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ANTI-GAY ORDINANCES; WHAT'S IT SPELL FOR GAY CUSTODY ISSUES?

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ANTI-GAY ORDINANCES; WHAT'S IT SPELL FOR GAY CUSTODY ISSUES?

Without state law, towns tackle anti-gay bias- AP NEWS

Although his years-long crusade to enact a statewide ban on discrimination based on sexual orientation or gender identity again died at the end of the most recent legislative session, state Rep. Dan Frankel sees reason for optimism.

This time around his bill attracted a record 71 co-sponsors, including two Republicans, and even passed narrowly out of the State Government Committee. It then drew hostile amendments from opponents and was not brought up for a floor vote.

With Republicans set to take over the House and governorship next month, Mr. Frankel says his effort's short-term prospects are dim, but he insists he's much more hopeful about the long run.

"In my view, it's inevitable," said Mr. Frankel, D-Squirrel Hill. "When you talk to people, particularly younger people, under 50, they don't understand why this is an issue."

The Legislature's lack of action to outlaw bias in housing, employment or public accommodation for lesbian, gay, bisexual and transgender people has helped prompt 18 counties or municipalities across the state to pass their own local human relations ordinances, while about a dozen more are in some stage of considering it.

The issue has arisen most recently in the Philadelphia suburbs, where Doylestown passed an ordinance in August and the Lower Merion Township commissioners adopted one earlier this month.

In Hatboro, the council passed a human relations ordinance in November but it was vetoed by the mayor, who said the issue was more appropriately handled by state government. Opponents also cited costs and potential litigation.

Pennsylvania's 18 local ordinances vary to some degree, but they generally require a review by a human relations commission and a mediation process and rely on fines, summary charges or civil litigation for enforcement. Seven also conduct their own investigations.

Twenty-one states have similar laws on the books.

"You can fire someone for being openly gay in Pennsylvania," said Ted Martin with Equality Pennsylvania, an advocacy organization with offices in Philadelphia and Harrisburg. "It's still legal. It's still legal to refuse them public accommodations. Those things, as long as they exist, are wrong."

Opponents note that expanding anti-discrimination protections comes with a price to taxpayers, argue that the incidence of those kinds of bias is relatively infrequent and say the laws can force a conflict with deeply held religious beliefs.

"It creates a policy, a public policy, and it puts those who disagree with that policy in the same footing as those who are, say, racial bigots," said Randall Wenger, lawyer for the Harrisburg-based Pennsylvania Family Institute, which lobbied against Mr. Frankel's bill.

"We call certain choices discrimination because we, collectively, as a people, determine that certain choices are downright bad, they're downright evil," Mr. Wenger said. "I think recently, with the additional of sexual orientation and gender identity, they are choices people make precisely because they are the moral choices they want to make."

Francis Viglietta, director of the Social Concerns Department for the Pennsylvania Catholic Conference, said the proposed law would not make what the church considers an important distinction between sexual orientation and sexual behavior.

He worries about potential implications for his church's adoption program, particularly over policies that place children in homes with both a mother and a father.

"Do I think that this is being used to advance an agenda? Quite possibly, that's the case," Mr. Viglietta said.

The Lancaster County commissioners disbanded their human relations commission last month in what was described as a cost-savings measure, but the move came after LGBT activists began pushing for coverage under the ordinance.

Stephen A. Glassman, chairman of the Pennsylvania Human Relations Commission, said cost concerns can be overblown and have to be balanced against the cost of not actively dealing with discrimination complaints.

"If you can repeal 'don't ask, don't tell' at the federal level, you ought to at least be able to protect people's jobs and housing in the state of Pennsylvania," Mr. Glassman said.

He said the number of complaints filed by LGBT people can be low because they may be pessimistic about getting results and worried about disclosing their sexual orientation.

"That kind of fear is still pervasive, so you're not necessarily going to see that many cases," Mr. Glassman said. In areas where there are local ordinances, he said, "what you do see is improved behavior by the landlords and employers."

Virginia Hardwick, a Doylestown lawyer with experience in discrimination cases, said she has seen many examples of bias against lesbian, gay, bisexual and transgender people.

"Out-and-out, and stated discrimination," she said. "And there is no protection for them under Pennsylvania or federal law."

She said some local Pennsylvania ordinances allow little more than the issuance of a cease-and-desist letter.

"While I applaud a municipality that has an anti-discrimination ordinance, some of the ordinances do not have much in the way of teeth," she said.

A major advantage of a single statewide law, she said, would be its uniformity.

"It would extend protection to all of the people who don't happen to live in the municipalities that have passed this legislation," she said. "But it would also be preferable for employers to know exactly what we're dealing with."

Custody and Visitation of Children By Gay and Lesbian Parents

While homosexuality per se is not a basis for denying visitation or partial custody to a parent, it is not irrelevant, since it is a relevant consideration in every custody case to scrutinize the illicit relationship, whether heterosexual or homosexual.

Where there is a custody dispute between members of a traditional family environment and one of homosexual composition, the presumption of regularity applies to the traditional relationship, and the burden is on the parent who is involved in a gay relationship to prove that there will be no adverse effect on the child if exposed to the relationship.

Illustration:

A hearing court could properly consider a father's homosexual lifestyle when formulating an order awarding partial custody to the father; the effect of the father's living openly in a homosexual relationship was a relevant fact, and its effect on the emotional well-being of the children necessarily had to be considered if their best interests were to be served. The burden was upon the father to show that there would be no adverse effect on the children if they were exposed to the father's lifestyle and the open relationship.

A mother's former same-sex partner stands in loco parentis to the mother's biological child and can seek legal and physical custody.

Where do the Anti-gay bans take the Court's thinking?

There can be no doubt that ever-increasing public sentiment against gay discrimination, will tend to soften the analysis that courts will take when view one or both parents that are engaged in a homosexual lifestyle. Perhaps, future State Legislative efforts will also occur based upon this new wave of local legislation, ordinances, and policy pronouncements. Should a future State Law be passed prohibiting open gay discrimination, it will undoubtedly translate into a court's legitimate analysis of what may be considered in the "best interests" of a minor child.

For a discussion of your case, contact the experienced legal team at Shaffer & Engle Law Offices, LLC, at 717-695-8849 , or log onto our website for additional answers or to communicate with an attorney directly: www.pennfamilylawyers.com.  Attorney Nichole A. Collins has extensive experience in this filed an has authored this post.

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