We in the press often laud the idea of a government as transparent as a toddler's conscience.
But it must be admitted that there are times when a little subtlety can be effective political strategy – occasions when what’s left unsaid is just as important as the words that spill from our lips.
On May 6, Gov. Brian Kemp signed Georgia’s controversial “heartbeat” bill into law, igniting a fierce war over abortion and a woman’s right to control her own pregnancy. Hollywood blanched, and religious conservatives throughout the state were thrilled.
But on that same day, Kemp put his signature to another measure that, weeks later, is being hailed as a major legal victory for gay and lesbian couples with children.
Ryan Lee of Georgia Voice, a news outlet aimed at the state's LGBT community, was the first to go public with the unmentioned impact of House Bill 543, the last bill to win legislative approval in the 2019 session. It passed the House at 11:57 p.m., with three minutes to spare.
“[T]he law fills a gap left by Obergefell v. Hodges, which settled the question of same-sex marriage but did not address the issue of same-sex parenting,” Lee wrote, referring to the 2015 decision by the U.S. Supreme Court.
Without a formal adoption, there is no “presumption of parentage” in state law for both members in a same-sex marriage, Lee reported. “Meaning when one spouse is the biological parent, the other could remain a legal stranger to the child and be denied custody and visitation if the couple splits.”
Or if the biological parent dies or become incapacitated.
As of July 1, a non-biological partner in a same-sex marriage in those dire straits will be able to petition a superior court judge for custody rights, if he or she can show proof of a “permanent, unequivocal, committed and responsible parental role in the child’s life.”
The LGBT parent would be treated just as a stepfather or stepmother in a heterosexual marriage would be. This is an important point, because that’s how HB 543 was sold to state lawmakers, who approved it with near-unanimous votes in both chambers.
The “step-parent” bill was the work of what might be called a bipartisan caucus of family law attorneys well-versed in the many variations — and legal messiness — of domestic life. They had attempted different versions of the bill for two years, thwarted each time by GOP opponents concerned that the state would be giving legal recognition to same-sex marriage.
Four weeks after Kemp signed the measure, state Rep. Mary Margaret Oliver, D-Decatur, who teaches family law at Emory University School of Law, was the only bill sponsor we reached who would admit that HB 543 had an unspoken purpose.
“In my political practice, transparency has not been the No. 1 value of the day,” Oliver said. “I always talked about step parents. I always talked about family rescues. I always talked about giving the judges more options to place a child with a loving, responsible adult who had a long relationship with the child.”
The measure’s relevance to LGBT parents was never mentioned publicly, in committee hearings or floor debate.
“I think people knew this was going to help a [small] number of people – and some of those people were gay people – who had been functioning in reality as parents,” Oliver said. “But I don’t think there was interest in making that issue a public talking point.”
Another backer of the bill was state Rep. Bert Reeves, R-Marietta, author of last year’s overhaul of Georgia’s adoption laws – another project complicated by conservative concerns over same-sex marriage. Efforts to reach Reeves were unsuccessful.
The lead sponsor of HB 543 was state Rep. Chuck Efstration, R-Dacula, a former prosecutor. When I rang him up this week, Efstration asked if he could respond in writing. Sure, I said.
Before noon the next day, Efstration delivered a lengthy explanation on the necessity of HB 543 that made no mention of same-sex marriage.
“Existing Georgia law allows superior court judges to consider third-party custody for only a specific group of family members: grandparent, great-grandparent, aunt/uncle, great aunt/great uncle, sibling, or adoptive parent,” Efstration began. “So, there are case examples where judges are unable to consider awarding custody to the person who has primarily raised a child because that person does is not on the family-member list in the law.”
The Dacula lawmaker offered two scenarios. The step-father of a child whose mother is killed by cancer was one. A non-biological father who takes in an abandoned child was another.
“It’s very important to note that a parent has constitutional rights to child custody. HB 543 only applies when parents pose a risk of harm or are unable to care for their child,” Efstration said.
It is worth noting that Efstration also authored a hate crimes bill that passed the House this year. For the first time, the measure recognizes sexual orientation as a protected class.
One more political figure has a role in this saga. Late on April 2, the 40th and final day of the session, the sponsors of HB 543 learned that opponents were again attempting to block the bill from receiving a final vote in the House. Speaker David Ralston intervened. It passed on a vote of 152 to 3.
Through a spokesman, Ralston said he was “proud” to help. “The legislation deals with the critical task of making caregiving decisions for children who may find themselves in some very difficult situations,” he said.
HB 543 was never listed as a priority by Georgia Equality, the most prominent LGBT lobbying force at the state Capitol. Executive director Jeff Graham said he knew nothing about the measure until after the session.
Graham acknowledged the importance of the new law to LGBT citizens in Georgia, but one sensed that he didn’t want to jeopardize any future alliances that might demand quiet collaboration. He refused to spike the football.
“To characterize this as an LGBT issue, I think, is missing the mark,” Graham said. “Because there really are – legitimately – a lot of families that can be helped and be affected by this.”
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Credit: Jason Getz / Jason.Getz@ajc.com