November 2, 2005
Census Data Finds More than 100,000 Hispanic Same-Sex Couple Households Nationwide
A study released Tuesday by the National Gay and Lesbian Task Force Policy Institute and the National Latino/a Coalition for Justice finds there are more than 100,000 Hispanic same-sex couple households nationwide, and that same-sex couples in which both partners are Hispanic earn less and are less likely to own a home than white non-Hispanic same-sex couple households. The study also finds that roughly two-thirds of same-sex couples in which both partners are Hispanic are raising children, and that nearly half (44 percent) of the individuals in same-sex couples in which both partners are Hispanic report they are not U.S. citizens, compared to just 5 percent of individuals in white non-Hispanic same-sex couples. For more information, please click here (last visited November 2, 2005, reo).
Is Oregon Gay-Marriage Ban Constitutional?
Everybody involved in the debate over gay marriage in Oregon is waiting for a Marion County judge to rule on whether the ban approved by voters last November is constitutional. Gay rights activists who filed the lawsuit challenging the ban say a favorable ruling could add momentum to their drive for a state civil union law granting benefits to gay and lesbian couples. A a spokesman for the Defense of Marriage Coalition calls the lawsuit frivolous and predicts the judge will uphold the measure. Oregon was among the first states to issue marriage licenses to same sex couples with more than 3,000 granted last year in Multnomah County. But the Oregon Supreme Court invalidated them, saying the county had no authority to issue them. The judge is expected to rule soon, possibly by the end of the week. KOIN TV, Portland, Oregon, koin.com. For more information, please click here (last visited November 2, 2005, reo).
Marriage is Just Too Boring, say English Children
English children do not want to get married because they think it will lead to a life of boredom, according to a survey conducted by the BBC. More than a quarter - 27 per cent - said they did not want to tie the knot when they grew up as they saw marriage as a "pointless" union, the survey of 2,000 seven- to 11-year-olds found. Most of the youngsters questioned for a BBC1 show, What Kids Really Think, thought that they would be unhappy and bored. The survey also found that while mothers appeared to be in charge - 67 per cent of the children said their mothers "wore the trousers" - they were also left with the lion's share of the housework. Three quarters said their mothers did all the household chores while their fathers watched football. Source. Sarah Womack, Social Affairs Correspondent, news.telegraph, telegraph.co.uk.
Israeli Gay Couple Sues To Have Canadian Marriage Recognized
A Tel Aviv gay couple wed in Canada is suing the Israeli government to have their marriage recognized. Jonathan Herland, 29, and his husband Ayal Walerauch, 26, were married in a civil ceremony in Toronto last July. Their lawyer filed suit in the Israel Supreme Court on Tuesday. It is the third such case now before the high court. In March, two other same-sex couples petitioned the High Court to have government recognize their Canadian marriages. All three cases will be heard by the court in two weeks. Source. Malcolm Thomberry 365Gay.com, European Bureau Chief. For more information, please click here (last visited November 2, 2005, reo).
British Sex Trafficking Duo Jailed
A British couple were today behind bars after making a fortune from one of that country’s biggest people smuggling and sex-trafficking empires. Using a vast array of false identities and flights paid for by cloned credit cards, failed asylum seekers Gavril Dulghieru and his wife, Tamara, smuggled hundreds of desperate young eastern European women into the country. But for some the place they believed had streets "paved with gold" ended in a nightmare of seedy brothels and "enforced prostitution". London’s Isleworth Crown Court was told that dreams of well-paid jobs and freedom from the grinding poverty they thought they had fled were replaced by a red light ordeal of up to 30 customers a day. Source. Corinne Abrams, Sun Online, thesun.co.uk. For more information, please click here (last visited November 2, 2005, reo).
Ex-Kiss Manager Pleads Guilty To Federal Charge of Not Paying Child Support
A psychiatrist who once managed the band Kiss pleaded guilty Monday to a federal misdemeanor charge that he failed to pay child support. Jesse Hilsen, 65, has been in prison for the past year and three months awaiting trial on charges that he failed to pay support to his ex-wife and their two children, now grown. He also agreed to pay nearly $162,000 in restitution. The plea to a misdemeanor rather than a felony will enable Hilsen to keep his license to practice child psychiatry and to work off his debt. Source. 4wnbc.com. For more information, please click here (last visited November 2, 2005, reo).
