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Lesbian & Gay Parenting
APA Amicus Briefs
For full text of APA amicus briefs in lesbian, gay, and bisexual cases, see http://www.apa.org/pi/lgbc/policy/amicusbriefs.html.
In Re. Adoption of Luke, 640 N.W.2d 374
Brief Filed: 9/01
Court: Nebraska Supreme Court
Year of Decision: 2002
Issue: Whether second parent adoptions must be denied when the co-parents are gay or lesbian
Facts: The case is an adoption proceeding commenced by the lesbian partner of the child's natural mother. The child was conceived by artificial insemination from an anonymous donor. The biological father was unknown and not a party to the action. The partner sought to adopt the child ("Luke") so that both she and the natural mother could be his legal parents. The trial court denied the adoption because of its interpretation of Nebraska law. The court observed that "everyone with the potential to successfully parent a child in foster care or adoption should be entitled to a fair and equal consideration regardless of sexual orientation or differing lifestyles." However, the court ruled that the laws of Nebraska require otherwise. The court read the Nebraska statutes as not allowing a non-married partner to adopt the child of that person's partner, no matter how qualified they are to be an adoptive parent. The case was appealed to the Nebraska Supreme Court.
APA's Position: APA's brief argued that research and clinical experience indicate that when children have been raised by lesbian couples, adoption by the second parent is generally beneficial for the child's social and psychological development and therefore consistent with the child's best interests. The brief also provided research to indicate that parents' sexual orientation does not adversely affect their children or their parenting.
Result: The Nebraska Supreme Court affirmed denial of the second-parent adoption. The court premised its decision on a strict construction of the Nebraska adoption statute. Return to top
Boswell v. Boswell
Brief Filed: 7/98
Court: Court of Appeals of Maryland
Year of Decision: 1998
Issue: Whether a gay father may be denied overnight visitation with his children and visitations in the presence of his male partner
Facts: In a custody hearing, the trial court had restricted the former husband's visitation with his children, prohibiting overnight visitation, the presence of the father's male partner, and the presence of "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship." The restrictions were not requested or advocated by any partner or witness in the case. The Court of Special Appeals of Maryland ruled that the restrictions were an abuse of discretion by the trial court judge and vacated that aspect of the decision. The mother appealed to the Court of Appeals of Maryland (the highest state court).
APA's Position: APA submitted an amicus brief with the National Association of Social Workers on behalf of the respondent father. The brief asserted that: (1) homosexuality is not a mental disorder; (2) gay men and lesbians have comparable parenting skills to heterosexuals; (3) gay fathers and lesbian mothers do not present a heightened danger of sexual abuse; (4) therefore, gay men and lesbians are fit parents to the same extent as heterosexuals; (5) children raised by gay or lesbian parents do not differ psychologically and socially from children raised by heterosexual parents; (6) research does not indicate that exposure of children to their father's same-sex partner generally has negative effects and there is evidence that involvement of the partner in the children's lives may, in fact, be beneficial to them.
Result: The Maryland Court of Appeals affirmed, finding that the divorce court's order was an abuse of discretion. The court followed other jurisdictions in requiring a showing of actual or potential harm to the children before a parent's visitation may be restricted based on his or her nonmarital relationship, whether homosexual or heterosexual. Additionally, the trial court must make specific findings based on sound evidence rather than basing a ruling to restrict visitation on stereotypes or bias. Return to top
DeLong v. DeLong, Case No. 80637
(Sup. Ct. Mo. 1998)
Brief Filed: 6/98
Court: Supreme Court of Missouri
Year of Decision: 1998
Issue: Whether a lesbian mother may be denied custody solely on the basis of her sexual orientation rather than on the basis of what is in the best interests of the child
Facts: A Missouri trial court denied a lesbian mother custody of her daughter solely on the basis of her sexual orientation in accordance with prior appellate court decisions finding lesbian and gay parents per se unfit to have custody of a child. The Missouri appellate court rejected this per se rule and held that all child custody decisions involving a gay or lesbian parent should be decided according to the same standard used in evaluating the fitness of heterosexual parents-an individualized determination of the child's best interest. The father appealed the decision, and the Supreme Court of Missouri agreed to review the decision.
