Same Sex Marriage

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.

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.

2010, the year in family law.

As 2010 comes to a close, I can’t help but look back and realize how much “family law” was in the news (click on the stories for articles on each). There was the Goldman international custody case between U.S. and Brazilian citizens as well as gay marriage debates, laws and rulings nationwide, culminating with perhaps the most reported case of all, Proposition 8 in California (click for Associated Press Video).

There were countless celebrity divorce and family law cases in the news. Just think of Mel Gibson, Tiger Woods, Octomom, Kate Gosselin, Sandra Bullock and perhaps the biggest of all, The McCourts (Owners of the L.A. Dodgers).

There is the Tony Parker v. Eva Longoria case and the Charlie Sheen divorce.

It is time for the media to start looking back and summarizing the stories that made news. CNN has already written one on celebrities’ troubles.

Still, what continues to amaze me, is how interested the public is in other people’s lives. Have we become a voyeuristic society? Or do we simply take comfort in knowing that even those who seem to have it all are not immune from the same type of pain and emotional (and often financial and physical) agony the rest of us may endure?

As a family law attorney it is often difficult to see so much hardship. But our role as lawyers is to help reduce that pain. To counsel and to make a bad situation a little better, or at least tolerable. Often we are the only ones who can see the light at the end of the tunnel; that there will be a tomorrow. So perhaps the most important thing we can do is to reassure our clients that tomorrow does come. And look, here it is, 2011. Many people have suffered in 2010, but many have made it through to a new year. Here’s to hoping that things get better for those who had a rough 2010, and that those who didn’t, continue to be blessed in 2011 and beyond.

International child related issues on the rise.

As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.

But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.

A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.

This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.

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.

Same sex marriage put on hold in California

The 9th Circuit U.S. Court of Appeals today stayed the Order which overturned Prop 8, thereby precluding, for the time being, same sex marriages in California. This seems to be an attempt to avoid the potential conflict and uncertainty which would arise in the event same sex couples marry under the current state of the law, and then that law is overturned.

Proposition 8 overturned. Same sex marriage gains ground.

Today was an historic day in family law. A federal, not simply a state court judge, ruled that same sex marriage should be allowed. While the ruling is much more than simply an opinion by a judge that such marriages should be allowed, the real significance is that the burden now shifts to opponents of same sex marriage to overturn the decision on appeal. As any lawyer will tell you, it is always better to be the Appellee than the Appellant (the one filing the appeal).

Far be it from me to attempt a full fledged legal analysis of the decision in this format, but the simple and straightforwad result of this decision is that the concept of same sex marriage has taken a huge leap forward and seems well on it’s way into acceptance, at least in our legal system. While most studies seem to indicate that the legalization of gay marriage was an eventual certainty, this case seemed to move the process along much more rapidly than many expected.

Regardless of your view on this topic, there is no doubt that this is truly an issue that will be discussed over and over, in courthouses and coffee houses.

Past generations have confronted many changes to widely held opinions and positions (Loving v. VA-interracial marriage; Roe v. Wade-abortion; Brown v. Board of Education-segretation in schools). Yes each issue is different, but the fact that in America we can examine, debate, vote, litigate, appeal, then vote again, is a wonderful thing. The checks and balances and open processes we use are extraordinary. There is no way to please everyone, but what an interesting issue and what interesting times we live in.

Argentina okays gay marriage-first country in South America to do so.

Argentina celebrates first same-sex marriage since new law enacted.

Gay adoption in Florida

I was asked to appear on a CNN owned network (Tru TV, formerly Court TV) yesterday to comment on the rights (or lack of rights) homosexuals have to adopt and/or seek custody or visitation with children. It was an interesting show, and while preparing for it, I learned a bit more about Florida’s law. Florida’s statute actually forbids adoption by anyone engaged in homosexual activity. Apparently, if one is homosexual, but not “engaging in homosexual activity” the ban does not apply. Well guess what? As a divorce lawyer I am confident there are many heterosexual couples no longer engaging in heterosexual activity. In other words, the distinction Florida seems to draw is between homosexuals who have sex and those who don’t.

Recent court decisions have upheld Florida’s law saying basically that the legislature could have rationally believed that such a law was based on a legitimate government objective. That objective was to place children in an environment where there was a legitimate chance for them to end up in a “typical” home with a mother and father, since a gay adoptive parent was unlikely (and in Florida, unable) to marry someone of the opposite sex. This theory of course, omits the possibility that a gay man may decide to coparent with a woman with whom he is friends, or that a single heterosexual may never marry, thereby leaving the child to be raised by one person, when two people might be able to raise the child with twice the love, twice the time and twice the resources to give the child.

But the law may soon change. In the case of In Re Gill, a foster parent was allowed by the trial court to adopt children for whom he had provided foster care. The case is on appeal and oral arguments were held last August. A decision could be made any day. It will be interesting to see what happens, but the national trend seems to favor allowing adoption, regardless of sexual preference.

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