Leonard Link

Two Faces of JetBlue - The Trip from Hell?

Well, maybe it wasn't as bad as all that.

For a quick run down to Ormond Beach, Florida, from New York City, for a family event, my husband and I booked on JetBlue for a round trip from LaGuardia to Orlando and back again.  We booked the tickets on June 16, for travel on July 24 and July 26. 

The trip down from LaGuardia on Friday July 24 was uneventful, Flight 393 taking off and landing approximately at the scheduled times.  The flight crew was friendly and efficient, the check-in smooth, and we could have no complaints.

The situation two days later was dramatically different.  National weather patterns were a complicating factor, of course.  The nation was wracked with thunderstorms on Sunday, July 26.  Orlando had its downpours, and so did the NYC metro area, as did other parts of the country.  Clearly, a situation for concern.  And the way the airlines run, this is usually a recipe for passenger inconvenience, which we encountered. 

When we arrived at the Orlando airport for our scheduled 5:33 pm departure to LaGuardia on Flight 394, the signboards were indicating only a slight delay on departure.  We checked in, and as the delay lengthened, had time for a dinner on the ground.  The delay ended up being more like 2-1/2 hours, attributable to the delay in the airplane which was coming from Washington DC.  Once that plane landed, there was a quick turnaround and they boarded the aircraft, even though they knew that we would not be able to take off for some considerable period of time due to weather conditions in the NYC metro area.  Why did they board us if they knew we would not be able to take off?  They needed the gate for subsequent arriving and departing flights.  So we sat in the airplane on the tarmac for four hours in order for them to have the use of the gate.  Of course, they don't serve meals on these flights, just beverages were offered....  They said they would wave the extra charge to view the movie after we got airborne, but we never got that far...

So, the 5:33 flight boarded at about 8 pm, then we sat out in the airplane until about midnight.  At that point, they told us that there was a possibility we could soon take off for NY, however a passenger was insisting that she be allowed to get off the plane, and they also wanted to take on additional fuel (was that a make-weight?  the pilot had previously announced that they had "plenty of fuel"), so we taxied back to the gate, let off the insistent passenger, only to be told that in the time it had taken for us to go back to an open gate and let her off, we had missed the window of opportunity to fly up to LaGuardia, which has a 'curfew' for landings during the wee hours.  So, sometime after midnight, we were told the flight had been cancelled, and we should line up at the podium at the gate to rebook our flights.  This process was barely underway when we were then told that the rebooking would take place out at the ticket stations, so we all rushed out past security to the ticket windows, where a small staff was waiting for us with the news, of course, that most flights up to the NYC area the next day were heavily booked.  After we were all lined up in one queue, they opened another line, and lots of people rushed there, producing a bit of disorder.  Since an entire plane-load of passengers descended on them at once, there was quite a wait.

So, by about 1 am, we were rebooked on the earliest flight that could get us up to NYC on Monday - Flight 46 to JFK, leaving Orlando at 10:53 am.  Rather than sack out on benches in the airport or go exploring for a hotel in the middle of the night, we took advantage of the Hilton that was there.  The airline announced right off the bat that because this was not a cancellation due to mechanical difficulties, they were not responsible to pay for meals or hotels.  So we were out $169 for a room at the Hilton, and we managed to get checked in and get to sleep towards 1:30 am.  (We were also required to reclaim checked baggage, so it took a little time after we were rebooked before we could go to the hotel.)

Then, the next morning when we went to check in - a rude surprise.  The ticket agent had not mentioned to us that we would be charged for an "upgrade" for the seats to JFK.  In fact, she said nothing about what seats we would get, saying they would be assigned at check-in.  When we went to the kiosk to check in, it would not print out a boarding pass showing a seat assignment unless we paid an extra $50 for an upgrade to seats with "extra legroom."  (Yes, JetBlue charges you extra if you are seated in a row that features a few more inches of space between your seat and the seat in front of you than is normal.  And those of course are the available seats because most people shop on price and so the ones with the surcharge are more likely to be what is available for last minutes customers.)  Which meant we would have to stand on another long line for seat selection in hopes of getting other seats on that flight - quite unlikely, given the number of customers seeking to get to NYC as a result of the cancellation, so we paid the extra $50.

So - one passenger's insistance on getting off the plane meant that we were out $169 for a hotel, $50 for an upgrade, and the loss of  a Monday workday, since arriving at 1:20 at JFK, reclaiming baggage, and then taking public transit into Manhattan, didn't get me home until about 3 pm.  (Yes, this flight took off a little late but they made up the time and we landed as scheduled at 1:22....)

Maybe not exactly the trip from hell.  After all, we arrived safely.  And we can't blame JetBlue for the weather.  But some of the airline practices involved here are just objectionable from a consumer point of view.  If they cancel a flight, we shouldn't have to pay for an upgrade for tickets we didn't specifically request.  And if they know they are not going to be able to fly out for hours, they shouldn't board a plane and sentence people to sitting for hours in a sealed aircraft on a runway.  (I felt the beginnings of post-air-travel cold coming on last night - but so far it hasn't blossomed forth - I'm keeping my fingers crossed.) Some genius in the airline industry has to figure out an alternative, more user-friendly method for dealing with weather delays.

Had to get this air traveller's rant off my chest before getting on with my work today....

No Medicaid for Sex Changes in New York

The NY State Health Department has a regulation barring the use of state medicaid funds to cover the cost of gender reassignment and related treatments.  There have been several unsuccessful challenges to this over the years.  By contrast, I can recall a decision from decades ago ruling that another state's medicaid program was obligated to cover gender reassignments.  But that's neither here nor there for New York transsexuals who are seeking these procedures.

