Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Came across a Schoolhouse Rock-type video about how the Supreme Court banned public broadcast of the Proposition 8 trial on YouTube.

It at least has a catchy jingle. Note that while the video says that California is defending Proposition 8, both Governor Schwarzenegger and the attorney general have declined to defend the law. Instead, various political organizations took up the defense.

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Scientific developments in surrogacy are particularly important to lesbian couples because they could lead to changes in legal rights that so often affect them.

Case in point: a new development pointed out by California family lawyer Theresa Erickson, written about in a New York Times article on the developing science of surrogacy. The article talks about how scientific developments are making it possible for a child to have more than one biological parent. Defective DNA of a pregnant woman can be replaced with DNA from another woman, giving a child 2 biological moms.

This creates problems because state laws are set up with the assumption that a child can only have two biological parents. While a handful of cases have recently recognized the legal possibility of three parents, such as a Pennsylvania decision that made three adults pay child support, most states, including Georgia, have no such cases.

Theresa does note that the article makes a good suggestion for how the law can cope with these scientific advances:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

In other words, parental rights should be based on who take care of a child, not who's biologically related. I'm not sure if this is a good solution, because often in child custody cases more than two adults have helped take care of the child. Certainly, it should be a factor, but I don't think it's necessarily a better system than biological relatedness.

On the other hand, if the law does move to place more weight on who takes care of a child when deciding parental rights, that may make more rare situations where rights are given to sperm donors solely because they're biologically related to the child.

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Seattle University Law School professor Julie Shapiro had a interesting post this past weekend on why lesbians should think twice before using a known sperm donor.

Professor Shapiro points out what's unique about a California where a lesbian couple split up five months after one woman gave birth to twins. Now they fight for custody.

Smith [the non-birth mother] is not simply opposed by Quale [her former partner, the birth-mother] but also by Wallace [the sperm donor], and Wallace is not simply a party in the case, he is present as Quale’s new partner. Quale and Wallace can present themselves as a heterosexual couple, both of whom are related to the child–a traditional, man/woman, genetically constructed family.

It’s not hard to imagine that a court might seize an opportunity to ensure the twins are raised in an ordinary heterosexual, genetically constructed household. 

I agree. While Smith, the non-birth mother, might have a legitimate claim to keeping parental rights, I doubt the court will do anything other than award full parental rights to the birth mom and dad. Especially since the the lesbian couple split up just five months after the twins were born.

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Some people ask how it could be constitutional to ban gay marriage when its clearly discriminatory. The answer is that whether a law is constitutional or not doesn't depend on whether or not it discriminates. Instead, it's all about whether the government has a good enough reason for making the law.

For example, often times courts say that affirmative action laws (such as public school policies) are constitutional even though they discriminate. In those cases, courts say that the government has a good enough reason (correcting effects of past discrimination) to discriminate. Certainly, affirmative action negatively affects those races not benefited by the rules, but the laws are nevertheless legal.

That's why in the California Proposition 8 trial, the fight isn't about whether the the law discriminates or even whether the law hurts gay couples wanting to get married. Instead, it's about whether California has a good enough reason to have the law.

What does "good enough" mean?

It depends. There's 3 versions of "good enough" that the district court can use. Which of these the court should use is one of the things that the lawyers argue about. Auto-straddle, a blog covering lesbian legal issues, explains:

With strict scrutiny, Prop 8 lawyers have to demonstrate that the law is narrowly tailored to further a compelling governmental purpose.

With intermediate scrutiny, Prop 8 lawyers have to demonstrate that the law is substantially related to an important governmental purpose.

With just rational basis, [Prop 8 lawyers have] to demonstrate that the law is rationally related to any legitimate governmental purpose.

Strict scrutiny is the hardest one to show, while rational basis is the easiest.

What's a governmental purpose?

Let's take the argument that the reason to ban gay marriage is to promote families that can naturally procreate. If the court chooses the "strict scrutiny" version of "good enough," then lawyers supporting the gay marriage ban would need to show two things:

1. Proposition 8 does very little else except promote naturally procreating families and also actually does promote these kind of families (narrowly tailored)
2. Promoting naturally procreating families is a compelling governmental purpose.

But if the court chooses the "rational basis" version, then the side against gay marriage only needs to show the following:

1. Proposition 8 is rationally related to promoting naturally procreating families. So, it wouldn't have to actually be effective and it could have lots of side effects. They'd just need to make some rational argument that it's related.
2. Promoting naturally procreating families is a legitimate governmental purpose. Note the difference here: the purpose only has to be legitimate--it doesn't have to be a particularly good purpose, and especially not a compelling one.

