Tuesday, June 29, 2010
Monday, June 28, 2010
Justice Alito’s opinion is also of tremendous importance because it is based on the premis that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them....The McDonald case makes it clear that five justices (Roberts, Alito, Scalia, Thomas, and Kennedy) are now committed to recognizing only rights that are deeply rooted in history and tradition. This is the first occasion on which Roberts and Alito have squarely addressed this issue, and it is also significant because Justice Kennedy, who strayed from the conservative camp when he found a constitutional right to commit sodomy, is now back to signing on to opinions that confine constitutional rights to those that are deeply rooted in history and tradition.
Friday, June 25, 2010
Plenty of blogs have been buzzing about Soledad O'Brien's piece last night, Gary and Tony Have a Baby, the latest in CNN's Gay in America series. To be sure, reactions have been mixed. Take, for example, the pieces at Bilerico that are both generally positive and quite critical (largely based on the perpetuation of gay stereotypes). The piece itself raises a lot of issues (including the legal angle of adopting via surrogacy), but I find it encouraging that the issue is being addressed in the mainstream media in a way that (hopefully) will have a positive impact on people's perceptions of the struggles gays and lesbians have to go through to have a child. And I thought the piece itself was well put together, particularly when you consider that its audience isn't really gay couples in New York or San Francisco, but generally conservative people in middle America.
Meanwhile, in not so encouraging news, a Wisconsin appeals court ruled yesterday that same sex partners do not have full parental rights of their adopted kids (the opinion is posted here). The case arose when a lesbian couple, Wendy and Liz, adopted two children. Under Wisconsin law, the women cannot marry, and because they are not married they cannot jointly adopt. So Liz adopted the kids, which became a problem after Wendy and Liz's relationship ended and Wendy attempted to gain some sort of legal recognition of her parental relationship with the kids. The court ultimately refused to recognize Wendy as a parent. The court also refused to address Wendy's Constitutional claims, which argued that Wisconsin law violated the kids' equal protection and due process rights, saying they were "inadequately developed." A fight for another day.
The different ways of looking at gay parenting and adoption issues are highlighted by Susan Appleton in her paper Gender and Parentage just posted on SSRN (via Legal Theory). Appleton takes on how the legal system currently treats parenting rights and adoption issues, and why courts and legislatures should approach these issues from a "diversity approach" - basically, all parties are equal regardless of gender. Appleton contrasts the diversity approach with the "integrated model," which does focus on the biological roles of parents. Ultimately, Appleton argues for the diversity approach, which is a clear step for equality that would make cases like the Wisconsin appeals decision a thing of the past.
This is all a particularly interesting question, though, especially because of the results that come out of the current system of laws. Take, for example, California's presumption that a child that is born to a married couple is the biological offspring of both parents, until proven otherwise. This might make sense when you're dealing with a man and a woman - if the man wants to prove the child is not his, or another man wants to assert parental rights over the child, paternity must be proven. But how do we deal with, say, a lesbian couple that has legally been married in California? They now have a child, and the law presumes that both have full parental rights? Something tells me the answer to that is no, and that the non-biological mom will have to go through adoption proceedings, but I think there's a good equal protection argument to be made that parental rights should, in fact, be assumed for both women (of course, it also raises the issue of what the biological father's parental rights are to the child in that case).
Like I said, interesting stuff. It's frustrating that court decisions like the one in Wisconsin seem to be going against a "diversity approach." Still, I find it encouraging that programs like In America and policies from the Department of Labor (which recently interpreted the Family and Medical Leave Act to allow same-sex parents to take leave to care for a sick child, even if he/she is not legally related to the child, as I blogged about here) seem to be moving in the other direction.
Thursday, June 24, 2010
- The Department of Labor has interpreted the Family and Medical Leave Act in such a way that will allow same sex parents to take leave to care for a sick child, even if he/she is not legally related to the child. [Leonard Link]
- And in another positive move from the government, Department of Health and Human Services Secretary Kathleen Sebelius has sent a letter to major hospital associations urging them to institute equal rules for same-sex couples when it comes to rights of visitation and power of attorney. [Towleroad]
Wednesday, June 23, 2010
The Twin Cities Pride festival and parade in Minneapolis is coming up this weekend. But things are being stirred up by one Brian Johnson, an anti-gay activist and preacher that has threatened to bring suit against the Minneapolis Parks and Recreation Board (the board that issues permits for the park where the festival is being held) if he is not allowed to display signs, distribute literature, and counsel attendees with his message that homosexuality is sinful.
TCP claims that it cannot be forced to include speech from an active participant — one who distributes literature and displays signs — whose message is diametrically opposed to its own within the boundaries and during the times in which it has obtained a permit to craft its own message of acceptance of homosexuality. His active presence on the festival grounds may mistakenly be perceived as reflecting TCP’s judgement that his religious views are worthy of presentation as part of a range of views about homosexuality or to express a liberal tolerance for messages of condemnation. It would be impractical to disclaim the message of one or more moving counter-speakers.Aside from the First Amendment issue here, which seems to be a cross between Hurley and the Fred Phelps case coming up, I am inclined to say let the guy protest. Really, aside from being a mild annoyance, the worst I can see happening is someone taking a swing at him (which is probably what he's looking for anyway). I don't think any court would take seriously an argument that his being there or his message would incite violence, but it's interesting to ask whether protestors in other situations would. And isn't this just one of the situations where we, as Americans, have decided that it is better to allow inconvenient speech we may not agree with so that we may, I don't know, rent out parks for Pride festivals?