Waldlaw Blog

Protection of Parent-Child Relationships Act Signed into Law!

2011-08-05T15:11:00.000-07:00

The Protection of Parent-Child Relationships Act (AB 1349) was signed into law this morning by California Governor Jerry Brown. Having helped write this bill -- and having worked for two years to get it passed -- I couldn't be more pleased.

WARNING -- the following explanation is legally complex. Take a deep breath before reading. And let me know if you don't understand!

This Act amends California parentage law in two important ways:

(1) When an unmarried woman gives birth to a child, she has the opportunity to name the child's father and he can be listed on the child's birth certificate if -- and only if -- he and she sign something called a Voluntary Declaration of Paternity (VDP). The form must be witnessed and filed with the state Department of Social Services. Once that process is completed, the man is the legal father for all purposes, and the VDP is treated the same as a Judgment of paternity rendered by a court. But there's a catch. Before a court will adjudicate paternity, they are required to make certain that every person with a claim to parentage of the child has received notice and had an opportunity to be heard. This is called due process. But no notice is required in order to file a VDP. So a mother can have the biological father sign a VDP even though another person has already assumed a parental role and taken full responsibility for the child, without any notice to the other person who has been acting as a parent.

Prior to the passage of AB 1349, there was no way to set aside a VDP unless it later turned out that the declared father was not actually the biological father. So a man or woman who raised a child, along with the child's biological mother, could be removed from that child's life at any point by the mother finding the biological father, getting him to sign a VDP with her, and filing it with the Department of Social Services. The non-biological parent was left with no recourse, and no standing to even seek continued visitation with the child.

California is a state that has long recognized that the social relationship of parent and child is often more important than the biological relationship of parent and child. Where the person who has raised a child is not the genetic parent, the courts often will protect the established parent-child relationship, even in the face of a challenge by the genetic parents. The VDP process, as it existed until today, created a serious loophole in this principle.

Now, with the Protection of Parent-Child Relationships Act having been signed into law, where a child has a biological father who has signed a VDP, but has been raised by someone else who has acted in every way as a parent, the courts will have the discretion to dig into the facts and figure out which person is best suited to be in the legal role of "parent." The courts will no longer automatically have to default to genetics, if this result would not be in a child's best interest.

(2) California law distinguishes between fathers and sperm donors. A sperm donor is a man who provides his sperm to a physician or sperm bank, for purposes of insemination or in vitro fertilization of a woman other than the donor's wife. A father is a man who impregnates a woman in any other way (i.e. without physician involvement -- whether through assisted insemination or through sex).

In our modern world, there are many men providing their sperm to physicians or sperm banks for purposes of impregnating a woman other than the man's wife, who in fact intend to be fathers to the children whose conception results from the process. Some examples: married couples who find themselves unable to sustain a pregnancy on their own often provide both eggs and sperm to a physician, which eggs and sperm are used to create embryos through an in vitro fertilization process. The embryos are then implanted into the womb of a gestational carrier (surrogate). Under this scenario, the husband has provided his sperm to a physician for purposes of in vitro fertilization of a woman other than his wife, but with the full intention of being a father of any resulting child. Likewise, any time an unmarried heterosexual couple needs medical assistance to conceive, the man will be providing his sperm to a physician. Paternity is not determined by the marital status of the parents in sexual reproduction; it also should not be determined by the marital status of the parents in medically assisted reproduction.

The Protection of Parent-Child Relationships Act amends our Family Code to allow a man who provides sperm to a physician or sperm bank to still be a father, even though he is not married to the woman who will be impregnated with the sperm, as long as he and the recipient sign an agreement prior to impregnation that clearly states their mutual intention that he be a father.

California family law is complicated, particularly when it comes to figuring out who "parents" are in our modern world. AB 1349 will go a long way to assuring that children's legal relationships with their parents are protected, regardless of how the parent-child relationship came into being.

Thanks to the National Center for Lesbian Rights, Equality California, the Academy of California Adoption Lawyers, attorney Diane Goodman and my beloved ex-client Kim Smith for their help in turning this hope for California children into a reality!

Adoption Tax Credit & Second Parent Adoptions

2011-08-03T15:48:00.000-07:00

Well, sorry to say, it now appears that the Adoption Tax Credit audit that I wrote about in late June is leading to an unprecedented number of denials of the credit to lesbians and gay men who have completed second parent adoptions around the country.

A number of attorneys who work with LGBT families around the country have been discussing this issue, and tax professor Pat Cain has provided some suggestions for how best to respond to the IRS. Rather than reprinting her thoughts here, I am simply linking to her own blog on the subject.

http://www.law.scu.edu/blog/samesextax/

If you have received a letter from the IRS disallowing your adoption tax credit, following completion of a second parent adoption, PLEASE send a letter to the IRS questioning their decision. If they still do not approve your credit, please contact NCLR.

When Married for Life Means ... Married FOR LIFE

2011-07-13T14:11:00.000-07:00

On July 24, 2011, New York will become the sixth state in the country to allow same-sex couples to wed. Given that New York already is a popular destination for people from all over the United States and the world, it is not hard to imagine same-sex couples streaming into New York from places near and far to exchange their vows of marriage.

The beginning of same-sex nuptials in New York is historic, and is cause for celebration -- for what it says about social acceptance and equality, as much as for the actual ability of same-sex couples to marry.

But as a family law attorney, and someone who is involved in family policy work on a national level, I am worried about couples getting caught up in the excitement of the moment, and flying off to New York to marry without truly thinking through the legal consequences of that choice.

A quick lesson about jurisdiction: Before you can go into the courts of any state to ask for relief of any kind, those courts have to have jurisdiction -- "subject matter" jurisdiction over the issue that brings you before the court, plus "personal" jurisdiction over the parties.

Getting married does not require any type of court action. It is a clerical act. So the courts of a state do not need to have jurisdiction for a couple to get married in that state. A different-sex couple can get married in any of the 50 states, regardless of where they live; and a same-sex couple can get married in any of the 6 states that now allow same-sex couples to marry, regardless of where they live.

But divorce requires court action. So the courts must have jurisdiction before they can adjudicate a divorce.

This means that a same-sex couple from, say, Indiana, can travel to any of the six states that now allow same-sex couples to marry, and can get married there without any problem. But then that couple presumably will return to Indiana. And Indiana does not recognize same-sex marriages. Which means that if that couple later needs a divorce, there is a strong chance that the Indiana courts will not be willing to divorce them (because the courts of many states are refusing to recognize same-sex marriages, even for purposes of divorce). And the courts of the state where they married will not have jurisdiction unless at least one of the spouses establishes residency in that state; for example, the New York courts will not have jurisdiction to divorce a couple married in New York unless at least one of the parties has actually lived in New York for a minimum of one year.

So while we all are celebrating the spread of equality around the country, it is important to remember that marriage is, fundamentally, a deeply personal and legal commitment to a long term relationship with an intimate partner. It is a commitment that is meant to be "for life" -- and in the case of same-sex couples traveling outside their home state to marry, it may truly be FOR LIFE.

So mazel tov to all the happy couples exchanging marriage vows in New York next weekend. But please don't get married just because you can. Remember that marriage is a legal commitment that it is hard to get out of, and make sure it is the right choice for you and your beloved before you take the leap.

Adoption Tax Credit Audits

2011-06-25T11:38:00.000-07:00

This is a head's up to all of you out there who have claimed an adoption tax credit in recent years and have now received an audit form from the IRS. It appears that the IRS is doing across-the-board audits of many, if not all, adoption tax credit claims. These are not personalized audits -- they are a form audit, being sent out to many, many people claiming the credit. My understanding is that they are part of a process whereby the IRS is reviewing the scope and functionality of the adoption tax credit itself -- they are not, in fact, aimed at individual tax-payers.

This is not to say that you should not take these audits seriously. Frankly, I recommend taking anything the IRS does seriously! But you should not take them personally. If you received one of these audits, you are not being targeted any more than anyone else who claimed the credit in recent years.

And for folks PLANNING on claiming the credit, this is yet another reminder that it is important to keep good records. Put all receipts, cancelled checks, invoices, etc in a folder clearly marked "adoption expenses," and then try to remember where you put that folder. Even though you are adjusting to being a parent, and may not know where your socks are. ;) This will make it much less stressful if/when it is your turn to answer to an audit like the one now underway.

Just thought folks would want to know....

A Monumental Week for Family Formation Law!

2011-04-14T14:46:00.000-07:00

Here is a brief head's up about three major legal news items in the fields in which I practice law:

(1) ARKANSAS ADOPTION DECISION: On April 7, 2011, the Arkansas Supreme Court struck down the state ban on fostering or adoption by cohabiting unmarried couples. To briefly recap: On November 4, 2008 -- the same date that Obama was elected President and Proposition 8 passed in California -- a ballot initiative was approved by a simple majority (57%) of Arkansas voters titled "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old." Under the Act, an individual was prohibited from being an adoptive or foster parent if that individual was "cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state." (Although the law applied equally to unmarried same-sex couples and unmarried different-sex couples, it clearly had a disparate impact on same-sex couples because they are unable to enter into "a marriage that is valid under the ... laws of [Arkansas].")

The Arkansas Supreme Court found that this Act unconstitutionally infringed on the fundamental right to privacy implicit in the Arkansas Constitution, because it required the government to inquire into the private, consensual, intimate sexual conduct of adults applying to be foster or adoptive parents, as a precondition to approving the placement of children in their home. The Court determined that individualized home studies -- required of all applicants to foster or adopt children -- were sufficient to address the needs of the state's children, and that a blanket policy prohibiting fostering or adoption by cohabiting adults was overbroad and impermissibly invaded Constitutionally-protected privacy rights. This is an important and well-written decision, which is well worth the read for anyone interested.

(2) LOUISIANA BIRTH CERTIFICATE/ADOPTION DECISION: Late Tuesday, April 12, the United States Court of Appeals for the Fifth Circuit, based in Louisiana, issued a shocking decision that the Full Faith and Credit Clause of the United States Constitution does not require states to issue new birth certificates for children born in their states but adopted elsewhere, if the out-of-state adoption is not of a type allowed under the birth state's laws. (FYI, see this map for an explanation of which states are in which federal Circuit.)

This case was brought on behalf of a gay couple from New York who adopted a child born in Louisiana. The couple adopted the child in New York, where the adoption was completely legal. Because Louisiana law does not allow unmarried couples to jointly adopt children, the Registrar of Births in Louisiana -- charged with issuing birth certificates for Louisiana-born children -- refused to issue a new birth certificate with both fathers' names on it (although she did offer to issue a new, post-adoptive birth certificate with one of the adoptive father's names on it if they wanted her to, since Louisiana law does not prohibit adoptions by single people). The U.S. Court of Appeals upheld this decision by the Registrar -- overturning the lower court's ruling in favor of the couple and child -- finding that while the Full Faith and Credit Clause requires recognition of both parents as legal parents based on the New York adoption, it does not require that Louisiana issue a new birth certificate evidencing that recognition.

The court engaged in what I will frankly characterize as an appalling discussion of why it is okay for a state to blatantly discriminate against children adopted by unmarried couples -- as opposed to children adopted by married couples -- by refusing to provide the prior category of children with birth certificates that accurately reflect their parents. The explanation for this discrimination -- which seems to have recreated a distinction between "legitimate" and "illegitimate" children that was ruled unconstitutional by our United States Supreme Court back in the '70's -- is that "Louisiana may rationally conclude that having parenthood focused on a married couple or single individual -- not on the freely severable relationship of unmarried partners -- furthers the interests of adopted children." Since issuing a birth certificate apparently evidences state approval (as opposed to simply recognition) of the adoption, and since Louisiana does not "approve" of adoptions by unmarried couples, they can refuse to do so.

(3) EGG DONATION LAW SUIT: As if these two major decisions weren't enough to digest in one week, I arrived in my office this morning to word that a class action lawsuit has just been filed in the United States District Court for the Northern District of California challenging the efforts of the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) to set maximum compensation parameters for commercial egg donation. According to the complaint, ASRM and SART are engaging in "price fixing" in violation of federal anti-trust laws. Questions posed by the complaint include: "Whether Defendant Class Members engaged in a contract, combination or conspiracy among themselves to fix, maintain, or stabilize the price of Donor Services in the United States?" The plaintiffs acknowledge that the purpose of the ASRM guidelines is to assure that the financial incentives young women are offered to engage in egg donation "should not be so excessive as to constitute undue inducement."

The area of egg donation is rife with ethical dilemmas. Now we have to think about this new dilemma -- whether a "free market economy" approach to tissue donation is appropriate and, if not, how to control this process without violating anti-trust laws. Stay tuned for updates as this plays out.

It's only Thursday. Could there possibly be more to come??

The Circle Game

2011-04-04T06:55:00.000-07:00

Do any of you remember the beautiful, haunting song by Joni Mitchell called "The Circle Game"? It addresses the circles of life, as children grow up and elders grow old. My friend Judy and I used to sing it to our kids when they were little. Now those kids are looking at colleges, and Judy died of breast cancer almost a year ago. "And the seasons, they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind from where we came/And go round and round and round in the Circle Game."

This song seems to capture the moment that I -- and many of my friends and colleagues -- are finding ourselves in -- watching our children grow up and out; watching our parents grow old and pass away. I am thinking these thoughts, and writing this blog, from 36027 feet, as I jet my way home from Boston on Virgin America (and thank you, Virgin, for the in-air wifi option, that allows me to use the 6.25 hours in the sky productively!).

I have been in Boston for the past week, on a true "Circle Game" journey. Here's a brief recap: Last Tuesday morning, I got up at the crack of dawn to catch a flight to New Haven, CT (via Philadelphia) to meet my son there. Travel observations of note: Contrary to predictions, I did not get assaulted in the Philly airport, even though I was wearing a cozy and attractive San Francisco Giants World Champions sweatshirt. Beyond that, the only noteworthy thing about the actual trip to New Haven was the propeller plane on which I flew from Philly to New Haven. I honestly didn't even know they still had propeller planes in service! Anyway, me and about 38 of my new best friends -- instantly bonded to each other by the shared experience of actually being expected to board a plane that looked like it had been flying pretty much non-stop since the 50's and was probably due for a long rest -- enjoyed a calm and uneventful (and blessedly short!) flight, arriving in New Haven in just under an hour. So much for the trip itself....

Why was I headed to New Haven? This is where the Circle Game part of the story begins.

My elder son is a Junior in high school, which means that it is time to start thinking seriously about where he might want to go to college. So, for spring break, we did the almost-mandatory spring-break-of-Junior-year college tour. For a variety of reasons, we ended up touring some of the New England schools of note: Columbia, NYU, Yale, Wesleyan, Brown, Harvard, Boston University, Tufts and Northeastern. Nine colleges in six days -- quite a whirlwind! But what a wonderful opportunity for both my son and me to get a sense of what college is like in 2011 -- to get a much clearer picture of the range of academic options out there -- and to start to get a read on the types of schools where he will thrive. It was exciting -- for both me and my son -- to see him on these college campuses, young and smart and healthy and excited about launching the next chapter of his life. Very much a forward-looking experience.

Our tour ended in Boston and Cambridge. Cambridge is where I grew up, and my mother still lives there. My brother currently is living in neighboring Medford, where he is getting his PhD at Tufts. I went to law school at Northeastern University in Boston. So visits to Boston tend to be trips down memory lane, as well as opportunities to catch up with people from my past who remain in the area. This time, the interspersing of college tours with visits to family and friends who remain in and around Boston, crystallized the forward-looking/backward-looking moment that I, and many of my peers, are in. My mother slipped and fell over the weekend of March 26-27, fracturing a hip for the second time in 5 months (the other hip from the one she fractured over Halloween weekend so that now, all of a sudden, what was her "bad" leg has become her "good" leg). Visits with mom this time around were in the hospital and then in rehab. Because she's 87 and hospitalized -- and therefore seriously thinking about the end of her life on this earth -- these visits involved a lot of reminiscing and active wondering about how her life story will end. Very much a backward-looking experience.

College campus -- hospital -- college campus -- rehab. Are you getting the idea??

It is an amazing experience watching the many, varied ways our elders find to exit this earth. My grandfather -- physically weak after multiple serious heart attacks -- found the gumption to get himself all the way from Cambridge, Massachusetts to a small town in the Austrian Alps where he had lived before being forced to flee by the Nazis. Once there, he died in his sleep within just a few days. My grandmother, whip smart and fiercely independent to the end, died in a fall returning to her bedroom from her bathroom at the age of 96, having walked past a portable commode, a walker and several canes -- all set out to avoid her making middle-of-the-night treks to the toilet without proper precautions. My beloved father died of what can only be described as old age, at 90, with his body and mind simultaneously drifting into a decline that afforded him the luxury of not having to comprehend that he was going while he was on his way out. My mother now appears also to be in a significant decline, but she has the misfortune that her head and her body are not fully in synch, so she still has the mental capacity to understand that she is losing her physical and cognitive abilities and is left feeling depressed and out of control.

Practicing family law as I do, I spend my days helping people navigate some of the major, vulnerable moments in their lives. Having babies. Getting divorced. This trip was a reminder of some of the other major life transitions that I don't see as much in the office -- those that come when our children are grown enough to venture out of the nest and find their own way; and those that come at the end of life, when our bodies and minds start looking for ways to finish the story. "So the years spin by and now the boy is twenty/Though his dreams have lost some grandeur coming true/There'll be new dreams, maybe better dreams and plenty/Before the last revolving year is through./And the seasons they go round and round/And the painted ponies go up and down/We're captive on the carousel of time./We can't return, we can only look behind/From where we came/And go round and round and round/In the Circle Game."

The Tragedy of Disrupted Adoptions

2010-11-22T11:11:00.000-08:00

November is National Adoption Month -- "a month set aside each year to raise awareness about the adoption of children and youth from foster care." Ironic, then, that two adoption cases are making headlines for all the wrong reasons.

In Missouri, in the case of a young boy named Carlos, the state Supreme Court is being asked to intervene to set aside the adoption of a 4 year old child whose mother is an undocumented worker who was caught up in an immigration sweep at her work place and subsequently incarcerated. Although initially the child was cared for by an aunt, she was overwhelmed with the care of her own children and ended up giving him to another couple to care for in her sister's absence. This other couple subsequently surrendered him to their church to be placed for adoption, without ever notifying the mother (who remained in the United States, and easy to locate given that she was in custody) or obtaining her consent. The mother has always wanted her son, and there is no indication that she had been in any way negligent in her care of him -- the only reason she was separated from him was because she was taken into custody for being undocumented, while the child is a U.S. citizen. Now, the Missouri Supreme Court is being asked to reunite mother and son, albeit gradually through a responsible reunification plan -- ideally worked out in cooperation with the "adoptive" parents -- because he was never eligible for adoption in the first place, given that he had a fit mother who loved and wanted him.

While Missouri sorts out the Baby Carlos mess, here in California we are witnessing an intense battle between an adoptive mother and a birth father, which is taking place in two states and on national television. In the Baby Vanessa case, a birth mother placed her baby for adoption at birth, through a licensed adoption agency and with all consents seemingly in order. However, the birth mother indicated that she did not have enough information to make it possible to identify the birth father, so his consent was never sought or obtained. Now it turns out that the birth father was, in fact, known to the birth mother and he is fighting for the child. Baby Vanessa is 2 years old and has been with the same person -- the adoptive mother -- since she was born. Now, she is in danger of being removed from that home because the birth father's rights to his daughter were never terminated, and he wants her back in Ohio where he can have a relationship with her.

It is easy to take sides in these cases, and the media has certainly done so. Baby Carlos should be returned to his mother, because his mother was a loving fit parent who took good care of him for the first 6 months of his life and was torn from him through circumstances outside of her control. Baby Vanessa should stay with her adoptive mother because her adoptive mother has provided her with a loving and stable home from birth, and the father who is fighting for her has been convicted of abuse and lost custody of his other children, so is not realistically able to provide for Vanessa.

But there are broader lessons to be learned from these two stories, that consistently apply to these and other disrupted adoption cases. No matter how wonderful an adoptive home seems, no court should be allowing an adoption to proceed without making as certain as possible that any living birth parents -- or potential birth parents -- have received proper notice and had an opportunity to be heard. Do they want the children? Are they actually fit to raise the children? And where, in all of this, do the children's rights to stable, loving homes and secure attachments come into play??

At the end of the day, in these and all adoption cases, there is simply no substitute for doing things right the first time, while these babies are still young and good decisions can be made without all the drama that accompanies efforts to fix adoption disasters later. So wherever Carlos and Vanessa end up, let's all make an effort to honor National Adoption Month by recommitting ourselves to adherence to proper adoption procedures -- and to a revamping of those procedures as necessary -- to assure that children's needs are met through the adoption process with an eye toward BOTH stability for the children and fairness for the birth parents, and with a fervent hope that there will be very few more cases like the two described above.

How 'Bout Them Giants?!

2010-10-29T12:29:00.000-07:00

I admit it -- I'm a baseball fan. There are few things I'd rather do, on a summer afternoon or evening, than go to a baseball game.

I am having A LOT of fun with this postseason, as my team wins first the division series, then the league championship, and now is up 2-0 in the World Series. I'm sure that it's exciting having your team in the World Series no matter where you live. But San Francisco really knows how to celebrate, and San Francisco has really embraced this band of colorful characters known as the Giants. They are so ... well, so San Francisco! From the seamless blend of Spanish and English heard on the field and in the clubhouse, to the red rally thong and the beards that have sprouted on every single relief pitcher's face, this band of boys (and many of them really are more boys than men -- our oldest starting pitcher is 27!) has won the hearts of San Franciscans young and old.

The San Francisco Giants show their appreciation for this city in so many ways. There are ball games dedicated to the celebration of every cultural aspect of this city: Filipino Day, Latino Heritage Day, Lesbian & Gay Night, Marine Mammal Preservation Day, Halloween in July, and Dog Days at the Ballpark when the bleachers are opened up to people for whom a baseball game just wouldn't be complete without the company of their canine best friends. There is a Jerry Garcia Tribute Night, in honor of the Greatful Dead's legacy to our City by the Bay. The Negro League is honored every single day the ball park is open, with a stand full of Negro League memorabilia -- including baseball cards, t-shirts, etc -- that has proved both educational and fascinating to my sons.

In return, San Francisco is showing our appreciation for our Giants in abundance right now, with many of the historic San Francisco buildings lit up orange at night. Driving across the Bay Bridge night-before-last, I was stunned and delighted to see Coit Tower glowing orange from top to bottom. Since I was driving, I couldn't take a picture. But last night we were at an event across the street from City Hall, and I couldn't resist this shot:
It's an exciting moment to be in San Francisco. As our team flies to Texas for games 3, 4 and -- if necessary -- 5, the jubilance can be felt all over our city, on the street cars and in the shops and on the sidewalks. If you aren't too far away, it's worth coming for a visit -- especially in the evening, when the whole city seems to be glowing orange. And if you can't come by, well, cheer for us from wherever you are. It's been a rough few years in California, and we are savoring this happy moment.

Go Giants!!

The Times They Are A'Changin'

2010-10-08T15:06:00.000-07:00

Remember Anita Bryant? The woman who led public campaigns featuring Florida orange juice and raging homophobia, her very own special Mimosa? In 1977, she was given credit for the successful repeal of an equal rights ordinance that had been passed by Miami/Dade County, and Florida has never been the same. Almost 30 years later, in 2004, the United States Court of Appeals for the 11th Circuit found Florida's ban on adoptions by lesbians and gay men constitutional -- a ban that allowed children to be placed in foster care with fit lesbians and gay men, but denied these same children the permanency of adoptions by the people who had taken them in in their moments of need. Florida has never fully shaken off the enduring image of Anita Bryant.

If you go to the website of the Florida Department of Children and Families, and look at their FAQ on who can adopt, you will find the following: "There is no one description of people who can be prospective adoptive parents. If you have the ability to love a child, to provide the basics and to make a lifelong commitment, you can be an adoptive parent. A few things will prevent you from becoming an adoptive parent, such as certain felony criminal records. Section 63.042(3), Florida Statutes, states that 'no person eligible to adopt under this statute may adopt if that person is a homosexual.'" Great. Felons and homosexuals.

So it was with an overpowering sense of turning tides that I read the letter from the State of Florida Department of Children and Families to its Regional Directors that came across my desktop last week. The "subject" of the letter is "Third District Court of Appeal ruling on the state's ban on adoption by homosexuals as unconstitutional." Then, "Action Required": "Discontinue asking potential adoptive parents their sexual orientation and update necessary forms deleting any reference to potential adoptive parents' sexual orientation. DATE DUE: Effective immediately."

WOW.

It gets better. As I skimmed down the memo, I came to the section headed "ACTION REQUIRED." It is too good to paraphrase, so I'm quoting: "Effective immediately, staff will discontinue asking prospective adoptive parents their sexual orientation including questioning whether they are heterosexual, homosexual, gay or lesbian. Staff should be instructed not to use this information as a factor in determining the suitability of applicants to adopt and should focus his/her attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children."

What a concept -- to focus, in an investigation of suitability to adopt, on quality of parenting and commitment to the children, rather than on sexual orientation. It seems so obvious. But it has taken until now -- over 30 years after Anita Bryant's campaign -- for Florida to get there, and it is a big deal, given the particularly public history of anti-gay activity in that state.

Hopefully, in this regard anyway, as Florida goes, so goes the Nation....

What We Could Learn from Costa Rica

2010-09-08T15:56:00.000-07:00

I'm just back from a few days in the Costa Rican jungle, visiting my mother-in-law (yes, I am lucky to have a particularly interesting and adventurous mother-in-law).

I went to Costa Rica directly following the national conference of the National LGBT Bar Association in Miami (commonly referred to as Lavender Law), where marriage equality and the recent California decision in Perry v. Schwarzenegger were on everyone's minds. In Perry v. Schwarzenegger, one of the primary issues being discussed is whether a majority of voters can vote to discriminate against a minority group regarding access to marriage. The "No on Prop 8" folks say that it undermines our constitutional democracy to allow a majority of voters to strip rights from a historically discriminated-against minority by popular vote; the "Yes on Prop 8" folks say that it undermines our constitutional democracy to allow the courts to override the will of the popular majority.

And what does Costa Rica have to say about all this??

