Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

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Thursday, December 3, 2009

Pouncy: "Marriage and Domestic Partnership: Rationality and Inequality"

Charles R. P. Pouncy (Florida International University College of Law) has posted "Marriage and Domestic Partnership:  Rationality and Inequality," forthcoming in the Temple Political & Civil Rights Law Review, on SSRN.  Here is the abstract:

The efforts of gay and lesbian communities to regularize their relations resulted in competing claims for same-sex marriageand domestic partnerships. This essay argues that the debate between these two forms of organization is tainted by a reliance on analyses provided by neoclassical economic theory. If the decision about which of these institutions presents the best way to structure the relationships of lesbians and gays is dominated by the notion of economic rationality then marriage seems clearly preferable. However, when the focus is changed from the economic interests of the individual to the health and well being of queer communities domestic partnership emerges as the preferable way of organizing gay and lesbian relationships. Thus, the paper argues that queer communities should invest their resources in the development of domestic partnership as a societal institution. Adopting marriageis more likely to support the male privilege and heterosexism inherent in marriage, and will erode the processes of queer culture.

AC

December 3, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 1, 2009

Renewed Attention to Cousin Marriages

The New York Times featured this article last week reviving a frequently recurring discussion of prohibitions on marriages involving first cousins.  The article largely recaps the same old issues, but I found the perspective fresh as it related to religion's take on such marriages.

AC

December 1, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Thursday, November 19, 2009

Gardina: "The Tipping Point: Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act"

Jackie Gardina (Vermont Law School) has posted "The Tipping Point:  Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act," 34 Vermont L. Rev. (2009) on SSRN.  Here is the abstract:

Using Malcolm Gladwell's book "The Tipping Point" as a jumping off point, this brief article discuss whether the Supreme Court has reached a "tipping point" with regards to equal marriage and its benefits. The article suggests that to determine whether the Court has reached the tipping point — and more specifically, whether the constitutional question has reached the Court at the right time — requires that one look beyond the Court’s precedent and examine the “national conversation.” The article traces other significant shifts in constitutional doctrine and suggests that the Court’s other tipping points have paralleled shifts in societal norms. the article ultimately concludes that the time is not right for a Supreme Court review of the Defense of Marriage Act. The “national conversation” about marriage equality is in its infancy when compared to race and gender issues. Equal marriage remains a deeply divisive issue. A recent poll shows that a majority of Americans are still resistant to extending marriage rights to same-sex couples. A vast majority of states either have constitutional amendments or statutes that explicitly define marriage as between one man and one woman. If the Justices are looking for evidence of a societal tipping point through legislative changes, as they did in Lawrence v. Texas and Loving v. Virginia, they will not find it yet.

AC

November 19, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Friday, November 13, 2009

Threats from the Catholic Church on Gay Marriage

The New York Times reports that Washington's Roman Catholic Archdiocese is beginning to make threats on the gay marriage issue.

The fight over a proposed same-sex marriage law here heated up this week as the Roman Catholic Archdiocese of Washington said that if the law passed, the church would cut its social service programs that help residents with adoption, homelessness and health care.

Under the bill, which has the mayor’s support and is expected to pass next month, religious organizations would not be required to perform same-sex weddings or make space available for them.

But officials from the archdiocese said they feared the law might require them to extend employee benefits to same-sex married couples. As a result, they said, the archdiocese would have to abandon its contracts with the city if the law passed.

The threat is not the first time a religion-based provider of social services has said it would stop providing services in response to a same-sex marriage law, gay rights advocates say.

In 2006, Boston’s archbishop, Sean P. O'Malley, said that Catholic Charities there would stop its adoption-related work rather than comply with a state law requiring that gay men and lesbians be allowed to adopt children.

Read the full article here.

AC

November 13, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 11, 2009

NY Senate Vote on Same Sex Marriage Delayed

The New York Times reports that a vote on gay marriage in the New York legislature has been delayed indefinitely.