APA's Position: APA filed an amicus brief summarizing the existing research on children raised by lesbian and gay parents and the absence of any demonstrable connection between a person's sexual orientation and his or her fitness as a parent. The brief asserted that: (1) the appellate court's ruling that a mother's sexual orientation cannot be presumed to be detrimental to her children is supported by a considerable body of scientific research on children of lesbian parents, finding that children raised by gay parents are as healthy psychologically and socially as those raised by heterosexuals, and that there is no significant difference between the two groups on sexual identity and gender role issues; and (2) research on parenting issues indicates that lesbians and gay men are as fit parents as heterosexuals, homosexuality is not a mental disorder, and the two groups have comparable parenting skills.
Result: The Supreme Court of Missouri affirmed that the relevant test was the "best interests of the children" and that homosexual parents are not ipso facto unfit for custody. However, the court decided that it was proper to consider the impact of homosexual or heterosexual misconduct on children, and affirmed the custody determination that had gone to the heterosexual parent. The court did find the visitation restrictions imposed by the trial court to be too broad (the children were prohibited from being in the presence of anyone known to be a lesbian and any female with whom the mother was living who was not a relative). The Court remanded the visitation restrictions to the trial court to limit the conditions to apply only to individuals whose presence or conduct may be contrary to the best interests of the children. Return to top
Hertzler v. Hertzler, 908 P.2d 946
Brief Filed: 12/94
Court: Supreme Court of the State of Wyoming
Year of Decision: 1995
Issue: Whether the "best interests of the child" is served by restricting visitation rights to a minimum level because of a mother's sexual orientation as a lesbian
Facts: Pamela and Dean Hertzler were married for 15 years. During the marriage, they adopted two children. Pamela initiated divorce proceedings after determining that she was a lesbian. After the divorce, Pamela was awarded custody of the two children. She later moved to Ohio to live with her partner, Peggy Keating. In order to move, she agreed to transfer custody to Dean, with the understanding that she would be allowed liberal visitation as was the case for Dean when she had custody. After Dean remarried, he filed a petition to modify the visitation arrangement and filed a motion for a temporary restraining order. He alleged that the children had been harmed by contact with their mother and her domestic partner. Based on Dean's allegations, the court issued a temporary restraining order that limited Pamela's contact to supervised visits and disallowed any contact between the children and Peggy. The court determined that the children had been exposed to inappropriate sexual behavior and had become eroticized. The judge relied on the testimony of Mr. J. Lynn Rhodes, a former minister who recently received his master's degree in counseling and who admitted during trial that his religious beliefs regarding homosexuality affected his opinions in the case. The judge rejected the opinions offered by plaintiff's experts, Dr. Carol Jenny, MD (Director of the Child Advocacy and Protection Team at Children's Hospital Denver), and Dr. Larry Bloom (a licensed clinical psychologist with 20 years' experience in evaluating family interaction and dynamics). The court held that homosexuality is generally socially unacceptable, and it is probable that the children will be subject to social difficulties as a result of the plaintiff's lifestyle in addition to their personal concern. The court stated it would find it appropriate to reduce the plaintiff's visitation with the children, even if issues of sexual abuse or eroticization were resolved, because (1) the plaintiff's open homosexuality was likely to create confusion and difficulty for the children, (2) her lifestyle was likely to negatively affect the development of the children's moral values, and (3) the state had an interest in supporting conventional marriages and families. Pamela appealed to the Supreme Court of Wyoming.
APA's Position: APA submitted a brief arguing that: (1) the social science research (a) has reported no significant differences between children raised by lesbian mothers or gay fathers and those raised by heterosexual parents, (b) indicates that the overall psychological health of children raised by lesbian mothers or gay fathers does not differ from that of children raised by heterosexual parents, (c) reports no differences between the social relationships of children raised by lesbian mothers or gay fathers and children raised by heterosexual parents, and (d) does not suggest that a parent's sexual orientation influences the sexual identity of his or her child; (2) the social science research does not suggest that lesbian mothers and gay fathers are likely to be unfit parents; and (3) visitation cases should be decided without regard to a parent's openly lesbian or gay relationship because (a) an assumption that a child should not have significant contact with a parent in an openly lesbian or gay relationship undermines Wyoming's statutory mandate that visitation determinations be based on the welfare of the child, and (b) the trial court's reference to a state interest in supporting conventional marriages and families does not provide an appropriate basis for restricting a parent's visitation rights.
