SAME-SEX DIVORCE: UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                     

SAME-SEX DIVORCE:  UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                Gay rights are advancing at an increasingly rapid pace.  Recently, the United States Ninth Circuit Federal Court of Appeal declared Proposition 8 (which banned gay marriage in California) to be unconstitutional (click here for article).  Even more recently, Maryland passed legislation enabling same-sex couples to marry (click here for article).  On a larger level, Countries around the world are  recognizing the rights of same-sex couples to marry.  Gay marriage is now legal in ten countries (Canada, Argentina, Belgium, Iceland, The Netherlands, Norway, Portugal, Spain, South Africa and Sweden).  While there is a long way to go towards equality for same-sex couples, in general, an atmosphere of hope, optimism, and excitement grows stronger every day.

Enthusiasm may be partly to blame for the problems that occur when same-sex couples wish to divorce.  Many same-sex couples, overjoyed at the prospect of being able to get married after constantly being told that their relationships would not be legally recognized, jumped at the opportunity to be wed.  Such couples now face significant barriers if their marriages break down and they wish to file for divorce.  NPR featured a very informative broadcast available here which provides great background information.

Attorneys who work with same-couples are increasingly advising their gay and lesbian clients not to get married because of the difficulty involved in getting divorced (click here for article).  Equality in terms of same-sex marriage has come a long way, but in terms of divorce lags far behind.  Same-sex couples, while they may wish to marry for all of the same reasons as opposite-sex couples, are often stopped from doing so by the practicalities posed by laws which make access to divorce difficult if not impossible.  For instance, how do married same-sex couples divide their property if their marriage breaks down?  How can they seek alimony or custody rights?

The gay divorce issue poses problems not only for jurisdictions which recognize gay marriage, but also for those that do not.  Recently, in Canada, a “firestorm of outrage” arose after government attorneys challenged the validity of a same-sex marriage performed in Canada on the grounds that it was not legal in their current places of residence (U.K. and Florida) (click here for article).  The Prime Minister, Stephen Harper, was quick to react stating that he has no plans on re-opening the same-sex marriage issue.  Comments suggesting otherwise seem to be largely based on misinformation by those who are quick to attack the Conservative government (click here for article).  In fact, since this story broke in January, the Justice Minister, Rob Nicholson, released a statement confirming the validity of same-sex marriages saying:  “I want to make it clear that, in my government’s view, those marriages should be valid” (click here for article).

Last week, the Federal government proposed new legislation that would declare same-sex marriages “valid for the purposes of Canadian law” and provides rules for same-sex divorce of non-residents (click here for the full text of the Bill).  In short, the bill provides rules for non-resident same-sex couples to obtain a divorce in Canada if they were married in Canada.  What the bill does not provide these couples with is a forum to deal with all of the attending issues that accompany a divorce (ie: alimony, child support, custody, property division) (click here for article).  The government simply cannot pass a law that would deal with all of these issues because it would both overwhelm the judicial system and also involve the courts stepping outside of the purview of their jurisdiction.  In short, divorce granted by this legislation is a symbolic act at best and does nothing to address the more practical concerns associated with divorce for non-residents.

One of the Problems – Residency Requirements

Most countries and states that allow same-sex marriages do not easily allow couples to divorce.  This problem arises due to residency requirements.  A residency requirement essentially requires an individual who seeks divorce to be a resident of that jurisdiction for a certain period (typically 6 months to a year).  Residency requirements for divorce make divorce a lengthy battle for heterosexual couples and same-sex couples alike.  To seek a divorce, one spouse must be a resident of the state in which they seek divorce for a minimum of 6 months in general, but often longer.  The problem is compounded for same-sex couples who marry in a jurisdiction that recognizes gay marriage and subsequently move to one that does not.

Another Problem – D.O.M.A. (Defense of Marriage Act)

On the federal level, The Defense of Marriage Act, 28 U.S.C. § 1738C, came into effect in 1996 and defines marriage as between a husband and a wife while ensuring that states do not have to recognize the validity of same-sex marriages performed in other jurisdictions.   On the state level, states either:  recognize gay marriage (as in Massachusetts); neither allow nor forbid it; or specifically forbid it through legislation or constitutional amendments to their respective state constitutions.  Courts (in states which do not recognize same-sex marriage) claim to lack jurisdiction to hear a divorce case because to do so would effectively mean that they would have to recognize gay marriage.  (For an excellent and current article describing the various constitutional principles involved, see Elisabeth Oppenheimer, No Exit:  The Problem of Same Sex Divorce, 90 N.C. L. Rev.73).  Oppenheimer notes the inherent contradiction in these non-recognizing states stating “it certainly is bizarre for gay marriage opponents to argue that a gay couple must remain married” (Oppenheimer 81).

