Friday, June 30, 2006

Does Virginia Marriage Amendment Go To Far - 1

Opponents of the Virginia Marriage Amendment often claim the amendment goes "far beyond" protecting marriage. They use the Ohio Marriage Amendment as the example of how the amendment will evicerate rights far beyond the marriage covenant -- usually based on a misreading of one appeals court ruling which wouldn't apply to Virginia in any case.

But does Ohio's ban spell discrimination in that state? In the latest ruling related to the amendment, a court has ruled that the Ohio marriage amendment cannot be used to deny visitation rights to a parent who has entered a same-sex relatonship.

From the Cincinatti Post, "Ruling: Gay marriage ban doesn't nix custody":

COLUMBUS - A mother plans to appeal a magistrate's decision that she cannot use the state's constitutional ban on gay marriage to take away her former partner's visitation rights, the mother's lawyer said Thursday.
"Granting custody of a minor child to a nonparent is done every day," Krippel wrote in the June 22 opinion. "The granting of custody to these nonparents is not against public policy."
The ruling makes clear that granting custody is not related to defining a marriage, said Camilla Taylor, an attorney with Lambda Legal Defense and Education Fund, a gay rights legal advocacy group representing Leach.

It shows "you can't use a constitutional amendment as a weapon to attack a cherished relationship between a child and an adult that that child considers a parent," Taylor said.

As well you shouldn't.

There are principled people in this state who support gay marriage, and want to defeat the Virginia Marriage Amendment. Their arguments are weakened when others appeal to irrational fear of "unintendend consequences". Arguments are best fought on their own merits.

In this particular case, the child was the offspring of a homosexual couple. And why did this couple have joint custody rights? from the article:

At Fairchild's request, the Franklin County Domestic Relations Court gave Leach parenting rights in 2001, saying the women "shall be treated in the law as two equal parents of their minor child."

They sought the agreement so Leach could make medical decisions for the boy in Fairchild's absence, Fairchild said.

These two people were in love, and wanted to raise a family. They received protection to make medical decisions that was legally binding, and the Ohio amendment, which is essentially the same as Virginia's amendment, had no effect on that agreement to provide for medical decisions. A good thing to remember the next time you hear otherwise in the next few months -- and I'm sure you will.


David said...

Charles, I join you in celebrating this compassionate and pro-family ruling.

Where I would caution you, however, is in thinking that the fear of horrible rulings, like the one in Ohio that has resulted in unmarried domestic violence victims being denied protective orders, is misplaced.

You may be unaware that, in the campaign to adopt the Ohio amendment, the amendment's proponents were making the same argument that you are making here, that these concerns were misplaced and merely a fear tactic.

After the passage of the amendment, those same proponents (Citizens for Community Values) filed an amicus brief in the domestic violence case to which you refer, arguing that unmarried domestic violence victims should not be protected under Ohio's domestic violence laws, and that such protection was now in violation of the constitution.

Just a word to the wise, for what it's worth.

NOVA Scout said...

Of course, the fact thath they had to argue about it in court, never an edifying or cost-free experience) was because someone had invoked the lnaguage to make the opposite point. It's always nice to win, but it's much better not to have to invoke judicial machinery to sustain human contact with a minor child. It sounds like the story has not ended, given the apparent determination of the losing partner to pursue an appeal.

Of course the same issue might get decided differently by different magistrates in different locations. The fact is that I have read comments from Virginia blogggers defending the sweep of the proposed amendment on the very grounds here at issue: that it will prevent homosexual adoptions or foster care arrangements by homosexual couples. Doesn't mean out judges would interpret it that way, but it's hard to say it's not a real issue when it's being advanced by proponents of the amendment as a good argument for voting YES.

David said...

A Virginia judge has already interpreted HB 751 to override a federal law intended to prevent jurisdiction shopping in custody cases, saying that his application of the law was exactly what it was intended for - invalidating the parental rights granted by another state.

The proposed amendment extends the reach of HB 751 to heterosexual couples as well.

Charles said...

Things can get complicated with the new arrangements. In this case a female was impregnated by a sperm donor, so the child never knew his father. At birth a second unrelated woman was granted joint custody.

When the women separated, the biological mother did not want the unrelated woman involved anymore, and tried to use the Ohio marriage amendment to achieve that aim.

If the father had simply been unknown, and later had argued successfully that his rights had been deliberately violated by the mothers, the father may have had rights (unrelated to the marriage amendment) to claim joint parental control over the child, notwithstanding the contracts signed by the women.

The law still rightly provides some presumption of biological parenting being the natural and preferred order, something that on the margins is being eroded on many fronts, including gay couples, single mothers, single fathers, infertile couples, etc.

One fear is that someone can successfully argue that the "important" thing for the child is being with whoever happens to have been there first for them, or the parents who are best at the job, or any criteria other than the presumption of preference for biological parents, you immediately raise a valid question of why anybody gets "possession" of a child simply because of biology.

In other words, if expediency or sociological factors lead to the blurring of distinction of biological parentage, we may lose the presumption we count on for societal stability.

And since special interest groups have put tremendous pressure on society to avoid value judgments of what might be "better", simply to avoid the problem of some children finding they are in a less than optimal arrangement, we may let those purely socio-political decisions trump reality.

If we convince a generation of children that ANY family is just as good as any other family, the next generation may not prefer the natural order of biological parenting.

Already there are many in the "forefront" of societal change that will find fault with the suggestion that biological parenting is natural or preferred. After all, if you acknowledge that a child raised by biological parents is the "best", you have to acknowledge that people who for whatever reason pursue other arrangements are not doing what is "best" for the children.

David said...

Wait a minute. You make no distinction here between what is "best" theoretically for "a child," and what is best for a real, individual child in the real world. In a case (and unfortunately there are many) in which it's not in the best interests of a child to be raised by their biological parents, which has the greater force of reality? The socio-political decisions you so easily dismiss are based precisely on reality - the reality of the child in that situation.

I find myself constantly pointing out the distinction between abstraction and material reality in these discussions. This is about real people in real families, not an abstract model of what a family "should" look like. The needs of real people always trump abstract ideals.

Having said that, I appreciate your willingness to thoughtfully engage, and your comment raises good points about the complexity of family law. I certainly don't intend to suggest that there are easy answers to these inherent conflicts.