Waldlaw Blog

Tuesday, August 23, 2005

What do the California Supreme Court decisions actually mean?

I'm getting a lot of calls and e-mails asking me what yesterday's Supreme Court decisions really mean. I'll do my best to answer here. First of all, remember that there were 3 separate decisions, for a total of 70 pages, including a concurrence and 2 dissents. That's a lot of pages to digest. That said, in my not-so-humble opinion there's both good news and bad news to report. First the good news: All of the kids whose cases were before the Supreme Court were born into two-parent families, and all of them had been found by the lower courts to have only one legal parent. This put all of them at risk. The Supreme Court fixed this and, in doing so, it clarified that the Uniform Parentage Act applies to lesbian families too, and that our children are not "illegitimate" in any meaningful way any more than children born to unmarried heterosexual couples are. This is, in a word, HUGE!! So kudos to the court on this point. Further, by the decisions, California has gone on record as supporting the rights of children born into non-traditional families to be treated the same as other children. Children born to lesbian couples now get to have two legal parents. Parenthood no longer depends on either marital status or gender -- and it doesn't rely exclusively on biology. All of this is good for children, good for families, and good for our State. And it is enormously important, politically, at a time when California voters are being asked to vote not only on marriage equality but also on whether same-sex couples are entitled to fundamental protections offered by domestic partnerships. The California Supreme Court just gave our families a safety net -- even if domestic partnerships are voted down (GOD FORBID), our children still will have parents. So, again, kudos to the court. Now the bad news: One of the issues before the Court was whether parentage actions based on the intent of the parties were valid. To explain: particularly in cases involving assisted reproductive technologies (usually surrogacy), there is a procedure whereby couples have gone into court to establish their parenthood based on their intentional procreative conduct (e.g. obtaining donor eggs and hiring a gestational surrogate to carry the resulting embryos). This procedure has been available prebirth, thereby giving folks using these methods to conceive children the security of having parental rights before the baby is born, and giving them the convenience of getting their names on the original birth certificate. But we have not had clear, undisputed legal authority on whether this procedure is actually valid, and courts around the state are split on this issue. For example, this procedure is done regularly in Los Angeles, but I know of no Northern California court that currently approves it. I had hoped and expected that the Supreme Court would give us some clear guidance in this area. After all, they are the highest court in California, and their mission is to interpret statutes and resolve important questions for the state, especially where there is a lack of clarity or disagreement. But they completely dodged this issue, even though it was before them. In the one case involving a prebirth judgment based on intent, they simply said that since both moms were parties to the original judgment, both of them are estopped from attacking it. As stated by the Court: "We need not decide ... whether the ... judgment is valid, because we conclude that Kristine is estopped from challenging the validity of that judgment." Then, in a footnote: "We address only whether Kristine is estopped from challenging the validity of the judgment. Nothing we say affects the rights or obligations of third parties, whatever they may be." Okay, what does that mean?? A party to the judgment can't go back and attack it, but it isn't necessarily a valid judgment and other people still have the right to attack it?? Is that supposed to make us feel confident about these judgments??? On the other hand, is that supposed to clarify that these judgments aren't valid and we should stop getting them, despite their benefits to our clients??? All of this is to say that there still is a lot of gray area left after the dust from these cases settles -- more, quite frankly, than I'd hoped for. So we haven't yet achieved Nirvana, folks. But we sure are better off than we were when I started practicing in this area!!! To sum up: THE BIG WINNERS: Children of lesbian couples, who now get to have two moms even if their mothers aren't registered domestic partners and even if their mothers didn't do a second parent adoption. (But please, please, please don't stop doing adoptions, folks. Remember, this was the California Supreme Court court we're talking about, not the U.S. Supreme Court. The rest of the country isn't exactly falling over itself trying to grant rights to lesbian and gay families. As the fundamentalists like to say, think about the children!) Also, lesbian couples engaged in ovum sharing (where one woman provides the eggs and the other carries the baby to term). The Court has unequivocally stated that these women are both natural mothers of their children. THE BIG LOSERS: I hate to say it, but I think the big losers here are gay men who are having children through surrogacy. I hoped we'd get some good, clear law here. We didn't. And gay men have to rely more on intent than lesbians, because gay men have no option to procreate without the involvement of a birth mother who may or may not have legal rights. And the court could have clarified when these birth mothers (aka surrogates) have rights and when they don't, but it chose not to. So we're no better off than we were before. So there you have it -- the "Wald's eye view" of the California Supreme Court decisions. Please let me know what you think....

