Homeschoolers' setback in appeals court ruling
Bob Egelko,Jill Tucker, San Francisco Chronicle Staff Writers
Friday, March 7, 2008
California appeals court ruling clamping down on homeschooling by parents without teaching credentials sent shock waves across the state this week, leaving an estimated 166,000 children as possible truants and their parents at risk of prosecution.
The homeschooling movement never saw the case coming.
"At first, there was a sense of, 'No way,' " said homeschool parent Loren Mavromati, a resident of Redondo Beach (Los Angeles County) who is active with a homeschool association. "Then there was a little bit of fear. I think it has moved now into indignation."
The ruling arose from a child welfare dispute between the Los Angeles County Department of Children and Family Services and Philip and Mary Long of Lynwood, who have been homeschooling their eight children. Mary Long is their teacher, but holds no teaching credential.
The parents said they also enrolled their children in Sunland Christian School, a private religious academy in Sylmar (Los Angeles County), which considers the Long children part of its independent study program and visits the home about four times a year.
The Second District Court of Appeal ruled that California law requires parents to send their children to full-time public or private schools or have them taught by credentialed tutors at home.
Some homeschoolers are affiliated with private or charter schools, like the Longs, but others fly under the radar completely. Many homeschooling families avoid truancy laws by registering with the state as a private school and then enroll only their own children.
Yet the appeals court said state law has been clear since at least 1953, when another appellate court rejected a challenge by homeschooling parents to California's compulsory education statutes. Those statutes require children ages 6 to 18 to attend a full-time day school, either public or private, or to be instructed by a tutor who holds a state credential for the child's grade level.
"California courts have held that ... parents do not have a constitutional right to homeschool their children," Justice H. Walter Croskey said in the 3-0 ruling issued on Feb. 28. "Parents have a legal duty to see to their children's schooling under the provisions of these laws."
Parents can be criminally prosecuted for failing to comply, Croskey said.
"A primary purpose of the educational system is to train school children in good citizenship, patriotism and loyalty to the state and the nation as a means of protecting the public welfare," the judge wrote, quoting from a 1961 case on a similar issue.
Union pleased with ruling
The ruling was applauded by a director for the state's largest teachers union.
"We're happy," said Lloyd Porter, who is on the California Teachers Association board of directors. "We always think students should be taught by credentialed teachers, no matter what the setting."
A spokesman for the state Department of Education said the agency is reviewing the decision to determine its impact on current policies and procedures. State Superintendent of Public Instruction Jack O'Connell issued a statement saying he supports "parental choice when it comes to homeschooling."
Brad Dacus, president of the Pacific Justice Institute, which agreed earlier this week to represent Sunland Christian School and legally advise the Long family on a likely appeal to the state Supreme Court, said the appellate court ruling has set a precedent that can now be used to go after homeschoolers. "With this case law, anyone in California who is homeschooling without a teaching credential is subject to prosecution for truancy violation, which could require community service, heavy fines and possibly removal of their children under allegations of educational neglect," Dacus said.
Parents say they choose homeschooling for a variety of reasons, from religious beliefs to disillusionment with the local public schools.
Homeschooling parent Debbie Schwarzer of Los Altos said she's ready for a fight.
Schwarzer runs Oak Hill Academy out of her Santa Clara County home. It is a state-registered private school with two students, she said, noting they are her own children, ages 10 and 12. She does not have a teaching credential, but she does have a law degree.
"I'm kind of hoping some truancy officer shows up on my doorstep," she said. "I'm ready. I have damn good arguments."
She opted to teach her children at home to better meet their needs.
The ruling, Schwarzer said, "stinks."
Began as child welfare case
The Long family legal battle didn't start out as a test case on the validity of homeschooling. It was a child welfare case.
A juvenile court judge looking into one child's complaint of mistreatment by Philip Long found that the children were being poorly educated but refused to order two of the children, ages 7 and 9, to be enrolled in a full-time school. He said parents in California have a right to educate their children at home.
The appeals court told the juvenile court judge to require the parents to comply with the law by enrolling their children in a school, but excluded the Sunland Christian School from enrolling the children because that institution "was willing to participate in the deprivation of the children's right to a legal education."
The decision could also affect other kinds of homeschooled children, including those enrolled in independent study or distance learning through public charter schools - a setup similar to the one the Longs have, Dacus said.
Charter school advocates disagreed, saying Thursday that charter schools are public and are required to employ only credentialed teachers to supervise students - whether in class or through independent study.
Ruling will apply statewide
Michael Smith, president of the Home School Legal Defense Association, said the ruling would effectively ban homeschooling in the state.
"California is now on the path to being the only state to deny the vast majority of homeschooling parents their fundamental right to teach their own children at home," he said in a statement.
But Leslie Heimov, executive director of the Children's Law Center of Los Angeles, which represented the Longs' two children in the case, said the ruling did not change the law.
"They just affirmed that the current California law, which has been unchanged since the last time it was ruled on in the 1950s, is that children have to be educated in a public school, an accredited private school, or with an accredited tutor," she said. "If they want to send them to a private Christian school, they can, but they have to actually go to the school and be taught by teachers."
Heimov said her organization's chief concern was not the quality of the children's education, but their "being in a place daily where they would be observed by people who had a duty to ensure their ongoing safety."
Online resources
The ruling: To view the ruling by the Second District Court of Appeal, go to links.sfgate.com/ZCQR.