Several late night talk show hosts have been quick to pick up on this issue and have featured reports which do a good job at exposing the confounding nature of this argument.  The Daily Show, with John Stewart, recently featured this special report in which correspondent Jason Jones interviews a religious figure who is completely against the idea of same-sex marriage.  It simply makes no sense for someone who is so vehemently opposed to same-sex marriage to want to keep such a couple together should their marriage break down.  Not to be outdone, The Colbert Report also featured a segment on same-sex divorce highlighting the same lack of coherence (see this clip @ time 3:25-4:40).

Potential Solutions – There Is No “Quick Fix”

After thoroughly researching the issue of same-sex divorce, Oppenheimer (infra) proposes several solutions but notes that “there are no obvious solutions” (73).  Judges are limited in what types of cases they can hear both by constitutional and statutory rules.  I agree with Oppenheimer when she concludes that any meaningful change is going to have to come from the legislature.  Until then, same-sex couples face a tough decision.  They will need to decide if the idea of marriage – something they have long struggled for – is worth the hassle considering the legal and logistical nightmares that could result if their relationships fall apart.  Those who advocate against same-sex marriage will continue to do so, but they should bear in mind that by refusing to provide a same-sex couple, who was validly married in another jurisdiction, with the option of divorce and everything that goes with that (ie: property division, custody orders, etc.), they are implicitly condoning gay marriage by keeping the couple together.

Photo 1:   found here on February 28, 2012.

Photo 2 found here on February 28, 2012.

“The Lord Is Not On Trial Here Today”: the inside story of McCollum

Commonly recognized as one of the most important and landmark first amendment cases in U.S. history, McCollum was the first United States Supreme Court case to clearly define the separation of church and state in a public school setting.  Specifically, the People of the State of Illinois ex rel Vashti McCollum v. Board of Education of School District No. 71, Champaign County, Illinois, et al. (333 US 203) addressed the power of a state to utilize its tax-supported public school system in aid of religious instruction insofar as that power may be restricted by the First and Fourteenth Amendments to the Federal Constitution.  

In her historic mandamus action, plaintiff Vashti McCollum successfully challenged the constitutional validity of the sectarian “released time” program that had been implemented in her son’s school.  Because the program used public school resources (namely hours and facilities) to inculcate the religious tenets of Christianity in children whose attendance in the Champaign district public schools was mandatory under state law, Mrs. McCollum believed the program to be unconstitutional.  Furthermore, she charged that the pressure to participate in religious instruction classes by his teacher and classmates was so great as to be socially and psychologically detrimental to her eldest son, James Terry McCollum.

In his book The Lord Was Not on Trial: The Inside Story of the Supreme Court’s Precedent-Setting McCollum Ruling, Dannel McCollum recalls the tumultuous events of 1945 to 1948 and the trial’s lasting impact on his family.  Similarly the film The Lord Is Not On Trial Here Today tells the personal story behind the case, recounting what Vashti McCollum later described as “three years of headlines, headaches, and hatred” which eventually led to a decision that still resonates in the church-state conflicts of today, more than 60 years after the original decision.  Available in the law library’s collection, both the book and movie provide an intimate perspective of the parties involved in McCollum vs. Board of Education.

A Trend in GLBT Discrimination Law?

Three recent court
decisions, and an ABA policy shift, may indicate a trend in LGBT rights
law towards greater protection for the LGBT community. First, a transwoman (a male-to-female transsexual) won a recent federal
employment-discrimination lawsuit against the Georgia State Assembly (here is the order
in this case, Glenn v. Brumby). Second, a Massachusetts federal judge
ruled July 8th in two related
cases;
in one order, in Gill v. Office of
Personnel Management, that the Federal Defense of Marriage Act 11
U.S.C. § 7, enacted in 1996, is unconstitutional; and in another order,
Commonwealth of
Massachusetts v. HHS, that the federal government could not deny
the benefits accorded to married couples to same-sex couples married
under Massachusetts law. And third, the District of
Columbia Court of Appeals ruled that a proposed referendum on same-sex
marriage was prohibited under the city’s human-rights law (Christian Science
Monitor  story; Washington Times
story).

In the policy realm, the American Bar
Association (ABA) is considering taking a public position in favor of
same-sex marriage.  According to an
ABA press release at ABANow.org, the website of the
American Bar AssociationMedia Relations & Communication Services, the proposal, to be considered by
the ABA House of Delegates at the ABA Annual Meeting in August, “would
urge state-level governments to eliminate all legal barriers to civil
marriage between two persons of the same sex who are otherwise eligible
to marry and build on a 2004 ABA policy opposing a federal
constitutional amendment to define marriage as a union between a man and
a woman and prohibit states from allowing same sex couples to enter
civil marriage.”

The
National
Organization for Marriage opposes the
Massachusetts federal judge’s decisions: as Brian Brown, its
president stated, “A single federal judge in Boston has no moral right
to decide the definition of marriage for the people of the United
States”; and plans to appeal
the D.C. Court of Appeals ruling to the U.S. Supreme Court: “The central issue
in this case is whether the people of the District of Columbia will be
able to exercise their constitutional right to vote on this important
issue, just as voters in 31 states have been able to do.” The American Spectator website carried an March 3rd,
2010 editorial written by William C. Duncan, the director of the
Marriage Law Foundation. Duncan noted that “With the extreme
subjectivity and irrelevance of nearly all of the plaintiffs' evidence,
it is fair to ask what illumination this show trial has provided. This
"civics lesson" is beginning to look more like a cautionary tale about
the dangers of legal hubris. Certainly our fundamental social
institution deserves better.”