November 1, 2005
Case Law Development: Laws Prohibiting Benefits for Partners of Government Employees in Same-Sex Relationships Unconstitutional
The Alaska Supreme Court has held that state and municipal programs that provide employee benefits for spouses but not for same-sex partners violate the Alaskan Constitutional provision providing for "equal rights, opportunities, and protection under the law." The court concluded that the state's marriage amendment, limiting marriage to opposite-sex couples, did not preclude an equal protection challenge to laws discriminating against same-sex couples in the area of government benefits. The court further concluded that the goverment benefits laws did not substantially advance any of the legitimate government interests offered as justifications.
ACLU v. Alaska, 2005 Alas. LEXIS 148 (October 28, 2005)
Opinion on the web at http://www.state.ak.us/courts/ops/sp-5950.pdf (last visited November 1, 2005 bgf)
The court first had to decide with the Alaskan Constition's Marriage Amendment precluded challenges by same-sex couples to government policies that discriminate between married and unmarried couples. The court concluded that the marriage amendment referred only to marriage and did not apply to government benefits. "That the Marriage Amendment effectively prevents same-sex couples from marrying does not automatically permit the government to treat them differently in other ways." In its equal protection analysis, the court noted that Alaska's constitutional protections are "more robust" than the Equal Protection clause of the United States Constitution. “Alaska's Equal Protection Clause requires more than just a rational connection between a classification and a governmental interest; even at the lowest level of scrutiny, the connection must be substantial.”
The court next analyzed whether the classification was discriminatory. The court rejected the approach taken by many other state courts that have concluded that these programs discriminate only on the basis of marital status, not gender or sexual orientation, as all married persons could get benefits and all unmarried individuals could not. The Alaska Supreme Court, however, concluded that the “proper comparison is between same-sex couples and opposite-sex couples, whether or not they are married.” The court found that the benefit programs were facially discriminatory, so that no discriminatory intent need be proven.
Finally, the court applied the sliding scale analysis used to test equal protection claims under the Alaska Constitution. The court concluded that, even under the most minimal scrutiny, the benefits laws did not substantially advance the asserted government interests.
The court questioned whether the government’s interest in cost control was an accurate expression of its interest, since that goal was in tension with the goal of promoting marriage (since the more employees who married, the more costs to the government). Rather, the court found more credible the government’s explanation that it was reducing costs by limiting benefits to those who have “very close relationships” with employees. However, the court observed that, while this is a legitimate government goal, “we do not see how an absolute exclusion of same-sex domestic partners from being eligible for benefits is substantially related to this interest. Many same-sex couples are no doubt just as "truly closely related" and "closely connected" as any married couple … and would choose to get married if they were not prohibited by law from doing so.”
The court also rejected an argument that the benefits laws substantially advanced a government interest in administrative efficiency, noting that many other states and municipalities (including the University of Alaska) provide benefits to same-sex partners.
Finally, while the court agreed that making benefits available to spouses may advance the government’s interest in promoting marriage, “denying benefits to the same-sex domestic partners who are absolutely ineligible to become spouses has no demonstrated relationship to the interest of promoting marriage.”
The court thus declared the marriage limitation in the benefits laws unconstitutional but stayed entry of judgment for 180 days to allow the legislature to act and to allow the parties to provide supplemental pleadings on the issue of remedy.
Case Law Development: Division of Jointly Titled Investment Assets
Husband brought into the marriage a portfolio of assets worth about $1.25 million. He generated substantial income during the marriage by investing that portfolio in various assets, including real estate which he developed and resold. He jointly titled a number of the assets purchased from these investment "as an estate planning device." Upon their divorce, the trial court awarded nearly all the assets to Husband on the theory that he had brought these assets into the marriage and that he had rebutted the presumption of gift that arises from joint titling of property. The trial court also considered husband's testimony that he and wife had an oral premarital agreement that she would make no claim to his investments. In what looks like a "return to go" form of equity, the trial court concluded that, by awarding wife $138,500 of marital assets, the court placed her "in a substantially better position than she was at the time she entered the marriage. The Defendant, however, will be in approximately the same position he was at the time the marriage began."
