January 10, 2018

Nurturing Parenthood Through the UPA (2017)

[Cross-posted from the Yale Law Journal Forum]

By Courtney G. Joslin

Preferred Citation: Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018), http://www.yalelawjournal.org/forum‌/nurturing-parenthood-through-the-upa-2017.

Same-sex couples now have the right to marry throughout the country.[1] Yet despite this important development, LGBT-parent families still often find that their parent-child relationships are not recognized and protected. In The Nature of Parenthood, [2] Douglas NeJaime offers a careful exploration of why parentage law fails to protect LGBT-parent families and how it can be reformed to address those gaps in protection.

NeJaime's article shows how parentage law fails to protect LGBT-parent families by only partially recognizing nonbiological parents. In contemporary discussions of family law, it is often claimed that parentage law seeks merely to identify and recognize biological parents.[3] NeJaime shows that this claim is, at best, incomplete; the law has long recognized some nonbiological parents.[4] However, the law's recognition of nonbiological parentage has been "partial and incomplete."[5] Specifically, NeJaime demonstrates how the law recognizes nonbiological parenthood in asymmetrical ways that "reflect[] and perpetuate[] inequality based on gender and sexual orientation."[6] The marital presumption is one useful example. The marital presumption offers protection for nonbiological parents. In most states today, however, the literal text of the provision refers only to husbands, not wives.[7] It is this type of asymmetry that leaves vulnerable LGBT parents and others who "break from traditional norms of gender and sexuality,"[8] even in this post-marriage-equality era.

These asymmetries are cause for concern on a number of levels. First, adults in same-sex relationships are more likely to have their functional parentage relationships unprotected under current parentage law. This is yet another way in which LGBT-parent families continue to be treated unequally under the law. Second, these asymmetries can and often do harm children. If children's relationships with their functional parents are not protected, they may experience "dire consequences."[9] In some states, "children [in these families] can legally be denied any continued relationship with one of the parents and any financial or other support from that parent."[10] In addition, these asymmetries in parentage law may be unconstitutional. Scholars and litigants alike are indebted to NeJaime for sharpening our understanding and appreciation of the inequalities that still pervade parentage law.[11]

After providing this context, NeJaime offers concrete suggestions as to how states could amend their parentage laws to eliminate, or at least minimize, inequality based on gender and sexual orientation.[12] NeJaime gestures to courts as the entities most likely to resolve constitutional defects in parentage rules.[13] But as this Response points out, constitutional oversight can also come from state legislatures. Like courts, legislatures have an obligation to comply with the Constitution. Even without being judicially ordered to do so, legislatures are well situated to proactively reform their parentage statutes to address these sex- and sexual-orientation-based distinctions that continue to permeate parentage laws in many states.

Indeed, efforts have already been made to help state legislatures do just that. The newly revised UPA (2017)[14]-a project of the Uniform Law Commission (ULC)-implements many of the specific reforms that NeJaime recommends.

First, the UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the holding-out provision, but revises it so that it applies equally to men and women.[15] It also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage.[16] Finally, the Act updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.[17] All ART provisions of the UPA (2017) apply equally without regard to the sex, sexual orientation, or marital status of the intended parents.[18]

Second, by adopting the UPA (2017), states would bring their parentage statutes into compliance with the Supreme Court's decisions in Obergefell v. Hodges,[19] Pavan v. Smith,[20] and Sessions v. Morales-Santana[21] by removing gender-based distinctions. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect. The UPA (2017) addresses this potential constitutional infirmity by removing most of the gender distinctions in the Act.[22] As a result, most of the provisions in the Act apply without regard to gender or sexual orientation.

This Response to NeJaime's article has two goals. First, I highlight some of the ways that The Nature of Parenthood deepens our understanding of both the past and present law of parentage. NeJaime carefully demonstrates that the law has long recognized nonbiological parentage, but that this recognition is rooted in and perpetuates discriminatory distinctions. Second, I show how the recently approved revisions to the Uniform Parentage Act (UPA) provide a concrete way for states to reform their parentage laws to correct many of the inadequacies identified by NeJaime.

In Part I, I provide a brief overview of the important contributions NeJaime makes in The Nature of Parenthood. Through a careful review of past and current parenthood law, NeJaime shows how the law of parenthood in many states remains rooted in and reflects gender- and sexual orientation-based distinctions. NeJaime then charts a path that addresses those legal inadequacies. In Part II, I demonstrate how states have the opportunity to put many of those proposals in place now by adopting the UPA (2017). In Part III, I show how implementing those proposals could protect children's wellbeing and eliminate much of the discrimination identified by NeJaime.

i.  inequalities in parentage law

In recent years, opponents of equality for same-sex couples have suggested that the law properly elevates biological parenthood over other forms of parenthood.[23] This claim was critical to their argument about why it was permissible to exclude same-sex couples from marriage. Same-sex couples could not, the argument continued, fulfill the core purpose of marriage, which was to promote biological parenting.[24] In The Nature of Parenthood, NeJaime eloquently illustrates that that narrative is, at best, incomplete. The law does and always has recognized some forms of nonbiological parenthood. The core rule for assigning parenthood to men historically-the marital presumption-"both facilitated parental recognition that departed from biological facts and cut off claims to parental recognition based on biological facts."[25] Conversely, nonmarital biological fathers generally had no parental rights historically.[26] Thus, contrary to the assertions of some,[27] the law has recognized and continues to recognize nonbiological parenthood.

However, NeJaime continues, the law recognizes nonbiological parentage in asymmetrical ways. Within marriage, parentage rules reflect and enforce a "gender-differentiated, heterosexual family."[28] For example, in most states, the statutory marital presumption refers only to the "husband" of the woman who gave birth to the child.[29] This reinforces the perception that biology is destiny (and required) for motherhood, but not for fatherhood. Moreover, as a matter of law, some courts have refused to apply this type of gendered marital presumption equally to the female spouse of the woman who gave birth.[30] These rules and decisions make it difficult for women who "separat[e] the biological fact of maternity from the social role of motherhood" to establish parentage.[31] Under these gender-specific parentage rules, the parental relationships of female spouses in same-sex couples and nonbiological mothers in different-sex relationships may be unrecognized and unprotected. Moreover, by anchoring marital parenting around the woman who gave birth, the rules make it difficult for fathers in families without biological mothers to establish parenthood.

In the context of nonmarital families, "biological connection continu[es] to anchor nonmarital parenthood."[32] In most same-sex-parent families, at least one adult lacks a genetic relationship to the child. As a result, gay and lesbian parents are often denied full and equal legal recognition.

Recent Supreme Court decisions suggest that gender- and sexuality-based parentage rules are not only unjust but also unconstitutional. In Morales-Santana, the Court declared that laws, including rules about children, that "grant[] or deny[] benefits 'on the basis of the sex of the qualifying parent' . . . differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee."[33] In Obergefell, the Supreme Court held that same-sex couples must be permitted to marry and that these couples must be extended the rights and obligations of marriage equally.[34] In June 2017, the Supreme Court held in Pavan[35] that Arkansas's refusal to list a woman on the birth certificate of a child born to her same-sex spouse was inconsistent with its prior declaration in Obergefell. In light of these and other Supreme Court decisions, parentage rules that make distinctions based on sex or sexual orientation may infringe on the fundamental right to marry in violation of the Due Process Clause, or may constitute impermissible discrimination in violation of the Equal Protection Clause, or both.[36] Thus, the Arizona Supreme Court recently held that that state's marital presumption had to be applied equally to a female spouse.[37] As the Arizona Supreme Court explained, under Arizona's marital presumption, husbands were recognized as parents even if they were not biological parents. After Obergefell and Pavan, the court continued, that rule could not "be restricted only to opposite-sex couples."[38]

In addition to raising constitutional concerns, these gender- and sexuality-based asymmetries harm children.[39] When the law fails to recognize and protect functional or social parent-child relationships, children are harmed in a number of ways. Thousands of children have been abruptly cut off from one of the people they looked to and relied upon as a parent.[40] Experience and existing research tells us that this is damaging to children.[41] In addition, children may be denied a range of critical financial protections through that person, including child support and children's social security benefits, just to name two.[42] As I have previously noted, "[W]hether children have adequate financial support, and particularly whether they have access to child support, directly impacts their overall development and well-being."[43] For these reasons, it is important to seriously consider the problems identified by NeJaime.

After identifying the asymmetrical recognition (or nonrecognition, depending on how you view it) of nonbiological parentage, NeJaime begins to chart a path forward for addressing these legal inadequacies.[44] NeJaime's proposals are not quixotic; in fact, they are achievable. Indeed, advocates and state policymakers have an opportunity to put many of these proposals into place now. As I show in the next Part, many of NeJaime's proposals have been incorporated into the UPA (2017).

ii. implementing reform-the upa (2017)

I served as the Reporter for the UPA (2017).[45] First promulgated in 1973, the UPA is a comprehensive statutory scheme for determining a child's legal parentage.[46] The UPA is a product of the ULC, which "provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law."[47] The ULC promulgates state laws on a variety of topics on which uniformity is desirable-from business matters (Uniform Commercial Code), to probate matters (Uniform Probate Code), to child custody jurisdiction (Uniform Child Custody Jurisdiction and Enforcement Act).[48] While the drafters of Uniform Laws often look to state developments for guidance, the goal of the drafting process is not simply to "restate" the existing law.[49] Rather, the goal is to draft "well-conceived and well-drafted" legislation.[50] And often, projects are instituted to help states address newly emerging legal issues[51] or to respond to developments in an area of law.

This latter goal has been particularly evident throughout the history of the UPA. As Harry Krause, the Reporter of the original UPA, explained, states had been slow to reform their parentage laws to eliminate rules that discriminated against nonmarital children. Writing in 1966, Krause explained that "few states have undertaken a comprehensive review of their position on illegitimacy, and sporadic statutes are the common denominator."[52] This lack of action on the part of state legislatures was concerning, both as a matter of policy and as a matter of law. More and more children were being born outside of marriage, and these children were being treated unequally and unfairly in many states, Krause contended.[53] Moreover, Supreme Court decisions suggested that many then-existing state parentage laws were unconstitutional.[54] The UPA (1973) sought to help states comply with these constitutional mandates and to fulfill what was seen as an important policy goal: eliminating the status of illegitimacy and establishing the principle of equality for all children.[55]

The UPA has been quite influential. Laws in over half the states are now based on variations of the UPA.[56] Approximately nineteen states-ranging from Montana to Kansas to Hawaii to Rhode Island-enacted the UPA (1973) in whole or in significant part.[57] And eleven states-ranging from Alabama to Wyoming to Texas to Maine-enacted the UPA (2002).[58]

The newest revision of the Act-the UPA (2017)-was approved by the ULC in July 2017 and is now available for adoption by the states.[59] Like its predecessors, the UPA (2017) seeks to help states comply with newly recognized constitutional obligations and to better reflect and address the reality of the modern family.[60] The UPA (2017) implements, in concrete statutory language, many of the important reforms that NeJaime proposes.

Like NeJaime's prescriptions for review, the UPA revision process was guided by two principles. First, the UPA (2017) expands the pathways for recognition of nonbiological parentage.[61] Second, the UPA (2017) seeks to eliminate gender-based distinctions.[62] These changes help states comply with newly recognized constitutional mandates and reflect the emerging appreciation of the value in recognizing and protecting functional parent-child relationships.[63]

A. Recognizing the Social Bonds of Parenthood[64]

A core goal of the UPA (2017) is to further a principle that has animated the UPA since its inception-recognizing and protecting actual parent-child bonds.[65] Often, the people who are parenting a child are the child's biological parents. But this is not always the case. The UPA has and continues to take the position that actual parent-child bonds are important to children and that these relationships are worthy of protection, even if the parent and the child are not also connected by biology. As noted above, children may be harmed if the law fails to recognize and protect their actual parent-child relationships. The UPA (2017) furthers this core principle in several ways.

First, the UPA (2017) revises the holding-out provision so that it applies equally without regard to gender.[66] The holding-out provision has been included in the UPA since its first promulgation in 1973. Under the provision, a person can be recognized as a parent based on the individual's conduct of living with the child and treating the child as her own.[67] Initially, some courts concluded that the provision could only be used to recognize functional parent-child relationships if those relationships were also based on a biological connection. For example, in In re Nicholas H., a California intermediate appellate court held that even if the holding-out presumption arose based on the man's conduct of living with the child and treating the child as his own, the presumption was necessarily rebutted by evidence that the man was not the child's biological parent.[68] Over time, however, an increasing number of courts has rejected this limited understanding of the holding-out provision. This was true in the Nicholas H. case itself-on appeal, the California Supreme Court concluded that the man could be recognized as a parent under the holding-out provision even though he was not the child's genetic parent.[69] Courts in many other states have likewise concluded that functional, nongenetic parents can be recognized and protected under the holding-out provision.[70]

As noted above, the UPA (2017) continues to include the holding-out provision but takes it a step further by making the provision gender-neutral. Because a woman seeking protection under the provision will rarely be connected to the child by biology,[71] this revision makes it even more clear that the purpose of the provision is to recognize and protect actual parent-child relationships, including relationships that are not biologically based.

Second, the UPA (2017) includes an entirely new method of establishing parentage-the de facto parent provision.[72] Most states today extend some protection to functional, nonbiological parents.[73] Some states do this through a holding-out provision.[74] But even more states recognize and protect functional parent-child relationships under equitable doctrines.[75] The UPA (2017) incorporates this trend in the law in a particularly robust way. Under section 609, persons alleging themselves to be "de facto parents"-that is, parents in fact-can be recognized as legal parents who stand in parity with any other legal parents, including genetic parents, for all purposes.[76] This new method of establishing parentage based on function is written in gender-neutral terms and applies equally to men and women.[77] In addition, the provision captures and protects relationships that may not be covered by the holding-out provision. The holding-out provision of the UPA (2017) applies only when the individual was residing with and holding the child out as her own from birth. In many cases, however, functional parents come into children's lives at some point after they are born. The de facto parent provision provides a mechanism for recognizing these types of parent-child relationships.

