April 29, 2006
Louisiana Senate Approves Strict Abortion Ban – Measure Moves to House
The Louisiana State Senate approved a near-total ban on abortion on Wednesday of this week, allowing abortion only to save a woman's life. A person who performs an abortion in violation of this statute could be fined from $10,000 to $100,000, be sentenced to a jail term of one to ten years, or a combination of a fine and jail time. The ban is a “trigger law,” meaning it will only go into effect if Roe v. Wade is overturned. Governor Kathleen Blanco has told reporters she would sign “some kind of abortion bill,” reports the Times-Picayune. Source. Feminist Daily News Wire, feminist.org. You can find the complete story by clicking here (last visited April 29, 2006, reo).
California Lawmakers Defeat Fetus Pain Proposal
California lawmakers on Tuesday defeated legislation that would have informed women considering an abortion that a fetus feels intense pain during the abortion procedure. The measure would have also provided women with the option of giving the fetus anesthesia beforehand to lessen the pain. Source. Steven Ertelt, lifenews.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Europe’s Supreme Court Says Transsexual may Draw Pension at 60
A transsexual who was born a boy was awarded a state pension from the women’s retirement age of 60, rather than the men’s retirement age of 65. The claimant was born in 1942 and later had gender dysphoria diagnosed, underwent sex-change surgery in 2001 and shortly afterwards claimed a state pension. The British Department for Work and Pensions had refused to pay her a pension on the ground that she was still officially a man, and that she was not yet 65. Source. Anthony Browne, Timesonline.com. You can find the complete story by clicking here (last visited April 29, 2006, reo). The Opinion of the European Supreme Court can be found by clicking here (last visited April 29, 2006, reo).
Iowa Legislators Seek to Intervene in Lawsuit Challenging Gay Marriage Barrier
In Iowa, the DesMoines Register reports that seventeen Republican state lawmakers have asked a judge to let them join a lawsuit over the right of Iowa gays and lesbians to marry. The 11 senators and six representatives filed affidavits in a Polk County, Iowa contending that they have an interest in any proposed change in "fundamental public policies" set by law. They contend that their interest as lawmakers "in establishing social policy, controlling the budget in response to current social policy and maintaining the consistency of Iowa's laws with declared social policy" would be impeded by any adverse ruling. Source. Jeff Eckhoff, DesMoines Register, desmoinesregister.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Survey Article: “Conservatives Look to June Vote on Marriage Amendment”
Regular readers of this Blog may find the article written by Monisha Bansal of the CNSN News Staff of interest. She reviews the current status of the proposed federal constitutional marriage amendment and forecasts that a vote on it is expected in the United States Senate June 6. She also provides useful background about the Federal Marriage Amendment and the technical requirements for ratification. Source. Monisha Bansal, CNSNews.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Conference of Ministers of Evangelical Lutheran Church of Iceland in Heated Debate over Allowing Homosexual Couples to Marry
According to the Icelandic National Broadcasting Service, RÚV, a "heated debate" took place on Thursday of this week when a group of ministers of the Evangelical Lutheran Church of Iceland challenged their colleagues to permit the Church to marry homosexual couples. It is reported that a committee is drafting a resolution that includes language that would permit ministers to bless the relationships of homosexuals. Some ministers want to go even further and marry homosexual couples. The Bishop of Iceland said that many wedding ceremonies had become "phony" with no connection to the true values and solemnest of matrimony. Source. Icelandreview.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Kansas Legislature Says No One Under 16 Can Marry
Nobody under age 16 will be able to marry in Kansas under legislation worked out by that state’s House and Senate negotiators this past Wednesday. The legislation was triggered by a case where a 22-year-old man got a 14-year-old girl pregnant and married her in that state. Under the legislation, persons 16 and 17 can marry if they have parental or judicial permission. Source. The Wichita Eagle, AP, kansas.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Study Attempts to Assess Percentage of Gays Who Marry where Relationships are Legal
In a study released by the Institute for Marriage and Public Policy, estimates of the percentage of gays who marry where it is legal to do so vary. For example, it estimated that 14.3 percent of the gays and lesbians in the western province of British Columbia had married while 3 percent and 5 percent of Belgium's gays and lesbians married. It also estimated that from 5.9 percent to 16.7 percent of those in Massachusetts had married. Source. David Crary, AP, Washingtonpost.com. You can find the complete story by clicking here (last visited April 29, 2006, reo). You can find the Institute site by clicking here (last visited April 29, 2006, reo).
April 28, 2006
Case Law Development: What are Misdemeanor Crimes of Domestic Violence for Purposes of Federal Firearms Statute?
