Thursday, November 30, 2006

VA and PA: Custody cases (lesbian couples after separattion)

On Thurday Nov 30, 2006, The Washington Post featured an editorial, “Justice for a Parent and Child: Virginia Court of Appeals does the right thing for common sense and custody laws.” The editoril is here.

The case is Miller-Jenkins v. Miller-Jenkins. After a lesbian couple cemented with a Vermont civil union broke up, the biological mother Lisa tried to shield her daughter from the other parent’s visitation by taking her to Virginia. The lower court allowed this (on the theory that a biological parent's rights always trump under Virginia law), but the appeals court held that federal law prevents Virginia from interfering with the custody proceedings of another state, here Vermont. This means that couples cannot do state “forum shopping” to take advantage of anti-gay policies in other states with respect to child custody issues.

Here is another perspective from a libertarian blogger, at this link.

There was a distantly related case from Pennsylvania about the same time.
Specifically, here.

The Pennsylvania Supreme Court on Nov. 29 2006 refused to hear a challenge to an appellate decision which affirmed that Pennsylvania’s non-biological, non-adoptive same-sex (here, lesbian) parents have the right to primary custody of their children. The case involved a lesbian couple, Patricia Jones and Ellen Boring, who had lived together for several years and had twins together through alternative insemination. While not he biological mother of the children, Patricia Jones took on all the responsibilities of a co-parent to the boys. In 2000, after four years, the couple separated. In 2001 a Bucks County PA court entered a custody order that recognized that Jones had acted in the place of a parent and consequently gave her visitation with the children.

Sunday, November 19, 2006

NY Times Magazine on gay parenting

The Sunday Nov 19 2006 issue of The New York Times Magazine has a long article by John Bowe, "Gay Donor or Gay Dad: Gay men and lesbians are having babies and redefining fatherhood, commitment, and what a family can be," on p. 66. Artwork and illustrations are by Christopher Silas Neal. A variety of detailed stories are presented. The idea that not having children is "selfish" appears and one gay man wants to be sure that he does not have an "only child." The legal complications are explored.

When I researched my first DADT book in the mid 1990s, I found that there was quite a body of support for the ideas that gays should try to become parents, as in the book by Dr. Kenneth Morgen, Getting Simon (1995, Bramble Books).

When I lived in Minneapolis 1997-2003, I saw bus stop benches with advertising signs looking for adoptive and foster parents, and claimed that singles were welcome. A few states, however, ban (or have tried to ban) gay adoptions.

The political issue comes up in the sense that if you want full equality, you have to take on equal responsibilities for others. Yet this would contradict the ideal of a mother and father (married) for every child.

One could imagine public policy could be engineered to encourage more heterosexually married couples to adopt, especially minortiy children. But that may be daydreaming.

Friday, November 17, 2006

Catholic Church takes "don't ask don't tell" stance on gay parishoners

We've read a lot in recent months about the Vatican's pseudo-ban of gay applicants to the seminary, and about their attempts to blame their recent enormous problems on homosexuality among priests.

We've also read a lot of the circular ideology about homosexuality, about whether it refers to "inclination" or "orientation" and the claims that it is not a sin until acted upon. We have felt particularly disturbed by their calling homosexual inclination or orientation (right now I forget which) an "objective disorder." The gay person is supposed to accept this as an almost biological handicap to draw him or her to God! I discuss this in detail at this link.

A recent convocation of US Catholic bishops passed a resolution on the pastoral care of homosexuals, and it has been widely reported, and criticized, in the media. A typical story is in The Washington Blade, here.

What is most disturbing is that the Bishops "ask" gays not to discuss their sexual orientation or inclinations publicly outside of the home. In fact, this request borders on offensiveness. It seems that they are trying to protect "normal, ordinary people" from the distraction of competition from today's culture. A large portion of heterosexual married couples do have difficulty maintaining active interest ("in sickness in health, for richer or poorer" etc) in the face of a media-focused competitive culture that is always trying to measure people against one another in terms of certain ideas about attractiveness. The fear is that homosexuals, when they talk about their interests, will make heterosexual men feel less secure about themselves. The other main fear, of course, is that their public disclosures will disrupt the socialization of children. Yet, it seems disturbing to silence people because of the individual weaknesses or vulnerabilities of others. This one you have to call as you see, and speak bluntly.

