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.

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 .

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.

Understanding the New U.S. Health-care Environment, Part 2

According to an email from the Federal Depository Library Program:

"The
Health Care Reform legislation passed by the U.S. House of
Representatives is available on GPO's Federal Digital System (FDsys).
To view the electronic versions of the legislation, debate and vote
click here for the press release: http://www.gpo.gov/pdfs/news-media/press/10news12.pdf

"In addition, printed copies can be purchase through GPO's Online Bookstore: http://bookstore.gpo.gov/collections/health-bills-reports.jsp."

The GPO PDF is chock-full of links, so I won't repeat them here.

Understanding the New U.S. Health-care Environment

On Sunday, March 21, 2010, the House passed

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Public Knowledge’s Copyright Reform Proposal

The group Public Knowledge, "a Washington DC based public interest group working to defend your rights in the emerging digital culture," (see http://www.publicknowledge.org/about) has made a bold (but not so new) proposal for the reform of copyright law.

According to their Web site (http://www.publicknowledge.org/node/2906),
their Copyright Reform Act, which has five sections, is proposing to
strengthen fair use, reform the anti-circumvention provisions of the
Digital Millennium Copyright Act (DMCA), so that circumvention of
anti-copying technology is explicitly legal for lawful purposes, update
copyright law to better fit with how digital technology functions,
reform the anti-takedown provisions of the DMCA, and make music
licensing easier for users of that content.

Copyfighter Cory Doctorow has an essay on his Web site (http://www.internetevolution.com/document.asp?doc_id=188055)
that speaks to this issue. There is a rather secretive copyright
treaty, the Anti-Counterfeiting Trade Agreement (ACTA), under
development, and reform to the Copyright Act is especially important in
view of this treaty. Cory's essay is a call to action about ACTA.

George Mason University Law School teaches a seminar in multinational IP, (also covering so-called "hard IP"–patents) which is located at: http://www.law.gmu.edu/assets/files/academics/schedule/2010/spring/HOUSEL_MultinationalIP-Syllabus.pdf. The PDF of the syllabus is full of links to materials and also references primary materials.

For some information from the other side of the intellectual property debate:

The World Intellectual Property Organization (WIPO) has some information about intellectual property: http://www.wipo.int/about-ip/en/, with links to additional material.

WIPO also has a collection of international copyright laws, at http://www.wipo.int/clea/en/, the WIPO Intellectual Property Handbook, at http://www.wipo.int/about-ip/en/iprm/index.html, and an e-booklet, Understanding Copyright and Related Rights, at http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#intro.

Public Corruption, Part Two: Florida Faces, Tries to Fight Public Corruption

The
Federal honest-services fraud statute is being tested after a number of
officials in Palm Beach, Broward, and Miami-Dade counties
have been arrested for public corruption. Some Florida legislators–and
the Broward and Palm Beach County State Attorrneys, Michael Satz and
Michael McAuliffe–are advocating strengthening of Florida's
public-corruption laws in ways that do not depend on the language of
the Federal honest-services fraud statute. Called the "Restoring Faith
in Public Office Act," the new state legislation, SB 1076 (bill information page) (bill text), would amend Florida Statutes section 838.022,
"Official misconduct," to include failing, with corrupt intent, to
disclose a financial interest or a direct or indirect benefit.

The bill is sponsored by Democratic state senator Dan Gelber, and supported by other Democrats. The Miami Herald ran an article about the new public-corruption legislation, and the Sun-Sentinel ran an editorial advocating the legislation. According to the Sun-Sentinel, the legislation's chances of passage are limited unless it acquires bipartisan support.

Confessions of a C-SPAN Junkie: “I’ll Tell You When I’ve Had Enough!”

Hi everybody!  I’m Stephanie.  And I’m a news junkie.  My significant other watches ESPN religiously yet fails to understand why I love to bask in the invigorating rays of policy wonkery that emanate from C-SPAN.

But I just can’t resist!  My addiction keeps me informed of juicy stuff like today’s congressional debate to override the presidential veto of Medicare Improvements for Patients and Providers Act of 2008 (H.R. 6331 / S. 3236). 

This particular bit of legislation has enjoyed widespread bipartisan support.  The House passed H.R. 6331 by a vote of 355-59 last month. And though the Senate’s 69-30 tally is narrower, many Republicans who have already voted for the bill have publicly stated their support of the pending override. 

Watch the live proceedings here and pass the popcorn!

Take Your Gun To Work Day!

I was so jazzed to learn of enhanced state aid for Florida’s public libraries that I totes forgot about the Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicles Act of 2008.  The controversial new law CS/HB 503 allows employees with concealed weapons permits to take their guns to work provided said weaponry remains locked up in the carrier’s vehicle. 

Here’s a quick look at the details of CS/HB 503:

• Covers full-time and part-time employees, independent contractors, volunteers, interns and other similar positions. Also includes customers or visitors who are lawfully on the premises.
• Allows concealed weapons license holders to keep firearms in their locked vehicles regardless of whether business owners prohibit weapons on the property.
• Exceptions include schools, government buildings, prisons, airports and other high-security entities, but it allows guns in cars at day care centers and nursing homes.
• Prohibits employers from searching employees vehicles for a gun or even asking them if they have a gun.
• Prohibits employers from taking any action against employees who legally have a gun.

Don’t make me shoot shush you!  Oh wait… Florida Statute 790.115 still prohibits guns on campuses.  Good thing for all of our patrons with overdue fines.

Additional coverage re: Florida’s new laws is available here.