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On Our Radar – LGBT Legal Groups Sacrifice Three-Year-Old Jacob For A More Favorable Venue

by Jean Ann Esselink on March 10, 2013

in Gay Agenda,Jean Ann Esselink,Legal Issues,Marriage,News,On Our Radar,Parenting

Post image for On Our Radar –  LGBT Legal Groups Sacrifice Three-Year-Old Jacob For A More Favorable Venue

Three-year-old Jacob survived being born drug addicted, a mother who abandoned him, and a social worker who decided to let him die. Rescued by a lesbian couple, his rights should have been championed by the LGBT legal organizations, but instead, they sabotaged the lawsuit that would have granted him two legal parents.  Today, the decision to sacrifice Jacob in the hopes of a more favorable venue, is On Our Radar.

JacobWhen Jacob was born he weighed one and a half pounds. That’s the size of the average meat loaf. His drug-addicted mother didn’t want him, so he spent his first weeks on this planet alone, in a hospital, attached to tubes and wires, waging a painful struggle to hang on to life.

At four months, the social worker assigned to represent his best interest ordered the nurses to detach the tubes and the wires. She asked one of the NICU nurses to bring the baby home with her, and make him comfortable until he died. What the social worker didn’t know was that April, the nurse she chose, was actually a superhero, part of the dynamic duo of April and Jayne DeBoer-Rowse, whose superpower is saving children. Because of April and Jayne, Jacob lived.

READ: Mother’s Day On Our Radar – Lesbian Supermoms Take On Family Equality

229946_3288589655517_44348301_nThe doctors feared Jacob would never walk or talk, but because of April and Jayne and the constant therapy they gave him, he proved their dire predictions wrong. Jacob is three now, enrolled, and doing well in a Head Start program. He knows his letters. Speaks in sentences. Can write his name, and even use a Leap Pad computer, because of Jayne and April. The two mothers gave Jacob everything he needed to thrive, except the one thing Michigan law would not allow, adoption by both his mothers. You would think with that smile and a story like his, little Jacob would have rallied the LGBT legal activists to his aid, but it appears the opposite may be true.

According to Buzzfeed, the LGBT organizations leading the legal fight for marriage equality became the latest villains to disregard Jacob’s best interest in favor of their own. The American Civil Liberties Union, the Human Rights Campaign, Lambda Legal, and the National Center for Lesbian Rights, the very people who should be fighting to protect Jacob, instead sacrificed him, along with his four-year-old brother Nolan, and his three-year-old sister Ryanne, children who, like Jacob, were rescued by April and Jayne. Their excuse? Their crystal ball told them the odds for an agreeable marriage equality verdict might be better somewhere else.

396851_10200293245558741_1635703685_nWhen I first interviewed April and Jayne, who have been together for more than a decade, I asked April if they wanted to marry. I had an expectation that the desire to be married burned brightly in every gay couple’s heart. I remember being surprised at how unimportant that possibility seemed to her. Maybe someday, but for the moment they had three kids under three, where would they even find the time? What April and Jayne wanted, and all that they wanted, was to both be able to adopt their own three children, giving them the same privileges and rights as the children of any other two parent family.

I have never encountered anyone quite like Jayne and April. It took me a little while to understand them, and still I often remark that I think they are crazy; but they are the very best kind of crazy. Jayne’s Facebook page is always full of the problems of parenthood, sick kids, lack of sleep, unexpected financial demands. At first, I made the mistake of thinking of those posts as complaints. (Coming from me, they would have been.) Then one evening, I saw a post from one of them about two new foster children who had been entrusted to them in an emergency placement. I don’t know the reason the girls were sent to April and Jayne, superheroes don’t speak of such private matters, but I know it was sudden and temporary and emotions were on overflow. The post said “Two scared little girls finally asleep after a very hard day.”  Suddenly, I got it. For Jayne, her posts about bed-wetting and runny noses and broken down vans were never negatives. They were happy accounts of her adventures in motherhood. She was not complaining, she was reveling.