The latest disappointment was rendered by U.S. District Judge Charles J. Siragusa (W.D.N.Y.), in Ravenwood v. Daines, 2009 WL 2163105, issued on July 17.  Judge Siragusa did a cut-and-paste opinion, quoting wholesale from a ruling last year by District Judge P. Kevin Castel (S.D.N.Y.), who rejected a similar challenge to the NY Medicaid Regulation, the infamous 18 N.Y.C.R.R. section 505.2(1).  This provides that "payment is not available for the care, services, drugs for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment."

In this case, the plaintiff, born in 1962, was diagnosed as having gender identity disorder (GID) at the unusually early age of 5 years old, and has lived as female since 1967.  She has been on Medicaid since 1989 as her source of health care, and SSI and food stamps are her only source of income.  (The court opinion does not relate why she is totally reliant on social welfare to fund her existence.)  Since 1998, the NY Medicaid program has paid for her hormonal treatment, voice therapy, water pills, medications related to gender reassignment, and mental health care, but they drew the line at paying for surgery and electrolysis, even though her doctor stated in writing that "sexual reassignment surgery will greatly enhance her overall mental health and well-being."

The lawsuit, in which Ravenwood is represented pro bono by Rochester, NY, attorney Alecia Elston, takes a two-prong approach.  One prong is to argue that the state Medicaid regulation violates federal regulations governing the program.  The other is to argue that denial of the benefits violates the 14th Amendment's guarantee of equal protection of the laws.

On the former claim, Judge Siragusa basically reproduced, in big block indent quotations, Judge Castel's analysis.  Actually, this seems fair since Siragusa states that the plaintiff's briefs seem to be taken from the briefs filed with Judge Castel, and the arguments are the same.  Ravenwood tried to distinguish her case by pointing out that the Medicaid program has been paying for her gender identity related treatments of various kinds for many years now, and then just arbitrarily - in her view - drew a line and said "no further."  By contrast, the plaintiff in Casillas had received hormone therapy at state expense, but none of the other items that Ravenwood has received.  Judge Siragusa suggested that this made no difference to the legal analysis.

According to Castel's opinion, as quoted by Siragusa, in order to bring a 42 USC sec. 1983 claim against the state Medicaid program, Ravenwood would have to show that the benefit she is seeking is clearly covered under the federal regulations. The problem is that the federal regulations are rather broadly and a bit ambiguously written.  They have their own internal non-discrimination requirements, which Castel construed as requiring that there be no discrimination among needy recipients when it comes to receiving treatments for particular diagnoses, but that discrimination among diagnoses can be made. 

Applying this analysis to Ravenwood's claim, it seems that each of the distinct surgical and medical interventions she is seeking might be available to treat other diagnosed conditions, but not to treat GRID.  She argues that this constitutes discrimination prohibited by the federal Medicaid regs, but Castel (and Siragusa) hold that it does not, that Medicaid's non-discrimination requirement says that two people with the same diagnosis are entitled to the same treatment, not that two people with different diagnoses are equally entitled to the same procedure that might be used to address either of the diagnoses.  Thus, a Medicaid recipient with breast cancer will be covered for a mastectomy, but a transsexual seeking a mastectomy as part of gender reassignment can be denied coverage for the procedure.

Only where Medicaid clearly establishes an entitlement for a particular benefit would the state be in violation by denying the benefit, and Medicaid does not specifically authorize or require coverage for gender reassignment, point out these NY judges, noting in particular that federal Medicaid regulations do not require that the state program cover all medically necessary procedures, and that the federal regulations appear to specifically allow states to ration care by deciding which procedures they will cover.

Turning to the constitutional claim, Judge Siragusa says that Ravenwood is not contending that transsexuals make up a "suspect class" or that there is some fundamental right involved here, thus the 14th Amendment claim is to be decided using the rationality test.  Siragusa finds that the explanation provided by the Department of Health when they adopted this regulation suffices for this purpose.  When the regulation was proposed and put out for public comment, among the comments submitted in opposition to covering this procedure were those contending that there could be "serious complications" from such surgeries and particularly medical danger from life-long administration of estrogen in order to maintain a feminine appearance.  Quoting from Judge Castel's decision, "This provided a more than sufficient rational basis which was related to legitimate government interests - the health of its citizens and the conservation of limited medical resources."

This seems quite paternalistic to me.  It says that a procedure that has been available and used by thousands of transsexuals (male to female) over the past half century since the first recorded sex reassignment cases from the mid-1950s can be excluded from coverage in a regulation adopted in 1998 because the State Health Department received some comments from opponents of the procedure suggesting that there can be "serious complications" and that life-long administration of estrogen is "dangerous."  In other words, there are risks involved, as there are in any major surgical procedure and long-term treatment using powerful chemical substances.  Presumably transsexuals seeking these procedures are well-advised as to the risks and want to go ahead anyway.  (The Harry Benjamin principles for treatment require quite a bit of consultation, counseling, information, and multiple expert medical opinions before anyone is allowed to get these procedures.)  But the paternalistic state of New York will step in and say "no" on public health grounds?  That's bizarre.

This should be evaluated based on what is really at stake.  This is clearly a political decision about what the state will spend its medicaid money for, and it is affected by the view - clearly outmoded - that this is a cosmetic procedure that is not medically necessary.  Or by a view that "sex changes" are immoral, or are a luxury that the state should not have to spend money for. 

But it seems unlikely that reform will be achieved here through a judicial procedure.  It is time for the Department of Health to reconsider its regulation in light of current knowledge and current realities.  There is half a century of experience with gender reaassignment surgery, which should be carefully examined to determine whether there is really a weighty public health reason to deprive transsexuals who don't have independent economic means to obtain these procedures from getting them through the Medicaid program.

