Sorry for the silence (as it were) these last few days. I was at an extended meeting with a seriously talented group of lawyers who represent LGBT families all over the countries.
These are not the high-profile big-name lawyers who bring test cases for major legal organizations. These are simply lawyers who represent LGBT clients in all the ordinary work of family law. They come from more than a dozen states, ranging from Alaska to Florida, and bring with them astonishing expertise and experience. Listening to the conversation really brought home how complicated life is these days for lgbt parents or would-be-parents.
To begin with, family law is complicated for everyone. You want to know of someone can be recognized legally as a parent? Well, in general there are a few different ways to claim parenthood. If you’ve been reading this blog, you’ve seen many of them discussed: genetic relationship, functional role, giving birth, marriage to someone who gives birth, and so on.
Some of these tests are fairly easy to apply–DNA matches or it does not. Others are far more difficult to figure out–what does a person have to do to function as a parent? Some seem to be available only to women (giving birth), while others seem to be available only to men (holding out). Virtually all the tests have been developed with the assumption they will only apply to heterosexual individuals.
On top of this variation, which effects all parents, lesbian and gay parenting is a political hot topic. This has two consequences, both of which make for greater complexity in law.
First, as the law has become politicized, enormous state-to-state variation has developed. Initiatives and constitutional amendments have starkly restricted lesbian and gay family rights in some states even as courts and legislatures have expanded them in others. The end result is a dramatic patchwork of starkly differing laws. In some states lesbians and gay men can adopt as couples, in other states they cannot adopt as couples but can adopt singly, and in still others they cannot adopt at all.
Second, family law as it applies to lesbian and gay men is changing rapidly. Consider, for example, the law regarding marriage in California. Up until June 2008, two women or two men could not marry in California. Between June 2008 and November 5, 2008, marriage between lesbians or gay men was lawful in California. After November 5 it became unlawful again. But the lesbian and gay couples married in California last summer remain married. What about a gay couple married in Massachusetts in April, 2008? Are they considered married today in California? Would they be if they had waited until July to marry? (Remember that marriage is relevant to parentage because sometimes parental status is linked to marital status.)
Finally, the nature of family law makes for complexity. Big test cases (like last week’s Proposition 8 opinion from California) are he exception rather than the rule. Generally speaking, family law questions do not get resolved by courts in broad and sweeping terms. Instead, courts write opinions tailored to providing specific resolutions of the cases before them. And specific situations vary enormously, even as specific family situations do.
The variation in general law noted above is further multiplied by the ingenuity of the lawyers in working out solutions to the problems of particular lesbian and gay parents. Thus, local legal doctrines like in loco parentis may be adapted to provide some relief for a lesbian co-parent who lives in a state where she could not adopt.
What makes this so difficult is that we are a mobile and interconnected society. Two women who live in Vermont may adopt a child from Texas. Perhaps they want a birth certificate that lists them both? Or maybe the child becomes sick during a layover at an airport in Ohio. What law governs this family–determines whether it is even seen to be a family? The answer a court chooses has enormous implications in the case.
This is the terrain on which lesbian and gay families must live their lives for now. I stand in awe of the lawyers who assist them in doing so.
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