Well, it just so happens that Costa Rica -- long committed to their constitution and their record on human rights -- has just confronted this same issue. On August 10, 2010, the Supreme Court of Costa Rica ruled 5-2 to disallow a nationwide referendum -- sponsored by the Catholic Church -- on whether Costa Rica should recognize same-sex civil unions. The court based its ruling on its concern that allowing the referendum to go forward would target gay Costa Ricans for discrimination and violate their rights under international law. The court further held that minority rights cannot be subject to majority approval.

As liberal as Costa Rica is, it nevertheless amazes me that we -- in the United States -- may need to look south to our historically extremely Catholic Latin neighbors for guidance on how to promote equality for our lesbian and gay citizens.

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

2010-08-12T17:33:00.000-07:00

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

2010-08-04T10:10:00.000-07:00

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.

ARE THE CHILDREN OF LESBIAN AND GAY COUPLES THE LAST “ILLEGITIMATE” CHILDREN?

2010-05-25T09:08:00.000-07:00

Below is a letter I sent to the Editor of the New York Times, on behalf of NCLR's National Family Law Advisory Council. Since, as my friend/colleague Nancy Polikoff informed me, it is harder to get a letter to the Times published than to get a book published, I was unsuccessful in getting the Times to print this. Because I think the content is important, I am now posting the letter in its entirety: On May 4, 2010, the Court of Appeals for New York determined that a child born to a lesbian couple who had entered into a Vermont Civil Union prior to the child’s birth was the child of both mothers. This decision (Debra H v. Janice R) was hailed as a victory for gay and lesbian parents. [New York Expands Rights of Nonbirth Parents in Same-Sex Relationships, NYT 5/4/2010.] While we applaud the court’s recognition that some children born to same-sex couples deserve legal protection of their relationships with both parents, we are deeply troubled that this protection is only being offered to children born into legally recognized unions (i.e. civil unions, domestic partnerships, or marriages). In the early 1970’s, the United States Supreme Court ruled that it was a violation of federal Equal Protection to treat “illegitimate” children differently from other children, based exclusively on the marital status of the parents. It is shocking that forty years later, long after any state would consider differentiating between “legitimate” and “illegitimate” children born to heterosexual couples, the highest court of New York still feels it is appropriate to differentiate between children born into same-sex relationships on these very grounds. We are particularly concerned that this decision will impact lower income same-sex couples, who may not have the resources to travel to other states to enter into civil unions or marriages not currently allowed in New York. Our children – particularly our young children, such as the one in this case – do not care whether their parents are married or unioned or not. What they care about is that the people who have loved and cared for them from birth, as parents, remain in their lives in a stable and predictable way. The Court in Debra H had an opportunity to overrule New York’s outdated legal precedents and make clear that there are no more “illegitimate” children in New York, regardless of the sexual orientation of the parents. Its failure to do so cannot be hailed as a victory.

The Passing of Martin Anderson (10/13/1946-5/6/2010)

2010-05-09T18:20:00.000-07:00

This is my third blog post in less than four years to commemorate the passing of a beloved uncle. First, Ben Anderson in July 2006. Next, Alex Hoffmann in November 2009. And now Martin Anderson. None of these passings has been easy. Our uncles are so very special to us, and each loss has been painful in its own way. But honestly, the passing of Uncle Moose -- as we all called him -- is by far the hardest. Moose was a unique and wonderful man. He and I had a special thing going -- a thing that grew out of our discovery that we truly adored each other despite what could have been an unbridgeable chasm of differences. Moose was a decorated Vietnam War veteran, while I grew up protesting the Vietnam War. Moose was a staunch Republican, while I have always been somewhere to the left of the Democratic Party. Moose was a devout Christian, while I am a Jew -- and not a particularly devout one at that. I was the same-sex partner of his beloved niece. What was a man like Martin Anderson supposed to do with that?? Well, what Moose did was to welcome me into his family with open arms; to unhesitatingly teach his children to accept me as their cousin; and, in some ways most amazingly, to take a true interest in my perspective on the world -- to genuinely engage with me and my ideas, and share himself and his ideas with me, so that both of us ended up richer for the effort of trying to understand each other's perspectives. Uncle Moose was a terrific uncle, who loved to show his family a good time. I have such happy memories of boating with him at Big Horn Canyon in Wyoming -- he was the one who taught me to water ski (yes, I managed to grow up on Cape Cod without ever learning how to water ski); our photo albums are filled with shots of him hauling us around behind his boat on floaties of one sort or another; and he is the only person who ever truly launched me -- airborne, on some blow-up thing that looked like a giant purple bat, only to crash down spluttering and laughing in the lake and do it again. Then of course there was the time that he took me and Brooke way back into the canyon to share the spectacular scenery there, then had the motor go out on his boat. He tinkered with the motor for most of the return trip, while Brooke and I rowed as if our lives depended on it, with darkness falling, ending the evening very tired and at least as happy. When our kids were born, Martin said to me "I'm not sure I know how to be a Great Uncle!" and I responded "Are you kidding me?! You're the greatest uncle ever -- you've already been a great uncle to us for years -- you know EXACTLY how to be a great uncle!" That tickled him, and he made sure he lived up to it, showing a devotion to our boys unsurpassed by anyone in the extended family. And then there was Christmas Eve. Every year on Christmas Eve, around dinner time, the phone would ring and it would be Santa calling my sons. Zeke and Oliver would race to the phone, and Moose/Santa would be there -- full of sleigh bells and Ho Ho Ho's -- asking them if they had been good this year, and what they were hoping to get for Christmas, and absolutely convincing them that they really were the most special kids in the universe because NONE of their friends got personal calls from Santa on Christmas Eve. Last year, when Moose's cancer -- and the various treatments used to try to cure it -- had destroyed his throat to the point where he could barely talk, Moose was deeply worried that he wasn't going to be able to make his annual Christmas Eve Santa call to his youngest grandson Alex. Brooke suggested that our boys -- now teenagers, with deepening voices of their own -- could do it for him. So, with Moose and his family in the background, listening on the phone, Zeke and Oliver called little Alex and carried on the Anderson tradition. It was the passing of a torch, and we all knew it. Moose was a warrior. When it became clear a couple of years ago that cancer was going to kill him absent a miracle, he "soldiered up" and fought it with the courage and determination that only a warrior can muster. After weeks of grueling treatment at the Mayo Clinic -- a combination of chemotherapy and radiation at a level that would have brought a weaker man to his knees -- Moose, sick as a dog, said to me "I learned a lesson: it might not be a good idea to tell a medical oncologist that you would rather die from the treatment than from the disease -- I think they might have taken me a bit too seriously!" I could hear the twinkle in his eyes, even through his weak and raspy voice, and knew that our beloved Moose was still there. And that's the hard part. Through everything, through busy lives and hundreds of miles of separation, the knowledge that our beloved Moose was still there really mattered. And now he isn't. And it is making me incredibly sad. Moose was only 63. He had finally retired, after years of hard work, and this should have been his time to fish and play golf and enjoy his beloved wife and kids and grand kids. He was going to travel. We had a date to go fishing on Lake Powell. There was so much left to do. His wife, our aunt Diana, was the most amazing partner to Moose through his long, hard battle against cancer. She fought alongside him for as long as there was a fight to fight; and then she helped him to gracefully lay down his weapons and face the end with dignity. He died peacefully, thanks largely to the constant loving care that she was able to offer him in his final weeks, assisted by their daughter Rich and a loving chorus of family and friends. Diana told me that in his last days on this earth, he started talking about himself in the third person -- barely conscious -- death bed murmurings. "Martin," he said, "it's time to pack your bags." So Uncle Moose has packed his bags. I sincerely hope that he has found a better place. And I sincerely hope that while he's there, he finds my beloved father, and they have a beer together and tell each other stories, since they never met but should have, and since they are two of the best story tellers I have ever had the privilege of knowing. Moose taught me a lot about family, about courage, about loyalty, and about love. I will miss him forever.

Happy Birthday NCLR!

2010-04-30T15:06:00.000-07:00

I am writing this post from Cambridge, Massachusetts, where I am attending the annual conference of the American Academy of Adoption Attorneys and the American Academy of Assisted Reproductive Technology Attorneys, of which I am a new member. The conference has been very interesting, and I have had the opportunity to meet many excellent family formation lawyers from around the country. It is great to be here. BUT -- the conference goes through tomorrow morning, which means that I won't fly home to California until tomorrow afternoon. Which means that, for the first time in about a decade, I will be missing the annual gala of the National Center for Lesbian Rights. You would think that it wouldn't be a big deal to miss an event like this -- after all, it's a big, crowded event, not some intimate affair where my absence will be noticed or my presence missed. And, when I was planning my conference attendance, I didn't think it would be a big deal to miss the NCLR gala. So it has surprised me how sad I have felt as tomorrow draws near, and as I get notices and reminders about the gala from various listserves that I'm on, which of course also serve to remind me that I won't be there. The first NCLR gala I remember attending was held in a gallery in SOMA. We all fit in one room -- not a stadium-sized room, but a room about the size of my livingroom. I remember having a glass of wine with my partner and Debra Chasnoff, and being glad that NCLR had gotten big enough to host a reception like that. And now, probably twenty years later, the NCLR gala has grown to be a party attended by approximately 2500 people -- and sponsored by major businesses like PG&E and Wells Fargo Bank -- where people rent limos and tuxes and fly in from across the country. Not just that, but in those twenty years, NCLR has changed from a group of legal advocates defending the rights of lesbian mothers (remember Sharon Bottoms?) to a multi-state legal advocacy organization working on immigration rights; elder issues; the challenges facing women athletes; youth advocacy; marriage equality; and, of course, the rights of lesbian mothers. And, in some ways most remarkably, NCLR has become one of the premier legal advocacy groups for transgender men and women (thank you Shannon Minter!) and for gay men. I was talking to my mother and brother (with whom I've been visiting while in Massachusetts) about NCLR's current cases, and realized that the two NCLR cases currently getting the most publicity are a lawsuit against the North American Amateur Gay Athletic Association for disqualifying three bisexual male softball players for being "not gay enough" to play in a NAAGAA tournament; and a suit involving discrimination against an elderly gay male couple in Sonoma whose relationship was not accorded due respect during the final months of the older man's life -- neither case having a direct and obvious connection to "Lesbian Rights." In short, I have to conclude that NCLR has truly grown up. NCLR, I salute you on the eve of your 33rd birthday. Just think how far we've come, and where we'll be in another 33 years!

Embryo Donation

2010-04-10T10:21:00.000-07:00

I went to check my email last night, and noticed a headline about a court battle over donated embryos. When I picked up my morning paper today, the same story appeared on Page One. The specific story involves two couples -- one in California and one in Missouri. Both couples believe that life begins at conception, and consider the frozen embryos to be unborn children waiting for an opportunity for life. They met on-line and -- believing that the embryos are children -- went through an embryo "adoption" process. However, it does not appear that any lawyers or agencies were involved in this process (according to the news story, they used a "pro forma" contract -- whatever that means -- that had been previously drafted to address concerns of the Catholic Church regarding destruction of unused embryos), and the contract they used apparently granted "custody" of the embryos to the Missouri couple for one year, after which time the California couple had a right to revoke the agreement. The Missouri couple implanted two of the embryos, had twins, and now want to implant the other two embryos; the California couple are trying to revoke the agreement, since it now has been more than a year since custody was granted to the couple in Missouri. This case raises many tricky ethical, moral and even religious questions, not to mention giving judges in Missouri -- and maybe in California -- a lot to think about. There is quite a debate in the assisted reproduction community about whether the legal process for transferring possession of frozen embryos from one individual or couple to another should be viewed as a transfer of property -- to which general contract law applies -- or as an adoption. I know of at least one California agency that takes the same position as the couples in this case -- that frozen embryos are "pre-born children" -- and requires a genuine adoption process including a home study before approving the donation of embryos from one couple to another. However, most folks transferring embryos do not go this route, and instead hook up on the internet (after all, it is 2010), and cobble something together on their own. Current estimates are that there are approximately 500,000 frozen embryos now in existence in the United States. Nobody knows what to do with all these embryos, and good options are needed. Should they be used for scientific research, for stem cells, for ... ? Are they "pre-born children" whose lives already are sacred? Clearly, these embryos have the potential to offer the hope of pregnancy and childbirth to the many infertile couples who had previously given up that hope. But there is almost no law on embryo donation. Thus, messes like the one I read about in the news last night and again this morning. It will take years for the courts and legislatures to figure out what to do about embryo exchanges -- especially since, this being family law, chances are that each state will have to figure this one out on their own. In the meantime, there is one very clear moral to this current news story: Whatever your political/religious/moral views are about embryo donation (or embryo adoption), DO NOT use some one-size-fits-all contract off the internet to address the legal issues of transferring possession of cryopreserved embryos from one party to another. A consultation with experienced assisted reproduction attorneys who understood the legal issues, followed by a well-written legal contract between these two couples -- clearly setting out the conditions for the donation and addressing the specific grounds upon which it could be revoked -- would have left these two families with a concrete understanding of what they had agreed to and, in a worst case scenario such as the current one, would have provided the courts with clear guideposts for how to approach resolution. I have many clients who are embarking on journeys toward parenthood in a variety of ways. They are looking to be parents, not media stars-for-a-day or test cases. A well-drafted contract goes a long, long way toward assuring that they will end up with a baby, not a lawsuit. It may seem self-serving, but trust me: this is one area where money spent on an attorney who knows this area of law is truly money well spent.

Developmental Milestones

2010-03-23T15:10:00.001-07:00

This week, my family has passed not one but TWO developmental milestones. My "baby," now 14 years old, just got into high school. And believe me, getting into high school in San Francisco is no mean feat. Absolutely nothing is guaranteed, so most of us end up applying to a ridiculous number of schools, because there is no way of knowing in advance who will get in where. The kids go through the application process, shadow visits, interviews, essay writing, standardized testing.... It looks a lot like the college application process looked back when I was a student. And by the way, who ever heard of a system where one has to sweat whether their kid will get into public school??? We chose Balboa High School for our son -- a smaller, up-and-coming public high school that is reasonably close to our house. But admission to Balboa is by lottery, and more kids want it than can go. So it is a crap shoot whether or not your child will be admitted, just like with the private schools. So our family -- knowing that we were heavily leaning toward sending our son to public school -- ended up applying to 4 private schools and 1 Catholic school as well -- just in case our son didn't get admitted to a good public high school. Am I the only one who thinks that's kind of crazy?? Anyway, our son got into lots of schools, had lots of choices, and is in fact going to public school. And it is a huge relief to have the admissions process behind us. On to son number two.... Our elder son, now 16-1/2, got his driver's license this week. WOW. I don't know whether to do a dance (we don't have to drive him everywhere any more!), say a prayer (I hope he drives safely when he doesn't have a parent sitting next to him!), or both. But one thing is clear: our kids are growing up. In my work, doing adoptions and assisted reproduction law, I see lots of people who are pregnant and having babies. I am surrounded by infants and toddlers. I am constantly remembering when.... This week, I have been reminded about how old my own children are. They are two sturdy, capable young men, and I couldn't be prouder of them both nor more excited to see what the world has in store for them.

The Lessons of Smith v. Quale

2010-02-20T09:17:00.000-08:00

Since late August, I have been involved in one of the most complex and interesting cases of my career. The facts, very briefly, are that a committed lesbian couple decided to get pregnant, used a known sperm donor, and had twins. The twins have a hyphenated last name, and were raised by the two women together for almost six months. Then the women broke up, and a fight ensued over whether the non-birthing partner was a parent. I represented the non-birthing partner. In the midst of this fight, the sperm donor appeared back on the scene, moved in with the birthing partner, and the two announced to the world that they were the parents. They launched a "Save Our Twins" website (no longer on line, so I can't link to it) and went public with their battle to "save" "their" babies from the non-birthing partner, who was fighting for joint custody and a fair share of parenting time with the twins. I have read the dialogues on the blogosphere about this case for the past few months with both interest and alarm. While the case was pending, I didn't feel at liberty to discuss the case beyond a few comments to the media when the story hit the press. But we settled the case this week, so now I want to take a few moments to correct several of the biggest misconceptions I saw out there in cyberspace. MISCONCEPTION: If the children have a biological mother and a biological father, both of whom are present in the children's lives, those are the legal parents regardless of any other factors. REALITY: At least in California, there is more to figuring out who parents are than looking to genetics. To determine legal parentage, the courts have to consider at least 3 factors: biology, behavior, and intentions. In the typical, heterosexual, marital context, all 3 of these factors will point to the same people (i.e. a husband and wife will be the biological parents, they will behave like parents, and they will have intended to be parents, at least from the moment they discovered the pregnancy). But for many children, the people who are their biological parents may not be the same people who are raising them; and, in cases of assisted reproduction, the genetic parents may never have intended to act as parents. So when a lesbian couple chooses to have children together (intent), and then stays together to raise those children (behavior), for the most part under California law the two women will both be legal parents, even though only one of them has a genetic link to the children, and even if the biological father is present in the children's lives, but playing a lesser role. MISCONCEPTION: If the mothers weren't registered with the state as domestic partners, or legally married, the non-birthing partner has no legal rights. REALITY: While it is true that, in California and a number of other states, children born into a registered domestic partnership or marriage are legally treated as the children of both partners from birth, this does not mean that children who aren't born into a legally recognized union don't have two parents. The Uniform Parentage Act (UPA), adopted in some form by almost every state, was written largely to end the legal distinction between children born into marriage ("legitimate" children) and children born outside of marriage ("illegitimate" children). California's version of the UPA was adopted in the 1970's for exactly that purpose. Under the UPA, the marital status of the parents is not the be-all and end-all. Instead, the courts look at who intended to be the children's parents and who acted as the children's parents, as discussed above, in addition to the marital status of the parents. MISCONCEPTION: Birth certificates determine who the parents are. REALITY: Birth registration clerks have an important job to perform, but they are not expected to understand the extraordinary complexities of parentage law. The clerks are trained to put down whatever they are told by the birthing mother about whom the second parent is. And they are specifically admonished not to ask for proof of marriage, registration, or parentage (except in cases of surrogate deliveries, where the people identifying themselves as parents don't include the woman giving birth, in which case the clerks do have to see a court order). In California, now that birth registration clerks are used to lesbian couples having babies together with a legal right to put both mothers' names on the birth certificates due to domestic partner registration or marriage, it is easy to overlook the legal details. So typically, a birth registration clerk in a hospital will simply ask "are you both the parents?" without asking the technical, legal question "are you registered with the state of California as domestic partners or married, or both?" Most lesbian couples who have intentionally gotten pregnant together will answer "yes" if asked if they are both the parents. This is not fraud, and there is nothing illegal about it -- it is a truthful, good faith assertion of their mutual intention to both be parents to their children. But if the women aren't, in fact, registered with the state as domestic partners or married, they will need to do an adoption or bring a parentage action under the UPA to get full legal clarity and protection for the parent and child relationships of non-birthing partner and child. (And honestly, we make the same recommendation -- an adoption or a UPA action -- even for lesbian couples who are registered or married, because otherwise the legal relationship between non-birthing mother and child may only be recognized in states that recognize the adult union as legally valid -- which is an unacceptable situation for most parents and their children.) If you are getting the idea that parentage law is complicated, you're right. And if you are as fascinated by this area of law as I am, I invite you to read further. I have a summary of California cases on determining parentage on my website, as well as a link to a law review article I wrote a couple of years ago titled "The Parentage Puzzle."

We Are the World

2010-02-13T11:29:00.000-08:00

I admit to being a soft touch. I blame it on my father, the great peace activist and Nobel Prize winning biologist who would sit in the kitchen with me and cry over Lassie reruns on TV -- I kid you not! He was the original soft touch, and I spent my childhood crying with him through every sappy movie and TV show we could find. So I come by my "soft touchness" honestly.... Anyway, as a soft touch, I loved the original We Are the World, written 25 years ago (is that possible?!) by Lionel Richie and Michael Jackson, produced by Quincy Jones, and sung by many of the greatest performers of that time. It represented the best of what the music industry had to offer, and raised a huge amount of money to combat starvation in Africa. (For a quite brilliant example of political-satire-through-music, I also recommend the Kinsey Sicks version We Arm the World.) So I was excited when I heard that a new version was being put together to raise money to rebuild Haiti, following the devastating earthquake there on January 12, 2010. And to have the new version of We Are the World premiere at the opening ceremonies of the 2010 Winter Olympics -- well, that's almost more than a soft touch like me can stand! I tried to watch the opening ceremonies last night, largely because I wanted to see the video (although I also love the Olympics, and have always enjoyed the opening ceremonies), but I was thwarted by a problem with our cable which made the sound for NBC intolerably awful. So I went to sleep instead -- probably just as well, given how tired I was. Still, when I got up this morning, one of the first things I did was to go onto YouTube and find the We Are the World 25 video. Well, let me just say that I am not disappointed. We Are the World continues to be a beautiful piece of music, inspiring to my sons' generation (especially now that they've added a verse in Rap) as much as it was to my own. It was a brilliant concept when it was made, and Lionel Richie and Quincy Jones have done it again with this new version. Hopefully this song will help inspire each of us to be one of the "ones who make a brighter day" -- by doing something to help fix the devastation in Haiti, certainly, but also by contributing to the many other causes that so desperately need our attention -- whether in dollars, in time, or in small acts of kindness and consideration that make such a difference to our communities in a day-to-day way.

Greeting Fred Phelps, SF Style!

2010-01-29T10:39:00.001-08:00

The Westboro Baptist Church was in San Francisco yesterday, and will be back today, spewing their venom in a variety of choice locations around the city including the Jewish Contemporary Museum, a local synagogue/elementary school, Twitter (?), Stanford Hillel, a performance of Fiddler on the Roof ... and my older son's high school. In case you aren't familiar with the Westboro Baptist Church (WBC), they're the congregation in Kansas that became famous for picketing the funeral of Matthew Shepard and who regularly picket the funerals of people who have died of AIDS, as well as the funerals of soldiers killed in Iraq. (I am not linking to their websites because I don't want them to get more traffic than they already do, but if you can't help yourself they have two different sites, godhatesfags.com and jewskilledjesus.com -- are you getting the idea here?) Why, you may ask, were they picketing my older son's high school?? The honest answer is: I have absolutely NO IDEA. My son attends a large public high school -- one of three in the Bay Area that Westboro Baptist Church has selected for picketing -- and while it has an active Jewish students' group (dubbed "Shmooze for Jews") and an active Gay/Straight Alliance, these are just two of a myriad of clubs including a broad variety of cultural and academic clubs, chess club, mah jong club, debate club, etc etc etc. What makes it worth picketing the high school can only be explained by what I gather is a general strategy of the WBC to picket high schools wherever they go, in an effort to take their message of hate directly to the youth. In any case, they were there yesterday afternoon picketing my son's school. We had several days warning that they were coming, and had been making light of it at home. But when I found out, yesterday afternoon, that the WBC folks really were going through with this cockamamie plan, I have to admit to having a true "Mama Bear" moment of utter protectiveness and fury at someone putting my children in harm's way. I had an almost irresistible urge to drive straight to my son's school and run the bastards over. Instead, I reasonably calmly picked up my younger son from his middle school, then made a bee-line across town to scoop up my elder son. Here's what I found: The WBC folks were, in fact, having their picket -- all seven of them -- complete with offensive signs and plenty of venom. But the teachers and counselors had formed a human shield between the picketers and the students, and the students were amazing and fabulous, carrying signs and colorful balloons; wearing yamulkes and feather boas; playing loud music to drown out the hatefulness ("I'm Coming Out" by Diana Ross was blaring through the courtyard when I arrived to pick my son up); doing Israeli folk dances in the school courtyard; and turning the whole event into a moving and uplifting show of solidarity and spirit and good humor the likes of which I haven't seen in quite a while. The students -- very visibly including the gay students and the Jewish students -- the teachers, the staff, the parents -- EVERYONE formed a strong and united front to turn back the hatred. It made me proud of my city, and especially proud of our youth. It also brought home to me in a whole new way what the families must have gone through that walked gauntlets of hatred to take their children to school during the early days of school integration. Having people spew hatred at your children at their schools is particularly awful. I can't imagine what courage and conviction it must have taken for the parents and children who integrated schools in Little Rock and beyond to go through with their plan, and face down the venom day after day. One day, with lots of solidarity and support, was quite enough for me. Favorite signs from yesterday: "God Hates Figs" and "God Hates Polyester Too" (with a citation to Leviticus, no less!). And rumor has it that the school "Phelps-a-thon" -- where people were asked to pledge money for every minute the WBC folks picketed the school -- raised over $900 for the school Gay/Straight Alliance. Now that's what I call turning lemons into lemonade! So, when all was said and done, we had a reasonably happy ending. Although I still wish these awful people would just stay the f**k away from my kids!!!!

A Tribute to Howard Zinn

2010-01-28T09:43:00.001-08:00

When I was growing up -- the child of radical intellectuals in Cambridge, Massachusetts -- there were two other families that stood out for me as being cut from the same cloth as my own: the Boudins and the Zinns. Leonard and Jean Boudin lived in Greenwich Village, and their home was our home during many happy trips to New York. Leonard is the only lawyer I remember from my childhood, and his loving encouragement and willingness to take me seriously during my very early years as an attorney -- given that he was one of the great attorneys of his time, while I was a young whipper-snapper still figuring out who I wanted to be when I grew up -- endeared him to me for a lifetime. Roz and Howard Zinn, on the other hand, were local: they were at our home for every major family party; were at every demonstration that my parents took me to; were part of the discussion on what was wrong with our country and what could be done to right it -- not as a theoretical matter, but as a practical matter (which sit-in's to attend; what letters to the editor of which paper should be written; etc etc) -- that made up the fabric of my childhood. Beyond the political connection, which was strong, we also had a personal connection -- Roz and Howard's daughter Myla spent her summers in the same small town on Cape Cod where my mother still lives, and we all spent many happy hours together on the beach and in the village, enjoying summer swims and ice creams and all those small things that make New England summers special. I was honored to provide babysitting services to the family, caring for Howard's oldest grandson for two consecutive summers when he was just a baby and toddler. In this capacity, I got to know both Roz and Howard as devoted parents and grandparents. When I was in law school, I had the true honor of giving a presentation with Howard Zinn. As I said, I had known him from childhood -- but now I was sitting next to him on a panel, talking about immigration issues (if I remember correctly), with him providing a historical and political perspective while I filled in with a legal one. Howard treated me as a peer, and was utterly respectful of my vision and my voice -- something that deeply honored and impressed me at the time, and has stayed with me ever since. When I talked to my mother this morning, just after learning of Howard's death, we touched on Howard's legacy -- A People's History of the United States in particular. But more than his contribution to history, politics and culture, I will always remember Howard Zinn as one of the warmest and most charming men I have ever met. As I said to my mother this morning, Howard was always a delight to be with -- more so than almost anyone I know. He was a truly lovely person, and his passing leaves a hole in the world that will never be completely filled.

