Making Strides for LGBT Equality in 2009

March 11, 2009
The last couple of weeks have been exciting and intense for the LGBT community. From same sex adoption in Michigan to marriage equality on a federal level and in California, we’re breaking it down.

We’ll start with the story of Diane Giancaspro, a lesbian mother who, in 2007, asked a Michigan court to determine custody of the three children she and her ex-partner adopted together in Illinois before moving as a family to Michigan.

When the couple’s relationship ended, her partner tried to dismiss Giancaspro’s custody case, arguing that the legal rights of Diane's adoption were unenforceable citing Michigan’s antigay constitutional amendment.

In September 2007, the trial court agreed with her partner, holding both parties’ parental rights unenforceable in Michigan creating a frightening scenario where the courts are unavailable to gay parents.

More than two weeks ago, the Michigan Court of Appeals issued a favorable decision in the case, which we co-counseled with Lambda Legal Defense and Education Fund. The court emphasized that it’s the relationship between the parent and the child that counts, not the relationship between the parents.

This decision ultimately limits the so-called “Marriage” amendment from further damaging our family relationships and gives us our first LGBT victory of the year.

In national news, the Gay and Lesbian Advocates and Defenders filed a federal court challenge to the Defense of Marriage Act, a 1996 federal law that allows states to refuse to recognize marriages between same-sex couples that were granted in other states, and denies recognition at the federal level of same-sex unions.

The GLAD lawsuit, brought on behalf of people who have legally married their same-sex partners, is challenging the second part of DOMA – the ability of federal agencies such as the IRS or Social Security Administration to refuse to recognize gay couples.

This is the first major legal challenge to DOMA and it may signal to the United States Congress that it is time for the federal government not to deny benefits and recognitions to legally married couples solely because of their sexual orientation.

Also last week, the California Supreme Court heard arguments in the legal challenge to Proposition 8, a voter approved ballot initiative which limits marriage to one man and one woman.

In May 2008, California’s Supreme Court held that it was unconstitutional to deny same-sex couples the fundamental right to marry one another. Over a six month period more than 18,000 same-sex couples were legally wed in California. Challengers to Proposition 8 argued that the ballot initiative stripping gay couples of this fundamental right was a revision to the constitution, not an amendment and required legislative action, in addition to a ballot initiative.

California’s Attorney General Jerry Brown argued that the voter initiative is invalid because you have the majority voting to strip a minority of a fundamental right. These are both interesting legal theories and if successful, may provide ways to challenge other constitutional “marriage” amendments in other states, including Michigan.

2009 has started out with a bang in the pursuit for LGBT equality across the U.S.

Let’s keep the momentum by continuing to put pressure on our legislators and local elected officials. Let us know how you’re contributing to LGBT equality.
 

Jay Kaplan, ACLU of Michigan LGBT Project Staff Attorney