Monday, August 22, 2005


The California Supreme Court ruled this morning that when a lesbian couple intentionally conceives a child together and parents that child together, they both are "natural" and legal mothers under California law. This is a huge victory for lesbian mothers and, most especially, for our children, and I applaud it. It finally brings to an end the trail of broken hearts created by the narrow-minded decisions of courts considering these cases over the last 15 years, and makes it clear that California cares about children and their right to have parents -- regardless of the gender or marital status of those parents. So hurray for the California Supreme Court, and hurray for us!! There was some great language in the decisions, and there is a lot to be excited about. And, as always, there also was some language that I didn't like and -- being Jewish -- I have found a few things to worry about. But before sharing more details here, I need time to read the decisions more carefully and think more carefully about them. So for now .... THANK YOU CALIFORNIA SUPREME COURT. Thank you for protecting my children, and my clients' children, and the children of all lesbian couples in the State of California. It means a lot. And again, for those of you who want to read the decisions (and there are 3 of them, and they're long), you can find them on-line at: http://www.courtinfo.ca.gov/courts/supreme/. I'll post more soon....

Saturday, August 20, 2005

California Lesbian Custody Decisions Due Out Monday

!!!NEWS FLASH!!! On Monday morning, the California Supreme Court will be issuing its decisions in the trio of lesbian custody cases I wrote about on May 25. I will post something here as soon as I've had a chance to read and digest the decisions, and I'll also post a longer article on my website by midweek. If you want to read the decisions themselves, they should be available for public viewing by Monday afternoon at the California Supreme Court website: http://www.courtinfo.ca.gov/courts/supreme/ Also, as always, NCLR is sure to have something about the decisions on their website in short order after the decisions issue. To see their posting, go to www.nclrights.org. More Monday....

Friday, August 19, 2005

Have You Heard the One About the Lesbian Swans?

In this, Massachusetts' second year of allowing same-sex couples to marry, the debate on same-sex marriage -- in Boston anyway -- has taken a turn for the avian. For many years, one of the main attractions in the Boston Public Gardens has been a pair of amorous swans, commonly referred to as Romeo and Juliet. They are popular for their beauty and, of course, because the Public Gardens is famous for its swans and swan boats as a result of the children's classic Make Way for Ducklings. Well, it was just discovered that the current pair of swans, who spent the spring dutifully preparing a nest and then guarding their eggs, are actually both females. (Needless to say, at least for those of you familiar with basic biology, the eggs didn't hatch, since they were not fertilized at any point along the way....) Boston makes a big deal about its swans. There is an annual parade each spring when the swans are moved from their winter home at Franklin Park Zoo back to the Public Gardens, with an accompanying festival for the kids. The swan parade and festival are advertised widely as a "family friendly" tourist attraction. So now what?? Some are suggesting that the Park Department should come up with some male swans to add to the mix -- some genuine Romeos. But the swans seem happy, by all accounts. So chalk it up to nature -- Bostonians need to get used to their loving pair of lesbian swans. And let's hope that the parade is just as big next year, and the festival just as festive, and that the swans don't suddenly get an "R" rating now that we know the truth about them. For the full story, courtesy of The Boston Globe, go to: http://www.boston.com/news/local/massachusetts/articles/2005/08/12/thou_art_no_romeo/

