gay marriage

NY Federal Court holds DOMA unconstitutional

The following is a copy of my recent post for LinkedIn:

I was interviewed today (October 21, 2012) on CNN about the new Federal Court decision declaring section 3 of the Defense of Marriage Act (DOMA) unconstitutional (click here to see the interview: http://youtu.be/TErI_O9nQ6E).  This is another step towards the U.S. Supreme Court eventually addressing it, and in my opinion, declaring sections 2 and 3 to be unconstitutional.  The case was EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, – v.- UNITED STATES OF AMERICA. The case can be read in full here.

To summarize, the case held that an elderly woman (83 years old), could not be forced to pay over $300,000.00 in federal estate taxes on assets her partner had left to her when she (her long time partner and wife) died. They had gotten married in Canada and lived in New York, where same-sex marriage is legal.

The Court said “Homosexuals have suffered a history of discrimination” and used a  heightened scrutiny test treating gays like other minorities which made it easier to find the law unconstitutional. They said: “[W]e conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional”

Here is what Section 3 says:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Same Sex marriage licenses are issued in: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia so according to this opinion, the federal government must recognize same sex marriages in these states and thus federal laws applying to married people should apply to married same sex partners.

Will the United States Supreme Court review this case? Who knows?  Perhaps.  But they may want to await a future decision that also raises the constitutionality of section 2 of DOMA, which seems to violate the full faith and credit clause of the constitution by stating that states need not recognize marriages in other states between same sex individuals if such state itself does not want to deem such marriages valid.  But surely this case makes the issue more noticeable and in need of clarification.  And since congress isn’t likely to try to fix this or address the constitutionality (the congress actually paid to defend the law in this case since president Obama would not), it seems the supreme court is where it will ultimately land.

One interesting line from the opinion is: “The law is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples.”  This statement, to me, makes it clear that the legal definition of marriage, can, may and often will differ from the religious, moral and philosophical definitions of marriage espoused by different people, different religious experts and others. But the fact that same sex marriage has been declared legal by some states seemed to carry the day in this case.  This decision stated clearly that the federal government cannot contravene the state’s determination that same sex marriage is authorized and that in this case, the federal law, DOMA which attempts to override state law, is unconstitutional.


Chairing the Family Law Section of the ABA has been an honor

I have been so fortunate to have been able to serve as Chair of the Family Law Section of the American Bar Association for the 2011-2012 term.  I cannot believe the year is drawing to a close.  To have been allowed to lead this section, has truly been an honor and the highlight of my legal career and bar service.  About 15 years ago I served as Chair of the Family Law Section of the Atlanta Bar Association.  I have served as Chair of the Standing Committee on Substance Abuse for the American Bar Association and as Chair of the Family Courts Committee of the Family Law Section of the ABA, as well as Chair of the Family Law Section of the Georgia Bar Association.  This year has really been a culmination for me and I really know for sure now, that being a lawyer, and serving the bar and the community in ways beyond representing clients, is what makes ours a profession worth pursuing.  I have been fortunate enough to meet lawyers and judges from across the world.  And while there are many different personalities in our profession, like any other, there are so, so many people trying so hard to do good and to make the world a better place. 

I recently attended an event for Congressman John Lewis.  He explained how he has been getting in “good trouble” his whole life.  What an inspiration he was and is.  We should all get in “good trouble” and help make positive change in our world.  For me, it is in my limited capacity as a family law attorney, but for all of us there is a way.  My year has had it’s challenges just like any other year, but it has been quite an interesting one for Family Law.  DOMA seems about ready to fall.  Grandparent’s rights are evolving.  International custody issues have been given more attention.  We should all be helping ensure that these issues get the attention they deserve.  Family Law attorneys can and should continue to help legislatures and courts understand the law and the ramifications of poorly drafted statutes or poorly interpreted laws.  We should also help the public understand them.  Knowledge is power and we should all be as knowledgeable as we can about the laws which shape our country.

