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Arizona Supreme Court Holds Parental Presumption Applies to Lesbian Married Couples

Posted on: September 19th, 2017 by Art Leonard No Comments

 

Resolving a difference of views between two panels of the state’s intermediate Court of Appeals, the Arizona Supreme Court ruled on September 19 that state statutes providing that the husband of a woman who gives birth to a child after undergoing donor insemination with the husband’s consent is a legal parent of the child must extend equally to the wife of a woman who gives birth to a child after undergoing anonymous donor insemination with her wife’s consent. The ruling in McLaughlin v. McLaughlin, 2017 WL 4126939, is a logical application of the U.S. Supreme Court’s June 26, 2017, ruling in Pavan v. Smith, which dealt affirmatively with the related question whether a state must recognize the parental status of a same-sex spouse by listing her as a parent on the child’s birth certificate, and of course was ultimately governed by the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

The Supreme Court made clear in Pavan that the constitutional right for same-sex couples to marry, earlier recognized by the Court in Obergefell in 2015, is not just about the right to marry and have other states recognize the marriage, but also about the right to enjoy all the benefits and be subject to all the obligations of marriage on an equal basis with different-sex couples.  Applying this principal to an Arizona parentage statute that, by its terms, only applies to the parental rights of men, the Arizona court adopted a gender-neutral construction of the statute, rejecting the argument by one partially dissenting judge that correcting the statute’s constitutional flaw should be left to the legislature.

Kimberly and Suzan were married in California in 2008, during the five-month period between the California Supreme Court’s In re Marriage Cases decision and the adoption of Proposition 8, which enacted a constitutional amendment limiting marriage to different-sex couples.  The California Supreme Court subsequently ruled that the same-sex marriages contracted during that five-month period, such as the McLaughlin marriage, were fully valid under California law.  The women decided to have a child together.  Suzan went through donor insemination, but unsuccessfully.  Kimberly then went through the procedure and became pregnant.  They moved to Arizona during the pregnancy.

Before the birth of their child, they signed a joint parenting agreement in February 2011, in which they declared that Suzan would be a “co-parent” of the child, stating: “Kimberly McLaughlin intends for Suzan McLaughlin to be a second parent to her child, with the same rights, responsibilities, and obligations that a biological parent would have to her child” and that “should the relationship between us end, it is the parties’ intention that the parenting relationship between Suzan McLaughlin and the child shall continue with shared custody, regular visitation, and child support proportional to custody time and income.” State courts generally take the position that such parenting contracts, while evidence of the intent of the parties, is not binding on the court in a subsequent custody determination during a divorce, where the court’s legal role is to determine custody and visitation issues based on the court’s evaluation of the child’s best interests. The women also executed wills naming Suzanne as a part of the child, a boy who was born in June 2011.

Kimberly, a doctor, worked to support the family, and Suzan stayed at home to care for the baby. By the time the child was almost two years old in 2013, the women’s relationship had deteriorated and Kimberly moved out with the child, cutting off Suzan’s contact with her son.  Suzan then filed petitions in state court seeking dissolution of the marriage and legal decision-making and parenting time with the child.  She couldn’t file for a divorce, because Arizona did not recognize same-sex marriages at that time.  She included a constitutional challenge to the state’s anti-gay marriage laws in her lawsuit, and the state intervened to defend its laws.

While Suzan’s case was pending, a federal district court in Arizona declared the state’s same-sex marriage ban unconstitutional, a result upheld by the 9th Circuit Court of Appeals, and the Supreme Court subsequently denied in November 2014 an attempt by other states in the circuit to get the 9th Circuit’s marriage equality rulings reversed.  Of course, on June 26, 2015, the U.S. Supreme Court’s marriage equality ruling in Obergefell made clear that Arizona would have to recognize Suzan and Kimberly’s California marriage under its divorce and custody laws.  The state dropped its intervention in the case, and Suzan’s lawsuit turned into a divorce case.  But the question remained about her status as a parent to the child, to whom she is not biologically related.

The trial judge in Pima County, Lori B. Jones, confronted a parentage statute stating that “a man is presumed to be the father of the child if he and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated.” The parental status under the statute is legal, not biological, although a man could rebut the legal presumption by showing that another man was the biological father or that his wife had conceived through donor insemination without his consent. However, the Arizona laws made clear that if a husband consented to his wife’s donor insemination, he would be presumed to be the child’s legal father.  The problem was the gendered language of the statute.