The United States Tenth Circuit Court of Appeals joins many other circuits in its interpretation of 18 USC 921(a)(33)(A), which makes it unlawful for any person previously convicted of a "misdemeanor crime of domestic violence" to possess a firearm. The court upheld application of the statute to an individual convicted of criminal assault, which does not require proof of a domestic relationship. The court concluded that "While the [statute's] definition of a "misdemeanor crime of domestic violence" is not a model of clarity or preciseness, we agree with our sister circuits that neither the syntax nor the grammar of the statute require the predicate misdemeanor offense to have a domestic relationship element. We agree with the First, Eighth, and Ninth Circuits that Congress's use of the singular noun "element" is indicative that the misdemeanor offense only requires one element, namely, the use of force."
United States v. Heckenliable, 2006 U.S. App. LEXIS 10475 (April 27, 2006) bgf
Case Law Development: Waiver of Employer Provided Life Insurance Benefits
The Michigan Supreme Court has held that the preemption provision of the Employee Retirement Income Security Act (ERISA) does not preclude a named beneficiary from waiving the proceeds from a life insurance policy. The court concluded that while a plan administrator is required by ERISA to distribute plan proceeds to the named beneficiary, the named beneficiary can then be found to have waived the right to retain those proceeds. In this case, the Wife who had waived her right to life insurance proceeds could not retain those proceeds that had been delivered to her by the Plan Administrator of an employer-provided life insurance policy when Husband had failed to change the name of the beneficiary prior to his death.
Sweebe v Sweebe, 2006 Mich. LEXIS 690 (April 26, 2006)
Opinion on the web (last visited April 28, 2006 bgf
Thanks to Jeanne Hannah's Updates in Michigan Family Law Blog for the case.
Case Law Development: Retroactive Application of Family Law Decisions Regarding Alimony Agreements
The Georgia Supreme Court considered the retroactive application of family law rulings in a case in which the question was whether alimony obligations survive the death of the obligor parent. The court affirmed the trial court's decision that husband's estate could not be held in contempt for failing to continue to pay the alimony obligation. The trial court had concluded that the normal rule that death of the obligor terminates the agreement should apply because the settlement agreement's provision that Wife was entitled to alimony until she remarried or died did not evidence a manifest intention to reverse that rule.
The issue for the Supreme Court was whether that rule, drawn from a 1981 Georgia Supreme Court decision, should be applied retroactively to the couples' incorporated settlement agreement entered in 1975. The court concluded that it would apply the general rule that "a judicial decision announcing a new rule is retroactive unless the decision itself expressly makes it a matter of pure or selective prospectivity or, after examining whether retroactive application would adversely affect operation of the new rule and weighing the inequity imposed by retroactive application, we subsequently conclude application of the new rule would cause unjust results to those who justifiably relied on the former state of the law." Applying that rule to this case, the court noted that there had been conflicting authority on the issue of whether alimony terminates upon death of the obligor. The authority wife argued supported her position was a narrowly drawn case and a plurality opinion which set itself out as an exception to the general rule that a recipient spouse's claim for alimony terminated upon the death of the obligor spouse. A subsequent decision that overruled that authority did not indicate that it should be applied prospectivity only. Accordingly the court concluded that retroactive application would not result in "substantial inequitable results that amounts to the injustice or hardship that would authorize a holding of nonretroactivity."
Findley v. Findley, 2006 Ga. LEXIS 254 (April 25, 2006)
Opinion on the web (last visited April 28, 2006 bgf)
Case Law Development: Achieving a Clean Break May Justify Unequal Distribution of Property in Divorce
The Supreme Court of Georgia affirms a trial court's division of marital property in such a way that wife (who had moved to New Zealand) was awarded the real property and personalty in New Zealand and Husband was awarded the real property, personalty, and business in Georgia. This division resulted in an unequal distribution of assets, but the court held that equitable division did not require equality. The fact that the division achieved a "rough parity" between the parties, along with a justification of attempting to leave the parties as entangled as little as possible, supported the award.
Waters v. Waters, 2006 Ga. LEXIS 243 (April 25, 2006)
Opinion on the web (last visited April 28, 2006 bgf)
April 27, 2006
Case Law Development: Abuse of Process Sanctions in Domestic Relations Actions
The Florida Court of Appeals upholds a sanction against an attorney for abuse of process in which he is prevented from filing any further future pleadings, petitions, motions, documents or other filings in any way related to his domestic disputes unless signed by another member in good standing of the Florida Bar. Since 2002, the attorney had submitted numerous meritless filings in the state court, all related to or emanating out of his 1994 dissolution of marriage proceedings. The most recent filing, which resulted in the sanction order, was one in which the attorney sought to challenge the Judicial Qualifications Commission's decision not to pursue formal charges against several judges about whom he had filed complaints in relation to his ongoing child custody and child support disputes with his ex-wife.
