Judge Sides with NASW on Prop. 8; Other Briefs Filed

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” U.S. District Court Judge Vaughn Walker ruled last month in Perry v. Schwarzenegger, a lawsuit challenging the 2008 voter-approved amendment to the California Constitution that limited marriage to heterosexual couples.

Walker’s 136-page findings of fact and conclusions of law mirrored the amicus brief that NASW, its California Chapter and several other prominent organizations filed with the court in support of the plaintiffs.

The brief contended that denying same-sex couples the right to marry flies in the face of the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

NASW also asserted that the state’s actions are “precisely what the U.S. Supreme Court condemned” in its landmark 1954 civil rights decision Brown v. Board of Education.

The brief cites scientific research demonstrating the severe, adverse psychological and social effects of stigma on gay men and lesbians, and argues that children of same-sex parents are harmed by the state’s treatment of same-sex couples as “different and implicitly of lesser standing.”

“Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” Walker said in his ruling.

Supporters of Proposition 8, anticipating that Walker would invalidate the law, filed an appeal with the 9th U.S. Circuit Court of Appeals. Same-sex marriages in California are on hold pending the outcome at the appeals level.

“It’s a great day in the struggle for human rights,” said NASW President James J. Kelly in a press release. “The decision in the U.S. District Court marks a major milestone in our country’s march toward full equality for all.”

He continued: “NASW believes that discrimination and prejudice directed against any group is damaging to the social, emotional, and economic well-being of the affected group and society as a whole. This decision by the court affirms that LGBT persons in California be granted all rights, privileges, and responsibilities that are granted to heterosexual people, including the right to marriage.”

The amicus brief was prepared by Covington & Burling LLP and joined by the American Anthropological Association, American Psychoanalytic Association and the California chapter of the American Academy of Pediatrics.

NASW also welcomed a decision by the District of Columbia Court of Appeals upholding the D.C. elections board’s refusal to allow a ballot initiative that would ban same-sex marriage.

In Jackson v. District of Columbia Board of Elections and Ethics, the appeals court affirmed that the D.C. Council “was not obliged to allow initiatives that would have had the effect of authorizing discrimination prohibited by the [District’s] Human Rights Act to be put to voters.” That act prohibits discrimination based on sexual orientation.

In an amicus brief, NASW said a “wide array of social science research and analysis demonstrates both the stigmatizing effects of institutionalized discrimination on the basis of sexual orientation and the harmful impacts of that stigma on the mental health and social standing of gay men and women and their families.”

The D.C. Council approved same-sex marriages in March.

In an unrelated case supported by NASW and the Legal Defense Fund, the Supreme Court of Kentucky dismissed the criminal indictment of a woman who used cocaine while pregnant. In siding with NASW’s position in Cochran v. Commonwealth of Kentucky, the Kentucky court held that the indictment circumvented the state’s Maternal Health Act, which treats the problem of alcohol and drug use during pregnancy solely as a public health problem, not a criminal act.

NASW’s amicus brief argued that “the prosecution of Ms. Cochran lacks justification in claims about unique harms from illegal drugs, lacks legal and medical support, and is at odds with the understanding of addiction espoused by the medical community, endorsed by the U.S. Supreme Court, and recognized by the Commonwealth of Kentucky.”

NASW does not condone the use of illegal substances or the misuse of legal substances that may harm fetal development; however, singling out pregnant women for criminal prosecution also is counter to maternal health and creates barriers to prenatal care, according to the brief.

In an amicus brief filed with the Alabama Criminal Court of Appeals in Kimbrough v. State of Alabama, the association urged the court to overturn the conviction of the appellant, whose infant allegedly died as a result of her drug use during pregnancy, using largely the same line of argumentation as it did in its brief for Cochran v. Commonwealth of Kentucky.

Same-sex parents: NASW’s Legal Defense Fund continues to weigh in on the custodial rights of same-sex couples who are parenting minor children.

In the matter of Frazier v. Goudschaal before the Kansas State Supreme Court, NASW asked the court in an amicus brief to affirm a lower court ruling recognizing a woman as a legal parent with the ability to seek custody or visitation of the non-biological children she raised with a partner prior to the dissolution of their relationship.

“Nearly 30 years of social science research confirms that when two adults fully participate in raising a child, the child generally develops significant attachment bonds with both parents; that these bonds form notwithstanding the absence of a biological or legal connection to the parent; and breaking this parent-child attachment bond can be devastating to the child,” the brief concluded.

NASW made the same argument in Hobbs v. Mullen and Liming, a custody case before the Ohio Supreme Court.

LDF Board: The NASW Legal Defense Fund Board at its June meeting approved additional funding in the amount of $2,500 to support an NASW member appealing the Iowa social work licensing board’s decision to deny the member’s request to sit for its clinical exam.

NASW’s Iowa Chapter strongly supported the LDF application, as many school social workers in the state faced barriers to clinical licensure, and the chapter had advocated vigorously on their behalf. The work of the chapter and of this Iowa member resulted in changes clarifying the Iowa licensing provisions that will impact many social workers.

The board also approved $4,500 to help NASW’s Kansas Chapter research and analyze applicable law relating to reorganization or restructuring of the state’s social work licensing board.

According to NASW Associate Counsel Sherri Morgan, social workers in Kansas are pooled with other mental health professionals into one licensing board, but are grossly underrepresented on the board relative to the number of licensees.

“The chapter has a concern that the Kansas board is not able to adequately represent the interests and values of the social work profession,” noted Morgan.