Both the holding-out provision and the de facto parent provision require the development of an actual parent-child bond over time.[78] Thus, a person cannot be recognized as a parent under either provision at the moment of birth. In some situations, this lag in legal recognition can leave a family vulnerable. To be clear, however, there are other provisions of the UPA (2017) under which a biologically unrelated person can be recognized as (or at least presumed to be) a legal parent at or near the moment of birth. This may be possible, for example, under the marital presumption,[79] the voluntary acknowledgment process (which is described below),[80] and the assisted reproduction and surrogacy provisions.[81]

Third, the UPA (2017) expands the classes of people who can establish parentage through state voluntary acknowledgment processes (VAP). State VAP procedures implement a federal directive. To be eligible to receive certain federal funds, states must have in place a simple, administrative process for establishing paternity.[82] Once the procedures have been properly followed, completion of a VAP establishes parentage. Federal law provides that the properly completed VAP has the force of a judgment and must be recognized and respected by all other states.[83] Because the systems in most states only apply to men, they are generally referred to as "voluntary acknowledgments of paternity." Moreover, not only are the VAP systems generally limited to men, but most states allow only a man who is alleged to be a genetic father to establish parentage through this process.[84]

Most same-sex parent families, however, include at least one nonbiological parent. As a result, "the biological foundation of VAPs does not repair-but instead exacerbates-burdens experienced by the nonmarital children of same-sex couples."[85] To eliminate unnecessary gender distinctions and provide greater clarity and certainty to nonbiological parents, the UPA (2017) renames these "acknowledgments of parentage" and permits a wider group of people to establish parentage through this process. Section 301 provides that in addition to an alleged genetic father, a VAP can also be used to establish the legal parentage of "an intended parent" of a child born through assisted reproduction and of a "presumed parent" (which, most commonly, will be the woman's spouse-male or female).[86]

This revision is an extremely important development. The new groups of people who can establish parentage under this provision are those who would already be considered or presumed to be parents under their relevant state's law. But in the absence of a formal judgment of parentage, other states may not be required to respect and recognize that parent-child status.[87] And we know from existing case law that courts do refuse to recognize the parental status of LGBT parents, even if it was clear that they were considered parents in the state in which their child was born.[88] These problems arise because, absent a judgment of parentage, states often apply their own forum law when adjudicating parentage.[89] And when the person is LGBT, as NeJaime demonstrates, that person may not be considered a parent under the law of many states. This new, expanded VAP procedure helps mitigate some of this uncertainty. As a result, parties would have a means of establishing a final, secure determination of parentage without having to go to court.[90]

Fourth, the UPA (2017) provides greater clarity and direction to courts in deciding which of multiple claimants should be declared a child's parent when genetics and function suggest different results. The UPA requires courts to weigh a range of factors.[91] These factors include: "the length of time during which each individual assumed the role of parent of the child"; "the nature of the relationship between the child and each individual"; and "the harm to the child if the relationship between the child and each individual is not recognized."[92] Critically, almost all of the factors focus on the person's relationship to the child. As such, these rules permit a court to choose social bonds over genetic bonds.[93] Here again, the revision clarifies that parentage need not be based on biological connections and that biological connections are not necessarily more important than other means of establishing parentage.

To be sure, courts have discretion under section 613 when weighing competing claims of parentage. While a court could choose social ties over genetic bonds, it is not required to do so. And it is possible that a court could place significant weight on biology when weighing the respective claims. That said, this new provision makes clear that biology does not necessarily trump social bonds; if that were the case, a best-interests-of-the-child analysis that involves consideration of a range of factors focused on the individuals' relationships with the child would be unnecessary.

B. Eliminating Gender Distinctions

In addition to the changes described above, the UPA (2017) incorporates additional reforms intended to eliminate many gender distinctions in the rules of parentage.[94]

The UPA (2017) seeks to further the goal of gender equality through its very terminology. The prior versions of the Act distinguished between paternity and maternity and created different mechanisms for establishing each one.[95] Not only did this distinction erect different rules for men and women, but it also reinforced the notion that some inherent difference exists between mothers and fathers. In contrast, the UPA (2017) takes the position that under most of the rules for establishing parentage, an individual's gender is not relevant.[96] Accordingly, the UPA (2017) eliminates many of the gender-based distinctions from the Act and unifies the methods of establishing parentage under a single rubric. The UPA (2017) now lays out the ways in which any individual-male or female-can establish a legally recognized parent-child relationship.[97]

Consistent with this basic principle, throughout the Act, specific means of establishing parentage have been made gender-neutral. In addition to the provisions discussed above, the two articles addressing the parentage of children born through forms of assisted reproduction-article 7 addressing nonsurrogacy forms of ART, and article 8 addressing surrogacy-likewise replace gendered terms with gender-neutral ones. An earlier version of the Act-the UPA (2002)-had addressed the parentage of children born through ART, but its provisions referred only to intended couples consisting of one man and one woman.[98] Because the provisions were written in gendered terms, some courts refused to apply these gendered statutory provisions equally to same-sex intended parents who had children together through assisted reproduction.[99]

Articles 7 and 8 of the UPA (2017), by contrast, cover all intended parents, without regard to the sex, sexual orientation, or marital status of the intended parents.[100] These changes are consistent with NeJaime's call for "[a] more comprehensive and evenhanded use of consent in the regulation of ART" as a means to "promote equality, based on gender, sexual orientation, and marital status."[101] By replacing gendered language with gender-neutral language, the UPA (2017) promotes equality by opening up additional methods of establishing parentage to all individuals. In doing so, the Act also works to breaks down the persistent legal and social distinctions between mothers and fathers.

The revisions to the assisted reproduction provisions also further the first identified goal of recognizing and protecting social parenthood. As was true under the UPA (2002), the UPA (2017) does not require intended parents of children born through ART or surrogacy to have a genetic connection to the resulting child.[102] Indeed, under articles 7 and 8, parentage is established entirely by virtue of conduct.[103] Genetic connection is simply not relevant to establishing the parentage of intended parents under these articles.[104] Thus, an intended mother of a child born through assisted reproduction can be a legal mother even if she lacks a genetic or gestational connection to the resulting child.[105]

The Act also updates the parentage presumptions, including the marital presumption,[106] to remove most gender-based distinctions. All fifty states have a marital presumption.[107] In most states, however, the marital presumption expressly applies only to the husband of the woman who gave birth.[108] In such states, some courts have refused to apply their gender-specific marital presumption equally to female spouses.[109] In such jurisdictions, male spouses who are not biological parents are presumed to be legal parents, but similarly situated female spouses are not. This, some courts have concluded, is unconstitutional.[110] The UPA (2017) addresses this potential constitutional infirmity by making the marital presumption expressly apply equally to both male and female spouses of the woman who gave birth.[111]

 * *

To be clear, the UPA (2017) does not entirely eliminate considerations of gender and biology. The Act still places great weight on gestation. Thus, except in cases involving surrogacy, the woman who gave birth to the child is automatically considered a parent.[112] For this reason, the UPA (2017) does not go as far as NeJaime urges with regard to the marital presumption.[113] Because the woman who gave birth is statutorily defined as a parent, the marital presumption only applies to the spouse of the woman who gave birth.[114] It does not apply to the spouse of a man who is a legal parent. The spouse of that man may be able to establish parentage through other means, such as de facto parentage or the holding-out presumption. But he or she is not presumed to be a parent solely by virtue of his or her marriage to a parent.

In addition, the surrogacy provisions place some weight on genetics. While the intended parents need not have a genetic connection to be recognized as parents, article 8 does distinguish between gestational surrogacy and genetic surrogacy (often referred to as "traditional" surrogacy).[115] One may argue that if biology is not destiny, one should treat these forms of surrogacy identically. That is, if biology does not necessarily make one a parent, the surrogacy rules should apply equally, without regard to whether the surrogate is genetically related to the child. Treating these two forms of surrogacy differently, one may argue, unnecessarily re-elevates the importance of genetic connections.

The reality today, however, is that all states that address surrogacy through comprehensive statutory schemes distinguish between the two forms of surrogacy. Most of these states simply refuse to permit and regulate genetic surrogacy expressly.[116] And the few states that explicitly permit genetic surrogacy by comprehensive statutory scheme impose additional requirements on such agreements.[117] While ULC drafting committees seek to advance the law substantively, they also seek to draft laws that can be widely enacted, with the ultimate goal of uniformity throughout the nation. Here, the drafting committee determined that those two goals would be best furthered by the above approach. By including and permitting genetic surrogacy, the committee was providing clear rules and therefore greater clarity and certainty for those who form families through this means. But at the same time, the provisions regarding genetic surrogacy erect additional safeguards, thereby acknowledging and responding to the political reality that state legislators have been more reluctant to enact legislation expressly permitting this form of surrogacy.

iii. nurturing parentage law

If broadly adopted by a significant number of states, the revisions incorporated into the UPA (2017) would go a long way toward both addressing the discrimination that NeJaime identifies and protecting children's wellbeing. Since its first promulgation almost fifty years ago, the UPA has been a critical lever in addressing discrimination in parentage law. By enacting the original 1973 version, states began to chip away at longstanding discrimination and unequal treatment of nonmarital children.[118] It would be a tremendously positive step in the lives of children and their families if the most recent revision of the UPA was as successful as its predecessors.

As NeJaime suggests, there are a number of important reasons why states should consider revising their statutes in these ways. First and foremost, these changes help protect children and their families. Under current law in many states, people who children view and rely upon as parents may not be recognized as parents. Failing to recognize those relationships can harm children in very tangible ways.

Moreover, leaving families uncertain about their legal relationships to each other can be emotionally destabilizing. It can result in contentious litigation against an outsider who refuses to recognize and respect the family, such as an insurance company that denies benefits on the ground that they are not legal family members. Or the litigation could arise from within the family, such as upon the breakdown of the family where one person-often the biological parent-argues that the nonbiological parent is not a parent and not entitled to seek contact with the child. Family breakdowns are almost always difficult for children, and placing the child in the middle of acrimonious litigation can make that process even more difficult.

As NeJaime suggests, these families can and often do ask courts to apply gender-specific statutes in gender-neutral ways. But requiring individual families to ask courts to do this on a case-by-case basis places an enormous burden on families. It also places burdens on courts. Thus, in recent years, a number of courts have called upon state legislatures to do their part to update incomplete and outdated parentage regimes.[119] By enacting clear, express statutory provisions, states can provide families with clarity about the rules governing them. This clarity can help avoid unnecessary litigation and reduce the challenges that children face during what are already difficult periods in their lives.

Enacting the UPA (2017) would also help states comply with constitutional mandates of due process and equal protection. If a state permits a husband to be recognized as a legal parent even if he is not a genetic parent, the Constitution requires the state to make the same protection available to a female spouse.[120] As the Arizona Supreme Court reminded us, these constitutional mandates apply not just to courts-they also apply to state legislatures. And indeed, if the changes come from state legislatures rather than through the courts, the constitutional correction need not occur on a case-by-case basis. "[L]egislative enactments and rulemaking . . . can forestall unnecessary litigation and help ensure that [the] law guarantees same-sex spouses the dignity and equality the Constitution requires-namely, the same benefits afforded couples in opposite-sex marriages."[121] Adoption of the UPA (2017) assists states in fulfilling these constitutional obligations.

If adopted, these advances certainly will benefit and be felt by same-sex married couples and their children. Under the UPA (2017), many more of these married same-sex parents will have legally recognized relationships with their children, and these families will have greater certainty and security regarding their familial relationships as they travel about the country.

Helping states fulfill their constitutional obligation to treat married same-sex couples equally was a key impetus for the revision project. But it is also important not to overlook the fact that the impact of the UPA (2017) will extend beyond the boundaries of the marital family. Consistent with one of the core principles of the original UPA, the UPA (2017) seeks to ensure the equal treatment of nonmarital children as well.[122] As described above, many of the key provisions in the UPA (2017) apply equally not only without regard to gender and sexual orientation, but also marital status. The provisions that apply equally without regard to marital status include almost all of the provisions discussed above: the holding-out provision, the de facto parent provision, the VAP provisions, and the assisted reproduction provisions. The UPA (2017) is, therefore, an example of how marriage equality successes may be leveraged to achieve progress for all families-marital and nonmarital.[123]

conclusion

As NeJaime carefully demonstrates in The Nature of Parenthood, parentage law in most states continues to "reflect[] and perpetuate[] inequality based on gender and sexual orientation."[124] As a result, the law often leaves LGBT parents and women who separate social parenthood from genetic parenthood inadequately protected under the law. These legal inadequacies harm not only adults, but also the children in these families.

States have the opportunity to reform many of these existing limitations in parentage law by enacting the UPA (2017). The UPA (2017) implements many of the concrete reforms called for by NeJaime. I am hopeful that many states will seize this opportunity to do just that.

Courtney G. Joslin is a Professor of Law and a Martin Luther King Jr. Scholar at the UC Davis School of Law. Joslin was the Reporter for the UPA (2017). The author is grateful to Doug NeJaime and Jamie Pedersen for thoughtful feedback on this Response. For excellent editing assistance, I thank the editors of the Yale Law Journal, especially Dylan Cowit, Meenu Krishnan, Arjun Ramamurti, Erin van Wesenbeeck, and Kyle Victor.

Preferred Citation: Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018), http://www.yalelawjournal.org/forum‌/nurturing-parenthood-through-the-upa-2017.


[1].    Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).

