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Mississippi Adoption Agencies May be Able to Deny Placement of Child Based on Premarital Sex

Remember when businesses could refuse service to African-Americans? Mississippi has just passed a religious freedom bill that puts a halt to any progression made in the LGBT community since Obergrfell v. Hodges and it sure reminds me of when blacks were segregated from whites. Will we ever learn from past mistakes?

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both public and state employees to discriminate against anyone they believe doesn’t align with their religious beliefs. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergrfell.

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The LGBT community will take the biggest hit from this bill, but many are overlooking an even smaller portion of the bill that focuses on adoption agencies. Essentially, adoption agencies, whether public or private, will be able to discriminate against potential adopting parents if they believe those parents are having premarital sex. Say what?

A Closer Look at the Bill

The actual text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Now on it’s face, it looks like the State of Mississippi is promoting, or rather supporting, this belief. What the bill actually says is that the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs.

Discriminatory action on behalf of the government means the government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. The bill isn’t necessarily promoting this belief so much as they are granting protection from governmental backlash.

Still seems a bit backwards though doesn’t it? The bill further reads:

“Section 3. (2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction…”

It’s broadly written, which means adoption agencies could essentially deny placement of a child on the basis of the agencies religious beliefs that sex is reserved for married couples. Is this going to be on a pre-adoption questionnaire?  Asking whether someone is having sex outside of marriage would be a violation of the right to privacy, but the agencies could just assume certain people are engaging in premarital sex.  Sounds a whole lot like religious discrimination, doesn’t it? Let’s look at an example to see how this could actually play out.

  • Bill and Cindy want to adopt a child. Both have good jobs and would be excellent parents, however they don’t believe in marriage and, instead, live together as domestic partners.

A “religious organization” under the bill includes a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity…” Adoption agencies are run by either public (state) or private entities, which means privately held companies run by religious organizations could refuse their services to anyone they want under the freedom of religion umbrella.

  • An adoption agency with firmly religious roots finds out that Bill and Cindy are not married and since they strongly believe sexual relations are reserved for married couples, they choose to deny placing a child with them.

The Bill Might Not Actually Violate Any Rights

The Federal Civil Rights Act of 1964 prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.

A couple’s ability to parent should not rest solely on the basis of religion or marriage. However, while the act itself of discriminating based upon religious beliefs is a violation of the Act, maybe even a violation of the right to privacy, the text of the bill itself may not be violating any rights because it only prohibits the government from taking governmental action against those that choose to discriminate, rather than having the government itself be the discriminating party.

Whether the application of the bill plays out as written is a different story. If applied discriminatorily, it won’t matter how the text of the bill is written.  That’s going to be a key distinction when this bill is inevitably challenged.  Those that the bill affects will have to take suit up with the individuals discriminating, rather than with the government.

Shots on Goal: Will the U.S. Women’s Soccer Team’s Gender Discrimination Lawsuit Succeed?

The U.S. Women’s national soccer team is among the top women’s soccer teams in the world—potentially the outright best. They’re currently ranked first in the world and generally rank no lower than second. They’re also winners of three Women’s World Cups, four Olympic gold medals, and over 17 other high-tier international cups.

The Men’s U.S. team, while filled with extraordinary talents, has never been able to compete with the ladies in terms of success. Currently ranked 29th in the world, they have never placed higher than third in a World Cup and have never approached the women in terms of success in other tournaments.

Given the consistent distinguished performance of the Women’s team, you’d think their pay would be greater than their male counterparts—or at a minimum similar to each other. You’d be wrong by a matter of degrees.  The men’s team makes over three times more for a loss than the women’s team makes for a win. Where the men win this discrepancy increases to as high as 13 times as much as the women.  This is before taking into account other contract incentives which widen the gap even further.

The women’s team has had enough of this discrepancy in pay. They recently filed a complaint with the Equal Employment Opportunity Commission accusing the U.S. Soccer Federation of gender-based discrimination in their pay.  The numbers above are from their complaint.  The difference in pay between men and women’s sports is far from a new story.  However, the U.S. Women’s soccer team face an uphill battle in their lawsuit.  In order to understand why, let’s look at the law behind cases alleging gender-based wage discrimination.