Republicans and Democrats said that as of Tuesday afternoon, the measure was still several votes short of the 32 necessary for approval. About five Democrats remained either opposed or noncommittal, meaning that Republican votes were needed to secure passage.

But not enough Republicans have committed to voting yes, legislators said. The Democrats have a 32-30 majority in the Senate.

It was unclear when the Senate would take the issue up. Wednesday is Veterans Day, a holiday, meaning that it would be at least the end of the week before the Senate could vote on the bill.

“Our community has spent the past few years making the case to 62 state senators for why we should be treated equally by the laws of our state,” said Alan Van Capelle, executive director of the Empire State Pride Agenda. “The time for making cases is over. We’ve heard dozens of excuses, and we’ve been told countless times that we’ll have to wait for equality.”

The bill’s sponsor in the Senate, Thomas K. Duane, could not say whether the bill would come to the floor.

“I am optimistic,” Senator Duane said, adding that he was continuing to discuss the matter with his colleagues. “I will keep you posted.”

Read the full story here.

AC

November 11, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Monday, November 2, 2009

The best laid plans of mice and men...

A New York church made famous by Irving's headless horseman tales recently refused to perform a couple's desired Halloween wedding ceremony, which included a black dress costume for the bride and theme music from "The Addams Family" and "The Munsters."  The traditional church wedding ceremony has clearly begun to tire some couples, who want to be more creative and fun.  However, perhaps these couples push the envelope in planning their dream weddings?  For coverage of the smashed Halloween wedding plans, see here and here, and see here for interesting blog commentary.  Of course, such energy and creativity might be more useful in maintaining a marriage, especially when the divorce rate flirts with the 50% mark.

MR

November 2, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 28, 2009

Study: Childhood Cancer Survivors Less Likely to Marry

A recent study suggests that childhood cancer survivors are 20% to 25% less likely to marry compared with their siblings and the general American population.  It is suspected that some of the lingering effects of radiation—such as issues with thinking and memory, growth and physical functioning—seemed to cause these lower marriage rates among cancer survivors.  Lead researcher Kadan-Lottick stated, “While it can be debated whether marriage is a desirable outcome, marriage is generally an expected developmental goal in our society to the extent that most U.S. adults are married by the age of 30.  Our results suggest that survivors of childhood cancer need ongoing support even as they enter adulthood.”

 

                                                   Wedding                              

 MR

October 28, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Friday, October 16, 2009

Interracial Couple Denied Marriage License in Louisiana

I thought I had seen it all in family law.  But this one has still managed to shock me.  The New York Times reports:

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

''I'm not a racist. I just don't believe in mixing the races that way,'' Bardwell told the Associated Press on Thursday. ''I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.''

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

Read the full story here.

AC

October 16, 2009 in Marriage (impediments) | Permalink | Comments (3) | TrackBack (0)

Wednesday, October 14, 2009

California Legislation Recognizes Some Same Sex Marriages

CNN reports on a California bill quietly signed into law on October 11, 2009:

California Gov. Arnold Schwarzenegger has signed legislation that requires the state to recognize same-sex marriages performed in other states while such marriages were legal in California.

California will recognize same-sex marriages from a period of time before Proposition 8 was enacted.

Same-sex marriages performed elsewhere between June 16, 2008, and November 5, 2008, are to be legally recognized, as are in-state marriages performed during that time.

The end date represents when a ballot initiative, Proposition 8, added a ban on same-sex marriage to the state constitution.

Proposition 8 bars the state from recognizing any marriage performed outside the state outside those dates. The state Supreme Court ruled after the proposition passed that marriages performed before the ban would remain on the books.

But Senate Bill 54 splits a legal hair and requires the state to recognize such marriages as "unions," providing "the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state," the governor said.

AC

October 14, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 3, 2009

New Hampshire Allows Same-Sex Marriage

For an analysis, see Constitutional Law Professor Blog here.

RR

June 3, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 19, 2009

Marriage Abolition?