Sibley v. Florida Judicial Qualifications Comm'n, 2006 Fla. LEXIS 667 (April 27, 2006)
Law Review Article: Adolescent Health Care Decisions
"This article queries whether the law inappropriately deprives adolescents of the right to participate in and potentially direct their own healthcare. I argue that the broad withholding of healthcare decision-making rights from adolescents is morally unfounded and practically unnecessary and that the age marker dividing childhood from adulthood for purposes of healthcare decision-making has been set too high. Evidence of adolescent cognitive abilities requires a re-imagining of the appropriate balance between over and under protection of young people in the law. In choosing the chronological age marker of eighteen, the law denies rights to fourteen to seventeen-year-old adolescents who are generally capable of exercising such rights in a thoughtful fashion." Kimberly M. Mutcherson, Whose Body Is It Anyway? An Updated Model of Healthcare Decision-making Rights for Adolescents, 14 Cornell J. L. & Pub. Pol'7 251 (2005).Link to Article (last visited 4-26-06 NVS)
Law Review Article: Custody and Religion
"This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation - no after-school activities, no television, no pets, no reading except schoolwork and the Bible - from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various religious activities that may conflict with the child's dominant religious upbringing. A subquestion is whether courts should enforce earlier agreements about how children should be raised. The overall perspective of the article is that courts should accord parents significant freedom of religious exercise, but should intervene if they think serious mental or emotional harm to a child is likely." (Lexis Nexis) Kent Greenawalt, Child Custody, Religious Practices, and Conscience, 76 U. Colo. L. Rev. 965 Link to Article (last visited 4-26-06 NVS)
Paxil Linked to Birth Defects
"Paxil, an antidepressant drug, may increase the risk of birth defects for pregnant women taking it during the first trimester, the Food and Drug Administration warned last week. The warning comes after Paxil manufacturer GlaxoSmithKline sent the FDA and doctors a letter about preliminary results from a study suggest an increase in the risk of congenital malformations associated with the use of Paxil (paroxetine) as compared to other antidepressants." Legal News Watch Link to Article (last visited 4-26-06 NVS)
Divorce Lawyer Wiretapping?
"A divorce lawyer-to-the-stars who frequently hired the private detective Anthony Pellicano was aware of at least one instance of his illegal wiretapping, an F.B.I. agent has said in a confidential investigative summary seen by The New York Times. In addition, Mr. Pellicano told his girlfriend last year that the divorce lawyer "had received wiretap information" from him in another case, an F.B.I. agent wrote after interviewing her. The divorce lawyer, Dennis M. Wasser, whose clients have included the actor Tom Cruise and the MGM mogul Kirk Kerkorian, is among the most prominent Hollywood figures under scrutiny in the nearly four-year federal investigation of Mr. Pellicano, who was charged in February with wiretapping and conspiracy." By David M. Halbfinger & Allison Hope Weiner, New York Times Link to Article (last visited 4-26-06 NVS)
April 26, 2006
LDS Church Favors Amendment to U.S. Constitution Defining Marriage as between a Man and a Woman
The LDS Church has joined a national religious coalition that is pushing for an amendment to the United States Constitution that would define marriage as between a man and a woman. The LDS Church joined 50 prominent Catholic, Protestant, Orthodox and Jewish leaders in signing a petition explaining why they see a need for such a constitutional amendment. Source. Peggy Fletcher Stack, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited April 26, 2006, reo).
Louisiana Legislators Move to Clarify Covenant Marriage Law
A committee in the Louisiana Legislature sought to clarify the definition of covenant marriage to ensure it is not understood as allowing divorce by mutual consent. According to press reports, the supporters of the legislation want to be certain that someone who reads “Westlaw won’t get the idea you can dissolve a convenant marriage” by mutual agreement. LSU Law School professor Katherine Spaht said a West Formulary, which is used by some as a guide to state laws, contains a "legal commentary" that should not be used as a way to dissolve a covenant message.” She said that divorce by "mutual consent of the parties has never been the law, never been the intent of the law." Source. Mike Hasten, The Daily Advertiser, Lafayette, Louisiana, the advertiser.com. For the complete story, please click here (last visited April 26, 2006, reo).
New York Religious, Civil-Rights Groups Support Gay Marriage in Briefs filed with Court of Appeals
In briefs filed with the New York Court of Appeals, National and state-wide religious and civil-rights organizations are urging the court to strike down state laws that deny gays and lesbians marriage protection. So far, a total of 14 friend-of-the-court briefs have been filed. It is reported that nearly 200 religious organizations, congregations and clergy from throughout New York joined in one brief giving broad support among religions for marriage equality while acknowledging that allowing gays and lesbians to marry will not force religious groups that do not wish to marry them to do so. Groups who signed the brief include Episcopal, United Methodist, Presbyterian, Church of Christ and Unitarian churches, and conservative and reform Jewish temples. The court will hear oral arguments May 31. Source. Peteer Cassels, Edge National News Editor, edgenewyork.com. For the complete story, please click here (last visited April 26, 2006, reo).