Putting It All Together

First the court needs to decide which version of "good enough" to use. Once it does, it'll look at each reason for having the gay marriage ban and determine whether it meets that definition of "good enough."

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Opponents of gay marriage often say that gay marriage should be disallowed because children do better with opposite sex parents. But a new study says otherwise. Sharon Jayson reported last week in the USA Today about research by University of Southern California sociologists that showed that kids with same sex parents do just as well as kids with opposite sex parents.

Timothy Biblarz, one of the two researchers, explained:

Children being raised by same-gender parents, on most all of the measures that we care about, self-esteem, school performance, social adjustment and so on, seem to be doing just fine and, in most cases, are statistically indistinguishable from kids raised by married moms and dads on these measures.

This isn't the first study to claim that kids with same sex parents do just as well as kids with opposite sex ones. This past September a multi-state study reached the same conclusion.

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A lesbian mother that took care of a child was denied parental rights by an Ohio court, but a sperm donor that had almost no contact was given them. Here's what happened:

• Two women, partners, want a child.
• Male friend donates sperm. Signs contract giving up rights to child.
• Woman gives birth to baby girl.
• Couple splits up two years later.
• Birth mother moves out with child.
• Non-birth mother sues for custody rights. Denied.

In the court's opinion [PDF], the judge recognizes that that the non-birth mother acted as a parent while the couple was together, including the facts that the non-birth mother's name was on the birth certificate and that she had been able to make health and support decisions for the child.

Julie Shaprio, a professor at Seattle University Law, pointed out what happened to the sperm donor:

By contrast, the court found that [the sperm donor] was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life.   (This finding wasn’t appealed, so it isn’t discussed in the opinion.  It’s not clear to me why his written agreement is without force.)

So could this happen anywhere? No. I've talked before about how different states have different laws about the rights of non-birth mothers that separate from a relationship with the birth mother.  It's possible in this case that the non-birth mother wasn't given parental rights because, after finding that the sperm donor was a parent, the court didn't want to assign a third parent to the child.

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I've started a new blog, the Atlanta Divorce Law Blog. It will provide resources and information on Georgia divorce and family law.

I hope the new blog will help make the law easier to understand so that people can make more informed decisions about their families. Check it out!

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No matter which way the judge rules in the California Proposition 8 trial, the case will almost certainly be appealed to the 9th Circuit Court of Appeals, and then the Supreme Court.

How would the Supreme Court rule? It's hard to predict because historic political majorities of the Court wouldn't apply.

It's not so simple as dividing up the Court into conservatives and liberals. First let's look at the traditional conservative majority. Usually it falls into two camps:

• Libertarians: "People can do whatever they want--as long as it doesn't cost anything, we don't care."
• Traditional right: "If it's not moral, you can't do it."

When it comes to gay marriage, these two camps will disagree. Libiterians will say that as long as gay couples getting married doesn't cost anything and doesn't affect other people, then it's fine.  But the traditional right won't like gay marriage because they don't think it's moral.

But the historic liberal side doesn't apply to the gay marriage debate either:

• Traditional left: "The government can't restrict personal freedom."
• Liberal subgroup: "The government should prevent people from harming themselves through laws and regulation."

The traditional left will support gay marriage, because they see marriage as a personal freedom and don't think the government should interfere. But a subgroup of liberals will support banning gay marriage if there's any reason that it's bad for society. Or, they'll want to ban gay marriage if they think gay sex is particularly risky (an argument that has much rarer than it was during the AIDS crisis).

So predicting how the Supreme Court would rule on gay marriage isn't as simple as counting the number of conservatives and liberals on the Court. A perfect example lies in the lead attorney for the side in the trial supporting gay marriage: Ted Olsen, a traditional conservative and President Bush's former solicitor general. See his article in a recent Newsweek about the conservative case for gay marriage.

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With the Proposition 8 trial still going on this week, a lot of people just want the facts before they make their own opinion about how the court should rule. Here's three of the best resources that show the laws and statistics about gay marriage in an unbiased way.

State by State Map of Gay Marriage Laws. The Wall Street Journal compiled information from the Human Rights Campaign, the National Conference of State Legislatures, and other sources, to compile a user-friendly interactive map.

Text of State Constitutional Amendments Targeting Same-Sex Marriage. If you're one of those people who wants to read the laws themselves to see how exactly gay marriage is outlawed, check out this collection put together by Lambda Legal.

Year 2000 Census Information on Same Sex Households. Expect these numbers to increase in 2010 more than other types of families. The 2010 census will be the first to let gay couples report as married.

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