Filed under: LGBT Legal Cases
By Scottie Thomaston
The people of the state of Virginia are now joining the ranks of those who support marriage equality (most recently, majority support was found in Michigan, and in Nevada in February.) The recent polls seem to match the overall trend reported by Pew Research and Gallup: Americans in all age groups increasingly support same-sex marriage.
Metro Weekly has the report on the Washington Post‘s Virginia poll:
A Washington Post poll of Virginians regarding various social issues shows that a majority of Virginians believe same-sex marriage should be legal, a finding that challenges other polls in recent years showing that marriage equality still lacks broad support across the commonwealth.
According to the Post poll, 56 percent of Virginia adults believe it should be legal for gay and lesbian couples to get married, while 34 percent think it should be illegal. Ten percent expressed no opinion. Among registered voters, those who thought it should be legal led by a similar margin, 56 to 33 percent.
The poll was conducted by telephone from April 29 to May 2 among a random sample of 1,000 adults in Virginia, including 887 registered voters and users of both conventional and cellular phones. Among registered voters, the poll has a margin of error of 4 percentage points.
According to the poll results, independents and Democrats are showing majority support (which is the same in most recent polls on the issue) but Republicans are not. Women and non-whites support marriage equality more strongly than men and whites. And 72 per cent of 18-29 year olds in the state support marriage equality, but only 22 per cent in that age group are in the opposition.
Metro Weekly interviewed the executive director of Equality Virginia about the poll:
In an interview with Metro Weekly, James Parrish, the executive director of the nonpartisan LGBT rights organization Equality Virginia called the results of the Post poll “exciting to see.”
“It’s definitely nice to see, but it’s something we expected,” Parrish said. “Support in Virginia mirrors what’s going on nationally. Hopefully, this will set Virginia up to be able to remove the marriage amendment and allow same-sex couples to marry in the state.”
Parrish noted that the strongest movement in support for LGBT rights has occurred among Republicans. He said that polling by Equality Virginia has also seen that shift among Republicans in its own polling, which explains why a bill supporting workplace nondiscrimination protections in state employment garnered stronger-than-usal support from Republicans this past legislative session. That measure passed the state Senate 24-16 before being killed in committee by members of the House of Delegates.
The Advocate also notes, via a Talking Points Memo report, that Arizona voters (who banned same-sex marriage by voter initiative in 2008) now support marriage equality by a fairly strong margin:
Even Arizona, where the legislature is currently considering a bill that would forbid transgender people from using the restroom that corresponds with their gender identity, is feeling the push toward marriage equality. Although Arizona voters overwhelmingly passed a constitutional amendment banning same-sex marriage in 2008, 55% of voters now favor marriage equality, according to a Rocky Mountain Poll released Wednesday and published at TalkingPointsMemo. Opposition to the freedom to marry among registered voters is just 35%, according to the poll. Support for marriage equality was high among women, Latinos, and voters under the age of 55. But even among voters older than 54, 46% support marriage equality, while 40% of the demographic is opposed.
TPM notes that support in the state transcends race, gender, and age:
Large majorities of women, Hispanics and voters under the age of 55 support same-sex nuptials. A plurality of voters over the age of 54 — 46 percent — supports gay marriage, while 40 percent of the group is opposed.
All of these states have LGBT-related lawsuits pending in federal court: Michigan’s anti-gay amendment is being challenged in federal court, while a case involving gay rights in Arizona is pending before the Supreme Court: Brewer v. Diaz involves an attempt by Arizona Governor Jan Brewer to rescind domestic partnership benefits from same-sex state employees; she asked the Court to allow her to continue denying the benefits while the case is pending in the lower courts. No action has been taken in either case, and since the Court will decide cases involving Prop 8 and DOMA, no action is expected until June at the earliest.
In Virginia, the state’s attorney general has appealed a decision striking down the “crimes against nature” (sodomy) law as unconstitutional under 2003′s Lawrence v. Texas. The full appeals court declined to rehear the case.
In these states, it seems unlikely at best that marriage equality will be legalized without court action. Although voters are changing their minds, many of the state officials are socially conservative. But these lawsuits will probably proceed after the Supreme Court rules next month.
Bill to end discrimination against adoptive parents based on LGBT and marital status to be introduced in Congress
By Scottie Thomaston
Today, a bipartisan group of Senators and Congresspeople are introducing a bill to ban discrimination based on sexual orientation, gender identity, and marital status in adoption and foster care. The effort to pass the “Every Child Deserves a Family” Act will be led by Senator Kirsten Gillibrand (D-NY), Rep. John Lewis (D-GA), and Rep. Ileana Ros-Lehtinen (R-FL). A press conference will be held today with families led by same-sex couples.
