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.

SOPA/PIPA, the MegaUpload Raid, and Golan v. Holder: Reflections on the “Internet Spring”

Craig Newmark, founder of CraigsList, recently used the phrase “Internet Spring”, likening this week’s SOPA/PIPA furor to last year’s Arab Spring. His observation:  “It’s taken some really bad potential laws, but it’s roused the sleeping giant, both the people who build the Internet, and people in general who comprise the Internet community.” If you have any doubts about the size of this giant, check out the numbers: 10 million petition signatures, 3 million+ emails sent to elected officials, and more than 115,000 sites participating in the blackout on Wednesday.

As with any popular movement, this “Internet Spring” is not taking place in a vacuum. Other contemporaneous events affect the social and political climate which will determine the ultimate resolution of the SOPA/PIPA question. One obvious example is the FBI’s Thursday raid on world-wide offices of Internet media giant (and condoner of copyright violations) MegaUpload, conducted under existing U.S. law. This had Gizmodo blogger Sam Biddle wondering, Why Did the Feds Target Megaupload? And Why Now? He quotes another reporter’s sources as saying that the DOJ might have thought that busting such a blatant cyber-criminal would show the need for SOPA/PIPA. And the fact that DOJ, MPAA and RIAA websites were hit swiftly by DDoS attacks sponsored by Anonymous might have highlighted the “outlaw fringe” of the Internet community. In Biddle’s view, though, the raid can be seen, ironically, as lending credence to the protesters’ claims that SOPA and PIPA are ill-conceived and unnecessary.

Perhaps less obvious, and less intentional, are the ramifications of this week’s Supreme Court decision in Golan v. Holder. The court held that Congress has the right to reinstate expired copyright protections. Alison Frankel’s On the Case post notes the irony in this decision: “the Court’s opinion … expressly endorses Congressional authority to determine the scope of copyright protection. If some version of SOPA or PIPA is enacted, in other words, it will be tough to overturn in the courts.” Frankel spoke with Anthony Falzone, Executive Director of Stanford Law School’s Center for Internet and Society, to get his take on this week’s Internet blackout and the Golan decision. Falzone said, “One of the lessons of Golan is, ‘Don’t wait.’ You have to stop the legislation before it gets passed. You have to stop it in its tracks before it gets to the courts.”

As SOPA and PIPA appear to be losing support in Congress, an alternative bill could come into sharper focus. The Online Protection and Enforcement of Digital Trade (OPEN) Act (S. 2029), according to KeepTheWebOpen.com, addresses many of the concerns that opponents of SOPA and PIPA have raised. A notable difference between OPEN and SOPA/PIPA is that OPEN would be enforced by the U.S. International Trade Commission. SOPA and PIPA as currently written would be enforced by the Department of Justice. Another significant difference involves the consequences of violating the act. SOPA and PIPA both prescribe the blocking of offending websites, and according to the American Library Association, “significantly increase… internet companies’ incentive for surveillance of online activity and speech of users”. In contrast, the OPEN Act would cut revenue sources for offending sites.

CNN’s John D. Sutter sees the campaign for the OPEN Act as an experiment in digital democracy. KeepTheWebOpen.com is bringing law-making to citizens: “[P]eople who go to that website can annotate the bill with comments and suggestions for its author [Rep. Darrell Issa, R - CA], much like they would a Wikipedia document. There’s a field where you can submit your e-mail address to receive updates about changes to the bill and its path through the maze that is our legislative process.”

We’ve seen this week that Congressional representatives do listen to individual constituents, if they speak loud enough, and deliver a consistent message. Although it’s not yet clear if or how SOPA and PIPA will be amended, or whether the OPEN Act will prevail, there is no doubt that 21^st century democracy has shaped the debate.

Employees Expected to ‘Bear the Burden’ of American Airlines Bankruptcy

After 81 years of flying, American Airlines landed in federal bankruptcy court in New York City yesterday.  The last of the legacy airlines to file for Chapter 11 following 9/11, the beleaguered company cited nearly $30 billion in debt, just under $25 billion in assets, and $4 billion in cash reserves as part of the decision to file for protection against its creditors.