The Supreme Court of Wyoming affirmed the trial court's decision, noting Wyoming's very strong deference to trial court discretion in the equitable division of property. The case would make for interesting class speculation as to how the outcome would differ under different state distribution schemes.
DeJohn v. DeJohn, 2005 WY 140; 2005 Wyo. LEXIS 166 (October 26, 2005)
Opinion on the web at http://courts.state.wy.us/2005opn/2005WY140.pdf (Last visited November 1, 2005 bgf)
Case Law Development: No Contempt for Failure to Comply with Divorce Court's Order to Hold Spouse Harmless from Debt
Here's an interesting story about what might happen after the court divides the debt...
Husband had secured a number of loans from his mother during the marriage. Upon divorce, Wife was ordered to pay those debts and hold husband harmless. After the divorce, Mother sued Wife to collect the debt, but the case was dismissed as Husband had not been joined and the court determined that Wife had no direct debt to Mother. As the appellate court noted: "the legal effect of the divorce decree is not to create a new debt between [Wife] and [Mother], nor does it require [Wife] to pay the debt as the only means of compliance. Rather, [Wife] is required to hold [Husband] harmless. Thus, she might hold him harmless by paying the debt, settling the debt, or defending a lawsuit on the debt." Years later, shortly before she died, Mother sued Husband, who confessed judgment on the debt (even though the claim would have clearly been time barred) without informing Wife of the suit. He was his Mother's sole heir and inherited nearly the entire amount of the judgment for the debt.
Husband then brought an action for contempt against Wife for her failure to pay the debt. The Ohio Court of Appeals held that Husband had no standing to bring the contempt action as he had suffered no injury because of Wife's contempt. "[Husband] paid a judgment against him and in favor of [Mother] without affording [Wife] the right and opportunity to defend and hold him harmless as she was obligated to do under the terms of the divorce decree. [Husband] obviously volunteered for his own injury by precluding [Wife] from fulfilling her duty...."
Hawk v. Hawk, 2005 Ohio 5756 (October 31, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-5756.pdf (last visited November 1, 2005 bgf)
Case Law Development: Court May Properly Prohibit Visitation With Cohabiting Parent
The Michigan Court of Appeals affirmed a trial court's decision to modify visitation to prohibit any overnight guests of the opposite sex while the children had parenting time with either parent. Father argued that he and his girlfriend wished to cohabit. The court, however, noted that this consideration had nothing to do with the best interests of the child. Because only Mother had expressed an opinion regarding the effect of exposing children to cohabitation, the court could honor that opinion in limiting parenting time. The court noted that Michigan custody statutes allow "restrictions on the presence of third persons during parenting time." Moreover, the court commented that, "The social policy of the state of Michigan is established by the Legislature, not the courts, and we note that [a Michigan criminal statute] prohibits lewd and lascivious cohabitation. The Legislature has not repealed this statute." "We are not commenting on the morality of the situation, but we respect the cohabitation statute that remains in existence. Such issues are better directed at the Legislature."
Muller v. Muller, 205 Mich. App. LEXIS 2659 (October 27, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051027_C259271_57_259271.OPN.PDF (last visited November 1, 2005 bgf)
For commentary from the bar on the decreasing prevalence of these "morality clauses" see the Georgia Family Law Blog post on the subject.
