Marriage Equality -- Who Thought it Would All Come Down to Standing??

Every law school graduate throughout the United States has had, at one time, to learn about standing. It is part of the basic, first year, civil procedure curriculum. However, many of us have not had to seriously think about standing since our first year of law school -- which, for me, was over 25 years ago.

The battle over marriage equality in California has now come down to a very matter-of-fact legal issue of who, if anyone, has standing to appeal.

To briefly recap: In May, 2008, the California Supreme Court found that it was a violation of equal protection under the California Constitution for the state to deny same-sex couples the right to marry. They found that lesbians and gay men formed a suspect class, entitled to heightened protection under the state Constitution; and that marriage was a fundamental, constitutional right that could not be denied to this class. From June, 2008 -- when the decision went into effect -- until November, 2008, approximately 18,000 same-sex couples were legally married in California.

Then, on November 4, 2008, Proposition 8 passed by a 52-48% vote, thereby amending the California Constitution to provide that the only marriages recognized in California would be marriages between one man and one woman. Proposition 8 was subsequently upheld as constitutional, under the now-amended California Constitution, by the California Supreme Court. In spring, 2009, two gay couples filed a lawsuit in federal court to have Proposition 8 declared unconstitutional under the United States constitution.

Last week, in a historic ruling, United States District Court Judge Vaughn Walker -- a Reagan appointee who has hardly been known for his progressive views -- ruled that Proposition 8 violated both the Due Process and Equal Protection clauses of the United States Constitution. His decision, all 136 pages of it, was based on actual testimony and evidence from an actual trial on the issue, and was quite a piece of jurisprudence. But on to standing....

The federal case is Perry v. Schwarzenegger. Not Perry v. The-Proponents-of-Prop-8. And so far, Governor Schwarzenegger has indicated that he agrees with Judge Walker's ruling and will not appeal. And if neither the plaintiff nor the defendant appeals, the case is generally over. The pro-Prop-8 folks were allowed to enter the trial court proceedings as intervenors, but they were not parties to those proceedings. And as a general rule, only parties have a right to appeal. So here we sit.

Judge Walker has issued an injunction against the enforcement of Prop 8, but has stayed that injunction until 5:00 p.m. on Wednesday, August 18. Between now and then, the 9th Circuit Court of Appeals will have to decide whether or not to allow Judge Walker's ruling to go into effect. Which may well come down to standing -- that is, whether the folks asking the 9th Circuit to stay Judge Walker's ruling have the right to be heard on the issue.

Standing is actually an important legal concept. It comes up from time to time in my adoption cases. As I explain it to my clients, it limits who has the right to raise legal issues. For example, an acquaintance cannot petition the court to adopt my two teenage sons unless I -- as the parent -- place my sons with the acquaintance for adoption, because without this preliminary act by me they don't have standing to file for adoption -- that is, they aren't someone with a right to pursue that particular action. If I sue my neighbor for building a fence in the wrong place, and then my neighbor and I work it out, the guy across the street can't pursue the action on his own unless he can show that the fence is hurting him, and not just me and my neighbor. If the fence only impacts me and my neighbor, the guy across the street is just a bystander -- and bystanders don't have independent access to the courts.

Whether the state of California should or should not issue marriage licenses to same-sex couples is between same-sex couples and the state of California -- everyone else is a bystander. Or are they? Ultimately, this may be the issue that decides whether the state will in fact resume issuing marriage licenses to same-sex couples next week or not.

Is it up to our duly elected representatives to represent our state, or is it up to an independent group of passionate citizens? This is not about the courts taking over, as some would suggest. We still have a balance of power in California. But when the Judiciary, the Legislature and the Executive Branch are all in agreement that it is time to grant full equality to lesbian and gay families in our state, who -- if anyone -- gets to keep up the fight on behalf of "the people" of California?

Surrogacy Escrow Funds

The assisted reproduction industry can feel something like the Wild West. And, to mix metaphors, California often is Ground Zero, given the number of surrogacy agencies in this state. Anyone can start a "surrogacy agency" -- unlike adoption agencies, there is no particular state or federal regulation of these businesses (beyond the regulation to which all businesses are subjected). And, as the science of reproductive endocrinology continues to advance, the options for creating children continue to expand -- as long as you can afford them.

Given the intense desire many people feel to become parents -- and given all the opportunities out there to have children through assisted reproduction -- it is no wonder that small surrogacy agencies are popping up all over the country. Many of these agencies are run by committed and ethical people who legitimately want to assist folks in fulfilling their dreams of becoming parents. But unfortunately, in California we have recently had to deal with the mess left by at least two surrogacy agencies where unscrupulous owners have taken the money and run, leaving intended parents out thousands and thousands of dollars and with absolutely nothing to show for their trust in agencies that were supposed to be helping make their dreams come true; and leaving pregnant surrogates stranded with the monies that had been set aside to compensate them and cover their expenses gone into the pockets of unethical business people.

Thankfully, the state of California is intervening in this mess in one small but important way. Assembly Bill 2426 has passed in the state legislature, and is sitting on Governor Schwarzenegger's desk. The bill would prevent surrogacy agencies from holding client funds, instead requiring that these funds be deposited into an independent, licensed, bonded escrow account or held in a State Bar approved attorney trust account. Specifically, the bill would provide that: "(a) A nonattorney surrogacy facilitator shall direct the client to deposit all client funds into either of the following: (1) An independent, bonded escrow depository maintained by a licensed, independent, bonded escrow company. (2) A trust account maintained by an attorney. (b) For purposes of this section, a nonattorney surrogacy facilitator may not have a financial interest in any escrow company holding client funds. A nonattorney surrogacy facilitator and any of its directors or employees shall not be an agent of any escrow company holding client funds. (c) Client funds may only be disbursed by the attorney or escrow agent as set forth in the assisted reproduction agreement and fund management agreement."

This may seem like a small step, but it will provide important protections to people involved in surrogacy -- both the intended parents and the surrogates. Let's hope that Governor Schwarzenegger signs the bill quickly, so we can put this sorry chapter in assisted reproduction behind us in the state of California and move forward with financial integrity.