E-mail the writers at begelko@sfchronicle.com and jtucker@sfchronicle.com.
This article appeared on page A - 1 of the San Francisco Chronicle
Friday, March 7, 2008
Wednesday, March 5, 2008
Termination of Parental Rights - Indian Child Welfare Act - Notice Procedure
Partial reversal of order terminating parental rights over two children was required as to one child where notices to Indian tribes under Indian Child Welfare Act identified only one child. Where parents appeared at multiple court hearings but failed to object to failure to serve copies of JV-135 forms on them under Indian Child and Welfare Act, they waived issue. In re Miracle M. - filed February 14, 2008, publication ordered March 4, 2008, Second District, Div. Seven Cite as 2008 SOS 1403 Full text http://www.metnews.com/sos.cgi?0308%2FB200319
Juvenile Court - Dependency
In California, it was held that the juvenile court committed prejudicial error where it precluded father from offering any evidence or cross-examining any witness at dependency hearing as a sanction for invoking his Fifth Amendment right against self-incrimination. In re Brenda M. - filed February 1, 2008, publication ordered March 3, 2008, Fourth District, Div. Three Cite as 2008 SOS 1400 Full text http://www.metnews.com/sos.cgi?0308%2FG038857
Monday, March 3, 2008
Military Divorce
Military divorce rate holds steady
Some veterans questioned the Pentagon figure. Defense officials say they have tried to give couples more support.
By Pauline Jelinek
Associated Press
WASHINGTON - The divorce rate in the armed forces held steady last year at 3.3 percent, a surprising finding given the stress that marriages are under during persistent wars in Iraq and Afghanistan.
Some veterans questioned whether the figure, reported by the Pentagon, was accurate. But defense officials credited efforts in recent years to support couples enduring uncommonly long separations and other hardships because of those wars.
The divorce rate represented more than 25,000 failed marriages among the nearly 755,000 married active-duty troops in all military branches between Oct. 1, 2006, and Oct. 1, 2007, according to statistics provided to the Associated Press.
The Defense Department data showed that the Army, the service with the most troops in Iraq and Afghanistan, had a rate of 3.2 percent, unchanged from the previous year. That amounted to 8,748 divorces among the approximately 275,000 married soldiers.
Last year was the deadliest yet for U.S. troops in the wars, though deaths in Iraq have fallen sharply. In addition, Army couples had to cope with extended separations because tours of duty were lengthened to 15 months from 12.
Those longer deployments and multiple tours required of many troops have been widely blamed for unprecedented stresses on military couples. Spouses at home must manage families and households without their partners. The strain also has contributed to higher suicide rates and mental-health problems among troops.
"We all agree that there is stress on the families," a Pentagon spokesman, Lt. Col. Les Melnyk, said about the divorce statistics. "It's just not manifesting itself in these numbers."
The biggest exception was a rise in divorce rates among military women. For years, their marriages have failed at twice the rate of men in military service.
Although firm numbers were unavailable in the new data, Army divorces in 2007 appeared to occur in about 8 percent of servicewomen's marriages and 2.6 percent of servicemen's.
There is no comparable system for tracking civilian divorces.
The Centers for Disease Control and Prevention said the divorce rate for the general population was 3.6 per 1,000 people in 2005, the most recent statistics available; that was the lowest rate since 1970.
Todd Bowers of Iraq and Afghanistan Veterans of America said the wars were producing a rising number of breakups not being tracked because they involved people who have left the service. "When you look at their numbers . . . there's a piece of the puzzle that's missing," Bowers said of the Pentagon statistics.
Some veterans questioned the Pentagon figure. Defense officials say they have tried to give couples more support.
By Pauline Jelinek
Associated Press
WASHINGTON - The divorce rate in the armed forces held steady last year at 3.3 percent, a surprising finding given the stress that marriages are under during persistent wars in Iraq and Afghanistan.
Some veterans questioned whether the figure, reported by the Pentagon, was accurate. But defense officials credited efforts in recent years to support couples enduring uncommonly long separations and other hardships because of those wars.
The divorce rate represented more than 25,000 failed marriages among the nearly 755,000 married active-duty troops in all military branches between Oct. 1, 2006, and Oct. 1, 2007, according to statistics provided to the Associated Press.
The Defense Department data showed that the Army, the service with the most troops in Iraq and Afghanistan, had a rate of 3.2 percent, unchanged from the previous year. That amounted to 8,748 divorces among the approximately 275,000 married soldiers.
Last year was the deadliest yet for U.S. troops in the wars, though deaths in Iraq have fallen sharply. In addition, Army couples had to cope with extended separations because tours of duty were lengthened to 15 months from 12.
Those longer deployments and multiple tours required of many troops have been widely blamed for unprecedented stresses on military couples. Spouses at home must manage families and households without their partners. The strain also has contributed to higher suicide rates and mental-health problems among troops.
"We all agree that there is stress on the families," a Pentagon spokesman, Lt. Col. Les Melnyk, said about the divorce statistics. "It's just not manifesting itself in these numbers."
The biggest exception was a rise in divorce rates among military women. For years, their marriages have failed at twice the rate of men in military service.
Although firm numbers were unavailable in the new data, Army divorces in 2007 appeared to occur in about 8 percent of servicewomen's marriages and 2.6 percent of servicemen's.
There is no comparable system for tracking civilian divorces.
