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

Gay adoption has been illegal in Florida since 1977, but another judge has nevertheless allowed it. This makes three approved gay adoptions within the last year.

What's going on?

Circuit-judges hearing adoption cases have said that the gay adoption ban is unconstitutional, and therefore grant the adoptions despite the law against them. You might remember from discussion around the Proposition 8 trial about what makes a law unconstitutional. It's not whether it's discriminatory, but rather, whether the state has a good enough reason for discriminating.

That's why the judge said in her ruling that the law is unconstitutional because the state government's reason for it--that gay adoption is bad for children and society--isn't good enough:

There is no rational connection between sexual orientation and what is or is not in the best interest of a child. The child is happy and thriving with [his lesbian mother]. The only way to give this child permanency . . . is to allow him to be adopted.

Meanwhile, the Court of Appeals for the Third District in Florida will soon rule on the Gill adoption case, the first of three times when a judge in Florida granted a gay adoption.

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Chris Johnson reported Monday in the Washington Blade about a bill that would withhold federal funding from states that disallow gay adoption [PDF]:

The bill, introduced by Rep. Pete Stark (D-CA), would keep states with adoption policies that  discriminate against gay people from getting any federal child welfare funds:

States with explicit restrictions on adoption that the pending legislation would affect are Utah, Florida, Arkansas, Nebraska and Mississippi. Florida, for example, has a statute specifically prohibiting gays from adopting, and in Arkansas, voters last year approved Act 1, which prevents unmarried co-habitating couples, including same-sex partners, from adopting children.

The bill has no co-sponsors. Furthermore, until it gains more support in Congress, the Human Rights Campaign, the nation's largest gay rights organization, won't spend money to help it pass.

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The New York Times featured on Friday the results of a two month study on the extra lifetime costs of being gay.

The reporters, Tara Bernard and Ron Lieber, tested the finances of hypothetical same sex couples in the three highest gay population: Florida, New York, and California. Their test couples paid from $40,000 to $470,000 more in their lives for being unable to marry.

These financial costs have social consequences. Andrew Sullivan, senior editor of the Atlantic Magazine, explains:

The effect of these policies is to encourage gay people not to form stable, lasting relationships (relationships that have been shown to increase people's health, happiness and productiveness). It is to exact a communal price on anyone who actually does embrace the responsibility of marriage.

Still, the article notes that "nearly all the extra costs that gay couples face would be erased if the federal government legalized same-sex marriage." Because it's unlikely that the federal government will soon legalize gay marriage, it may seem that gay couples have to put up with these costs for awhile. 

But actually all the government has to do is get rid of Defense of Marriage Act. With DOMA gone, most of the costs of being gay would go too.

Take for example health insurance. When employers cover domestic partners, the extra costs from being gay stem from the tax consequences of domestic partner coverage. These tax consequences are because DOMA doesn't allow the IRS to recognize gay marriages.

In the Times article, health insurance posed the biggest cost unique to same sex couples. But the cost is only so large when one partner, not covered with his own job, must buy private insurance because his partner's job doesn't have domestic partnership coverage.

Or, look at the differences in social security benefits or IRA contribution limits. Gay couples pay more in these areas because of DOMA, not state laws. Other areas the article discusses--tax preparation, estate taxes (especially important for wealthy couples)--would similarly have little effect if DOMA were repealed.

While DOMA repeal may not happen soon, it will certainly come before the federal government even thinks about nationally legalizing gay marriage. As a result, gay couples may not have to put up with these extra costs for too long.

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Yesterday the United States District Court for the Southern District of Florida dismissed a lawsuit brought by a woman who wasn't allowed to visit her dying same sex partner in a hospital. The woman had all the proper documents, but the hospital still denied visitation, saying that "[Miami] is in a anti-gay city in anti-gay state."

The court's ruling [PDF] is important for two reasons:

First, the decision equally affects same sex partners, heterosexual spouses, and immediate family members of hospital patients. The court said that Florida law doesn't grant hospital visitation rights to anyone. That means that a Florida hospital can legally deny the immediate family of a patient from visiting (or anyone else with proper documentation, including power of attorney). Such denial is legal even when, as in this case, the person wanting to visit has medical history information that could affect treatment.

I expect many future court decisions in "anti-gay" states to likewise broadly apply to both straight and gay couples. Increasing public support for gay relationships means that courts cannot easily discriminate outright against gay couples without public backlash. Therefore, the dismissal suggests not that gay partners have no visitation rights in "an anti-gay city in an anti-gay state," but that nobody does.

The hospital's public statement after the court's dismissal mirrors this desire to be nondiscriminatory about what is clearly discriminatory treatment. Steve Rothaus reported the hospital's statement in the Miami Herald:

We have always believed and known that the staff at Jackson treats everyone equally, and that their main concern is the well-being of the patients in their care. . . . At Jackson Health System, we believe in a culture of inclusion. For more than 90 years, the institution has taken great pride in serving everyone who enters its doors, regardless of race, creed, religious beliefs or sexual orientation. We also employ a very diverse workforce, one that mirrors the community we serve.

Second, the decision reminds gay couples everywhere that not even the best legal preparation can reliably defeat an institution determined to discriminate against them. This woman followed all the typical advice about bringing documents with her to ensure that her rights are recognized--it still didn't work.

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Because gay couples can't naturally have children, lots of them want to adopt. When they do, they'll be just as good parents as straight couples.

Patricia Reaney reported in Reuters this past Friday what researches said of multi-state study on gay adoption:

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement. "We did find, however, that age and pre-adoptive sexual abuse were," she added.

