NASW Helps Influence Legal Decisions

— Heidi Sfiligoj, News Staff


woman with jack lifting Amicus Curiae building baseNASW works to influence public policy through a number of means, including legal advocacy in the federal and state courts. This work is done primarily with the support of the NASW Legal Defense Fund (LDF) by filing amicus curiae ("friend of the court") briefs in cases of significance to the social work profession or to social workers' clients.

"Amicus briefs are a mechanism to shape the outcome of legal decisions which, in turn, can significantly change or affect public policy," said Carolyn Polowy, NASW general counsel.

In the opinion of NASW member Rufus Sylvester Lynch, president and principal investigator of the Institute for the Advancement of Working Families, it is imperative that social workers understand the nature and purpose of courts.

"You can't make systemic change without first addressing legal issues," he said. "Courts make the final social policy. They make the final decision about many issues that social workers are most concerned about, and it is crucial to facilitate the legal process."

NASW is currently working on advancing a number of social policies through the courts that are of importance to social workers and their clients.

Same-sex rights. Social Work Speaks, the volume of NASW's official policy statements, states that "[Lesbian, gay and bisexual] people must be granted all rights, privileges, and responsibilities that are granted to heterosexual people, including but not limited to inheritance rights, insurance, marriage, child custody, employment, credit, and immigration."

NASW supports legal recognition of the right to marriage for same-sex couples. A brief NASW filed in Varnum v. Brien, which involved six same-sex couples in Iowa who were denied marriage licenses, was cited in the Iowa Supreme Court's decision holding that the state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.

NASW stresses that children in same-sex households benefit if their parents are married. "There are so many myths surrounding parenting by same-sex couples that are unsupported by the social science research," said NASW Associate Counsel Sherri Morgan. "We provide the courts with a summary of scholarly resources and information, and really focus on the best interests of children."

NASW also backs a number of same-sex adoption cases, in which the ability of a same-sex couple to adopt a child in public care is the main focus. "It can be legally difficult for a same-sex couple to adopt a child, even though some states allow them to be foster parents but have different standards for adoption," said Polowy.

NASW recently joined a friend-of-the-court brief filed in the Supreme Court of Appeals of West Virginia, opposing a lower court ruling that it is in the child's best interest to be removed from the care of the same-sex foster parents, who have elected to adopt her, in favor of the application of a heterosexual couple.

Same-sex custody disputes have also been the subject of a number of cases recently. Same-sex couples who are raising a child generally are not married, so there is not the same presumption about who has parental rights, as is automatically afforded to heterosexual married parents. If one of the gay or lesbian parents is a biological parent, the child may be at risk of losing contact with the other parent. Gay and lesbian parents are now also seeking to be recognized as psychological or "de facto" parents, which can be defined as a person who is not the biological or adoptive parent of the child but who still has a fully-developed parental relationship and functions as a parent in every respect. "We think that both parents have a right to have access to the court and present their parenting issues, so the court can decide what's in the best interest of the child," said Morgan.

The briefs filed by NASW in same-sex custody disputes have tended to focus on the child's emotional attachment to his or her parents, as well as siblings.

Vulnerable populations. Special consideration is given to cases that involve vulnerable individuals, including those who are mentally ill, elderly, incarcerated, or children. A recent example involves a brief filed in the Supreme Court of the United States in the Safford Unified School District #1 v. Redding, in support of Savana Redding, who was strip-searched for suspected possession of ibuprofin at her middle school when she was 13 years old. "Social science, state statutes, school regulations and precedent all establish that a strip search of a child by school officials is excessively intrusive," the brief states.

The case is receiving national attention, and Polowy was quoted in an April 16 USA Today article. She said that adolescents are especially sensitive to being forced to expose their bodies. She said strip searches should be used rarely, if at all.

Another group that NASW has supported is pregnant women in cases in which incarceration is ordered when a pregnant woman is addicted to an illegal drug.

NASW does not endorse the non-medical use of drugs during pregnancy and is cognizant of the health risks related. However, a serious public health issue is created by incarcerating pregnant women for drug use.

"Women will be less likely to seek prenatal care and to disclose health problems to their health care providers if they are afraid that they will be prosecuted," said Morgan.

This year, NASW joined an amicus brief in the Cochran v. Commonwealth of Kentucky case, which challenges the criminal prosecution of a woman who continued her pregnancy in spite of a drug addiction. The brief argued that science does not support the assumption that drugs, such as cocaine, pose risks of harm, greater than other pregnancy risks which are not punished.

The position NASW takes in a case is not always popular, although it is always supported by NASW policy. A recent example is Kennedy v. Louisiana, in which NASW and its Louisiana Chapter argued that the death penalty for child rape actually hurts the victims it aims to help. Last October, the U.S. Supreme Court upheld the ban on capital punishment for child rape as a matter of Constitutional law. In making its decision, the Court referred to NASW's brief in noting that the death penalty offers an incentive for the criminal to murder his victim who is the single witness, is likely to cause the victim to suffer more emotionally due to repeated court testimony about brutal acts, and could cause more child sexual abuse cases to go unreported since perpetrators of child rape are often family members.

"When they were presidential candidates, then-Senators Barack Obama and John McCain both expressed their disagreement with the Supreme Court's decision in Kennedy v. Louisiana," said Polowy. "The case has very difficult facts, but the decision ultimately had better protection for children than if it came out the other way."

The December 2008 issue of the Federal Sentencing Reporter published a feature titled "Sex Offenders: Recent Developments in Punishment and Management." The introduction to the Journal discusses the case, stating, "This decision in Kennedy v. Louisiana marks one of the few instances when the Court has drawn a clear limitation on the power of legislatures to increase the harshness of the sanctions imposed on sex offenders." A portion of NASW's brief was also published in the Journal.

"This is a good illustration of how the development of the law can influence policy. In this case, it was in the area of criminal sentencing and capital punishment, which is an area of concern to social workers," said Polowy.

Filing Briefs. On average, NASW and the Legal Defense Fund support 10 to 15 appellate cases each year. Often, NASW partners with similar organizations to join a brief.

Briefs incorporate social work perspectives, NASW policies and social science research, and are written from the perspective of the group NASW is seeking to protect. "We prefer not to get in the middle of factual or legal arguments that are the subject of the parties' main briefs, but provide the court with important supplemental information," said Morgan.

Amicus briefs are often filed with the pro bono services of outside counsel. Occasionally, for some cases, NASW will retain counsel directly supported with funding from the NASW Legal Defense Fund.

NASW Legal Resources. The Legal Defense Fund provides financial legal assistance and support for cases and issues of concern to NASW members and the social work profession. The work of LDF is paid for by contributions from members through the check-off on member dues renewal forms, but individual contributions are also welcomed.

The Legal Issue of the Month articles address questions raised by members and topics related to practice. Morgan says she often directs members seeking answers to legal questions to these articles, which are available without charge to members online at the LDF Web page.

For fuller treatment on a particular legal topic, members may also refer to the General Counsel Law Notes, which can be ordered through the LDF Web page. These are often used by social work professionals and NASW members involved in a case.

All of the briefs filed by NASW are stored electronically in the LDF Amicus Brief Database. Members can use this resource to identify which cases have been adjudicated in their state on an issue, or they can refer to the briefs when developing legislation or policies in their own state. The brief database also serves as a tool for students researching particular policies.

"Watching the development of social policy through court decisions has reinforced for me the importance of the legal system to the work of social workers and NASW," Morgan said.