Wrote Arizona Supreme Court Chief Justice Scott Bales in describing the trial court’s reasoning in ruling in favor of Suzan, “Based on Obergefell, the court reasoned that it would violate Suzan’s Fourteenth Amendment rights not to afford her the same presumption of paternity that applies to a similarly situated man in an opposite-sex marriage.”  Judge Jones also concluded that in this kind of case the birth mother should not be allowed to attempt to rebut the presumption where it was undisputed that her same-sex spouse had consented to the insemination process and would be obligated to contribute to the support of the child.

Kimberly sought relief from the court of appeals, which was denied. That court both agreed with Judge Jones’ reasoning on the Fourteenth Amendment issue and further reasoned that Kimberly should be “equitably estopped from rebutting Suzan’s presumption of parentage.”  Equitable estoppel is a legal doctrine that courts invoke to prevent a party from attempting to assert a legal right that would be contrary to their prior representations and actions.  In this case, since Kimberly consented to the insemination and contracted with Suzan to recognize her full parental rights toward the child, she could not now turned around and attempt to avoid those actions by showing that Suzan was not the child’s biological father, which Suzan clearly is not.

After the court of appeals issued it opinion in this case, a different division of the state’s court of appeals released a contrary ruling in Turner v. Steiner, 242 Ariz. 494 (2017). By a 2-1 vote, that court “concluded that a female same-sex spouse could not be presumed a legal parent [under the statute] because the presumption is based on biological differences between men and women and Obergefell does not require courts to interpret paternity statutes in a gender-neutral manner.”

The Arizona Supreme Court granted Kemberly’s petition to appeal the court of appeals ruling because application of the parentage statute to same-sex marriages “is a recurring issue of statewide importance.”

Chief Justice Bales’s opinion for the court made clear that one could easily resolve this dispute in favor of Suzan without even referring to the recent U.S. Supreme Court decision in Pavan, because the earlier Obergefell opinion by Justice Anthony Kennedy addressed all the salient issues in very clear language.  The idea that Obergefell required only that states allow same-sex couples to marry and recognize as valid legally-contracted same-sex marriages from other states was contrary to the language and reasoning of the Supreme Court.  “In Obergefell,” wrote Bales, “the Court repeatedly framed both the issue and its holding in terms of whether states can deny same-sex couples the same ‘right’ to marriage afforded opposite-sex couples.”  For example, quoting from Kennedy’s opinion: “The Constitution does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,” and further, wrote Bales, “noting harms that result from denying same-sex couples the ‘same legal treatment as opposite-sex couples.’”  In particular, the Supreme Court had emphasized the importance to children of same-sex couples have equal recognition of their families.

“Such broad statements reflect that the plaintiffs in Obergefell sought more than just recognition of same-sex marriages,” wrote Bales, noting that the Michigan plaintiffs in one of the cases consolidated before the Court were a same-sex couple who sought to marry to secure the parental status of both of them to the children they were jointly raising, and, continued Bales, “the benefits attendant to marriage were expressly part of the Court’s rationale for concluding that the Constitution does not permit states to bar same-sex couples from marriage ‘on the same terms.’  It would be inconsistent with Obergefell,” he continued, “to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.”  The subsequent decision in Pavan, the Arkansas birth certificate case, just drove home the point in the specific context of parental status and rights.

The Arkansas Supreme Court concluded that the benefit of the parental presumption that is enjoyed by the spouse of a woman who gives birth is one of the “benefits of marriage” that must be equally afforded to same-sex couples. It rejected Kimberly’s argument, similar to that of the other panel of the Arizona Court of Appeals, that the statute dealt only with biological parentage.  This was never a particularly logical argument, since the overall statutory scheme in Arizona extended the parental presumption to situations where the man was not the child’s biological father, making it conclusive when he had consented to his wife’s insemination with donor sperm.