The Centers for Disease Control and Prevention said the divorce rate for the general population was 3.6 per 1,000 people in 2005, the most recent statistics available; that was the lowest rate since 1970.
Todd Bowers of Iraq and Afghanistan Veterans of America said the wars were producing a rising number of breakups not being tracked because they involved people who have left the service. "When you look at their numbers . . . there's a piece of the puzzle that's missing," Bowers said of the Pentagon statistics.
Same-Sex Marriage
California Court Rules On Same-Sex Marriage
By Matthew Williams 13:27, March 3rd 2008
On Tuesday the California Supreme Court will have a hearing on the constitutionality of the state law defining marriage as the union of a man and a woman.
This action was triggered by gay-rights groups who want marital equality while on the other hand opponents are threatening with a counterattack.
Those who support the same sex marriages appeal to the commitment of the state to equality no matter the gender or sexual orientation, the needs of the children of gay and lesbian couples, the social discrimination and other legal rights like the freedom of expression, association and privacy.
The state has already taken measures toward this direction regarding the equal rights for gays and lesbians and the power of politicians and voters to determine state policy.
The groups who oppose the same sex marriages are asking the court to justify the state law on moral or scientific grounds, as an assertion that matrimony is limited only to a man and a woman and that is best for the children and the society.
A decision will be reached within 90 days.
The case is formed out of four lawsuits: three from almost two dozen couples who want to marry and the fourth by the city of San Francisco, which got involved after Mayor Gavin Newsom's order to let almost 4,000 couples of the same sex to get married in February and March 2004 was annulled by the court.
The lawsuits are based mainly on the California Constitution which is more protective of individual rights rather than the U.S. Constitution, according to state courts.
The plaintiffs appeal to passage in the 1948 about interracial marriage, the first of this kind in a state’s high court. In the passage the justices recognized a "right to join in marriage with the person of one's choice."
Judge Richard Kramer of San Francisco Superior Court appealed to it in March 2005. He ruled that the ban on marriage of the same sex violated "the basic human right to marry a person of one's choice." But in October 2006 the court rejected his findings saying that the historic definition of marriage may be kept while actions can be taken in order to protect the rights of same-sex couples who are registers as domestic partners.
© 2007 - 2008 - eFluxMedia
By Matthew Williams 13:27, March 3rd 2008
On Tuesday the California Supreme Court will have a hearing on the constitutionality of the state law defining marriage as the union of a man and a woman.
This action was triggered by gay-rights groups who want marital equality while on the other hand opponents are threatening with a counterattack.
Those who support the same sex marriages appeal to the commitment of the state to equality no matter the gender or sexual orientation, the needs of the children of gay and lesbian couples, the social discrimination and other legal rights like the freedom of expression, association and privacy.
The state has already taken measures toward this direction regarding the equal rights for gays and lesbians and the power of politicians and voters to determine state policy.
The groups who oppose the same sex marriages are asking the court to justify the state law on moral or scientific grounds, as an assertion that matrimony is limited only to a man and a woman and that is best for the children and the society.
A decision will be reached within 90 days.
The case is formed out of four lawsuits: three from almost two dozen couples who want to marry and the fourth by the city of San Francisco, which got involved after Mayor Gavin Newsom's order to let almost 4,000 couples of the same sex to get married in February and March 2004 was annulled by the court.
The lawsuits are based mainly on the California Constitution which is more protective of individual rights rather than the U.S. Constitution, according to state courts.
The plaintiffs appeal to passage in the 1948 about interracial marriage, the first of this kind in a state’s high court. In the passage the justices recognized a "right to join in marriage with the person of one's choice."
Judge Richard Kramer of San Francisco Superior Court appealed to it in March 2005. He ruled that the ban on marriage of the same sex violated "the basic human right to marry a person of one's choice." But in October 2006 the court rejected his findings saying that the historic definition of marriage may be kept while actions can be taken in order to protect the rights of same-sex couples who are registers as domestic partners.
© 2007 - 2008 - eFluxMedia
Same-Sex Marriage
State Supreme Court takes up same-sex marriage
Bob Egelko, Chronicle Staff Writer
Monday, March 3, 2008
As gay-rights groups call for marital equality and opponents warn of a public backlash, societal decay and religious conflict, the California Supreme Court is prepared for an epic three-hour hearing Tuesday on the constitutionality of the state law defining marriage as the union of a man and a woman.
It shapes up as the most momentous case the court has heard in decades - comparable to the 1981 ruling that guaranteed Medi-Cal abortions for poor women, the 1972 ruling that briefly overturned the state's death penalty law, and the 1948 decision, cited repeatedly in the voluminous filings before the court, that struck down California's ban on interracial marriage.
The arguments on both sides are weighty.
Supporters of same-sex marriage invoke the state's commitment to equality regardless of gender or sexual orientation, the needs of the children of gay and lesbian couples, the persistence of societal discrimination, and legal rights such as freedom of expression, association and privacy.
In defense of its law, the state cites a cultural tradition far older than statehood, the will of the people as expressed in a 2000 initiative, the steps California has already taken toward equal rights for gays and lesbians, and the power of lawmakers and voters to determine state policy.
Beyond those arguments, groups opposing same-sex marriage want the court to justify the state law on moral or scientific grounds, as an affirmation that limiting matrimony to a man and a woman is best for children and society.