[2].    Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260, 2265-66 (2017). To be sure, it is not just LGBT-parent families who remain vulnerable under existing parentage schemes. Other women who "separate motherhood from biological ties" may also experience difficulties in having their parentage recognized. Id. at 2266.

[3].    See, e.g., Petitioner's Supplemental Brief at 5, McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492 (Ariz. 2017) (No. CV-16-0266-PR), 2017 WL 2874198, at *5 ("To date, the legislature has never extended parentage beyond biology or adoption."). It is not uncommon to encounter inaccurate claims about the past and present state of family law. See, e.g., Courtney G. Joslin, Marriage, Biology, and Federal Benefits, 98 Iowa L. Rev. 1467, 1483 (2013) [hereinafter Joslin, Marriage, Biology] (describing the invocation of such claims). The persistence of the myth of family law localism is another example of a claim that is often made about family law that is likewise inaccurate or at least incomplete. See, e.g., Courtney G. Joslin, Federalism and Family Status, 90 Ind. L.J. 787, 789 (2015) (exploring the persistence of the myth of family law localism); see also, e.g., Kristin A. Collins, Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of States' Rights, 26 Cardozo L. Rev. 1761, 1764 (2005) (noting "the standard perception that there is a long-standing tradition of federal non-involvement in domestic relations law and policy"); Jill Elaine Hasday, The Canon of Family Law, 57 Stan. L. Rev. 825, 870 (2004) (describing and critiquing the claim that "family law is exclusively local"); Judith Resnik, Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale J.L. & Feminism 393, 415 (2002) ("[A]lthough statements that family law 'belongs' to the states are often made, federal statutory regimes govern many facets of family life.").

[4].    NeJaime, supra note 2, at 2272-75.

[5].    Id. at 2268.

[6].    Id.

[7].    See, e.g., id. app. A (noting that only 11 states and the District of Columbia have statutory gender-neutral marital presumptions).

[8].    Id. at 2265-66.

[9].    Sinnott v. Peck, No. 2015-426, 2017 WL 5951846, at *7 (Vt. Dec. 1, 2017).

[10].   Id.

[11].   The provision of a painstakingly careful and complex picture of history is a hallmark of NeJaime's scholarship. See, e.g., Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 Calif. L. Rev. 87, 91 (2014) (exploring the relationship between efforts to recognize nonmarital relationships and marriage); Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185, 1187 (2016) [hereinafter NeJaime, Marriage Equality] (exploring the dynamic relationship between the evolution of parentage law and marriage equality successes).

[12].   NeJaime, supra note 2, at 2266.

[13].   Id. at 2347-59.

[14].   Unif. Parentage Act (Unif. Law Comm'n 2017).

[15].   Id. § 204(a)(2) cmt.

[16].   Id. § 609.

[17].   Nonsurrogacy forms of ART are addressed in article 7 of the UPA (2017); surrogacy is addressed in article 8.

[18].   See, e.g., id. § 102(13) ("'Intended parent' means an individual, married or unmarrried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction."); id. § 703 ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child." (emphasis added)).

[19].   135 S. Ct. 2584 (2015).

[20].   137 S. Ct. 2075 (2017).

[21].   137 S. Ct. 1678 (2017).

[22].   See, e.g., Why Your State Should Adopt the Uniform Parentage Act, Uniform L. Commission (2017), http://www.uniformlaws.org/Act.aspx?title=Parentage%20Act%20(2017) [http://‌perma.cc/X827-Y2ED] ("After these decisions, state parentage laws that treat same-sex couples differently than different-sex couples are likely unconstitutional. By adopting UPA (2017), states can avoid litigation over these issues and uphold constitutional protections.").

[23].   I detail and critique these claims elsewhere. Joslin, Marriage, Biology, supra note 3, at 1467.

[24].   Id. at 1472 ("Under responsible procreation, same-sex couples are excluded from enjoying the benefits of marriage at the federal level because it just so happens that same-sex relationships cannot fulfill the core reason the federal government extends benefits to married couples in the first place: to foster and promote biological parenting."); see also Windsor v. United States, 699 F.3d 169, 199 (2d Cir. 2012) (Straub, J., dissenting), aff'd, 133 S. Ct. 3675 (2013) ("DOMA advances the governmental interest in connecting marriage to biological procreation by excluding certain couples who cannot procreate simply by joinder of their different sexual being[s] from the federal benefits of marital status.").

[25].   NeJaime, supra note 2, at 2272.

[26].   See id. at 2274-75; see also Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 Rutgers L. Rev. 73, 81-82 (2003) ("[B]y the late nineteenth century, mothers were generally accorded a formal legal connection to their out-of-wedlock children . . . . But while illegitimate children gained a formal connection to their mothers, non-marital fathers remained free of the legal burdens and benefits of parenthood." (footnote omitted)); Serena Mayeri, Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality, 125 Yale L.J. 2292, 2295 (2016) ("Traditionally, fathers had few rights or responsibilities to their nonmarital children.").

[27].   See, e.g., Petitioner's Supplemental Brief at 4-5, McLaughlin v. Jones ex rel. Cty. of Pima., 401 P.3d 492 (Ariz. 2017) (No. CV-16-0266-PR), 2017 WL 2874198, at *5 ("To date, the legislature has never extended parentage beyond biology or adoption."); Appellant's Final Reply Brief at 12, Gartner v. Iowa Dep't of Pub. Health, 830 N.W.2d 335 (Iowa 2013) (No. 12-0243) ("'[P]aternity' is defined consistently in Iowa Code as 'origin or descent from a father' or 'male parentage'; 'father' is uniformly defined and understood as 'the male, biological parent of a child.'" (citation omitted)).

[28].   NeJaime, supra note 2, at 2268.

[29].   See, e.g., Mont. Code Ann. § 40-6-105(1) (2017) ("A person is presumed to be the natural father of a child if any of the following occur: (a) the person and the child's natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce or after a decree of separation is entered by a court . . . .").

[30].   See, e.g., Turner v. Steiner, 398 P.3d 110, 113 (Ariz. Ct. App. 2017), abrogated by McLaughlin, 401 P.3d 492 ("Because [the] language [of Arizona's marital presumption] is clearly and unambiguously gender-specific to apply to men, the family court erred by applying the presumption of paternity to Oakley."); Paczkowski v. Paczkowski, 10 N.Y.S.3d 270, 271 (N.Y. App. Div. 2015) (holding that the marital presumption of legitimacy could not be applied to a female spouse because "presumption of legitimacy . . . is one of a biological relationship"); In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *8 (Tex. Ct. App. Apr. 27, 2017), petition for review pending ("Obergefell did not hold that every state law related to the marital relationship or the parent-child relationship must be 'gender neutral.'").

              To be clear, however, other courts have disagreed. See, e.g., McLaughlin, 401 P.3d at 498 ("In sum, the presumption of paternity under § 25-814(A)(1) cannot, consistent with the Fourteenth Amendment's Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples. The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses."); Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845, 859 (N.Y. Sup. Ct. 2014) (holding that a female spouse was a parent of a child born to her spouse under the marital presumption of legitimacy). In addition, a number of states have amended their marital presumptions to clarify that they must be applied equally to female spouses. See, e.g., Cal. Fam. Code § 7611(a) (West 2017); D.C. Code Ann. § 16-909(a-1)(2) (2017); 750 Ill. Comp. Stat. Ann. 46/204(1) (2017); Me. Stat., tit. 19-A, § 1881(1) (2017); N.H. Rev. Stat. § 168-B:2(V) (2017); Wash. Rev. Code Ann. § 26.26.116(1)(a) (2017).

[31].   NeJaime, supra note 2, at 2268.

[32].   Id.

[33].   Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017) (quoting Califano v. Westcott, 443 U.S. 76, 84 (1979)).

[34].   Obergefell v. Hodges, 135 S. Ct. 2584, 2601, 2604-05 (2015) (holding that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must permit same-sex couples to marry and extend to them "the constellation of benefits that the States have linked to marriage").

[35].   Pavan v. Smith, 137 S. Ct. 2075, 2079 (2017) ("Having made that choice [to list nonbiological male spouses on the birth certificate of a child born to a married couple], Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.").

[36].   See, e.g., McLaughlin v. Jones ex rel. Cty. Of Pima, 401 P.3d 492, 498 (Ariz. 2017).

[37].   Id.

[38].   Id.

[39].   For a more comprehensive exploration of the ways children are harmed when their functional parent-child relationships are not recognized and protected, see, for example, Courtney G. Joslin, Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010) (exploring financial harms); Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood To Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 573 (1990) (exploring emotional harms).

[40].   For one of the many heartbreaking stories, see Elaine Herscher, Family Circle for Nancy Springer, S.F. Chron. (Aug. 29, 1999) (describing the real-life aftermath of the decision in Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct. App. 1991)).

[41].   See, e.g., In re Custody of C.C.R.S., 892 P.2d 246, 258 (Colo. 1995) (en banc) (noting that disrupting emotional bonds between a child and psychological parents "would likely prove devastating to the child and would result in long-term, adverse psychological effects on the child" (citation omitted)).

[42].   Joslin, supra note 39.

[43].   Id. at 1196.

[44].   NeJaime, supra note 2, at 2332 (introducing the Part that "suggests how the law might better realize egalitarian commitments in parentage, not only with respect to families formed through ART but across the wider swath of families in contemporary society").

[45].   NeJaime served as an Observer on this project.

[46].   A revision of the UPA was undertaken in the 1990s. After approval by the ULC in 2000, the UPA (2000) underwent additional revision in 2001 and 2002 to respond to concerns raised by the ABA regarding the ways in which the UPA (2000) discriminated against nonmarital children. I participated in the negotiations and the revisions that led to the UPA (2002). For an account of this process, see John J. Sampson, Preface to the Amendments to the Uniform Parentage Act (2002), 37 Fam. L.Q. 1 (2003).

[47].   About the ULC, Uniform L. Commission, http://www.uniformlaws.org/Narrative.aspx‌?title=About%20the%20ULC [http://perma.cc/NF82-H2BZ].

[48].   Once an Act has been approved by the ULC, states are then encouraged to enact the statutory schemes. Id.

[49].   Id.

[50].   Id.

[51].   A good contemporary example of this is the Uniform Regulation of Virtual Currency Businesses Act, which was approved by the ULC in July 2017. Unif. Regulation of Virtual Currency Bus. Act (Unif. Law Comm'n 2017), http://www.uniformlaws.org/shared/docs‌/regulation%20of%20virtual%20currencies/2017AM_URVCBA_AsApproved.pdf [http://‌perma.cc/T8Z7-SYR8].

[52].   Harry D. Krause, Bringing the Bastard into the Great Society-A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829, 831 (1966).

[53].   Id. at 829.

[54].   See, e.g., Gomez v. Perez, 409 U.S. 535, 538 (1973) (per curiam) (holding unconstitutional a Texas child support statute that only imposed child support obligations on fathers of legitimate but not "illegitimate" children); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (holding unconstitutional an Illinois custody law that excluded nonmarital fathers of "illegitimate" children from the definition of "parent").

[55].   See, e.g., Unif. Parentage Act prefatory note (Unif. Law Comm'n 2002) ("When work on the [1973] Act began, the notion of substantive legal equality of children regardless of the marital status of their parents seemed revolutionary. Even though the Conference had put itself on record in favor of equal rights of support and inheritance in the Paternity Act and the Probate Code, the law of many states continued to differentiate very significantly in the legal treatment of marital and nonmarital children. A series of United States Supreme Court decisions invalidating state inheritance, custody, and tort laws that disadvantaged out-of-wedlock children provided both the impetus and a receptive climate for the Conference to promulgate UPA (1973).").

[56].   See id.

[57].   See id. ("As of December, 2000, UPA (1973) was in effect in 19 states stretching from Delaware to California; in addition, many other states have enacted significant portions of it."); see also Unif. Parentage Act Refs & Annos (Unif. Law Comm'n 1973) (listing state adoptions).

[58].   See Legislative Fact Sheet-Parentage Act, Uniform L. Commission, http://www.uniformlaws‌.org/LegislativeFactSheet.aspx?title=Parentage%20Act [http://perma.cc/HAL9-BXXL] (listing the following states as adopters: Alabama, Delaware, Illinois, Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming).

[59].   The UPA (2017) was approved by the ULC on July 19, 2017. The UPA (2017) is available at Unif. Parentage Act (Unif. Law Comm'n 2017), http://www.uniformlaws.org/shared‌/docs/parentage/UPA2017_Final_2017sep22.pdf [http://perma.cc/647K-AUGG]. For a memo describing the key changes implemented by the 2017 revision, see Memorandum from Jamie Pedersen, Chair, Unif. Parentage Act Drafting Comm. & Courtney Joslin, Reporter, Unif. Parentage Act Drafting Comm., to Unif. Law Comm'rs (June 9, 2017), http://‌www.uniformlaws.org/shared/docs/parentage/2017AM_Parentage_IssuesMemo.pdf [http://perma.cc/67UT-PE6P].

[60].   See, e.g., Memorandum from Jamie Pedersen, Chair, Study Comm. on Possible Amendments to the Unif. Parentage Act, to Comm. on Scope and Program 1 (Oct. 5, 2015), http://www‌.uniformlaws.org/shared/docs/parentage/2015oct5_AUPA_Report%20to%20Scope.pdf [http://perma.cc/XG5D-VQU4] ("We believe a drafting committee should be appointed to consider revisions to the UPA in light of developments in constitutional law, innovations at the state legislative level, and changes in American society over the nearly 20 years since the last major revision process began for the UPA.").