Gender-Based Wage Discrimination: The U.S. Women’s Soccer Team’s Lawsuit

Hope Solo, famous goalkeeper for the U.S. team and co-plaintiff in the team’s complaint, has been quoted saying “we are the best in the world, have three World Cup championships, four Olympic championships…[and the players on the men’s team] get paid more to just show up than we get paid to win major championships.” So if this is true, how could the women’s team lose a case alleging discrimination in how they get paid?

The Equal Pay Act makes disparate pay based on gender illegal.  In other words, an employer can’t pay you less because you’re a woman or because you’re a man.  In order to successfully sue under the Equal Pay Act a plaintiff must show several things: you’ve been wrongly discriminated against based on a protected characteristic, you’re being paid unequally for doing the same work, and you work under similar conditions in the same company as those being paid more than you.  US Soccer

Discrimination can be shown through patterns in the behavior of your employer, such as consistently paying women less across the board. Work is considered equal where it takes place in similar working conditions and requires the same level of skill, effort, and responsibility.  Based on the women’s team’s complaint, proving both of these should both be easy as dribbling the ball for the ladies.  They have demonstrated that the women’s team is paid less across the board for the same work as the men’s team.

While U.S. Soccer disputes the accuracy of the women’s teams’ figures, even were the difference in pay substantially smaller it could still establish disparate pay. However, even though the case looks strong on its face, there are two huge hurdles the women’s team will need to overcome in order to be successful in their suit: the difference in earnings between men and women’s soccer and the fact that the women’s team collectively bargained for their current pay agreement.

How the Shot Could be Blocked—Difference in Revenue

Under the Equal Pay Act, there are several ways an employer can counter a claim of wage discrimination.  These ways include, among other things, a proven ability to generate higher revenue to support a differential in pay.  Where an employer can show such an alternate basis for the difference in pay, it is a defense to an allegation of wage discrimination.

U.S. Soccer will certainly argue that the ladies make less money than the men and that this is the basis for the difference in pay. In their complaint, the women’s team alleges that last year they made $20M more in revenue than the men’s team while attracting similarly sized crowds.  However, this being said, last year’s Women’s World Cup garnered $17M in sponsorship revenue.  This is a record amount, nearly tripling the income from 2011.  The men’s World Cup raised $529M last year.  The prize pool for the last years Women’s World Cup, a substantial source of potential revenue, was $15M.  The prize pool for the men’s World Cup was $576M.

It is extremely dubious that the men’s event is so much more exciting that it merits 38 times the prize pool of the women’s event.  However, be it social stigma or other cause, this is the reality of the situation.  U.S. Soccer will argue that this substantial difference in prize pool and sponsorship money justifies the difference in pay between the men and the women.  Hope Solo has told news sources that she and her teammates believe they would make similar money to the men if they were provided a similar marketing budget.  Unfortunately for the team, without evidence to back Ms. Solo’s argument up, U.S. Soccer is likely to prevail in their defense.

Disagreeing Over the Rules—Is the U.S. Women’s Soccer Team Bound by Their Contract?

Even if the team can overcome this argument with proof of equivalent or greater revenues to the men, they face another serious legal problem in their case—the fact that the team’s union negotiated the terms of their contract. An agreement which, according to U.S. Soccer, they negotiated for not once, but twice.

It is unclear whether the team is still bound by this contract. The agreement ostensibly expired in 2012.  However, U.S. Soccer claims that an agreement was later signed extending the agreement.  U.S. Soccer has argued, in response to the complaint, that the contract includes benefits not included in the men’s contract, such as maternity leave.  They also state that pay structure, negotiated for by the team’s union, trades a more conservative pay structure for guaranteed compensation.  This argument of pay structure may undercut the team’s discrimination claim by explaining the difference in compensation between and men and women in a way that does not imply gender-based discrimination.

