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.

Rethinking the Law Governing the Structure and Operation of the Supreme Court

This is the name of the conference held at the George Washington Law Center on November 20. ScotusBlog has a great recap of the proceedings, and you can read many of the participants' papers at the GWU Law website.

Media Alerts on Federal Courts of Appeals

Media Alerts on Federal Courts of Appeals is a pilot project of the ABA Standing Committee on Federal Judicial improvements. The website currently offers summaries of noteworthy cases from the Third, Fifth and Ninth Circuits, with plans to expand coverage to all 13 Circuits. Providing summaries for the pilot are faculty and students from Temple University's Beasley School of Law (3rd Circuit), the University of Texas School of Law (5th Circuit), plus the University of San Diego School of Law and the University of Arizona James E. Rogers College of Law (9th Circuit). The site is open to the public, and although it requires sign-up to use, ABA membership is not required.

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The New Administration and the Supreme Court

The news that Justice Ruth Bader Ginsburg was operated on for pancreatic cancer yesterday has kicked up the level of speculation about the possibility of President Obama making an appointment to the Supreme Court after the end of its present term.  Many feel that he would be very likely to appoint a woman, and the names that have been mentioned include Federal Appeals Court judges Sonia Sotomayer and Diane P. Wood, along with Elena Kagan, who was dean of Harvard's law school and has been nominated to be Solicitor General.  See the story at The New York Times.

Florida Supreme Court Vacancy Filled

Governor Crist has appointed another Florida Supreme Court justice, Judge Ricky Polston, of the First District Court of Appeal, to succeed the retiring Justice Kenneth Bell.  Two more Supreme Court Justices are slated to step down early next year.  In naming their successors, Crist will have appointed a majority of the justices on the court.

Polston is an elder of the Christian Heritage Church, which is part of the International Pentacostal Holiness Church.  He teaches law as an adjunct professor at Florida State University.  See the story at The Florida Bar News

- By: Deborah McGovern

This year’s important Supreme Court decisions

In case you want to catch up or refresh your memory, the New York Times has posted summaries of the most important opinions of the Supreme Court’s 2007-2008 term.

(edited to add)

Linda Greenhouse’s analysis of the term is also available.  It’s likely her last, as she is retiring.  Visual thinkers and others may appreciate this illustration of the term’s major rulings.

Tip for the latter two links: Southern District of Florida blog.

- By: Meg Kribble

Hooray for Habeas Corpus!

Apparently our good friend and favorite civil liberty,the Writ of Habeas Corpus, is making a comeback.  In a 5-4 decision, the Supreme Court ruled Thursday that detainees held at Guantánamo Bay have the right to challenge their detention in U.S. civilian courts.  Today’s ruling is the third time that the Court has ruled in favor of the detainees.

In writing the majority opinion, Justice Anthony Kennedy said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."  Brilliant.

The Court not only affirms that the detainees have rights under the Constitution, but that the system the Bush administration has put in place to classify them as enemy combatants and review those decisions is inadequate.  View the entire slip opinion. (Adobe Acrobat required)

Baseball: you may fantasize freely

Linda Greenhouse reports that the Supreme Court has rejected Major League Baseball’s appeal in its case seeking to require fantasy baseball leagues to pay licensing fees for using MLB’s player names and stats.

In its
appeal to the Supreme Court, Major League Baseball Advanced Media
argued that in balancing the right of publicity against the First
Amendment, the appeals court had given too much weight to the First
Amendment.

The “right of publicity” is a concept based on state law — in this
instance, Missouri law — and the appeal argued that the federal appeals
court had ignored the way the Missouri state courts would have
approached the issue. The decision “resulted in a judicial refusal to
enforce state-law publicity rights,” the appeal said.

Back in April, the New York Personal Injury Blog reported that three of the Justices–Alito, Breyer, and Stephens–recused themselves from the case due to their participation in the high courts fantasy baseball league, Articles for Deletion.  However, Justices Ginsburg and Scalia, who play on the same team in the fantasy league along with a federal marshall, did not recuse themselves.

For more baseball-Supreme Court fun, check out Oyez Baseball, an online game that combines baseball and legal trivia.  I would imagine the Justices would be quite good at it!

- By: Meg Kribble

Justice Clinton?

http://www.abajournal.com/news/supreme_court_shot_for_hillary_clinton/#When:19:36:00Z

- By: Meg Kribble

Scalia to lawyers: read good literature!

Among other tips that come out of the ABA Journal’s interview with Justice Antonin Scalia and Bryan Garner, authors of the new book Making Your Case: the Art of Persuading Judges, is this one:

Scalia: ….the average practitioner is not going to be reading Grant
Gilmore and Charles Alan Wright and Lon Fuller. He’s going to be
reading some miserable judge who issued a terribly written opinion, the
only virtue of which is that it’s authoritative. And that is, as we
point out in the book, one reason legal writing is so turgid and
generally so bad—because we are reading the worst instead of the best.

What we must read is not selected on the basis of whether it’s
well-written or even, for that matter, on whether it’s well-reasoned.
It’s authoritative and that’s why we have to read it. You read enough
of this stuff, and you begin to write that way.

One of the more important recommendations in the book is that
lawyers read other stuff. Read good literature, good current
literature. If you read only legal opinions, you’re going to write like
legal opinions—which is not what you want to do, generally.

Other topics discussed include brevity of briefs, knowing your audience, oral arguments, use of humor, and awareness of when a judge is trying to help you out.  ABA Journal also has an excerpt from the book with some writing tips (n.b. Scalia and Garner acknowledge that their advice often differs from that of other authorities), as well as a transcript of the complete interview in text and audio. Whatever you think of Scalia, if the interview is anything to go by, the book will be an enlightening and enjoyable read.

The library’s copy of Scalia and Garner’s book is on its way!

- By: Meg Kribble