The Volokh Conspiracy

A commenter on the Vermont/Virginia child custody determination thread asks: "So what is the relationship between claimed parent Janet and IMJ if not Janet's 'civil union' with Lisa?"The Vermont court was relying in large measure on what is sometimes called the "de facto parent" or "psychological parent" doctrine, which applies not just to same-sex partners, but also to the biological parent's opposite-sex boyfriend/girlfriend (or to the child's stepparent).

The doctrine is recognized not just in crunchy granola places like California and Vermont, but also Alaska, Maine, South Carolina, West Virginia, and Wisconsin (and, I'm sure, other states -- I just don't have a list handy). See, for instance Middleton v. Johnson, 2006 WL 1814177 (S.C. App. 2006), and the cases cited therein; here's the test that the South Carolina case adopts, following a Wisconsin precedent:

[T]he petitioner must show ... (1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

The Vermont Supreme Court just issued its opinion in Miller-Jenkins v. Miller-Jenkins; here's a brief summary of the facts:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the "biological or adoptive child[]of the civil union." Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ....

I'm not a family law maven, but here's my sense of the matter.

First, despite how Lisa's lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren't married. The relevant federal statute, the Parental Kindapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to "enforce according to its terms" out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) ... (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

So even if Janet and Lisa weren't in a civil union, but were merely living together and had raised a child together, the initial Vermont order would have been valid, and the subsequent Virginia order invalid — that's why I say that this case is not primarily about marriage or civil unions. The Vermont Supreme Court did rely in part on the civil union, in deciding in the first instance that Janet (who isn't IMJ's biological parent) was entitled to parental rights. But while the court noted this "first and foremost," it also pointed to many other factors that would have been present even had this situation arisen without a civil union: "It was the expectation and intent of both Lisa and Janet that Janet would be IMJ's parent. Janet participated in the decision that Lisa would be artificially inseminated to bear a child and participated actively in the prenatal care and birth. Both Lisa and Janet treated Janet as IMJ's parent during the time they resided together, and Lisa identified Janet as a parent of IMJ in the dissolution petition. Finally, there is no other claimant to the status of parent, and, as a result, a negative decision would leave IMJ with only one parent." "Because so many factors are present in this case that allow us to hold that the non-biologically-related partner is the child's parent, we need not address which factors may be dispositive on the issue in a closer case."

Thus, a Vermont court decided — based partly on Lisa's and Janet's Vermont civil union, but also on other factors that would cut in favor of this decision in case — that Janet was entitled to parental rights. At that point, the federal statute kicked in, and the Virginia courts were not allowed to revisit the Vermont decision, not because Lisa and Janet had a civil union, but because the Vermont decision took precedence and would have took precedence even Lisa and Janet had been an unmarried opposite-sex couple Lisa and John.

One last issue: What about the Defense of Marriage Act"? For the reasons I mentioned, the Act doesn't apply, and thus doesn't trump the PKPA.

The Act provides that states (here, Virginia) need not follow "any public act, record, or judicial proceeding of any other State [here, Vermont], territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." Virginia thus has no obligation to take into account Lisa's and Janet's civil union. But the Vermont court's custody decision didn't involve a right or claim legally arising from the civil union; it involved a right or claim arising from a child custody decision — a decision that, as I said, could have been rendered even for a couple who had never been either married or in a civil union.

(Had the Vermont court concluded that the decision would have been otherwise absent the civil union, the matter might have been different, but the court strongly suggested that the other factors would have yielded the same result. Also, the child did "aris[e] from such [civil union] relationship," in the sense that it was born into the civil union, and Lisa and Janet might not have agreed to have a child were it not for the civil union — but the right or claim doesn't arise from a relationship, just like, say, two married people's purchase of a house as tenants in common wouldn't be "a right or claim arising" from the marriage, and would remain legally valid even if the marriage were found to be invalid.)

The Vermont Supreme Court held only (and clearly correctly) that DOMA doesn't require Vermont to honor the Virginia custody decision, and given the procedural posture of the case didn't have to "reach the broader question of whether DOMA, and not the PKPA" would govern Virginia's decision whether to honor the Vermont custody decision. But if my analysis is right, then it shows that under federal law Virginia must indeed honor the custody decision that flows from Lisa's and Janet's parenting of the child, though Virginia need not honor the civil union status.

from lawprof Brannon Denning (visiting at InstaPundit); I especially recommend items one and three.

UPDATE: Orin Kerr has just posted some of his own advice as well; I also recommend it.

for His Position that the Second Amendment Doesn't Secure an Individual Right: No, wait, that would be a substantive criticism.