A Tough Month for Surrogacy

2010-01-15T18:38:00.000-08:00

December was a bruising month for surrogacy. Two cases made national headlines, both of which involve courts and broken promises and abundant heartbreak. And both of which, surprisingly, involve "gestational surrogacy" -- the type of surrogacy considered "safest" by surrogacy agencies and attorneys around the country. A quick glossary of terms: There are two kinds of surrogacy: traditional and gestational. In traditional surrogacy, the woman carrying the child (commonly referred to as a "traditional surrogate" or just a "surrogate") is also the genetic mother of the child/ren she's carrying. In other words, a traditional surrogate is a woman who has agreed to be inseminated with donor sperm and carry a child to term for another individual or couple, with the intention of giving the child to him/her/them immediately following birth, even though the child is genetically related to the carrier/surrogate. Because it involves a contractual commitment for a woman to give up her own biological child, traditional surrogacy is generally quite controversial and most folks acknowledge it is legally risky business. But gestational surrogacy is a process where an embryo is created through in vitro fertilization of eggs with sperm, and then implanted into the womb of a woman (commonly called a "gestational carrier") who is not genetically related to the child. This is the true "rent-a-womb" scenario, and is generally considered legally far safer. So back to the cases. Both have, as I said earlier, made national headlines, so you may already be familiar with them. Both, surprisingly, involved gestational surrogacy -- the women carrying the babies were not genetically related to them. And in both cases, the gestational carriers -- the women whose wombs had been rented -- were found to be legal mothers of the children despite this lack of a genetic connection. A surprising result? Not if one stops to look at the laws of the states in which these two cases occurred. The first took place in Michigan, where contractual surrogacy is not only illegal but is actually criminal. "Michigan has very strict laws prohibiting surrogacy contracts. State law not only holds these agreements unenforceable, but also imposes fines (up to $50,000.00) and jail time (up to five years) on anyone who enters into such a contract." Knowing that, the outcome of a surrogacy challenge in Michigan no longer seems surprising. The second took place in New Jersey. This case was somewhat more surprising because, up until the court ruled in December, many believed that gestational surrogacy was legal in New Jersey -- and the surrogacy agreements enforceable -- at least for unpaid surrogacy arrangements. (Traditional surrogacy is clearly illegal in New Jersey, under the Baby M. case from the 1980's.) The New Jersey case involves a married gay couple who had contracted with the sister of one of the men to carry a baby for them. Ultimately, the couple conceived twins, using the sperm of one of the men and donated eggs; and the other man's sister carried the twins to term for them as an uncompensated gestational carrier. So far so good. However, after the twins were born the sister decided that she wanted to be a mother instead of an aunt, and she has now won parental rights in court. This has pitted brother against sister in a custody battle, which is about as ugly as it gets; and it has made clear -- at least for the moment -- that both traditional and gestational surrogacy contracts are unenforceable in the state of New Jersey. So what's going on out there? The short answer is that surrogacy law remains as unclear as it always has been, with the 50 states forming a patchwork quilt of laws and policies that vary as much as state birds and flowers vary. The outcome of any surrogacy dispute will depend largely on the state in which the dispute occurs. At some point, there may be uniformity to surrogacy legislation around the country, but I'm not holding my breath. In the meantime, it is incumbent on fertility clinics, surrogacy agencies, surrogacy attorneys, and anyone else involved in the assisted reproduction arena to help get the word out: individuals or couples seeking to become parents through surrogacy MUST know the laws of the states in which they are engaging in the surrogacy process. Otherwise, they run the risk of ending up like the couples in Michigan and New Jersey -- with their years of planning for parenthood producing nothing more than a legal battle over parentage and a mess of heartbreak.

The Role of Delay in Family Law

2009-12-11T10:06:00.000-08:00

In family law, delay generally is frowned on -- at least where children are involved -- because certainty and closure are generally good things where adoptions, divorces or custody disputes are concerned. Kids deserve to know what their future holds, at least in terms of where they are going to be living and what their basic schedules are going to be. Delay -- leaving kids in limbo -- seems fundamentally unfair. In cases where the issue is not just time share between parents, but is actually who the parents are, delay is even more problematic. We currently have two cases in our office where delay has become a big issue. In one, a birth mother was convinced to give her child up for adoption based on promises it now appears the adoptive parents never intended to keep. This is fraud, and can be a legal basis for setting the adoption aside. It is clear that one of the primary strategies of the lawyer representing the adoptive parents has been to delay litigation of the fraud issue for as long as possible. Since the child continues to live with the adoptive parents while the case is pending, counsel knows that it will become increasingly hard for a court to order return of the child to the birth mother with every passing month -- and certainly with every passing year -- out of concern that disrupting the child's attachment to the adoptive parents will hurt the child. This is a case that truly could be won or lost not on the law but on the success of counsel in delaying things beyond the point where carrying out the law would be fair to a child. In the other, a lesbian couple has been fighting for years over parentage of their child. Bio mom took the child and moved to another state when the child was only a year old. Again, the legal outcome of this case is clear: both women are parents. But by stalling and delaying as much as possible, bio mom is in fact succeeding in creating a situation where the child doesn't know her other mother, and where reintegration becomes more and more difficult. Another case that could be won or lost not on the law but on the success of counsel in delaying things beyond the point where carrying out the law would be fair to a child. Delay as a tactic makes lawyers look bad. In both of these cases, it could end up doing real harm to children. It is time for the legal profession to rethink the use of delay, at least where there are children involved.

Known Donors, Fathers, and Everything In Between

2009-11-17T14:23:00.000-08:00

This last couple of weeks, I have been cranking out agreements for couples planning on using known sperm donors as fast as I can write them. I love doing these agreements, for several reasons. First, I love being part of the adventure of building families. The clients who come to me for donor agreements are generally so excited and happy, getting ready to dive into parenthood and thinking carefully about how to do it in the way that will best reflect their vision of the family they are trying to create. The enthusiasm is infectious -- especially for me, being a very enthusiastic parent myself. Second, I love having the opportunity to sit down with clients before any irreparable errors have been made, and help them avoid making them. I admit that sometimes these conversations cross the boundaries between therapy and law. To do a known donor agreement well, I have to probe peoples' intentions with them, and ask them all the hard questions I can think of, and try to help them hear their answers through a child's ears. But this is preventive law at its best, and it beats the heck out of the alternative! Recently, I have had a much more immediate reason to put a lot of thought and effort into my known donor agreements. For the first time in my career, I am currently faced with a situation where a lesbian bio mom is trying to substitute the known-but-previously-uninvolved sperm donor in for her now-ex-partner, despite the fact that she and her partner unquestionably had their children together -- as a couple -- with the intent to both be parents. This is lesbian drama at its worst, and it absolutely boggles my mind. As a bio mom myself, I simply cannot fathom how any mother can think it is okay to try to strip her children of their adoring other parent, no matter how bad things get between the adults. I also cannot imagine going back on my word to the extent required to try to pull this off. But all of that aside, this experience is again making me appreciate the importance of crossing i's and dotting t's while things are good. To date, we have not had a single donor dispute go to court in the San Francisco Bay Area where there was a written, signed agreement between the donor and the recipients. Instead, folks who have taken the time -- and spent the money -- to put their visions and understandings and agreements in writing and then sign on the dotted line seem to genuinely feel bound by those agreements -- to some extent legally, but also clearly ethically. Not one case in litigation. I think those numbers speak for themselves.....

Remembering Alex Hoffmann (7/31/28-10/29/09)

2009-11-03T19:36:00.000-08:00

My uncle, Alexander P. Hoffmann -- aka Sascha -- died last Thursday, October 29 at 6:45 pm. I was at his side when he took his final breaths, murmuring words of comfort and encouragement. Death is a strange thing, if for nothing else than for its utter permanence. It is hard to get used to the idea that you will never again see someone who has always been there. The last few months were hard. Sascha (the name he was known by in the family) had long lived alone. He was quite independent of us, his family, and I often went weeks -- or even occasionally months -- without talking to him. Even though he lived in Oakland and I am right across the Bay in San Francisco, we rarely saw each other except for holidays and special occasions. And yet he was a constant, loving presence in the background of my life. Someone who could always be counted on to show up for my sons' birthdays, gift in hand. Someone who was always interested in what I was doing, when I took the time out of my busy life to sit and visit with him. Sascha was profoundly shaped by his experiences as a child growing up in Austria, watching first hand as his country descended into fascism. His father was a socialist -- I remember my mother telling me that when Hitler invaded Austria, her family had to burn their Socialist library in the furnace. Although he and his family escaped Austria when he was only ten years old, the intensely politicized experiences of his childhood left him with a strong sense of justice and a passion for progressive politics that lasted his lifetime. Sascha and I had the law in common, and our shared commitment to using the law to promote social change. Although he stopped practicing law when I was just a child, he was proud of his legal career and kept his Bar membership active for many, many years after he stopped appearing in court. And it is clear, from the people who remained his friends and admirers, that he made a difference with his legal endeavors. Example: when I was a child, growing up in Cambridge, Massachusetts, Cesar Chavez came to speak. My parents and I went to hear him, and after his speech my mother and I went up to meet him. My mother approached Cesar Chavez and said: "I am Alex Hoffmann's sister." Cesar's response was to throw his arms around my mother, and to effusively express his appreciation and affection for my uncle -- something that made a lasting impression on me, and has since made an impression on my children who only knew Sascha as a sweet and loving great-uncle. Example: when I was in high school, my best friend and I decided to spend a summer in the Bay Area. We stayed with friends in Berkeley, and spent many a happy day hanging out with Sascha and his longtime companion, Elsa Knight Thompson, at the home they shared. Sascha's birthday being in late July, we were around for Sascha's birthday party. This was many years after Sascha had stopped practicing law, during a period when he was wrestling with depression, and this was just a regular birthday party -- not a 50th or 60th or other noteworthy occasion -- and yet the guests included such notables as Huey P. Newton of Black Panther Party fame. Again, to see the continued love and loyalty of important clients-turned-friends made a lasting impression on me. In his final few months of life, Sascha became increasingly debilitated and disoriented. We -- my brother and my partner and I -- moved him into a retirement community in the Grand Lake neighborhood of Oakland in May, hoping that he could continue to live independently for several more years in that environment, with healthy daily meals available in the community dining room and help available for medication management and other necessary supports. Unfortunately, his decline continued at a rapid pace, with frequent hospitalizations to address chronic crippling pain in his back and legs, dangerously low blood pressure, and increasing confusion. What had been a loving but casual relationship morphed into a daily involvement in each other's lives, with me trying to provide both stability and comfort with the little time and energy I could muster from an already-busy life. Finally, on Friday, October 9, he was transported to Alta Bates emergency for the last time, seriously dehydrated, extremely disoriented, with frighteningly low blood pressure and blood oxygen levels. Although initial tests failed to show anything seriously wrong with him, he continued to decline both mentally and physically, and began to believe he was being held against his will by people posing as doctors and nurses. Each blood test, each check of his vitals, was viewed by him as an attack, and the hospital was left with no choice but to put him in physical restraints to protect their nurses from his violent efforts to protect himself from their ministrations. As it became clear that something was, in fact, seriously wrong with him -- and as it became equally clear that he was experiencing the hospital's efforts to care for him as torture -- my family and I made the decision to offer him comfort and safety rather than attempting to reach a diagnosis and decide on a treatment plan. We had the restraints removed and, after he had pulled out his IV several times (which, by then, was only being used to keep him hydrated and administer pain medications), had the IV removed as well. I moved him to Piedmont Gardens, where they could administer "comfort care" in a kinder and more familiar setting. I sat with him for hours every day, simply talking quietly to him and offering whatever comfort I could, assisted greatly by my brother and my mother for the days they were able to join us in the Bay Area. I watched him die slowly, day by day, inch by inch, for two long weeks, until he finally was ready to leave this world. The thing that amazed me in my uncle's final days was the continued devotion of a small group of friends who were present every day -- whether in person, or by phone, or by emails to me to get daily updates. It became so clear to me as I sat bedside with Sascha that he was extraordinarily well loved. I am deeply grateful to the beloved friends who formed a circle around Sascha in his final days, when his deep disorientation and frequent paranoia made the companionship of trusted friends and family so essential. Sascha was a complex man, but at core he was profoundly kind and loving, with a keen mind and a terrific sense of humor. Through his friends, I have come to know him much better than I ever did as his niece. As I move back into the rhythms of my own life -- work, family, friends of my own -- I am increasingly grateful for having had the opportunity to share Sascha's final moments with him and his inspiring community of friends. He will be deeply missed.

The Medical Pit-Falls of Sperm Donation

2009-10-22T11:19:00.000-07:00

For those of you who don't hang out on the internet or watch late-night news shows, you may have missed the story: a man who donated sperm to an unnamed San Francisco sperm bank while in his 20's has recently been diagnosed with Hypertrophic Cardiomyopathy, a potentially deadly heart defect that causes sudden death in people previously believed to be completely healthy. It is already confirmed that nine of his 22 off-spring inherited the condition, one of whom died from the disease at age two. This story highlights the medical concerns raised by using young, anonymous sperm donors to assist in the conception of large numbers of children. This is not a situation where anyone acted irresponsibly -- according to all accounts, the sperm bank followed appropriate testing protocols in place at the time the donations were made (although apparently those protocols are now being revised to include a donor EKG); and the donor disclosed all known medical conditions at the time of his donation, without withholding any pertinent information. There are no villains here. I actually have a friend who donated sperm in his 20's, through a local sperm bank (maybe even the same one in the story -- I have no way of knowing for certain, since the sperm bank remains unnamed), believing that he was completely healthy. His mother and one of his sisters have since died of breast cancer, and testing has shown that his family carries a genetic trait that greatly increases the breast cancer risk for his female off-spring. As the father of two daughters that he is parenting, he knows what steps he will take to care for them and protect them as they grow older. He wishes that he could effectively let the parents of any female donor off-spring know that they should do the same. But he has no way to communicate with them, since his sperm donations were anonymous. These stories certainly point up something many in the fertility industry have long acknowledged: that the risk of passing on genetic diseases through egg and sperm donation cannot be avoided, and all pretenses that a family can protect against this risk by choosing a "perfect" donor are just that: pretenses. Further, they point to the need for a uniform system for passing medical information between "anonymous" donors and the families of their genetic offspring that protects the autonomy of both donor and recipients, while assuring timely communication of important medical information as needed. Hopefully the American Association of Reproductive Medicine, the Society for Assisted Reproductive Technology, and other like groups will address this issue promptly.

An Open Letter to Governor Schwarzenegger

2009-10-12T17:06:00.000-07:00

Thank you, Governor Schwarzenegger, for signing The Marriage Recognition and Family Protection Act into law today. It has been a bruising couple of years for lesbian and gay families in California. We saw our dignity and equality recognized by the California Supreme Court in May of 2008, only to have the voters decide at the ballot box in November -- in passing Prop 8 -- that our families do not deserve the full equality afforded different-sex families after all. We saw the same Supreme Court that said that "[w]hile retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children," turn around and state only a year later that "marriage" is just a name, and that denying same-sex couples access to the nomenclature of marriage does not violate equal protection. Well, SB 54 -- The Family Protection and Marriage Recognition Act -- codifies the best of the Supreme Court's Prop 8 ruling, clarifying that same-sex couples unequivocally have the right to fully recognized unions in the state of California, whatever we call them. It makes clear that folks who married out of state prior to passage of Prop 8 remain legally married in California; and, in part two, it clarifies that same-sex couples that marry outside of California after passage of Prop 8 will have their unions legally recognized in this state -- and be entitled to all of the rights, benefits and responsibilities of marriage inside this state -- whatever we call that union. Analogies to Prince (as in "The Artist Formerly Known as Prince") and Lord Voldemort ("He-Who-Must-Not-Be-Named") aside, it means a lot to know that California really is a state that believes in equality. Your decision to sign SB 54 into law allows for a level of clarify and security for same-sex couples that has been lacking for many months now. I understand that it took courage and conviction to stand up to the onslaught of negativity thrown your way by the Yes on 8 folks; and I wanted to say Thank You -- what you did today has made a difference. Sincerely, Deborah Wald Now, back to Prince.... 'Cuz they say two thousand zero zero party over Oops out of time So tonight I'm gonna party like it's 1999

On Your Feet Foundation

2009-10-05T14:33:00.000-07:00

I was at a benefit last night for the On Your Feet Foundation of Northern California. On Your Feet Foundation is a relatively new foundation in California, modeled off a foundation in Chicago bearing the same name, which seeks to provide support to birth mothers who have given up their children for adoption. A little background: it has long been a problem that birth mothers who choose to give their children up for adoption generally do so in hopes that the children will have a better life than the birth mother would have been able to provide; but the birth mothers themselves are then left behind to fend for themselves, without the support and without the access to resources that their children now will have as a result of the adoptions. This inequity is very troubling to many adoptive parents. California law provides that adoptive parents cannot give money to their children's birth mothers, beyond paying for living expenses during pregnancy plus all of the expenses associated with the adoption itself, in order to avoid creating an incentive for women to "sell" their babies. This is sound public policy -- we do not want babies to go to the highest bidder, as opposed to the family that is the best fit -- but it leaves adoptive families with few options for helping their children's birth mothers, even if they are so inclined (which they often are). For example: I had clients who wanted to set up a trust fund to pay for a higher education for their very young birth mother. They were precluded from doing so by the legal restrictions on payments to birth mothers. Enter the On Your Feet Foundation. Adoptive parents -- and the rest of us involved in the adoption business -- now have a place to which we can donate money, knowing that it will go to help birth mothers get back on their feet, to provide them with support and education and resources, without sullying the adoption process. Truly a worthy cause. The birth mothers who spoke at last night's event were both eloquent and moving. They told of the grief associated with the decision to give their babies to others to raise; and of their relief at finding a community of support; and of the access to education provided by On Your Feet Foundation grants that were helping pay for educational and vocational training. Listening to their stories reminded all of us in the room of the best that the adoption community has to offer -- to children, to parents, and to each other. So if you have benefited in any way from the adoption business, and if you have time, talents and/or dollars to share and are looking for a way to "give back," check out the On Your Feet Foundation.

A Shout-Out to Mary Travers

2009-09-23T09:22:00.000-07:00

I don't know where I was when I heard that Mary Travers died. It isn't like JFK's assassination, or even Michael Jackson's death, where everyone can tell you exactly where they were when they heard the news. In fact, I somehow missed the news completely, and didn't hear about her death until days later. But when I did, it had quite an impact. For those of you who are wondering what the heck I'm talking about, Mary Travers is the "Mary" in Peter, Paul and Mary. I grew up listening to her sing folk songs that remain beloved to me to this day -- Blowing in the Wind, and Puff the Magic Dragon, and If I Had a Hammer, to name a few. More than that, her voice is in the background of so many of my memories of raising my own children. In fact, one of the few concerts I took them to as little ones was a Peter, Paul and Mary concert. Last Sunday, our neighborhood held our annual block party. My partner and I always do the grilling for the event, serving up hot dogs and hamburgers and veggie burgers (this is, after all, San Francisco) for hours on end. Our neighborhood has many, many senior citizens in it, as well as more and more young families -- so the block party involves a steady stream of folks from 95 down to newborns, all mixing and mingling. My partner brings our "boom box" and provides the music. This year, as I came down the street with more supplies from our kitchen, I heard Mary Travers' voice echoing through the neighborhood, and I stopped and just listened for a few moments with a lump in my throat. But then I noticed: the senior citizens were singing along, enjoying the familiar music, and the toddlers were too. From 90 years old to 9 months young, everyone knew the sounds of Peter, Paul and Mary's music. There aren't a lot of singers one can say that about. Mary Travers -- Peter, Paul and Mary -- are beloved to at least three generations. The best way I can think of to honor Mary Travers in her death is to make sure that future generations enjoy her music as much as we did. I know what I'm giving as baby shower gifts from now on....

Lizzie Borden -- Who Knew?!

2009-09-14T14:05:00.000-07:00

I just returned from New York, where I was attending the annual conference of the National LGBT Bar Association. After three solid days of speaking at and participating in workshops, I needed a break -- and one of my colleagues was on her way to a show of the new rock musical Lizzie Borden, so I thought I'd tag along. Well, even though I'm from Massachusetts, all I knew about Lizzie Borden came from the one little rhyme I remember from elementary school: "Lizzie Borden took an axe and gave her mother 40 whacks. When she saw what she had done, she gave her father 41." If this show has any truth to it, there's way more to the story. All of a sudden, sitting in this tiny theater in lower Manhattan, a story started to unwind in which there is a strong suggestion of inappropriate sexual advances by Mr. Borden on Lizzie, and of a lesbian relationship between Lizzie and her neighbor with Mr. Borden reacting with rage and violence to their intimacy. I have no idea if there is any reality to this spin on the Lizzie Borden story, but it certainly made for compelling theater! So I have taken to Google this morning to learn what I can about Lizzie Borden. There's clearly a lot to learn, and I see a trip to the library in my near future. Any Lizzie Borden fans out there with stuff to read or recommend? Let me know!

The U.S. Department of Justice Finally Gets It

2009-08-22T07:41:00.000-07:00

I'm sure many folks reading this blog are aware that the U.S. Department of Justice riled many in the lesbian and gay legal community this summer by their over-the-top defense of the federal Defense of Marriage Act (DOMA). Instead of taking a measured approach to defending the federal statute because that was their job, without actually fighting for it, they launched a passionate defense of a statute to which Obama had openly and unequivocally declared his opposition during his campaign. The back-pedaling that followed the filing of their DOMA brief was embarrassing, and mostly falls squarely into the "lip-service" category. Obama has been truly disappointing in his failure to champion equality for lesbians and gay men and their families since taking office. He doesn't have to make gay rights his top priority. We understand that the economy is in a shambles and our military is fighting -- and dying -- in too many places. But there are simple things he could have done without any big hoopla. And he hasn't done them. (The obvious and most pressing example is to issue a stop-loss order re: the military -- something he could do today, as Commander in Chief -- which wouldn't overturn Don't Ask Don't Tell but would simply state that there would be no further discharges of gay soldiers and sailors under DADT while the issue of repeal is being studied. This one simple but courageous act would show that he actually believes in equality, and wasn't just trying to get our votes during the lead-up to the election.) Anyway, having failed to do anything for gay folks that really mattered up until now, the Obama Justice Department has finally filed a brief that is clear and outspoken and genuinely useful in the fight for equal legal treatment of lesbian and gay families. In their most recent filing in the California DOMA challenge (which probably is about to get dismissed for lack of standing of the plaintiffs, which is okay because there is a much better-organized and more convincing DOMA challenge already working its way through the courts out of Massachusetts, filed by Gay & Lesbian Advocates & Defenders in Boston), the U.S. Department of Justice said some striking things. Let me quote: "With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal." Now we're on the right track! But it gets much better than that. In a highly quotable and noteworthy passage toward the end of their brief, the government goes further: "Unlike the intervenors here, the government does not contend that there are legitimate government interests in 'creating a legal structure that promotes the raising of children by both of their biological parents' or that the government's interest in 'responsible procreation' justifies Congress's decision to define marriage as a union between one man and one woman. ... Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. Furthermore, in Lawrence v. Texas ... Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because 'the sterile and the elderly are allowed to marry.' For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality." (Emphasis added.) Now we're talking!! This is the kind of statement that those of us in the legal community have been looking for from Obama. Granted, it is buried in a brief that ultimately defends federal DOMA. The administration has yet to fully repudiate the statute, which I hope it will do by refusing to defend the constitutionality of federal DOMA in the GLAD suit. But to see our President and Department of Justice stand strong for our children and families really does warm my heart, and renews my commitment to fight for equality for our families in courts around the country, bolstered by the knowledge that this is a fight we are getting closer to winning every day.

Convicted for Trying to Save Lives

2009-08-14T11:13:00.000-07:00

My fabulous office manager, Dannielle, brought this story to my attention yesterday, and I had to pass it on. An Arizona man has been convicted of intentionally littering in a federal wildlife preserve for leaving full plastic water bottles in the refuge -- located on the Arizona/Mexico border -- so undocumented men and women using that route to cross the border won't die of dehydration. The man, Walt Staton, was sentenced to a year of probation and ordered to spend 300 hours picking up trash. According to the CNN story, the man is a member of the group No More Deaths. The group, according to their website, "is an organization whose mission is to end death and suffering on the U.S./Mexico border through civil initiative: the conviction that people of conscience must work openly and in community to uphold fundamental human rights." Given the frequent extreme heat along this border -- and the lack of natural sources of clean water -- one of their efforts is to put water bottles out so folks navigating that terrain can stay hydrated. Apparently, the last water-related death in the refuge was in June, 2008. A representative of the wildlife preserve where the water was left expressed sympathy for the cause of trying to prevent human deaths in the refuge, but said that a method other than leaving plastic bottles all over the refuge would need to be found so as to protect the animals living there as well. Refuge officials and No More Deaths are in direct discussions to find a compromise that is acceptable to both. In the meantime, Mr. Staton will be picking up an awful lot of garbage as punishment for the crime of trying to prevent people from dying of thirst in the desert. If that's a crime, I would love to know what passes for a good deed in Arizona....

Don't Ask Don't Tell Has Got to Go!