Because this is the seventh largest bankruptcy in U.S. history by number of employees, it is widely anticipated that AA will trim labor costs by shedding jobs.  A large question also hangs over the security of American employee pensions.  Watch Judy Woodruff  discuss the contributing factors of the filing and its pending aftermath with Ben Mutzabaugh of USA Today on PBSNewsHour.

According to a public service announcement on its website, American Airlines is flying normal schedules and conducting business as usual worldwide.  Additional information about the Chapter 11 reorganization is available at www.aa.com/restructuring.

"Brace yourselves...it's gonna be a rough landing!"

Controversial Stop Online Piracy Act (SOPA) now before House Judiciary Committee

Numerous web companies, including Google and Facebook, are reacting harshly to the Stop Online Piracy Act (H.R. 3261), a.k.a. SOPA.  Introduced by Rep. Lamar Smith (TX-21)  on October 26, the bill contains the most controversial parts of the Senate’s PROTECT IP Act (S. 968), but radically expands the scope of what constitutes a “‘rogue website”, or site that engages in criminal copyright activities as defined under the Digital Millennium Copyright Act, P. L. 105-304 [H.R. 2281]. 

H.R. 3261 would essentially force U.S. Internet service providers to block access to rogue sites.  There would be a ban list that ISPs would have to enforce, modifying their DNS records to prevent  foreign sites from resolving to that domain name’s Internet Protocol address.

Judiciary Committee Chairman Smith said the legislation is designed to “stop the flow of revenue to rogue websites… that profit from selling pirated goods without any legal consequences”.  Unsurprisingly, the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the U.S. Chamber of Commerce are among the strongest supporters of the legislation.

In this morning’s testimony before Congress, the MPPA claimed that SOPA would allow the U.S. Department of Justice “more effective tools to protect American intellectual property, including the films, television shows and sound recordings created by our members”.  You can follow the hearings via Twitter using #sopa or watch the webcast via the Committee’s website.

Critics of H.R. 3261 predict that any user-generated content site or cloud-based service (i.e. virtually any participant in “Web 2.0″) could find itself targeted by the bill.   Opponents likewise argue that the new legislation represents a severe threat to online innovation and legitimate communications tools, effectively stifling free speech and impeding job creation.

Additonal objections have been raised by digital rights proponents, IP/copyright advocates, and public watchdog  groups.  Furthermore, in order to increase public opposition to H.R. 3261, open government organizations such as EFF, Public Knowledge, and the Sunlight Foundation are hosting grass roots events such as American Censorship Day: November 16th to coincide with today’s hearing.  Free Speech.net has started an online petition while the Center for Democracy & Technology has posted a resource list of the growing opposition to SOPA. 

Whether or not H.R. 3261 will pass remains to be seen; witnesses have another five days to present testimony.  More information about the bill can be found on the House Judiciary Committee website under Issues >> Rogue Websites .

U.S.S.C. to hear Affordable Healthcare Act appeal

Given the scorecard meted out by the appeals circuit, it’s no surprise to learn that the United States Supreme Court has agreed to rule on the constitutionality of the Patient Protection and Affordable Care Act (Public Law 111–148).  Although the legislation isn’t due to go into effect until January 1, 2014, opening arguments have been scheduled for March 2012.  The largest and broadest legal challenge to the Patient Protection and Affordable Care Act comes from a joint filing by 26 states, led by Florida. 

The cases accepted Monday are Dept. of Health and Human Services v. Florida (11-398); NFIB v. Sebelius (11-393); and Florida v. HHS (11-400).  Court reporter Lyle Denniston has written an excellent blog post analyzing the court’s agenda on healthcare reform.  All documents related to the three cases can be viewed here.

 

 

Senate rejects S. J. Res 6, opens door to FCC’s Net Neutrality rules

Today the U.S. Senate rejected S.J. Res 6 which would repeal the Federal Communications Commission’s (FCC) authority to enforce its net neutrality rules.

Despite the waffling of some Senators prior to today’s vote, the result was along party lines. Senator Inouye (D-HI) and Senator McCain (R-AZ) did not vote. Here’s the roll call. Earlier in the week, President Obama said he would veto the measure if it came to his desk.

