay, lesbian and transgender workers.

The landmark ruling will extend protections to millions of workers nationwide and is a defeat for the Trump administration, which argued that Title VII of the Civil Rights Act that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.

The 6-3 opinion was written by Justice Neil Gorsuch, President Donald Trump’s first Supreme Court nominee, and joined by Chief Justice John Roberts and the court’s four liberal justices. 

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Gorsuch wrote.

“There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking,” the opinion read.

via New York Times

Trump asks Supreme Court to make it legal to ban same-sex couples from adopting

Trump asks Supreme Court to make it legal to ban

Photo via Proud Parenting Family Photo Gallery

The Trump Administration has filed a new law brief with the Supreme Court. In it, the administration argues that adoption agencies should have a right to refuse to home children with same-sex couples based on religious beliefs.

The debate rose out of the City of Philadelphia, where the city itself had a contract with Catholic Social Services to help place needy children in foster and adoptive care. The city terminated its contract with CSS in 2018 when the agency refused to place any of its children with same-sex couples, citing a city law that requires nondiscrimination by all agencies contracting with the city government. CSS claimed it would not abide by the regulation, citing religious exemption.

The Trump administration continues to claim that Donald Trump is the most pro-LGBTQ president in historyAn assessment of actions by the administration, however, reveals that Trump is actually the most anti-LGBTQ president in American history.

via Queerty