2009-08-10T13:37:00.000-07:00

It is one of those strange truths in my law practice that whenever I get a case raising an issue I've never had to deal with before, as soon as I start thinking hard about the issue I get another case raising the same issue ... and then another ... and so on. So now, after 15 years practicing family law in the LGBT community, all of a sudden I'm in "Don't Ask Don't Tell" (DADT) purgatory. And it's making me nuts. It is 2009, going on 2010. Barack Obama is President of the United States. We're in the midst of an unprecedented economic downturn and a historic struggle over access to health care. And I now have TWO (count them -- TWO) separate and distinct lesbian clients being faced with potential discharges from the armed forces because they have had children with their partners and want to take legal responsibility for those children including providing them with health insurance and other benefits. If these women were able to be "out" lesbians, and given the states they live in, they would not have any problem establishing themselves as legal parents and obtaining benefits for their families. They would not have any problem becoming self-sufficient, independent, legally-sanctioned family units. But because of DADT, I am having to work with their local counsel to craft legal cases for each of them to establish parentage for the children their partners have birthed without ever openly stating that they are in a committed relationship with the birthing partner. I can do this. I will do this. But I will fume the whole time I'm doing it. Again, it is 2009. We have a President who campaigned on a platform of equality for all. And I am having to tie myself into complicated knots to make legal arguments that evade and avoid the truth, out of fear of costing my clients their livelihoods in this most stressful economic moment if I speak the reality of their lives. If anyone reading this knows how to reach our President, I have a few things I'd like to say to him right now!

When Adoption and Immigration Law Collide

2009-07-09T17:00:00.001-07:00

Implementation of the Hague Adoption Convention has thrown intercountry relative adoptions into a state of chaos. In the United States, as in many countries, adoption policy favors relative adoptions. Children whose own parents are unable to raise them are best raised by relatives, so that they hold on to their cultures and maintain ties with their extended families. Placements outside the family are only sought where no fit relative can be found. However, the Hague Convention has required that all intercountry adoptions be handled through central governmental agencies, and in a uniform manner. This is supposed to take corruption and dishonesty out of the international adoption process. And it was implemented in part to assure that each country's cultural norms would be respected in the international adoption market. But application of these uniform rules to family adoptions simply doesn't work. An example: International rules require that a child born to married birth parents cannot be adopted unless the birth parents are destitute. This is to prevent the sale of children into the international adoption market. But take one client couple of mine, whose sister in a Hague Convention country agreed to have a baby for them because of their infertility issues. In their culture, this was a common and acceptable practice. But she wanted to have the baby in her home country, where she could continue to live her life and care for her own children up to the moment of childbirth. So the plan was for her to have the baby at home, with my clients present, and for my clients to then return to the United States with the child. Enter the Hague Convention. Under Hague rules, the child was not eligible for adoption because it was born to married parents who were not destitute. Further, if the parents surrendered the child to an orphanage to render it eligible for adoption, the child would then have to be placed for adoption through the central government agency, with no promise that it would be placed with my clients. No exceptions would be made for a relative placement, even though adoption policy clearly favors such a placement in both the country where the child was born and here in the United States. This left my clients with a series of unacceptable options. They could live in the country where the child was born for at least two years, adopt the child there, and then return to the United States when the entire effort was accomplished. Of course, this created huge problems in terms of their employment and their lives here in the United States. How do you put your lives on hold for 2+ years to adopt a child? Or, in the alternative, they could bring the child back to the United States with them on a tourist visa (they themselves are U.S. citizens), but once that visa expired the child would become an undocumented alien with no way to obtain legal status. A domestic adoption here in the United States, with full consent of the birth parents, would make the child legally theirs; but it wouldn't satisfy the U.S. Citizenship and Immigration Services (USCIS) rules for immigrating the child to the United States, now or ever. So the child would never be eligible for such vital documents as a Social Security number or a passport. Or, they could have their sister abroad surrender the child to an orphanage in her home country, then take their chances with the central adoption agency there, petitioning that agency to place the child with them. But if that didn't work, the child would be placed with strangers. In the end, we were unable -- despite consultations with lawyers and law professors around the country -- to figure out any way of allowing this infertile couple to legally adopt their sister's baby, which she had birthed specifically for them, and to immigrate that baby to the United States. Although relative adoptions were clearly favored under the adoption policies of each country, the rules simply did not work to allow this international relative adoption to occur. My initial reaction to the above dilemma was that there must be some mistake. The Hague Convention clearly allows for separate policy to be set for relative adoptions -- it must have been an oversight that no such policy had yet been implemented here in the United States. But no, that apparently is not the case; instead, the USCIS has chosen to assume, in its infinite wisdom, that all efforts by U.S. citizens to adopt relative children from abroad are actually barely-disguised end-runs around orderly family immigration policy. Rather than favoring relative adoptions, USCIS looks with great skepticism on all such adoptions. The fact that this position runs completely contrary to established immigration policy seems not to bother USCIS in the least. Their job is to prevent the flood of children to the United States that they fear would occur if family members here were allowed to adopt these children away from their own parents abroad. To prevent this flood, international relative adoptions have been rendered essentially impossible. And thus, the collision of adoption and immigration law.

On MIchael Jackson and Surrogacy Law

2009-06-30T19:56:00.001-07:00

Michael Jackson is pretty high on the list of things I never thought I would blog about. But all of a sudden, everyone is speculating on whether or not Michael Jackson's kids are really his -- and, even if they are, if they also have another legal parent. The issue is confused, and confusing, because no one seems to really know who the genetic parents are of any of Michael Jackson's 3 children: his wife Debbie gave birth to his two older children -- Prince Michael I and Paris -- and apparently an unnamed surrogate gave birth to his younger son, Prince Michael II (aka Blanket). However, now there are rumors flying that Debbie was acting as a surrogate herself, and that the two elder Jackson kids were actually conceived using donated eggs and donated sperm. The youngest Jackson child is rumored to have also been conceived with donated sperm. Michael Jackson never adopted any of the children. The fact that Michael didn't adopt the children is probably a red herring. Most people having children through assisted reproduction do not "adopt" those children -- instead, they enter into written agreements among the various players (egg donor, sperm donor, surrogate, intended parents) and then get court orders in accord with those written agreements. And the court orders are almost always confidential, as most matters dealing with the parentage of minor children are. So the lack of an adoption is probably irrelevant here; and the fact that we are unaware of any court proceedings is not surprising, even where a superstar like Michael Jackson is concerned. So how do we sort out who the parents of the 3 Jackson children are?? There already was a court case regarding the parentage of Prince Michael and Paris, after Debbie and Michael divorced. At the time of the divorce, Debbie stipulated to termination of her parental rights; but several years later, after allegations of child abuse surfaced against Michael, she went back to court to regain her parental rights and won, in an important California appellate case holding that it is void as against public policy for a court to terminate a fit parent's rights simply because the parents agree that one parent should be the only legal parent. The appellate court found that children have a right to a legal relationship with both parents, even if the parents wish otherwise. So presumably, Debbie is Prince Michael's and Paris's legal mother, even though she has not had custody for many years. It is very unlikely that this result would be different if it now turns out that Debbie is not the children's genetic mother. In California, either gestation or genetics is sufficient to prove maternity. Since Debbie gestated and birthed both Paris and Prince Michael, she can prove maternity and it is probably too late for anyone (i.e. their genetic mother, whomever she may be) to challenge this. Blanket is a different story. If he was, in fact, conceived with donated sperm and donated eggs, and carried by an unknown surrogate, then who his legal parents are will depend on what -- if any -- court action occurred prior to Michael Jackson's death. I obviously have not seen Blanket's birth certificate -- but I know, from my professional experience doing assisted reproduction law, that a hospital would not provide Michael Jackson with a birth certificate that only lists him -- and no mother -- without a court order. So if Blanket's birth certificate is, in fact, silent on maternity, then I have to assume that Michael Jackson got a confidential order from a Superior Court stating that he was the child's sole legal parent. If so, then Blanket is now an orphan, and will remain so absent an adoption by someone. My wish for the Jackson children, as with Anna Nicole Smith's baby, is that the fight over their parentage be a fight between people who love and want them, and not a fight to lay claim to a piece of Michael Jackson's fame or fortune. These are children. They deserve a loving family, regardless of how they were conceived and who their genetic parents are. Let's not lose sight of that in the craziness of what may be our final out-of-control-and-unpredictable Michael Jackson moment.

The Amazing Amanda List

2009-06-11T22:45:00.000-07:00

Attorney Amanda J. List has been working with us at The Wald Law Group since February, so I see her five days a week. My sons, on the other hand, have yet to meet her. Still, in our house, she is now known as "the amazing Amanda List." Why, you ask? Well, for starters she's a very good and dedicated lawyer. That pleases and impresses me, as her boss. However, it really doesn't do much for my sons. But add in her amazing sports connections, and you start to make an impression on them. On top of that, there appears to be almost no practical problem for which Amanda doesn't have a quick and easy solution. Some examples: Last week, my younger son spilled a can of soda in his lap while he was home alone. (Don't report me to CPS. He's 13 years old, so I'm allowed to leave him at home alone for reasonable periods of time -- not a week, not even overnight, but a few hours here or there. But I digress....) He decided to take matters into his own hands, changed into clean clothes, and put the sticky ones into the washing machine. Very ambitious -- especially for a 13-year-old boy. The only problem was, part way into the wash cycle he realized that both his cell phone and his IPod were in the pockets of the shorts he was washing. Oops!! No problem, says Amanda -- just put the cell phone in a plastic bag of rice. The rice will absorb the water, and the cell phone will almost certainly be fine. And then there is my older son's insomnia. I was kvetching to my office mates about my older son waking me up at night because of his insomnia. No problem, says Amanda -- try MidNite, an herbal remedy for insomnia specifically designed to be taken in the middle of the night if you wake up and can't go back to sleep. She swears it doesn't cause grogginess. And the best part is the tablets melt in the mouth, so you don't even have to keep a glass of water by your bed. Oh, and then there was the time that our girl puppy woke us up in the middle of the night, barking and barking and barking, and when I finally dragged myself out of bed and went into the kitchen (where we keep them shut in at night), I discovered she was barking because her brother had gotten into our Heartguard stash and eaten approximately 18 Heartguard tablets (he's supposed to get one per month) -- and she was mad because he wasn't sharing. Needless to say, I panicked at the massive overdose of medicine he had just ingested, and raced to the phone to call All Animals Emergency Hospital. "Oh, you should have called me!" says Amanda the next morning when I report the night's adventure. Yup, you've got it -- Amanda knew exactly what to do because her beloved father was a vet. According to Papa List, the recipe on such occasions is to pour a cup of hydrogen peroxide down the puppy's throat, hold its mouth shut, and shake it gently -- "not like a cocktail!" -- and voila, the puppy will throw up whatever it ingested that it shouldn't have. Okay, that's drowned cell phones, insomnia, and poisoned puppies. Honestly, I'm beginning to wonder what Amanda doesn't know!

A Tribute to One of My (Fallen) Heroes

2009-05-31T13:43:00.000-07:00

I was about to leave the annual gala party for the National Center for Lesbian Rights last night when I ran into two old friends, both of whom I know from my years as a public defender in Oakland, California. Both women were in Women Defenders with me many years ago, and as we stopped a moment to catch up, one of them shared the very sad news with us that the founder of Women Defenders, Susan Jordan, died Friday in a small plane crash. I have been thinking a lot about Susan since hearing this very sad news, and wanted to take a moment to share some of those thoughts. Susan was a remarkable woman in many ways. She lived her life loudly, with great intelligence, passion and humor. She was an amazing criminal defense lawyer, who had a great deal to do with the development of the "battered women's syndrome" defense -- which she used successfully for the first time in her defense of Inez Garcia, a woman who killed the man who raped her and was originally convicted of murder, but who was later acquitted during a retrial in which Susan represented her. From her experience representing Inez Garcia and other women accused of violent crimes, Susan Jordan came to believe that a woman's perspective could be an invaluable asset to women criminal defense attorneys, instead of being the handicap it previously had been considered. Up until Susan founded Women Defenders -- along with a group of younger women criminal defense attorneys from the San Francisco Bay Area of whom I'm proud to be one -- it had been commonly accepted that the way for women to succeed in the field of criminal defense was to be more macho than the most macho male criminal defense attorneys -- and believe me that criminal defense attorneys truly know from macho! Susan brought a very different -- and very well-articulated -- perspective to the discussion, arguing that the natural empathy of women was an asset that allowed women to do a better job of humanizing our clients to juries -- especially when the clients were accused of acts of violence. In the early days of Women Defenders, before it was a true organization, a hand-selected group of us sat around living rooms in San Francisco and the East Bay and shared our experiences as women and as criminal defense lawyers, and talked honestly -- most of us for the first time -- about the strengths and challenges we experienced doing this very demanding work as women. The conversations we had ultimately led to the formal founding of Women Defenders almost 20 years ago, and started a true community of women criminal defense attorneys committed to providing support and mentorship for each other -- led, of course, by Susan B. Jordan. Susan brought more to the table than her excellence as a lawyer. She was one of the first women I knew who talked openly about her experiences as an adoptive mother -- and actually helped create a children's book about adoption, with her daughter as the protagonist, that was one of the first such books I ever saw. She shared her challenges as a mother with us with the same thoughtfulness and humor with which she shared her professional challenges; she was incredibly proud of her family, and always had a story to share about them. And in and around everything else she did, Susan always shared with us her passion for flying. She was the first person to ever tell me about the Powder Puff Derby, and the proud history of women pilots in America. In fact, if I remember correctly, she dreamed of flying in her own cross-country race -- although I don't know if she ever actually did. I do know that she regularly flew from her home in Berkeley to her home in Ukiah, and to distant court appearances; and other than her work and her family, her passion for flying is what I remember most about her. So it is appropriate, I suppose, that she went down in a small plane. I haven't seen Susan in many years -- quite possibly since 2000, when the founders of Women Defenders were all honored at a gathering. But she has remained with me as one of my mentors, and a woman I truly admired in so many ways for so many years. Even though she is gone, she leaves behind her a proud legacy that lives on in Women Defenders and in all of us who had the privilege of knowing her. I hope her spirit is soaring high above us, in the clouds she so loved to fly through.

When the Court Promised Us Equality, They Had Their Fingers Crossed

2009-05-27T11:27:00.001-07:00

I have now finished reading the entire Prop 8 decision (well, I admit that I skimmed through the majority's very lengthy discussion of the history of the amendment/revision issue), and I have just a few comments to add to those I wrote here yesterday. First, the decision is well-thought-out and articulate, and gives the strong impression that the Chief Justice and his co-signors felt they had no choice but to rule the way they did. If the Chief Justice had not authored the decision in the Marriage Cases a year ago, I would tend to believe that he was currently acting with integrity. My problem is that I cannot find any way to reconcile what the majority of the court said a year ago with what they are saying now. Let me be specific: When our Supreme Court issued its marriage decision a year ago, same-sex couples already had all of the rights and benefits of domestic partnership that we have today. The court did not find that our Constitution required that same-sex couples be offered the same package of rights and responsibilities as different-sex couples; we already had those. Instead, they found that our state Constitution -- specifically our constitutional rights to due process, equal protection, and privacy -- required that same-sex couples not be put in a separate category from different-sex couples, because the "separate but equal" approach necessarily undermined the dignity and respect accorded same-sex couples and our children. The Supreme Court, a year ago, insisted that our Constitution would allow them to settle for nothing less than full, true equality on our behalf. Now, just a year later, they have determined that as long as the state is providing us with all of the rights and responsibilities accorded married couples (which, again, was true before the court ruled last year) that meets the constitutional imperative provided by the due process and equal protection clauses of our Constitution. Now, "marriage" is just a name, and separate is equal enough to pass constitutional muster. So what changed?? They would answer: "our Constitution changed." They would have us accept that the passage of Proposition 8 means that our current Constitution no longer allows them to provide us with full equality through marriage, but that their commitment to equality nevertheless remains unchanged. And, in fact, in Justice Werdeger's concurrence, she articulates this position quite eloquently: "Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases ... that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that -- excepting the name -- same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions 'marriages,' but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the 'fundamental right ... of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.' [Quoting from the Marriage Cases.] For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." Her concurrence strongly suggests that she thinks our current domestic partnership law is unconstitutional in that it does not allow different-sex couples the opportunity to register as an alternative to marriage; and in that it requires same-sex couples to share a common residence in order to obtain the benefits of registration, whereas different-sex couples can obtain those same benefits through marriage without residing together. It is politically interesting to think about demanding that domestic partnership registration be made available to all -- a position with much merit that got abandoned in Sacramento so as not to undermine traditional marriage. If straight couples were allowed to register as an alternative to marriage, that would give us a lot of new allies in demanding federal recognition of domestic partnership. It also could help neutralize the stigmatization that automatically accompanies a "separate but equal" approach. It doesn't fix the fundamental problem created by Proposition 8 and the court's ruling, but it is an interesting and potentially scenic detour on the road to equality. Still, at the end of the day, if the Supreme Court really believed what they said last year, i.e. that marriage is the only way to provide same-sex families with the full respect and dignity that we are due, then I cannot follow how denying us the right to marry does not substantially undermine our state's equal protection clause. And if Proposition 8 in fact did serious harm to the equal protection clause, then it seems clear that it would be a revision and not an amendment and therefore would require more than a simple majority vote. Which seems to be the perspective of Justice Moreno, who authored a ringing dissent, which I recommend to any of you looking for a good read. The reality is that our Supreme Court is made of up seven people with their own ambitions and concerns (including job protection) that influence them in ways that we may never fully know or understand. But going back and reading the Marriage Cases, and comparing them to the opinion issued by the court yesterday, I cannot help but conclude that when the court promised us full equality last year they had their fingers crossed. And that, unfortunately, is a conclusion that even our children can understand.

The CA Supreme Court Ruling on Prop 8

2009-05-26T11:06:00.000-07:00

Here is my best effort -- in "real time" -- to digest the Supreme Court's very long opinion on Prop 8. I reserve the right to update and revise this after a more luxurious reading of the decision. In its decision today, the California Supreme Court did several things: (1) They reaffirmed that discrimination against lesbians and gay men will be subject to the highest level of scrutiny from the courts ("strict scrutiny" in legal parlance); (2) They ruled that "although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated as 'marriage,' in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, 'the core set of basic substantive legal rights and attributes traditionally associated with marriage,' including, 'most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.' [Quoting from their marriage decision last year!] Like opposite sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right." In other words, our rights as established by our state domestic partnership laws remain intact, and are constitutionally protected -- but the court is now splitting hairs and finding that the designation of "marriage" is not itself constitutionally important, and therefore can be taken away from us without offending our state Constitution. (For an excellent counter to this argument, just read the court's opinion from last year -- or my blog on the issue from March 26 where I reminded the court of what they said.) (3) The court concluded that limiting access to "the designation of marriage" -- as opposed to the rights and responsibilities accorded committed couples through both marriage and domestic partnership -- has only a "limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases." Therefore, this "narrowly drawn" exception to the fundamental constitutional rights of due process and equal protection is fairly categorized as an "amendment to" and not a "revision of" the Constitution. (Remember, this is the court speaking, not me -- if you are now yelling at the computer, don't blame me -- I'm just trying to explain what they did, not justify it!) (4) The court unanimously held that marriages by same-sex couples entered into before November 5, 2008 continue to be valid and recognized in California. "[S]ame-sex couples who married after the decision in the Marriage Cases ... was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. ... Accordingly, ... we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects." And now, the $64,000 question: what about marriages entered into by same-sex couples outside of California??? All the court had to say on this issue was: "We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time." Honestly, I do not know what the phrase "not formally recognized in California prior to that date" means. If a Massachusetts same-sex couple, married in Massachusetts prior to adoption of Proposition 8, came to California for vacation last summer and went around telling everyone here they were married, was their marriage "formally recognized in California"?? Certainly their Massachusetts marriage was recognized in California last summer. But what does the word "formally" mean in this context??? Does this mean that a same-sex couple married in Massachusetts on November 4 has a marriage recognized by the state of California, but a same-sex couple married in Massachusetts on November 6 does not?? Even if all other relevant considerations are identical?? Isn't there an equal protection problem here (equal protection embodying the principle that it is unconstitutional to treat similarly situated people differently without good cause)? I predicted that the court would leave us with an unmanageable mess if they upheld Proposition 8, and they seem to have done just that. More later, as I figure some of this out....

Taking A Moment to Boast About My Brother

2009-05-22T10:27:00.001-07:00

Being Jewish, I have to take a moment to boast (or kvell, if I really want to be Jewish about it) about my brother Elijah. As those of you who regularly follow this blog may already know, Elijah is a musician and music historian who has published a number of books over the years about various musicians (Dave van Ronk, Robert Johnson) and musical genres. He has a new book coming out next week, with the provocative title How the Beatles Destroyed Rock'N'Roll. The book just got a prominent mention in ... NEWSWEEK! Now that's "making it"!! Now you see what I'm up against. How to compete in a family like this?? If any of you can help me get on Oprah, please give me a call....

Important Adoption Victory

2009-05-13T11:00:00.000-07:00

This morning, the Florida Court of Appeals ruled that the state of Florida must give full faith and credit to a 2nd parent adoption from Washington. To be more specific (and less legalistic): a lesbian couple from Washington had two children together. Each gave birth to one, and each adopted the one to whom she had not given birth. They later moved to Florida, and after break-up one of them (let's call her Mom1) tried to argue that her ex-partner (Mom2) did not have a legal right to be recognized as a parent of the child that Mom1 had given birth to -- even though Mom2 had legally adopted the child -- because, according to Mom1 (and Liberty Counsel, who appear in every case like this), recognition of the 2nd parent adoptions from Washington violated Florida public policy. I am sorry to report that this case is one of a flurry of challenges around the country to same-sex adoptions and parentage actions. In our very mobile society, job changes and family matters frequently cause same-sex couples and their children to move to states that do not provide the same types of protections that were provided in the states where these families first formed. When ugly break-ups occur, we are seeing parents try to take advantage of the public policies of their new home states to try to gain advantage over ex's with whom they no longer want to co-parent. Because Florida has been particularly hostile to same-sex families with children -- being one of the very few states that will not allow gay people to adopt -- we were watching this case very closely. To win in Florida bodes very well for the outcomes in the other pending cases. For those of you interested in the details of the ruling, the Florida Court of Appeals held that Florida public policy was irrelevant; and that under the Full Faith and Credit Clause of the United States Constitution, Florida had no choice but to recognize the Washington judgment of adoption. As stated by the court, each mother “must be given the same rights as any other adoptive parent in Florida.” The court went on to note that “there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state,” and concluded that “regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.” A concurring opinion added that the petitioner's “same-sex relationship with [the other parent] is irrelevant for the purpose of enforcing her rights and obligations as an adoptive parent.” Kudos to the National Center for Lesbian Rights, which fought this case with their usual combination of wisdom and passion. Hopefully this ruling, which does not mince words, will help stem the national tide of anti-adoption and anti-family litigation; and children will continue to enjoy the protection of our nation's courts from parents who get over-zealous in their efforts to marginalize their ex's.

Thoughts on Swine Flu

2009-05-04T17:05:00.000-07:00

I spent April 23-27 in Mexico. I came back and immediately came down with a cold. If you are in need of some time by yourself, tell everyone you come in contact with that you just came back from Mexico and now you aren't feeling well. Even better, try telling them this between coughs and sniffles. They will give you all the personal space you need.... But seriously, I was in Puerto Vallarta, on the coast, in the state of Jalisco. For those of you unfamiliar with Mexican geography, Puerto Vallarta is approximately 550 miles from Mexico City, where the swine flu outbreak appears to have started. As of today, there still is not one reported case of swine flu in the entire state of Jalisco. Compare that to California, where there are now 190 confirmed or "probable" cases. I have heard several commentators rambling on about the "mystery" of why the swine flu mortality rate in Mexico has been so much higher than in the U.S.. Last week, I finally heard the answer I had been assuming: i.e. that most of the swine flu deaths have occurred in a particular barrio of Mexico City where there is only running water 9 hours out of the day. It does not take a rocket scientist to figure out that a place with very poor sanitation -- making good hygiene almost impossible -- would experience any outbreak of disease more seriously than we do here in the U.S. or in Europe, where we can wash our hands every 5 minutes if we want to, and run our dishes and glasses through dishwashers with a sterilization cycle, and so on. I have no issue with our government taking this current flu epidemic seriously. I certainly don't think it's a bad idea to have a "test drive" for how we deal with a world health crisis. But I cannot help but be offended at the surprise that we in the 1st world express when we learn of the health challenges facing very poor people in countries where things like running water and electricity are still a privilege that many can't afford. If we want to control flu epidemics like this in the future, maybe we should be looking at how to improve sanitation in the poorest neighborhoods of our poorest neighbors. This seems like a much more productive approach to addressing global health challenges than closing schools in well-off neighborhoods in the United States because one child with excellent health care and sanitation available has come down with a fever. Just my two cents....

Checking in From Costa Rica

2009-04-07T12:03:00.000-07:00

I'm writing this from the internet room at the Cafe de Paris in Playas de Nosara, Costa Rica, where I am on spring break with my 13-year-old and a buddy of his. It seems like every time I stop to look at the internet, another state has extended marriage rights to same-sex couples. If this keeps going, there will be over half a dozen states enjoying marriage equality by the time I get home! It has been interesting reading this news here. I learned about Iowa at the jungle home of my mother-in-law, who herself has completed 2 years of law school and was as interested as I was in the details. We both had the same reaction -- IOWA??!? Who knew that Iowa was one of the first states to allow women to own property and to go to law school; that Iowa was far ahead of the curve on anti-slavery issues; that Iowa actually has a long and proud history of being at the forefront on at least some controversial civil rights issues. I am still working my way through the Iowa Supreme Court's unanimous opinion, but what is immediately clear is that each court ruling on these issues is taking the experiences their fellow courts have had to heart in rendering their opinions. The Iowa decision includes a lengthy and very well-thought-out discussion of why the separation of powers requires the court to be the final arbiter of issues regarding equal protection and fundamental rights. The court clearly is thinking about our experience in California, and trying to prevent the same from happening in Iowa. I sincerely hope that our California Supreme Court Justices are reading the Iowa decision carefully, and thinking long and hard about what that court has to say about the meaning of a constitutional democracy and the ways that the constitution is designed to limit the power of the majority. Clearly, the Iowa Supreme Court is suggesting that Proposition 8 would be unconsitutional if it were in Iowa. And now Vermont, where the House today voted to override the Governor's veto and enact the state's marriage equality bill. I had not intended to spend my tropical vacation thinking about marriage rights for same-sex couples -- and frankly, for the most part that is not what I have been doing. I have spent most of my time here playing with the boys, diving in and out of warm waves, watching monkeys play in the trees, and visiting with friends and family. My plan for the afternoon is to go fishing. But it is nice to know that progress is being made in my absence, and that the United States that I return to next week will be one where same-sex families can walk a little prouder and feel a little safer than they did when I left. And now it's time to go fishing. Pura vida!