 Again, I am grateful for the opportunity to serve and hope I can continue to contribute.  Those of us who have been fortunate enough to be so involved have a duty to continue to help and to ensure that ours truly remains a “profession” and not just a job.  Let’s keep trying to make this world a better place.


First Ever GA ICLE Same Sex Legal Seminar

In March 2012, Georgia, a state which may well be one of the very last to recognize gay marriage, will celebrate a first, the first legal seminar hosted by ICLE to focus exclusively on same sex issues (click here for the brochure).

This program will be a comprehensive and thought provoking one. The first discussions will focus on the initial consultation and issues to discover and raise early. The next panel will cover the status of gay marriage and civil unions in the United States, interaction between federal and state law regarding same sex marriage, the portability of marriage and (un)availability of divorce and rights and remedies not available to gay couples where marriage or civil unions are not recognized. They will also discuss recent notable cases.

Other panels will discuss alternatives to divorce (since divorce is not available to same sex couples in Georgia) and alternative legal theories to resolve disputes under Georgia law. The entire program should be highly informative and educational. Even if you, as a lawyer, do not practice in this area, isn’t it something you/we should all understand and know what the law, and legal paths available are?

I can’t wait to watch and learn and hope you will consider joining us as we discuss these issues that many of us try to figure out each day in our practices, on a case by case basis. And again, to view the brochure and date andtime information, please click here.


ABA Family Law Section plans for South Beach Seminar in full swing

“SoBe”…South Beach in the Spring, what could be better? Please consider joining us April 18-21, 2012. After a very successful CLE program in Vegas this past October, we are on a “CLE roll”. The programs scheduled for Miami include:“How to Impress Judges: Analytical Steps to a Well Organized, Concise, and Engaging Trial”, “Social Networking for the Family Lawyer..” and “If you love me, put it in writing.”
And one more time, the location…the Eden Roc Hotel in South Beach, in the heart of Miami Beach, is old style Miami art deco, but fully renovated and hip. It’s a great place to learn and to mingle with family law attorneys from across the country. There will be family law discussed not only indoors, but pool side and at the beach. Isn’t that better than your conference room? I hope you will consider joining us for this fun filled educational meeting. See you in the sun!. – Randall M. Kessler


OBAMA to oppose DOMA/Thoughts on Same Sex Divorce

For years the White House has vowed to support the Defense of Marriage Act, and this week President Obama changed course (click here for NY Times article). DOMA (the Defense of Marriage Act) was signed into law fifteen years ago by then President Bill Clinton. It basically is the federal government stepping into family law (which seems to be the trend) and determining, on a federal level, that marriage can only be between a man and a woman and that states do not have to recognize (give full faith and credit) to a marriage between members of the same sex even if the state where they were married allows them to do so legally-see Wikipedia definition of DOMA by clicking here. Most legal scholars (and some state courts) find the law unconstitutional.

But now President Obama has announced that he will support the repeal of this law. This does not mean states have to allow same sex marriage, but it does remove a large obstacle for gay marriage proponents. The legislation President Obama now supports still has yet to pass, but this is a big first step.

Regardless of whether people feel gay marriage should be allowed or not, I think I am a proponent of allowing gay divorce. Not because it generates more business for divorce lawyers; in fact, it will create less business because the process of separating gay couples and dividing their assets and working out visitation arrangements for their children would then be simpler and much less costly. Rather the reason to support allowing gay couples to divorce is that it gives law abiding adults a method to resolve disputes that will arise whether there is gay marriage or not. Throughout time there have been same sex relationships. The real question for me is how we, as an advanced civilization, handle the legal aspects of a separation. If we ignore it and put our heads in the sand, that helps no one. The problems remain, people engage in self help and take what they want, including children and the result is chaos.

I am not sure what the future holds, but it seems that a legal process, whether it is allowing same-sex divorce or whether we term it something else would be a positive step for our society and most importantly for the children of same sex couples.