Result: The Wyoming Supreme Court affirmed the trial court, but strongly criticized the judge for indulging in personal biases against homosexuality and ordered the court to continue to ease the limitations on Pamela's visitation times. Return to top
Bottoms v. Bottoms, 457 S.E.2d 102, (1997 WL 421218)
(on appeal after remand)
Brief(s) Filed: 11/93 (Va. Ct. App.); 12/94
(Va. S. Ct.)
Courts: Virginia Court of Appeals; Supreme Court of Virginia
Year of Decision(s): 1995
Issue: Whether a lesbian biological mother could be denied custody of her child on the grounds that her sexual orientation rendered her unfit as a parent.
Facts: Kay Bottoms sought custody of her grandson because his mother, Sharon Bottoms, was a lesbian and was raising the boy in the home she shared with her lesbian lover. The trial court held that because she was a lesbian, Sharon Bottoms was per se unfit to raise her son and awarded custody to the grandmother. APA submitted a brief at the appellate level, and the trial court's decision was reversed. The grandmother appealed to the Supreme Court of Virginia.
APA's Position: APA submitted a brief to the Supreme Court of Virginia arguing that: (1) social science research indicates that (a) there are no significant differences between children raised by lesbian mothers or gay fathers and those raised by heterosexual parents, (b) the overall psychological health of children raised by lesbian mothers or gay fathers does not differ from that of children raised by heterosexual parents, (c) no differences have been reported between the social relationships of children raised by lesbian mothers or gay fathers and children raised by heterosexual parents, (d) a parent's sexual orientation does not influence the gender identity, gender role behavior, or sexual orientation of his or her child, (e) lesbian mothers and gay fathers are not likely to be unfit parents, and (f) lesbian mothers and gay fathers have parenting skills comparable to those of heterosexual parents; (2) professional social science organizations have rejected the view that lesbians and gay men as a group are dysfunctional; (3) a natural parent in an openly lesbian or gay relationship is entitled to the presumption of parental fitness; and (4) the fact that sodomy continues to be punishable as a felony under Virginia law is not grounds for depriving a lesbian or gay parent of custody.
Result: The Supreme Court of Virginia held that there was sufficient evidence to support the trial court's findings that a presumption in favor of mother's custody was rebutted by clear and convincing evidence of unfitness and that the child's best interests would be served by awarding custody to the grandmother. It found that felonious sexual conduct inherent in lesbianism was an important consideration in determining the mother's unfitness for custody of the child, and that the child's cursing, emotional upset at visitation with the mother, and standing in a corner proved that the child had been harmed by the mother's living conditions. Visitation was also set by the lower court and was appealed by the mother. The Virginia Supreme Court reversed the decree dismissing the mother's "show cause petition" and substantially modifying the terms of visitation that prohibited all contact between the child and the mother's lover. The court held that the trial court had improperly based its disposition of the visitation decree solely on the mother's sexual status, ignoring evidence of the pertinent statutory factors and without regard to the evidence of impact of the attendant conduct on the child. Return to top
Li v. Oregon
Brief Filed: 10/04
Court: Supreme Court of the State of Oregon
Year of Decision: 2005
Issue: A challenge to the constitutionality of Oregon's statutes limiting the right to marry to opposite-sex couples
Facts: Plaintiffs in this case-nine same-sex couples, the ACLU, and Multnomah County-filed a lawsuit challenging the state's refusal to issue marriage licenses to same-sex couples. The lawsuit charges that Oregon's marriage statute, which bars same-sex couples from marriage, violates the state constitutional guarantees of fairness and equality. The trial court agreed with plaintiffs' constitutional premise. However, the court declined to grant the relief that plaintiffs sought (i.e., extension of the right of marriage to same sex couples). Instead, the trial court ruled that denying the issuing of marriage licenses to same-sex couples violated the state constitution by denying certain benefits to same-sex couples that otherwise were available to opposite sex couples by virtue of their marriages. The court gave the state legislature a deadline for creating a system for providing same-sex domestic partners access to similar rights afforded to married couples. The decision was appealed and went before the Oregon Supreme Court.