A ruling is due within 90 days.
The case combines four lawsuits - three by nearly two dozen couples who want to marry and the fourth by the city of San Francisco, which entered the dispute after the court overturned Mayor Gavin Newsom's order that cleared the way for nearly 4,000 same-sex weddings in February and March 2004.
The suits rely on the California Constitution, which state courts have long interpreted as more protective of individual rights than the U.S. Constitution. The plaintiffs invoke a passage in the 1948 ruling on interracial marriage - the first of its kind by any state's high court - in which the justices recognized a "right to join in marriage with the person of one's choice."
Judge Richard Kramer of San Francisco Superior Court echoed that language in March 2005, when he ruled that the state's ban on same-sex marriage violated "the basic human right to marry a person of one's choice." He also said the marriage law constitutes sex discrimination - prohibited by another groundbreaking California Supreme Court ruling in 1971 - because it is based on the gender of one's partner.
But a state appeals court upheld the law in October 2006. In a 2-1 decision, the court rejected Kramer's findings of discrimination and said California was entitled to preserve the historic definition of marriage while taking steps to protect the rights of same-sex couples who register as domestic partners.
Advocates crowd in
As the case reached the state's high court, the participants and the arguments multiplied.
Conservative religious organizations, including sponsors of the 2000 ballot measure that reinforced the opposite-sex-only marriage law, accused the state of making a half-hearted defense of its law and sought to justify it as a pro-family measure. Marriage is for procreation, and children fare best with married fathers and mothers, they argued. They also said the definition of marriage is so deeply engrained in the law that judges have no power to change it.
The coalition of conservative religious groups warned that a ruling against the state law would "fracture the centuries-old consensus about the meaning of marriage."
An opposing assortment of liberal denominations counseled the court against a state endorsement of "the religious orthodoxy of some sects concerning who may marry."
The court also heard from hundreds of organizations representing psychologists, anthropologists and other professions, city and county governments, law professors, businesses, civil rights advocates and social institutions.
Judges and limits
Underlying all the arguments is a debate about the proper role of courts in a democracy, particularly on contentious social and political issues. It's the same question - how far, and how fast, judges should move to correct injustices they perceive in the actions of elected officials - that has confronted jurists pondering such issues as segregation, school prayer and abortion.
The subject was raised with unusual frankness in written arguments by Attorney General Jerry Brown's office, which is leading the defense of the marriage law that Brown signed as governor in 1977.
"One unintended and unfortunate consequence of too radical a change is the possibility of backlash," said Deputy Attorney General Christopher Krueger. Same-sex marriage may someday be legalized in California, he said, "but such a change should appropriately come from the people rather than the judiciary as long as constitutional rights are protected."
Brown said last week he wasn't asking the court to sacrifice principles to politics, only observing that rulings that "ride roughshod over the deeply held judgments of society" can have unintended consequences.
He noted that the court majority swung from liberal to conservative after three of his appointees, including Chief Justice Rose Bird, were unseated in a 1986 election that centered on their votes to overturn death sentences.
Legitimate concern?
Lawyers for San Francisco in the same-sex marriage case nonetheless accused Brown of using scare tactics and of encouraging the justices to abandon their duty to protect the constitutional rights of all Californians, regardless of public opinion.
"Far worse than any short-term controversy a principled but unpopular decision might engender, an unprincipled, politically based decision of the sort the attorney general seeks will invite and sanction the continued stigmatization and marginalization of lesbians, gay men and their families," said Chief Deputy City Attorney Therese Stewart.
But Cass Sunstein, a University of Chicago law professor who is not involved in the case, said concern about public reaction is a legitimate basis for judicial restraint.
Sunstein said he favors allowing gays and lesbians to marry, but fears that such a ruling in California "would have undue influence over the upcoming presidential election, would polarize the country in ways that are not desirable and would short-circuit a continuing process of democratic debate over this issue."
That debate has reached the state Capitol, where Gov. Arnold Schwarzenegger has vetoed two bills in the past two years that would have legalized same-sex marriage, and it may intensify statewide regardless of the court ruling. Two organizations are circulating initiatives that would write the current marriage law into the state Constitution; one of the measures would also repeal recently enacted laws protecting same-sex domestic partners.
Those laws, which grant domestic partners the same rights to property, finances, child custody and other benefits that spouses receive in California, are also at the heart of the state's case for upholding its marriage law. Brown's office argues that the partnership laws satisfy the state's obligation to treat same-sex couples equally and eliminate any need for judicial intervention.
"Maintaining the long-standing and traditional definition of marriage, while providing same-sex couples with legal recognition comparable to marriage, is a measured approach to a complex and divisive social issue," Krueger wrote in his argument to the court.
Benefits for married couples
Opponents of the marriage law counter that domestic partnership is a second-class status that leaves partners without the numerous federal benefits afforded to married couples, such as Social Security payments to survivors, joint tax filing, immigration assistance, the right to help a spouse immigrate, and recognition in other states. Within California, they argue, a household becomes a family in the eyes of the public only when its partners are legally married.
"The right to marry compels the state to sanction and support a unique expression of personal commitment, and that personal commitment is not the exclusive province of those who love someone of a different sex," said the National Center for Lesbian Rights, representing 15 same-sex couples who sued to overturn the state's law.
Other issues abound:
-- Whether the marriage law discriminates on the basis of sexual orientation, and if so, whether bias against gays belongs in the same category as laws that discriminate on the basis of race or sex, which courts rarely uphold.