[61].   See, e.g., Memorandum from Courtney Joslin, Reporter, Unif. Parentage Act 2017 Drafting Comm., to Unif. Parentage Act 2017 Drafting Comm. 3-11 (Oct. 5, 2016), http://www‌.uniformlaws.org/shared/docs/parentage/2016oct_RUPA_Issues%20memo.pdf [http://‌perma.cc/7776-XPE2] (providing background information related to de facto parentage).

[62].   See, e.g., Memorandum from Jamie Pedersen, Chair, Study Comm. on Possible Amendments to the Unif. Parentage Act, to Comm. on Scope & Program 3 (June 12, 2015), http://www‌.uniformlaws.org/shared/docs/parentage/Parentage_StudyCmteFinalReport_2015jun12
.pdf [http://perma.cc/MJ9B-B3RD] (noting that in light of developments with regard to marriage equality, "ULC staff have begun the work of reviewing other ULC acts that include gender-specific references to husbands, wives, mothers, and fathers" and urging that the same should be done with the UPA).

[63].   See, e.g., Why Your State Should Adopt the Uniform Parentage Act, supra note 22.

[64].   This, again, is a principle that animates many of the reforms called for by NeJaime. See NeJaime, supra note 2, at 2338 (advocating for the "[f]uller recognition of the social bonds of parenthood").

[65].   The UPA (1973) and the UPA (2002) both included marital presumptions. Under both versions of the Act, the marital presumption protected the relationship between a woman's husband and a child born to the woman even if the husband was not the genetic father. Unif. Parentage Act § 204(a) (Unif. Law Comm'n 2002) ("A man is presumed to be the father of a child if: (1) he and the mother of the child are married to each other and the child is born during the marriage . . . ."); Unif. Parentage Act § 4(a) (Unif. Law Comm'n 1973) ("A man is presumed to be the natural father of a child if: (1) he and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court . . . ."). The UPA (2002) had a particularly strong version of the marital presumption, providing that it became conclusive or irrebuttable after the child's second birthday, and permitting a court to deny a request for genetic testing even within that two-year window. Unif. Parentage Act §§ 607, 608 (Unif. Law Comm'n 2002).

              In addition, both the UPA (1973) and the UPA (2002) allowed an individual to establish parentage based on the individual's conduct of living with the child and functioning as a parent to the child. Id. § 204(a)(5) (providing that a man is presumed to be the father of a child if: "for the first two years of the child's life, he resided in the same household with the child and openly held out the child as his own"); Unif. Parentage Act § 4(a)(4) (Unif. Law Comm'n 1973) (providing that a man is presumed to be a parent if, "while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child").

[66].   Unif. Parentage Act § 204(a)(2) (Unif. Law Comm'n 2017) ("An individual is presumed to be a parent of a child if: . . . (2) the individual resided in the same household with the child for the first two years of the life of the child, including any period of temporary absence, and openly held out the child as the individual's child." (emphasis added)).

[67].   Id. The holding-out provision of the UPA (1973) had no time limitations (other than the requirement that the relationship be developed when the child was still a minor). Unif. Parentage Act § 4(a)(4) (Unif. Law Comm'n 1973) (providing that a man is presumed to be a parent if, "while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child"). In 2002, a new time requirement was added. To be covered under the holding-out provision, the individual had to have functioned as a parent "for the first two years of the child's life." Unif. Parentage Act § 204(a)(5) (Unif. Law Comm'n 2002). This time requirement from the UPA (2002) was carried over in the most recent revision of the Act.

[68].   110 Cal. Rptr. 2d 126, 141, rev'd, 46 P.3d 932 (Cal. 2002), modified (July 17, 2002) ("Therefore, under section 7612, the presumption is rebutted by 'clear and convincing' evidence that the man is not the child's natural, biological father.").

[69].   46 P.3d at 941.

[70].   See, e.g., In re Parental Responsibilities of A.R.L., 318 P.3d 581, 584-85 (Colo. App. 2013); Partanen v. Gallagher, 59 N.E.3d 1133, 1138-40 (Mass. 2016); In re Guardianship of Madelyn B., 98 A.3d 494, 499 (N.H. 2014); Chatterjee v. King, 280 P.3d 283, 292-93 (N.M. 2012).

[71].   Usually, the woman who is genetically connected to the child is the woman who gave birth to the child. Such a woman is a parent by virtue of having given birth to the child. Unif. Parentage Act § 201(1) (Unif. Law Comm'n 2017) ("A parent-child relationship is established between an individual and a child if: (1) the individual gives birth to the child [except in situations involving surrogacy] . . . ."). The woman who gave birth to the child, therefore, would not need to invoke the holding-out provision to establish parentage. Sometimes, however, the woman who gave birth to the child is not the child's genetic parent. See, e.g., K.M. v. E.G., 117 P.3d 673 (Cal. 2005) (demonstrating parentage litigation involving twins born to a lesbian couple through ova sharing).

[72].   Unif. Parentage Act § 609 (Unif. Law Comm'n 2017). To be clear, some people who qualify as parents under the newly added de facto parent provision might have been protected under other provisions of earlier versions of the UPA. For example, such a person might have been protected under the holding-out provision of the UPA (1973). That said, the UPA (2017) is the first version of the Act to include the term "de facto parent." See, e.g., Memorandum from Courtney Joslin, Reporter, Unif. Parentage Act 2017 Drafting Comm., to Unif. Parentage Act 2017 Drafting Comm., supra note 61.

[73].   See, e.g., Courtney G. Joslin, Leaving No (Nonmarital) Child Behind, 48 Fam. L.Q. 495 (2014) (providing an overview of developments in the law).

[74].   See supra notes 68-70 and accompanying text.

[75].   See, e.g., Joslin, supra note 73, at 499-502.

[76].   Unif. Parentage Act § 609 (Unif. Law Comm'n 2017). The factors included in section 609 are based on the factors that have been developed by courts under common-law doctrines. In some states, however, individuals recognized under these common-law doctrines do not stand in parity with any other legal parents. See Joslin, supra note 73, at 500-01.

[77].   This provision also applies without regard to marital status.

[78].   See, e.g., Unif. Parentage Act § 204(a)(2) (Unif. Law Comm'n 2017) (providing that the individual must have "resided in the same household with the child for the first two years of the life of the child . . . and openly held out the child as the individual's child"); id. § 609(d)(5) (providing that an individual claiming to be a de facto parent must demonstrate that he or she "established a bonded and dependent relationship with the child which is parental in nature").

[79].   Id. § 204(a)(1). Under the marital presumption, the spouse of the woman who gave birth is presumed to be a parent of the child as soon as the child is born.

[80].   As explained in more detail below, the voluntary-acknowledgment-of-parentage provisions are included in article 3 of the UPA (2017).

[81].   Nonsurrogacy forms of assisted reproduction are addressed in article 7 of the UPA (2017) and surrogacy is addressed in article 8. As described in more detail below, articles 7 and 8 have been revised to apply to all intended parents, regardless of sex, sexual orientation, or marital status. Under article 7, if the intended parent consents to the insemination as required, the intended parent is a parent of the child from the moment of birth. See, e.g., id. § 703 (providing that an individual who consents to the assisted reproduction "is a parent of the child"). Under article 8, if the agreement complies with the article's requirements, an intended parent of a child born through gestational surrogacy "is a parent of the child." Id. § 809(a).

[82].   See, e.g., 42 U.S.C. § 666(a) (2012) ("In order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following procedures . . . .").

[83].   See, e.g., Katharine K. Baker, The DNA Default and Its Discontents: Establishing Modern Parenthood, 96 B.U. L. Rev. 2037, 2049 (2016) (noting that after the rescission period has elapsed, a VAP is treated as a "final legal judgment that can be challenged only on grounds of fraud, duress, and material mistake of fact"); see also 42 U.S.C. § 666(a)(5)(C)(iv) (2012) (providing that states must "give full faith and credit to such an affidavit signed in any other State according to its procedures"). As I explain elsewhere, having certainty that one's parentage will be recognized and respected across state lines is vitally important to families. Without a judgment of parentage or an establishment that is treated as a judgment, a person's status as a parent may flicker on and off as one travels from state to state. See, e.g., Courtney G. Joslin, Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harv. L. & Pol'y Rev. 31 (2010).

[84].   Nevada recently enacted a gender-neutral VAP procedure for children born through assisted reproduction. 2017 Nev. Legis. Serv. Ch. 63 (West).

[85].   NeJaime, supra note 2, at 2344; id. at 2344-45 ("A more egalitarian system would expressly allow VAPs to recognize parents not only on biological but also on social grounds. Voluntary acknowledgements of paternity could become voluntary acknowledgements of parentage and apply to both biological and nonbiological parents, including both men and women." (emphasis omitted)); see Joslin, supra note 83 (proposing a VAP-like system designed to protect LGBT-parent families); see also Leslie Joan Harris, Voluntary Acknowledgments of Parentage for Same-Sex Couples, 20 Am. U. J. Gender Soc. Pol'y & L. 467 (2012).

[86].   NeJaime calls for a similar reform. NeJaime, supra note 2, at 2344 ("The equality principles guiding reform would lead states to open VAPs to same-sex couples in ways that render VAPs explicitly capable of capturing social, and not only biological, grounds for parenthood.").

[87].   For more detailed explorations of this issue, see Courtney G. Joslin, Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 Ohio St. L.J. 563 (2009); Joslin, supra note 83.

[88].   Indeed, some courts have gone so far as to refuse to recognize a judgment recognizing the parentage of an LGBT parent entered by the court of another state. See, e.g., Embry v. Ryan, 11 So.3d 408, 410 (Fla. Dist. Ct. App. 2009) (overruling a trial court decision that had declined to recognize and enforce an out-of-state adoption judgment). It is now clear that where the party had been properly adjudicated to be a parent by the court of another state, that judgment must be given "exacting" full faith and credit in other states. V.L. v. E.L., 136 S. Ct. 1017, 1020, 1022 (2016) (per curiam) (quoting Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998)).

[89].   While states are constitutionally required to recognize and enforce out-of-state judgments, including parentage judgments, it is generally constitutionally permissible for courts to apply their own state's law to an action properly pending before them. See, e.g., Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. Rev. 1669, 1718 (2011) ("Modern choice-of-law doctrine recognizes that a state can constitutionally apply its own laws to an action so long as the chosen law has 'a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.'" (citation omitted)); see also Katherine Florey, State Courts, State Territory, State Power: Reflections on the Extraterritoriality Principle in Choice of Law and Legislation, 84 Notre Dame L. Rev. 1057, 1058-59 (2009) (stating that it is likely constitutionally permissible for a court to apply forum law to a case if the court properly has jurisdiction over the action).

[90].   I previously called for the creation of such a system. Joslin, supra note 83, at 43-45.

[91].   Unif. Parentage Act § 613 (Unif. Law Comm'n 2017).

[92].   Id.

[93].   Id.

[94].   As discussed below, the UPA (2017) does not eliminate all distinctions based on gender and biology; it continues to place weight on a woman's gestation of a fetus. See infra notes 112-115 and accompanying text.

[95].   See, e.g., Unif. Parentage Act § 201 (Unif. Law Comm'n 2002).

[96].   In addition to revising the Act to replace most gender-specific references with gender-neutral ones, the Act continues to include (as it has since its inception) a provision requiring parentage rules to apply in a gender-neutral manner to the extent practicable. Unif. Parentage Act § 107 (Unif. Law Comm'n 2017) ("To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship." (alterations in original)); see also Unif. Parentage Act § 21 (Unif. Law Comm'n 1973) ("Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this Act applicable to the father and child relationship apply.").

[97].   Unif. Parentage Act § 201 (Unif. Law Comm'n 2017); see also id. § 201 cmt. Thus, as NeJaime urges, the UPA (2017) moves "away from separate regulations of maternity and paternity and instead work[s] toward the general regulation of parentage." NeJaime, supra note 2, at 2337-38.

[98].   See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2002) ("A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in Section 704 with the intent to be the parent of her child, is a parent of the resulting child.").

[99].   See, e.g., In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App. Apr. 27, 2017), petition for review pending ("Reading the [assisted reproduction statute based on UPA (2002)] as requested by Appellant would affect a substantive change to the respective statutes, and it would materially alter the requirements outlined in subsection (a) and (b) of the ART statute as to husband and wife. The substitution of the word 'spouse' for the words 'husband' and 'wife' would amount to legislating from the bench, which is something that we decline to do.").

[100]. See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2017) ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child."); see also, e.g., id. § 102(13) (defining "intended parent" to mean "an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction").

[101]. NeJaime, supra note 2, at 2345. NeJaime relies on my own call for a gender-neutral consent-to-parent rule. Joslin, supra note 39, at 1183 (arguing that "the most appropriate solution is to apply the consent = legal parent rule to all children born through alternative insemination, regardless of the marital status, gender, or sexual orientation of the participants").

[102]. Some states do include such a requirement. For example, in Louisiana, surrogacy is permitted only when the intended parents are a married husband and wife who are using only their own gametes. La. Stat. Ann. § 40.32(1) (2012 & Supp. 2017) (providing that "'[b]iological parents' means a husband and wife, joined by legal marriage recognized as valid in this state, who provide sperm and egg for in vitro fertilization, performed by a licensed physician, when the resulting fetus is carried and delivered by a surrogate birth parent who is related by blood or affinity to either the husband or wife").

[103]. See, e.g., Unif. Parentage Act § 703 (Unif. Law Comm'n 2017) ("An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child."); id. § 809(a) ("Except as otherwise provided in subsection (c) or Section 810(b) or 812, on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child."); see also, e.g., id. § 102(13) (defining "[i]ntended parent" to mean "an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction").

[104]. Indeed, a new section was added to article 5, addressing genetic testing, that drives this point home. The new section 502(b) states that genetic testing cannot be used to challenge the parentage of an individual who is a parent under articles 7 or 8. This new subsection was added because "parentage of an intended parent under articles 7 and 8 is not premised on a genetic connection." Id. § 502 cmt. Therefore, "the lack of genetic connection should not be the basis of a challenge to the individual's parentage." Id.

