Thursday, June 12, 2008

Same-Sex Marriage and Legal Writing Problems

Thousands of same-sex couples will start to marry in a few days in California.  This development is for me (and for many readers of this blog) a wonderful event, no matter what your sexual orientation or affectional preference may be.

Because California does not require people who marry there to be residents of California, this development will raise many legal issues that didn't arise with same-sex marriage in Massachusetts.

Many of these legal issues will make excellent legal writing problems.

Here's one as an example.

A same-sex couple marries next week in California.  (Maybe they have a kid, maybe not -- depends on how complicated you want your fact pattern to be).

Sometime later, one of the partners in that marriage empties the bank account and moves to a state (insert name of jurisdiction that has a statute or a state constitutional amendment against same-sex marriage).  If your fact pattern includes a child, he (or she) takes the kid along too.  Basically have the character empty teh bank account and bring along some other "marital property" as well. 

The left-behind partner sues the absconder in that state's state court for taking the marital assets (and the kid).  The absconder raises that state's statute or constitutional amendment against same-sex marriage, and argues that the state cannot grant any relief because to do so would recognize same-sex marriage in violation of the state statute or constitutional provision.

That's a basic fact pattern -- I am not writing more here because this is a blog and your students may come across this post with their most trusted legal research source (Google).  But you can see the problems here -- it is so obvious that the guy who ran off with the money (and kid) should not get away with that, but to provide any remedy may violate state law.

If you would like some background information on same-sex marriage, I would encourage you to have a look at an article I wrote just before same-sex marriages began to be performed in Massachusetts.  The article goes through some of the arguments and issues that you (or your students) may come across if you use an aspect of same-sex marriage in one of your writing problems next year. 

Here's a link to where you can download the article.  It will give you some useful background and some of arguments surrounding same-sex marriage.

And here is another great resource.  It's a memorandum about litigating same-sex marriage isssues in other jurisdictions.

Congratulations to any of our readers getting married next week in California.  With luck, your home state will recognize your marriage when you get back home.  (For example, by judicial decision and gubernatorial decree, New York will recognize a same-sex marriage from California.)


Click here for information on the Pink Ink Caucus of the Legal Writing Institute.

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