same sex

Welcome 2013

This was my 2013 post for LinkedIn Influencers (posted in December):

Welcome 2013. While the years roll by quickly, laws are often slow to catch up to the times. Legislatures move slowly, politicians worry about how their votes on new laws will affect their chances for reelection. And judges have much incentive to take the safe road, follow the rules and laws that have been around forever and to be sure they are themselves upheld on appeal. To accept a novel argument or interpretation of the law opens a judge up to much scrutiny and criticism. But there remains so much room for improvement in the area of family law. Not just to our laws, but within our profession as well. We need increased civility between lawyers and between parties. We need better education about the process and the tools available to achieve resolution. And we need better, more modern laws, to handle the new realities of our society.

On a national and state by state basis we must address how to help same sex couples dissolve their relationships in a civil manner. If they are not allowed to marry, perhaps they should still be allowed to divorce? Otherwise they will still end their relationships, but the process will continue to be confusing, frustrating and sometimes violent. When human beings have no recourse under the law, they engage in self help (sometimes called vigilante justice). Why not permit these tax paying and law abiding citizens to use our court system to resolve their disputes like other citizens? Wether you approve of same sex relationships or not, they exist and prohibiting same sex marriage, or same sex divorce, does not and will not stop same sex relationships. Instead, it helps avoid land disputes, child custody disputes, title disputes and many other problems that ultimately cause all of us money since our tax dollars pay for courts, policemen and other services that are needed when disputes get out of hand. Courts, when permitted to help members of society, for instance in same sex divorces, will reduce cost, tension and resources across the board and thereby help all taxpayers.

So what about DOMA (Defense of Marriage Act)? Will it fall this year? It seems inevitable. The federal government which has historically left family law matters to the states, stepped deep into family law when it approved DOMA. It seems the current trend is to to see DOMA as overreaching. I believe DOMA will be undone (by the courts, since a majority of legislators will likely never vote to do something that implies that they approve of gay marriage).

And international custody issues including abductions, denial of visitation rights and even simple communication via new technology should be reviewed. We all remember the Sean Goldman custody case in Brazil. There are so many cases like his that are not reported in our press. Kids get taken from (or to) the U.S. and are never returned. Even in countries that have signed the relevant Hague Treaties, it is often difficult to get a child back. And in others such as Japan, it is nearly impossible. We need to work on this in 2013.

But again, civility. Handling our family matters in a civil and peaceful way is a must. It all starts with family. And we as lawyers must do our part. Yes family matters such as divorce and custody disputes fall into our adversarial system of justice. And for some disputes, it must be so. But so many family disputes can be resolved amicably if we just let emotions subside. If we pause and think about how we want our children to know we handled our differences. Wouldn’t we all be prouder if family law disputes were resolved by the parties involved and not by lawyers and judges who had never known the family when they got along? Alternative Dispute Resolution (ADR) has played an increasing role in family law. Be it mediation, arbitration, late case evaluation or collaborative law, there are many more options in 2013 than there were in 2003 or in 1993. Let’s take advantage of these resources, and lets all, lawyers, judges, mediators, expert witnesses, psychologists and parties, pledge to work amicably. Court decided resolution is never as good as a result agreed to by the people involved. And that can best be accomplished if we act civilly. Especially us lawyers. We do not have to continue seeing the other side after the dispute is resolved. But our clients do. They will go to their kids’ weddings and other events together. Lets commit to doing our best to ensure that these future events and life itself, will be better and easier for our clients because of the efforts we undertake. That’s my commitment for 2013. I look forward to a positive year of helping people and doing my best to ease their burdens and not to increase them.


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.


Gay Marriage Issues are everywhere, not just NY

I blogged a few days ago about President Obama’s decision to support the repeal of DOMA (Defense of Marriage Act) which is the federal law defining marriage as between a man and a woman and stating that states need not respect marriages performed in other states which are between members of the same sex. Now gay marriage is again in the news as New York has passed a law allowing it and this week the first gay marriages in New York have taken place. The local public radio station interviewed me about it and got me thinking (the interview can be heard by clicking here). The expansion of gay marriage to New York increases the likelihood that other states such as Georgia will encounter these issues. There will be gay couples who divorce in New York, legally, and then move to Georgia. Then the dilemma for Georgia courts will be how to treat such valid orders from other states. Under DOMA, Georgia would not have to recognize such an order based on a gay marriage. But if DOMA is overturned by the new “Respect for Marriage” act, then would Georgia be violating the full faith and credit clause of the U.S. Constitution if it did not recognize and enforce a valid “gay divorce”? These are interesting questions and I continue to look forward to them unfolding and how our judiciary and bar work to resolve these issues. The solutions are not easy and the process has obstacles, but our civilized society has handled and overcome much tougher issues. I am confident this one will be resolved with time as well.


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.