Legal Briefs (July 2012)

The New Mexico Supreme Court issued a much-hailed decision on June 1 that acknowledges the legal status of nonbiological mothers who raise children with a same-sex partner. The decision supports the argument of an amicus brief that NASW and the New Mexico Chapter filed earlier in the case, Chatterjee v. King.

It urged the court to recognize the importance of a child’s relationship with his or her parents regardless of a biological connection. The New Mexico Supreme Court ruled that a woman who has established a parental relationship with a child can be a legal parent under state law.

The court stated that even if a nonbiological parent has not adopted the child, she can be recognized as a parent, and that once the nonbiological parent is recognized as a parent, both parents are equal legal parents under the law and have an equal right to seek custody.

NASW’s brief was facilitated by the NASW Legal Defense Fund and filed by the Southwest Women’s Law Center. The nonbiological mother was represented by the National Center for Lesbian Rights.

The NASW LDF filed an amicus brief in May on behalf of the association in support of a petition for certiorari in a death penalty post-conviction case. The brief seeks to have the U.S. Supreme Court accept the case, Abdur’Rahman v. Colson, for review.

Abu-Ali Abdur’Rahman is on death row because of his counsel’s failure to offer the jury evidence of his compelling and excruciating life history and mental illness as mitigating factors in weighing whether to spare his life, according to the brief.

It contends that readily available documentary and testimonial evidence would have shown that Abdur’Rahman suffered from a serious mental illness, including borderline personality disorder, post-traumatic stress disorder, dissociation and delusional thinking. The brief argues that had counsel fulfilled their professional responsibility to uncover and use this compelling mitigating evidence during the defendant’s sentencing, it would have caused the jury to be less likely to impose a death sentence.

A pro bono legal team from Skadden, Arps, Slate, Meagher & Flom LLP drafted and filed the brief for NASW.

NASW and the NASW Florida Chapter filed an amicus brief in May in the Florida Supreme Court through the work of the NASW LDF. In DMT v. TMH, the brief addresses the rights of a child to have a relationship with both same-sex parents after they separate.

In this case, one partner in a lesbian couple provided her ova, which was implanted in the other partner, who gave birth to the child. The couple jointly shared in raising the child in their home for several years until the relationship ended, according to the brief.

The birth mother is attempting to deny the biological mother all access to the child, although there are no findings of unfit parenting. The brief provides the court with background information on the social science research supporting the importance to children of maintaining their primary parent-child attachment relationships without interruption throughout their developmental years.

Lawyers from Wilmer Cutlter Pickering Hale and Dorr LLP provided NASW’s pro bono representation in this matter.

Also in May, the NASW LDF facilitated the filing of an amicus brief by NASW and the Iowa Chapter in the Iowa Supreme Court in the case Gartner v. Iowa Department of Public Health.

The brief argues that the refusal of the state’s department of public health to list the same-sex spouse of a birth mother as a parent on their child’s birth certificate both threatens the parent-child relationship and countermands the state’s Supreme Court ruling in 2009 that made same-sex marriage legal in Iowa (NASW also filed a persuasive brief in that case, Varnum v. Brien).

The brief states that the refusal to apply the spousal

presumption statute to include both same-sex spouses on a birth certificate places the non-birthing parent’s legal relationship with the child in question and threatens to disrupt the child’s development and well-being, as well as rob him or her of the many benefits inherent in a close and uninterrupted parent-child bond.

A legal team from the Iowa and Minnesota office of Faegre Baker Daniels LLP provided pro bono services to NASW.

NASW LDF filed an amicus brief in the 8th U.S. Circuit Court of Appeals regarding the case, Barrett v. Claycomb. The brief argues that the Missouri-based Linn State Technical College’s policy that requires students to be drug tested actually hampers rather than advances the school’s interest in preventing substance abuse and reducing alcohol and drug-related problems.

It explains that research has repeatedly failed to demonstrate that random, suspicionless drug testing of students prevents or reduces student alcohol or other drug use.

The policy is also flawed by the infringement of medical privacy through urine screens. In order for the college’s drug testing program to proceed, students must accept the disclosure of the medications they take and their medical conditions.

In addition, the school’s policy of notifying the parents of adult students about positive test results almost certainly exacerbates the vulnerability felt by many students as a result of the mandatory testing scheme, the brief states.

It adds that any discussion of drug testing must take into account the risk of and harms engendered by inaccurate drug test results as well. It is problematic that the accuracy and reliability of school drug testing programs operate without the benefit of binding guidelines or regulatory oversight.

NASW’s brief was filed by attorneys from the Drug Policy Alliance.

Visit the NASW LDF Amicus Brief Database for these and other cases.