I wonder, of course, if the Catholic and religious emphasis on collective solidarity is really good for traditional marriage, when that is conceived as a commitment and expression of personal responsibility between two adults. The Church obviously has its problems with its track record. They do have one point, however. By keeping certain things toned down, they appear to be trying to make it easier for people to function in helping one another in a practical manner, by letting them remain less self-conscious (of their own universal shortcomings). That is their world view, and they are free to express it. They see it as their own form of social or even political solidarity, which may seem ironic to the GLBT community, given all of their statements.

Tuesday, November 14, 2006

DADT appeal to 1st Circuit

Twelve lesbian and gay veterans filed an appeal to the First Circuit Court of Appeals, challenging the lower court's ruling (on a case called Cook v. Rumsfeld) upholding the constitutionality of "Don't Ask Don't Tell" as implemented in a 1993 Defense Authorization Bill passed by Congress, and subsequently by Pentagon administrative policies (the most important being published in February 1994).

The SLDN (Servicemembers Legal Defense Network, which I have supported since 1993; it had been preceded by "the Campaign for Military Service) press release is here.

The District Court opinion (PDF file) is here.

As I have argued two postings down in this blog, the military DADT policy has the capability of affecting civilian areas, like security clearances and teaching.

(The picture is of the Naval Criminal Investigative Service building in the Washington Navy Yard, where many of the Navy's DADT cases have been investigated.)

Saturday, November 11, 2006

MA keeps same-sex marriage for now

Pam Belluck has an important story in The New York Times, "Massachusetts Effort to End Same-Sex Marriage Is Dead for Now," On Nov. 10, 2006, p A14.

The legislature decided to recess a constitutional convention until after Jan. 2, 2007. The regular session of the legislature will have ended by then, permanently postponed a divisive constitutional amendment process indefinitely.

In Virginia, as I note in the preceding blog, the Marshall-Newman amendment passed on Nov. 7, which can lead to legal complications even for those who do not directly seek a same-sex union.

However, a subsequent story in The Washington Blade (Nov 24) indicated that Gov. Mitt Romney asked the state supreme court to force a counter gay marriage amendment onto the 2008 ballot for referendum.

UPDATE: On Jan 2, 2007 the Massachusetts legislature took two votes that would result in the same-sex marriage ban being placed on the November 2008 ballot after all. The ban would apply only going forward from that time, and would not affect existing gay marriages. The Washington Times likes to gloat about this. The story is by Cheryl Wetzstein, "Same-sex 'marriage' measure advances", at this link. The Washington Times always uses the word marriage in single quotes in this context. Would that fit The Chicago Manual of Style?

Thursday, November 09, 2006

Is there a "don't ask don't tell" de facto policy for teachers?

"Don't ask don't tell" and public school teachers:

A small amount of testimony at the COPA trial referred to the possibility that teachers could be fired or reassigned in some cases if they discuss ("abnormal") “personal information” with students. Does this mean that a teacher could be removed for making “personal stuff” available at a public place on the Internet where kids could find it with search engines?

School boards regulate what teachers present in the classroom, and of course this has been politicized, especially by parents and pressure groups who fear that the religious or filial socialization of their children can be compromised by pluralistic exposure. Teachers generally have more freedom to say what they want on their own time and with their own resources, especially since they are public employees. Generally, teachers’ first amendment rights have been honored, for example, if they are seen by television cameras attending gay events.

There is a long audit trail of case law about this, both within school property and outside the school system. The issue is muddied by the Internet and World Wide Web, with the issues presented by search engines and by “free entry.” There is a balancing between the legitimate First Amendment rights of teachers (and students) and the need to preserve order and, frankly, safety and security in the school systems. There is a legitimate point that teaching, by definition, involves taking responsibility for the behavior of others who may be less cognitive and less competent in accounting for their own actions or in understanding what they find than are adults. After all, that is why the kids must go to school. The issue becomes much less important in practice for teachers who have only honors or AP students, but the reality of the teacher shortage today is that the challenge of dealing with average and special education students should be shared by as many teachers as possible.

The recent controversies, litigations, and constitutional amendment referendums about gay rights – most specifically gay marriage and civil unions – brings up a troubling point. Issues like gay marriage and the “don’t ask don’t tell” policy for gays in the military draw attention to the reality that gays are often (by circularity) cut out of “paying their dues” and taking responsibility for others in normal family and service settings. Sometimes, persons who do not have these responsibilities may be expected to “sacrifice” for the food of people who do have these responsibilities. In this sense, then, gays (and lesbians) are not the equal of heterosexuals in practice.

