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    Ann Rostow: NCLR to SCOTUS – Fix This

    1-Ann-RostowBy Ann Rostow

    NCLR to SCOTUS: Fix This

    I was struck by a headline the other day (November 18 if you want to nitpick) that read: “Supreme Court is Asked to Take Messy Interstate Case on Same-Sex Adoption.” The short article was written by veteran SCOTUS journalist Nina Totenberg, but as we all know, writers generally do not compose their own headlines, ergo Totenberg cannot be blamed.

    Blamed for what, you ask? Blamed for the adjective “messy” to describe one of the cleanest legal cases to descend on the GLBT community since marriage equality, that’s what. Yes, I’m sure that the war between the longtime lesbian partners known as VL and EL could be described as “messy.” But the decision by the Alabama Supreme Court to turn a blind eye to the legal adoptions performed by the courts in Georgia is anything but. Indeed, it is a very clear, simple and direct violation of the Full Faith and Credit Clause that requires sister states to honor “judgments.”

    Backing up for a minute, there was a time when many of us thought the Full Faith and Credit Clause would be used to oblige sister states to recognize same-sex marriages across borders. But we were all disabused of that belief years ago, when it became clear that marriage was not considered a “judgment” per se. Despite its seemingly broad language, the Clause basically covers court rulings, not things like marriage licenses. A divorce, for example, must be recognized from state to state. A marriage, up until the High Court’s marriage ruling last summer, not so much.

    But prior to their breakup, a judge in Georgia banged the gavel on adoptions that gave VL the status of parent to the three kids (two are twins) her partner carried through artificial insemination. And with that, VL became a legal mother. Not a de facto parent, not a sort of mother, not an aunt or friend of the family, but a legal mother to those children for all time and throughout the country and the world.

    Now, astonishingly, after two other Alabama courts agreed with the obvious state of affairs, the state’s highest court has ruled that the Georgia court misunderstood its own state law and that the adoptions were never valid. Keep in mind that it is not up to Alabama to mull over the decisions of a Georgia court. A federal court can do so, but a sister state cannot. There is nothing messy or complicated about the ruling of the Alabama supremes. It is jaw droppingly unconstitutional and outrageous.

    Here’s hoping the High Court agrees with VL’s counsel at the National Center for Lesbian Rights, who called the decision “terrifying.” VL is now barred from visiting the kids she has raised since birth, who are now between the ages of ten and twelve, but NCLR has asked the nine justices to suspend the Alabama order at once and allow visitation while litigation is pending.

    Sooner Justice

    By contrast, on November 17 the Oklahoma Supreme Court ruled that a lesbian had standing to argue for visitation or custody in a case where the woman in question had no adoption papers or technical status. Kimberly Sutton and Charlene Ramey got together over a decade ago, held a commitment ceremony of some sort in 2004, and had a child (by Sutton) in 2005. After breaking up, Sutton convinced a lower court that Ramey had no legal connection to their son, but the high court, taking into account the Supreme Court’s two marriage opinions, ruled that Ramey was acting “in loco parentis” and could seek a role in her son’s life through the family courts.

    We went through a long period of lesbians behaving badly back in the 90s and early 2000s, with dozens of cases of mean biological mothers fighting their desperate ex-partners through successions of courts and legal motions. I’m assuming that our sisters dominated these family feuds because more lesbians formed families, but who knows? Maybe our gay brothers put their kids’ happiness before their personal hostilities. (Nah. I’m sticking with theory number one.)

    I hope we are seeing the end of these prolonged battles in legal no-man’s land. One of the benefits of marriage equality is that we can now use the family court system just like our embattled heterosexual divorcing neighbors. There is no longer a need to make legal history each time we have a really nasty breakup with kids involved.

    Marriage Mop-Up Continues

    Meanwhile, marriage equality warriors continue to fight a few rear guard actions, but on the whole, it feels as if the country has accepted our new status and is willing to move along. The Mississippi Supreme Court reluctantly approved a lesbian divorce the other day, with two justices writing in dissent that the Supreme Court’s equality ruling was not worth spit.

    And I assume you read about that judge in Utah who decided on his own that two married women were not proper foster mothers and ordered their foster baby removed from their household during what was supposed to be a routine hearing of some sort. Happily, everyone complained from the governor on down, and the judge reversed himself. The baby stayed with the moms, but I guess the entire process is not complete, so we’ll see. The women were hoping to adopt the baby, whose father is in prison and whose mother has relinquished her maternal rights to the state.

    Tiki Bar Will Call You

    Mel and I are off on a road trip to South Padre Island, that little tip at the bottom of Texas, where the Internet tells me it is sunny and warm. But first, I must finish getting all of you up to date on GLBT news! If you were all here at my side, dear Readers, I would ask you if you really cared that much. Surely the above discussion of marital litigation was enough for you on a holiday week, when the trials and tribulations of our larger community are set on the back burner as the roasted turkey and sweet potato pie take center stove?