Yes, April and Jayne are very much pro-marriage equality, but not everyone can fight every battle. The two of them have chosen to be comrades in arms in quite a different war, the war to save children. When they filed their lawsuit, they did it not as lesbian militants, they did it as lesbian moms. From the very beginning, their lawsuit was not about equal rights for gay couples. It was always about equal rights for the children of gay couples.

Not one LGBT organization stepped up with money, or legal assistance to help in Jacob’s adoption lawsuit. There is a special irony in that sad reality, in that these same organizations made the most headway in public opinion when they abandoned their strategy of demanding equal rights, and decided to adopt a less strident campaign of encouraging gay people to come out, showing Americans that gays are their friends and neighbors, not people to be feared. What better face could they have found to represent same-sex families than valiant little Jacob? But in the end, no one from the world of LGBT power players found Jacob important enough to fight for him. No one but his mothers.

486483_3522765389764_1224707131_nApril and Jayne found local attorneys Dana Nessel and Carol Staynor, who generously agreed to help them. They held fundraisers. They begged strangers for contributions to their legal fund. If the LGBT organizations wouldn’t help, so be it, but at a minimum, the mothers and their lawyers had an expectation that these organizations would do nothing to harm their case either. Sadly, that does not seem to be a standard the LGBT organizations lived up to.

Jayne and April went into court expecting a decision only on the constitutionality of the Michigan law that prohibits them from adopting. It was the conservative federal judge hearing their adoption case who made the suggestion that they amend their case to challenge the Michigan law against same-sex marriages. The couple was stunned. So were the lawyers. Judge Bernard Friedman offered the plaintiffs a choice, he would render a verdict on the adoption case as they had presented it, or he would allow them to change their suit to challenge Michigan’s marriage law, which the judge observed, would cure the couple’s adoption problem.

533050_3522766589794_975907227_nThis was not an easy decision for our super-moms. Along with their attorneys, they agonized over it. Their need to secure legal protections for their children cried out for caution. Take the verdict. Let someone else fight the good fight for marriage. But on the other hand, this was a tantalizing suggestion from the judge who would decide the case, surely he would not have ventured such an idea if he had no intention of seeing their motion in a favorable light; to pass up such a chance might be an opportunity wasted.

In the end, Jayne and April reverted to form. They are superheroes and superheroes don’t run from a fight. Even after the judge’s expressed invitation to challenge the Michigan marriage statute, the ACLU ran. The HRC ran. Lambda Legal ran. The NCLR ran. It was the wrong fight, they said. It would be too hard. It wasn’t the right district, the right judge, the right time. The stars just weren’t aligned. Jayne and April and their devoted attorneys stood alone to challenge the marriage laws of Michigan, not for themselves, but for thousands of Michigan same-sex couples and their children who just might be granted equality.

599433_3522766229785_1763056197_nI think Jayne and April would have been disappointed but accepting that they were not offered help from the national LGBT groups, if only those groups had just stood down and allowed them to fight for their children without interference. But, if Buzzfeed is right, the ACLU, the HRC, the NCLR and Lambda Legal, didn’t just abandon Jacob to whatever justice his mothers could find for him, they sabotaged his case by secretly lobbying the judge not to decide Jacob’s fate until after the Supreme Court hears the DOMA and the Prop 8 cases that are before the Court.

Don’t fall into the trap of thinking the LGBT groups simply made the big picture choice of trying to venue shop and Jacob and his siblings were merely unfortunate collateral damage. At any time, any of these groups could have asked Jayne and April not to pursue Judge Friedman’s suggestion. They could have conveyed to Jayne and April’s attorneys that their national strategy called for keeping the Sixth Circuit from making a decision, before the lawyers spent hundreds of hours preparing their case. Any one of those groups could have whispered to Jayne and April, we appreciate your courage but we have another plan. Take your adoption verdict. Save Jacob. Save Ryanne. Save Nolan. Leave the rest to us.