The court then faced the question whether the statute should just be struck down as unconstitutional, terminating any parental presumption, or extended through a gender-neutral interpretation to apply to same-sex couples. The court decided that extending the statute was more in line with the legislature’s overall purpose than would be striking it down.  The goal, after all, was to support families and solidify parent-child ties, which was best achieved by extending the parental presumption to lesbian couples.  Thus, the court vacated the decision of the court of appeals and affirmed the decision of Pima County Superior Court Judge Jones, upholding Suzan’s parental status and rights, with details to be worked out in the trial court, hopefully by agreement of the ex-spouses.

The court lost one member on this last point, as Justice Clint Bolick argued in partial dissent that the court was exceeding its role by improperly reinterpreting statutory language to cure the constitutional problem. “The marital presumption that the majority finds unconstitutional and rewrites is not, as the majority characterizes it, a ‘state-benefit statute,’” he insisted.  “Rather, it is part of an integrated, comprehensive statute that serves the highly important and wholly legitimate purpose of providing a mechanism to establish a father’s rights and obligations.”  Viewed on its own, he insisted, it was not unconstitutional.  “A paternity statute does not offend the Constitution because only men can be fathers,” he said, pointing to another opinion by Justice Kennedy in a case upholding different rules for determining a child’s U.S. citizenship based on the citizenship of the mother or the father in a marriage between citizens of different countries.  The majority had rejected Kimberly’s reliance on this decision, but Bolick contended that “it is not the paternity statute that is unconstitutional, but rather the absence of a mechanism to provide parenthood opportunities to single-sex couples on equal terms appropriate to their circumstances.”  He would leave it to the legislature to fix the problem.  Bolick would send the case to the trial court to be decided without any parental presumption, presumably (since he doesn’t spell it out)  leaving the trial court to determine whether it was in the best interest of the child for the woman who was formerly married to the child’s birth mother to have decision-making and visitation rights.

Suzan is represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, argued the case in the Arizona Supreme Court, assisted by staff attorneys Emily Haan and Catherina Sakimora, with local counsel Claudia D. Work of Campbell Law Group in Phoenix. Kimberly is represented by Keith Berkshire and Erica L. Gadberry of Berkshire Law Office in Phoenix.   Several amicus briefs were filed with the court, including briefs from the ACLU, a University of Arizona law school clinic, and a group of Arizona Family Law Practitioners.

NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.

The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.

The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016).  In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits.  That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell.  They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition.  They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.

NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination.  In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born.  In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother.  The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.

The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate.  That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers.  The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly.  The trial court refused to stay its decision pending appeal, so the certificates were issued.

The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose.  However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons.  This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.

The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right.  Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children.  In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages.  Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!

Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry.  Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child.  By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment.  And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws.  In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.

NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel.  Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case.  Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges.  GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.

9th Circuit Rejects Constitutional Challenge to California Ban on Conversion Therapy for Minors

Posted on: August 29th, 2013 by Art Leonard No Comments
California Senate Bill 1172, which bans state-licensed mental health providers from conducting “sexual orientation change efforts” (SOCE), commonly known as “conversion therapy,” on patients who are under age 18, was scheduled to go into effect on January 1, 2013, but two lawsuits challenging its constitutionality, mainly on First Amendment free speech grounds, were filed by practitioners and others, leading to conflicting rulings on motions for preliminary relief.   On August 29, a 9th Circuit panel, ruling in a consolidated consideration of appeals from the two district court rulings, held that S.B. 1172 survived the constitutional challenges presented to the court, and remanded the two cases to the respective district court judges for further consistent proceedings.  Most significantly, the court ruled that the practice of SOCE, even though it mainly involves talking by the therapist and patient, is not “speech” protected by the First Amendment, but rather a medical practice that incidentally involves speech.  Pickup v. Brown, 2013 U.S. App. LEXIS 18068, 2013 WL 4564249. 

Writing for the court, Circuit Judge Susan P. Graber began by providing a brief history of SOCE and summarizing the views of professional associations in mental health and related fields.  SOCE efforts date from a time when it was widely believed that homosexuality was a form of mental illness requiring a cure, and both “aversive” and “non-aversive” methods were tried to attempt to change an individual’s sexual orientation.  Among the most controversial aversive methods were lobotomies, shock treatment, and induced nausea.  These have been disavowed by most contemporary practitioners of SOCE, including the plaintiffs in these cases, who assert that their treatments rely almost entirely on speech.  As such, they claim a First Amendment right to be free of state regulation of the treatments.   Since the American Psychiatric Association voted in 1973 to remove homosexuality from its published list of mental disorders (the Diagnostic and Statistical Manual), other major professional health organizations have followed suit, and having declared that homosexuality is not a mental illness, the mainstream mental health professions have rejected SOCE as unnecessary and ineffective.  Furthermore, based mainly on anecdotal evidence, which was considered by California legislators when they enacted S.B. 1172, the professional associations now condemn SOCE as potentially harmful to patients.