Despite the study's results, not everyone thinks gay couples should adopt. Jon Dougherty says in the World Net Daily that same sex adoption is bad for kids: "[R]aising kids in anything other than traditional mom-dad households is what has led to so many of today's mounting teen problems."

Ultimately I expect that studies with competing claims to come out in the future. Special interest groups in favor or against gay adoption will fund research that publishes a favorable result.

In the meantime, the research will be used by parties in litigation challenges gay adoption laws. In the Florida adoption case, for example, both sides cited research that gay couples are either as good or not as good parents as straight couples.

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The Florida district court of appeals last week heard arguments on a case challenging the state's gay adoption ban. The state said that the ban is justified because gay couples are more prone to domestic violence, psychiatric disorders, and breakups.

These arguments may sound familiar--they are the same ones used by opponents of same sex marriage. In particular, gay marriage opponents say that higher rates of separation in gay relationships threaten marriage as an institution.

Self-Fulfilling Prophecy

But the arguments against gay marriage only perpetuate the statistics against same sex couples. The inability for gay couples to get married increases the risk of domestic violence and breakups, the same aspects used to deny them marriage in the first place.

Unable to get married in most of the country, gay couples are stuck in an endless state of cohabitation. And as Fox News reported in July, a study published in the Journal of Family Psychology this year showed that cohabitation without getting married creates commitment problems:

Those who moved in with a mate before engagement or marriage reported significantly lower quality marriages and a greater potential for split-ups than other couples.

While this study is recent, the downsides of cohabitation have long been documented. Research consistently shows that cohabitation relationships lead to increased domestic violence, infidelity, and financial strife.

Because gay couples can't marry in most states, the most they can usually do is live together. Even when their state, through domestic partnership laws, gives them some marital rights, the lack of a full union still makes their relationship a glorified cohabitation.

As a result, Florida has created the very circumstances it uses to justify its gay adoption ban. The state has (1) put a ceiling of cohabitation on gay relationships and now (2) argues that the effects of this ceiling mean that gay couples shouldn't adopt.

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Several news outlets reported yesterday about a brief filed the Department of Justice that defended the Defense of Marriage Act while at the same time called for its repeal.

Part of the brief pointed out that the government was not against gay adoption: "[T]he United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing."

Chris Geidner, publisher of the popular Law Dork blog, questioned the impact of this language on a Florida adoption case on appeal:

The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people. 

I don't think the brief will have that much of an effect:

• The DOJ statement at most is a statement of policy. But the Obama administration has already made several statements in favor of DOMA repeal, so this is nothing new.
• A statement in a DOJ brief has no bearing on whether or not a Florida law is constitutional.
• On the totem pole of statements that might influence a state court's decision about a state law, a policy statement in a DOJ brief about a national law is very low.

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Many people think that having a will is important for when you die. For gay couples, it’s important for when you’re living.

In addition to saying how property should be distributed upon death, a will allows someone in a same sex relationship to evidence their intention to be in a domestic partnership.

Employers and insurance companies often require evidence of a domestic partnership before extending benefits to someone’s same sex partner. Drafting a will with the partner as the main beneficiary is a perfect way to document the intention for the holder to care and provide for their same sex partner.

Furthermore, while married couples traveling are rarely questioned if their marriage is valid, gay couples should prepare for and expect for their partnership to be challenged whenever they travel out of state.

A recent Florida case provides an excellent example of the need for preparation. Although Janice Langbehn had documents, including her will, that evidenced her domestic partnership and power of attorney, a hospital denied her the right to visit her partner of 17 years who entered a coma while traveling in Florida. While the documents regrettably did not allow her to visit her partner, she can now sue the hospital for discrimination. If she had not carried those documents, she would have no legal redress.

David Shulman, a South Florida attorney focusing on wills, trusts and estates, and tax planning, notes the tendency for people to put off writing a will:

Too many people put off estate planning until sometime “later.” They think that they can wait because they don’t think that they will die tomorrow. Unfortunately, tragic, sudden deaths happen all of the time, and you owe it to your family to be prepared. You are not immortal. The time to engage in proper estate planning is now.

Gay couples have extra need to take David’s advice. Whether or not they will die tomorrow, they can benefit from having a will today.

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A Florida custody battle highlights why gay couples must consistently prepare for legal challenges to their family rights. A lesbian couple in Florida retained custody of their child after the child’s sperm donor, a gay man with a partner, sued for custody rights. The male couple was helping raise the child, but the lesbian couple wanted to move out of state and take the child with them.

The lesbian couple thoroughly documented their role as primary caregivers. The sperm donor and his partner did not. The lesbian couple won.

Gay couples cannot conceive a child on their own. Instead, couples that want to raise a child must choose from a small variety of alternative options. One of these options involves finding a sperm donor (for lesbian couples) or a surrogate mother (for male couples). This option appeals to gay couples because it lets one person in the couple be the biological parent.

But with that appeal comes risk. The sperm donor or surrogate mother may later sue the gay couple for custody or visitation rights. When straight couples raise children through sperm donation or surrogacy, the non-biological parent adopts the child through second parent adoption. Yet many states, including Florida, do not allow second parent adoption for gay couples. As a result, gay couples in these states should use alternative methods to protect custody of their child from potential legal attack from the other biological parent.

In the Florida case, the couple that won the lawsuit thoroughly documented their role as primary caregivers. Without the right to second parent adoption, their preparation allowed them to keep custody of their child.

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