A secondary, and somewhat less established, concern is the fact that the contract is a product of union negotiations. The right to be represented by unions is ensured by the National Labor Relations Act (NLRA).  There are examples of things normally illegal under federal law being acceptable where they are the product of union negotiations.  For example, the salary caps common in sports would generally be considered illegal are usually ruled permissible where agreed to by a union.

However, there is very little case law as to how to treat any particular conflict between the right to union negotiations under the NLRA and other federally guaranteed rights.  It seems unlikely that something as fundamental to civil rights as the Equal Pay Act could be waived by union negotiations.  However, U.S. Soccer could credibly claim that, even if the contract is wage discrimination, the fact that the union negotiated for the contract prevents them from being liable.

The 2015 Women’s World Cup Final, with the U.S. women’s team taking it all, was the most watched soccer match in U.S. history. The women on the team are extraordinary athletes, worthy of every accolade they have received.  Disparity in pay between male and female athletes is nearly universal to sports; the goal the ladies of the U.S. Women’s team have set themselves is a noble one.  However, their case is not shooting on an empty net.  They’ll have a lot to overcome if they hope to succeed in their lawsuit.

Protecting Your Heirs from Foreclosure

It’s an all too familiar story – couple meets, falls in love, and gets married. They buy a house, but only one spouse signs the original loan documents and thus becomes the primary borrower. Then, the primary borrower passes away. The remaining spouse (typically the widow) is unable to pay the mortgage. As a result, the house is foreclosed.

This happens to many couples in the United States, and the spouse who didn’t sign the original loan documents scrambles to keep her home and pay the mortgage.

How can you avoid this scenario from happening to you?

Mortgage Protection Insurance

Mortgage protection insurance covers your mortgage if you lose your job or become disabled. It also pays off your mortgage when you die. Whether you benefit from mortgage protection insurance really depends on your health, financial situation and what you want to happen if the worst befalls you or your partner.

Mortgage protection insurance is life insurance that pays your mortgage after a certain triggering event such as death, disability, or job loss. The cost depends on the amount of your mortgage, your age, and your health. For disability mortgage protection insurance, costs also vary depending on your occupation.

If you purchased mortgage protection insurance that pays off your mortgage after your death, the insurance company sends a check directly to your mortgage company. This leaves your heirs with your home unencumbered by the mortgage. Payments also go directly to your mortgage company if you purchased job loss or disability insurance, but it only happens for a certain time period (about a year or two). Further, there can be a waiting period before payments are finally made.

Life Insurance

While mortgage protection insurance is a type of life insurance where the proceeds can only be used to pay one’s mortgage, many believe a better option is to have regular term life insurance. With life insurance, your heirs can use the money they receive in whatever way they see fit. Moreover, whereas mortgage protection insurance typically has an age limit (around 45 or younger for a 30 year mortgage, or 60 or younger for a 15 year mortgage), no age limits exist for life insurance.  Foreclosure

Further, on direct comparison, term life insurance can be cheaper than mortgage protection insurance. If you’re healthy and have never used tobacco, you pay more for coverage with mortgage protection insurance than you would for life insurance.

Mortgage protection insurance can provide benefits to those who don’t qualify for life insurance. For example, people with poor health or a record of past medical conditions may not be eligible for life insurance. Mortgage protection insurance is less strict and, as a result, more people qualify.

Regardless, financial experts typically do not recommend any insurance that only pays for specific bills such as mortgage protection insurance.

Financing the Home

If your heirs want to keep the home but are having a tough time paying the mortgage, they could refinance the loan. Refinancing the mortgage may help you get a better rate, lengthen the term, and lower the monthly payments. This option allows heirs to stay in the house. However, this may not be an option if you have damaged credit or for some other reason you cannot qualify for a mortgage on your own.

In that case, a reverse mortgage may work. Reverse mortgages do not have credit or income requirements, but you must be at least 62 years old and your mortgage balance must be around half of the home’s value or less. The loan is called a reverse mortgage because instead of making monthly payments to a lender, the lender makes payments to the borrower, and there are no monthly principal or interest payments.

