October 10, 2008
Case Law development: Connecticut Supreme Court decides same-sex marriage case
The Connecticut Supreme Court has just released its opinion in the state same-sex marriage case, Kerrigan v. Commissioner of Public Health, SC 17716 (October 10, 2008), with three dissenting opinions.
The Court held the state's opposite-sex marriage requirement UNCONSTITUTIONAL under its state constitutional equal protection clause applying intermediate scrutiny.
October 8, 2008
Case Law Development: Trial Court follows dissent to allow co-parent claim
According to LawProf Art Leonard:
New York County Supreme Court Justice Harold B. Beeler has allowed NY Court of Appeals Chief Judge Judith Kaye's dissent in the 1991 case of Alison D. v. Virginia M. To guide his steps in ruling that a woman should have a hearing to attempt to establish that she is a “de facto parent” of the child born to her former same-sex domestic partner, who was also her New York City registered domestic partner and her Vermont civil union partner. Debra H. v. Janice R., No. 106569/080.
Professor Leonard's discussion of the case can be found at his blog, Leonard Link, here.
October 7, 2008
News: Domestic Violence and Asylum
A press release from the CENTER FOR GENDER & REFUGEE STUDIES at UC-Hastings College of Law entitled " New Ruling by Attorney General Mukasey May Endanger Rights of Women Asylum Seekers."
In a move that could change the course of protection of women asylum seekers across the country, Attorney General Michael Mukasey certified the case of Guatemalan asylum seeker, Matter of R-A- , to himself, overruling the decisions of two prior Attorneys General, Janet Reno and John Ashcroft.
The case involves the claim for asylum of Rodi Alvarado, who fled Guatemala after suffering more than a decade of brutal domestic violence in a situation where neither the police nor the courts responded to her pleas for protection.
According to Professor Karen Musalo, Ms. Alvarado’s attorney and director of the Center for Gender & Refugee Studies at U.C. Hastings, the case has been on hold since 2001. “Though we are glad to see some movement in the case, I am worried that that the current Attorney General is less sympathetic than his predecessors to the protection of women asylum seekers who flee brutal forms of persecution in countries where their governments will not protect them.”
Musalo explained that domestic violence is recognized as a legitimate basis for refugee protection by the United Nations High Commissioner for Refugees, as well as by countries around the world – including Canada, the United Kingdom, Australia and New Zealand; however its acceptance in the U.S. has been controversial.
Matter of R-A- has a convoluted legal history. In 1996 Ms. Alvarado was granted asylum by an immigration judge in San Francisco. In 1999 the Board of Immigration Appeals (BIA), the highest immigration tribunal in the country, reversed her grant of asylum and ordered her back to Guatemala. This decision mobilized thousands of women’s rights advocates, who successfully persuaded then Attorney General Reno to intervene. In response, A.G. Reno vacated the BIA’s decision in January 2001, and ordered the BIA to reconsider the case once regulations the Justice Department had proposed in 2000 were finalized.
In 2004 Attorney General John Ashcroft took jurisdiction over the case, and ordered lawyers for Ms. Alvarado and the Department of Homeland Security (DHS) to brief the case. Though the DHS itself recommended that Ms. Alvarado be granted asylum, without explanation, Attorney General Ashcroft did not rule on the case but sent it back to the BIA with the same order that his predecessor Janet Reno had – that the BIA reconsider the case once the regulations proposed in 2000 were issued as final. To this date, the proposed regulations have not been issued in final form.
In a surprise move on September 25, Attorney General Mukasey certified Matter of R-A- to himself, and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This means that the BIA can immediately begin to consider this decision, as well as many others that had been on hold waiting a BIA decision in Matter of R-A-.
Professor Musalo expressed concern about the Attorney General’s decision to eliminate the requirement that Matter of R-A- be decided under the authority of the proposed – but not yet finalized – regulations. “The proposed regulations were generally seen as a positive legal development, which recognized claims such as Ms. Alvarado’s,” Musalo explained.
The release is available here as a pdf.
RR (Thanks to Nate Treadwell for this lead).
Proposed Adoption Ban Opposed by Judges
Arkansas judges - - - well, a panel of 13 retired judges including retired justices from the state's highest court - - - said they are opposed to a ballot measure banning unmarried persons from becoming foster or adoptive parents.
The news report by Andrew DeMillo in Arkansas' Baxter Bulletin.com is here.
October 6, 2008
Polygamy is a "hot topic" in family law scholarship (as well as in the popular media). A few great looking articles with their SSRN abstracts:
Abstract: Legal doctrines banning polygamy grew out of nineteenth century Americans' view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine's famous observation that the move in progressive societies is "from status to contract." It frames antipolygamists' contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was "natural" for people of color but so "unnatural" for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said's concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority.
"Polygamists Out of the Closet: Statutory Prohibitions Against Polygamy are Unconstitutional Under the Free Exercise Clause as Currently Interpreted"
KEITH SEALING, University of Louisville Brandeis School of Law
Abstract: The Romer v. Evans colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy cases to the more current debate over gay rights and same-sex marriages was of more than academic interest to the estimated 25,000 to 50,000 Fundamentalist Mormon practitioners of polygamy, as well as the nearly 1,000 Christian polygamists, and Islamic and African practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era. Part I of this Article first discusses at the Romer v. Evans colloquy. Part II briefly explores the history of the mainstream Mormon Church including its adoption and later repudiation of polygamy. Part II also examines non-Mormon polygamy. Part III considers the scriptural basis for polygamy. Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent. Part V explores modern Free Exercise Clause jurisprudence and legislation. Part VI argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim. Second, under Church of the Lukumi Babalu Aye v. City of Hialeah, the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.
PENELOPE ANDREWS, Valparaiso University School of Law
Abstract: This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.
October 5, 2008
Secrecy in Child Welfare Questioned
Responding to a recent incident in which children were found dead in their adoptive mother's home, the Washington Post's Marc Fisher argues for "transparency" of child welfare records. (last visited by MIF 10-05-08)