Douglas Kmiec of Pepperdine appeared on the Colbert show advocating a position akin to marriage abolition.  See more on ConLawProf here.

RR

April 19, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2009

Second Parent Adoption, DOMA, and Genetic Child


This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

Glen

 
This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.



RR

April 15, 2009 in Adoption, Alternative Reproduction, Current Affairs, Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 14, 2009

Same-Sex Marriage: New York

According to a NY Times blog here, New York's Governor Paterson will announce on Thursday morning that he intends to introduce a same-sex marriage bill in the NY Legislature.  States bordering New York have legalized same-sex marriage.

State


RR

April 14, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2009

Same-Sex Marriage in Iowa

Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional.

UPDATE:   The opinion is now available as pdf here.

UPDATE:  My analysis is now available on ConLaw Prof Blog here.

RR

April 3, 2009 in Marriage (impediments) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 1, 2009

Same-sex Marriage Updates

UPDATE: Iowa Supreme Court ruling on gay marriage set for release Friday, story here.

                    

It is being widely reported that the Swedish Parliament,

800px-Flag_of_Sweden.svg

in a 261-22 vote, approved same-sex marriage.

Meanwhile in the United States, the Vermont Legislature is set to vote on a same-sex marriage bill, a bill which the Governor has stated he will veto.  Vermont has civil unions for same-sex couples.

In Iowa, the wait for a decision on same-sex marriage from their highest court after oral arguments last December continues, and in New York, the highest court has decided to hear cases regarding New York's recognition of out-of-state same-sex marriages.

In West Virginia, the state legislature did not allow a constitutional amendment banning same-sex marriage to proceed.

RR

April 1, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Thursday, March 19, 2009

Marriage: (re) defined

Many courts resort to the dictionary when trying to decide the "common meaning" of a word, including a word such as "marriage."

According to the online Merriam-Webster Dictionary here:


Picture 1

Note definition 1a(2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage <same-sex marriage>.

There is apparently some controversy, reported over at  Pam's House Blend.


RR

March 19, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2009

Marriage Developments - - - abolition or inclusion?

Perhaps the solution to the "marriage wars" is the abolition of marriage?  It's a proposal that has been made from different theoretical perspectives in years past, but of late it has been garnering attention.  TIME MAGAZINE picked up a piece published earlier this month in the SF Chronicle authored by two Pepperdine law profs who recommend that the California Supreme Court in Strauss v. Horton (the Proposition 8 case, see more here),

Direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent.

Interestingly, there is also anew California Initiative, blogged over on ConLawProf here, that

Replaces the term “marriage” with the term “domestic partnership” throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation.

Meanwhile, the Vermont legislature which passed its civil union law for same-sex couples after Baker v. State,  is considering opening marriage to same-sex couples, according to the NYT here.

RR

March 18, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Thursday, March 5, 2009

Proposition 8 Arguments

Today, the California Supreme Court heard oral arguments for three hours on the challenge to California's Proposition 8.   I've blogged about the arguments on ConLawProf here.

RR

March 5, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2009

DOMA section 3 Challenge Filed

90pxgay_wedding_a_by_stefano_bologn Gay & Lesbian Advocates & Defenders (GLAD) filed a 92 page complaint today in the US District Court for Massachusetts.  Same-sex marriage has been recognized as a matter of state law in Massachusetts since the state’s highest court decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

I've discussed this over at the Con Law Prof Blog here.

RR

March 3, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2009

Same-Sex Marriage Op-Ed

An interesting op-ed in the New York Times on same-sex marriage - - - and what makes it interesting is its authors:

David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.”

The op-ed calls, predictably enough given its joint authorship, for a compromise:

clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.

Assigning students to research op-eds or read particular ones can bring current policy debates into our study of cases.  And having law students write an op-ed - - - or perhaps two op-eds, one on each side - - - can be a great writing exercise and method of learning to articulate policy.   

RR

February 22, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)