And, of course, this raises yet another question about the health care reform now being considered in Congress.  Will the minimum acceptable insurance coverage that will be made available to all Americans, through whatever mechanism is adopted -- non-profit cooperatives, public plan, expansion of medicaid/medicare, whatever -- include coverage for gender reassignment for that small segment of our population dealing with GID whose health-care providers believe that their condition will be relieved by gender reassignment procedures?  Or will this, like the politically-charged issue of abortion services, fall victim to moralistic politics?

The Right Loses a Culture War Battle

The Solomon Amendment is a prime example of the "culture wars."  It derives from two phenomena: dislike for the military on U.S. campuses stemming from the anti-war demonstrations of the Vietnam War era (mid-1960s through early 1970s) and the rise of a campus gay rights movement protesting discrimination against gay people by the military (mid-1970s to the present).  A Republican Congressman from western New York, Gerald Solomon, responded to these trends by championing amendments to Defense Appropriations Bills that would deprive colleges and universities of federal funding -- at first just Defense Department funding, later a broad array of federal financial assistance -- if they did not grant some sort of parity in recruiting access between military recruiters and other potential employers of students.  Access to on-campus placement offices and job fairs was the main goal of this, and an important focus was on law school placement offices, where representatives of the Judge Advocates General of the various military services sought to recruit.

Thus was launched an on-going culture war between the law school community and the Defense Department, with bans, threats, boycotts, and political lobbying, culminating in a lawsuit by a consortium of law schools under the acronym FAIR, contending that the Solomon Amendment was an unconstitutional abridgment of the political rights of law schools and their faculties under the 1st Amendment.  This did not impress the Supreme Court, which rejected the argument in one of the first culture war decisions of the new Roberts Court, in an opinion by the Chief Justice in Rumsfeld v. FAIR, 547 U.S. 47 (2006).

It's one thing for the U.S. Supreme Court to uphold the policy, another thing for the Defense Department to enforce it.  In this newest culture wars case, Young America's Foundation v. Gates, No. 08-5366 (D.C. Circuit, July 24, 2009), the reluctance of the Bush Administration to invoke the Solomon Amendment against a university where student and faculty protest had impaired military recruitment prompted an attempt at "self-help" by the right wing. 

Young America's Foundation, a right-wing organization that seeks, among other things, to assure military recruiter access to campuses, sued the Defense Department for its failure to invoke the Solomon Amendment against the University of California at Santa Cruz.  The University's policy, in compliance with Solomon, was to provide access to military recruiters. The policy was unpopular with campus activists and some faculty, who demonstrated and protested against military recruiters.  Military recruiters, finding their efforts thus impeded, withdrew from the campus and, in the face of effective protests, the university even cancelled a job fair entirely.  YAF claimed in this lawsuit that the University's failure to discipline the protesters or to take any effective steps to prevent disruption of military recruitment, prevented young rightwingers who are members of YAF's campus chapter from interviewing on-campus with the military.  Premising its standing to sue on this disadvantage suffered by its members, YAF sought to have the court order the Defense Department to invoke the Solomon Amendment and suspend federal financial assistance to the university.

The district court rejected the lawsuit on two grounds.  First, lack of standing.  While conceding that YAF's members suffered a deprivation, the district court found that YAF had not alleged facts showing that this injury was caused by the Secretary of Defense's failure to invoke the Solomon Amendment against the school, or that a court order compelling the Secretary to do so would necessarily redress the injury.  Second, non-justiciability.  The district judge found that the decision whether to invoke the Solomon Amendment in any particular circumstances was confided to the discretion of the Secretary of Defense and was essentially not subject to judicial review.

The majority of the D.C. Circuit panel decided to refrain from opining on the second ground, having concluded that the case could be decided solely on the issue of standing, and then solely on the second standing ground cited by the district court.   

Circuit Judge Douglas H. Ginsburg wrote, "YAF's task was to allege facts sufficient to show it is likely the Secretary's withholding or threatening to withhold federal funds would enable YAF's members to meet with military recruiters at on-campus job fairs.  This it has not done. . .  As the Supreme Court has pointed out, the Solomon Amendment leaves the University 'a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds.'  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 58 (2006).  Based solely upon its allegation that UCSC received $80 million in federal funds in 2005 and receives 'tens of millions' every year, YAF argues it is not speculative that the University would choose and 'there is "little doubt" that UCSC's behavior would change' if the Secretary invoked the Solomon Amendment against it. . .  Merely showing UCSC's behavior would change in some undefined way is not enough, however; YAF must allege facts from which we can reasonably infer it is likely that the loss or threatened loss of the money would motivate the University to act to ensure YAF's members could meet with military recruiters at on-campus job fairs unimpeded."

The problem here, of course, is that the university is committed to the First Amendment rights of its students and faculty, as well as to complying with the government's requirements for receiving federal funds.  On the one hand, it allowed the military to participate in the job fair.  On the other, it allowed students and faculty to protest peacefully.  That the protest was so successful that the University decided to close down the on-campus job fair at one time did not result in unequal treatment for the military, wrote Judge Ginsburg.  "Canceling a job fair presumably equalized students' access to military and non-military recruiters at job fairs, at least for a time (thought it is not clear that made YAF's members any better off)," wrote Ginsburg, perhaps a bit tongue-in-cheek. 

YAF had also conceded in its allegations to the district court that the University had followed the "standard campus judicial process ... to investgate whether students violated the campus code of conduct and to take appropriate disciplinary action."  There was no suggestion that the University could do more than that, without violating the First Amendment rights of students.   Since YAF did not suggest what else the University should do, wrote Ginsburg, "it is speculative whether an order compelling the Secretary to withhold funds from the University would redress YAF's injury."