Predicting the Continued Validity of Last Summer's Marriages

2009-03-30T20:07:00.000-07:00

In keeping with my principle that I blog about any question I'm asked 3 times in one week (see my entry of 2/27/09), it's time to blog about the future validity of the marriages entered into by same-sex couples between June and November, 2008. Lots of folks are asking me what I think the California Supreme Court will do in the case challenging the constitutionality of Prop 8. I have never been one to publicly predict how any court will rule, but after watching the oral arguments, I feel confident predicting this much: however the court rules on the constitutionality of Prop 8, I believe they will find the marriages entered into by same-sex couples June 16 and November 5 valid, and will order the state to continue recognizing them as such. The justices of our Supreme Court do not always show their hands in oral argument. Often, one leaves the courtroom having no idea what they are thinking. But my experience is that when they do show their hands -- that is, when they ask questions of the attorneys that clearly indicate which way they are leaning on an issue -- they are not sneaky or deceptive about it. In other words, while it is never safe to guess what the justices are thinking unless they make their thoughts clear themselves through their questioning, if they do make their thoughts clear through their questioning it generally is safe to rely on what was heard in the courtroom to determine which way they intend to vote. During the Prop 8 arguments, almost every justice spoke up to question the attorneys arguing for the retroactive application of Prop 8 -- and resulting invalidation of the approximately 18,000 marriages entered into by same-sex couples last summer -- how those attorneys could argue that the court should invalidate marriages entered into in good faith by couples relying on the court's own ruling in In re Marriage Cases. Even the most conservative justices seemed downright offended that certain lawyers (for example Ken Starr) were suggesting that they could invalidate marriages in good conscience that were only possible because folks relied on their (the justices') prior decision. In light of the clear sentiment with which these questions were asked, I feel quite safe in guessing that the justices are not planning on invalidating anyone's marriage that was entered into in reliance on In re Marriage Cases. Of course, that's just a guess -- but it's an educated guess, based on years of court-watching.

Relying on the Integrity of the Court

2009-03-26T13:34:00.000-07:00

I wrote an Op-Ed for The Daily Journal (California's largest legal newspaper, published in both San Francisco and Los Angeles) about the oral arguments on the constitutionality of Prop 8 in the California Supreme Court, which appeared in the paper on March 17. Since The Daily Journal isn't available on-line, I thought I'd reprint the piece here: The most painful part of the oral arguments on the constitutionality of Proposition 8, heard by our Supreme Court on March 5, 2009, came during the back-and-forth between the justices and Shannon Minter, Legal Director of the National Center for Lesbian Rights, during Minter’s rebuttal argument. Our Chief Justice, Ronald George, asked Minter to explain why it wasn’t fair to characterize Prop 8 as “eliminating the designation of marriage, eliminating the nomenclature, but not disturbing the Court’s recognition [in its May 2008 decision in In re Marriage Cases] of very important rights” accorded same-sex couples through domestic partnership. While Minter gave an eloquent response to the Chief Justice’s question, the best answer I have ever seen to that particular question should be very familiar to Chief Justice George. It was written by the Chief Justice himself in In re Marriage Cases. In In re Marriage Cases, Chief Justice George – writing for the majority – wrote that “retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children.” He went on to explain: “Whether or not the name ‘marriage,’ in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes – by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership – pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” Chief Justice George, and the majority of Justices, concluded “that in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.” The Court based this conclusion on three findings: (1) that “the long and celebrated history of the term ‘marriage’ and the widespread understanding that this term describes a union unreservedly approved and favored by the community” makes it “apparent that affording access to this designation exclusively to opposite-sex couples ... realistically must be viewed as constituting significantly unequal treatment to same-sex couples”; (2) that, “particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... inevitably will cause [domestic partnerships] ... to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship”; and (3) that unfamiliarity with domestic partnership “is likely ... to pose significant difficulties and complications for same-sex couples, and perhaps most poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage.” Honestly, that seems to say it all. I have followed the California Supreme Court’s family law decisions for many years. I sat in the court during the oral arguments in the Nicholas H. case, when the court made clear its commitment to placing children’s needs at the center of its family law jurisprudence. I sat in the court during the oral arguments in first the Sharon S. case and later the Elisa B. case, when the court made clear its commitment to extending traditional family law protections to the children of same-sex couples. I read their In re Marriage Cases decision with awe, admiring both their insightfulness and their eloquence in explaining why respect for same-sex families required that these families be allowed to join in the institution of marriage. While I have not always agreed with our Supreme Court, I have come to admire them deeply for their integrity. Yet right now, I am afraid that they are getting ready to significantly compromise that integrity by acting like they didn’t say what they clearly said less than a year ago: that fundamental equality for same-sex couples – protected by our state Equal Protection Clause – requires that committed same-sex partners be allowed the opportunity to marry. I sincerely hope that my fears are unfounded. Reprinted with teh permission of Daily Journal Corp. (2009)

Sharing the Joy of a Glorious Morning

2009-03-07T14:03:00.000-08:00

This morning started early, when my alarm radio burst into song at 5:30 a.m.. Time to get up, make a meager effort at breakfast, and get my 15-year-old to his crew practice. In case you don't know this about me (and why would you?), I'm not exactly a morning person. But coming over the hill on our way to pick up a crew mate, we had a sweeping view of the sun rising over the San Francisco Bay, and I thought "this is why we live in San Francisco." Fast forward two hours. After dropping my 13-year-old son at his baseball practice, I decided to walk the puppies (now 6 months old) in Glen Canyon Park. We hiked through the canyon itself, and then up through the rock formations and onto the grassy hillside. The puppies raced through the tall grass, leaping in and out of rivulets, while I admired the wildflowers. The sun shone bright, and the rain-washed landscape was as crystal clear as I can ever remember -- nature in "high def." It has been a rough week in many ways. The Dow fell to below 6500 for the first time in over 10 years. California's unemployment rate is over 10 percent for the first time in even longer. And the oral arguments on the constitutionality of Prop 8 in the California Supreme Court on Thursday were far rougher than many of us had expected. In the face of all that is daunting in our world right now, here is my advice: step out into the sunshine. We in San Francisco live in an amazingly beautiful part of the world. If you are lucky enough to be in the Bay Area, go to the beach (as my pups and I will be doing a bit later this afternoon, when the tide is lower); go to one of our beautiful city parks -- Golden Gate Park, Bernal Hill, Mt. Sutro Woods, or Glen Canyon Park itself, to name a few that I love in San Francisco; go enjoy a walk through one of our charming neighborhoods. If you live somewhere else -- well, find a beautiful spot to enjoy wherever you are. There are some, I promise. Breathe the air. Take in the view. Say hello to some friendly strangers. It's been a rough week, yes. But there's a beautiful world out there, and there are many more days ahead to deal with the economy and inequality and all the other challenges we face. Today, let's all take a moment to stop and enjoy our surroundings.

Honoring Our Fathers

2009-03-05T10:17:00.000-08:00

This morning, I read a beautiful piece written by my friend and colleague Richard Hearn, the Founder and President of Starcare Associates in Newport Beach, California. Richard is a financial professional, with over 30 years in the finance industry. He is facing this amazing moment we're in -- which many are calling an unprecedented financial crisis -- with the poise and articulateness for which I have come to count on him. In this morning's piece (which is too new to even be up on the Starcare website yet), he talks about the lessons he learned from his father. Richard's father was a car salesman, who apparently was there to help his customers with problems with their cars, night or day, even years after he had sold the car, any time they called him. Richard describes the ultimate lesson he learned from his father as: "Just be there, without exception, when [your clients] need you." The story Richard tells about his father strikes a chord with me for two reasons: (1) because I have embraced a similar ethic in my own law practice to the one his father embraced in his car dealership and that Richard himself is embracing in his financial services firm; and (2) because, when I find myself in uncharted waters, I also have often been known to look to lessons I learned from my own father for guidance and support. Ironically, and completely coincidentally, I also got a short note from someone -- sent to info@waldlaw.net -- saying: "Was George your father? I was one of his many students and admirers." Yes, George Wald was my father. He was a Jewish boy from Brooklyn -- the son of a tailor -- who worked his way through college, went on to study science at Columbia in the years of Albert Einstein, became a professor at Harvard University, and eventually won the Nobel Prize in Science & Medicine for his work on vision. He made his career studying vision; but more than that he was a visionary who chose to use the bully pulpit he got from his status as a Harvard Professor and Nobel Laureate to work full time for peace and human rights around the globe for the last 30 years of his life. I consider myself lucky to have had a father whose wisdom and humor can provide me with strength and guidance in times such as these. Apparently, my friend Richard is lucky in the same way. To have both his piece about his father and the surprise note about my father arrive in my email inbox this morning, by complete happenstance, suggests a message from the stratosphere: I guess it's time to think about our fathers....

Taking On the Federal Defense of Marriage Act

2009-03-04T10:20:00.000-08:00

It's almost spring and change is in the air.... Yesterday, Gay & Lesbian Advocates & Defenders (GLAD) in Boston filed a lawsuit in federal district court, challenging the federal Defense of Marriage Act. The suit is being brought on behalf of eight same-sex couples and three widowers, all of whom were married in Massachusetts after same-sex marriage became legal there in 2004. All have applied for federal benefits, but been denied them under the federal Defense of Marriage Act (DOMA). The federal DOMA has two separate provisions: one that denies federal recognition to same-sex marriages; and another which provides that states don't have to recognize same-sex marriages entered into in other states. The lawsuit filed by GLAD only addresses the federal recognition issue; and it focuses specifically on marital benefits related to Social Security, federal income tax, federal employees and retirees, and the issuance of passports -- the issues that most effect same-sex couples, and which are most understandable to the general public. GLAD has considerable information about the case on their website, including a full description of the people involved and the actual damage done to them by federal non-recognition of their marriages. This appears to be the right lawsuit, filed at the right time, by the right organization (already responsible for the marriage victories in Massachusetts and Connecticut). May the force be with them!

As I Was Saying....

2009-03-03T15:59:00.000-08:00

On Friday, I blogged about the "octo-mom" and my concern that the problems with her situation were going to lead to bad law. Well, see today's Wall Street Journal. According to today's Journal article, entitled "In-Vitro Fertilization Limit Is Sought," legislators in both Georgia and Missouri have already submitted bills to their Legislatures to limit the number of embryos that can be implanted in any one in vitro cycle. The bill proposed in Georgia would also limit the number of embryos created in any cycle to the number to actually be implanted in that cycle, thereby preventing the freezing of embryos for later use. Lawmakers sponsoring these bills admit that they are largely being guided by the anti-abortion lobby, which believes that life begins at conception and therefore is deeply concerned with destruction of unused embryos. The American Society for Reproductive Medicine, which already has guidelines in place limiting the number of embryos to be implanted during any cycle based on a woman's age and her infertility diagnosis, opposes legislating these issues, believing that these decisions should be left to the woman involved and her physician. They have issued a statement, in response to the "octo-mom" case, setting out their position. These are very complex issues. Clearly, the "octo-mom" case is a train wreck. Clearly, a lot of questions are raised by a physician implanting 6 embryos in a very fertile woman, and if medical ethics guidelines and/or standards of practice were violated, they will need to be addressed by the California Medical Association or whatever agency addresses these types of issues for doctors (for lawyers, it would be the State Bar). Clearly, there are lessons here for us all. And, at some point, states may need to intervene to set outer limits if the medical profession is unable to hold their own accountable. But for the most part, I do not believe that our legislatures should be telling women how to address their personal reproductive concerns -- we've been down that road already, in the case of abortion, and have seen where it takes us.

The Octo-Mom's Donor -- Donor or Father?

2009-02-27T09:01:00.001-08:00

I have a general policy that once I've been asked the same question 3 times in one week, it's time to blog about it. I guess that means that I now have to blog about the "octo-mom." Let me start by saying that I have no more information about this case than what I've gleaned from news reports and from reading the headlines of the tabloids while waiting in line to pay for my groceries. I honestly never expected to be asked for my opinion on this situation. But then, a little over a week ago, my phone rang. It was ABC News in New York, calling to discuss the status of the man whose sperm was used to conceive the octuplets. And then, over the weekend, a colleague who doesn't do assisted reproduction work asked the same question. And then a dinner guest did. Time to blog.... Here is my analysis re: the genetic father of the octuplets: If he provided his sperm to a physician, and not to "octo-mom" herself, and if he did so with the intent to conceive children with someone other than his wife, he is legally a sperm donor and not a father. As such, he has no legal rights and no legal responsibilities for the children. This would change if he provided the sperm directly to "octo-mom," instead of to a physician. It would change if he married or attempted to marry "octo-mom" before the children were born. It might change if he and "octo-mom" had a written agreement by which they clearly stated their intent that he be a father to the children, despite a physician's involvement in the conception. Otherwise, it is my professional opinion that genetic dad is simply a sperm donor, shielded by the law from any financial responsibility for these kids. And here is my worst fear about this case, from a legal perspective: bad cases make for bad laws. I fear that the public's horror about this situation will cause our courts and/or our legislature to decide that it is bad public policy to have a clear category of "sperm donors" who have no legal responsibility for their genetic offspring. I fear that this one very public abuse of the system established to address the legal rights and responsibilities of people using assisted reproduction will lead to a response that hurts everyone who is responsibly involved in assisted procreation. I hope that this fear turns out to be unfounded.

"Fun and Easy" Stepparent Adoptions

2009-02-22T11:08:00.001-08:00

Diane Michelsen and I recently wrote an article for the Academy of California Adoption Lawyers (ACAL) -- of which we both are members -- to go in the materials for ACAL's Advanced Adoption Law Seminar that took place a few weeks ago in Southern California. In order to allow attorneys to get Continuing Legal Education credits for reading the article, we had to design a quiz on it -- so we came up with about 20 true/false questions addressing the substance of the article. One of them has become a running joke between us. The question was "Stepparent adoptions are fun and easy: true or false?" Many people who don't do stepparent adoptions would tend to answer "true" to that statement. I, myself, would have guessed it was true (at least as to the "easy" part, if not the "fun" part) until quite recently. After all, many -- if not most -- couples do their own stepparent adoptions without the assistance of an attorney. And in the adoption world, stepparent adoptions tend to be treated as "adoption lite." Well, I have come to learn -- the hard way -- that stepparent adoptions (at least the ones I see in my law practice) tend to be the hardest adoptions in my case load. Typically, before every stepparent adoption there has been a child born to a man and woman who have been unable to make it together as a family. One of them has raised the child while the other has generally become distant -- either by choice or by necessity -- and has ended up without a meaningful relationship with the child. The one raising the child has subsequently married, and his/her spouse has ended up filling the role of parent in the child's life. Now they are seeking to formalize that role. In order to complete these stepparent adoptions, the original absent parent must be contacted and his/her consent sought, or an abandonment proceeding brought against him/her. This often involves contacting someone out of the blue and reminding them of a chapter of their lives that is generally painful and often emotionally unresolved. The call to say "remember that child you had 10 years ago, that you haven't seen in 8 years? Well, now someone else wants to adopt that child and become that child's parent instead of you, and we need you to consent so we can have your legal rights terminated" is never a "fun" or "easy" call to make, as it catches people off-guard and tends to open old wounds, reminding them of shattered hopes and of dreams they once had. I have yet to have a stepparent adoption not work out, one way or the other. In the ones I have done -- and there have been quite a few -- the missing parent has never yet chosen to fight the adoption. Most have consented, understanding that it is what is best for the child. Some have simply chosen not to fight, by failing to appear in court for mandatory hearings. But all that I have spoken with -- and I make it a point to personally speak with them, to show respect and to try to cushion the blow -- have expressed how sad they are that it has come to this. Not "fun." Not "easy." One of the things I love about my law practice is that I always have more to learn, new challenges to rise to, new legal adventures to embark on. Learning the complexity of stepparent adoptions has been one of those adventures. SO -- stepparent adoptions are fun and easy? The correct quiz answer on that one is definitely: false.

And Now a New Day Comes to ... Utah?!

2009-02-13T11:57:00.001-08:00

Late breaking news from Utah: Republican Governor Jon M. Huntsman, Jr. -- a Mormon father of seven who served in the Reagan White House -- is getting a lot of attention this week for having issued a statement supporting lesbian and gay civil unions in his state. The Governor's position is remarkable in light of Utah's history as a state which has declined to offer its lesbian and gay residents even the most basic protections in employment and housing, and where essentially no options are available for lesbian or gay couples raising children together to protect their families. Needless to say, Governor Hunstman's announcement on Monday is being greeted with howls of dismay as well as applause. According to the Salt Lake Tribune, both sides of the argument are mobilizing to let the Governor know how they feel in a variety of ways, including both protests and shows of support at his home and at the Capitol. To gauge the flood of reaction, the Governor's office is tallying phone calls for and against the Governor's newly-articulated position in support of protection and recognition for committed same-sex couples. Folks from Utah certainly let us know what they thought about California's Prop 8, by showing up in droves to lobby our voters; now it is our turn to support progressive Utahans by letting Governor Huntsman know that we support him in providing protection to lesbian and gay families in his state. If you want to call in your vote, the number is 801-538-1000. It just takes a minute, and could help make history.

A New Day Has Come To ... The Wald Law Group

2009-02-03T09:45:00.000-08:00

Yup, it's true. As a new day has come to America, so has a new day come to the Wald Law Group. As of January 2, 2009, Paul Thorndal is now a full partner. And, as of February 2, 2009, Amanda J. List has joined the Wald Law Group! Based in the East Bay, Amanda comes to us from the law office of Robert Goodman, where she had been practising family law for the past three years. She is an experienced divorce and custody attorney, and also has limited experience doing family formation work as a clerk in the Adoption and Assisted Reproduction Law Offices of Diane Michelsen. Her addition to the Wald Law Group will greatly assist us in providing a full range of family law services to all varieties of Bay Area families in need of representation, as has long been our mission. SO -- if you're in downtown San Francisco, stop by and say "congratulations" to Paul and "hello" to Amanda!

Reflections on the Inauguration

2009-01-22T10:54:00.000-08:00

I'm back in San Francisco, equal parts exhausted and exhilarated. It's time to turn my attention back to my work and my family. But before I do, I wanted to take a moment to reflect. I heard yesterday that with approximately 2 million people at the Mall and on the parade route on Tuesday, there was not one arrest. That sort of says it all. I had anticipated the sense of history being made. I had not anticipated the pervasive joy, the sense of community and abiding hope and goodwill. Even in the airport early Wednesday morning, as nerves became frayed in the process of trying to get through security and make it onto airplanes with far too many fellow passengers, the sense of camaraderie persisted. Every gate was filled with people in Obama t-shirts, wearing Obama hats and pins. Folks were being conscientious about greeting each other, sharing smiles and stories of our inaugural adventures before we all returned to our separate lives. This morning, I went to The White House website for the first time in my life. It is truly something to behold, and if you had any doubt that change has, in fact, come to America just check out the civil rights page: http://www.whitehouse.gov/agenda/civil_rights/ As I said at the beginning of this post, I am exhausted from the trip, and clearly there is much work to be done. But the sense of possibility in the air is palpable, and it truly feels like a new day has dawned.

Yes, We Did!

2009-01-21T17:07:00.000-08:00

Barack Hussein Obama is now President of the United States. What more can I say? Okay, I’ll say a little more.... Monday evening, my son and I joined Kate Clinton at Dupont Circle for a public purification ritual designed at driving any bad spirits left behind by the Bush administration out of the White House, out of Washington DC, and out of our own minds and hearts. Songs were sung, sage was burned, jokes were made (it was, after all, Kate Clinton). Kate noted a good omen in what many had only seen as a near miss – the US Air flight which came down in the Hudson River a few days earlier. As she noted, a plane had an emergency in New York, and it didn’t hit any buildings. There was a highly competent pilot in charge. A strong team of flight attendants was ready to do what needed to be done. A community of boats came right to the rescue. Could this be a “sign” of what’s coming?? What strong leadership and a sense of hope and community can accomplish?? It was a moving analogy, if slightly far-fetched.... Our day Tuesday started at 6:30 a.m. with a knock on the door and our host’s voice telling us that we’d better get going if we wanted to make it to the Mall for the inauguration. We threw on every warm piece of clothing in our suitcases, and were out the door by 7:00. We were staying near Howard University, and it was about a ½ hour brisk walk straight down 7th Street to Pennsylvania Avenue. At every cross street, we were joined by more folks on foot, all headed in the same direction. The newspaper had said that 7th Street would be one of the few places that pedestrians could cross Pennsylvania Avenue – which was mostly blocked off because of the parade – but when we got to within a few blocks of Pennsylvania it became clear that there was no way we were getting across – the police had had to block it, because so many folks were already arriving to stake out spots for the parade. To make a long story short, what followed was a 3 hour trek to find access to the Mall, wandering all the way down to 1st Street, then all the way back up to 21st Street. Despite many discouraging comments from overwhelmed security officers along the lines of “you can’t get there from here,” it was a “yes we can” day, and ultimately yes we did. Once we got to the Mall, it was way easier to navigate. We watched the inauguration on a Jumbo-tron right next to the Washington Monument, along with hundreds of thousands of others who had also trekked in by foot from far-flung places (all bridges were closed between DC and Virginia, so anyone coming from Virginia had no choice but to come on foot). It was cold. It was crowded. It was moving and joyful and tearful and wonderful. And, as with the concert two days earlier, the sense of calm and mutual well-being was truly stunning in a crowd so big. Honestly, folks continued to share hope and laughter and tidbits of information all morning, even as we were being turned back from checkpoint after checkpoint. The experience of cheerful camaraderie with the masses of humanity who had made the same pilgrimage we had made – despite broad differences in age, race, region and experience – is one of the primary things that made the whole weekend so memorable. As far as the inauguration itself goes -- well, I assume you all have seen or heard as much of it as you want to by now. The only thing I will say about Rick Warren’s invocation is this: If he actually reads and thinks about the words he said – if he takes to heart his own message of inclusion – we’ll all be fine. On the other hand, Rev. Lowery’s benediction was wonderful, and ended the whole event with laughter – a truly fitting end to the most upbeat and inspirational ginormous event I may ever have the privilege of attending. His final words: “Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get in back, when brown can stick around ... when yellow will be mellow ... when the red man can get ahead, man; and when white will embrace what is right. That all those who do justice and love mercy say Amen.” And with that, it was over, with a huge waive of laughter and a million + Amen’s. It was a long and logistically complex weekend. I am exhausted. But my spirit is replenished and I now know – having seen it with my own eyes – that there are millions of us out there, of all races, religions, ages and stages, who are ready to work for the good of our country and our world, and who truly believe that the time for change has come. There is no question that we have much hard work to do, but this weekend renewed my confidence that we can, in fact, do it. Si, se puede. Yes, we can.

Kicking Off the Inauguration

2009-01-19T05:57:00.000-08:00

Wow - what a day! We started at the Holocaust Museum this morning, which I had visited once before but never ceases to pack a punch. Getting in involved an hour of waiting outside in the cold - but it also gave us a feel for who's in DC this weekend. The family in front of us had flown in from Vancouver, WA because their eldest son's marching band is in the inaugural parade; behind us was a gospel group from Nashville; and a deaf tour group joined the mix after a while, whose exact role in the inaugural celebration I never figured out. Old and young, from every state, of every race and color, gay and straight, folks are flooding into DC to be part of this historic event. That, in and of itself, is exciting and historic! From the Holocaust Museum we went straight to the Mall, to participate in the inaugural kick-off concert. Unfortunately, we missed the Right Reverend Robinson's invocation, which came before the event truly started, but what a concert!!! High points included Mary Blige belting out Lean On Me, Garth Brooks killing American Pie, Stevie Wonder singing with Usher and Shakira, and U2. Oh, and Pete Seeger singing the original, uncensored version of This Land Is Your Land with Bruce Springsteen as back-up. What an extraordinary array of talent!! During This Land is Your Land, we were standing behind a young African American family (we kept moving the entire time, due to my son's determination to get close enough to actually see the performers on the stage, if only in a far-away-and-tiny kind of way). My friend Sue and my son and I were all singing along, and I looked up to see the little girl from this African-American family, on her dad's shoulders, singing along with us. The joy to all be there together, all singing together, was palpable, and will be with me for a long time. But here is what blew me away the most, looking back on the day: I was raised by peace activists, who took me to many of the big anti-Vietnam-War demonstrations. I was at the "Counter Inauguration" for Nixon in January 1969, which included a violent confrontation between protesters and police, and was back on the Mall in November of that same year for the National Mobilization to End the War. I attended huge marches in Boston and New York, including the 1982 anti-nuclear march in New York City where crowd estimates were close to 1 million. Today was not even close to the first time that I have shared a public space with hundreds of thousands of my closest friends. But today was completely different from any of those other experiences because today, the estimated 400,000 people crowding the Mall from the Lincoln Memorial to the Washington Monument were filled not with anger and frustration, but with hope and joy and an enormous sense of satisfaction. "Yes We Can" has become "Yes We Did," and folks are here to celebrate - and celebrate we did. It was by far the calmest, most peaceful assembly of hundreds of thousands of people I have ever seen or imagined. A pure joy, without a moment of concern for my safety or that of my son, full of shared smiles and appreciations, and an overwhelming sense of community. As I said, what a day!