-- Whether the 2000 ballot measure, Proposition 22, prohibited state legislators from legalizing same-sex marriage without voter approval.
-- Whether Prop. 22's sponsors and other organizations opposing same-sex marriage have the right to participate in the case on an equal basis with the state, based on their claim that broadening the marriage law would harm husbands and wives.
Cautious court
This case may not resolve all those questions. Under Chief Justice Ronald George's leadership since 1996, the court - with a 6-1 majority of Republican appointees - has been generally sympathetic to gay rights and civil rights, but has seldom overturned laws or thwarted popular majorities.
Over the last five years, with little dissent, the justices have established parental rights for same-sex couples, upheld an adoption procedure widely used by gays and lesbians and outlawed business discrimination against domestic partners.
But in more incendiary cases, the court has upheld the Boy Scouts' right to exclude gays and has broadly interpreted a voter-approved ban on preferences for women or minorities in public contracting.
Few court-watchers expect California to follow the lead of Massachusetts, whose top court - relying on the state's constitution - became the first and only tribunal to legalize same-sex weddings in 2003.
"This is a close case," said Clark Kelso, a professor at McGeorge School of Law in Sacramento and a longtime observer of the California court. "I don't think they will say anything like, 'Heterosexual couples are better at raising children.' But it's likely that the court will not blaze a trail.
"In cases of doubt," Kelso said, "the court is likely to tilt toward the expressed will of the people."
The proceedings are titled In re Marriage Cases, S147999. Briefs can be viewed at www. courtinfo.ca.gov/courts/supreme/highprofile.
California Supreme Court justices
Ronald George Chief justice, 66. A former deputy attorney general and longtime state judge who was appointed to the court by Gov. Pete Wilson in 1991 and promoted to chief justice by Wilson in 1996.
Joyce Kennard Age 66. Former deputy attorney general appointed by Gov. George Deukmejian in 1989.
Marvin Baxter Age 68. Former Fresno attorney and appointments secretary to Deukmejian, who appointed him to the court in 1990.
Katherine Mickle Werdegar Age 71. Former court research attorney appointed by Wilson in 1994.
Ming Chin Age 65. Former Oakland attorney and Alameda County prosecutor appointed by Wilson in 1996.
Carlos Moreno Age 59. Former federal judge appointed by Gov. Gray Davis in 2001. The court's only Democratic appointee.
Carol Corrigan Age 59. Former Alameda County prosecutor appointed by Gov. Arnold Schwarzenegger in 2006.
Hearing lineup
FOR SAME-SEX MARRIAGE Arguing for legalization of same-sex marriage in the hearing before the state Supreme Court:
-- City of San Francisco
-- Three separate groups of plaintiffs representing 23 same-sex couples from Los Angeles and San Francisco
AGAINST SAME-SEX MARRIAGE Arguing in defense of the state law that prohibits same-sex marriage:
-- State attorney general
-- A lawyer representing Gov. Arnold Schwarzenegger
-- Proposition 22 Legal Defense and Education Fund
-- Campaign for California Families
How to watch the hearing
In the courtroom: The hearing is scheduled from 9 a.m. to noon Tuesday at the courthouse at 350 McAllister St. in San Francisco. Limited courtroom seating is available.
Remote viewing: The hearing will be telecast live in the Milton Marks Conference Center in the basement of the court building, and also at Hastings College of the Law, 198 McAllister St., first-floor auditorium. Limited seating is also available in the Koret Auditorium of the San Francisco Public Library, 100 Larkin St.
On cable: The hearing can be seen on the California Channel, a cable channel whose number varies from city to city. The channel is also online at www.calchannel.com. In San Francisco, the hearing will also be shown on SFGTV, Channel 26.
The law in other states
How other states treat same-sex couples.
Same-sex marriage legal: Massachusetts.
Civil unions, with most of the rights of spouses under state law: Vermont, Connecticut, New Jersey, New Hampshire.
Domestic partnerships recognized, with most of the rights of spouses under state law: California, Oregon.
Constitutional amendments outlawing same-sex marriage: Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin.
Statutes outlawing same-sex marriage: Arizona, California, Hawaii, Illinois, Indiana, Iowa, Maine, Minnesota, North Carolina, New Hampshire, Pennsylvania, West Virginia.
E-mail Bob Egelko at begelko@sfchronicle.com.
This article appeared on page A - 1 of the San Francisco Chronicle
Bob Egelko, Chronicle Staff Writer
Monday, March 3, 2008
As gay-rights groups call for marital equality and opponents warn of a public backlash, societal decay and religious conflict, the California Supreme Court is prepared for an epic three-hour hearing Tuesday on the constitutionality of the state law defining marriage as the union of a man and a woman.
It shapes up as the most momentous case the court has heard in decades - comparable to the 1981 ruling that guaranteed Medi-Cal abortions for poor women, the 1972 ruling that briefly overturned the state's death penalty law, and the 1948 decision, cited repeatedly in the voluminous filings before the court, that struck down California's ban on interracial marriage.
The arguments on both sides are weighty.
Supporters of same-sex marriage invoke the state's commitment to equality regardless of gender or sexual orientation, the needs of the children of gay and lesbian couples, the persistence of societal discrimination, and legal rights such as freedom of expression, association and privacy.