    OK, OK, I’ll keep going, if you insist. No matter that I won’t get to the beach until six pm. The piña colada will wait. My dearest cousin flew me to the Yale Harvard game last week, where discussions of micro-aggression and trigger warnings were conducted over Champagne and cheese biscuits by middle-aged lawyers and hedge fund managers at the various tailgates. I actually missed them because I got lost among the tailgates and my phone didn’t work, but after wandering aimlessly, one woman who had seen me earlier asked me if I found my friends (no) and if I wanted a drink (God, yes). I said I’d have whatever she was having and she promptly opened a bottle of Perrier Jouet Belle Epoque. (Okay, then!)

    Here in Austin, we tailgate with Lone Star, but I had no complaints except for the Yale football team, which humiliated the Eli fan base with a sad defeat. I indulged my streak of Ivy League and fine wine elitism, which adds nothing more than a colorful band to my otherwise politically correct liberal lesbian feminist credentials.

    Or does it? A recurring mental debate. 

    Occupy Police Station Bench

    Moving on, my favorite legal source, Art Leonard of NYU, reported on the case of a transman, Justin Adkins, who was arrested during the Occupy Wall Street protests, and initially tossed into a cell with a bunch of other guys. Nobody complained about the situation, but when the cops figured out that the prisoner was transgendered, he was pulled out of the cell and handcuffed to a bench for seven hours without food or care.

    Adkins filed suit against the city in federal court on a number of claims, most of which were dismissed. And here’s the big news. On his Equal Protection complaint, the judge ruled on November 15 that transgender plaintiffs should be evaluated under heightened scrutiny, placing the burden of proof on the city of New York rather than the plaintiff.

    The judge based his determination on the Windsor precedent. You remember, of course, that Edie Windsor was the New York widow who challenged, and defeated the Defense of Marriage Act before the Supreme Court. Her case went through the U.S. Court of Appeals for the Second Circuit, where the appellate panel ruled that a violation of Equal Protection based on sexual orientation should be evaluated with heightened scrutiny. Here, Judge Jed Rakoff (who is obliged to follow Second Circuit precedent) took the next logical step, ruling that the transgender community, like gays and lesbians, also qualifies for the same kind of legal evaluation that governs cases based on race or gender, where one “suspects” that discriminatory intent is at play.

    Why is this so important?

    Because as long as the GLBT community is not protected under federal law, and as long as courts refuse to acknowledge that discrimination runs beneath most of our civil rights complaints, we remain vulnerable to the whims and vagaries of the legal system. Once courts begin to agree that our cases deserve heightened scrutiny as a matter of law, that vulnerability is correspondingly replaced by strong protection.

    So this is good.

    Take These Guys Out!

    In the category of people we do not want to be gay, please add missing Paris terrorist Salah Abdeslam, who is rumored to frequent gay bars and smoke weed. Come on, man. You cannot be a member of our community. Plus, aren’t these jokers supposed to be super religious, abstaining from sex and booze and all things western? He also likes games on Playstation, so they say. Maybe some of his buddies will read the same article and toss him off a roof.

    Ann, did you just advocate summary execution for being gay?

    Um, yes. But only if you’re also one of the Paris terrorists.

    You know, it’s not as if religion is an excuse for mass murder, but they can’t even claim a faith-based motive. Remember how a number of the 9/11 killers spent their last nights living it up at clubs? Didn’t Bin Ladin have a porn stash? These guys are nothing but violent nihilists and I, for one, would like to see most of them end it all in a giant mass suicide staged in the middle of nowhere.

    By the way, when I was in high school and college, we used to call marijuana “dope,” a modern misnomer I discovered when I informed my niece I did “dope” all the time back in the day. I guess that means heroin, so it was an impressive claim until the definitions were sorted out.

    Random Thoughts

    What else is new? Let’s see. According to the Associated Press, a mob of protestors expressed outrage at the winner of Zimbabwe’s fourth annual “Mr. Ugly” contest, complaining the winner was only ugly because of his weird teeth. According to the Mr. Ugly rules, you have to be overall ugly, and your ugliness cannot rest solely on a disfigurement. In this case, 42-year-old Mison Sere won the crown, for the most part, based on facial expressions that featured his bizarre array of missing and skewed dentures. Left out in the cold was current champion, William Masvinu, who insisted that Sere was cheating.

    “I am naturally ugly. He is not. He is ugly only when he opens his mouth,” Masvinu charged.

    And in news of commercials I hate, I must include the ATT ads starring the self-satisfied young woman with her annoying monotone speaking style. I have to mute the TV whenever I see her coming with her not-funny remarks that are designed to amuse us. Designed by whom exactly? Who writes this stuff?

    Finally, on the subject of speaking styles, Martin O’Malley drives me nuts whenever he opens his mouth. He sounds like Demosthenes. Not after he became a great orator, but when he first started sucking on a bunch of pebbles.