3The national LGBT groups we think of as champions of the powerless, appear to have operated with jaw dropping callousness to undermine the case brought by Jayne and April. Like the woman who gave birth to him, and the social worker who sent him out to die, Jacob’s future was expendable, traded away for the hope there would be better odds for someone else, in a different court. All that is missing in this story of betrayal is a kiss on the cheek and 30 pieces of silver.

Because the powerful national LGBT groups play the odds on what courts are most likely to rule in their favor like a game of chess, Jacob is again forced to play the odds that nothing will happen to his legal mother, Jayne. Should Jayne die, April, the mother whose arms carried that tiny bundle from the hospital, would have no legal right to keep Jacob. He would be left once again to the mercy of the State of Michigan, the very same bureaucracy that once decided to let him die. He deserves so much better.

Today, Jacob’s fate, and those who trifle with it, are On Our Radar.


Photos are from Jayne and April’s Facebook Pages.

tncrmJean Ann Esselink is a straight friend to the gay community. Proud and loud Liberal. Closet writer of political fiction. Black sheep agnostic Democrat from a conservative Catholic family. Living in Northern Oakland County Michigan with Puck the Wonder Beagle.

Follow me on Twitter as @Uncucumbered or friend me on Facebook.

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bgryphon March 10, 2013 at 9:46 am

As much as I hate to think this could happen, I know how often nearly-straight gay men have been prepared to sacrifice leather folk, drag performers, radical faeries, women and anyone who might make it more difficult for them to obtain their nearly-normal status. No progressive movement should ever be content to treat anyone as "collateral damage".

JayJonson March 10, 2013 at 11:08 am

This article is enormously short-sighted. The Sixth Circuit is notorious anti-gay. It would do no good to get a ruling from a district judge that would be summarily overturned by a homophobic appellate court, with consequences that could prevent progress on gay rights for a very long time. Especially when we are a couple of months away from Supreme Court rulings that all judges will be expected to follow. No district judge in their right mind would issue a ruling on same-sex marriage or marriage bans until after the Supreme Court rulings. It seems to me that you are more interested in sowing discord and dissension than in the best interests of Jacob.

tacitus March 10, 2013 at 11:28 am

“Their crystal ball told them the odds for an agreeable marriage equality verdict might be better somewhere else.”

That is not something to be minimized. No court case is ever decided in a vacuum; it has to fit into a tradition of judicial precedent. If there is no such tradition, then it is even more important that the first or the next case be decided in the best way. The effects of a case can be very long-lasting.

Using the courts can be a good strategy, but it can also be a bad one. If highly experienced AND sympathetic lawyers think it’s a bad idea to go to court, grassroots legislative change is probably what’s necessary.

I do agree, though, that some disclosure to the parties involved would have been nice.

Cambel March 10, 2013 at 12:00 pm

Why be surprised? Remember these are the same groups that demanded gay couples NOT go to court to fight for Marriage, NOR that the gay community press for the repeal of Don't Ask Don't Tell. They said that people might get upset and it wasn't the right time. They said instead that they wanted to focus on ENDA. Why? Easy, ENDA STILL hasn't been passed. And because by dragging out the process they continue their own existence indefinitely.
HRC was bringing in 50 million dollars a year and yet trying to pressure any gay couples to NOT fight for marriage. The fight for rights has moved beyond these groups.

Huntercgo March 10, 2013 at 12:47 pm

Their position makes no sense — by the time this case is heard by the appeals court, there's going to be a Supreme Court precedent, unless the 6th Circuit has so little to do that they can schedule it immediately. So why wait for a decision at the trial court level? If nothing else, since the judge seems sympathetic, there might very well be yet another district court decision finding a state anti-marriage amendment unconstitutional, which might nudge the justices toward a broader decision in Perry.

And yeah, I think Cambel is right — HRC, at least, had to be dragged kicking and screaming into the marriage fight and even then tried the same sabotage on Prop 8 at the district level.

David_Brayton March 10, 2013 at 1:36 pm

I disagree. First, none of these organizations have any ethical obligation to take on this case that is any greater than that possessed by any third party. Just because these groups have given their time and money and invested in their reputation to help others with similar characteristics creates no obligation to litigate Jacob's case.