In defense of its law, the state cites a cultural tradition far older than statehood, the will of the people as expressed in a 2000 initiative, the steps California has already taken toward equal rights for gays and lesbians, and the power of lawmakers and voters to determine state policy.
Beyond those arguments, groups opposing same-sex marriage want the court to justify the state law on moral or scientific grounds, as an affirmation that limiting matrimony to a man and a woman is best for children and society.
A ruling is due within 90 days.
The case combines four lawsuits - three by nearly two dozen couples who want to marry and the fourth by the city of San Francisco, which entered the dispute after the court overturned Mayor Gavin Newsom's order that cleared the way for nearly 4,000 same-sex weddings in February and March 2004.
The suits rely on the California Constitution, which state courts have long interpreted as more protective of individual rights than the U.S. Constitution. The plaintiffs invoke a passage in the 1948 ruling on interracial marriage - the first of its kind by any state's high court - in which the justices recognized a "right to join in marriage with the person of one's choice."
Judge Richard Kramer of San Francisco Superior Court echoed that language in March 2005, when he ruled that the state's ban on same-sex marriage violated "the basic human right to marry a person of one's choice." He also said the marriage law constitutes sex discrimination - prohibited by another groundbreaking California Supreme Court ruling in 1971 - because it is based on the gender of one's partner.
But a state appeals court upheld the law in October 2006. In a 2-1 decision, the court rejected Kramer's findings of discrimination and said California was entitled to preserve the historic definition of marriage while taking steps to protect the rights of same-sex couples who register as domestic partners.
Advocates crowd in
As the case reached the state's high court, the participants and the arguments multiplied.
Conservative religious organizations, including sponsors of the 2000 ballot measure that reinforced the opposite-sex-only marriage law, accused the state of making a half-hearted defense of its law and sought to justify it as a pro-family measure. Marriage is for procreation, and children fare best with married fathers and mothers, they argued. They also said the definition of marriage is so deeply engrained in the law that judges have no power to change it.
The coalition of conservative religious groups warned that a ruling against the state law would "fracture the centuries-old consensus about the meaning of marriage."
An opposing assortment of liberal denominations counseled the court against a state endorsement of "the religious orthodoxy of some sects concerning who may marry."
The court also heard from hundreds of organizations representing psychologists, anthropologists and other professions, city and county governments, law professors, businesses, civil rights advocates and social institutions.
Judges and limits
Underlying all the arguments is a debate about the proper role of courts in a democracy, particularly on contentious social and political issues. It's the same question - how far, and how fast, judges should move to correct injustices they perceive in the actions of elected officials - that has confronted jurists pondering such issues as segregation, school prayer and abortion.
The subject was raised with unusual frankness in written arguments by Attorney General Jerry Brown's office, which is leading the defense of the marriage law that Brown signed as governor in 1977.
"One unintended and unfortunate consequence of too radical a change is the possibility of backlash," said Deputy Attorney General Christopher Krueger. Same-sex marriage may someday be legalized in California, he said, "but such a change should appropriately come from the people rather than the judiciary as long as constitutional rights are protected."
Brown said last week he wasn't asking the court to sacrifice principles to politics, only observing that rulings that "ride roughshod over the deeply held judgments of society" can have unintended consequences.
He noted that the court majority swung from liberal to conservative after three of his appointees, including Chief Justice Rose Bird, were unseated in a 1986 election that centered on their votes to overturn death sentences.
Legitimate concern?
Lawyers for San Francisco in the same-sex marriage case nonetheless accused Brown of using scare tactics and of encouraging the justices to abandon their duty to protect the constitutional rights of all Californians, regardless of public opinion.
"Far worse than any short-term controversy a principled but unpopular decision might engender, an unprincipled, politically based decision of the sort the attorney general seeks will invite and sanction the continued stigmatization and marginalization of lesbians, gay men and their families," said Chief Deputy City Attorney Therese Stewart.
But Cass Sunstein, a University of Chicago law professor who is not involved in the case, said concern about public reaction is a legitimate basis for judicial restraint.
Sunstein said he favors allowing gays and lesbians to marry, but fears that such a ruling in California "would have undue influence over the upcoming presidential election, would polarize the country in ways that are not desirable and would short-circuit a continuing process of democratic debate over this issue."
That debate has reached the state Capitol, where Gov. Arnold Schwarzenegger has vetoed two bills in the past two years that would have legalized same-sex marriage, and it may intensify statewide regardless of the court ruling. Two organizations are circulating initiatives that would write the current marriage law into the state Constitution; one of the measures would also repeal recently enacted laws protecting same-sex domestic partners.
Those laws, which grant domestic partners the same rights to property, finances, child custody and other benefits that spouses receive in California, are also at the heart of the state's case for upholding its marriage law. Brown's office argues that the partnership laws satisfy the state's obligation to treat same-sex couples equally and eliminate any need for judicial intervention.
"Maintaining the long-standing and traditional definition of marriage, while providing same-sex couples with legal recognition comparable to marriage, is a measured approach to a complex and divisive social issue," Krueger wrote in his argument to the court.
Benefits for married couples
Opponents of the marriage law counter that domestic partnership is a second-class status that leaves partners without the numerous federal benefits afforded to married couples, such as Social Security payments to survivors, joint tax filing, immigration assistance, the right to help a spouse immigrate, and recognition in other states. Within California, they argue, a household becomes a family in the eyes of the public only when its partners are legally married.
