Family Law Prof Blog

LGBT - Elder Law Scholarship

"LGBT Elder Law: Toward Equity in Aging" by Nancy Knauer of Temple U will be published in the next volume of Harvard Journal of Law and Gender.  Here's the abstract from ssrn:

This Article argues for broad based reform to ensure equity in aging regardless of sexual orientation or gender identity. At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal.

The concerns of LGBT elders have not been well represented by the existing ethnic model of LGBT identity that emphasizes the positive and heteronomative aspects of LGBT lives and seldom foregrounds points of difference or intersecting identities. The concerns of LGBT elders require a more nuanced theory of LGBT identity and advocacy -- one that extends over an individual's lifespan, incorporates pre-Stonewall LGBT history, and confronts difficult issues head on, including ageism and internalized homophobia. It must embrace not only the sameness of LGBT individuals, but also their differences. For example, LGBT elders frequently rely on single generational "chosen families" to provide support and care. The recognition of same-sex relationships, while important to LGBT elders, would not be sufficient to address this concern. This Article examines the three signature issues of the LGBT equality movement (same-sex marriage, ENDA, and Don't Ask, Don't Tell) from the perspective of LGBT elders. It then compares these issues to three distinct areas of concern for LGBT elders: the legal fragility of chosen family, financial insecurity, and the availability of LGBT-positive housing and eldercare.

The current ethnic model of LGBT identity has a strong essentializing tendency that presumes a sameness among LGBT individuals. Queer theory, critical race theory, and feminist theory have all produced sustained critiques of this tendency. The study of LGBT elders adds another dimension to this critique because the essentializing impulse of the ethnic model also obscures an important generational element. The pre-Stonewall generation is not the same as their "out and proud" post-Stonewall progeny. Their identities were formed at different times and under dramatically different circumstances. Thus, LGBT identity as it is lived and experienced is not only multivalent, it is also historically contingent.

RR

conference - ADOPTION

Save the Date!
Sixth Annual
Adoption Policy Conference

Friday, March 6, 2009
New York Law School
New York, New York

On Friday, March 6, 2009, the Center for Adoption Policy, New York Law School's Justice Action Center, and Harvard Law School's Child Advocacy Program will cosponsor the Sixth Annual Adoption Policy Conference, Intercountry Adoption After the Hague Conference: Crisis or Culmination. The Conference will examine the state of International Adoption to and from the United States one year after the effective date of the Hague Convention on Intercountry Adoption in the U.S. While the Conference stands alone, it builds on issues discussed at a working group session on Intercountry Adoption that was held at Harvard Law School on January 25, 2008. More information will be available at www.nyls.edu/adoption as the conference date approaches.

conference

Some interesting family law issues here:

"Gender and the Law: Unintended Consequences, Unsettled Questions"

Thursday, March 12, 2009–Friday, March 13, 2009
Thursday 2–5 p.m., Friday 9 a.m.–5:30 p.m., Radcliffe Gymnasium, 10 Garden Street, Radcliffe Yard,  Harvard
617-495-8600

This event is free and open to the public. Registration is required and begins on January 30, 2009.

Unsettled questions of gender and the law present a broad range of challenges in courtrooms, legislatures, and everyday lives. Laws meant to protect or promote gender equality may have unintended consequences, and laws that seem irrelevant to gender may nonetheless significantly impact gender issues. This conference will convene judges; legal practitioners; and scholars of law, the humanities, and the social sciences from around the world to explore the ways in which legal regulations and gender influence each other. From varying historical and cultural perspectives, participants will address legal encounters with gender in the essential spaces of daily life: the body, the home, school, work, the nation, and the world.

Schedule

Thursday, March 12, 2009

Session I: Justice Ruth Bader Ginsburg in Conversation with Linda Greenhouse ’68

Session II: Gender and Schooling

Panel Moderator: Martha Minow (Harvard University, Law)
Sandra Lea Lynch (US Court of Appeals, First Circuit)
Katharine Bartlett (Duke University, Law)
Lenora Lapidus (American Civil Liberties Union)
Kimberly Jenkins Robinson (Emory University, Law)

Friday, March 13, 2009

Session III: The Market, the Family, and Economic Power

Panel Moderator: Janet Halley (Harvard University, Law)
Beshara Doumani RI ’08 (University of California at Berkeley, History)
Vicki Schultz (Yale University, Law)
Gillian Lester (University of California at Berkeley)
Chantal Thomas (Cornell University, Law)

Roundtable Moderator: Margaret H. Marshall (Supreme Judicial Court of Massachusetts)
Lisa Duggan (New York University, History)
Sharon Rabin-Margaliot (Interdisciplinary Center, Israel; Law)
Mona Zulificar (Shalakany Law Office, Egypt)
Alice Kessler-Harris RI ’02 (Columbia University, History)
Philomila Tsoukala (Georgetown University, Law)
Ying Sun (Training, Auditing, and Organizational Systems; China)