The bill would restrict federal funding to discriminating states, and help open the homes of “more than 2,000,000″ LGBT families to adopted and foster children. The Family Equality Council points out that state adoption laws are generally unclear, and most have no non-discrimination policy spelled out, leaving lots of uncertainty. They also point out that the bill is supported by medical and civil rights organizations:
Professional associations in the fields of child welfare, medicine, psychology and public health, and civil rights advocates have taken official positions in support of the ability of qualified LGBT and unmarried couples to foster and adopt. Among these organizations are the Child Welfare League of America, the National Association of Social Workers, North American Council on Adoptable Children, American Psychological Association, American Medical Association, and American Academy of Pediatrics. A broad coalition of faith groups supports the Ever Child Deserves a Family Act.
Amanda Terkel, writing in the Huffington Post, suggests that recent developments are seen as a positive sign for the bill. The Supreme Court heard oral arguments in two marriage cases in late March (a decision is expected in late June) and indeed even some of the Justices referenced the children who are currently being raised by same-sex couples in California. (Justice Kennedy suggested that those voices are important in the Prop 8 case.) And some Republicans are changing their minds on some LGBT issues: Senator Rob Portman recently announced he’s in favor of marriage equality, and Rep. Paul Ryan has suggested he no longer opposes adoption by same-sex couples.
A press release from Senator Gillibrand’s office says the bill will impact hundreds of thousands of children:
[...]Nationwide, there are an estimated 400,000 children in the U.S. foster care system, and there are more than 104,000 children currently waiting to be adopted, including 6,400 in New York. LGBT couples or individuals who want to adopt or become foster parents still face discrimination in more than 30 states.
At the press conference tomorrow, “Congress Members will be joined by Mary Keane and her daughter Anni from New York, Philip McAdoo, Sean Cavanaugh and their son Zaden from Atlanta, and Martin Gill and his sons from Miami to tell their stories.”
The Iowa Supreme Court ruled last week in a unanimous decision that the Iowa Department of Public Health must list both lesbian parents of a child on the child’s birth certificate. Lambda Legal filed the suit in 2010, representing Heather and Melissa Gartner, a married couple raising a child named Mackenzie. The Iowa Department of Public Health initially denied a request to list Melissa’s name as the other parent, because she isn’t the child’s genetic parent. (Heather gave birth to the child in 2009.) The Iowa Supreme Court had legalized same-sex marriage in the state in the 2009 decision, Varnum v. Brien, but it remained the only state which granted marriage licenses to same-sex couples while still declining to acknowledge both parents on birth certificates.
The court ruled that the state had no reason, beyond stereotyping, to refuse to name both parents:
Justice David Wiggins said the state government “has been unable to identify a constitutionally adequate justification” for treating lesbian parents differently than parents of opposite sex. He said the only explanation for doing so was “stereotype or prejudice” that violated their rights to be treated equally under the Iowa Constitution.
“It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children,” Wiggins wrote.
The court’s ruling appears to be limited to lesbian couples who use sperm donors to conceive children. Taylor said using sperm donors is by far the most common way for same-sex couples to conceive, and the court may have to decide another day how to treat lesbian or gay male couples who have children through surrogate mothers.
Lambda Legal’s Marriage Project Director Camilla Taylor said in a statement:
“The Court meant what it said in the Varnum decision: same-sex couples and their families must be treated equally under the law,” said Camilla Taylor, Marriage Project Director in Lambda Legal’s Midwest Regional Office based in Chicago. “Same-sex couples and their children do not get marriage-lite. Marriage is marriage and equal is equal. We take for granted that a husband is the father of a child born to his wife through reproductive technology – regardless of whether he is his child’s genetic parent. The same marital protection for both parents’ relationships to their child holds true for same-sex couples and their children. This is great news for the Gartner family and for the long list of children who have been born to married same-sex parents since 2009 and who have been waiting for a two-parent birth certificate that reflects their family.”
It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children. By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth. Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice. The exclusion of the nonbirthing spouse on the birth certificate of a child born to a married lesbian couple is not substantially related to the objective of establishing parentage.
Without this ruling, the couple, and all same-sex couples in the state with children, would have been required to go through the process of adoption, an expensive and possibly lengthy process, to reach the same result. The decision relied on the same grounds – equal protection – as the 2009 decision legalizing marriage equality in the state. According to Camilla Taylor, hundreds of same-sex couples in the state have been impacted by the Department’s refusal to list both parents on the birth certificate; and she noted that families are affected in a variety of ways, from school enrollment to travel.
Two of the Justices who participated in the case (and ruled for the lesbian couple) were appointed to the court in 2010 after three Justices were removed following the court’s decision legalizing same-sex marriage. The third Justice didn’t take part in the case.