But even according to opponents of same-sex
marriage, there seems to be a dearth of factual support for the idea
that same-sex marriage is somehow inimical to heterosexual marriage. In a
pretrial hearing in the lawsuit over California’s Proposition 8 ban of
same-sex marriage, according to
MSNBC coverage on October 14, 2009, there was a fascinating exchange
between the judge and one of the attorneys defending Proposition 8 last
year. Federal trial-court judge Vaughn Walker asked "What is the harm to
the procreation purpose you outlined of allowing same-sex couples to
get married?" Charles Cooper, one of the defense attorneys, responded
"My answer is, I don't know. I don't know."

Does the apparent
increasing velocity of GLBT rights, and the dearth of factual support
for opposition to same-sex marriage, presage a decision in the federal
trial over Proposition 8 in California–or even in higher-level courts?

Friday Fun: Zombies Have Rights, Too

On February 24, 2010, a federal court decided that zombies have rights too… at least in Minnesota. In Baribeault v. Minneapolis,
the Court of Appeals for the Eight Circuit found that police lacked
probable cause to arrest a group of people on public property, dressed,
made up, and acting like zombies (in a protest against consumerism). The Minneapolis Star-Tribune story about the case has more details, and the opinion is here at the Eighth Circuit's Web site.

Bush v. Gore as Precedent

As Joan Biskupic writes in her Supreme Court blog Court Beat, the case has been cited in over 200 state and federal court decisions since it was issued 9 years ago. Biskupic's post focuses on the role that Justice Antonin Scalia played in the legal battle that resulted in the Supreme Court decision that terminated Florida's recount efforts, and the declared that George W. Bush was the winner of the 2000 presidential election. She also notes that, although the majority opinion stated that "our consideration is limited to the present circumstances", "[t]he 2000 ruling has enhanced the grounds for equal-protections challenges to unreliable voting procedures."  

The Supreme Court Hit Parade

Here’s a trivia question for you lawyers in our reading audience.  Which Supreme Court case leads the list of those most-cited, according to HeinOnline’s citation metrics?  No peeking, now.  It’s Brown v. Board of Education, followed closely by Roe v. Wade, cited 15, 991 times.  Next are Griswold v. Connecticut, Miranda v. Arizona and New York Times v. Sullivan.  Reassuringly for those of you who are thinking, “Geez, I didn’t need to go to law school to recognize those names,” Marbury v. Madison appears at lucky number 13.  Marbury v. Madison is the secret handshake of the lawyering guild, as anyone who has ever turned themselves inside out trying to understand, and to explain to their professor, why it’s in their Con law book, can attest.   

And just to satisfy your curiosity, Lemon v. Kurtzman comes in at number 50, with 4,486 citations.

- By: Deborah McGovern

“Why Minnesota 2008 Is Not Florida 2000″

Edward B. Foley, director of Ohio State University's Election Law @ Moritz, has posted a very interesting analysis of the current contest between Norm Coleman and Al Franken for Minnesota's senate seat. Among other points, he argues that, unlike the decisions in Florida's 2000 presidential election snafu, Minnesota's "judicial rulings over the counting of ballots do not appear to be a
partisan effort to tilt the legal playing field to assist a favored
candidate."  To read the entire post, click here.

11th Circuit Rules that Miami School Board Can Ban Vamos a Cuba

See this post on the First Amendment Center's blog. Read  ACLU of Florida v. Miami-Dade County School Board at the U.S. Courts website.

Friend or Foe? On Facebook, It’s Not So Clear

An Australian court has ruled that a mortgage lender may serve a foreclosure notice via Facebook.  See Aussie court OKs using Facebook for serving lien.  Efforts at contacting the homeowners had failed until the attorney for the lender was able to locate the profile of the borrower through an associate’s Facebook page.  While there are certain electronic means that are recognized as proper methods for serving legal documents, notice by way of a social networking website is a new tactic.  In Australia, e-mails and text messages also have been deemed acceptable methods of service.  Professor Rory Ryan of Baylor Law School says, in the U.S., “legal rules list several acceptable delivery methods, but not surprisingly, Facebook isn't included.”  While Facebook boasts that it “helps you connect and share with the people in your life,” it may some day help the people in your life to serve you with court papers.

Court Allows E-mail Recovery Effort to Continue

Sabrina Pacifici reports that "the National Security Archive may proceed with its effort to force the
White House to recover millions of Bush Administration Executive Office
of the President (EOP) e-mail records before the presidential
transition."  Click here to see the November 10th ruling of the U.S. Court of Appeals for the District of Columbia, and  here to see the chronology of this effort.