Legal Briefs

Volume four, Issue 25 | June 30 – July 6, 2004

Legal briefs

Gay Students Lose at Seton Hall

A unanimous three-judge panel of New Jersey’s Appellate Division court has ordered that a lawsuit seeking formal approval of a gay student organization at Seton Hall University, a Catholic school in Newark, must be dismissed. The June 22 ruling rejected arguments advanced by Anthony Romeo, a gay student who claimed that he had relied on Seton Hall’s published non-discrimination policy in deciding to enroll at the school.

In his sophomore year, Romeo organized lesbian and gay students to seek formal recognition as TRUTH, or Trust, Respect and Unity at The Hall. The school’s Student Organization Activities Committee recommended approval, but Dr. Laura A. Wankel, the vice president for student affairs, rejected the application in December 2003.

“The most compelling guidance from the Church directs us to care for the human person whose fundamental identity is as a ‘child of God’—not as a ‘heterosexual’ or a ‘homosexual,’” Wankel wrote, though she indicated a willingness to work informally to improve conditions for gay students. Romeo and his allies rejected this proposal and filed suit in May 2004, represented by Manhattan attorney Thomas Shanahan and New Jersey attorney Marianne F. Auriemma.

Seton Hall filed to have the case dismissed, noting that religious-based schools are exempt from the state non-discrimination law. Romeo’s lawyers responded that by publishing a sexual orientation nondiscrimination policy, Seton Hall had effectively waived its exemption, and that the policy established contractual obligations on the school.

An Essex County Superior Court judge initially dismissed the case, but then allowed Romeo to file an amended complaint. Writing for the appeals court, Judge James J. Petrella concluded that the trial court should have stuck by its initial decision to dismiss the case, saying the school’s anti-bias policy did not constitute a waiver of its exemption under state law. Petrella was also dismissive of the breach of contract argument, since the schools policy stated that student groups must “respect the values and mission of the University.” Seton Hall could refuse to allow a particular club that it deemed inconsistent with its “values and mission,” the court found. Petrella dismissed Romeo’s attempt to liken the student handbook to an employee handbook that can be interpreted as a contract between employer and worker.

Petrella quoted at length from the infamous 1986 pastoral letter issued by then-Cardinal Joseph Ratzinger, now Pope Benedict XVI in 1986, that laid out Catholic Church doctrine on homosexuality, to make the point that Wankel’s letter appeared to accurately reflect church policy.

Auriemma said that Romeo is considering an appeal to the state Supreme Court.

Lesbian Co-Parent Victory in California

Anticipating the answer to an important question now pending before the California Supreme Court, a three-judge panel of the state’s court of appeals ruled on June 21 that a lesbian co-parent could qualify as an “intended parent” for purposes of custody and visitation. An “intended parent” can assert legal parental rights even though she has no other biological or legal relationship to the child.

The names of the parties in the case are identified only by initials. The plaintiff co-parent, A.G., is represented by the National Center for Lesbian Rights.

A.G. and D.W. began a lesbian relationship in 1995, after knowing each other for 13 years. In 1997, the couple had a child together through donor insemination of D.W., with A.G. participating fully in the planning and financing of the pregnancy. The women issued a joint birth announcement after C.M. was born in 1998, and A.G. planned to legally adopt the child, though that never happened.

The women separated in September 2000, though A.G. remained active in C.M.’s life—continuing to pay for his health insurance, take him to medical appointments and purchase clothes for him—through 2002. In 2003, D.W. was charged with physically abusing an older daughter from a previous relationship, and A.G.’s access to C.M. was threatened, so she sought court clarification of her rights and she was declared a “de facto parent” and assured of continued visitation.

A.G. next initiated the current lawsuit, seeking a permanent visitation order, but D.W. meanwhile had married a man and opposed her former partner’s petition on the ground that A.G. was not a legal parent of C.M.

A.G. tried to argue her rights under an emerging body of California law that recognizes an “intended parent,” who participated with others in planning the creation of a new life through donor insemination, surrogacy, in vitro or in some other process, with the expectation becoming a legal parent of the child. The trial court decided, however, that existing precedent in lesbian co-parent cases mandated that her case be dismissed. A.G. appeal

The California Supreme Court has yet to extend the concept of intended parents to same-sex co-parents, but writing for the appeals court, Judge Michael G. Nott wrote that although previous cases in this area did not involve a same-sex couple, “there is no reason why the same ‘parity of reasoning’ cannot be applied” in this case. The judge noted that the very same question is currently beforeeee California’s highest court.

Because the case was dismissed on summary motion at the trial court level, the legal record at this point consists only of A.G.’s allegations. Before a final determination can be made whether she qualifies as an “intended parent,” the case must be returned to the trial court for a final determination of the facts to see if she in fact qualifies as an “intended parent.”

Though the Supreme Court has yet to weigh in on this issue, this appeals decision provides a hopeful sign of the way California law is developing, especially since hundreds of same-sex couples in California have had children in similar circumstances. Some problems have been alleviated by the enactment of California’s domestic partnership law, under which registered partners can acquire parental rights, but many people have not registered for a variety of reasons but may still seek the protection of the “intended parent” doctrine.