What happens if kids ask a gay teacher about his home life? If he or she reveals a same-sex domestic partner relationship, is this violating school policy of disclosing “personal stuff” to students? A number of states have passed constitutional amendments banning gay marriage, and a few (like Virginia, which passed the rather punitive Marshall-Newman amendment on Nov. 7) have gone so far as to ban civil unions from any legal recognition. Since a same-sex relationship cannot have legal recognition, such an answer could be seen as an improper disclosure of personal information to students.

There have been cases in some states where teachers have disclosed gay marriages or unions in class and have not been disciplined, but these have tended to occur in states, like California, with a more pluralistic social climate. In many cases, it may be all right for teachers to "tell" if they refer to sexual orientation as "status" (Bill Clinton's word) rather than as psychological interest or a propensity for "conduct." They could refer to a biological or genetic hypothesis, but not to anything deeper about personal choices. That starts to sound like a content-based speech restriction.

The issue bears comparison with the military “don’t ask don’t tell” where, by law, a statement (even in private) that one is gay triggers the presumption that one has a propensity to engage in prohibited acts. Persons have been discharged from the military for disclosing homosexual orientation on personal websites or on social networking sites.

With teachers, a comparable but less draconian situation seems to exist. In fairness to school systems, one must note that their sensitivity to "personal stuff" is a community standards issue; in their world, content that is legitimate in an open adult world might be interpreted, and unfavorably legally, in their protective community, even when discovered accidentally.

There is also a similar problem if a teacher’s statements (in a public place) indicate to others (such as parents or administrators) a “propensity” to show an undue interest in the attractiveness of minors. This would be likely to affect many more heterosexuals than homosexuals (most people caught in chat room stings, as on NBC Dateline, have been heterosexual). This problem is existential: an older person who does not have an intimate relationship with someone his own age (and show complementarity) is likely to be viewed as more vulnerable to “temptation,” even though admitting to “temptation” itself is not defamatory. Teachers (even subs) could get into serious legal trouble (possibly attracting passive solicitation charges) with statements that they view as existential but that could be viewed as self-defamatory by others. There is little experience with this in the law with respect to the World Wide Web, and it is tangential to COPA, but the trial and opinion might give some guidance as to how the open access and search engine issue (and filters or labels) plays out with disturbing or ambiguous speech found by minors. For a gay person, the lack of legal equality (in recognition of adult relationships) could become relevant, because it could make a statement be regarded as “personal” and therefore indirectly solicitous or motivated by illegal intentions. On the other hand, if this legal conundrum is rolled out, we see a lot of deference to "prejudicial thinking" which amounts to a content-based restriction on free speech.

I found, in my own case when I was substitute teaching, that it was very difficult, with certain disadvantaged students, to maintain classroom discipline (“poor classroom management”) when they did not see me as an “equal” who had faced their kinds of life challenges and “manhood” experiences. How does one answer this, as an exercise of faith? The Catholic Church has tried to build a whole priesthood culture around men who do not reproduce, to make them credible as authority figures, as long as they give up their freedom and preach only the Church’s teachings of socialization for “normal people.” Ironically, unmarried women have always been well regarded, often preferred as teachers, and “authority figures” for small children.

It is also important that, given the supposed teacher shortage, that new teachers making a "career switcher" move after retirement still have to invest about $4000 in tuition for licensure before getting a permanent job in most cases. For a gay man, in a political climate in a state that goes out of its way to say that he is not the equal of other more "manly men" as a role model, this does not sound like a sound private investment. (Of course, again there is an existential problem: if one is drawn to other men who he perceives as "better," what does that say about him?) So there is a chilling effect. At the same time, we watch the spectacle of school districts desperately trying to recruit teachers from third-world countries because Americans are appalled by the political climate (as well as the pay) in public schools. That reminds me of the circularity problem that the military has created for itself in recruiting and keeping linguists (with "don't ask don't tell").

It's important to note that some teachers (including subs) can face contingent responsibilities to deal with intimate custodial care issues (as with some special education students), and for an openly gay person, the "DADT" doctrine codified into federal law in 1993 might have legal repercussions even outside of the military. I once was asked if I would mind "helping out in the locker room" and, as a sixty-year-old man, wearing only swimming trunks myself and manning the deep end of a swimming pool on a surprise field trip. I declined. (And I don't swim.)