The FCC’s rules are scheduled to take effect on November 20. However, there are several pending lawsuits, including one filed by Verizon on September 30th, that may delay their implementation.

NY Library builds itself a Fab Lab

In March, MAKE’s Phil Torrone argued that libraries should retool to become hackerspaces. The Fayetteville Free Library in Fayetteville, NY is doing just that. Here’s the story from KQED’s Mindshift:

 

Earlier this year, MAKE Magazine’s Phillip Torrone wrote a provocative article asking “Is it time to rebuild and retool libraries and make ‘techshops’?” In other words, should libraries join some of the other new community centers that are being created and become “hackerspaces” or “makerspaces”?“Yes!”, says librarian Lauren Smedley, who is in the process of creating what might just be the first maker-space within a U.S. public library. The Fayetteville Free Library where Smedley works is building a Fab Lab — short for fabrication laboratory — that will provide free public access to machines and software for manufacturing and making things.

So far, the Fab Lab is equipped with a MakerBot, a 3D printer that lets you “print” plastic pieces of your own design. The potential for 3D printers to revolutionize manufacturing as we know it is huge: imagine being able to design and then manufacture — or “print” — whatever you want. Moreoever, imagine the tools of manufacturing being in the hands of everyone, not just giant factories (and remember, since this is a public library, this is really putting the technology in the hands of everyone, not just those that can afford a membership at a traditional hackerspace).

 

via Audrey Watters@KQED

Action Alert: Say “No” to S. J. Res 6

Dear Advocates,

The Senate is expected to vote tomorrow (Tuesday) on a resolution of disapproval, S. J. Res 6, that would repeal the Federal Communication Commission’s (FCC) net neutrality rules and strip the FCC of its authority to implement net neutrality.

Please call your Senators today and ask them to vote NO on S. J. Res 6. Because of the short notice, it is important that you call, rather than email, your Senators. Thanks to the Government Relations Committee for posting a new one-pager on why net neutrality matters to law libraries.

The House passed an identical resolution (H.J. Res 37) in April. The FCC’s net neutrality rules are set to take effect on November 20. It is very important that you contact your Senators now to ask them to vote NO on S.J. Res 6. The vote is expected to be very close, so your call will make a difference.

You can find your Senators’ phone numbers through the AALL’s Legislative Action Center.

Higher Education Charging High Prices For Food On Campus

Much to the surprise of no one who actually eats here on campus, the price of food on campus is apparently much higher than it is in the surrounding community. In his article for his school paper, the Statesman, Bryan Carroll discovered that while rolling through his local Student Activity Center that the prices for regular food items was generally much higher than they would have been off-campus. For instance, he notes how a half-gallon of milk was being sold at a school convenience store for $3.37 where as the exact same product was being offered at a nearby Target for $2.19. Oreo cookies were a whopping $8.27 on-campus versus $2.50 at Target.

Generally, he noticed an average markup of about 42 percent on grocery items.

Arguably, the point could be made that given the basic (and purest) interpretation of supply and demand this is merely a sound decision to take advantage of the reduced competition and great location. And I suppose that you could also mark this as a learning experience for students to become more aware of comparison shopping. I think, though, maybe it’s not so nice to take advantage of sleep-deprived students with exorbitant markups when they are already paying such a premium to attend school and live on campus already.

via The Statesman

Hispanic Heritage Month 2011

Hispanic Heritage Month is celebrated in the United States from September 15 to October 15. This annual celebration was begun by President Lyndon Johnson in 1968, as National Hispanic Heritage Week. It was expanded in 1988 to Hispanic Heritage Month. For more information about the legislative and executive documents relating to Hispanic Heritage month, see the Library of Congress’ National Hispanic Heritage Month site.

Several Spanish American countries celebrate their national independence days during the first week of Hispanic Heritage Month. September 15 marks the independence celebrations for Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. Celebrations in Mexico follow on September 16, and in Chile on September 18.

The U.S. Census Bureau has prepared a news release which contains a wealth of information on the Hispanic population in the United States, as well as links to other sources. For more concise information, see the Bureau’s  Census Brief The Hispanic Population 2010.