[105]. Id. § 801 (laying out criteria for intended parents through surrogacy).

[106]. For an earlier consideration of these questions regarding the application of the marital presumption to same-sex couples, see Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 B.U. L. Rev. 227 (2006).

[107]. See, e.g., Leslie Harris et al., Family Law 865 (4th ed. 2014) ("In all states a child born to a married woman is at least rebuttably presumed to be the child of her husband.").

[108]. See, e.g., NeJaime, supra note 2, app. A (indicating that only 11 states and the District of Columbia have statutory gender-neutral marital presumptions).

[109]. See, e.g., Turner v. Steiner, 398 P.3d 110, 114 (Ariz. Ct. App. 2017), abrogated by McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492, 498 (Ariz. 2017) ("The first flaw is that Obergefell does not extend so far as to require the courts to modify statutory schemes relating to same-sex parenting."); In re A.E., No. 09-1600019-CV, 2017 WL 1535101, at *8 (Tex. App. Apr. 27, 2017), petition for review pending ("Furthermore, we conclude that Obergefell does not require this Court to act as the Legislature and re-write the Texas statutes that define who has standing to bring a [suit affecting the parent-child relationship].").

[110]. See, e.g., McLaughlin, 401 P.3d at 498 ("In sum, the presumption of paternity under § 25-814(A)(1) cannot, consistent with the Fourteenth Amendment's Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples. The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.").

[111]. Unif. Parentage Act § 204(a)(1)(A) (Unif. Law Comm'n 2017) ("An individual is presumed to be a parent of a child if: . . . the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage . . . .").

[112]. Id. § 201(1).

[113]. See NeJaime, supra note 2, at 2340 (arguing that some variation of the marital presumption should apply to the spouse of a legal father).

[114]. While NeJaime argues that some variation of the marital presumption should apply to the spouse of a legal father, he agrees that the traditional presumption should not be applied to that scenario. Instead, he proposes a "two-tiered system of marital presumptions." Id. A fully gender-neutral marital presumption, he concedes, "may insufficiently protect the rights of women who give birth." Id.

[115]. Unif. Parentage Act art. 8 cmt. (Unif. Law Comm'n 2017) ("While UPA (2017) continues to permit both types of surrogacy, UPA (2017) imposes additional safeguards or requirements on genetic surrogacy agreements.").

[116]. Only four jurisdictions expressly permit genetic surrogacy by statute. These jurisdictions are Florida, Maine (for close relatives only), Virginia, and the District of Columbia. E.g., id. art. 8 pt. 3 cmt.

[117]. For example, in Maine, genetic surrogacy arrangements are permissible only if the surrogate is a family member. Me. Rev. Stat. Ann. tit. 19-A, § 1931(1)(E) (2017) (providing that the surrogate must "[n]ot have contributed gametes that will ultimately result in an embryo that she will attempt to carry to term, unless the gestational carrier is entering into an agreement with a family member"). In Florida, Virginia, and the District of Columbia, the provisions give a genetic surrogate additional time in which to withdraw her consent. D.C. Code Ann. § 16-411(4) (West 2017) ("In the case of a child born by a traditional surrogate, [the surrogate can withdraw her consent] within 48 hours after the birth of the child."); Fla. Stat. Ann. § 63.213(2)(a) (West 2017) (providing that the surrogate (what Florida calls a "volunteer mother") has the right to rescind her consent "any time within 48 hours after the birth of the child, if the volunteer mother is genetically related to the child"); Va. Code Ann. § 20-161(B) (West 2017) ("Within 180 days after the last performance of any assisted conception, a surrogate who is also a genetic parent may terminate the agreement by filing written notice with the court.").

[118]. The UPA (1973) grew out of work by Krause. See, e.g., Krause, supra note 52, at 829.

[119]. See, e.g., McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492, 500-01 (Ariz. 2017) (urging the legislature to act); Sinnott v. Peck, No. 2015-426, 2017 WL 5951846, at *12 (Vt. Dec. 1, 2017) ("We continue to urge the Legislature to take action in this realm, and hope that the study commissioned by the Legislature and cited by the dissent leads to the enactment of statutory revisions that render this decision, and others cited above, obsolete. The global perspective, consideration of extensive empirical evidence, and public input and accountability of the legislative process are better suited than case-by-case adjudications to developing a coherent law of parental status." (citation omitted)).

[120]. McLaughlin, 401 P.3d at 498 ("The marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.").

[121]. Id. at 501.

[122]. See Unif. Parentage Act § 2 (Unif. Law Comm'n 1973) ("The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.").

[123]. In this way, the UPA (2017) is a concrete example of the very dynamic that NeJaime identified in Marriage Equality and the New Parenthood: the UPA (2017) "shows how marriage equality can facilitate the expansion of intentional and functional parentage principles across family law-not only inside but also outside marriage, for both same-sex and different-sex couples." NeJaime, Marriage Equality, supra note 11, at 1190; see also Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, 97 B.U. L. Rev. 425 (2017) (arguing that the Court's gay rights decisions can support rather than foreclose protections for those living outside of marriage).

[124]. NeJaime, supra note 2, at 2268 (footnote omitted).

 

November 29, 2016

New Op-Eds by King Hall Faculty

In recent weeks, King Hall faculty have written several opinion pieces for the press.

Kevin R. Johnson in The Sacramento Bee: Trump's Immigration Promises Fraught with Obstacles

The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court. Increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.

Brian Soucek in The Los Angeles Times: Stop Proposition 8, and Marriage Inequality in California, from Making a Comeback

A federal district court judge found Proposition 8 unconstitutional in 2010, but legal appeals kept it alive until 2013, when a U.S. Supreme Court ruling finally allowed same-sex weddings to resume in California. Laws that are found unconstitutional don't get erased; they just lose their legal force. So the text of the ban lies in wait, ready to spring back into action if given the chance. The election of Donald Trump might provide that chance.

Irene Oritseweyinmi Joe in The Los Angeles Times: Like Many Immigrants, I Owe a Debt to the Republican Party - of the 1980s

Imagine their surprise, however, when I let them know that, although I disagreed with some of Reagan's policies, there was one for which I would always be grateful. My family had been undocumented immigrants, and it was the Reagan amnesty program that allowed us to exit the shadows.

Jasmine E. Harris in the Tribune News Wire (providing content for news media around the world): The Right to Vote for People with Mental Disabilities

Beyond physical obstructions to poll sites, voters with mental disabilities -- including learning disabilities, autism, Down syndrome as well as dementia and Alzheimer's -- face an even greater challenge in casting their ballots: deeply entrenched stereotypes that shape election law and policy. The majority of states deny these citizens, either by law or common practice, the right to vote.

Elizabeth Joh in Slate: Five Lessons from the Rise of Bodycams

More than two years after Ferguson became a hashtag, spawned a movement, and drew national attention to problems about police accountability, the most tangible reform has been the spread of police body cameras. Their use seemed like a clear solution to problems of trust and oversight, but the reality hasn't been that simple. Body cameras have introduced new problems of their own. How can we do better when the next new police technology arrives? Here are five things to keep in mind.

Elizabeth Joh in NYTimes.com's Room for Debate: Should the President Be Able to Block You on Twitter?

Like granting the White House press pool access, the president’s social media obligations may ultimately be decided as a matter of custom. In a democratic society that values transparency and accountability, keeping the social media account of a president open to all ought to be part of these customs.

July 1, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 3

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers.

"The Racist Algorithm?" 
Michigan Law Review (2017 Forthcoming)
UC Davis Legal Studies Research Paper No. 498

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

"Marriage Equality and its Relationship to Family Law" 
129 Harv. L. Rev. F. 197 (2016)
UC Davis Legal Studies Research Paper No. 499

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

This Essay is a Response to Professor Douglas NeJaime's article Marriage Equality and the New Parenthood. NeJaime's piece offers critical new insights into the evolution of legal parenthood and its relationship to marriage. First, NeJaime shows how evolving protections for nonbiological parents served as stepping stones in the march toward marriage equality. Surprisingly, few scholars have acknowledged, much less carefully explored, this connection. Second, NeJaime uses his meticulous parentage case study to complicate our understanding of the extent to which this earlier parentage advocacy directly challenged marriage's privileged role in our society. Finally, NeJaime argues that this history suggests more progressive possibilities with regard to the future legal treatment of nonmarital children post-Obergefell.

After highlighting these three key contributions, this Essay makes two additional points. First, this Essay considers why this important story about parentage law and its relationship to marriage equality has attracted less attention than it deserves. Second, this Essay considers a critical possibility not addressed by NeJaime. NeJaime uses parentage law to show how Obergefell might facilitate, rather than foreclose, additional protections for nonmarital children. This Essay posits an even more radical proposition: it argues that marriage equality might open up progressive possibilities not just for nonmarital children, but also for nonmarital adult relationships.

"Preliminary Injunctive Regulation" 
Arizona Law Review, Vol. 58 (Forthcoming)
UC Davis Legal Studies Research Paper No. 497

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Rapid technological changes pose serious challenges for the Environmental Protection Agency (EPA) and other regulators charged with protecting human health and the environment. These changes can result not only in significant harms, but also in the entrenchment of new technologies that can be difficult to undo should the need arise. In urgent circumstances, agencies often must act quickly, but they face an increasingly ossified rulemaking process. The Administrative Procedure Act's good cause exception to notice and comment rulemaking offers the most promising option for a swift and effective response. Empirical analysis of EPA's use of that exception demonstrates that, contrary to concerns regarding potential agency abuse, EPA has exercised restraint in invoking the exception. Going forward, EPA should consider more aggressive use of the exception to respond to urgencies resulting from rapid technological developments and environmental changes. In justifying an expedited approach, EPA can make explicit reference to congressional inaction on an issue, the generally protracted nature of contemporary rulemaking, and the particular delays that the agency has encountered in ordinary rulemaking.

"Interstitial Citizenship" 
Fordham Law Review, 2017 Forthcoming
UC Davis Legal Studies Research Paper No. 496

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

We think of American citizenship as a binary concept. There is citizenship, which is acquired at birth or through naturalization, and there is non-citizenship accounting for everyone else. I argue that this understanding is woefully incomplete. Conventional framing of citizenship has overlooked a different type of political membership: American national status. American nationals possess some rights of citizenship, such as the right to enter and reside in the United States without a visa. Similar to non-citizens, however, they cannot vote or serve on the jury. Thus, the status of American nationals reveals that there are individuals who are neither citizens nor nor-citizens or "aliens." Instead, they have what I have coined "interstitial citizenship." Disrupting the citizen/alien binary, interstitial citizenship demonstrates that citizenship is far more flexible than previously thought. Indeed, it reveals that citizenship rights may be unbundled and conveyed to non-citizens. In this way, interstitial citizenship offers important legal and policy implications for contemporary debates on comprehensive immigration reform, including the question of whether to provide undocumented immigrants with a path to citizenship.

June 17, 2016

Citizenship Victory for Aoki Center and Immigration Law Clinic


Our client Marianne Wilson Kuroda

The Aoki Center for the Critical Study of Race and Nation and the Immigration Law Clinic recently won a derivative citizenship case on behalf of their client, Marianne Wilson Kuroda, who is born, raised and continues to live in Japan.  Specifically, the Center and the Clinic argued that Mrs. Wilson Kuroda was born a U.S. citizen through her father, a U.S. citizen, based on Section 301(g) and 309(b) of the Immigration and Nationality Act (INA). 

Section 301(g) recognizes that a person is a U.S. citizen at birth provided that:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

Because Mrs. Wilson Kuroda's parents -- an American man and a mixed-race Japanese, Swedish and German woman born in Japan -- could not marry under federal and military rules that prohibited their interracial marriage, Mrs. Wilson Kuroda was a child born out-of-wedlock.  Thus, she also had to meet the requirements of Section 309(b) of the INA, which provided that "the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation."  Her father, James Vaughn, was forced to return to the United States and sought to bring Mrs. Wilson Kuroda and her mother to immigrate the United States.  Because they were Japanese, they were racially inadmissible under immigration law and needed special legislation to allow them to enter the United States.  At the time of Mrs. Wilson Kuroda's birth in April 1949, Mr. Vaughn was a resident of Nevada.  Thus, for purposes of establishing legitimation, Nevada law applied. (In 1956, Mrs. Wilson Kuroda, then just a little girl, was at the center of a case titled Sweden v. Yamaguchi.)

The Center and the Clinic submitted evidence that Mrs. Wilson Kuroda's father legitimated her before she turned 21 years old.  Evidence submitted include letters that her father sent to Senator Pat McCarran acknowledging Mrs. Wilson Kuroda as his child.  These letters became the basis for a private bill that Senator McCarran introduced in June 1949 and that passed Congress in August 1950.  Unfortunately, Mrs. Wilson Kuroda's mother died on the same day that the bill became law.  Mrs. Wilson Kuroda and her father would never meet. 

However, the Center and the Clinic argued that Mr. Vaughn took sufficient steps under Nevada law to legitimate Mrs. Wilson Kuroda.  Thus, on January 5, 2016, with the assistance of the Center and the Clinic, Mrs. Wilson Kuroda filed an application for a U.S. passport at the U.S. Embassy in Tokyo.  On June 6, 2016, the U.S. Embassy agreed and approved Mrs. Wilson Kuroda's application for a U.S. passport, essentially recognizing her as a U.S. citizen.

Professor Leticia Saucedo and I worked on the case with David Canela ('16), J.J. Mulligan ('15), Emily Wilson ('13), and Andrea Wu ('15).