Instead, he's being faulted for being "not ... of our color" (Al Sharpton, with the "our" referring to Sharpton and the mostly black electorate in the district), a "colonizer" (Major Owens, the retiring Congressman from that district), and "a white individual" (City Councilman Al Vann). Plus, Sharpton linked Yassky to Nicholas Minucci, who's accused of attacking a black man with a baseball bat while shouting a racial slur ("From this to the Minucci case to Yassky thinking he's going to run for that seat -- do they think we're just going to sit this out?"). The only connection between Yassky and Minucci appears to be that they're both white.

Here's Al Sharpton's letter defending himself:

Despite Andrea Peyser's protestations to the contrary, I and other black leaders have repeatedly stated that our objection to David Yassky's congressional candidacy in the 11th district of Brooklyn has nothing to do with his skin color or religion ("Election 'Slur' Spur," June 10).

Rather, our problem with his running in the 11th is that he made an opportunistic political calculation to move out of his own district and move into a district with four black candidates under the assumption that they'd split the vote, providing him with an inroad to victory.

That's a clear undermining of the spirit of the 1965 Voting Rights Act.

Further, population estimates from the Census Bureau reveal that blacks still don't have equal representation in New York City's congressional delegation.

I firmly believe that in a supposedly progressive state like New York, that's a problem that must be remedied, not further exacerbated. However, being for proportional representation makes me neither anti-white nor anti-Jewish.

I'm not sure how Sharpton's claim that this "has nothing to do with his skin color or religion" is consistent with Sharpton's other quoted statements. More importantly, how is it consistent with Sharpton's "being for proportional representation"? True proportional representation would mean that there'd be 2 Jewish Senators and 9 Jewish Congressmen (plus, while you're at it, almost never a Jewish Justice), since Jews are 2% of the population. It also would mean that some candidates should be opposed because of their "skin color or religion," since if one group is overrepresented, backers of "proportional representation" would presumably have to oppose candidates of that group in order to cure that overrepresentation.

The good news:

July 13, 2006 - Don't Keep White Candidate Out Of Black District, New Yorkers Tell Quinnipiac University Poll ....

By a 61 - 23 percent margin, New York City voters oppose a move by black politicians to prevent a white candidate from winning a Congressional race in a Brooklyn district that has been represented by black members of Congress since 1968, according to a Quinnipiac University poll released today. White voters oppose this move 68 - 16 percent while black voters oppose it 53 - 31 percent and Hispanic voters oppose it 54 - 28 percent.

By an even larger 77 - 12 percent margin, voters would oppose a group of white politicians trying to prevent a black candidate from winning in a historically white legislative district. There is little difference among white, black or Hispanic voters, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.

When asked if they prefer having a candidate of their own race, New York City voters say no 54 - 19 percent. White voters say no 59 - 10 percent, while black voters say no 45 - 30 percent and Hispanic voters say no 56 - 25 percent....

Or is it such good news? True, about 77% of white voters and 53% of black voters would oppose trying to prevent a candidate of the opposite race from winning in a "historically [white / black]" district. On the other hand, 10% of white voters and 31% of black voters say they would support it. So Sharpton's, Owens', and Vann's sentiments are unfortunately hardly isolated.

The Legal Reader reports (thanks to Joe Olson for the pointer):

Plaintiff George C. Swinger, Jr., an inmate in Washington State, filed a pro se Notice of Appeal in a civil case before U.S. District Judge Ronald B. Leighton in the Western District of Washington. The Notice, filed July 12, 2006, states:

I hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter.

You have been hereby served Notice. You're not getting away with this shit that easy.

You can view the handwritten Notice of Appeal here (.pdf). (That's almost as good as a "Motion to Kiss My Ass" . . . .)

The links to the notice (and the motion to kiss the movant's ass) are in the Legal Reader post.

It's just out from Princeton University Press, and I quite liked it (to the point of writing a jacket blurb for it). I know Neil from clerking, and he's a very smart and thoughtful guy. He's also just been appointed to the U.S. Court of Appeals for the Tenth Circuit -- a very good choice, in my view. Here's the publisher's summary:

In clear terms accessible to the general reader, Neil Gorsuch thoroughly assesses the strengths and weaknesses of leading contemporary ethical arguments for assisted suicide and euthanasia. He explores evidence and case histories from the Netherlands and Oregon, where the practices have been legalized. He analyzes libertarian and autonomy-based arguments for legalization as well as the impact of key U.S. Supreme Court decisions on the debate. And he examines the history and evolution of laws and attitudes regarding assisted suicide and euthanasia in American society.

A comment on the "Call Us X" thread raised the Beijing/Peking question. As I understand it, Beijing is the more accurate pronunciation, and now that the shift has happened, it's probably for the good.