"The right to marry compels the state to sanction and support a unique expression of personal commitment, and that personal commitment is not the exclusive province of those who love someone of a different sex," said the National Center for Lesbian Rights, representing 15 same-sex couples who sued to overturn the state's law.
Other issues abound:
-- Whether the marriage law discriminates on the basis of sexual orientation, and if so, whether bias against gays belongs in the same category as laws that discriminate on the basis of race or sex, which courts rarely uphold.
-- Whether the 2000 ballot measure, Proposition 22, prohibited state legislators from legalizing same-sex marriage without voter approval.
-- Whether Prop. 22's sponsors and other organizations opposing same-sex marriage have the right to participate in the case on an equal basis with the state, based on their claim that broadening the marriage law would harm husbands and wives.
Cautious court
This case may not resolve all those questions. Under Chief Justice Ronald George's leadership since 1996, the court - with a 6-1 majority of Republican appointees - has been generally sympathetic to gay rights and civil rights, but has seldom overturned laws or thwarted popular majorities.
Over the last five years, with little dissent, the justices have established parental rights for same-sex couples, upheld an adoption procedure widely used by gays and lesbians and outlawed business discrimination against domestic partners.
But in more incendiary cases, the court has upheld the Boy Scouts' right to exclude gays and has broadly interpreted a voter-approved ban on preferences for women or minorities in public contracting.
Few court-watchers expect California to follow the lead of Massachusetts, whose top court - relying on the state's constitution - became the first and only tribunal to legalize same-sex weddings in 2003.
"This is a close case," said Clark Kelso, a professor at McGeorge School of Law in Sacramento and a longtime observer of the California court. "I don't think they will say anything like, 'Heterosexual couples are better at raising children.' But it's likely that the court will not blaze a trail.
"In cases of doubt," Kelso said, "the court is likely to tilt toward the expressed will of the people."
The proceedings are titled In re Marriage Cases, S147999. Briefs can be viewed at www. courtinfo.ca.gov/courts/supreme/highprofile.
California Supreme Court justices
Ronald George Chief justice, 66. A former deputy attorney general and longtime state judge who was appointed to the court by Gov. Pete Wilson in 1991 and promoted to chief justice by Wilson in 1996.
Joyce Kennard Age 66. Former deputy attorney general appointed by Gov. George Deukmejian in 1989.
Marvin Baxter Age 68. Former Fresno attorney and appointments secretary to Deukmejian, who appointed him to the court in 1990.
Katherine Mickle Werdegar Age 71. Former court research attorney appointed by Wilson in 1994.
Ming Chin Age 65. Former Oakland attorney and Alameda County prosecutor appointed by Wilson in 1996.
Carlos Moreno Age 59. Former federal judge appointed by Gov. Gray Davis in 2001. The court's only Democratic appointee.
Carol Corrigan Age 59. Former Alameda County prosecutor appointed by Gov. Arnold Schwarzenegger in 2006.
Hearing lineup
FOR SAME-SEX MARRIAGE Arguing for legalization of same-sex marriage in the hearing before the state Supreme Court:
-- City of San Francisco
-- Three separate groups of plaintiffs representing 23 same-sex couples from Los Angeles and San Francisco
AGAINST SAME-SEX MARRIAGE Arguing in defense of the state law that prohibits same-sex marriage:
-- State attorney general
-- A lawyer representing Gov. Arnold Schwarzenegger
-- Proposition 22 Legal Defense and Education Fund
-- Campaign for California Families
How to watch the hearing
In the courtroom: The hearing is scheduled from 9 a.m. to noon Tuesday at the courthouse at 350 McAllister St. in San Francisco. Limited courtroom seating is available.
Remote viewing: The hearing will be telecast live in the Milton Marks Conference Center in the basement of the court building, and also at Hastings College of the Law, 198 McAllister St., first-floor auditorium. Limited seating is also available in the Koret Auditorium of the San Francisco Public Library, 100 Larkin St.
On cable: The hearing can be seen on the California Channel, a cable channel whose number varies from city to city. The channel is also online at www.calchannel.com. In San Francisco, the hearing will also be shown on SFGTV, Channel 26.
The law in other states
How other states treat same-sex couples.
Same-sex marriage legal: Massachusetts.
Civil unions, with most of the rights of spouses under state law: Vermont, Connecticut, New Jersey, New Hampshire.
Domestic partnerships recognized, with most of the rights of spouses under state law: California, Oregon.
Constitutional amendments outlawing same-sex marriage: Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin.
Statutes outlawing same-sex marriage: Arizona, California, Hawaii, Illinois, Indiana, Iowa, Maine, Minnesota, North Carolina, New Hampshire, Pennsylvania, West Virginia.
E-mail Bob Egelko at begelko@sfchronicle.com.
This article appeared on page A - 1 of the San Francisco Chronicle
Friday, February 29, 2008
Asset Protection
Asset Protection and Divorce:
10 Things You Should Do Before Filing Your Divorce
10 Things You Should Do Before Filing Your Divorce
1. Keep copies of important financial documents in a secure place that you can get to quickly and easily. Include copies of financial papers, tax returns, insurance policies, bank statements, salaries and benefits.
2. Search your home and security deposit boxed for financial information. You need to know how many accounts you both have, where they are located, what the account numbers are, and the current balance. Look for evidence of bank accounts, brokerage accounts, trusts, life insurance policies, and stock certificates.