In a brief concurring opinion, Senior Circuit Judge A. Raymond Randolph, while agreeing that the district court's dismissal of the case should be upheld, would have premised it instead "solely on the ground that the Administrative Procedure Act precludes judicial review of the Secretary's decision whether to enforce the Solomon Amendment."

Thus, in its attempted culture war maneuver of getting a federal district court to order the Defense Department to enforce the Solomon Amendment against a university where effective student protest had shut down military recruitment on-campus, YAF struck out on two fronts.  Two of the panel members determined that it lacked standing to pursue its claim, and one of the panel members concluded that the court did not have the authority to review the Defense Department's discretionary decision.

New York Court Says It Has Jurisdiction to Dissolve a Vermont Civil Union

A New York Supreme Court Justice has ruled that the Supreme Court’s general equity powers can be used to dissolve a Vermont civil union. While dismissing the divorce petition filed in B.S. v. F.B., 2009 Westlaw 2195786 (N.Y. Supreme Ct., Westchester County, July 15, 2009), Justice Sam D. Walker stated that the dismissal was without prejudice to the plaintiff’s right to file a new complaint seeking a dissolution of the civil union.

The opinion recites that the two women were a long-time same-sex couple residing together in Westchester County. In 1994, they participated in a religious marriage ceremony in New Mexico that had no legal effect there. In 2003, they obtained a civil union in Vermont. More recently, as defendant descended into alcoholism and became abusive to plaintiff, the relationship deteriorated and defendant instituted a civil court proceeding to evict plaintiff from their home, characterizing her as a "tenant at will." Plaintiff obtained a stay of the eviction proceeding, filing an action in Supreme Court alleging that the couple were married and seeking a divorce. Defendant denied that they were legally married, and argued that the Vermont civil union was not valid anyway, pointing to some ambiguous language in the civil union certificate that might be literally construed to mean that the civil union is only authorized in Vermont. Defendant argued that since the parties had no legal marriage, the court had no jurisdiction to grant a divorce.

Judge Walker agreed with this last argument, finding that the court’s jurisdiction over a divorce action counted on the parties having a legal marriage. But he noted the string of recent cases by lower New York courts recognizing same-sex marriages performed out-of-state, as well as the progress of the marriage equality bill in the legislature, and asserted that there should be some sort of relief available to the plaintiff.

The court determined that the couple's Vermont civil union appeared to be valid, rejecting the defendant's interpretation of the Vermont civil union certificate as being inconsistent with other aspects of the Civil Union Act, and noting the general understanding that there is no residency requirement for performance of a civil union in Vermont.  (To this reader, the language that defendant relies upon is plausibly interpreted as meaning that the license to perform a civil union only authorizes a ceremony to be performed within the state, and does not mean that the status thus created may not be recognized as valid outside of the state.)

The judge acknowledged that he could not treat the Vermont civil union as a marriage, for it is clearly a different legal institution. But that would not necessarily preclude any relief, in his view. "Although plaintiff and defendant reside in New York and do not meet the residency requirements to commence an action in Vermont to dissolve their union, this decision does not conclude plaintiff has no civil New York remedy," wrote Judge Walker. "She must be afforded a legal avenue to accomplish the fair and equitable dissolution of her fractured relationship with defendant."

"The Vermont Family Court has been granted jurisdiction to dissolve a civil union in that state," observed Walker. "Vermont divorces are also heard by the Family Court. See Vermont VSA Title 15 sec. 1206. The parties may have a properly pleaded complaint for dissolution of the civil union heard by the New York State Supreme Court, which possesses the general jurisdiction to hear and decide all equitable civil actions, including actions which may also be heard by the Family Courts. NY Judiciary Law sec. 140-b. Defendant's motion to dismiss is granted without prejudice to plaintiff's right to file a verified complaint for dissolution of the Vermont Civil Union."  Judge Walker also extended the stay of the eviction proceeding for an additional period of time to allow plaintiff to file her new petition.

Presumably, in exercising its equitable powers to dissolve a civil union, the Supreme Court might draw on the Divorce Law for principles on division of property, income and other assets to use in dissolving the civil union.

This decision marks a significant advance, since it is apparently the first in which a New York trial judge has asserted that the courts in this state can provide a forum for dissolving a civil union formed in another jurisdiction. Presumably Judge Walker would make a similar ruling were the petitioner a member of a New Jersey civil union, and perhaps from the several states that provide equivalent domestic partnerships as well. Of course, there are already some trial court decisions, cited in the opinion, that assert jurisdiction to consider divorce petitions from same-sex couples who were actually married out-of-state.

[Note - Date of the Civil Union was corrected from the original post in response to a comment submitted by the Plaintiff.]

Watson-Spado Adoption Validated by Maine High Court, Reviving Former Lesbian Partner’s Claim on a Share of the IBM Fortune

The Maine Supreme Judicial Court ruled on July 23 that the adoption of Patricia Spado by her then-same-sex-partner, Olive Watson, in 1991 was valid, reversing a Probate Court ruling that had threatened to derail Spado’s attempt to claim a portion of the trust established by Thomas J. Watson, Jr., son of the founder of International Business Machines (IBM).  Adoption of Patricia S., 2009 WL 2195428.

Spado and Watson had been a couple for many years and had spent several weeks in Maine each summer in a house that Watson, granddaughter of the IBM founder, owned. At the time, they were looking for a way to protect Spado legally, and consulted an attorney about the possibility of adoption. The attorney advised that under the Maine adoption statute, there was no bar on a same-sex adult adoption, and that their summers at the Maine house would be sufficient to confer jurisdiction on the Probate Court to grant an adoption, since Patricia would qualify as "living" in Maine at the time of the application. By contrast, the lawyer advised, Olive could not adopt Patricia in New York, where they resided on Long Island, because the N.Y. Court of Appeals had specifically ruled against adoptions for adult same-sex partners in an earlier case.