But there too I'd counsel against condemning people for sticking with the pronunciation that they've used all their lives, whether the condemnation is on identity politics grounds (you Western imperialists calling our places by your names) or on supposed error grounds (what a fool you are for mispronouncing this term). In many languages, foreign place names get translated. Partly this is to track the natural sounds of the language (which is why people mock those who abandon normal English diction when using a foreign, often Spanish-language, place name), but partly this is just an accident of history.

English speakers say "Moscow," not "Moskva"; would we say that "Moskva" is more correct, or just that "Moscow" is correct in English and "Moskva" in Russian. Russian speakers say "Reem" instead of "Roma," just as English speakers say "Rome." French speakers say "Londres" instead of "London." Russians pronounce "Warszawa" much like Poles do (despite having a different alphabet), while English speakers say "Warsaw." The Poles retaliate by calling Italy "Włochy." Deutschland can be Allemagne, Germany, or Nemechyna (transliteration from Ukrainian imprecise), and while the Italians, I'm told, call it Germania, they call Germans Tedeschi. That's history for you, both the history of one country being known by the names of different groups, and the history of phonetic and orthographic modifications in translation.

If everyone started calling places by their native names (setting aside cases of political controversy, and making allowances for the target language's sounds and cadences), that would probably be good; as I said, I'm glad that we've shifted to Pinyin from Wade-Giles. But let's keep some perspective, and recognize that this is a longstanding feature of many languages, one that's probably most aptly fought on grounds of practicality than ideology or even abstract "correctness."

An Ohio television station's site reports:

A suburban Cleveland man accused of sexually assaulting nine disabled boys told a judge Wednesday that his apartment was a religious sanctuary where smoking marijuana and having sex with children are sacred rituals protected by civil rights laws....

[Phillip] Distasio, a self-professed pagan friar, is representing himself .... He said he's the leader of a church called Arcadian Fields Ministries, and that some of his congregants are among the victims in his case....

Cuyahoga County Bill Mason said Distasio was arrested after he wanted to write a blog for the Lakewood Library. Officials noticed something was wrong and notified Rocky River police.

Distasio was arrested on charges he molested two disabled boys he was tutoring at his home. He's also accused of raping seven other autistic children at a Cleveland school for special-needs students, The Plain Dealer reported. All but one of the boys was under 13, which carries a mandatory life-in-prison sentence if he is convicted, the paper reported....

This is a good illustration of two principles related to religious exemptions:

1. Though the Court has read the U.S. Constitution's Free Exercise Clause as not requiring the government to provide religious exemptions from generally applicable laws (i.e., laws that apply to conduct without regard to its religiosity), about half of U.S. jurisdictions do presumptively require such exemptions either under the state constitution's religious freedom clause or under the jurisdiction's religious freedom statute. The Ohio courts, for instance, have interpreted the Ohio Constitution this way.

2. But this is only a presumption, and generally not a strong presumption. (The cases and statutes tend to use the language of "strict scrutiny," requiring that denial of the exemption be "narrowly tailored to a compelling government interest," but while this test has been applied in a very demanding way as to content-based speech restrictions and as to most racial classifications, it has been applied in a much more pro-government way in religious freedom cases.) If there's a strong enough reason -- in the court's judgment -- for applying the law uniformly even to religious objectors, the law can be applied.

I'm positive that Ohio courts will find such a strong reason in the state's statutory rape laws (the Ohio age of consent, I believe, is 16). Some courts have suggested that such religious freedom regimes do mandate an exemption from bans on marijuana, but that's a minority view, and in any case wouldn't apply if any of the charges involved distribution of marijuana to minors.

Thanks to reader John Hackathorn for the pointer.

On the "handicapped" thread, Trevor Morrison asks:

My mother spent years as an advocate for the disabled. On the basis of her work there, I'm reasonably certain that people actually involved in the lives of the disabled tend to favor "disabled" over "handicapped." Your defense of "handicapped" relies on your account of the word's etymology. So is your position that the formal definition and origin of a word always defines its appropriate usage, or do contemporary changes in usage affect things?

A good question, which I think deserves a detailed answer.

First, let me make clear that I don't think etymology dictates meaning; my post about "handicapped" was a rebuttal to the argument that "handicapped has a pejorative etymology, therefore it's a rude term to use"; that argument, I pointed out, was premised on an inaccurate factual claim. But one can still argue that the term is pejorative even if its original meaning is fairly innocent. Let me also make clear that I don't want to fault anyone for trying extra hard to accommodate what he sees as the preferences of a group or some members of that group; if that's your choice, fine by me.