Checking in From DC

2009-01-17T15:17:00.000-08:00

My son and I made it to DC today. We took the red-eye to New York, then flew on to Baltimore this morning. It is a balmy 9 degrees here, which sent us scurrying to REI to stock up on more warm clothes. But already at the Baltimore-Washington International airport this morning you could feel the excitement in the air – especially when folks around us waiting for baggage (and I do mean waiting – it took almost as long for our baggage to come out of the chute as it had taken us to fly in from JFK airport) put 2 and 2 together at the Delta baggage claim, and figured out that the older African American gentleman who had just asked me if I knew on which carousel the bags from Atlanta could be found was none other than Congressman John Lewis, a true hero of the civil rights movement. The sense of camaraderie at the airport this morning reminded me of only one prior travel experience – going to the Gay Games in Vancouver (the last time I went, before my partner and I started having kids). On that trip, there was a strong sense of identification and excitement as arriving athletes and fans began to congregate at the airport. This was like that, but even more so, as folks arrived from all parts of the country to participate in this historic weekend. And the pride on the faces of many of the African Americans around me – including Congressman Lewis – was, in and of itself, worth the price of the ticket to fly here. After the bruising time we have experienced in the Bay Area since the New Years morning shooting of Oscar Grant, it is wonderful to be surrounded by a sea of faces of all races and colors filled with the joy and hope that this weekend represents.... Tomorrow, we are heading downtown to the Holocaust Museum, and then to the kick-off event for the inauguration, featuring an invocation by the openly gay Right Rev. V. Gene Robinson and concerts by a spectacular line-up of performers including Beyonce, Bruce Springsteen, and Bono (apparently you only get to perform at this event if your name begins with "B"). It is absolutely amazing to be here -- and I will do my best to continue reporting daily, to share it with those of you who couldn't make the trip.

Musings About Race

2009-01-12T13:50:00.000-08:00

One week from tomorrow, Barack Obama will be inaugurated as the next President of the United States. As previously noted, my younger son and I will be flying to DC to share in this historic moment. For someone like myself, who grew up in Boston during the busing crisis, with an uncle who worked as an attorney for the Black Panther Party, issues of race and racism have always been in my consciousness. I have been acutely aware of the racial dynamics of the work I do -- first as a public defender in Oakland, where race played a constant and unmistakable role, and more recently in my international adoption work and my assisted reproduction work -- and I have often thought about the ways that racism permeates our society. I honestly wondered whether the United States of America was capable of electing an African American president, and remained skeptical even as my optimism grew this fall. I still sometimes think I will wake up and find that this has been a dream.... It feels like the world -- or at least our corner of the world -- has changed with the election of Barack Obama. We will have a Black man as our leader. His face is the face that will represent our country to the world. The forces that said that race defines us in a limiting way -- that Blacks are inherently inferior -- that we have to keep this country white -- have been pushed back in a profound and hopefully final way. My sons will grow up in a different world than the one I grew up in. Or so I thought. And then, early New Year's morning, 22-year-old Oscar Grant was shot in the back by a Bay Area Rapid Transit (BART) police officer as he lay face down on an Oakland BART platform. Grant was Black. The officer who shot him was white. Same old story.... There is clearly much more to this story than meets the eye. From what we are hearing, the officer who gunned Grant down is not a lunatic, not a particularly violent man. I have to assume this was a terrible mistake. (Of course, he can't tell us, since he is likely to be arrested and charged with murder any day now, and any statement he makes will be used against him in court -- I am a lawyer, so I do know how this works.) As one knowledgeable commentator said yesterday, the officer who shot Grant almost certainly didn't pull the trigger because Grant was Black. But the fact that officers responded the way they did -- pulling the young men off the train and having them lie prone on the BART platform -- feeling a need to have weapons drawn -- hyping up rather than calming down a potentially volatile situation -- has everything to do with race. The most telling thing about this, for me, was the conversation I had about it with my 12-year-old -- the one I am taking with me to DC for the inauguration. When I told him that a BART officer had shot and killed a 22-year old on a BART platform on New Year's Eve, in plain view of a train full of passengers, my son's first comment was: "Let me guess -- the guy who got shot was Black, right?!" This is my 12-year old talking. He did not grow up in Boston during the busing riots. He was not around when the Black Panthers were being jailed and killed, with a beloved family member fighting for justice on their behalf. And yet.... My hope for all of us, as I look to the inauguration of Barack Obama next week, is that the babies I see around me now grow up in a world where they can hear about a young man being shot by a police officer and not feel safe in the assumption that the young man was Black. Then I'll know that our election of Obama as our President really did mean what I am hoping it will mean.

January, Here We Come!

2008-12-30T12:48:00.000-08:00

I have to admit that 2008 is a year I won't miss. Although it has been a very full and productive year at the Wald Law Group, and an equally full and exciting year for our family -- with one son starting high school and the other now fully entrenched in his middle school experience, and many good family times to remember and now new puppies to fill our days with laughter -- it has also been a year in which we have experienced more than the usual share of family illness and loss, compounded by bruising political chaos and a financial meltdown unlike any we've seen in our lifetimes. At the end of the day, when I look back, I am truly glad it's almost over. So, to celebrate a new year and a new moment in history, our younger son and I are flying east at the end of the month to experience the inauguration. We will honor our family history with a trip to the Holocaust Museum; honor our nation's history on Martin Luther King Jr.'s birthday; and then herald in our future on inauguration day. We are very excited. Barack Obama ran his campaign around a theme of hope, and "change we can believe in." I am ready to be hopeful, and am cognizant of many changes that now feel possible as we head into the New Year. I wish all of you reading this a happy and safe New Year, and a 2009 that is healthy, joyful and productive.

Happy Post-Thanksgiving!

2008-12-03T09:51:00.000-08:00

I'm writing from my post-Thanksgiving, pre-Hanukkah, pre-Christmas, puppy-induced haze. Whose idea was it to start Christmas the day after Thanksgiving? They definitely didn't talk to me about it.... At this time of year, it's hard not to become reflective about the past 12 months. And 2008 has been an amazing year in many ways. The Wald Law Group has had the great good fortune to continue to thrive through the financial chaos of the past months, thanks in part to the loyalty of many wonderful clients and colleagues -- and to the determination of these same clients and colleagues to continue to live their lives at full volume, even in the face of great challenges and uncertainty. I count the people with whom I share my daily life among my greatest blessings, including my family, Wald Law co-workers, suite mates, clients, colleagues and friends. Surrounded by so much support and camaraderie, the world can never stay gloomy for long. And then there are the puppies. They now have names: Turk and Gracie. They also have worms, for which they are currently on medication. The medication is kicking their cute little butts and they, in turn, are kicking our not-quite-as-cute and not-quite-as-little butts. As a result, I was up at 4:00 a.m. ("time to pee mom!!") and spent the next 2.5 hours trying to go back to sleep on our living room couch with one puppy tucked under my neck and the other draped over my legs. In the dark, I couldn't even tell which was which, but I can now testify from personal experience that sleeping puppies do a lot of twitching.... And there is the amazing experience of watching the new presidential administration take form. It appears that we have survived what I truly believe will go down in history as one of the most destructive presidencies of all time. I have seen my share of presidents with whom I bitterly disagreed, but George W. Bush is the first who has seemed truly amoral. It will probably take years to fully assess the damage, not to mention repairing it. Our economy ... the environment ... our standing with the other countries of the world ... all are in a state of disrepair unlike anything I have ever experienced. Frankly, it is hard to envy Barack Obama his job. And yet, he is going about getting ready to assume control with such good humor, such assurance, such grace. It is an exciting moment, a historic moment, and a moment when it is impossible not to feel a sense of optimism, despite the challenges ahead. 2009 is sure to be quite a ride. We will have a new President. We will have a challenged economy, no matter what happens. But with so much work to be done on so many fronts, it is a year when so much can be accomplished. How can it be anything but exciting? Wishing you all a wonderful holiday season!

It's Raining Puppies!

2008-11-20T09:59:00.000-08:00

You know how they say "when the going gets tough, the tough go shopping"? Well, my family has just modified that to: "When the going gets tough, the tough get puppies!"

Yup, it's true. In the midst of financial and political/legal chaos, we chose to embrace life by adding two new members to our family on Saturday. They are a baby brother and sister, not quite 12 weeks old. They are the last two left from a litter of 11, and we got them from a gal in Willits who rescued them from a "free to anyone who'll take them off our hands" situation. Their mom was a Chesapeake Bay Retriever, and their dad was ... well, officially he was a Golden Retriever, but we're not buying it -- they look like lab pups to us, and to our vet. So we're going with Ches/Lab mixes. And if you have any names to suggest....

We are great believers in adopting pets instead of getting them from breeders. These two were adopted through CARRE -- the California-Arkansas Retriever Rescue Effort. I'm not kidding. It's kind of an underground railroad that brings abandoned dogs and puppies from Arkansas -- and other Southern states -- to the Bay Area to find good homes for them. They apparently helped rescue dogs from New Orleans after Katrina, too. If we hadn't picked up these guys on Saturday, we were invited to come down to SFO on Sunday to meet a litter of 9 pups arriving at the Delta freight area. In short, it's raining puppies.

SO -- if you need to bring some abundant life into your home as well, I highly recommend checking with CARRE -- and tell Marge I sent you!

Oh, and by the way, the California Supreme Court granted review of the constitutionality of Prop 8 yesterday.... :)

Prop 8 in the California Supreme Court -- Update

2008-11-14T11:50:00.000-08:00

Since I keep being asked what's happening in the Supreme Court, I thought I should post an update. First, if you are wondering what the case is about, refer back to my blog posting of November 7, where I summarize the basic arguments. I will not repeat those here. The first issue facing our Supreme Court is whether or not to even accept the challenge to Prop 8 as a case they will review. The Supreme Court gets petitions for review on a myriad of cases and issues, and they only actually agree to review a small number of those. They don't have to review any case they don't feel presents a sufficiently important issue, brought to them in an appropriate way. (This was the basis for their refusal to hear the challenge to Prop 8 brought before the election -- they did not consider the issue "ripe" for their review, since no one's marriage was even arguably invalidated and no constitutional right was implicated until Prop 8 actually passed.) In other words, there is no guarantee the California Supreme Court will actually review the validity of Prop 8 at this point -- that is the first hurdle the No on 8 folks have to get over. On November 10, the Anti-Defamation League, the Asian Law Caucus, Bet Tzedek Legal Services, the Japanese American Citizens League, and Public Counsel submitted what is called an amicus curiae letter to our Supreme Court. An amicus curiae letter is a letter to the court to let them know why the folks writing the letter think they should (or should not) accept a particular case for review. In this particular amicus letter, the groups describe themselves as "organizations devoted to obtaining and preserving justice, civil rights and equal protection of the laws both for members of groups that have suffered discrimination for long periods of California's history and for all Californians." They describe Prop 8 as "an extreme measure" that, they argue, "subverts" the fundamental nature of equal protection as "an abiding and permanent principle upon which the People have based their Constitution and a central tenet of democratic governance." They argue that "Proposition 8 is an extreme measure that subverts that fundamental principle [of equal protection] and eviscerates this Court's constitutional authority to interpret and enforce the requirement of equal protection. Amici, many of whose members have been subject to discriminatory laws and practices, write to urge the Court not to permit a bare majority of voters in a single election to work such a drastic alteration of our Constitutional scheme. Rather, the Court should hold that consistent with the restraints the People have imposed on themselves through the Constitution, such a dramatic step is a revision and not an amendment." Strong words, those. The fundamental issue here is what it means to be a Constitutional democracy. The use of the popular vote to make decisions is at the core of what it means to be a democracy. But what does it mean to be a Constitutional democracy, and what limitations does a Constitutional democracy place on majority rule? One of the best comments I have seen on this subject appeared in an on-line response to a column from today's New York Times. The column, entitled "What it Felt Like to be Equal," was written by Judith Warner. The comment came from a woman in South Africa, who wrote: "I live in South Africa, where the highest court ruled a couple of years ago that it is unconstitutional to deny gay and lesbian couples the right to marry. This ruling was not popular with most South Africans, but people here are slowly getting used to the idea. As a nation, we are learning the hard way that democracy does not equal majority rule. Rather, in our modern, constitutional democracy, the majority can never vote to take away the basic rights of a minority. I am surprised that this is allowed to happen in the USA, a country with a constitution that grants all its citizens equal protection under the law." Yup, that's the issue. What does it mean to have a Constitutional democracy, not just majority rule? And is Proposition 8 antithetical to the concept of a Constitutional democracy? Those are the questions our Supreme Court will have to answer if it accepts review of Prop 8.

When Religious Marriage is the Only Option

2008-11-08T12:00:00.001-08:00

I was talking to my brother this morning, and realized one of the true ironies of the passage of Prop 8 in California: having amended our state Constitution to deny gay folks access to civil marriage, we will once again see only religious marriages being performed in the lesbian and gay community. For years, many religious institutions -- including churches, temples and parishes of a variety of faiths -- have gladly performed same-sex weddings. Without a doubt, more churches are opening their doors to openly gay congregants every day. The passage of Prop 8 will not prevent any of these religious institutions from performing gay marriages, any more than defeat of Prop 8 would have forced religious institutions to bless gay unions to which they are opposed. One of the primary arguments made by those in favor of Prop 8 was that the court's decision to legalize same-sex marriage was a slap in the face to the Judeo-Christian definition of marriage as the union of one man and one woman. Civil marriage -- sanctified only by a civil clerk and performed outside a religious institution -- need not have had profound religious implications. But now, gay couples desiring to wed will have no choice but to marry in religious institutions, since civil institutions have been precluded from sanctifying same-sex unions. Want to see a gay marriage? You can't see them at City Hall anymore, but check out your nearest Church!

Defeat Prop 8 -- The Lawsuit

2008-11-07T11:19:00.000-08:00

Here is a quick summary of the legal case against Prop 8: Our California Constitution provides two different processes for making change at the constitutional level: amendments and revisions. Amendments can be made by the Legislature or through the initiative process, by a simple majority vote. Revisions require passage by 2/3 of both houses of our state Legislature and then either a constitutional convention or approval of a majority of voters. So, the issue now is: Is Prop 8 an amendment or a revision? To understand the issue, you need a little background. In its May ruling on marriage equality, our Supreme Court reached two very important conclusions: (1) gay and lesbian citizens are a suspect class (i.e. a distinct minority group subject to historical discrimination), and we therefore are entitled to heightened constitutional protection; and (2) marriage is a fundamental right of citizenship embedded in the equal protection and due process clauses of our state Constitution. Having reached those two conclusions, Prop 8 now purports to strip a suspect class of people of one of our fundamental constitutional rights by popular vote. That is unprecedented. That is profoundly undemocratic. Preventing that type of behavior is what the courts, at their core, are there for. Our court has previously ruled that "the 'underlying principles' of the Constitution are meant to be of a 'permanent and abiding nature.' Accordingly, an 'amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.' ... In contrast, a revision substantially alters those underlying principles or makes 'far reaching changes in the nature of our basic governmental plan.'" (Quoting from the brief filed by NCLR, the ACLU and Lambda Legal asking the Supreme Court to first stay, and then invalidate, Prop 8.) Our Supreme Court has previously held that their "analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature." A change to many separate parts of the Constitution is likely to be found to be a revision, and not an amendment, on quantitative grounds. But a change to just one part of the Constitution can also be a revision, on qualitative grounds, if it "substantially alter[s] the substance and integrity of the state Constitution as a document of independent force and effect." Needless to say, there is merit to the arguments on both sides of this issue. The initiative process is itself embedded in the Constitution, and the required procedures have been followed in this case. So if Prop 8 is, in fact, an amendment, it stands. But the California Supreme Court, having already ruled that gay men and lesbians are a suspect class entitled to heightened protection, and having already ruled that the right to marry is a fundamental right, has got to take seriously the question of whether it is constitutionally viable to allow the majority to strip a protected minority of one of our fundamental rights. As stated by our attorneys: "To the best of [our] knowledge, by seeking to mandate government discrimination against a particular subset of citizens based on a suspect classification, Proposition 8 is unlike any other initiative that has been enacted or even considered by California voters since the initiative process was first adopted." This is a big deal. I hope the Court treats it as such. (To read the full brief, go to http://www.nclrights.org/site/DocServer/CampaignPetition.pdf?docID=4321)

What a Ride It's Been!

2008-11-06T08:44:00.000-08:00

I tried to blog yesterday, but the words wouldn't come. I was too ... elated ... exhausted ... disappointed ... confused .... Today, I am ready to share some of what I have figured out in the 36 hours since we elected Barrack Hussein Obama the next President of the United States and since California passed Prop 8, thereby eliminating the right of same-sex couples to marry, at least for this moment. First, a couple of practical updates: For those of you who married before polls closed on November 4, YOU ARE STILL MARRIED. Don't let anyone tell you differently. There was nothing in the language of Prop 8 that addressed the issue of retroactivity, since when Prop 8 was qualified for the ballot same-sex marriage had not yet been legalized in California. Our Attorney General has publicly stated he will protect your marriages, and even though the Yes on 8 folks are taking the position that passage of Prop 8 invalidated your marriages, they are not yet pursuing this position in court. So ACT MARRIED. Be as public and proud as you were on Tuesday. As Molly McKay said yesterday, on the steps of San Francisco's City Hall during the candlelight vigil, love loudly and with dignity. Be "love warriors." Wear your wedding rings with pride, and demand respect for your marriage as you would have if Prop 8 had been defeated. We will win this fight. Just not today. As far as Prop 8 itself goes, 3 lawsuits have already been filed. We are going straight to the Supreme Court, and while I haven't read the briefs my understanding of the argument is this: it changes the fundamental nature of our Constitution to allow the majority to vote to deny fundamental rights to a protected minority (which we are, by virtue of the Supreme Court's decision in the marriage case which explicitly named sexual orientation as a "suspect category" that merits special protection, along with race and religion). Such a fundamental change to our constitutional system of government cannot be made by a simple majority vote. We have brilliant lawyers working for us. 5 Million Californians voted for our families. Don't give up hope. Here's the part that kills me: On Tuesday at 8:05 p.m., I stood in my friends Kevin and David's living room in tears, watching as Barack Hussein Obama was declared the next President of the United States. The room was full, and there wasn't a dry eye in the house. We had no doubt that we were watching history. And here is who we were: a room full of devoted gay couples and our children; Black, Brown, Asian, Latino and Caucasian; Christian, Jewish and Buddhist. We were all in our late 40's and early 50's -- many of us old enough to remember when JFK was gunned down, when Martin Luther King was gunned down, when Bobby Kennedy was gunned down.... We hadn't felt the kind of hope we felt on Tuesday night in a long time -- maybe not ever -- and I wanted to revel in it. Instead, as news of Prop 8's projected victory trickled in, the mood so quickly soured to what can only be described as bittersweet. Wondrous but also disappointing. Complex, when simple joy had, for once, seemed possible. This is an amazing, historic moment in so many ways. Here are a few vignettes from my own experience of the last 36 hours. Please add your own.... I walked out of the house yesterday afternoon and almost ran into my neighbor Don, who was parking his car. He is 93 years old, retired military. Married forever. Almost deaf. We have never once spoken about marriage equality. He came right up to me, looking sad, and said "We lost." Just that. It took me a moment to realize he was talking about Prop 8. His use of the word "we" stays with me as a symbol of how much we have accomplished. My partner flew to Costa Rica late Tuesday night. She flew on Taca -- the Salvadoran airline. She sends me this note this morning: "In and around my attempts to sleep on the plane I was surrounded by lots of conversation about the rightness of Obama having been elected, and the rightness of Prop 8 having passed, all in Spanish, all Latinos, some US Citizens, travelling to countries throughout Latin America. The taxi driver this morning [in San Jose, Costa Rica] immediately asked if I had voted for Obama, and was thrilled that I had, and said 'He gives us all hope that anything is possible. After all, for someone with his background and history to become the President of the United States ... well it just gives us all hope that anyone can be President if they go for it ... anything is possible.'" That is the experience the world is having of our election. We should be very proud. And that is also evidence that in some communities, particularly deeply Catholic communities, and probably many immigrant communities, the concept of same-sex couples being allowed to marry remains completely foreign and disconnected from other "progressive" politics. I called my friend Wendy to get help with kid logistics for the weekend. She was furious. "What don't people understand?!" she demanded. She then pointed out that she is married to a man who is from Thailand, and her own marriage would have been illegal 50 years ago. It was the court that gave her the right to marry her husband, even though he is of a different race. She is completely offended by the passage of Prop 8, as if it had been about her. And she is not being quiet about it. My younger son, who has taken this fight very seriously, as I have noted before in this blog, is jubilant about Obama. He is stoic about Prop 8. He knows we will win. He is grateful to know that only one of the 9 Bay Area counties supported Prop 8. He is impressed that 5 Million Californians voted for equality for our family. As he says, "that's a lot of people!" He has learned important lessons about the political process in the past weeks, although I'm still not sure which ones.... As I wrote to my partner yesterday morning, in my own bleary-eyed post-election-night haze: "I still can’t believe that the President Elect of the United States is a brown man, the son of a Kenyan and a Kansan, raised in Hawaii by his grandparents, named Barack Hussein Obama. If that is possible, what isn’t??!!" Si se puede. Yes we can.

What Happens if Prop 8 Passes? What Happens if it Doesn’t?

2008-11-03T11:48:00.000-08:00

I keep getting emails asking me “what happens to my marriage if Prop 8 passes?” In the spirit of informing my readership, I thought I would respond publicly here. NOTE: Below are my legal responses to the question. But before I don my lawyer hat, I have to say that this fight has been far uglier, and far more bruising, than I ever would have anticipated. The leadership of the NO on 8 campaign has fought for us with incredible passion, determination, and integrity, and I am deeply grateful to them. There are conversations happening every day -- on street corners, in grocery stores and, yes, in schools -- that I couldn't have imagined even 5 short years ago. No matter what happens tomorrow, there is no going back. Now, on to the law: If Prop 8 Passes: If Prop 8 passes, it is unclear how quickly it will go into effect. It also is unclear what impact its passage will have on same-sex marriages entered into in the months since same-sex marriage became legal in California. Both of these questions are likely to be answered through litigation; whether the courts will stay implementation of Prop 8 pending the outcome of such litigation is also unclear. So much for solid answers.... One thing is certain: If Prop 8 passes in California, it will be more important than ever for same-sex couples – and especially same-sex couples with children – to do diligence to make sure that their families are legally protected. This means making sure that you have done appropriate estate planning; making sure that you have complete and up-to-date advance health care directives; and making sure that where there are children involved, each parent has a clear legal connection to the children that isn’t dependent on recognition of the parents’ legal connection to each other. In other words, do not rely on marriage or domestic partnership to make you a parent. If your legal relationship with your child is predicated on recognition of your legal relationship with your partner, you – and your child – are legally at risk. Beyond that, for couples who married in California before Prop 8, there could be substantial complexity in figuring out your legal relationship in a post-Prop-8 world. In what senses are you still married? In what senses aren’t you? If you have health insurance or other benefits through your spouse, what happens to those benefits? Is community property still in effect? We will not know the complete answers to these – and other, similar – questions for weeks, months, and maybe even years after this election. But I promise to keep blogging, and keep giving workshops, to get the best answers out to you as soon as they are available. And I strongly advise staying connected to our community organizations, such as Our Family Coalition and NCLR and Equality California, for accurate information and updates. If Prop 8 is Defeated: (1) Have a big glass of champagne. We all deserve it. (2) Many of the same cautions listed above still apply. Unfortunately, even if Prop 8 is defeated, we still live in a world where more states have Defense of Marriage Acts (DOMAs) than not. You still need to do your estate planning, make sure you have advance health care directives, and make sure your relationships with each other and with your children are fully protected. Despite marital presumptions applying in California, these presumptions do not travel with you. Please celebrate, but don’t be lulled into complacency. Full equality will require sweeping change at the federal level, and we still have a long way to go. Sound pessimistic? Not at all. We are making history. We just can’t allow our families to be put at risk while we enjoy it. Now, stop reading this blog and GO VOTE!!!

My First Same-Sex Wedding

2008-10-21T14:16:00.000-07:00

I was at my first same-sex wedding this weekend. The brides have been in a committed relationship for 27 years. Their son is a freshman in high school. Their families had flown in from all over the country. The family members were Jewish and Gentile, young and old, Democrat and Republican. What united them was their love for the couple. I have never been a big fan of weddings. They are long. They are schmaltzy. They often are boring. This one was none-of-the-above. The ceremony itself was short and to the point. The company was excellent. The food and music were great. And where else would I get the opportunity to do "The Bump" with someone who was at a cocktail party with John and Cindy McCain just two weeks ago?? She promised to let Rick Santorum know that she had spent the weekend attending a gay wedding, and had enjoyed it very much. She promised to ask him and his cohorts to lay off our families. On our way home from the wedding, my partner commented that the idea that the voters could invalidate this marriage in two weeks is just plain wrong. Yesterday, on the way home from school, my younger son noted that the No on 8 ads are about equality, while the Yes on 8 ads -- which he is subjected to pretty much any time he turns on the TV at this point -- make it seem like there is something bad about being gay. This offends him. I am not usually one to pray, but now seems like a good time for praying. I pray to wake up on November 5 to find that California has voted for fairness. I pray to wake up on November 5 to find that my friends' marriage is still, unquestionably, legal. I pray to wake up on November 5 to find that my sons' belief that their family deserves respect has been validated, and not undermined. As we Jews say, from my lips to God's ears....

Late Breaking News -- Same-Sex Marriage is Legal in Connecticut!

2008-10-10T11:32:00.000-07:00

This morning, the Connecticut Supreme Court voted that it is unconstitutional -- under Connecticut's state constitution -- to deny same-sex couples the right to marry. They voted that Connecticut's civil union law -- and the "separate but equal" standard it perpetuates -- is not sufficient to protect same-sex couples and our families. Some choice quotes from the opinion: "[T]he ban on same sex marriage is likely to have an especially deleterious effect on the children of same sex couples. A primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents' relationships are as valid and as valued as the marital relationships of their friends' parents." "[R]eligious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriages or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage." And the punch line: "[O]ur conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry." Apparently, for all their money and their lies, the Right cannot stop the tide of equality. To read the whole opinion, go to http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152.pdf

Me and Sarah Palin -- the Sequel

2008-10-09T14:15:00.000-07:00

Apparently, Sarah Palin was thinking about me while I was thinking about her! In Tuesday's mail, I got a letter dated September 26, 2008, from Sarah. (We're now on a first name basis.) It contains the following paragraph: "I personally want to say thank you for the steadfast support and unstinting generosity you have given to the Republican Party and all of our candidates. Thanks to your faith and your commitment, we have the momentum and, from the crowds I see at every stop, our momentum continues to grow daily...." WELL. My first thought was to wonder who the heck put me on *that* mailing list. But now I'm thinking that this is part of a devious plot to discredit their most committed opponents by suggesting that we are actually dedicated supporters. I am thinking that "Did you know that Deborah Wald supports McCain/Palin" is probably being whispered in hallways and written on bathroom walls even as I am writing this. Who knows where they'll stop!!!!!! Actually, the most amazing part of my letter from Sarah was the request for funds, with suggested donation amounts starting at $5,000. The text reads: "I've seen the depths the liberal elites and the Obama Democrats are willing to stoop in order to tear us down and win total control of Washington." And I thought *I* was being paranoid!!