The adoption was granted, but the couple split up a year later. After their break-up, Thomas J. Watson Jr. and his wife, also named Olive, passed away. This triggered the terms of the Watson family trust, under which the trust funds were to be divided among the grandchildren of Thomas J. Watson, Jr., and his wife. Although Patricia and Olive were no longer living together as a couple, the adoption had never been dissolved or voided, and Patricia applied as a legal grandchild of the Watsons to receive a share of the funds. This application was made to the trust in Connecticut.

The Watson family trustees determined to reject Patricia’s claim, contesting that she was contemplated as a granddaughter by the Watsons. Patricia sued the trustees in Connecticut, where the trust was amenable to suit. The trustees then filed a lawsuit in the Maine Probate Court seeking to have the adoption declared invalid, arguing that Patricia and Olive had defrauded the Probate Court by representing that Patricia lived in the state. (They had stated on the adoption petition that Olive resided in New York.)

Under the Maine Adoption Law as it then was, in order for an adoption to take place, either the adopting party had to be a resident of Maine, or the prospective adoptee had to "live" in the state. The Probate Judge decided that three weeks of using the summer home did not equate to "living" in Maine, because, in that judge’s view, there was really no distinction between the words "reside" and "live," and "reside" connotes numerous attachments to the jurisdiction, such as owning property, spending substantial time "in residence," registering to vote, obtaining a driver’s license, and similar indicia of legal residence. Based on this conclusion, the Probate Judge issued an order declaring the adoption to be void on account of fraud.

In unanimously reversing this ruling in an opinion by Justice Clifford, the Supreme Judicial Court found that when the legislature uses two different words, it intended two different meanings. "Reside" is a legal term of art, and nobody was claiming that Patricia resided in Maine at the time of the adoption. "Live" is not a legal term of art and is not defined in the statute. The court noted that most adoptions involve adults adopting children, and children, especially very young children, would not be capable of taking steps to establish residence in any particular state, so the legislature used a different term, "live," to suggest the place where the prospective adoptee was living when the petition was filed.

Given this interpretation, the court found that the trustees had presented insufficient evidence to show that a fraud had been perpetrated on the Probate Court. In this case, Patricia and Olive had relied upon advice of a lawyer that their situation would be covered by the Maine adoption statute. There was no evidence that they intended to mislead the Probate Court.

The Watson trustees had also argued that recognizing this adoption as valid would violate the public policy of the state, since Watson and Spado had not intended to establish a parent-child relationship through this adoption, but instead were seeking a legal status for their relationship as same-sex partners. The court noted that the Maine legislature had amended the adoption statute after this 1991 adoption in two relevant respects, requiring that both the adopting party and the adoptee "reside" in the state, and requiring that the adoption petitioner swear to an intent to create a parent and child relationship. But these were not requirements under the statute when the Watson-Spado adoption was granted, and the court was not willing to impose them retroactively, finding that the adoption statute as of 1991 did not impose any such requirement. The court pointed out that the Maine statute at that time unequivocally allowed adult adoptions, which might be sought for any of a variety of reasons, not least for purposes of estate planning.

The result of the ruling is that Patricia Spado remains the legal daughter of Olive Watson, as far as the law of Maine is concerned. Since the Full Faith and Credit Clause of the U.S. Constitution has been consistently interpreted to require states to recognize adoptions granted by courts in other states, the Connecticut court that is considering Spado’s claim against the Watson trust would be bound to find that Spado is the adoptive daughter of Watson. While that does not preclude them from finding some other ground to reject Spado’s claim, it means that they can’t reject the claim on the basis that she is not the legal daughter of Olive Watson.

Marriage Licenses, Concealed Gun Licenses, and the Full Faith and Credit Clause

Yesterday the Senate narrowly defeated a proposed amendment to the Defense Appropriations Bill, under which people who had licenses from their home state allowing them to carry concealed weapons would be allowed to carry concealed weapons everywhere in the U.S., including in states that don’t authorize carrying concealed weapons and in states whose qualifications for obtaining such a license they might not be able to meet. The main argument against the amendment was that states should be allowed to establish their own policy on who can carry concealed weapons - or whether anybody should enjoy the right to do so - and giving nationwide effect to any particular state’s licenses would thus invade the right of each state to decide what was necessary to preserve public order in its own jurisdiction.

It struck me that the debate on this never mentioned the Full Faith and Credit Clause of the U.S. Constitution, Art. IV, Sec. 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Why did nobody argue that the proposed amendment was unnecessary because the FFCC already requires states to honor concealed weapons licenses issued by other states?

This question occurred to me because of the FFCC frenzy over the recognition of same-sex marriages that led to the enactment in 1996 of the federal Defense of Marriage Act. At the time, it was argued, Congress needed to pass what became Section 2 of DOMA because Hawaii was on the verge of allowing same-sex couples to marry.  Because Hawaii had no residency requirement for marriage, same-sex couples from all over the country could flock to Hawaii, marry, and then demand that their home states recognize their marriage under the FFCC. Proponents of DOMA argued that its enactment was necessary in order to let each state decide whether it wanted to recognize such marriages.

In both cases, we are talking about a license issued by the state after some clerical-level state employee determines that somebody (or a couple) meets the requirements specified for the license. In both cases, there are statutes and regulations that set out the qualifications. After a license is issued, a copy of it is on file in some government office (or more likely, these days, retained as an electronic record in a state database). These statutes and regulations are probably "public acts," and the filed licenses are undoubtedly "public records." In neither case - the issuance of a concealed weapon license or the issuance of a marriage license - is a judge involved, so I guess neither qualifies as a "judicial Proceeding."  (When a judge officiates at a civil wedding ceremony, that is not a formal court proceeding.)