Rather, it seems to me that the interesting question here is whether people have some sort of good manners obligation to abandon "disabled" for "handicapped," "American Indian" for "Native American," "black" for "African American," and so on. I think the answer is generally no, unless the old term is so commonly used as a pejorative that listeners can reasonably infer that your use of it is pejorative, or possibly if the old term is so rarely used and thus archaic that listeners can reasonably wonder "what does he mean by that?" when they hear it (e.g., "Negro" or "Hebrew" as a noun to refer to Jews). The mere fact that some members of a group, or even a majority of the members of a group, prefer the new term doesn't impose on us an obligation to use the new term. Here are a few reasons why.

1. To begin with, note that Prof. Morrison cites the views not of the disabled generally (a hard group to poll), but of "people actually involved in the lives of the disabled." More precisely, I suspect that he is relying on the views of those people who are "advocates of the disabled" and who are outspoken enough to express their views as to the preference. This may well be a highly unrepresentative sample of the disabled.

Just by way of example, a 1995 Labor Department survey reported that 50% of American Indians preferred "American Indian" and only 37% preferred "Native American"; 44% of blacks preferred "Black" and only 40% preferred "African-American" or "Afro-American"; 58% preferred "Hispanic" and only 12% preferred "Latino" (no separate data was given for "Latino/a"). Matters may have shifted some since 1995, but not vastly; and I'm pretty sure that in 1995, the preferred terms among activists were "Native American," "African-American," and (here I'm less sure) "Latino," yet the actual majority (or, for blacks, plurality) preferences were different. (Source: U.S. News & World Report, Nov. 20, 1995.) Even if I thought that I had some moral or good manners responsibility to use the label preferred by a strong majority of the group, I see no basis for accepting such a responsibility to use the label preferred by a vocal minority, or even half of the group.

2. Moreover, shifting from an old label to a new label is not cost-free. It's not cost-free for the speaker. Sometimes the new term has shades of meaning that aren't quite apt for certain uses, and thus requires extra work to think through. ("African-American," for instance, isn't a racial group, but a racial subset of Americans; it thus isn't always an apt substitute.) Sometimes the new term carries an ideological literal meaning that the spaker may disliks evoking, even when it's fairly clear that he's using the term just as a label and not for its literal meaning. This is clearest for "differently abled" or "Latter-Day Saint" (I have nothing against Mormons, but I prefer not to call them Saints, even with the implied quotes). But it may also apply in other situations, such as with "disabled"; some people may genuinely prefer to stress the handicap (i.e., burden) under which a person labors rather than his disability.

Sometimes the word acquires a connotation of adherence to the ideology that spawned it; the word "womyn" may be the most famous example, though I suspect that these days it's so often used facetiously that people may want to avoid it for that reason as well. Speakers may then resist using the term because they don't want to be seen as proclaiming allegiance to an ideology that they do not adhere to. Sometimes the new term is just clunkier and sounds more stilted to many people; some, I suspect, take this view as to African-American, and I suspect that headline writers are especially unhappy with it.

3. But the more important cost to the speaker is that telling people that they should stop saying certain words, not because those words are likely to be reasonably interpreted as expressing hostility, but simply because some other people dislike those words, is itself something of an affront to dignity and a possible source of offense. Even the good-mannered among us cherish our freedom to speak as we please, and while we try not to be rude (in the sense of slighting others or saying bad things about them), we understandably bristle at being told to stop using this word and start using that one on pain of Being a Bad Person.

A sound explanation that shows why people are reasonably offended by a term (for instance, an explanation to someone coming from Russia, where "black" is insulting much like "yellow" would be, and "negro" is considered the proper scientific term, that in America "negro" is so rarely used that it sounds like a deliberate insult at worst or one of those what-did-he-mean-by-that? archaicisms at best) might soften the sting. But simply saying "most of us like this term, so stop using this other one that you've used all your life" is a legitimate source of offense for those whose speech people are trying to control. It's even more such a source if those people were once taught by then-representatives of the same group that "handicapped" was the better term, and some years later are now told that it's become bad. And it's especially so when the number of forbidden words grows and grows ("rule of thumb," "Chinese wall," "seminal," etc.).

4. On top of that, there's also another substantial cost to the "If you aren't a bigot, stop saying 'handicapped' and say 'disabled' instead" approach: It may actually increase how often the group that one is trying to protect from offense ends up feeling offended.

If handicapped people learn that some people say "disabled" and others say "handicapped," and that neither is evidence of hostility, a few might still bristle at one (or the other); but many will be satisfied by the explanation that decent people use both. But say that everyone is told that "disabled" is the one right term, and some decent people don't go along, whether because of force of habit, strong preference for "handicapped," or just bristling at being told what to say. Then handicapped people who hear the term may well become more offended, because they've been taught that the word is offensive.

People who might even prefer to shrug the term off might feel almost obligated to take it as an insult. If someone call