Second, groups that do 'impact' litigation can and should wait for exactly the right set of facts to come along. Impact litigation is resource intensive. Such cases can cost more than $1M to litigate and required ten of thousand of hours. To invest such amounts in a case that doesn't have a great set of facts is dangerous. A loss could set a binding precedent that will take decades to reverse.

Third, change from the legislature is almost always the best way to proceed because such changes as seen as arising from the will of the people. Change that is forced upon society via judicial pronouncements is always subject to the charge of 'judicial activism'. Take for example, Roe v. Wade. Many people argue that the Court should have been much more limited in its pronouncement. Given the 'chipping away' that has occurred over the last four decades, they might be right. So, in light of the progress same-sex marriage has had over the last decade, their is much to be desired to the path to social change

Finally, Jacob's interests must always be paramount in any litigation. The ethical rules of every state bar and the common law of England, established that rule long ago. The judge suggested the easiest way to obtain the Jacob's desired result. To forego that path in hopes of securing a right for many on a path that may lead nowhere, is malpractice and a true disservice to Jacob.

Just out of curiosity, how much money (cold hard cash) have you contributed to Jacob's legal defense fund?

JayJonson March 10, 2013 at 4:01 pm

We are on the verge of an historic victory in the Supreme Court. This victory will help Jacob and his parents. It is possible that a ruling from the Supreme Court will strike down the Michigan constitutional amendment at issue in Jacob's case. It would be foolish for a judge to rule on a case without waiting for the Supreme Court to issue its decision in the DOMA and Prop 8 cases, which could have very broad implications for all anti-gay laws and constitutional amendments, especially if the Court decides that cases involving sexual orientation require heightened scrutiny.

Lambda Legal and the other groups did precisely the right thing in urging the Judge to wait until the Supreme Court rules.

JStephenClark March 10, 2013 at 8:57 pm

If the author of this piece thinks of Lambda and the other national gay legal groups as "champions of the powerless," she misunderstands their mission. She has mistakenly assumed that these groups are legal aid clinics–organizations which provide services to needy litigants. While legal aid clinics provide an incredibly important service, that is not the mission of the national gay legal groups. The mission of those groups is to change the law through "impact litigation"–that is, bringing cases that will establish precedents that move the law in a more pro-gay direction. "Impact litigation," by definition, involves taking cases that are likely to produce pro-gay changes in the law and not taking cases that are likely to harm the movement for gay rights. Making those calls it tough. It requires hard choices driven by brutal realism about prospects for success in changing the law.

A decade ago, the national gay legal groups declined to take a marriage challenge in the Arizona courts. At the time, people like the author of this piece attacked the groups for the decision. But the groups' assessment was that the Arizona courts were almost certainly not prepared to rule for gay marriage and that taking a case into those courts would likely harm the movement by producing another precedent rejecting marriage equality. The couple wanting to bring the challenge was outraged, just as the author of this piece is. They plowed ahead with their lawsuit, and guess what happened? That's right. The Arizona courts thoroughly rejected it, held that banning gay marriage did not violate the constitution, and created a terrible precedent that every other gay couple, especially those in Arizona, has had to live with ever since. And when things like that happen, guess what people like the author of this piece say? NOTHING. They never say they were wrong to have rejected the highly informed judgment of the national gay legal groups. They never admit that the suit should not have been brought. They never concede that, next time, the assessment of the national gay legal groups should be given more consideration and respect. The critics just slink away and then pop up again attacking the national gay groups the next time they make a tough call to turn down a case because they think it is ultimately more likely to harm than help the movement.

The gay community created these national legal groups and has funded them for decades now precisely because we wanted a collection of skilled lawyers to develop finely tuned expertise in gay rights law. They are doing exactly what we need them to do and set them up to do: Develop and maintain the expertise to advise the rest of us about the wisdom of various litigation choices.

Bose_in_SP_MN March 10, 2013 at 9:17 pm

It's disappointing to me, too, that national groups kept their distance from what Jacob needed.

