I wrote yesterday about a new opinion from the NY Court of Appeals, Debra H v. Janice R. You can read that for a summary of the case and to get up to speed on today’s commentary. There is also useful discussion on other blogs. Two you might want to check are those of Professor Art Leonard and Professor Nancy Polikoff. Professor Polikoff is particularly pointed in her criticism of the court’s decision.
For starters this morning I want to echo one of her points because I think it’s a critical one. In the court’s view, Debra’s recognition as a legal parent to the child turns entirely on whether or not she and the child’s mother entered into a civil union in Vermont. They did, and so she is a parent. Imagine an identical couple–a couple whose lives are exactly the same as Debra and Janice and the child–where the adults didn’t enter into a civil union and you would find the woman in Debra’s position described as a legal stranger to the child. Perhaps more importantly, the child in Debra’s family has two legal parents while the child in the identical but not-civilly-united family has but one.
Now it’s clear that there are many facts in this case that are in dispute and hence, unknown. I cannot describe the life of this family or tell you what Debra’s day-to-day involvement with the child was. But the thing is, that doesn’t matter to the court. Fill in any facts you like. They have nothing to do with whether Debra gains legal recognition. All that matters is presence of the Vermont paperwork.
Remember that what is directly at issue in this case isn’t the relationship between the two women, although that’s obviously going to be implicated. What’s at issue is the legal relationship between Debra H and the child. As with all cases where legal parentage is at issue, one way to describe what is at stake is to say it’s the child’s right to maintain a relationship with a particular adult. Why does it make sense to make this turn on Debra’s legal relationship to the child’s other parent?
The court’s answer to this question is that this is the right question because it’s an easier question. It’s true, of course, that it is easier to tell whether someone has gotten married or entered into a civil union than it is to assess what the nature of a person’s relationship with a child is. But we all know that the easy way out of a dilemma is not always the right way out.
As it happens, this isn’t a new dilemma. For centuries illegitimate children were relegated to second-class citizenship. It wasn’t that the children had done anything to warrant this treatment–the problem was their parents hadn’t gotten married. It’s nearly forty years since the US Supreme Court recognized that treating children differently because of the decision of their parents to marry (or not) was fundamentally unfair. Since then courts have rejected laws that denied parental rights to unmarried men simply because they were not married to the children’s mother as well as laws that denied children the right to parental support in such cases.
The New York Court seems determine to revive this distinction, at least for children of same-sex couples. Children who are fortunate enough to have parents who enter into civil unions will have two parents. Those whose parents do not won’t.
There’s something particularly striking about the ultimate importance accorded the civil union in this case given the specific facts at issue here. Janice R apparently did all that she could to avoid formal legal devices that might confer legal rights on Debra H. She refused to let Debra H adopt and entered into the civil union only after securing legal advice that it would have no legal effect.
It’s not a pretty picture, but I imagine another case, somewhere in the future. Two women agree to raise a child together. One gives birth. They share the responsiblity for raising the child–the work, the commitment of time and energy, the provision of financial support. But all along the woman who gave birth plans to maintain absolute control over her partner’s relationship with the child. And she knows the law. She will not agree to adoption. She will not enter into a domestic partnership or a civil union. When she chooses, she can sever all ties between the other mother and the child. This opinion gives her the power to do that, because it’s easier than having to examine the facts.