Bad Counsel

Commentary: Center Field

A recent opinion by D.C.’s Office of the Attorney General on a pending domestic-partnership bill shows unfamiliarity with both our families and the law, and raises once again the question: Whom do the city’s attorneys think they’re working for?

On July 11, D.C. Council Judiciary Committee Chair Phil Mendelson held a hearing on the Domestic Partnership Judicial Determination of Parentage Act of 2008, which would clearly establish the relationship of a child to both of its parents in a domestic partnership–thereby strengthening families and increasing the legal protection of children.

Shortly before the hearing, Mendelson received a letter from Tonya A. Sapp, director of legislative affairs for the Office of the Attorney General (OAG), dated July 10. It states that the bill’s language changing ”mother” and ”father” to the gender-neutral ”parents” might ”place the District out of compliance with federal law.” Ms. Sapp treats parentage as exclusively biological, which is not even the law for heterosexual couples.

Professor Nancy Polikoff, who has taught family law at American University for more than 20 years and was the successful attorney in the 1995 case that established joint adoption rights for unmarried couples in D.C., pointed out at the hearing that family law is traditionally the province of the states. The bill establishes the legal responsibilities of non-biological parents in domestic partnerships in the same way as Vermont, New Hampshire, Connecticut, New Jersey, Oregon, California and Massachusetts.

Sapp writes, ”[T]he amendment arguably permits children to inherit from unrelated domestic partners, and their relatives, even after the domestic partnership has terminated. Such a broad expansion of intestate inheritance rights appears to be unusual, if not unprecedented, and would likely inspire litigation.” Sapp could have learned about the precedents if she had bothered to do her homework. One wonders why D.C. taxpayers should subsidize rank speculation by an office that merely voices its ignorance about domestic partners and non-biological parents.

Sapp writes in a footnote, ”One can easily imagine a scenario under which, for example, the siblings of a decedent might challenge the rights of a child unrelated to the decedent to inherit based on the decedent’s brief domestic partnership with the child’s natural parent.” Does this sound like the comment of someone who respects our domestic-partnership law?

These statements are outrageous coming from the office of our city’s attorney general. Why should the results of a brief domestic partnership be treated any differently than those of a brief marriage? The parentage bill is merely designed to carry forward our city’s policy, established through more than a dozen bills (most if not all of which passed unanimously), of giving the same rights and responsibilities to domestic partners as to married couples. If Mayor Fenty truly embraces that policy as he claims, then he must repudiate the July 10 letter from his Attorney General’s office.

This is the same office that responded to the demand by Craig Dean and Patrick Gill for a marriage license by quoting anti-gay biblical passages in its brief for the city; that argued that Tyra Hunter must have been used to taunts as a transgender woman so she could not have been troubled much by a firefighter’s crude insults as she lay gravely wounded in the street; that dismissed Kenda Kirby’s well-documented claims of discrimination by the Fire/EMS Department and had to be overruled by a judge; and recently signed off on discrimination by the Department of Corrections against transgender detainees.

As the attorney general’s office appears late in noticing, D.C. went beyond federal law when it first established domestic partnerships 16 years ago. Until civil-marriage equality is in place nationwide–which is many years off–there is going to be confusion on family-law matters among the states and between states and the federal government. The only way to avoid such confusion is for us to abandon our struggle for equality and for the gay-rights movement to disappear.

Given that we are not about to disappear, we will have to proceed as best we can. The District does not act out of a desire for conflict with the federal government, but out of a commitment to equality for domestic partners and their children. Our city’s lawyers should be defending District policy and not undermining it. If they don’t understand that, the mayor should clue them in.

Richard J. Rosendall is a writer and activist whose work has appeared on Salon.com and the Independent Gay Forum (www.indegayforum.org). He can be reached at rrosendall@starpower.net.

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