Me and Sarah Palin

2008-10-05T22:42:00.000-07:00

This afternoon, as I was watching my younger son's Little League game, I found myself thinking about how much Sarah Palin and I have in common. She is a dedicated hockey mom; I try never to miss one of my sons' baseball or basketball games. UMMM..... She has brown hair and wears glasses; I have brown hair and wear glasses. UMMM..... We both lives in states with names ending in "a".... UMMM..... Okay, I guess that's it. Hope you all had a good weekend!

Do No Harm

2008-10-03T20:33:00.000-07:00

I had a shock this week, when I discovered that one of the folks who signed the official Rebuttal to Argument Against Prop 8 in the California Voter Guide is a pediatrician at UCSF Medical Center, with lesbian and gay families in her practice. I gave birth to our older son at UCSF almost 15 years ago, and already found it an aware and welcoming place. I don't think I am naive -- not at all -- but somehow, I really didn't expect to see a UCSF pediatrician taking such a very public stand against our equality. And it gets worse. A lesbian mom whose child was in her practice sent her a letter, to clarify whether she was really the doctor in the Voter Guide, and got back the following response: Hi L., Yes, I am the same [name of doctor omitted to protect the guilty]. I am hoping that my gay/lesbian families -- who I so appreciate and enjoy caring for -- will realize that there is a difference between allowing gays/lesbians to form families and adopt children without terming this a marriage. Because of the judges' ruling, there would be no religious exclusion allowed - churches may be forced to marry couples in disagreement with their church doctrine. I am also concerned that this ruling actually opens the door to other relationships (such as polygamy, incest) that may not be in the best interest of children. Proposition 8, as you know, does not eliminate any rights for gay and lesbian couples as civil unions will still be the law in California. I trust you have seen the love and care that I have demonstrated to you, as I have to all my families without regard for who constitutes the family. I have always attempted to keep my public policy concerns separated from the medical care I provide. I hope this answers your concerns. How is this woman's position misleading and wrong? Let me count the ways.... (1) No church has to marry couples that it doesn't want to. Prop 8 doesn't give anyone the right to have a church wedding -- it gives same-sex couples the right to a civil marriage. Last time I checked, we still had separation of church and state somewhere in our Constitution. (2) There is NOTHING in the Supreme Court decision that opens the door to polygamy or incest. Oh yeah, it won't pave the way to allowing us to marry our pets either. I think that covers that. (3) It boggles my mind that any caring professional would honestly think that a parent would knowingly entrust the health of her/his children to someone who actively promotes intolerance of our families. As I have already stated very clearly in prior blogs, the Supreme Court's decision was not fundamentally about marriage -- it was about dignity, respect and equality. "I love your family; I just don't think you're entitled to equality" somehow doesn't cut it -- not for me, and certainly not for my children. So this week's reality check is: don't assume that just because we live in San Francisco, the people we rub shoulders with are progressive when it comes to lesbian and gay rights. And in this most polarized and volatile moment, take care of yourselves and your families.

Happy Fall!

2008-09-24T16:39:00.000-07:00

I have always loved fall. Well, maybe not always. When I was a kid, it meant the end of summer vacation, and I'm sure I didn't love that.... But as an adult, I love fall, with that very tangible sense of changing seasons that is so often lacking as spring wanders into summer, or as fall wanders into winter. Somehow, the change from summer to fall feels like the most pronounced change of the seasons. And I guess I like that clarity, that sense of purpose. In any case, this fall is certainly shaping up to be an interesting one. Sarah Palin. Barack Obama. Prop 8. Boy, we have some big choices to make as a nation about which direction we're headed in. So, in the midst of all the turmoil, as our attentions are pulled in many directions, I wanted to stop for a moment to wish you all a happy fall. And, for my Jewish readers, a happy Rosh Hashanah as well. May your names be inscribed in the Book of Life for another year.

Moving to the Front of the Bus

2008-09-06T13:04:00.000-07:00

I have just spent two days at the 20th anniversary conference of the National Lesbian & Gay Law Association ("Lavender Law"), where I joined my esteemed colleagues in NCLR's National Family Law Advisory Council presenting several workshops on GLBT family law issues. Not surprisingly, our colleagues from around the nation were very interested in hearing what we California family law attorneys have to say about same-sex marriage, and I found myself talking about Prop 8 -- the marriage ban -- almost everywhere I went. In one sense, I find it somewhat challenging to talk about Prop 8, because I have spent so many years saying that "marriage isn't my issue." My partner of almost 27 years and I have not gotten married, and have no plans to. I have spent much of my career fighting to have non-traditional families treated with dignity -- which includes single-parent families and non-marital families and transgender families. I do not consider marriage the silver bullet that will solve our community's problems. That said, I have become a passionate advocate for the defeat of Prop 8. So how do I reconcile these two things?? To me, the fight to defeat Prop 8 is only about marriage in the sense that the Montgomery bus boycott was about transportation. African-Americans in Montgomery, Alabama, were allowed to ride on the city buses -- but they had to stay in the back. Their fight was not fundamentally about access to transportation -- it was about equality, justice, dignity, respect. Same-sex couples in California have already been allowed access to the package of rights and benefits associated with marriage through our state's domestic partner laws. The fight against Prop 8 is not a fight for hospital access or insurance benefits or the right to sue for wrongful death of a loved one -- it is about equality and justice -- the right of our families to be accorded the same dignity and respect in our primary relationships accorded different-sex couples through marriage. The Supreme Court understood that this was what they were ruling on when they stated that "the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples [marriage] and the designation available to same-sex couples [domestic partnership] impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples." So folks, at its core, this fight truly isn't about marriage, per se. It is about equality. It is about whether same-sex families get to join our heterosexual friends and family members in the front of the bus.

I'm Back!

2008-08-08T10:07:00.000-07:00

Sorry for the break in the action -- I took my kids to Cape Cod for a week to visit their grandmother, and then it took another week to dig out of all the mail, email and phone messages. Being in Massachusetts was a good reality check on what's going on in California right now. You know, same-sex couples have been getting married in Massachusetts for 4 years now and the sun still rises in the east and sets in the west; the tides still wax and wane; and different-sex couples of all ages and races continue to enjoy their own marriages the same way they did before we allegedly destroyed the institution of marriage by joining in. In fact, after the initial flurry, everything seems pretty much the same in Massachusetts as it always was. Oh how I wish the same for California! Other than that, we are winding down summer at the Wald house, with my older son getting ready to start high school in another 10 days. I still don't believe I'm old enough to have a son in high school.... I hope everyone reading this has had a terrific summer and has time to take at least one more short vacation before it's over!

Welcome to the Homosexual Lobby!

2008-07-17T12:57:00.000-07:00

I just heard that the Massachusetts Senate voted Tuesday to repeal the Massachusetts marriage evasion statute, so same-sex couples from all over the country will be able to legally wed in Massachusetts. The bill is expected to pass the Massachusetts House and be signed into law by the Governor by the end of this month. While googling this story, I came across one of those “must-read” articles which reminds us of who is on the other side of these issues. If you have the stomach for it and are amused by such things, read on: http://www.worldnetdaily.com/?pageId=69748. Apparently the bill to repeal the marriage evasion statute is passing because the "homosexual lobby" has completely taken over the Massachusetts legislature, and is "playing them like a violin." The article goes on to state that: "According to press reports, Sen. Diane Wilkerson (D-Mattapan), who led the charge to push for huge taxpayer-funding for homosexual programs in the schools, is the major force behind this also." All of this got me thinking that I should put up a banner in the foyer of the legal suite I share with Deb Kinney, reading “Welcome to the Homosexual Lobby – Please be Seated.” Deb's administrative assistant suggested that while we are at it, we could post the “Gay Agenda” on the wall: (1) Teach Homosexuality to Children (2) Go out to Brunch – or something like that. Anyway, we’re having so much fun over here today, I thought we should share....

Pre-Dups and Pre-Nups

2008-07-09T12:00:00.000-07:00

Back from a brief get-away to Costa Rica, and continuing in my efforts to answer as many of the same-sex marriage questions as possible.... Many folks who registered as domestic partners have paid attorneys thousands of dollars to enter into valid pre-registration agreements to control the legal and financial ramifications of their registrations (dubbed Pre-Dups by our esteemed legal community). For those couples who have now decided to also marry, the question has arisen whether they need to enter into new Pre-Nups and, if so, how extensive these need to be and what they will cost. Consensus in the legal community is that folks will invalidate their Pre-Dups if they marry without entering into Pre-Nups. The Pre-Nups are necessary to make clear that the couple still intends the agreements they entered into prior to registering to appy, even in their new status as a married couple; and to clarify that all legal agreements and commitments of the marriage are to be dated from the date of registration, and not the date of marriage. However, we believe that a fairly concise Pre-Nup will do the trick if there has not been a substantial change in the couple's finances since the Pre-Dup was entered into. (If there has been a substantial change in finances, a more complex agreement may be needed.) However, the requirements for Pre-Nups will have to be met -- that is, each member of the couple will need separate counsel, and there will have to be a 10-day waiting period between finalization of the agreement and signing. This is yet another example of same-sex couples having to pay for legal services they shouldn't need (as with the extra financial burden of same-sex couples having to adopt their own children, and same-sex married or registered partners having to pay extra tax preparation fees due to the federal/state dissonance in filing status). In recognition of this fact -- and of the critical battle we are currently engaged in to defeat the anti-marriage amendment -- a small group of attorneys have agreed to do post-Pre-Dup Pre-Nups for free for couples who agree to donate the amount they would have spent on legal fees to the campaign to defeat Proposition 8. The attorneys currently on the list are Frederick Hertz, Emily Doskow and Paul Thorndal and myself from The Wald Law Group, and I will update this blog as others join us. And by the way, mazel tov to all of you who are celebrating summer weddings!!

Is My Marriage Valid? Is it Recognized?

2008-06-19T08:05:00.000-07:00

Continuing with top questions of the week.... There are same-sex couples all over the country who have already been married for several years. Some married in Massachusetts. Some married in Canada. Some married in Spain. They are trying to figure out if their marriages are now valid in California. The answer is: if your marriage was valid when it was entered into, it is valid now -- and it has been valid this whole time. But now California will recognize it and assign legal rights and responsibilities accordingly. The important thing is to distinguish between valid and recognized. A valid marriage is a valid marriage is a valid marriage (to borrow a concept from Gertrude Stein) -- it just won't be recognized everywhere. An invalid marriage, on the other hand, did not magically become valid in California on June 16, 2008. Four examples: (1) Ann and Barbara traveled to Canada to marry. They followed all the proper procedures, and entered into a valid marriage in August, 2006. As of June 16, 2008, that valid marriage is now recognized in California. Their date of marriage remains the date they married in 2006, even if they go through a new marriage ceremony in California now. (2) Chad and Dennis were vacationing in Provincetown in 2005, and decided to get married. They lied to the Clerk to get their license, saying they were moving to Massachusetts. In fact, they returned to California and have stayed here ever since. Their Massachusetts marriage probably wasn't valid under Massachusetts law when it was entered into, since it violated the Massachusetts marriage evasion statute. If it wasn't valid when it was entered into, it still isn't valid. So if they get married now in California, their date of marriage probably will be the new California date. (3) Eve and Francesca got married at San Francisco City Hall in February, 2004, during what is now being called the Winter of Love. Their marriage was subsequently invalidated by the California Supreme Court, which found that it was entered into without legal authority. That marriage remains invalid (legally, that is), even though same-sex marriages are now legal in California. (Because, to borrow from Gertrude Stein again, an invalid marriage is an invalid marriage is an invalid marriage....) (4) Greg and Hans were living in Massachusetts, and married there in 2004. In 2005 they moved to California, where they were treated by law as single people. However, as a technical legal matter they remained married in California -- it's just that their Massachusetts marriage wasn't recognized here until June 16, 2008. Now that same-sex marriages are recognized in California, their marriage is as solid here as it was in Massachusetts and there is no need for them to marry again (and if they choose to do so, their date of marriage will remain 2004). There, that's my best effort at explaining the valid/recognized distinction. When in doubt, ask yourself what Gertrude Stein would say....

Marital Name Changes

2008-06-14T12:38:00.001-07:00

Here is 2nd biggest question I'm being asked about same-sex marriages in California (if you want to see the #1 question, see my last post): Will the government respect a change in surname brought about by a same-sex marriage? Quick background: when folks get married, there is a place on the marriage license to record a change of last name. Typically, this has been used for a wife to take her husband's last name, and no further legal name change procedure has been required. In California, folks registering as domestic partners with the state have been able to change their last names through the registration process since January 1, 2008, thanks to the Name Equality Act of 2007. The problem lies not with California, but with the federal government. Under provisions of the Patriot Act, one can only have one last name and it is the last name registered with the Social Security Administration. So, for example, the California DMV cannot issue a driver's license with a new (marital) last name unless Social Security has changed the name as well. And since the federal Defense of Marriage Act (DOMA) prevents federal recognition of a same-sex marriage, we have been unsure whether Social Security would respect name changes brought about through a California same-sex marriage. So I had my office manager call the Social Security Administration. After a long time on hold, listening to muzak and quietly swearing, she reached a human being at the Social Security Administration who listened to her question, then put her back on hold while she did lord-knows-what to try to find an answer. Lo and behold, when the poor gal at the SSA who had the bad luck to answer our call came back to the phone she informed us that starting June 17, the Social Security Administration will accept a marriage license as valid proof of a legal name change for same-sex couples who wed in California, the same way they do for different-sex couples. Having dealt for years with the intransigence of the federal government on all issues relating to recognition of same-sex couples and families, I admit to remaining just a wee bit skeptical. But that's what they told us. So I would ask my lesbian and gay readers: if you get your name changed through your marriage, go on down to the Social Security Administration with your marriage certificate and try to get them to honor the name change, and then let us know what happens!! You will be doing all of us a service....

This Week's Million Dollar Marriage Questions

2008-06-12T17:58:00.000-07:00

As June 16 approaches and excitement builds, those of us practicing same-sex family law in California are getting hit with a barrage of legal questions. I will strive, over the next few days, to answer as many of them as possible. So this week's absolute TOP QUESTION is: If my partner and I married in ... [fill in the blank with Massachusetts, Canada, Spain], should we marry again in California?? To me, this question actually has two distinct parts: (1) should we marry again (i.e. is it legally advisable or important to do so), and (2) can we marry again (i.e. is it legally permissible to do so). At first blush, it appears that the California Family Code would prevent a couple already validly married somewhere else from marrying again in California. A marriage, under California law, is defined as a union of two previously unmarried persons. (Presumably, this is in large part because we want folks to have clarity about their date of marriage. If, for example, a couple married in Canada in 2005, we don't want them to marry again in California in 2008 because this will raise questions about which is their "date of marriage" for legal purposes. So generally folks who have married once and now want to do it again will renew their vows, rather than actually undertaking a second marriage.) However, there appears to be a growing consensus that the legal requirement that you be unmarried in order to enter into a new marriage actually means that you can't already be married to anyone other than the person you are marrying. We are absolutely certain this is true for domestic partners who want to marry -- that is, domestic partners clearly are free to marry their current domestic partners without first terminating the partnership -- it is only if they want to marry someone other than their current partner that they first need a divorce. So, without being absolutely 100% certain, we at the Wald Law Group (in consultation with a lot of other smart attorneys) have decided to take the position that same-sex couples who married in other locations and now want to marry again are free to do so as long as they are marrying their current spouses. Which brings us to the second part of the question: should folks who already married elsewhere marry again in California? Here is my as-definitive-as-possible answer to that question: there is absolutely no need for anyone who entered into a valid marriage elsewhere to remarry in California. As of June 16 at 5:01 p.m., your valid marriage from Massachusetts or Canada or Spain will be equally valid and recognized in California. As it should be. So, to summarize, the answer to this week's million dollar marriage question is: If you previously entered into a valid marriage in another jurisdiction, there is no need for you to marry again in California. However, if you WANT to marry again in California, nothing should preclude you from doing so. And, by the way, if you have reason to question whether your previous marriage is legally valid (e.g. if you married in Massachusetts without residing there, in violation of their marriage evasion statute), you should consult legal counsel to help you figure out your options. THERE -- that is what passes for clarity in this amazing, historic and confusing moment!!

Lions and Tigers and ... Marriage Evasion Statutes??

2008-06-03T21:07:00.000-07:00

I hate to rain on anyone's parade, but.... I was reminded last weekend, at a meeting of the National Family Law Advisory Council of the National Center for Lesbian Rights (which I Chair), about marriage evasion statutes. Marriage evasion statutes are laws designed to prevent a resident of State A from going to State B to get married if the marriage would have been illegal in State A. They were primarily designed to prevent underage sweethearts from crossing state borders to enter into underage marriages that they couldn't legally enter into in their home states. But now, they are undoubtedly going to be applied to same-sex couples who come to California from other states to get married. So if you -- or anyone you know -- are considering coming to California to marry after June 17, it is time to find out whether your state has a marriage evasion statute and, if so, what it says. For example, Arizona Revised Statutes section 25-112 provides that: "Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage." Since Arizona Revised Statutes section 25-101 says that "marriage between persons of the same sex is void and prohibited," Arizona's marriage evasion statute presumably means that a same-sex couple from Arizona cannot come to California and get married and expect their marriage to be recognized when they go home. Pretty straightforward, right? Well, it gets far more exciting than that. Take Wisconsin. Wisconsin Statutes Annotated, section 765.30(1)(a) provides that: "Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state ... may be fined not more than $10,000 or imprisoned for not more than 9 months or both." Yes, you read that right. Since same-sex marriage is prohibited in Wisconsin, this means that a same-sex couple from Wisconsin who travel to California to get married, then return to Wisconsin, will be subject to a fine of up to $10,000 and up to 9 months in prison. For getting married. In California. Where the marriage is legal. You see what I mean? It's exciting, no?! So here I am, family law attorney in San Francisco, trying to figure out how to let all those happy lesbians in Madison know that they could go to prison if they come here to get married. How the heck am I supposed to do that??? Any ideas about how to get the word out around the country about marriage evasion statutes are most welcome. In the meantime, if you know any gay folks in Wisconsin, you might want to warn them....

Appreciating the Small Pleasures In Life

2008-05-22T16:56:00.000-07:00

In the midst of all this drama (e.g., the marriage decision, my son's pending graduation from middle school, earthquakes and insane gas prices), it is critical to sometimes slow down and appreciate small pleasures. My family has always enjoyed palindromes. For those unfamiliar with palindromes, they are words or sentences that read the same backwards and forwards. Simple examples: MOM, DAD, RADAR. More complicated examples: "Madam I'm Adam," "Ed is Loopy Poolside," "Ma's story rots, Sam," and "Sad, no Hondas." We LOVE "Wierd Al" Yankovich's palindromic rendition of Bob Dylan's "Subterranean Homesick Blues," available on YouTube, simply titled "Bob." So I cannot express how delighted I was when my charming and talented office manager/legal assistant Dannielle showed up in my office last week to point out something none of us had previously noticed: WALDLAW is a palindrome!! My whole family is tickled. Even my teenage son was impressed. So there you have it. In the midst of chaos, may each of you reading this blog find surprise and delight seeing something that has been in front of you all along in a whole new way. Happy Memorial Day Weekend!

Mixing Politics and Marriage

2008-05-16T10:26:00.000-07:00

This morning's San Francisco Chronicle led off with an article about how yesterday's California Supreme Court decision on marriage equality could affect the presidential election. Let me ask my married, heterosexual readers this: was your decision to marry your husband or wife fundamentally a political decision? Was it something that you felt belonged in presidential debates? Did you want to read about it in the newspaper, beyond a tasteful wedding announcement that you may have chosen to place there yourselves? I understand why marriage equality is, at this moment, political. I understand that folks on both "sides" of the issue feel passionate, and need to be heard. But at the same time, I cannot help but wish that same-sex couples could be afforded the same privacy, the same intimacy, about their decisions whether or not to marry that different-sex couples are. And I wish that the presidential election could be about the dangers of recession, the health care crisis, responses to global warming, a seemingly endless war, and not about whether or not the "wrong" people are being allowed to marry their life partners. At the end of the day, don't we have way more important things to talk about??

The Right to Marry in California

2008-05-15T12:18:00.001-07:00

For those of you who haven't already heard, this morning the California Supreme Court ruled that same-sex couples have a constitutional right to marry. Nuptials should start sometime this summer. At its core, this decision is all about family. The Court today rendered a clear ruling that California families -- and especially California families with children -- are entitled to full protection of the law regardless of the sexual orientation of the parents. The majority decision is 121 pages long, with one concurring opinion and two dissenting ones. That's a lot of reading, and I will admit that I haven't even had time yet to carefully digest the majority opinion, so a true, detailed analysis of the decision will have to wait for another day. But let me just share a few highlights. The Court found that the right to marry, as a matter of California constitutional law, includes "the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." Miraculously, for the lawyers in the house, the Court found that sexual orientation is a suspect classification, and that "the strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation." The Court concluded that "the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples [marriage] and the designation available to same-sex couples [domestic partnership] impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples." The Court, interestingly, adopted as its own the argument put forward by marriage equality proponents, that the two separate designations violate the privacy rights of lesbians and gay men by forcing us to "out" ourselves in various situations where our sexual orientation would otherwise be irrelevant. "[O]ne consequences of the coexistence of two parallel types of familial relationship is that -- in the numerous everyday social, employment, and governmental settings in which an individual is asked whether he or she 'is married or single' -- an individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question." In the end, and repeatedly, the Court found that to not allow same-sex couples the right to marry is to dishonor our families -- and to dishonor our children -- in a way that does not befit California in 2008. "While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children." As our Supreme Court made clear today, California is better than that.

Is This One Country? Contrasts In Domestic Partnership

2008-05-07T09:39:00.000-07:00

Two very different legal decisions on domestic partner benefits hit my computer this morning. In the first, the California Court of Appeal in San Diego (which has been on the cutting edge in its family law rulings for many years) ruled that "a person's reasonable, good faith belief that his or her domestic partnership was validly registered with the California Secretary of State entitles that person to the rights and responsibilities of a registered domestic partner, even if the registration never took place." The case involved a gay male couple who signed and had notarized a Declaration of Domestic Partnership. One of the partners believed in good faith that the other partner had filed the document with the Secretary of State, as required by law for the registration to become valid. He later filed for divorce, and his ex-partner moved to dismiss the divorce petition on the basis that their domestic partnership had never, in fact, been filed. Applying the "putative spouse doctrine" -- which protects "innocent parties who believe they were validly married" from being denied family law protections (such as community property divisions and spousal support) -- the Court of Appeal ruled that the partner who filed for divorce should have the opportunity to establish -- as a factual matter -- that he did, indeed, possess a reasonable and good faith belief that the domestic partnership had been registered. If so, under this ruling, he is entitled to the full benefits and responsibilities afforded registered domestic partners under California law. In stark contrast, the Michigan Supreme Court ruled yesterday in a 5-2 decision that the Michigan Defense of Marriage Act -- which amended the Michigan Constitution to provide that: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" precludes public employers in Michigan from providing health care and other benefits to the same-sex partners of employees. This means, for example, that the University of Michigan is precluded, as a matter of state constitutional law, from providing health benefits to the same-sex partners of university employees. Unbelievable! These two court decisions -- filed within 24 hours of each other -- graphically illustrate the divide we are seeing between states that are trying to protect gay families and states that remain openly hostile. I have to wonder: will this ever feel like one country again? Or maybe the more honest question is: was this ever really one country?

National Day of Silence

2008-04-25T07:20:00.000-07:00

"I can't speak on Friday," my 12-year-old son informed me on Wednesday night. When queried about WHY he couldn't speak on Friday, he told me it was in memory of Lawrence King, the 15-year-old boy who was murdered for being openly gay at school (see previous post). I asked him how people would know that, and he said he'd have a card he could show them. Who's idea was this? It was being organized by his middle school gay-straight alliance (GSA). On the way to work yesterday morning, I read the headlines in the Bay Area Reporter over a fellow-rider's shoulder. Indeed, today is a Day of Silence, a national event to recognize the silence surrounding gay youth -- this year, being named in honor of Lawrence King. Cards are being handed out around the country that read: "Silent for Lawrence King:Please understand my reasons for not speaking today. I am participating in the Day of Silence (DOS), a national youth movement bringing attention to the silence faced by lesbian, gay, bisexual and transgender people and their allies. My deliberate silence echoes that silence, which is caused by anti-LGBT name-calling, bullying and harassment. This year’s DOS is held in memory of Lawrence King, a 15 year-old student who was killed in school because of his sexual orientation and gender expression. I believe that ending the silence is the first step toward building awareness and making a commitment to address these injustices. Think about the voices you are not hearing today." It is one of the amazing things about raising children in San Francisco that I learn about things like the Day of Silence from my kids. Kudos to his middle school for teaching awareness about this issue, and for taking action. Sometimes our voices can be a strong weapon in the struggle for justice; sometimes, our silence is a stronger tool. If you come across a silent young person today, thank them for all of us.