September 25, 2015

"Liberty or Equality?" and the Obergefell Opinion

On Wednesday, September 23, I presented the annual Anthony Kennedy Lecture at the Lewis & Clark Law School.  The subject of my talk was "Liberty or Equality?", and the topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage.  In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence.  In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell.  The latter were considered to be moderate pragmatists, lacking strong judicial philosophies.  Not so for Justice Kennedy.  From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity.  This commitment appears in his  privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free speech -- it is no coincidence that Kennedy is the preeminent advocate of First Amendment liberties on the modern Court.  Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech.  It is this lack of partisanship, rather than lack of philosophy, that has placed Justice Kennedy at the center of the modern Court.

I then stirred up the pot a bit by raising some doubts about Obergefell, at least as written.  I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both.  Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality almost as an afterthought.  I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels.  While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent.  He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) a commitment to racial integration.  However, he has demonstrated -- notably in affirmative action cases -- grave discomfort with policies that classify individuals based on qualities such as race.  Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity.  As a consequence, Liberty must have seemed the easier path to take.

Ultimately, however, I do believe this choice was a mistake, for several reasons.  First, I think that jurisprudentially, Equality is the stronger argument.  The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding.  Equal Protection, on the other hand, is a well-established, textually based doctrine.  And the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent.  Second, an Equality based holding would have been broader, granter more protections to sexual minorities than a narrow decision focused on marriage.  Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative).  Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less in legislative authority.

May 1, 2015

New Research from the Faculty at UC Davis School of Law

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Productive Tensions: Women's NGOs, the 'Mainstream' Human Rights Movement, and International Lawmaking" Free Download
Non-State Actors, Soft Law and Protective Regimes: From the Margins (Cecilia M. Bailliet ed., Cambridge University Press, 2012).
UC Davis Legal Studies Research Paper No. 422

KARIMA BENNOUNE, University of California, Davis - School of Law

Non-govermental organizations (NGOs) are among the most discussed non-state actors involved in the creation, interpretation, and application of international law. Yet, scholars of international law have often over looked the critical issue of diversity among NGOs, and the differing stances they may take on key international law issues and controversies. This oversight exemplifies the ways in which international law scholarship sometimes takes overly unitary approaches to its categories of analysis. Feminist international law questions the accuracy of such approaches. When one unpacks the "NGO" category, one often discovers multiple NGO constituencies reflecting conflicting concerns and perspectives. Hence, feminist international law theories should reflect a view of NGOs as international lawmakers that is equally complexified.

This chapter will focus on one example of such NGO diversity, namely the inter-NGO dynamic sometimes found between women's human rights NGOs and what is often termed the "mainstream" human rights movement. These relationships have long been complicated . At times these constituencies are allies with the same international law priorities. At other times they are opponents or at least involved in what might be described as a tense dialogue. Sometimes the "mainstream" human rights groups become themselves the targets of the lobbying of women's human rights groups. Indeed, women's human rights NGOs and other human rights NGOs may have very different views of particular inter­ national law questions . Over time, however, the women's rights groups have often - though not always - prevailed on human rights groups to evolve their view of international law in a more gender-sensitive direction.

This dialectical relationship between women's groups and other human rights groups has played out in numerous arenas, including in the 1990s debate over the definition of torture, and, most recently in regard to the need to (also) respond to atrocities by fundamentalist non-state actors in the context of critiquing the "war on terror:' In each instance, women's groups and other human rights NGOs have some­ times had uneasy, multifaceted and shifting relationships that have shaped critical international lawmaking processes and debates. Groups within both of those broad categories of NGOs have also taken diamet­rically opposed positions at times. All of these sets of complexities, these putatively productive tensions, have both enriched and rendered more difficult the role of NGOs as lawmakers, and must be reflected in any meaningful theorizing of the issue.

What then should these layered inter-NGO dynamics tell us about our conception of "NGO" as a category of analysis, and about the role of NGOs in the creation and practice of international law? What can analyzing these dynamics tell us about how progress can most success­ fully be made toward a feminist reshaping of international law? This chapter will consider each of these questions in light of several case studies.

I come at this subject from a range of vantage points, having been an Amnesty International legal adviser, having also worked closely with a range of women's NGOs, and currently as an academic. Hence, I will try to look at these questions at the intersection of both academic and these various practitioner perspectives. To that end, this chapter begins with a brief overview of NGOs and their roles on the inter­national law stage, as described in the literature. An examination of the categories used here follows, interrogating the meaning of the terms, "women's human rights NGO" and "mainstream human rights NGO." Subsequently, the chapter reviews the case studies drawn from practice, first with regard to NGO interaction concerning the definition of torture, and then bearing on responses to the "war on terror." It then concludes with a brief application of the lessons learned from these case studies about the meaning of NGO participation in international lawmaking.

"Administering Section 2 of the VRA After Shelby County" Free Download
Columbia Law Review, vol. 115 Forthcoming
UC Davis Legal Studies Research Paper No. 372

CHRISTOPHER S. ELMENDORF, University of California, Davis - School of Law
Email: cselmendorf@ucdavis.edu
DOUGLAS M. SPENCER, University of Connecticut, School of Law
Email: dspencer@berkeley.edu

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court's evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

"Bait, Mask, and Ruse: Technology and Police Deception" Free Download
128 Harvard Law Review Forum 246 (2015)
UC Davis Legal Studies Research Paper No. 423

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance or on the use of algorithms for predictive policing or threat assessment. No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

"Richard Delgado's Quest for Justice for All" Free Download
Law and Inequality: A Journal of Theory and Practice, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 421

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This is a contribution to a symposium celebrating Richard Delgado's illustrious career in law teaching. This commentary offers some thoughts on Delgado's contributions to pushing the boundaries of Critical Race Theory - and legal scholarship generally - in seeking to create a more just society. This ambitious program has been the overarching theme to his scholarly agenda throughout his career.

"Leaving No (Nonmarital) Child Behind" Free Download
48 Family Law Quarterly 495 (2014)
UC Davis Legal Studies Research Paper No. 414

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu

Almost ten years, in 2005, I wrote a piece for the Family Law Quarterly describing the legal status of children born to same-sex couples. This Essay explores the some of the positive and some of the worrisome developments in the law since that time. On the positive side, today many more states extend some level of protection to the relationships between nonbiological same-sex parents and their children. Moreover, in many of these states, lesbian nonbiological parents are now treated as full, equal legal parents, even in the absence of an adoption.

There are other recent developments, however, that should be cause for concern. Specifically, this Essay considers recent legislative proposals that contract (rather than expand) existing protections for functional, nonmarital parents. I conclude by arguing that while advocates should celebrate the growing availability of marriage for same-sex couples, they must also be careful not to push legislative efforts that inadequately protect the large and growing numbers of families that exist outside of marriage.

"Amici Curiae Brief of Family Law Professors in Obergefell v. Hodges" Free Download
UC Davis Legal Studies Research Paper No. 420

COURTNEY G. JOSLIN, University of California, Davis - School of Law
Email: cgjoslin@ucdavis.edu
JOAN HEIFETZ HOLLINGER, University of California, Berkeley - School of Law
Email: joanhol@law.berkeley.edu

This Amici Curiae brief was filed in the Supreme Court on behalf of 74 scholars of family law in the four consolidated same-sex marriage cases.

The two questions presented in the cases concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Those defending the marriage bans rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. The brief demonstrates that these asserted rationales conflict with basic family laws and policies in every state, which tell a very different story.

"Fracking and Federalism: A Comparative Approach to Reconciling National and Subnational Interests in the United States and Spain" Free Download
Environmental Law, Vol. 44, No. 4, 2014
UC Davis Legal Studies Research Paper No. 424

ALBERT LIN, University of California, Davis - School of Law
Email: aclin@ucdavis.edu

Hydraulic fracturing presents challenges for oversight because its various effects occur at different scales and implicate distinct policy concerns. The uneven distribution of fracturing's benefits and burdens, moreover, means that national and subnational views regarding fracturing's desirability are likely to diverge. This Article examines the tensions between national and subnational oversight of hydraulic fracturing in the United States, where the technique has been most commonly deployed, and Spain, which is contemplating its use for the first time. Drawing insights from the federalism literature, this Article offers recommendations for accommodating the varied interests at stake in hydraulic fracturing policy within the contrasting governmental systems of these two countries.

"Access to Justice in Rural Arkansas" Free Download
UC Davis Legal Studies Research Paper No. 426

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu
J. CLIFF MCKINNEY, Independent
Email: cmckinney@QGTlaw.com
JULIANA FEHRENBACHER, Independent
Email: jfehr@ucdavis.edu
AMY DUNN JOHNSON, Independent
Email: adjohnson@arkansasjustice.org

This policy brief, written for and distributed by the Arkansas Access to Justice Commission, reports two sets of data related to the shortage of lawyers in rural Arkansas. The first set of data regards the number of lawyers practicing in each of the state's 25 lowest-population counties and the ratio of lawyers per 1,000 residents in each of those counties. This data is juxtaposed next to the poverty rate and population of each of county.

The policy brief also reports the results of a survey of Arkansas lawyers and law students, the latter from both the University of Arkansas Fayetteville Law School and the University of Arkansas at Little Rock/Bowen School of Law. These surveys probed respondents' attitudes toward rural practice, among other matters. The policy brief reports a summary of those responses. Finally, the policy brief reports on a 2015 legislative proposal aimed at alleviating the shortage of lawyers serving rural Arkansans.

This policy brief is a forerunner to a fuller, academic analysis of these and other data sets relevant to the geography of access to justice in Arkansas. That analysis will appear in an article that will be published by the University of Arkansas at Little Rock Law Journal (forthcoming 2015). The authors anticipate that these investigations in Arkansas may provide a model for other states concerned about the shortage of lawyers working in rural areas.

"Using Taxes to Improve Cap and Trade, Part I: Distribution" Free Download
75 State Tax Notes 99 (2015)
UC Davis Legal Studies Research Paper No. 425

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California's AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.

 

February 13, 2015

Just How Lawless Are the Alabama State Court Judges Who Have Been Refusing to Issue Same-Sex Marriage Licenses?

Cross-posted from Justia's Verdict.

This week offered quite the spectacle in Alabama. Relying on a recent ruling from United States District Court Judge Callie Granade, based in Mobile, that struck down the provision in the Alabama state constitution that prohibits recognition of same-sex marriage, many gay and lesbian couples around the state began getting marriage licenses. But other same-sex couples, mainly in more conservative counties, have been unable to obtain licenses because some state probate judges (who issue marriage licenses in that state) are continuing to abide by the state-law ban on same-sex marriage, notwithstanding Judge Granade's ruling that such discrimination violates the Fourteenth Amendment of the federal Constitution. And on Monday Judge Granade herself declined requests to hold probate judges who refused to issue same-sex licenses in contempt of her federal court and its orders. Meanwhile, the Chief Justice of the Alabama Supreme Court, Roy S. Moore, has been issuing statements about the limits of federal power that remind many observers of the days of George Wallace, and maybe even Jefferson Davis. So what is going on here? And do the state court judges who are continuing to enforce Alabama's discriminatory marriage-license regime have a legal leg to stand on? In the space below, I try to separate the strands of the tangle, and to highlight which legal questions have clear answers and which don't.

Let us first take the easy question of whether Justice Moore's broad-based challenge to federal judicial authority holds up. It does not. Justice Moore has said that the federal courts have no authority over the state-law institution of marriage and that federal district judges cannot require state judges to follow federal trial court rulings. These ambitious sentiments are certainly wrong if they are taken to mean that a federal court cannot award meaningful relief to plaintiffs who successfully challenge the application of state law to them. Federal district courts can vindicate the federal rights of federal plaintiffs, even if those rights involve the institution of marriage, and even if it is state judges (as is the case in Alabama's regime) who issue the marriage licenses that are being wrongfully and unequally withheld. So a federal district court has undeniable power to order state officials, including state judges, to provide victorious federal plaintiffs a remedy to redress their constitutional violations. Such power to adjudicate and vindicate federal rights is emphatically what federal courts are for. That's Constitutional Law I/Marbury v. Madison-kind of stuff.

The Limits on Federal District Court Remedial Reach

Why, then, did District Court Judge Granade not hold state court judges in contempt for withholding marriage licenses? After all, contempt of court-with its coercive sanctions-is usually what we invoke to ensure that people comply with federal court orders. (I should point out here that individuals who violate federal court orders are generally punishable for contempt even when the federal court orders themselves go too far and are later determined to be illegal.) The answer is that the formal remedy provided by Judge Granade-the technical order she issued after finding the Alabama same-sex marriage ban unconstitutional-did not, as she herself understood it, extend to all probate judges who interact with all same-sex couples throughout the state. While Judge Granade could and should hold in contempt any state official who refuses to recognize the marriage of the particular same-sex couple who brought the case in her court and won, Judge Granade was likely correct not to try to punish probate judges for withholding relief as to other same-sex couples.

The reason for this is that the weight of authority tends to suggest-as a leading casebook puts things-that "a [federal district] court can enjoin [a] defendant only with respect to the defendant's treatment of plaintiffs actually before the court, either individually or as part of a certified class" (emphasis added). Because there was no class certified in the case before Judge Granade-it was brought by one same-sex couple-Judge Granade's remedial authority is technically limited to the particular plaintiffs before her. Thus, even if her legal reasoning invalidating Alabama's same-sex marriage ban is valid-and even if it is likely that her interpretation of the federal Constitution will be upheld by the U.S. Supreme Court later this year-state court judges who continue to enforce the state-law ban as to other couples are likely not defying federal authority in a way that can be punished.