With a reverse mortgage, you are still required to pay real estate taxes, utilities, hazard and flood insurance premiums. When the home is sold or no longer used as the primary residence, the cash and interest must be repaid, and the remaining equity can be transferred to the heirs.

New Jersey Wants to Give Tickets for Texting While Walking

“Heads up, phones down.”

That’s the slogan for the Street Smart Safety Campaign launched in New Jersey. Lawmakers want to take it a step further by making it illegal to walk and text at the same time. New Jersey already has a distracted driving ban, which prohibits drivers from using a handheld phone, texting, or even adjusting the radio. The proposed legislation ups the ante and applies the same general restrictions to pedestrians crossing the street.

That’s right all you phone-obsessed users—you can get fined $50 and/or receive a possible 15-day jail sentence if caught using a handheld phone or texting while crossing the street! Say what?

The bill comes after a national increase in collisions related to distracted walking. The Governors Highway Safety Association (GHSA) expected another 10% increase in pedestrian deaths for the year 2015, with a total accounted 170 pedestrian deaths by the end of the year.  Close to 72% of those pedestrian fatalities happened when it was the darkest outside, between 6 p.m. and midnight.  Texting While Walking Sign

Assemblywoman Pamela Lampitt, the creator of the bill, stated, “Distracted pedestrians, like distracted drivers, present a potential danger to themselves and drivers on the road,” and referencing an ever increase in technology use further stated, “As people’s behaviors change so must our policy.” Lampitt has been personally affected by distracted behavior, as she knew a student who was struck and killed by a bus while looking at his phone.

Lampitt believes raising awareness about the dangers of driving and walking while distracted will save lives. Since the Street Smart Safety Campaign launched in 4 different municipalities, jaywalking and other unsafe behavior has been reduced by 53%, which definitely suggests Lampitt may be on to something.

It only takes an increase in speed of 15mph to make the difference of a pedestrian surviving and being fatally injured when hit by a car. According to the GHSA, pedestrian deaths now account for the largest group of traffic related fatalities.

So, You’re Saying the Government Can Now Regulate My Phone Use?

Well, not exactly. I’m sure there are many opponents upset about the idea of this law going into effect.  In reality, it’s not any different than jay walking, which holds the same penalty. However, this new legislation may leave many wondering how the government can enforce this type of restriction on your phone use.

States have what’s called “police power.” Under the Constitution, states have the power to regulate behavior and enforce order for the health, safety, morals, and general welfare of its citizens. So long as the law is not unreasonably arbitrary, oppressive, or in violation of other constitutional rights, states can create laws that promote the safety of its citizens.

Just as it’s dangerous to text and drive, it can be just as dangerous to text while crossing the street. States may have less of a police power over your own personal actions, but when you’re potentially endangering the safety and welfare of others, then the State definitely has the authority to regulate those actions under the safety and general welfare umbrella.

Is This Really Necessary?

With an increase of 35% since 2010 in collisions related to distracted walking and an ever-changing increase in technology use, it may be time for this type of legislation.

For the sake of giving an example, imagine you’re texting while crossing the street and you don’t see that there is a car driving right at you. There are really only 3 outcomes that can come out of it:

  • The driver swerves so as to not hit you, which potentially puts himself and other drivers and/or pedestrians in danger that may get hit when the driver swerves,
  • The driver hits you, which very likely will kill or seriously injure you, or
  • You get extremely lucky when the driver swerves and misses you and anyone else and no one is harmed in the accident.

Only 1 out of 3 of those outcomes is a good one. Researchers disagree on the effect phone usage has while walking. Studies completed at Texas A&M found phone users are actually more cautious than their undistracted counterparts, while the University of Alabama at Birmingham found texting while crossing the street increases the chance of being hit by a car by 200%. I know I don’t like those odds.

Native American Heritage Over the Best Interests of a 6-Year Old?

A 6-year old was removed from her foster family after living with them for nearly 4 years because she is 1.5% Choctaw.

Alexandria, nicknamed “Lexi”, was removed from the custody of her biological parents at the age of 17-months. Her mother had substance abuse problems, while her father has an extensive criminal history. Both have lost custody of other children.