3. If you have joint credit cards, terminate them or reduce the limit.
4. If you don't have any credit cards in your own name, establish credit in your name alone.
5. If you have a joint investment account advise the financial institution to freeze the account unless both parties are present or present a notarized approval signed by both parties to withdraw funds.
6. If you don't already have one, open a bank account in your own name at a new bank separate and apart from the bank that holds a joint account with your spouse. Prepare for your separation and divorce by placing money into this account on a regular basis, it will give you financial freedom when you need it most.
7. Keep an inheritance separate, in a separate account in your name alone and do not co-mingle the inheritance with marital funds.
8. Save receipts and keep an expense journal. Keep a current inventory of items of value in your home, take photos and get items appraised. Make sure you keep track of any improvements made to property both before and after you separate.
9. Prepare a support structure of close trustworthy friends, a safe place to go if you need to get away or just need to relax.
10. Consult a family law attorney and find out what are your legal rights and responsibilities. For example, it will be important to learn more about how your state’s laws regarding separation will impact child support, spousal support, real property, and any debts incurred before and after separation.
Saturday, January 5, 2008
Sperm Donor Not Required To Pay Child Support
Sperm Donor Wins Case Over Child Support
By MARK SCOLFORO – 2 days ago
HARRISBURG, Pa. (AP) — The Pennsylvania Supreme Court ruled that a woman who promised a sperm donor he would not have to pay child support cannot renege on the deal.
The 3-2 decision overturns lower court rulings under which Joel L. McKiernan had been paying up to $1,500 a month to support twin boys born in August 1994 to Ivonne V. Ferguson, his former girlfriend and co-worker.
"Where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting a would-be mother's reproductive prerogatives," Justice Max Baer wrote in the majority opinion issued last week.
Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, said the decision runs counter to the pattern established by similar cases, where the interests of the progeny have generally been given great weight.
"It sounds like the Pennsylvania court is trying to push a little harder into the brave new world of sperm, egg and embryo donation as it's evolving," Caplan said.
McKiernan's lawyer, John W. Purcell Jr., said Wednesday an adverse decision against his client would have jeopardized the entire system of sperm donation.
"That wouldn't just include Pennsylvania, because we found out in the course of this trial that many doctors order their sperm for their artificial inseminations out of state," he said.
Ferguson and McKiernan met while working together at Pennsylvania Blue Shield in Harrisburg and had a sexual relationship that waned before Ferguson persuaded him to donate sperm for her.
Courts found that the two agreed McKiernan would not have to pay child support and would not have visitation rights, but Ferguson later changed her mind and sued.
A county judge said it was in the twins' best interests that McKiernan be required to support them. In addition to monthly payments, McKiernan also was ordered to come up with $66,000 in back support. The appeal reverses that order.
Elizabeth Hoffman, Ferguson's lawyer, did not immediately return a phone message seeking comment left at her office Wednesday.
Justice J. Michael Eakin, in a dissent, said a parent cannot bargain away a child's right to support. "The children point and say, 'That is our father. He should support us,'" Eakin wrote. "What are we to reply? 'No! He made a contract to conceive you through a clinic, so your father need not support you.' I find this unreasonable at best."
On the Net:
Majority opinion: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2005mo.pdf
By MARK SCOLFORO – 2 days ago
HARRISBURG, Pa. (AP) — The Pennsylvania Supreme Court ruled that a woman who promised a sperm donor he would not have to pay child support cannot renege on the deal.
The 3-2 decision overturns lower court rulings under which Joel L. McKiernan had been paying up to $1,500 a month to support twin boys born in August 1994 to Ivonne V. Ferguson, his former girlfriend and co-worker.
"Where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting a would-be mother's reproductive prerogatives," Justice Max Baer wrote in the majority opinion issued last week.
Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, said the decision runs counter to the pattern established by similar cases, where the interests of the progeny have generally been given great weight.
"It sounds like the Pennsylvania court is trying to push a little harder into the brave new world of sperm, egg and embryo donation as it's evolving," Caplan said.
McKiernan's lawyer, John W. Purcell Jr., said Wednesday an adverse decision against his client would have jeopardized the entire system of sperm donation.
"That wouldn't just include Pennsylvania, because we found out in the course of this trial that many doctors order their sperm for their artificial inseminations out of state," he said.
Ferguson and McKiernan met while working together at Pennsylvania Blue Shield in Harrisburg and had a sexual relationship that waned before Ferguson persuaded him to donate sperm for her.
Courts found that the two agreed McKiernan would not have to pay child support and would not have visitation rights, but Ferguson later changed her mind and sued.
A county judge said it was in the twins' best interests that McKiernan be required to support them. In addition to monthly payments, McKiernan also was ordered to come up with $66,000 in back support. The appeal reverses that order.
Elizabeth Hoffman, Ferguson's lawyer, did not immediately return a phone message seeking comment left at her office Wednesday.
Justice J. Michael Eakin, in a dissent, said a parent cannot bargain away a child's right to support. "The children point and say, 'That is our father. He should support us,'" Eakin wrote. "What are we to reply? 'No! He made a contract to conceive you through a clinic, so your father need not support you.' I find this unreasonable at best."
On the Net:
Majority opinion: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-60-2005mo.pdf
Subscribe to:
Posts (Atom)