This also means that, as a technical matter, the problem (if one views remedial limitations as a problem, though many would view them as a virtue that makes federal judicial power less scary) won't necessarily be solved by trying to name every probate judge in Alabama as a party to a case in Judge Granade's docket. If a federal judge cannot order state judges to provide relief to anyone other than the federal plaintiffs before her, then same-sex couples throughout the state will not all necessarily benefit by extending Judge Granade's orders to cover additional defendants in additional cases involving additional named couples; the remedial limitation is defined by the identity of the plaintiffs, not the identity of the defendants.

So when Judge Granade yesterday afternoon ruled, in a second case, that one probate judge who had been refusing to issue same-sex marriage licenses must begin issuing them, her order was still limited to the particular plaintiffs (four same-sex couples) who were in her court asking for relief. As Judge Granade wrote yesterday: "If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage" (emphasis added).

Now it may well be that as more and more probate judges are instructed to issue licenses to named plaintiffs in more and more cases, all of the probate judges in the state will start issuing licenses to all same-sex couples who apply, regardless of whether those couples are victorious plaintiffs in any federal case. But that will not be because the state court judges are under a federal court order that obliges them to do so, but because they choose to do so in light of the decisional trend.

I should note that the conventional rule that I describe here-that a federal trial court's relief should normally be granted only to the actual plaintiffs in the case-does not forbid the court, even outside of a class action setting, from ordering relief that in fact goes beyond protecting the named plaintiffs and also protects other would-be plaintiffs, if full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. (For example, in one case, a court was justified in ordering the police to stop enforcing a motorcycle helmet law overly aggressively as to all riders-and not just as to the plaintiffs-because highway patrol officers would have no way of distinguishing plaintiffs from non-plaintiffs before pulling someone over.) But in the present setting, full relief (i.e., marriage licenses and recognition) can be given to named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to named same-sex plaintiff couples requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs' marriages would continue to be subject to stigma. But I don't think that this stigma argument works, because if it did, then same-sex couples whose marriages are already recognized would have standing to challenge bans on same-sex marriage that are preventing others from marrying, and I don't think any federal court would recognize standing in such circumstances.

I should also point out that some federal judges believe that a district court can order government agencies to refrain from enforcing facially invalid laws or policies against anyone, and not just the plaintiffs before it. (Judge Granade's orders up until this point-limited as they are to the actual plaintiffs before her-give no indication that she is among them.) For example, (now-retired) United States District Court Judge Vaughn Walker (in San Francisco) is reported to have embraced this view when he issued an order whose plain language directed state officials to stop enforcing California's same-sex marriage ban, Proposition 8, against all same-sex couples, and not just the two couples who sued in his court. Judge Walker's apparent position-which was never fully tested because both the Governor and Attorney General of California chose not to try to continue enforcing Proposition 8-was in (unexplained) tension with current Ninth Circuit law, which embraces the more dominant view, described above, to the effect that the remedy must ordinarily be tailored to the plaintiffs only. The Ninth Circuit approach is supported by most (but not all) of the statements the Supreme Court has made on the topic, but candor compels the acknowledgement that the law in this area is not really settled and could definitely benefit from high Court attention and clarification.

Does Restricting a Federal District Court's Reach to the Plaintiffs Before it Make Sense?

Why might it be sensible for a federal district court judge not to be able to issue relief to anyone other than the plaintiffs in the case before it? Because, under the judicial system we have chosen, we have decided that federal district court opinions and decisions should, as a matter of governing precedent, have no binding effect on any other judges, even other federal judges located within the same district. This situation is to be contrasted with a ruling by the regional federal Court of Appeals or the United States Supreme Court. Once either of those courts has held Alabama's law invalid (and neither has yet-the Supreme Court chose not to block Judge Granade's ruling, but it won't decide the merits of the same-sex marriage constitutional question until later this year, at the earliest), then all judges, state and federal, within the state should surely obey that ruling, because the federal appellate court (whether it is the Eleventh Circuit or the Supreme Court) would have fashioned federal law that is supreme and applicable throughout the state. This is true even though state judges' rulings are not appealable to the Eleventh Circuit, insofar as all federal district judges in the circuit (who are bound by circuit precedent) would have no choice but to give injunctive relief to any same-sex couple who subsequently filed suit. Under those circumstances, it would be an utter waste of time (and perhaps a due process violation) for a state court judge not to give a license to someone who undeniably could get one by filing a federal suit anywhere in the state. Whether contempt sanctions are applicable or not, no judge or other state official would be justified in continuing to enforce a state law that a federal appellate court governing that state has held to be invalid.

But a ruling by a district court judge like Judge Granade has no such effect. Just because she ruled that Alabama's law violates the federal Constitution does not mean that other federal judges in Alabama would so rule if other same-sex couples filed suit in their courts. Her ruling is not binding precedent on them. Importantly, not all same-sex couples could properly sue in Judge Granade's district, and even if they did, other district court judges in that district to whom a new case might be assigned might rule differently on Alabama's ban on same-sex marriage. So Judge Granade's ruling-unlike one from the Eleventh Circuit or the Supreme Court-does not inevitably provide relief to any would-be federal-plaintiff same-sex couple in the state.

Perhaps an example will help drive home the point I'm making. Imagine that public universities throughout Alabama, pursuant to a state law policy, take race of applicants into account in a measured way in the admissions process, in order to assemble a diverse student body. Suppose a single unsuccessful applicant to a single public college in the state sues in federal court, bringing a facial challenge to the state's affirmative action policy on the ground that any use of race violates the Fourteenth Amendment. And suppose the district judge in that case rules (wrongly, to my mind, but not implausibly as a prediction of where the Supreme Court is headed) that all consideration of race is indeed barred by the Fourteenth Amendment. Could that judge apply her ruling to all the public universities in the state, and order all of the them (under pain of contempt) to refrain from considering race at all as they process the hundreds of of thousands of applications they receive each year, even though many other federal and state judges in the state would disagree with her interpretation of the Fourteenth Amendment but might never have a chance to hear a case if her ruling were allowed to shut down statewide use of the policy? I think such remedial power by a single judge would raise many problems, and for that reason, if and when the Court clarifies district court remedial power, it might embrace what I have described here as the mildly dominant view limiting remedial authority to actual plaintiffs.

But, a reader might wonder, isn't there a difference between the affirmative-action hypothetical I posit and the same-sex marriage setting insofar as affirmative-action limitations at the high Court are still a matter of debate, while there is no longer any real doubt about whether the Supreme Court this summer will hold that all state-law discrimination against same-sex couples in the marriage arena is unconstitutional? Perhaps this prediction is quite sound, and state court judges would be justified if they chose to issue licenses on that basis, but I am not entirely sure that state court judges are required, as a matter of supreme federal law, to act on it now. All judges have a legal obligation to follow binding precedent from a higher court once it is handed down, but there may be no legal obligation-enforceable by contempt or otherwise-on lower court judges to see the writing on the wall.

December 19, 2014

The Year in Constitutional Review: Our Top 5 Constitutional Developments of 2014 (And None of Them Is a Supreme Court Decision!)

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

As 2014 draws to a close, we thought it appropriate to reflect on some of the most significant constitutional developments of the past year. Recognizing that any short-list requires difficult choices, we present our catalog of five noteworthy constitutional events or trends (in no specific order) below. Most interestingly, none of the five involves a particular 2014 ruling from the Supreme Court; instead, the list shows that other institutional actors (sometimes feeding off what the Court has done in the past and often acting completely independently from the Court) are crucial in giving meaning to the Constitution.

#1. President Obama's Announcement of Immigration Enforcement (or non-Enforcement) Priorities

One of the biggest constitutional changes over the last century has surely been the rise in power and prominence of the presidency. The President and his executive branch have grown in influence and stature for a number of reasons. One is the modern need (in a world of increasing economic complexity and international linkages) for the federal government to make decisions quickly, decisively, and based on specialized expertise (as in the Great Depression) and sometimes making use of information that cannot be made fully public (as in the War on Terror). Another is the fact that, although the electoral college is still part of our constitutional fabric, we have moved in the direction of popular election of the President, such that he garners far more votes nationwide than does any other elected official, and thus has a special claim to national electoral legitimacy-unlike that of even the Speaker of the House and the Senate Majority leader, the two elected leaders of Congress.

Many people embrace broadened Presidential authority, and many lament it. Some folks seem to have evolved in this regard. An example of such evolution might be Chief Justice John Roberts, who seemed to advocate for broad executive powers as a young government lawyer but who has recently bemoaned the fact that "the Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities." But love it or hate it, broad executive discretion about whether and how to enforce laws is part of the federal constitutional landscape. And President Obama's recent announcement removing the threat of deportation for four million or so persons who entered or stayed in the United States in violation of immigration laws is a good example. Drawing on his key role in foreign affairs and law enforcement, and reminding the American people that he was reelected in part to manage the immigration problem (thus playing on both the reasons for presidential ascension mentioned above), Mr. Obama laid out his plans for how best to implement immigration laws in the near term. His announcement was a reminder of how, in the normal run of things, the President makes a lot of important decisions over which the Supreme Court may never have a say. (There have been lawsuits filed that test the President's actions here, and lower court judges are likely to express a range of opinions on the matter, but it remains unclear how the lower federal courts will ultimately adjudicate this issue and whether the Supreme Court will wade into this thicket.)

#2. The Events in Ferguson and NYC Regarding Police Actions Toward African American Men

A second set of events, involving local government rather than the federal government, raises important normative questions about race relations in the United States and public policy questions about the best way both to avoid these tragedies and to deal with them when they occur. We speak here, of course, of recent events in Ferguson, Missouri, and in New York City involving the killing of unarmed African Americans by police officers and the failure of grand juries to indict the officers involved. These police actions and grand jury decisions, like President Obama's immigration announcement, remind us of how powerful a device executive discretion is within our constitutional system.

But these episodes also remind us of another important constitutional theme. The 14th Amendment proclaims that "No State shall . . . deny to any person the equal protection of the laws." Surely, this provision requires the equal treatment of black and white Americans in the criminal justice system. If the equal protection of the laws means anything, it must mean that the use of force by police officers against persons alleged to violate the law cannot vary depending on the race of the perpetrator. Similarly, equal protection must require that prosecutors and grand juries ignore the race of both the police officer and the victim of the officer's conduct in determining whether the officer's use of force has violated the law.

Yet the Ferguson and New York City events reveal how little bite this constitutional guarantee has when the law gives government actors substantial, unguided discretion in performing their duties. Police officers have considerable discretion in determining whether and how much force should be used in the performance of their duties. Prosecutors have enormous discretion in deciding whether or not to bring charges to a grand jury and in determining how they will conduct the grand jury proceeding. Grand juries also have tremendous discretion. They can decide to indict a "ham sandwich," as the saying goes, or they can decide not to indict a police officer who has choked someone to death.

Because, in circumstances involving official discretion, it is often very difficult to determine the extent to which race influenced state action, the constitutional guarantee of equal protection has little ability to control such decision making. Perhaps the Constitution's primary and most effective role in these events is protecting the rights of individuals and groups to protest what they see as unsanctioned violations of the equal protection of the laws.

#3. Same-Sex Marriage in the Lower Courts

Equality was a theme not just in the Ferguson and New York controversies, but also in the treatment of same-sex marriage by the lower courts this year. Last year, in United States v. Windsor, the Supreme Court teed up but did not resolve the question of whether states were prohibited by the Fourteenth Amendment from treating same-sex marriages differently from opposite-sex marriages. And the lower federal courts have taken up that question in earnest ever since. Until the Sixth Circuit's decision to uphold same-sex marriage bans in four states this fall broke the momentum, same-sex marriage advocates had achieved an overwhelming number of lower court victories; four U.S. Courts of Appeals and over twenty federal district courts had struck down state laws discriminating against same-sex marriage. Indeed, until the Sixth Circuit's ruling by a divided three-judge panel in November, many commentators had concluded that the Supreme Court would not even take a marriage equality case anytime soon because the issue had essentially been resolved by the lower courts. Many of the lower court rulings took their cue from Windsor, of course, and now that the Sixth Circuit has created a split the Supreme Court will likely weigh in relatively soon-so no one is arguing the Supreme Court is irrelevant in this debate-but lower courts have definitely framed the issue and developed competing arguments in a way that makes it much harder for the Supreme Court to reject the right of same-sex couples to marry. For the marital equality movement, 2014 was the year of the lower courts.

# 4. Abortion Rights

The past year saw states continuing the recent trend of adopting and defending significant regulations of abortion services and access. The regulations vary in their content. Several states have enacted statutes (some of which are subject to lower court injunctions) that ban an abortion 20 weeks after fertilization occurs or at an even earlier time during the gestation period. Other regulations restrict the provision of medication used to induce an abortion. Other laws, responding to the new health care framework created by the Affordable Care Act, prohibit insurance offered through the Act's exchanges from covering abortions. Yet other laws regulate clinics that provide abortion services by requiring them to comply with the building, equipment, and staffing standards applicable to an ambulatory surgical center or a hospital. They also require physicians performing abortions to have admitting privileges at a local hospital. The lower courts are continually reviewing the constitutionality of many of these regulations, but it is (aggressive) state legislatures that are driving this issue right now.

Certainly, the need for greater clarity in this area of the law is obvious. Under the doctrine initially evolving from Roe v. Wade, the Court applied strict scrutiny review to pre-viability abortion regulations that ostensibly furthered some important state interest, such as promoting the health of the mother, but also increased the cost of abortions or otherwise limited access to providers. Under this rigorous standard of review, a state had to demonstrate that its regulations furthered a compelling state interest and that the state adopted the least restrictive means to further its objectives. This two- pronged approach required courts to balance the effectiveness of a state's regulations against the burden the law imposed on the right to have an abortion.