All of these concepts (regarding speech, legal status for relationships, and forced-intimacy occupations like the military and teaching – all becoming more important as society contemplates ideas like national service) bear parallels that are rather scary.

It's well to review the history of attempts to ban gay teachers in the past, such as the Briggs Initiative in California in 1978, or the Washington State bill in 1986, which defrocked Republican Spokane mayor Jim West had supported. See my footnote link, note 157, and tv link, notes about the PBS Frontline show "A Hidden Life".

Related review of book on teachers' legal rights and free speech rights (Feb 2007).

Follow-up: my last day as a sub in 2005.

Tuesday, November 07, 2006

Marshall-Newman "anti-gay marriage" amendment passes in Virginia

NBC4 is reporting as of about 10 PM Nov 7 that the Marshall-Newman amendment passed the referendum, which would amend the Virginia Bill of Rights to limit marriage to one man and one woman, and ban civil union benefits. You can verify results at this website.

However, the Commonwealth Attorney had provided the election board and voters (with hardcopy handouts at the polling places--I could not find this tonight on the web) with an explanation that maintains that the amendment will not preclude non-married couples from manually exercising their wishes, which such isses as
. durable medical power of attorney or advance medical directive in case a partner is incapacitated
. application of domestic violence statutes
. ability to enforce wills (which have to be specifically written in advance)
. ability to own real property with joint tenancy, with or without survivorship rights

With the other states,
Arizona rejected its gay-marriage ban amendment.
Seven other states (Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin) approved them. Colorado defeated its Amendment 1, which would have approved civil unions, AP Denver Post story by Colleen Slevin here.

The Washington Post, on Nov. 20, has a story by Sonya Gets, "New Tactic in Fighting Marriage Initiaites: Opponents Cite Effects on Straight Couples." In Arizona, many senior heterosexual couples do not marry because of the "marriage penatly" and fear loss of visitation rights and loss of other benefits if civil unions were forbidden. Proposition 107 was defeated 52%-48%.

On related stories, South Dakota rejected a ban on almost all abortions. In Missouri, a ballot measure to approve stem cell research barely won.

Monday, November 06, 2006

Rev. Ted Haggard and what his fall means

Right before the 2006 mid-term elections, the media has feasted over the fall of another religious right pundit, Rev. Ted Haggard from the New Life Church in Colorado Springs, CO, home of, as we know, Focus on the Family. Colleen Slevin has a major AP story on Sunday Nov 5, 2006.

There's not need to dwaddle here on the details. Of course we're concerned about the hyporcrisy, in a state where there are two amendments on the ballot by referendum concerning same-sex unions.

Haggard is shown in a media clip as saying that everyone should "find a partner of the opposite sex and make a lifelong commitment." Haggard himself was married with five children. All of this means that (in religious right views) it's not just that homosexual acts are wrong, there is a positive duty to carry on a biological lineage if biologically able. I saw this in the subjunctive mood, of course. This kind of comment ("be fruitful and multiply") does indeed come out of a mindset that looks for an external source of Truth (the Bible, or any scripture) that does not require independent intellectual verification by man.

That idea (of a moral obligation to be open to procreation, the way the Vatican talks about it, despite its own priests and nuns) has always been the center of my own concern. There is an existential mishmash of other concerns over the idea that, among men, homosexuality is a way (for a less "competitive" male) of rejecting your own biological family, of saying, through upward affiliation and a kind of self-abuse, that another lineage is superior. That is, one, like a free agent, wants to play on another team. One does not have the psychosexual drive and maturity to continue one's own lineage adequately. That's the impression I sometimes have of what I see in the writings of other conservatives, like in George Gilder's book Men and Marriage in the 1980s. I do understand the consersative Christian pseudo-claim that outflanking one's own competitive weaknesses with upward affiliation (instead of "turning to God" and Christ) could indirectly put other "non competitive" people (who depend on the automaticity of family connections) in a weaker position. When does one have to be his brother's keeper? The Gospels seem to say, pretty often.

But Haggard himself would refute, or at least complicate, this idea. After all, he did have a full home life with a wife and five kids. What was he looking for?

It's about more than just biological destiny. But in a mainstream church yesterday, a middle-aged married heterosexual Sunday school teacher said, "Marriage is a great institution. But as a young man, it was years before I was ready for it."

(Picture: Market St in downtown Philadelphia, PA; the COPA Child Online Protection Act) trial, which could affect LGBT websites, is going on the the James A. Byrne US Courthouse building on the right.)