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.

Library of Congress Exhibition: “NAACP: A Century in the Fight for Freedom, 1909-2009″

The Library of Congress’s myLoC.gov is a great resource for those of us who don’t live in the DC area. It’s a virtual museum, featuring online exhibitions of many of the Library’s treasures. One of these exhibits is NAACP: A Century in the Fight for Freedom, 1909-2009. 

The Library of Congress has been the official repository of NAACP records since 1964, housing over 5 million items, including many period photographs and documents, some of which form part of this exhibit.  After an overview of the organization’s history, the exhibit is divided into 8 “themes”, each representing an era in the life of the organization. The site also provides links to additional resources, including the excellent Civil Rights Resource Guide. 

Whether you’re a teacher, a student, or someone interested in our nation’s history, this exhibit provides an excellent introduction to the NAACP and its place in 20th century American history.

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.

Resource of the Day: Locating the Law (5th Edition, Rev.)

The Southern California Association of American Law Libraries (SCALL) has released the revised fifth edition of Locating the Law: A Handbook for Non-Law Librarians.  initially published in 1986, this nifty handbook is an excellent resource for non-lawyers, providing basic information about California and federal legal materials along with a straightforward overview of what they are, how they are organized, and how to utilize them in the legal research process.

Thanks to SCALL’s Public Access to Legal Information (PALI) Committee, the revised edition now boasts updated links and improved navigational features as well as a new title for Chapter 10 (i.e. Bibliography of Self-Help Resources).  The original section of List of Common Abbreviations in the Law from the end of Chapter 2 has expanded substantially, morphing into a completely new Appendix B dubbed How to Read a Legal Citation.  And an extra round of snaps goes to the authors for including a superb chapter designed to help guide law librarians when working with pro se patrons (Chapter 9: Assisting Self-Represented Litigants).  Well written and concise, this pithy piece should be required reading for all law librarians.

Only available online, the full text can be freely downloaded via the SCALL website.  Individuals and libraries are encouraged to download or print as many copies as necessary in accordance with the work’s Creative Commons license.  (Adobe Acrobat required)

Kenyan Law Reports Wins IALL Website Award Competition

Kenyan Law Reports (KLR), a free Kenyan Law database, has been announced as the winner of the International Association of Law Libraries (IALL) 2011 Website Award Competition. With this award, Kenyan Law Reports joins the ranks of the International Committee of the Red Cross and the United Nations Audiovisual Library of International Law websites that claimed the 2010 and 2009 awards respectively.

KLR provides free access to primary sources of the laws of Kenya, namely case law and consolidated laws (Acts) including the subsidiary legislation for both of which it is the official source.  The field of contenders for the 2011 award included THOMAS, Global Legal Information Network (GLIN), Legifrance, as well as several other websites dedicated to international legal and jurisprudence matters.

Hat tip to In Custodia Legis, the blog of the Law Librarians of Congress, for reporting the good news. Read the full post here.

 

StatCan announces 2011 Census data release schedule

Columnist Carl Meyer has reported that all of Statistics Canada’s standard online products, including the 2011 census, socioeconomic and geographic data, will be offered to the public for free starting February 2012.  Source: Embassy Magazine

The announcement builds on earlier decisions by internationally-acclaimed StatCan to make its census data and specialized search tools available online in 2001 and 2006.  In additon to daily CANSIM news alerts, a detailed schedule of release dates for 2011 major economic indicators has been posted on the agency’s website.  Other neat, new features on the updated site include E-tutorials and Thesaurus Search.

 

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 .

American FactFinder 2: Learning to navigate new waters

If you’re like me, you loved the original American Factfinder and have spent countless hours bopping around the site, happy and carefree, wallowing among the statistics dating back to the 1990 Decennial Census and playing with the data extraction tools.   Imagine my dismay upon learning earlier this fall that our beloved AFF will be replaced by American Factfinder 2.  While AFF2 hosts the latest data from the 2010 Census and 2010 American Community Survey, the content currently available at  American Factfinder will be gradually added to the new AFF2 website in phases during fall 2011 and into Spring 2012.  Eventually the entire AFF website will cease operation.  Key research features, like “address lookup”, have already migrated from AFF to AFF2 and are no longer supported in the old website.

Given these random changes in navigation and the resulting impact they might have on research, miscellaneous agencies like the U.S. Department of Transportation’s Federal Highway Administration and libraries are creating online tutorials to guide users through the new interface and help them manipulate mined data into tables and charts.  See this 5-minute video on the basics of American FactFinder and a longer 9 minute video on advanced searching courtesy of the fine folks at Political Science and International Area Studies Government Information Library University of Colorado, Boulder.

Letters and Law Practice: A Cautionary Tale

ThinkGeek, http://www.thinkgeek.com, is an
Internet-order company for, well, geeks. ThinkGeek carries…
interesting(?) products for geeks: lightsabers, titanium sporks, no end
of bacon products (they seem to think that bacon is cool), and The
Big Bang Theory t-shirts (Bazinga!). At the beginning of April, they
introduced a new product: Canned unicorn meat. The ad said "Pâté is passé. Unicorn -
the new white meat." (http://www.thinkgeek.com/stuff/41/unicorn-meat.shtml).

Unicorn.
"The new white meat," huh? Sounds like someone else's slogan, doesn't
it–"a cease and desist letter from
lawyers from the National Pork Board (even though the
Board is thinking of retiring the slogan). As ThinkGeek wrote of the
letter, "First, it's 12 pages long and very well-researched
(except on one point); it even includes screengrabs of the offending
item from our site. And we know they're not messing around because they
invested in the best and brightest legal minds." (The letter was from Faegre
& Benson, a well-known and -respected international firm.)

See
that "on one point" parenthetical in the ThinkGeek post? Faegre &
Benson missed out on one thing: This alleged infringement of the National
Pork Board's trademark is (probably) protected by fair use… as parody.

Remember
when the product was introduced? Early April. April 1st, in fact. The
new product was an April Fool's joke. As ThinkGeek's webpage for the new
"product" said, "Not yet approved by the USDA or FDA, but the nuns have
eaten it for centuries and they're healthy as horses."

Moral of
the story: Think before you draft documents or bill clients.

Streaming Video of U.S. House Floor Proceedings : HouseLive.gov

Live and archived streaming video of U.S. House proceedings are now available via HouseLive.gov. The searchable archives date back to the beginning of the 111th Congress. You can subscribe to live feeds in video, audio podcast and/or video podcast, or create your own custom RSS feed. A Special Events page features streaming video of joint sessions and meetings, such as the State of the Union address. Hat tip to the Sunlight Foundation's blog for highlighting this new resource.