At the same time, my experience with family court left me with a sense that standard district and state court decisions leave thousands of families poorly served.

In the course of my wife and I working through our mid-90s divorce after I started coming to terms with being gay, my attorney assured me that having "joint legal custody" meant what the law said it did — that even though my ex would have primary physical custody, we would contribute equally to decision-making regarding the kids' care, education and activities. If my ex tried to subvert that, he said it would be grounds for contempt of court charges against her, leaving me believing that I would have a leg to stand on. In the context of me being newly out as gay, and the co-parent of my kids being a conservative Christian with a newly rabid anti-gay edge, I looked forward to having legal support for finding middle ground if/when conflicts came up.

In the first year post-divorce, my ex informed me that she was taking steps to pull our eldest son out of the public school we had chosen together, to enroll him in a nearby private Christian school. I wasn't overly concerned about this at first, because it was a no-brainer that putting a kid in a virulently anti-gay school surely wasn't a reasonable decision for a kid with an openly gay dad who had some say in critical decisions.

By that point, I had switched to attorneys with heavier experience in joint legal custody as well as LGBT issues. The truth turned out to be messier than my first attorney had promised. Yes, "joint legal custody" was defined as equal decision-making, but in practice, over-taxed family court judges basically never enforced it, seeing it as meddling with decisions of the custodial parent. The status quo was that any non-custodial parent who wanted more equitable two-parent decisions needed to mount an all-out fight for primary physical custody.

My attorneys saw my case for asserting my basic parental rights as viable and worthwhile, but only to the extent I was prepared to lose until we got to the state supreme court, spilling buckets of money I didn't have, and probably putting the kids' names into the news. They knew too many parents who had been through comparable crap, and wanted to fight the battle, but the opportunity hadn't come up yet to really pursue it.

My hat is off to April, Jayne, Jacob, and the rest of their family… thanks for fighting the good fight!

Alex_Parrish March 11, 2013 at 10:51 am

Has the author considered the possibility that the "conservative judge" who suggested they broaden their case was possibly purposely setting them up for failure? Where they might have received a favorable ruling on the adoption case, expanding the case to include marriage equality was automatically a harder goal. You are clear in the article that no national groups stepped-up to help in the case. What is less clear is whether the litigants — fine women by all accounts and model parents — asked or sought-out help from the national groups. Did they do so and were rejected, or is your complaint that the help didn't just suddenly materialize? As worthy as their cause is, there are many worthy causes and national groups are most likely to accept those causes where they can see a glimmer of possibility. If the women requested help and were flatly denied without an explanation of the futility of their process — that's one thing. If they approached the national groups with the expectation that they would simply provide support regardless of the outcome, that's another case. Seems there is always more to the story than will fit in one article…

SamMaloney March 11, 2013 at 2:14 pm

I think your headline here is WAY out of line. LGBT legal organizations have an obligation to bring only those suits that will do the most to advance the cause of equality. Loosing in court sets damaging and dangerous precedence that can take decades to overcome.

No matter how wonderful these women and their kids are, I don't want to see our entire community drug down by a suit that may has little chance of success, for whatever reason.

Leave the overheated rhetoric like 'sacrificed' to the god squad.

Alex_Parrish March 11, 2013 at 2:45 pm

I agree with Sam that this headline is out-of-line. The kid lost nothing that he had. Sure — he deserves loving parents supported by their government to the extent that all families are — but he did not lose or "sacrifice" that support because he never had the governmental support in the first place. It is like saying that you have financially sacrificed because you didn't win the lottery. You are out the cost of playing but you cannot claim that you "lost" a zillion bucks because it was never yours in the first place. Jacobs parents — I repeat, fine women, to be sure — made a choice about the way in which they would conduct their lawsuit. They took the advice of a judge (who seems to me to have the potential for suspect motives) and that didn't work-out. They have sacrificed the legal fees but, to be clear — that was their choice. They didn't sacrifice their son or his rights, nor did any of the other parties mentioned, because he is in exactly the same position as before this started. Why not leave the hyperbole to Faux Snooze. Your readers deserve better from you.

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