Thursday, August 18, 2005

The Scoop on Roberts

I've been asked by several readers to write a blog about Supreme Court nominee John Roberts. The reason I haven't posted about Roberts before is because I really don't know much about him. In fact, I believe he was chosen by George W. Bush and his handlers specifically because none of us know much about him. That said, I look at Bush and his other nominees for other posts and I can't help but assume the worst. And I was not comforted by the fact that he was in favor of overruling the Colorado statute precluding municipalities from providing protections to lesbians and gay men -- the Colorado amendment that he wrote against was so blatantly unconstitutional that any self-respecting constitutionalist would have had to oppose it. But so many other issues we're currently struggling with -- and struggling for -- are not so clear cut. Let me explain: The Colorado amendment said that a municipality -- such as Aspen -- could not vote to provide equality in employment, housing, etc. to its lesbian and gay citizens. In doing so, the amendment denied people who believed in principles of equality access to the democratic process. They (we) were precluded from passing laws that they (we) believed in and had enough votes to pass. This was the basis on which the amendment was thrown out. And it is a basis clearly grounded in the language of our federal Constitution. But let's look at affirmative action, or abortion, or the right to privacy in general. The language about access to the democratic process -- the right to petition our government for redress of our grievances -- is right in the Constitution itself. But try to find the word "privacy" in there, not to mention concepts such as abortion or affirmative action. They simply aren't there. So to ground these concepts in the Constitution requires creativity and a belief in our Constitution as a living document capable of adapting and changing with the times. And from everything I know about Roberts, he doesn't see the Constitution that way, any more than Scalia and Rehnquist do. So my take is: Roberts is probably an arch conservative who believes that the Constitution is to be interpreted as the Framers would have interpreted it back in the 1700's, and if you can't find it in the Constitution then it isn't constitutional law and the Supreme Court has no business ruling on it. (This is called "strict constructionism," for those of you who care.) This position helped us in Colorado, but it won't help on affirmative action, abortion, marriage equality or the myriad of other issues likely to come before the Court during the tenure of our newest Justice. We desperately need another legal -- if not political -- moderate on the Court. We need someone without strong, fixed views on the "correct" way to interpret the Constitution; we need someone who can play the role that Sandra Day O'Connor played of helping our polarized Justices talk to each other and find common ground. And I strongly doubt that John Roberts is such a person. Now, if we can just get Congress to act like our advocates, for a change.... Anyway, for a more in-depth and fact-based assessment of Roberts, go to People for the American Way's website on the subject, which can be found at: http://www.savethecourt.org/site/c.mwK0JbNTJrF/b.901293/k.7F49/Where_Does_Roberts_Stand.htm

Tuesday, August 16, 2005

Musings about Magic

I've been on vacation for a couple of weeks with my kids, so I though I'd take advantage of the opportunity to catch up on my recreational reading -- including Harry Potter. I read volume 5 last week, and am looking forward to volume 6 (the new one). In the midst of my forray into the world of witches and wizards, I got into a discussion about the evolution/creationism debate. And the combination made me think.... It seems to me that there are fundamentally two types of people in the world -- those who believe in magic, and those that don't. (And I use the word "magic" very broadly here, to include essentially anything that has no explanation in nature or logic.) As with most things in our culture these days, the "evolution" camp and the "creation" camp tend to be utterly polarized. And as with most things in our culture these days, I find myself most interested in the middle ground -- and yes, I think there is some. You see, my father was a scientist who was deeply spiritual and who was fascinated by the intersection between the scientific world and the spiritual one. He loved to think about what it was that allowed life to begin on earth -- and, according to my mother (herself a scientist), late in life he became intrigued by a theory that for life to have come into being on earth, there must have been some aspect of "life" floating around in the cosmos. In other words, some aspect of "life" has to have been present in the elements in order for evolution to have been able to occur. This concept of a free-floating life force that formed the seeds of what we now know of as life on earth doesn't seem that different to me from what the most sensible of the "intelligent design" folks are talking about -- i.e. that of course we evolved through natural processes such as those described by the evolutionary biologists, but that at the start of it all was a spark of life brought into existence by a supreme being. The difference, as I see it, comes down to this: do you believe in magic? There are extremes on either side of this debate. But in the middle is a line -- and on one side of the line are those who do not believe that there is anything "real" for which there is no "natural" or "scientific" explanation (even if we have not found the explanation, and may never find it -- what's important is the belief that it exists) and on the other side of the line are those who believe that some things cannot be explained -- that some things must ultimately be attributed to spiritual or magical forces. And the folks who live closest to that line on either side aren't really all that far apart. So maybe if we talk to each other -- and, more important, maybe if we really listen to each other, we will find a larger common area than we knew we had. In the meantime, I'm going back to Harry Potter and trying to answer the question for myself: do I believe in magic??