In November 2004, while the appeal was pending, Oregon voters adopted Ballot Measure 36, a voter-initiated amendment to the Oregon Constitution defining marriage as a relationship between one man and one woman. That amendment became effective in December 2004. The Supreme Court solicited supplemental briefing before hearing oral arguments, asking the parties to address the effect (if any) of that new constitutional provision on the issues raised in the appeal.
APA's Position: APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. Material provided is consistent with research APA provided as amicus in a variety of other cases involving parental rights, challenges to sodomy statutes, and other GLBT rights issues. The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment, and desire for relationships as well as the scientific research which has firmly established that homosexuality is not a disorder or disease. Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and in single-parent families. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits-to both gay and heterosexual people-of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the anti-gay stigma imposed by the state through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage. In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.
Result: In April 2005, the Oregon State Supreme Court ruled that Oregon's marriage statute limits marriage to opposite-same couples and is constitutional by virtue of the amendment to the state constitution barring same-sex marriage adopted in November 2004. The Court held that the issue of access to the benefits of marriage, i.e., the constitutional requirement of civil unions or some other alternative, was not properly before it and did not address that issue. The judgment of the circuit court was reversed, with the case remanded to the circuit court with instructions to dismiss the action. Return to top
Lewis v. Harris
Brief Filed: 11/04
Court: Superior Court of New Jersey, Appellate Division
Year of Decision: 2005
Issue: Whether the New Jersey Constitution compels the state to allow same-sex couples to marry
Facts: Plaintiffs are seven same-sex couples who each applied for marriage licenses in New Jersey. Defendants are state officials with supervisory responsibilities relating to local officials' issuance of marriage licenses. Plaintiffs claim that the denial of their applications for marriage licenses violates their rights of privacy and equal protection of the law protected by the New Jersey Constitution. As relief for the claimed violations of their state constitutional rights, plaintiffs sought a mandatory injunction compelling the defendant state officials to provide them access to the institution of marriage on the same terms and conditions as a couple of the opposite sex. The trial court granted summary judgment for the state, denying the plaintiffs/appellants relief, and the case was appealed to the Superior Court of New Jersey.
APA's Position: APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. Material provided is consistent with research APA provided as amicus in a variety of other cases involving parental rights, challenges to sodomy statutes, and other GLBT rights issues. The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment, and desire for relationships as well as the scientific research that has firmly established that homosexuality is not a disorder or disease. Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and in single-parent families. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents, as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits-to both gay and heterosexual people-of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the anti-gay stigma imposed by the state through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage. In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.
Result: In June 2005, in a 2-1 opinion, New Jersey's Appellate Division ruled that the state's constitution does not compel New Jersey to allow same-sex couples to marry. The court held that such a change in the marriage law should come from the legislature and not the courts. Because there was a dissenting opinion at the appellate level, the Supreme Court must accept the appeal. APA will participate as amicus at the Supreme Court level. Return to top
Andersen v. King County
Brief Filed: 2/05
Court: Supreme Court of the State of Washington
Year of Decision: Pending
Issue: A challenge to the constitutionality of Washington's statutes limiting the right to marry to opposite-sex couples
Facts: Plaintiffs filed suit challenging the denial of marriage licenses to same-sex couples, arguing that denying marriage to same-sex couples violates the state constitution's guarantees of equality, liberty, and privacy to all state citizens. The state trial court, King County Superior Court, issued a decision holding that the state's law limiting marriage to opposite-sex couples violates the due process and equal protection guarantees of the Washington Constitution. The court concluded that the exclusion of same-sex partners from marriage and the privileges it entails "is not rationally related to any legitimate or compelling state interest." The trial court stayed the effect of its decision and certified the case for an immediate appeal.
APA's Position: This case poses fundamentally the same questions as the cases in New Jersey, Lewis v. Harris, and Oregon, Li v. Oregon, in which the APA filed amicus briefs. Although some details of the legal standards and specific arguments at issue in each of the cases may vary slightly, the psychological issues addressed by APA's amicus brief are essentially the same.
Result: The trial court specifically cited the APA's July 2004 resolution supporting same-sex marriage. In September 2004, the State Supreme Court accepted direct review of the trial court decision, and oral arguments were held in March 2005. A decision is pending.
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