ABA Family Law Section meeting starts in Amelia Island

It is always exciting to get together with fellow practitioners and judges from across the country to learn the latest trends, practices and innovative ideas of our profession. This year, our Spring seminar will focus on “Families Matter”. The seminar is from April 6, 2011 to April 9, 2011 and will devote much time to helping alleviate much of the pain, cost and discomfort of family law matters.

There are many cutting edge topics, such as “Oh, the Tangled Web We Weave: irs rules and regulations Effect on payments and Expenses in Third party reproduction” and “The alphabet soup of Military pay and Family support”. If you are a family law practitioner, I strongly urge you to consider joining us. And if you can’t make this one, join us in late October in Las Vegas at the Wynne-Encore and then next April at the Eden Roc in South Beach (Miami Beach), Florida. I look forward to learning and blogging what I learn.


DOMA no longer to be defended by Federal Government

The Obama administration moved closer to officially recognizing the right of same sex couples to marry. It was done in a reverse sort of way. As reported by the Washington Post “The Obama administration said Wednesday that it will no longer defend the federal law that bans the recognition of same-sex marriage because it considers the legislation unconstitutional….” (click here for full story from the Washington Post).

It seems the administration recognizes that sooner or later the fedral law defining marriage as between man and woman will be overturned. But in this manner, he seems to making it easier for the courts to make that determination, since it may take a very long time for the legislature to do so.

Like the ancient Chinese proverb says “We live in interesting times.”


Another foot in (or out) the door for gay marriage (or at least for gay divorce)

A very interesting case from Texas is in the news. A lesbian couple left texas to get married in Massachussetts. They returned to Texas and subsequently sought, and obtained a divorce. The Texas Attorney General then intervened, but so far that intervention has been been ruled as coming too late (click here for a link to the story).

Perhaps Texas law had previously not allowed gay divorce since it does not allow gay marriage (and in essence, granting a divorce to a gay couple basically acknowledges a gay marriage). While this case may not set reliable precedent, it does seem to be an indicator of where things are headed. And, had the court not granted the divorce, how would this couple have resolved their issues? Sticks and stones? It seems to me that allowing them access to the court to resolve their differences is what we should do in a civilized society. This debate is long from over, but it certainly is interesting.


Massachusetts Gay Marriage “Stay” in place

In July, a U.S. District judge in Massachusetts, in Gill v. Office of Personnel, found part of a federal law allowing states (or perhaps the federal government) to refuse to recognize a gay marriage from another state to be unconstitutional. But he has just put a “stay” on his ruling to see if the government will appeal (click for a link to the story). The case is not so much about whether gay people may marry, but whether the federal government must respect a state’s determination of whether someone is married or not. The actual decision (not the “stay”) may be read by clicking on this sentence.

This seems to be one more case weakening “DOMA”, the Defense of Marriage Act. These are interesting times.


ABA Annual Meeting Finale coming up

What an annual meeting! The CLE programs have been wonderful, and for those of you still here in San Francisco at the 2010 ABA Annual Meeting, there is one more “MUST-SEE”. At 10:30 am today (Sunday), there is a presentation on “Trying High Profile Cases in a 24/7 New Media World”. What is amazing is who is on the panel of presenters. Among the five panelists will be David Boies, who just successfully argued and tried the Proposition 8 case. Is it possible to have another presenter as timely as him? Yes, The Honorable Vaughn Walker, the judge who decided that case will be on the panel as well. Many ABA groups are co sponsoring the program and I am sure it will be packed, so I just hope there is room for everyone who wants to attend, including me which means we should all get there early.

There has already been a tremendous amount of educational information sharing, but to be in San Francisco and to get to go watch and listen to the lawyer and judge who just tried one of the most intriguing and possibly society-changing cases in our lifetime makes it worth rising early and standing in line to listen, watch and soak in as much as possible before this 2010 Annual Meeting ends. I am looking forward to the program and I look forward to learning from it and sharing.