The legislation does not impose criminal penalties on therapists for providing SOCE to minors, but as a matter of regulation mandates that such treatment not be provided by licensed therapists and makes it a basis for loss of a license for unprofessional conduct.  Judge Graber points out that the law leaves licensed therapists free to talk about SOCE, to recommend it to their minor clients (who would have to go out of state to receive such “treatment” from a licensed professional), to advocate it publicly, and event to refer a minor to a non-licensed individual such as a religious authority.  However, if they want to provide such treatment themselves, they must either “wait until the minor turns 18 or be subject to professional discipline.”  Thus, in the court’s view, the law “regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.”

Regulations of conduct are treated differently from regulations of speech.  The plaintiffs argued that because the treatment consisted mainly of speech, the strict rules worked out by the courts to protect speech under the First Amendment should apply, putting a high burden on the legislature to justify this restriction.  The court disagreed, finding that past cases had drawn a distinction between mental health treatment and speech.  “We distill the following relevant principles” from prior cases, wrote Graber: “(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administer treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.”

“Because SB 1172 regulates only treatment,” wrote Graber, “while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental.  Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it ‘bears a rational relationship to a legitimate state interest.’”  As to that, “protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts” was the interest stated by the legislature, and the court found that “protecting the well-being of minors is a legitimate state interest.”  Did legislators have a rational basis for concluding that this law could advance such an interest?  Surely yes, in light of the evidence considered by the legislature about the ineffectiveness of SOCE and its harmful effects.

The legislature relied heavily on a report compiled by an American Psychological Association Task Force, as well as formal resolutions adopted by “many other professional associations.”   With few exceptions, the mainstream of professional organizations in the medical and mental health fields has arrived at “the overwhelming consensus” that “SOCE was harmful and ineffective.”  Wrote Graber, “On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus.”

The court also disposed of various other arguments plaintiffs had raised.  It found that the relationship of doctor and patient did not amount to an “expressive association” meriting constitutional protection, that the measure was not unduly vague or overly broad, and that it did not abridge the fundamental rights of parents regarding the upbringing of their children.  “Although the plaintiffs argue that they cannot ascertain where the line is between what is prohibited and what is permitted – for example, they wonder whether the mere dissemination of information about SOCE would subject them to discipline – the text of SB 1172 is clear to a reasonable person.”

“Moreover,” Graber pointed out, “considering that SB 1172 regulates licensed mental health providers, who constitute ‘a select group of persons having specialized knowledge,’ the standard for clarity is lower.” 

As to the overbreadth argument, Graber reiterated that the effect of the law on speech was incidental to its regulation of medical practice, and “any incidental effect,” she wrote, “is small in comparison with the ‘plainly legitimate sweep’ of the ban.”

Finally, as to parental rights, she pointed out that the state has been upheld in a variety of contexts in imposing or prohibiting particular medical treatments.  For example, compulsory vaccination schemes have been upheld over the protest of parents, and the courts have stepped in to mandate medical treatments that were rejected by parents on religious grounds.  “We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful,” Judge Graber wrote, “but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.”  Clearly, parents’ rights concerning treatment for their children would not be greater than their rights concerning their own treatment.

Although it seems likely that the plaintiffs will seek further review, it is unlikely that the 9th Circuit would agree to delay further the implementation of the law pending such an appeal.

In addition to attorneys from the Attorney General’s Office, the law was defended by intervenors represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, participated in the oral argument before the 9th Circuit.  The case attracted amicus briefs from a wide range of professional groups, and all the major LGBT rights organizations participated in some form in the case.  The court’s decision may prove influential outside the 9th Circuit, as a legal challenge gets underway in New Jersey to a similar statute recently signed into law by Governor Chris Christie.