Session IV: Gendered Bodies, Legal Subjects

Panel Moderator: Jeannie Suk (Harvard University, Law)
Kendall Thomas (Columbia University, Law)
Judge Cecelia Medina Quiroga (Inter-American Court of Human Rights)
Karen L. Engle (University of Texas at Austin, Law)
Hauwa Ibrahim (2008–2009 Radcliffe fellow, Aries Law Firm, Nigeria)

Session V: Gendered States of Citizenship

Panel Moderator: Jacqueline Bhabha (Harvard University, Law and Public Policy)
Linda K. Kerber (University of Iowa, History)
Ayelet Shachar (University of Toronto, Law)
Brenda Marjorie Hale (House of Lords)
Lauren Berlant (University of Chicago, English)
Reva Siegel (Yale University, Law)

RR

The Crimes of Family Status

Punishing Family Status, 88 B.U. L. Rev. 1327 (2008), by Jennifer M. Collins (Wake Forest), Ethan J. Leib (UC-Hastings), and Dan Markel (FSU), is a thoughtful new article linking the ways in which family status interacts with the criminal justice system.  They contend:

Certain crimes permit prosecution of a defendant for conduct that would otherwise be lawful in the absence of the defendant's familial connection to the crime. Incest statutes generally proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a private debt. We focus on statutes for certain omissions and parental responsibility liability, incest, bigamy, adultery, and nonpayment of child and parental support. In all these examples, state-determined familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct.  Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system's decision to criminalize certain conduct on the basis of family status.

Id. at 1334-5. 

While they limit some of the constitutional ramifications of their research and arguments, they do provide a very provocative argument for rigorous judicial review:

While we do not make the constitutional claim that family status should be a suspect classification worthy of strict scrutiny, we do believe that, as a policy matter, the government should be skeptical of the use of family status. In other words, to use the language of equal protection analysis without making the constitutional claim, the objective of the government should be at least "important" and perhaps "compelling," and the means adopted to pursue that objective should be "narrowly tailored" to achieve that objective, looking especially to see if alternative measures might be just as effective. We also believe that impairment of liberties (including those associated with sexual autonomy) by pain of criminal sanction on the basis of family status needs to survive heightened - if not strict - scrutiny as a matter of policy.

Id. at 1333.

The article is part of a forthcoming book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford University Press, forthcoming Apr. 2009).

RR

Updates on Same-Sex Marriage: Iowa, NJ, California

The news from IOWA:

As the New York Times reports on Iowa's same-sex marriage case argued on December 9:

The legal core of the case, Varnum v. Brien, is whether the state’s 10-year-old law defining a “valid” marriage as only “between a male and female” violates the Iowa Constitution’s guarantees of equal treatment and due process.

A trial court judge ruled last year that the law was unconstitutional and that a dozen gay men and lesbians had been wrongly denied marriage licenses in Polk County, which includes the state capital, Des Moines. The state appealed the ruling, leading to Tuesday’s oral arguments.

But the technical details of the law and the Constitution were only part of a free-wheeling discussion lasting nearly two hours in which the seven justices repeatedly interrupted the lawyers, demanding that they parse and defend their positions.

The Iowa court has posted a video stream on the oral argument, but for the moment it doesn't seem to be working, check here: www.judicial.state.ia.us.

Copies of briefs, court documents, facts sheets, and press releases are available from Lambda Legal Defense Fund here.

In NEW JERSEY:

As the New Jersey Star-Ledger reports, the NJ Civil Union Review Commission's final report will conclude that the "state's civil unions law fails to adequately protect same-sex couples" and same-sex marriage should be allowed. 

The Civil Union Review Commission report is not available yet, but an interim report and many other materials are available on the Commission's website here.

And in CALIFORNIA

  as well as nationwide, protests over Proposition 8 continue.  Today's action, as discussed in the LA Times here and elsewhere is a work stoppage:"Gay rights activists are encouraging people to “call in gay” to work today to demonstrate how integral gay people are to American society."

RR

President Bush signs new child welfare legislation

According to the Children's Bureau of the federal Department of Health and Human Services Administration for Children and Families:

"On October 7, 2008, President George W. Bush signed into law H.R. 6893, the Fostering Connections to Success and Increasing Adoptions Act of 2008. The new law, Public Law (P.L.) 110-351, generally amends titles IV-B and IV-E of the Social Security Act to provide support to some relative caregivers, provide for Tribal foster care and adoption access, and improve incentives to promote adoption.

Major provisions of the Act include:

• Extending and expanding adoption incentives through Federal fiscal year (FFY) 2013
• Creating an option to provide kinship guardianship assistance payments
• Creating an option to extend eligibility for title IV-E foster care, adoption assistance, and kinship guardianship payments to age 21 beginning in FFY 2011
• Phasing in the de-linking of adoption assistance from Aid to Families with Dependent Children (AFDC) eligibility beginning in FFY 2011
• Providing federally recognized Indian Tribes or consortia with the option to operate a title IV-E program beginning in FFY 2010"

This is a link to the Children's Bureau Express, which includes links to the new law and the Children's Bureau's guidance.