October 31, 2005
Biology and Relationships
In The Biological Basis of Commitment: Does One Size Fit All? June Carbone and Naomi Cahn explore biology and family ties. "In this paper, we propose to take the growing insights that arise from the study of the biology of attachment to frame the emerging policy choices underlying the governance of adult relationships. We have chosen to focus, in particular, on the idea of commitment because we see two developments operating in tandem: the biological understanding of attachment has been expanding exponentially at a time of reexamination of the importance of long-term family stability. We believe that putting the two together - integrating biological understandings with sociology - will lead to the conclusions that the tendency to form pair-bonds is a deeply ingrained part of the species, lifelong fidelity cannot be expected on a widespread basis absent substantial coercion, and long term partnership, in Sarah Hrdy's words, is a "compromise that children win." These conclusions, however, will always leave some questions unanswered so that they can do no more than frame the unfolding policy debates. The question of what policy choices work - and at what price - can never be answered by biology alone. A better understanding of the new scientific insights can, however, underscore that the determination of what is "natural" produces complex and varied answers, and the most natural of human tendencies is the desire to reorder rather than accept the workings of human society. Accordingly, in light of the developing understandings of human pair-bonds from both the biological and sociological perspectives, we suggest various strategies that support long-term commitment between adults." June Carbone & Naomi Cahn, The Biological Basis of Commitment: Does One Size Fit All?, 25 Women's Rights Law Reporter 223 (2004). Link to Article (last visited 10-30-05 NVS)
In Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, the same authors explore the importance of genetic ties. "To prosper, children need, at a minimum, the ability to draw on adult material resources - food, clothing, shelter, love, care, education, and guidance. Children must develop, in addition, a social identity, a sense of self that connects them to the society around them. With the changing conceptions of the family, we must face the issue of how society ensures children's well-being, and whether we should continue to police family structure or become more willing to focus attention on children's individual needs. In addressing these topics in this paper, we therefore start with two overriding questions: (1) Are children's rights best protected by the assertion of individual claims or by the design of a regime that can be expected to advance their interests?; and (2) to what degree should children's claims on adults responsible for their care depend on genetic ties?" June Carbone & Naomi Cahn, Which Ties Bind? Redefining the Parent-Child Relationship in an Age of Genetic Certainty, 11 Wm. & Mary Bill of Rights J. 1011 (2003). Link to Article (last visited 10-30-05 NVS)
October 30, 2005
Study Looks at Healthcare Costs Associated With Domestic Violence on Men and Women
Healthcare costs associated with each of incident of domestic violence are $948 in cases where women are the victims and $387 in cases where men are the victims, including productivity losses of $257 for women and $224 for men, according to a report from researchers at the Centers for Disease Control and Prevention. The agency says it is the first study that identifies the healthcare costs and impact of domestic violence incidents, where men as well as women are victims. The study, co-authored by Ileana Arias, director of CDC's National Center for Injury Prevention and Control, and published in the journal Violence and Victims, also found that domestic violence against women results in more emergency room visits and inpatient hospitalizations, including greater use of physician services than domestic violence where men are the victims. Source. HR.BLR.com. For more information regarding the study, please click here (last visited October 30, 2005, reo).
Former Virginia All-American and Top NBA Draft Choice Agrees to Pay $307,036 in Back Child Support
Former basketball star Ralph Sampson could escape jail time after agreeing Friday to a plea bargain on a charge he failed to pay more than $300,000 in child support. The agreement will spare Sampson, 45, up to 30 months in prison and fines of up to $300,000, provided a judge accepts the negotiated plea Feb. 1. Source. The Charlotte Observer, Observer.com. For additional information, please click here (last visited October 30, 2005, reo).
University of Iowa Basketball Star Gets Two Years In Prison for Domestic Assault
Former Iowa basketball star Pierre Pierce, 22, was sentenced to two years in prison in Adel, Iowa, for assaulting a former girlfriend at her apartment in January. Pierce could be released after 11 months. Source. The Charlotte Observer, Observer.com. For additional information, please click here (last visited October 30, 2005, reo).
Mothers Shot Over Child Support – 1 Dead, 1 Critical
A Staten Island ex-con enraged over paying child support hunted down and shot two of his ex-girlfriends in front of their kids before killing himself. Rashawn Mack, 25, fired a single bullet into the heads of both women Thursday - killing one and leaving the other clinging to life. Only a day earlier, he had threatened to kill one of the women over the court-ordered child support. "If you expect me to pay that, get yourself measured for a body bag," Mack warned Rachel Rivas, 24, on Wednesday after she was awarded custody of their 2-year-old son, a law enforcement source said. Mack had been ordered to pay Rivas $25 a week on top of the $50 a month he already was paying Chantel Curtis, the 24-year-old mother of his other young child, sources said. Source. New York Daily News, nydailynews.com. For additional information, please click here (last visited October 30, 2005, reo).