Since her father is an enrolled member of the Choctaw tribe, the tribe gets a say in where Lexi is placed. The Choctaw tribe agreed to send her into foster care in order to “facilitate efforts to reunify the girl with her father.” Reunification attempts with the father ultimately failed and the tribe recommended Lexi be placed with a family in Utah who has custody of Lexi’s half-sister.

Lexi ended up in the care of the Page family. The 2-year old bonded with the Pages and quickly became a member of the family. Although aware that Lexi was always meant to be a temporary foster child, the Pages fell in love with Lexi and quickly tried to adopt her, which triggered a legal battle.

A Los Angeles County Superior Court ruled Lexi be placed with the Utah relatives. Lexi would have originally been 3 or 4 when placed with the Utah family, but

the Pages made attempts to appeal the decision. By the time an Appellate Court stay preventing Lexi’s removal from the Pages was lifted, Lexi had already turned 6.

What is the ICWA?

The Indian Child Welfare Act is a federal law enacted to promote keeping American Indian children with American Indian families. The purpose is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” Lexi Page

A high number of Indian children were being removed from their families and being placed in non-Indian families with zero Indian culture and, thus, tribal survival was threatened. Congress recognized that what’s in the best interests of a non-Indian child is not necessarily what’s in the best interests of an Indian child. As a result, Congress enacted the legislation on the basis that the interests of tribal stability are just as important as the best interests of the child.

The kicker here is that the Utah relatives are not American Indian and are only related to Lexi through the father’s step-grandfather. That doesn’t seem to effectuate the purpose and intent of the law in the first place.

Wait a Minute…

Something seems wrong here. Isn’t the purpose of all custody cases to keep families together if possible?  Don’t get me wrong, keeping culture and heritage alive is important, but, the entire purpose of creating the best interest standard is to do what’s actually best for the child, not necessarily what’s best for the family or its heritage.

Sometimes, keeping families together isn’t always possible and certainly isn’t always what’s in the child’s best interest. Had Lexi been placed with her relatives at the time she was removed from the custody of her parents, then I’m all for it.  Removing Lexi after 4 years from the only family she ever knew does not seem to be in her best interests. The LA court stated that Lexi was not likely to suffer emotional harm after being taken away from her foster family.

Don’t let them take me. I’m scared.  I’m scared.  Don’t let me go.”

Those were the words Lexi spoke to her foster father and those don’t sound like the words of a child not suffering emotional harm. Clearly, Lexi had some awareness of what was happening and the fact she was able to recognize she was going to be taken away from her family seems counterintuitive to the court’s reasoning.

There’s Probably No Solution That Will Make Everyone Happy

A child’s cultural identity should not play a factor into a custody decision. Period.

However, this law is in place and because the purpose of the law is to preserve tribal culture, I want to reiterate the fact Lexi’s extended relatives have nothing to do with American Indian culture. Once the reunification attempts with the father failed, the best interests of the child standard should have taken control, not the ICWA law.

Although support and opportunity for interaction with extended family members is a factor, the best interests of a child also includes a need for continuation of a stable home environment, the interaction and interrelationship with members of the household, and an adjustment to school and community.

Despite the fact the Utah family made monthly visits to California to spend time with Lexi, she had become a part of the Page family, had grown close to her new brother and sisters, and had become a part of the community. She became attached to the Pages.

Page Family to Continue to Appeal

The Page family plans to exhaust all possible avenues at the state level, including appealing to the California Supreme Court.

The case is similar to a 2013 United States Supreme Court case involving the same ICWA law. The Capobianco family adopted a child at birth with the mother’s consent. Unbeknownst to the family, the father was unaware of the adoption. When the biological father learned of the adoption, he tried to assert his custody rights under the ICWA. The Supreme Court sided with the adoptive family, stating the biological father could not rely on the ICWA when he never had legal or physical custody at the time of the adoption proceedings.

In Lexi’s case, the father once have custody, and all reunification attempts had failed, which means the Pages may have a chance in a reversal of the LA court decision.