Disability Discrimination and Family Law

Tomorrow, the Second Circuit will hear arguments in Forziano v. Independent Group Home Living.  Paul Forziano and Hava Samuels lived at different group homes in New York.  Paul is 31 and in the mild-to-moderate range of intellectual disability; Hava is 37 and in the moderate range.  After meeting, falling in love, and dating for six years, they decided to get married.  Their parents were supportive of their decision.

They requested that they be allowed to live together as a married couple in one of their group homes.  This request was refused.  Over time, various explanations were offered, including that the group homes were not adequately staffed to support the married couple with the dynamics of their relationship, that home designs could not accommodate married couples, and that the request was unprecedented.  These reasons were generally shown to be inaccurate.  Other explanations more explicitly ran through the opinions of medical and rehabilitation personnel that people with intellectual disabilities generally, and Paul and Hava specifically, should not be getting married (despite the fact that their right to do so was protected by state law).  Paul and Hava did get married, and were forced to live 3 miles apart from each other.  Only after filing a lawsuit were they able to find a place in a group home together.  The trial court denied all of plaintiffs' claims for relief, holding, amongst other things, that plaintiffs had been treated differently because they wanted to get married, not because they had disabilities.

In a series of recent papers, I have suggested that disability has lower political salience than some other movements and/or issues (like marriage equality, the civil rights movement, abortion, or even gun rights).  By this I mean that people care about these issues, and vote based on them, in a way that they simply do not for disability.  Disability has generally stayed out of the culture wars.  Inside the movement, disability is thought about in civil rights terms.  Outside, not so much.

To the extent I am right, there are no doubt lots of causes for this.  And it is interesting (or at least I think it is interesting) to think about what, if anything, can or should be done about it from a disability movement perspective.  Making disability rights more of a mainstream civil rights issue would require highlighting and publicizing some examples of discrimination that critical mass of people would pay attention to and intuitively feel are wrong.

Cases like the above, and family law in general, may provide some examples that get people to notice.  The right to marry, live together, and raise children is something with emotional resonance.  And Forziano is not an isolated instance.  There are still a lot of state family laws and procedures, reflective of outmoded stereotypes and assumptions, which formally and informally discriminate against people with disabilities.  As a result, parents with disabilities have children removed from their care, face barriers in adoption, and are more likely to lose custody in divorce, amongst other things.  This issue is starting to get more attention from government agencies and even media, but probably has a ways to go before it is something that people outside the movement discuss around the dinner table.