Friday, August 05, 2005

About Whales and Weddings

Reporting in from Cape Cod, Massachusetts. I spent the day yesterday in Provincetown, with my mother and my two sons. We went whale watching, which is a truly awesome thing to do if you ever get a chance -- especially off Provincetown. We saw finbacks, humpbacks and minke whales, all up close and all for much more than just a glimpse. The humpbacks kept surfacing right next to our boat and lingering there, so we could see every detail of their bodies and fully appreciate their size and grace. Seeing whales up close in the wild is an experience I always find very moving. Not to be missed! After the whale watch, we wandered the streets for a while, looking in various shops and enjoying the people-watching, which is always fun in P'town. And we paid a visit to the Kinsey Sicks, a terrifically talented and funny a capella vocal group from San Francisco that is performing there right now and were doing a few songs on the street to attract an audience. (Yes, that was a plug -- go see/hear them if you ever get a chance -- visit www.kinseysicks.com for more info!) While visiting with the Kinseys, a bicycle carriage went by with a gay male couple in it and a "just married" sign on the back. And here's the funny part: I was back home last night, having driven 2 hours across Cape Cod, back to my mother's house, and having put my boys to bed, when it hit me: these two men really were JUST MARRIED. Okay, it may seem obvious. But I haven't been in Massachusetts for a year, and I've been around so many gay "weddings" over the years that were not real, legal weddings. And it literally took me several hours for it to sink in that these two men had actually gotten married. Not civil-unioned; not domestic-partnered; not commitment ceremonied (are any of those actual words -- I'm not sure, but you get my drift) -- actually, honest-to-goodness, MARRIED. Well, all I can say, 24 hours later, long after the couple has gone on with their lives, is ... mazel tov. I hope to see so many more such scenes, and not just in Provincetown, before I'm done.... And I look forward to the day when it doesn't take me several hours to take in the reality of a genuine gay wedding! (By the way, for info on getting married in Massachusetts, check out the website of Gay & Lesbian Advocates & Defenders, which tells you everything you need to know: http://www.glad.org/marriage/howtogetmarried.html.)

Wednesday, August 03, 2005

Thinking About Race & Sexual Orientation

I just had a fascinating conversation with an old friend. She is African American, and had been at a talk last night where a scientist was critiquing current research trying to identify the genetic markers of specific races, in a supposed effort to make it easier to treat race-specific medical conditions. This effort is being touted as an attempt to better serve the medical needs of ethnic minorities in the US -- but she, and many friends and acquaintances in the progressive scientific community, are highly skeptical. After all, haven't efforts to identify the "scientific" differences between the races generally been linked to highly racist endeavors such as eugenics or, much worse, ethnic cleansing? Anyway, she and I had a discussion about the commonalities and differences of efforts to make both race and sexual orientation into "scientific" categories. After all, many in the gay community seem to think that it is to our benefit to have sexual orientation be a scientific fact, rather than a choice. And maybe sexual orientation is genetic, for some people, although I can't possibly count the number of people in my life who have been "absolutely gay" for some portion of their lives and "absolutely straight" for others -- and not in any particular order. But here is my question: why is the "scientific" inquiry into the question of whether race or sexual orientation has a genetic root an important inquiry?? Why is it important to ask the question?? What is wrong with accepting that "social" identifications can be equally valid and important as "scientific" ones?? My friend was arguing for accepting self-identification as the ultimate, valid way of determining race -- if I say I'm black, I'm black; if I say I'm latino, I'm latino; if I say I'm asian, I'm asian; if I say I'm white, I'm white; and so on.... (And, of course, so many of us are a mixture of those things....) I would make the same argument re: sexual orientation. We can fight for years about whether sexual orientation -- or gender identity -- is social or genetic, but my fundamental question is: why does this matter?? I don't really care whether you've chosen to identify as lesbian or gay -- or as African American or Latino or Caucasian -- or whether these identifications are the result of some immutable markers on your genes. I am prepared to take the identifications -- and their social consequences -- equally seriously either way. And there lies the crux of the issue -- isn't it fundamentally an acknowledgment of the validity of racial and/or gender and/or sexual orientation discrimination if our best defense is "I can't help being ... [fill in the blank]"? Isn't it more important -- and, fundamentally, more revolutionary -- to say "it may be a choice or it may be a scientific fact and it doesn't matter -- you still have to respect it"? This is a subject we need to talk about. So let's start talking....