I think the analogy between the two kinds of licenses is close enough to raise the question.

Perhaps the best answer is that the gun debate illuminates the ignorance that was rampant during the marriage debate.

My own research led me to write in a law review article more than a decade ago that the FFCC does not compel marriage recognition by the states, because the marriage itself is not a public Act, a public record, or a judicial Proceeding. The case law on marriage recognition suggests that it is a matter of comity, not of compulsion under the FFCC, and that states have always been free to refuse to recognize marriages that could not have been performed in their own jurisdiction if they concluded that recognizing such marriages would be inconsistent with their state’s public policies, as articulated in statutes, regulations, and state judicial opinions.

Those who argued that Sec. 2 of DOMA, which provides that states are not required to recognize same-sex marriages from other states, was necessary to protect states from being compelled to recognize such marriages, were just plain wrong. In its FFCC jurisprudence, the Supreme Court has never ruled that states are required to recognize marriages from other states. They are required to recognize divorces and adoptions from other states, because in each of those instances there is a "judicial Proceeding"; that is, a divorce or an adoption results from a court order based on a judgement being exercised by a duly authorized judicial officer, so the FFCC literally applies. This has been dramatically confirmed recently by state appellate decisions in Florida and Louisiana holding that adoptions by same-sex couples that were judicially approved in other jurisdictions would be recognized pursuant to the FFCC, regardless of the fact that neither Florida (which bans all adoptions by gay people) nor Louisiana allows same-sex couples to adopt children within their states.

And that, by analogy, explains why in the absence of the proposed gun amendment, states are free to ignore or refuse to recognize permits to carry concealed weapons issued by other states. A permit or license does not come within the FFCC. The permit or license is not a "public Act," a "public record" or a "judicial Proceeding" as those terms are used in the FFCC.  My license to practice law in New York does not entitle me to practice law in New Jersey by virtue of the FFCC. The same is true of medical licenses, and other licenses to engage in various professions that are regulated by the state, including teachers licenses.  I don't think anybody has ever successfully argued that the public schools of other states are required to honor licenses issued by the NY State Education Department to people who want to be public school teachers in New York.  They can if they want to, but the FFCC does not require it, and every state is free to set the educational and other qualifications for licensing public school teachers. And the same is true of marriage licenses. Perhaps this gun debate will help people to understand the marriage recognition issue a bit better.

The new Monteverdi performance style spreads...

For months, I have been extolling on this blog a recent Virgin Classics release, Monteverdi Teatro d'Amore, by Christina Pluhar and L'Arpeggiata, as introducing a new style of performance for the secular music of Claudio Monteverdi (1567-1643).  Pluhar's recording was made in several sessions during 2007 and 2008, ending in January of the later year.  Now comes a new recording, made in February 2008, that adopts much the same style of interpretation, directed by Claudio Cavina, with soprano Emanuela Galli and instrumentalists of La Venexiana, on the Glossa label.  Can the new approach to secular Monteverdi be spreading?  Did Pluhar and Cavino reach their interpretive approaches independently -- seems likely -- and they are just catching on to something that is "in the air," or is there some common source?

At any event, the new Cavino recording is stunning.  Cavino and his group have recorded all of the 9 books of madrigals by Monteverdi, and they have produced this recording of "lighter" Monteverdi as a pendent to their cycle.  There is some repertory overlap with Pluhar -- enough to provide interesting contrasts in performance decisions -- but there is also plenty on Cavino's recording that is different.  The main differences are that Pluhar has put together a diverse program, mixing instrumental and vocal music, using a team of singers, and drawing the music from the madrigal books, two of the operas, and pieces Monteverdi contributed to the anthology Quarto scherzo delle ariose vaghezze.  By contrast, Cavino has enlisted Ms. Galli as the sole singer, and the program is entirely made up of solo vocal music, centered on the 1632 collection of Scherzi musicali, which also give the album its title.  Galli and Cavino record this cycle complete, prefacing it with one solo piece from the 7th Book of Madrigals, "Con che soavita" (which also is included in Pluhar's program) and two selections from Quarto scherzo (the same two included on Pluhar's program).  He follows the Scherzi musicali songs with the other piece that Monteverdi contributed to Quarto scherzo, "La mia Turca," and then provides three more songs drawn from varied sources, concluding, a bit out of character with the surviving fragment from Monteverdi's lost opera, Arianna, the famous Lamento d'Arianna. 

Pluhar's recording is organized around the theme of theatrical depictions of love.  Cavino's is more interested, with the exception of the finale, with light-hearted good humor.  Another difference is that Pluhar has decided to give a bit of a jazzy swing to two or three numbers.  Cavino refrains from that, although the light and rhythmically lively approach he uses to the more up-tempo numbers comes close to sounding like Pluhar's jazziness.

Galli sings this music with great drama and humor, although I think Pluhar's soprano voices, Nuria Rial and male sopranist Philippe Jaroussky, are truly incomparable while Galli is just extremely good but not quite at their exalted level.  On the other hand, Galli and Cavino present quite a bit of hard-to-find repertory, and their program is skillfully assembled to provide contrast, despite the lack of instrumental interludes.   Anybody who enjoyed hearing Teatro d'Amore and hoped for more Monteverdi performed in a similarly infectious style should seek out the new Glossa disc.