In Planned Parenthood v. Casey, however, the Court collapsed the two-pronged approach used in prior cases and adopted a unitary standard. All pre-viability abortion regulations are now constitutionally permissible as long as they do not have "the purpose or effect of imposing an undue burden on women seeking abortion." This standard focuses on the magnitude of the burden, the percentage of women seeking abortions who will experience that burden, and whether the regulation serves some purpose other than the goal of inhibiting access to abortion services. The Court's application of this standard to various regulations in the Casey case itself has mystified both constitutional law scholars and lower courts. The number and highly restrictive nature of new abortion regulations may require Supreme Court intervention and clarification of this standard in the near future.

#5. The 2014 Congressional Election

Although we have highlighted the way institutions other than the Supreme Court (e.g., the President, local governments, lower courts, state legislatures) have helped shape the meaning of the Constitution in 2014, we would never deny the centrality of the Court itself in constitutional interpretation. And yet we must remember that the Court is not a static institution, but rather one whose membership and decisions change over time. So our final candidate for important constitutional developments of the year is the congressional election in November that saw the Republicans gain solid control of the U.S. Senate. Because replacing departing Justices with new members is the single most important way the Constitution has been kept responsive to the values of the people, decisions by the American electorate about who shall be the President (and nominate new members to the Court) and who shall control the Senate (and decide whether to confirm presidential nominations) are quintessentially important constitutional events. Regardless of whether a Democrat or Republican wins the White House in 2016, Republican control of the Senate for the foreseeable future is likely to influence the kind of persons appointed to the (closely divided) Court in the coming years, which in turn is likely to affect how the Court rules in many controversial constitutional areas. It is fitting, even as it is sometimes overlooked, that We the People remain the most important institutional actors in giving content to our basic government charter.

June 26, 2013

In the Media: Faculty Members on Prop. 8 and DOMA (Updated)


Photo: Reuters

The national, regional, and local media are turning to UC Davis law faculty for expert analysis and commentary on today's U.S. Supreme Court decisions on the Proposition 8 and Defense of Marriage Act (DOMA) same-sex marriage cases.

Here is a sampling of media citations. This list will be updated as more stories hit the web.

 

Dean Kevin R. Johnson

Southern California Public Radio

DOMA ruling a victory for bi-national couples, but legal questions remain

http://www.scpr.org/blogs/multiamerican/2013/06/26/14103/doma-ruling-a-victory-for-bi-national-couples-but/

 

Associate Dean and Professor of Law Vikram Amar

CNBC-TV

Supreme Court Strikes Down DOMA; Paves Way for California Gay Marriage

http://www.cnbc.com/id/100845753 (with video)

 

Justia’s Verdict

Analysis: If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? This April 26 essay is being cited by numerous news agencies and blogs today.

http://verdict.justia.com/2013/04/26/if-the-supreme-court-decides-the-proposition-8-sponsors-lack-standing

 

KQED Forum

Prop 8 Ruling Paves Way for Same-Sex Marriage in Calif.; DOMA Ruling Gives Gay Couples Federal Benefits

http://blogs.kqed.org/newsfix/2013/06/25/proposition-8-supreme-court/ (with audio)

 

The Sacramento Bee

Jerry Brown tells California counties to issue gay marriage licenses

http://blogs.sacbee.com/capitolalertlatest/2013/06/jerry-brown-tells-california-counties-to-issue-gay-marriage-licenses.html

 

The Los Angeles Times -- Update added June 27

Same Sex Weddings to Resume in California Soon, Officials Say

http://www.latimes.com/news/local/la-me-gay-marriage-california-20130627,0,3679293.story

 

Capital Public Radio’s “Insight” -- Update added June 27

Prop. 8 and DOMA Follow-Up

http://www.capradio.org/news/insight/2013/06/13/insight-062713/ (with audio)

 

San Jose Mercury News -- Update added June 27

Proposition 8 Appears Doomed in California after Supreme Court Ruling

http://www.mercurynews.com/samesexmarriage/ci_23547428/gay-marriage-u-s-supreme-court-proposition-8

 

KTXL Fox40 News -- Update added June 27

Making Sense of What's Next after Ruling on Prop. 8

http://fox40.com/2013/06/26/making-sense-of-whats-next-after-ruling-on-prop-8/ (with video)

 

The Guardian UK -- Update added June 27

U.S. Moves to End DOMA Discrimination after Gay Rights Breakthrough

http://www.guardian.co.uk/world/2013/jun/27/us-discrimination-gay-rights-doma

 

The New York Times -- Update added June 28

Roberts Pulls the Supreme Court to the Right Step by Step

www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html

 

The Los Angeles Times -- Update added June 28

Prop. 8 Ruling Raises Fears about Effects on Other Initiatives

http://www.latimes.com/news/local/la-me-gay-marriage-initiatives-20130628,0,3117108.story

 

Professor of Law Courtney G. Joslin

Bloomberg News and Bloomberg Businessweek

Supreme Court Ruling Narrows Gay Couples’ Benefit Gap

http://www.bloomberg.com/news/2013-06-26/supreme-court-ruling-narrows-gay-couples-benefit-gap.html

http://www.businessweek.com/news/2013-06-26/supreme-court-ruling-narrows-benefit-gap-for-gay-couples-taxes

 

Capital Public Radio’s “Insight”

SCOTUS Rulings on DOMA & Prop. 8

http://www.capradio.org/news/insight/2013/06/26/insight-062613/ (with audio)

 

Equality Radio

Live Coverage: SCOTUS decisions on Prop 8 and DOMA

http://equalityradio.net/scotus-decisions/#.UctNaJzgf6A (with audio)

 

KTXL Fox40 Morning News

Reaction to the Prop 8 Ruling

http://fox40.com/2013/06/26/reaction-to-the-prop-8-ruling/ (with video)

 

Orange County Register -- Update added June 27

Why DOMA Went Down

Orange County Register DOMA Reactions.pdf (622.87 kb)

 

St. Louis Post Dispatch -- Update added June 27

Many Applaud Gay Marriage Rulings, thought Direct Effect in Missouri and Illinois Will Be Limited

http://www.stltoday.com/news/local/metro/bells-ring-downtown-as-local-community-responds-to-supreme-court/article_7630497d-4f75-5006-9720-5f6946c6b5b2.html

June 21, 2013

A Preview of Next Week’s Supreme Court Ruling in Hollingsworth v. Perry: What to Expect and What to Look For

Cross posted from Justia's Verdict.

As millions of people eagerly await next week's Supreme Court action in Hollingsworth v. Perry, the case from California involving Proposition 8 (the voter-enacted ban on same-sex marriages in the Golden State), I offer below a few thoughts on what to expect and what to look for in the Court's ruling.

We Should Not Expect a Definitive Resolution of the Federal Constitutional Question of Same-Sex Marriage

First, I don't think we will get a big resolution of the meta-question whether the federal Constitution's Fourteenth Amendment requires recognition of same-sex marriage.  Why?  Because a ruling in either direction is fraught with peril.  The Court (or at least its middle, controlling wing) is probably not ready to proclaim a national right when roughly three-quarters (38) of the States currently do not recognize same-sex marriages.  At the time of Loving v. Virginia, the 1967 case striking down Virginia's ban on interracial marriage, only 16 (or less than one-third) of the States prohibited marriage across races.  And in Lawrence v. Texas, the case from a decade ago in which a divided Court invalidated Texas' attempt to criminally punish someone for engaging in homosexual conduct, the Court noted that only a handful of states at that time actively prosecuted persons for similar conduct.  Even the momentous equality ruling Brown v. Board of Education did not call into question the laws of more than 20 or so states that mandated educational segregation in 1954.  As bold as the Supreme Court has been in protecting liberty and equality rights, past practice does not suggest a likely proclamation of a national right here, when things are so fluid in the States.

But that fluidity also cuts against a ruling flatly rejecting a national right to same-sex marriage.  Because things are changing so quickly (witness the three states that have decided to legalize same-sex marriage just in the few months since the Supreme Court heard oral arguments in the Proposition 8 dispute), the number of states embracing gay marriage could increase over the next decade from 12 to something in the range of 30 or more.  So the Court (or, again, its middle wing) may not want to deny a same-sex marriage right claim altogether next week, because to do so would make it harder (on account of stare decisis) for the Court to recognize a national right in the coming years, should a majority of Justices think doing so is the correct constitutional thing.

In short, my sense has always been that the Court had no desire to wade into the same-sex marriage thicket while the issue is percolating so actively in legislatures and state courts, and that the only reason the Court granted review in the Defense of Marriage Act (DOMA) and Proposition 8 cases this year is that lower federal courts invalidated these prominent enactments.  (That is to say, had lower courts upheld DOMA and Proposition 8, I think the Justices would have been content to deny review.)  Having been essentially forced to take cases before the Justices really wanted to weigh in at all, the Court will, I think, try to resolve less, rather than more.  In the DOMA case, there seemed at oral argument to be some support among the Justices to invalidate the challenged provision of DOMA without imposing same-sex marriage on unwilling states (by relying to some extent on federalism rather than individual rights), and I think in the Proposition 8 case the Court will also look to act as minimally as reasonably possible.

Narrower Options in the Proposition 8 Case

So what are the remaining options for the Court concerning Proposition 8, and which ones are the most likely?  One is that the Court could reject the plaintiffs' assertion of a national right to gay marriage, but make clear that things could change as the nation evolves on this question.  This is a possible route, but not a very attractive one for the middle/left of the Court, because the takeaway headline/holding would still be the rejection of the right.  And this would-if the Court were then to want to reverse course and accept the right in the near-term future-require the Court to offer a somewhat contentious explanation of how the meaning of the Constitutional document can change so rapidly.  Easier-for those Justices who think they may embrace the claim down the road-to avoid the broad question altogether for now.

A second option would be to strike down Proposition 8, but do so on the narrow grounds used by the Ninth Circuit and urged by the Solicitor General, grounds that would not invalidate the laws of all 37 other non-same-sex-marriage states, but rather only some small number of them.   The problem is that the Ninth Circuit's reasoning-which included the idea that California's ban is hard to justify as rational because the state has gone so far down the road to equalizing the rights of gay and straight couples-doesn't really work.  Many of the Justices at oral argument-even those generally thought to be more liberal or moderate-made the point that telling a State that it can't be rational in moving incrementally simply because it has moved at all is odd, at the very least.  The argument is a tough sell, even though the Ninth Circuit bought it.

A third choice would be to simply dismiss the Proposition 8 case from the Court's docket altogether.  Such a dismissal (known as a "DIG", which is short for "Dismiss as Improvidently Granted") is certainly possible, and would enable the Court to say nothing at all about Proposition 8.  It would be as if the Court had declined to grant review in the first place.  But, as I've explained before, a DIG is hard to square with the decision of four Justices to grant certiorari in the first place; nothing in the case has really changed since the original grant.  Moreover, a DIG would leave the Ninth Circuit ruling-and its reasoning-intact as the law of the Western United States, something a large number of Justices may be uncomfortable about.  Also, if the Court were going to DIG the case, it might have announced that decision before now.  So I place the odds of a DIG at something below 50%.

The Standing Route

That brings us to an approach I have been arguing for years is the best way to go-a ruling that Proposition 8's sponsors lack standing in federal court to defend the initiative, even though the elected officials normally counted on to defend (the Attorney General and the Governor) have declined to do so.  I think this is the most likely of the various possible outcomes (perhaps more likely than all the others combined) because it has many virtues.

Such a ruling would allow the Court to avoid speaking to the merits of the same-sex marriage dispute, but would also erase the Ninth Circuit's opinion.  A ruling on standing would-in the end-most likely result in Proposition 8's demise.  But, importantly, under this scenario, same-sex marriage would likely come about in California not from unelected federal judges' contested views of the Constitution, but rather from the actions of elected (and accountable) officials in California (the Attorney General and Governor) whose failure to defend the measure will ultimately bring it down.

A standing ruling would more than just prudent; as I have argued, I think it would be justified by the principles of standing law itself, and would resolve an important and open question within the doctrine of standing.  So a ruling that the Proposition 8 proponents lack standing should be seen not an unprincipled dodge, but rather as a legally justified and eminently sensible course of action.

Things to Look for if the Court Rejects the Proponents' Standing

If the Court does pursue this avenue, here are the two things to look for/focus on:

First, as for same-sex marriage in California, we should examine the ruling carefully to see what guidance the Court gives to the lower courts on remand.  Everyone agrees that the Ninth Circuit opinion would be vacated (undone), and that the two named-plaintiff couples who sued should get their licenses.  But how and why they get their licenses will be important, and will affect whether other same-sex couples in the State should get licenses right away too, or instead will have to wait for future legal or political developments.  Key to this question will be what, if anything, the Court says about trial Judge Vaughn Walker's judgment striking down Proposition 8 that he issued after the high-profile trial he oversaw.  We are not talking here just about the scope of Judge Walker's injunctive remedy against State officials, but whether the judgment in favor of the plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs.  I have argued that Judge Walker's judgment probably should be vacated (and language near the end of the Supreme Court's opinion in Karcher v. May seems to support my argument), but we need to see whether any, or a majority, of the Justices speak directly to this issue and what they say.  The issue will undoubtedly be important for the timing of same-sex marriage in California, but it also has ramifications for standing doctrine more generally.  The question of what, precisely, follows from a finding that the only defendant who is actively defending lacks standing is an important one.

Second, we should examine what, if anything, the Court says about how initiatives can be defended when elected officials don't defend them, so that the initiative device itself is not diminished.  The best argument for initiative-proponent standing is that elected officials shouldn't be able to kill the very initiative device that is designed to be a check on their power.  There are ways for the Court to ensure that initiatives can be defended even if the Proposition 8 proponents lack standing-e.g., voters can deputize initiative sponsors explicitly and provide a framework for their authority to represent the people  (in a way that Proposition 8 voters did not)-but the question is whether the Court will see and discuss them.