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Supreme Court Denies Review in Two LGBT-Related Cases on First Day of New Term

Posted on: October 22nd, 2019 by Art Leonard No Comments

The Supreme Court announced on October 7 that it was denying review in two LGBT-related cases: Frank G. v. Joseph P. & Renee P.F., No. 18-1431, a New York case, and Calgaro v. St. Louis County, No. 19-127, a Minnesota case from the 8th Circuit Court of Appeals.  The more significant decision is to deny review in the Frank G. case.

In Frank G., 79 N.Y.S.3d 45 (N.Y. App. Div. 2018), the New York 2nd Department Appellate Division upheld a decision by an Orange County Family Court judge to award custody of twin boys to the former same-sex partner of the children’s biological father, and the New York Court of Appeals denied review.

The children’s biological mother, Renee, is the sister of Joseph P., the former same-sex partner.  Frank G., the biological father, had moved with the children to Florida without notifying Joseph P., who had a closely-bonded relationship with the children even though the fathers were no longer living together.  Joseph P. sued to be appointed a guardian of the children, at a time when the Court of Appeals had not yet recognized the parental status of same-sex partners.

After the Court of Appeals ruled in Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), that same-sex co-parents could be recognized as having the same parental rights and standing as biological or adoptive parents in certain circumstances, even if they were not married to the biological parent or had not adopted the children, Joseph P. amended his complaint to seek custody.

Orange County Family Court Judge Lori Currier Woods evaluated all the relevant circumstances and decided that the children’s best interest would be served by awarding custody to Joseph P. and according visitation rights to Frank G.   She did not find that Frank G. was “unfit”, but instead placed both fathers on equal standing and then considered which one would provide the preferable home for the twins.  Relying on Brooke S.B., the Appellate Division affirmed.  Frank G. tried to appeal this ruling to the Court of Appeals, arguing that his Due Process rights under the 14th Amendment of the U.S. Constitution were violated by the lower courts’ opinion, but the Court of Appeals refused to hear his appeal.

In past cases, the Supreme Court has recognized as a fundamental right the liberty interest of biological parents in the care and raising of their children.  In his Petition to the Supreme Court, Frank G. argued that this liberty interest was violated when he was deprived of custody in favor of a co-parent based on a “best interest of the children” analysis without any finding that he was unfit or unqualified to have custody.

The Petition argued to the Supreme Court that the case had national significance and needed a Supreme Court ruling, because various state courts have disagreed about how to handle parental custody claims by unmarried same-sex partners of biological or adoptive parents.  Since the Supreme Court is most likely to grant review in a case that presents important constitutional questions about which lower courts are divided, it seemed highly likely that the Court might decide to review this case.  The likelihood was enhanced because Frank’s petition was filed by Gene Schaerr, a former clerk of Chief Justice Warren Burger and Justice Antonin Scalia and a prominent anti-LGBT lawyer and partner in a Washington, D.C., firm that frequently litigates in the Supreme Court.  Furthermore, several amicus briefs were filed in support of the Petition, urging the Court to reaffirm the traditional doctrine that biological parents who are not found to be “unfit” always have custodial preference over persons who are not related to their children by biology or adoption.

Had the court taken this case, the current conservative majority might abrogate Brooke S.B. and similar decisions from other states that have been important precedents according equal standing to same-sex parents.  The denial of review means the law can continue to develop in the lower courts for now without intervention by the Supreme Court, which is at least a temporary victory for LGBT rights advocates.

The denial of review in the other case, Calgaro v. St. Louis County, 919 F.3d 1054 (8th Cir. 2019), was expected, since the conservative 8th Circuit found no merit to Anmarie Calgaro’s claim that she should be entitled to damages from individuals and institutions that had assisted her child, a transgender girl, when she decided to leave her unsupportive home before she had reached age 18 in order to transition.  Calgaro argued unsuccessfully in the federal district court in Minnesota and before the 8th Circuit that her constitutional rights as a mother were violated when the county and its public health director, the local school district and high school principal, and other private institutions respected her child’s wishes and kept Anmarie in the dark about where her child was living.  She also objected to being excluded from decisions about her child’s transition.

Of course, the case raises important issues, but the Supreme Court has shown great reluctance to get involved with cases that are effectively moot, and in this case E.J.K., the child in question, has long passed the age of 18, thus achieving adult status under Minnesota law and being entitled to emancipate herself from control by her parent.  Calgaro is represented by the Thomas More Society, a Catholic lawyers group that generally focuses on religious free exercise cases, occasionally in opposition to LGBT rights.  E.J.K. is represented by the National Center for Lesbian Rights.  Two conservative groups filed amicus briefs urging the Court to take the case.