When the Past Meets the Present

2008-04-18T14:16:00.000-07:00

I spent 5 years working in the Alameda County Public Defender's Office. For eight long months of that time, back in 1990 or so, I worked in the Oakland Juvenile Court. Working as a juvenile public defender meant days spent talking with young clients -- my youngest was 8 years old -- about how they had gotten into trouble and what they intended to do about it. It was much more social work than law -- and I got into the habit, encouraged by one of my co-workers, of asking every child I spoke with (because many of them truly were children, whether they knew it or not) what he or she wanted to be when s/he grew up, just to make sure that they didn't make it to adulthood without anyone even asking that question of them. Most of them had no answer to the question, beyond hoping they would live that long. Many of them knew far more people who were in prison than in college; many of them had seen a level of chaos and violence in their young lives far beyond anything I ever am likely to see. I found the work incredibly stressful, and was very glad to move back to adult court at the end of my short stint. However, the impression those months made on me has stayed with me for all the almost-20-years since. The case of Lawrence King has brought my months in juvenile court back to me. For those who don't recognize the name, Lawrence King is the 15-year-old boy who was murdered in Oxnard, California in February, allegedly for having asked his (male) 14-year-old killer to be his Valentine. Because the murder appears to have been prompted by intense homophobia -- because Lawrence King appears to have been murdered for daring to be "out" about his sexual orientation at the tender age of 15 -- the killing has become something of a gay rights issue. In our current political climate -- with Three Strikes setting the standard for sentencing in California -- the issue has been raised as to whether the child who murdered Lawrence King should be tried as a juvenile or as an adult. The prosecutors are looking to have the case moved to adult court, and undoubtedly will be going for a first degree murder conviction and a stiff sentence. But I remember those months that I worked in juvenile court, and the children I represented there, and look at my own 14-year-old, and wonder..... I certainly don't think that Lawrence King's killer should be absolved of responsibility for his offense. Fourteen is old enough to know the difference between right and wrong, and to be held accountable for one's actions. This young man's decision to end Lawrence King's life is unforgivable and awful, and must be addressed in a very serious manner. But can't the juvenile justice system do that, in an age-appropriate way, without withdrawing the hope of redemption at some point in adulthood? And so, I was very glad to see that a large coalition of gay rights organizations have banded together to issue a statement, recommending that Lawrence King's killer be treated as a juvenile and not an adult. They have issued a compelling statement, asking prosecutors to leave the case in juvenile court. I hope that the district attorney listens, and takes the opportunity to try to prevent the loss of a second young life in this whole mess....

Tune in to KQED Forum on Friday morning, 4/18!

2008-04-17T13:04:00.000-07:00

Hot off the presses -- KQED Forum will be focusing on same-sex divorce tomorrow morning, from 10-11:00 PST. Guests will be East Bay attorney/mediator Frederick Hertz; Alice Kessler, Government Affairs Director for Equality California; and myself. Fred and I just got back about 10 days ago from the American Bar Association dispute resolution conference in Seattle, where we joined therapist/mediator Stacey Shuster for a workshop on alternative dispute resolution for same-sex dissolutions. It was a great workshop, and tomorrow's radio broadcast should be equally fun and informative -- so TUNE IN and, more importantly, CALL IN if you have something to add or ask!

Reflections on the Marriage Arguments

2008-03-10T13:51:00.000-07:00

For those of you who may have missed it, last Tuesday (March 4) the California Supreme Court heard oral arguments on whether it is constitutional to deny same-sex couples the right to marry. I have long been something of a skeptic on this issue -- neither sure that marriage was an issue we could win, nor sure it was really worth fighting for. I have come around on both points. When I spoke to the Governor's Commission on the Status of Women last summer, I summarized it this way: I, as an adult -- and especially as an attorney -- can (and do) appreciate the recognition and protections provided to same-sex couples by our state's domestic partner laws. But when I try to explain to my children that it is illegal for their parents to marry, but that they shouldn't feel bad because we can register as domestic partners and get the same legal benefits, it doesn't work for them -- and if it doesn't work for our children, well ... it just doesn't work. And in a real sense, that is where I have ended up on this issue. If what we want is true equality, we cannot have that without the right to marry. We can have legal rights -- we can make great progress -- but we can't have full equality. Marriage is a fundamental institution of our society, that has enormous meaning to many people. Being denied the right to marry makes us second class citizens. That is the bottom line. That said, I could not agree more with Nancy Polikoff, whose new book Beyond (Straight and Gay) Marriage cogently makes the argument that we, as a society, need to be coming up with a better yardstick for defining "family" than whether or not folks are married. Non-marital families deserve recognition and protection -- and need access to benefits and services at least as much as marital families do. This is a classic example of a "both/and" (as opposed to "either/or") situation. Same-sex couples should have the legal right to marry; AND we should do a much better job of protecting the non-marital family than we do now. What amazes me is that, having listened to last Tuesday's arguments, I am surprisingly optimistic that the California Supreme Court may be ready to agree with me.

Returning From a Blog Holiday

2008-03-02T08:30:00.001-08:00

I'm back!! I don't understand all the reasons why, but the first two months of 2008 were complete chaos. We were in the final throws of getting our older son's high school applications in; I had a lot of speaking engagements, including several that involved (minor) travel; my partner was in a new, much-more-full-time job. Somehow it all added up, and while I feel like I blogged a couple of weeks ago, I look and see that it actually has been two months. Well, the dust is beginning to settle, and I have recommitted to blogging. And there is so much going on to blog about! Let's start with Ralph Nader and Matt Gonzalez running for President/Vice President. Now there's "progressive" for you! I cannot help but feel that their primary contribution to this election is to give left-leaning voters an opportunity to keep straight white men in power for another four years, while still feeling good about themselves. Why have a woman or an African-American run the country when you could have Ralph?? Way to go, guys! Then there are the oral arguments on Tuesday in the California marriage case. Given the questions our Supreme Court is asking about the meaning of marriage in our society, I believe we actually have a real, significant chance of winning this one. And then there are major changes in the world of international adoption, brought about by implementation of the Hague Convention on Intercountry Adoption in April. And the issue of outsourcing surrogacy to 3rd world countries, which is being debated here at home. And who knows what else will come around the bend?? So, with a little more time (yeh, right!) and much to write about, I commit to blogging more often in 2008. For my loyal readers, I apologize for the break and thank you for not abandoning the Wald Law ship.... And for anyone new just happening on this blog now, in 2008 -- WELCOME!! It is sure to be an interesting year, and I promise to try to throw in some thoughtful perspectives along the way.

Reflections for a New Year

2007-12-31T11:01:00.000-08:00

What a difference a year makes! A year ago, I was a solo practitioner with a part time office on 24th Street in Noe Valley, a quiet San Francisco neighborhood. A year ago, I had yet to handle my first collaborative divorce (and, for those of you who have seen the movie "Juno," let me just state that the same attorney never handles both sides of a collaborative divorce -- to do so would be unethical). A year ago, I was just beginning to offer a full range of start-to-finish surrogacy services -- including egg donor and surrogacy agreements, as well as parentage actions -- that I had the expertise but not the time (as a part-time lawyer) to provide to clients. A year ago, my sons still shared a bedroom and our family spent loads of time attending elementary school functions. What a difference a year makes....

Thanks to our wonderful clients, colleagues, family and supporters, this year has been a year of unprecedented growth at Wald Law.

This week, I will celebrate my first anniversary as THE WALD LAW GROUP, in a downtown law office that I share with Deb Kinney, estate planning attorney extraordinaire -- and those of you who haven't visited us yet should come on by!

This week, I will celebrate my first year of working with attorney Paul Thorndal -- and we look forward to Paul spending 2008 growing our divorce/dissolution practice, including both negotiation and litigation, while I focus on our family formation practice (primarily adoptions and assisted reproduction work), collaborative divorces, and litigated parentage cases, adoptions and guardianships. This division of labor will allow our combined years of experience and expertise to be put to best use.

This year, in April, we will see the implementation of the Hague Convention on intercountry adoptions, which will change the way that international adoptions are handled around the world and, especially, here in the United States, and with profound implications for the ability of single people and gay couples to adopt abroad.

This year, the California Supreme Court will rule on whether the state government's refusal to allow same-sex couples to marry violates the state Constitution -- a ruling expected to have major implications for the national movement toward marriage equality.

This year, my older son will start high school, and my younger son will start 7th grade, as their exciting and relentless march toward adulthood continues. And this year, my partner and I will celebrate our 27th anniversary, meaning that we will have been together for more than half of each other's lives -- a source of continuing amazement, pride and joy.

This year holds so much promise, and also so much to be concerned about -- the continued war in Iraq, continuing economic challenges for so many here at home, on-going concern about the impact of our modern society on nature and the environment -- and, of course, this year brings us a national election that could effect all of these things and so much more.

So, as we leave 2007 behind and move into 2008, I wish all of you reading this blog -- wherever you may be -- peace and comfort, your share of happiness, good health, and something to make you proud in the New Year.

Happy Holidays from Waldlaw!

2007-12-23T09:54:00.000-08:00

It's that time of year again.... My family, being a mixture of Jewish and Christian, celebrates almost any holiday that comes our way. When our children were little, for one year we tried celebrating both Chanukah and Christmas with gifts, and one year convinced us that this wasn't a good plan. Our older son was born in mid-November; our younger son in January -- so for that year, there were birthday gifts in November, then 8 nights of Chanukah gifts, then Christmas gifts, then birthday gifts in January again.... By the end of January, we had convinced our children that they were entitled to presents every few weeks regardless, and February and March ended up being pretty bleak months of "where's my next present" mayhem. We learned from that experience.... So now, Chanukah is the festival of light that it started out as -- we light candles every night, eat latkes (potato pancakes), sing songs. The kids fight over whose turn it is to light the candles, and don't even remember that once there were presents. We gather with Jewish friends to share the warmth of good food and company, and each year our children make a donation to a charity of choice as a way of giving thanks for what we have that others don't. And then comes Christmas.... We, as many of you, are caught up in the whirlwind of out-of-town family arriving; last minute shopping; planning menus; wandering the neighborhood looking at lights. It is, truly, a magical time of year -- and if we can avoid the malls, it is a joyful holiday. I hope that all of you find a way to celebrate this holiday season that reminds you of all the blessings in your life, whatever they may be. From all of us at Waldlaw, we wish you a wonderful, restful holiday season and look forward to sharing a healthy, happy and productive 2008.

Mothers' Day at Wald Law Group

2007-11-26T18:01:00.000-08:00

Today was quite a day at The Wald Law Group! This morning, my associate Paul Thorndal and I appeared in two separate courts -- one in San Francisco, and one in Martinez -- on behalf of non-biological lesbian mothers. In both courts, our clients left the courtrooms at the end of the morning full legal parents of the children they had helped bring into this world. The cases were very different. In the San Francisco case, the biological mother ended up agreeing that her ex-partner was a parent, and should be accorded legal rights. She ultimately swallowed her hurt, her anger, and her fear of the future and came to the table to work out an agreement on custody, visitation and child support that I hope will serve both women and their son well for many years to come. In the Martinez case, the biological mother fought us all the way. Having moved the children to Florida when their partnership fell apart, she challenged the jurisdiction of the California court to even decide the case. Since our client was clearly a mother in California, and was equally clearly not a mother in Florida, the whole case came down to which court got to rule. In the end, after full briefing and a long evidentiary hearing, the Martinez court determined that California retained jurisdiction, granted our petition to establish our client as a legal mother, and sent the women to mediation to work out visitation and support. Two new mothers in one day! And so, we are celebrating Mothers' Day at The Wald Law Group today. And here is my salute to brave mothers: those mothers brave enough to swallow their fear and pride and do what is best for their children, whether that means carrying on a fight not to be cut out of their children's lives, knowing that they may lose; or giving up a fight when they realize that it is not in their children's interest for them to win. You are all to be honored, and I do so now. And, while I'm at it, a belated Happy Thanksgiving!

Same-Sex Families Discussion Rages on SF Gate

2007-10-31T17:23:00.000-07:00

This morning's Chronicle newspaper boasted a front page story on the diversity of lesbian and gay Bay Area families. Titled "Same-sex couples raising children less likely to be white, wealthy," the article discussed the financial and ethnic diversity of same-sex families with children in California, citing information gathered by Our Family Coalition and the Williams Institute, among others. This article has caused a firestorm of comments from Chronicle and SF Gate readers, which are quite interesting to read -- 170 comments and counting as I write this. For anyone wanting to join the discussion, go to: http://www.sfgate.com/cgi-bin/article/comments/view?f=/c/a/2007/10/31/MNJET3CR3.DTL And HAPPY HALLOWEEN!!!

While We're Talking About Kansas

2007-10-31T17:03:00.000-07:00

In a decision many of us had been waiting for for many months, the Kansas Supreme Court voted on Friday to uphold Kansas' sperm donor statute against a challenge brought by a known donor. Many states (including Kansas and California) have statutes that state that when a man provides his sperm to a licensed physician for purposes of inseminating a woman who is not the man's wife, the man will legally be a sperm donor and not a father. This means that the donor has no parental rights (i.e. he can't seek custody or visitation of the child) and no parental responsibilities (i.e. he can't be held responsible for child support). The problem arises when women use men they know as sperm donors, and the donors' expectations don't match the law. In the Kansas case, the man sued for custody and visitation, arguing that it had always been the plan that he would have regular, parental conduct with the child. The Kansas statute has a specific "opt out" provision, whereby a written agreement between the donor and the recipient can create a parental relationship between the donor and the child; but in the Kansas case the man and woman had not entered into any such written agreement. Nevertheless, the donor argued that it was a violation of his legal rights to deny him legal recognition as a parent to a child that was his genetic child, that he knew and cared about and was prepared to support. The Kansas Supreme Court voted in favor of sperm donor statutes for several reasons: (1) they promote certainty about who parents are in the case of women using donor insemination; (2) they encourage men to be sperm donors without fear of financial responsibility for the children born as a result of their donations; and (3) they allow married couples to use donor insemination where the husband is impotent or sterile without fearing interference with their family structure. For these reasons, and others, the court found that the donor in Kansas had no legal rights to the child conceived from his donation, and that the mother was a legal single mother. For more info, see: http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071026/96102.htm

When the Bay Area Seems More Like Kansas

2007-10-19T11:41:00.000-07:00

Some of you may not know that I am Co-Chair of the Board of Directors of Our Family Coalition (OFC), the Bay Area's lesbian, gay, bisexual and transgender family organization. One of the cornerstones of OFC's work is our efforts to make sure that Bay Area schools are welcoming places for LGBT families with children, and that their curricula speak to our children's needs. As part of this effort, we put on two elementary school fairs each year -- one in San Francisco and one in the East Bay. At these fairs, LGBT parents can meet with other parents, teachers and elementary school administrators to learn how different schools are addressing the needs of LGBT families, and to get ideas about which school might be best for their own children. Last night was our annual East Bay school fair, hosted by Chabot Elementary School in Oakland, and much to our shock and horror their was a counter-demonstration outside. The demonstrators showed up at school pick-up time, when the elementary school children were getting picked up by their parents, carrying signs and placards with enticing slogans like "sodomy forum." They handed out flyers to teachers, parents and even some students that included the words "The perverts want your children!" At least one child went home to her parents with the question: "Mommy, are we perverts?!" This was in Oakland. In October, 2007. After our state legislature voted for the second time that lesbian and gay couples should be allowed to marry. With the issue of whether it is constitutional to limit marriage to different-sex couples pending before our state Supreme Court. This was in Oakland, in Alameda County, home to the largest per capita number of lesbian families in the state of California. This was a wake-up call for us at OFC, and for me personally. I am not naive. I know that there are still plenty of people out there who hate gay men and lesbians, who think we're wicked and immoral, and who aren't ashamed to say so. But I had actually thought that we were beyond the point, in the San Francisco Bay Area, where adults would think it was appropriate to hold protests at an elementary school in the name of morality. So, folks, here is my message of the day: If you, too, had thought that we had made enough progress that some of the work that organizations like OFC do might no longer be necessary, think again. And while you're thinking again, it would be great if you could take out your checkbook and make a contribution to OFC or one of the other wonderful Bay Area organizations working so hard to keep our children safe....

An Adoption Mess in Guatemala

2007-10-09T13:31:00.000-07:00

The political and ethical issues surrounding international adoption have always been controversial, and they currently are coming to a head in Guatemala. Charges of baby stealing, falsified DNA tests, and payment of birth mothers to give up their babies for adoption have all surfaced, causing governmental agencies on both sides of the border to take pause. This isn't the first time these issues have surfaced in Guatemala, nor in international adoption in general, and they are leading some to question the propriety of many of these programs. On the other side of the equation, concern for the futures of thousands of babies already in foster care make significant delays very troubling. According to a recent CNN article, the Guatemalan government estimates that as many as 17 babies currently leave Guatemala each day for adoptive parents in the United States, and U.S. diplomats in Guatemala have estimated that 1 in every 100 Guatemalan babies end up in the international adoption market -- which, by any measure, is A LOT of babies. How these babies come to be available for adoption -- what the impact is on Guatemalan culture and society to have so many Guatemalan children being raised abroad -- and how the world should respond to grinding poverty that leaves mothers with no viable economic alternative to relinquishment of their children for adoption are all issues that we, as ethical and caring people, need to be grappling with. And still. I have many wonderful clients raising wonderful Guatemalan children here in the United States, and my own niece brought her Guatemalan daughter home less than a year ago to the endless joy of my mother, who frankly dotes on the baby. Our Guatemalan children have enriched the fabric of our communities, the same way that our Chinese children and our Russian children have, adding to our ethnic and cultural diversity and causing heightened awareness in our churches, synagogues and schools of the gifts these countries have to offer. The ethical and political complexities of international adoption create problems that are not easily solved; and in looking for solutions it is important to remember that what appear to be sensible long term solutions may be completely wrong if implemented too abruptly or without due consideration of their short term effects. With threats that the whole program will be shut down indefinitely effective January 1, 2008 (see a recent memo from the Department of State for details), I honestly don't know what the future holds for Guatemalan adoptions. In the meantime, many clients in my law practice are turning their eyes toward Vietnam, where many of the same political and economic complexities exist. We need to take a long look at international adoption, with all its many wonders and potential pitfalls, and come up with a game plan that respects the legal process, respects the cultural imperatives of each country, but avoids leaving children languishing in orphanages while prospective loving parents wait in endless bureaucratic queues for children to bring home. To be honest, I'm not sure what the long term solution to this recurrent problem is. But to strand 3000 Guatemalan babies in orphanages and in legal limbo while our governments work to figure this all out is, simply put, wrong.

Watching Our Kids Grow Up -- High School??!!

2007-10-07T20:53:00.000-07:00

I wrote a blog in July about moving my sons into separate bedrooms, and the ways that the move brought home to me that my sons are growing up. Well, one thing inevitably leads to another, our older son is now an 8th grader, and I seem to be spending all of my free time (what's that?!) checking out high schools. Yes, you read that right. I said high schools! When I was getting ready for high school, there were two choices: a private prep school or the public high school that served our whole city. (It never occurred to us to look at the parochial school alternative, since we are Jewish.) We decided that public school was the way to go, and off I went -- to Cambridge High and Latin, which shortly became Cambridge Ringe and Latin. If you went to public high school in Cambridge, Massachusetts, that's where you went. In San Francisco, there are three choices that demand consideration: private schools (now euphemistically called "independent" schools), public schools, and parochial schools. And nothing can be taken for granted, in any category. In other words, if we decide that public school is the right way to go for my eldest son, then the next step is to figure out which public schools we are interested in, apply, and hope like heck he gets in somewhere we can live with. Same, of course, for private schools. And given the level of uncertainty and competition, apparently even Jewish lesbians like me are supposed to seriously consider Catholic school as a reasonable alternative. (And then, of course, there's home schooling...NOT.) The current system for "choosing" high schools in San Francisco has me spending at least one day per week shuttling my beloved child around to high schools for "shadow" days and interviews and open houses. And this will go on for at least one more month. But if this sounds like a complaint, it isn't really. Because through this process, my son is getting a chance to look at himself in a lot of different environments, and to really think for the first time about what he enjoys, what stimulates him, and what he wants for his future. I am sure things will get tense at some point along the way, when friends get into schools he doesn't get into or something else prevents him from going somewhere he thought he wanted to go. But right now, each visit produces a self-reflective gem: "that school puts too much of an emphasis on technology"; "that school didn't seem that challenging academically"; "I would get to travel outside the U.S. if I went to that school"; "I loved the shop program at that school." When I looked at preschools for my son, I was still guessing at what would work for him; when I looked at elementary schools, I had a better idea but still was going largely on instinct. Looking at middle schools for my son, I had a much clearer idea of what would work for him -- both academically and socially -- but it still was me visiting the schools and picturing him there and checking out the curricula and feeling out the social environment. Now, for the first time, our older son is picking a school for himself, and through the process he's thinking in a completely different way about ... well, about who he is. So the high school admission process is actually being an opportunity for introspection that I had not anticipated, and yet another step along the way to self-awareness for this rapidly maturing young man that we live with.

Enough About Marriage!

2007-09-17T08:04:00.001-07:00

I was just looking back through recent posts, and realized that for the past month I've mostly been blogging about marriage equality. This is, primarily, because marriage equality is what has been in the news. But I have spent my career advocating for non-traditional families, and as the marriage equality movement fights fiercely to allow same-sex couples to marry and, therefore, to be included in the "traditional" family framework, it is my pledge and my goal to continue advocating for non-traditional families -- especially non-traditional families with children. My mantra, increasingly, is "marriage isn't my issue" -- so why so many blogs about marriage equality? I was reminded last week, at the annual "Lavender Law" conference, of how much we are defined by the media. If the media is interested in kids, we talk about our kids; if the media is interested in where we take vacations, we talk about where we take vacations; if the media is interested in marriage, we talk about marriage. As a blogger, it is tempting to look at what's "in the news" and talk about that. But I am now taking a personal, Wald Law, blogger pledge: I will not be talking about marriage equality again until and unless there is some MAJOR news (like winning marriage equality in the California Supreme Court, which we may do next year due largely to the heroic efforts of my friend and colleague Shannon Minter at the National Center for Lesbian Rights). Otherwise, I am going to try to avoid being swept whichever way the media wind is blowing, and stick to my basic Wald Law tenet: we at Wald Law are here to represent the full diversity of contemporary families, be they gay, straight, partnered, single, or parenting in trios and quartets. We are here to talk about adoption; assisted reproduction; and the trials and tribulations of divorce outside the boundaries of the law. We are here to talk about what others are not talking about. If I forget, please remind me....

A Call to Action in CA

2007-09-09T09:37:00.000-07:00

All of a sudden, I seem to be all about marriage! I usually try to steer clear of the same-sex marriage debate, since it is already taking up so much time and energy within the contemporary family law community and I am convinced that some of us need to remain focused on securing rights and protections for non-marital families with children -- including single parents, co-parents, and a variety of other truly non-traditional family models -- while so much of our community is focused on marriage equality. But we are in a historic moment in CA when action is needed, SO .... California's is the only Legislature in the country to vote in same-sex marriage. They voted it in last year, and Gov. Schwarzeneger vetoed, saying that the courts need to decide whether same-sex couples in CA should be allowed to wed. (This is completely backwards, as I wrote in my blog then -- the courts are constantly arguing that a change this big must be brought about through the democratic process, and the opposition rants and raves about "activist judges" who act like legislators to bring about social change that should be brought about at the ballot box instead -- but then when a progressive (and, frankly, heroic) Legislature actually uses the democratic process to enact same-sex marriage, the Governor vetoes it because it wasn't brought about by the courts. Can you spell "hypocrisy"??) Well, on Friday California's Legislature again voted for marriage equality, at a critical moment when the California Supreme Court is wading through legal briefs and preparing to hear oral argument on the issue. And again, Governor Schwarzeneger is threatening a veto. A strong public showing in support of marriage equality now could make a huge difference to the California Supreme Court -- put bluntly, it will let them know that we have their backs. If you ever sign petitions or make phone calls or write letters to elected officials, this would be an excellent time to do it! Let Governor Schwarzeneger know that the People of California have acted, through our democratically-elected officials, to support marriage equality in our state, and it is time for him to get out of the way! For a full article on the marriage vote, and to find out how to get involved, go to http://www.eqca.org/site/apps/nl/content2.asp?c=9oINKWMCF&b=40337&ct=4401763.

While We're on the Subject of Marriage Equality

2007-08-30T13:29:00.000-07:00

This just in from Lambda: Iowa Court Issues Decision in Lambda Legal's Historic Lawsuit: Same-Sex Couples Must Be Allowed to Marry 'This decision brings to life the Iowa Constitution's promise of equality for same-sex couples and their families in Iowa.' (Des Moines, IA, August 30, 2007) ---- A 63 page decision issued today by the Iowa District Court for Polk County said that same-sex couples must be allowed to marry based on the Iowa Constitution's guarantee of equal treatment under the law. The case was filed by Lambda Legal on behalf of six same-sex couples and their families in Iowa. "This decision brings to life the Iowa Constitution's promise of equality for same-sex couples and their families in Iowa," said Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago. "This is a significant step forward in recognizing the constitutional rights of all Iowans, and it's an amazing day for same-sex couples and their families all across Iowa," said Dennis Johnson of Dorsey and Whitney, co-counsel for the Plaintiffs with Lambda Legal. In his decision, Judge Robert B. Hanson said, "Couples, such as Plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage pursuant to Iowa Code Chapter 595 by reason of the fact that both persons compromising such a couple are of the same sex." In December 2005, Lambda Legal filed a lawsuit with the Polk County Court on behalf of six same-sex couples who were denied marriage licenses in Iowa, arguing that denying marriage to same-sex couples violates the equal protection and due process guarantees in the Iowa Constitution, and prevents these couples from taking care of each other and their children. Today's decision comes after a hearing in May of this year where both sides made arguments before the court. The plaintiffs in this case include: Kate, 34, and Trish Varnum, 42, of Cedar Rapids, who have been in a committed relationship for nearly seven years. In addition to the Varnums are David Twombley, 66, and Larry Hoch, 65, of Urbandale, both retired teachers who have been in a committed relationship for over six years; Dawn and Jen BarbouRoske, 39 and 37 respectively, of Iowa City, who have been together for more than 17 years and their two children, McKinley, 9, and Breeanna, 5; Ingrid Olson, 29, and Reva Evans, 33, of Council Bluffs, who have been together for nearly 10 years and their son, Jamison, 1; Jason Morgan, 37, and Chuck Swaggerty, 35, of Sioux City, who have been together for 10 years; and Bill Musser, 49, and Otter Dreaming, 50, of Decorah, who have been together for over six years. Camilla Taylor and Kenneth Upton Jr., Senior Staff Attorneys at Lambda Legal are handling the case. They are joined by former Iowa Solicitor General Dennis Johnson of Dorsey and Whitney in Des Moines. The case is Varnum v. Brien.