Fascinating Louisiana Appellate Ruling in Custody/Visitation Dispute of Former Lesbian Partners

This case seems to have flown under the radar, as the court's opinion is 6 months old but it just showed up on Westlaw today -- with an official citation but no Westlaw citation!  I'm wondering whether the court dithered about releasing the opinion for publication because of all the dirty family linen strewn through the opinion.  I'm thinking the best thing for me to do here is refer to the parties by their initials, although anybody seeking to do legal research by reading the opinion can find it through the citation.  So for my purposes here, it is A.P. v. J.M., 10 So.3d 748, 2008-0075 (La. App., 4th Cir., 1/7/09, rehearing denied, 1/28/09).

Here's the story.  A.P. and J.M.. were a lesbian couple for 24 years.  They met in New Orleans, apparently when they were students.  They both have professional degrees and careers.  At some point in their relationship they moved together to California.  After 17 years together, they decided to have a kid.  A.P. couldn't become pregnant through donor insemination after several tries, so J.M. then took her turn, became pregnant, and bore their daughter, I.P.  Being that they lived in California, A.P. was able to do a second-parent adoption, and an amended birth certificate lists both of them as parents.  They moved back to Louisiana when I.P. was two years old.  They jointly parented until A.P. took on a job that required her to live in California; she came for frequent visits but during that year apart the relationship with J.M. deteriorated - there is some evidence, but it is disputed, that she developed a relationship with another woman, but it's also possible, from hints in the opinion, that she developed doubts about her sexual orientation.  In any event, a separation ensued, Hurricane Katrina intervened with further dislocation.... and the end result of all this was that I.P., 9 years old at the time of trial, was living with J.M., who had cut off I.P. from contact with her other mother, A.P.  Indeed, a major point in the case is that whether intentionally or indirectly, J.M. had alienated I.P. from A.P. to the extent that I.P. indicated she didn't want to see A.P. any more.

The trial judge was Orleans Parish Civil District Judge Herbert A. Cade.  Each parent was claiming the right to sole custody.  There were dueling experts to the extent that although both of the principal expert witnesses agreed that there should be sole custody because the relationship between A.P. and J.M. was so fraught that they could not possibly manage shared custody, they disagreed about who should have sole custody, one favoring J.M. and the other favoring A.P.  Judge Cade decided given all the factors that Louisiana courts consider in custody cases that I.P. should remain with J.M.  He also concluded that it would not be in I.P.'s best interest to have visitation with A.P., so he terminated the temporary visitation that had been occurring in the period leading up through the trial.  J.M. had argued that A.P. was not even a parent entitled to seek custody, because Louisiana does not allow second-parent adoptions, but Judge Cade determined that the California adoption was entitled to full faith and credit in Louisiana, so A.P. is a legal parent of I.P.

On appeal, the court agreed that sole custody was the only solution here, and -- one suspects with some reluctance -- that the factors weighed in favor of J.M., if only because several factors go to issues involving the child's schooling, neighborhood, friends, settled home environment, etc., that tend to weight the decision in favor of the status quo if the status quo is not endangering the child.  So the custody ruling was affirmed.

However, the court pointed out, a legal parent has a right to visitation unless the parent opposing visitation meets a rather heavy burden of showing that would be bad for the child.  "Absent conclusive evidence that visitation would seriously endanger the child's physical, mental, moral, or emotional health, a noncustodial parent is entitled to reasonable visitation rights," wrote Judge Patricia Rivet Murray for the Court of Appeal panel.  "The evidence in this case does not come close to meeting this standard," Judge Murray asserted.  While the expert who supported custody for J.M. had also recommended against visitation on the ground that it would be "stressful" for I.P., the court of appeal did not consider that this amounted to the kind of evidence of harm necessary to deny visitation rights to a legal parent.

Thus, the recognition of the California adoption was crucial to A.P.'s visitation claim.

The court recommended that the trial court, which will be charged on remand with determining the appropriate "parameters" of visitation, also appoint a "parenting coordinator" to serve as a mediator between the parents.  Since A.P.'s parental rights are recognized and she is going to have visitation, there will be issues about the way in which visitation is carried out.  Indeed, the court identified 16 items in a detailed list of topics as to which there will need to be negotiations in order to effectuate smooth visitation, considering the various differences between the parents.  The court called on the parents to "put animosity and self-interest aside and truly consider the best interest of their child.  It will not be an easy task, but they have the resouces to do so; the question is, do they have the will."

J.M. is represented by S. Guy deLaup, of Metairie, Louisiana.  A.P. is represented by National Center for Lesbian Rights and cooperating attorney Bennett Wolff, also of Metairie.  Shannon Minter, Legal Director of NCLR, argued the appeal.

A New Chapter Opens in the Ocean Grove Saga? 3rd Circuit Ruling on the Appeal

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled in an unpublished decision issued on July 15 that U.S. District Court Judge Joel A. Pisano had correctly applied the Younger v. Harris federal abstention doctrine in dismissing a challenge by the Ocean Grove (NJ) Camp Meeting Association to an investigation by the New Jersey Division on Civil Rights of two discrimination complaints filed by lesbian couples who had been denied use of the Ocean Grove Boardwalk Pavilion for their civil union ceremonies.  However, the court ruled that Judge Pisano should have retained jurisdiction of the case to consider Ocean Grove's request for a declaratory judgment concerning its rights regarding all the property in the town apart from the Boardwalk Pavilion.  The ruling is available on Westlaw: 2009 WL 2048914.

The Ocean Grove Association is a Christian ministry dating from the 19th century which purchased a large area along the Jersey shore to establish its own religious colony, called Ocean Grove.  The Association still owns the land that the community of Ocean Grove is situated upon, although many people who are not members of the Association live in the community as tenants.  Included in that property is a seaside boardwalk that includes a Pavilion that is used by the Association for various religious activities and is also used by residents of the community for a variety of other events.  There is evidence that different-sex weddings have taken place there with the Association's permission.  After New Jersey enacted its Civil Union Act, two lesbian couples sought to hold their civil union ceremonies in the Pavilion, but they were turned down by the local authorities on the ground that "the requested use was inconsistent with the Association's religious beliefs," according to the opinion for the court of appeals by Judge Michael Chagares.

The two couples - Harriet Bernstein and Luisa Paster, and Janice Moore and Emily Sonnessa -- filed complaints with the New Jersey Division on Civil Rights, the agency that enforces the state's Law Against Discrimination, which bans sexual orientation discrimination in places of public accommodation.  There are plenty of meaty legal issues floating around in that case, including whether the Boardwalk Pavilion is a place of public accommodation or exempt as a religious facility, and whether the Association's Free Exercise Rights can prevail, especially when the Association had been a long-time recipient of tax benefits that were premised on the boardwalk and related facilities being open to public use.  [While this case has been pending, N.J. authorities withdrew certain tax benefits on the ground that the Association violated the requirement of making the facility available to the public without discrimination.]

But that's not what this July 15 ruling is about.  As soon as the complaints were filed, but before the Division launched its investigation, the Association rushed into federal district court, filing a lawsuit claiming that its First Amendment rights were being violated, and seeking an immediate preliminary injunction to block the Division's investigation until the federal court could rule on the merits of the first Amendment free exercise claim.  Judge Pisano rejected the demand for injunctive relief and dismissed the case, relying on Younger v. Harris abstention.  (Younger v. Harris is a 1971 U.S. Supreme Court ruling that established criteria for federal courts to determine whether it is appropriate to abstain from deciding cases where state judicial proceedings are under way involving the same parties and issues.)

Judge Pisano concluded that the Division's investigative process was part of a judicial proceeding, and that the Ocean Grove Association could raise its constitutional claims within that proceeding, so no resort to federal court was needed.  The Court of Appeals agreed with that conclusion, so far as it concerned the proceedings before the State Division on Civil Rights. 

However, it seems that the Association's federal complaint went further than that, asking as well for the court to determine its Free Exercise of Religion rights with regard to all of its Ocean Grove property.  After all, in the future same-sex couples might also ask to hold civil union (or eventually wedding) ceremonies in other places within the community, including the chapel or other parts of the boardwalk.  The Court of Appeals agreed with the Association that Younger v. Harris abstention was only appropriate regarding the Boardwalk Pavilion matter pending before the N.J. State Division, and that the case should be returned to Judge Pisano to proceed on the question of the Association's First Amendment free exercise rights concerning the rest of its property in Ocean Grove.

So, it is possible that there will a federal district court determination, after all, about whether the Ocean Grove Association, as owner of a municipality, is bound to comply with the N.J. Law Against Discrimination, and since this will involve construing the 1st Amendment Free Exercise of Religion rights of the Association, it could certainly have an effect on the ultimate outcome of the Boardwalk Pavilion cases, regardless of Judge Pisano's having dismissed the case so far as it concerns the Boardwalk Pavilion.

[Note - This was edited from the version originally posted to take account of the clarification regarding Ocean Grove offered by a commenter below.]

Chopin the Dreamer (Primakov) vs. Chopin the Dancer (Bar-Shai)

I have recently been listening with great enjoyment to a selection of 30 of Chopin Mazurkas recorded by the Israeli pianist, Iddo Bar-Shai, on the French label Mirare (not released in the U.S. as of yet, available from European sources).  Bar-Shai has arranged them chronologically, even interspersing at appropriate places some pieces not published during Chopin's lifetime and thus lacking opus numbers.  His performance emphasizes the dance roots of the Mazurka, cleanly played in a classical manner.  (Perhaps it is no coincidence that this second disc by Bar-Shai follows on his debut disc of Haydn Piano Sonatas.)

After reading an interesting interview with Vassily Primakov and seeing some reviews that suggests his new disc of Chopin Mazurkas would be interesting, I took the plunge and listened this morning.  Primakov presents a completely different experience from Bar-Shai, presenting a smaller selection, not in chronological order, and using a style of playing totally different.  Where Bar-Shai seems to be saying to the listener - "Hear Chopin dance!" - Primakov seems to be saying "Hear Chopin emote!"  That is, the dance-line origins of the Mazurka are left behind in Primakov's interpretations, and instead we have late-Romantic tone-poems that occasionally show off dance-like origins.  One review I read suggested that Primakov came at this music from the perspective of Rachmaninoff, and I can hear where that reviewer was coming from, as Primakov plays these pieces in the style of Rachmaninoff's Etudes-Tableaux.

I think either approach can make a valid musical statement from the music, and the written notes on the page are the raw material for the pianist to communicate to the listener in a way that blends the intention of the composer with the personality of the pianist.  Which do I prefer?  At the moment, Bar-Shai, although I suspect that Primakov will "grow" on me with more hearings, depending on my mood.  Certainly, the sound Primakov produces (which is a function not only of his physical playing but of the piano used, the room in which it was recorded, the microphone set-up) is completely different.  Bar-Shai present a clean, well-focused sound, not quite astringent but certainly not "plush," which is the word I would use to describe Primakov's sound on this recording.  Timings also show differences.  There is much overlap in the Mazurkas selected for the two recordings.  With only a few exceptions, where both play the same piece Primakov is slower, and sometimes considerably slower, considering how short these pieces are.  This reflects his more emotional approach.  Bar-Shai is clear-eyed, Primakov is on the verge of tears....

Both worth hearing.  Bar-Shai more difficult for US listeners to acquire.  Primakov is on Bridge, a US label with good distribution here.