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217 posts categorized "Marriage"

October 26, 2011

Brazilian appeals court orders issuance of marriage license for lesbian couple

The law of relationship recognition continues to expand for same-sex couples in Brazil. In May, Brazil's Supreme Court ruled that a gay couple could be recognized as a "stable union" under Brazilian law. Stable union is roughly equivalent to common-law marriage; it has frequently been labeled in the English language press (as below) with the American terminology of "civil union."

In June, a state-level trial court ruled that gay couples who were in a recognized stable union could convert that status to marriage, as different-sex couples in a stable union can do. Since then, the rulings on the right to change the status have been inconsistent; the appellants in the case decided today had been denied that right by the trial court that heard their case.

The new decision is the first at an appellate level to uphold the right of same-sex couples in a stable union to convert that to marriage. If this case is appealed and the decision affirmed, the right to marry will be established throughout the country.

From Pink News:

Gay activists in Brazil are celebrating today after a senior appeals court upheld that a lesbian couple can legally marry. It is the highest court in Brazil to uphold a same-sex marriage – and comes less than six months after the South American country first granted civil unions...

The pair, like many others, previously had their applications blocked at two earlier stages in lower courts, but – in a 4-1 vote yesterday – the Supreme Appeals Court ruled that the Constitution "makes it possible for stable civil unions to become marriages". 

According to the Associated Foreign Press, the court also added that: "sexual orientation should not serve as a pretext for excluding families from the legal protection that marriage represents."


October 25, 2011

Denmark (and its official church) set to legalize gay marriage

I have to confess that I didn't realize that Denmark has an official state religion - the Church of Denmark - administered by public employees, supported by taxes, and with policies subject to the decisions of the secular state. How does a society set up in that way navigate the issue of same-sex marriage?  See below, from the Copenhagen Post:

...The government plans to introduce a bill just after the New Year that will allow same-sex couples to hold weddings in the Church of Denmark and be ‘married’ under Danish law. Same-sex couples are currently allowed to have ‘registered partnerships’, a civil status, but are barred from marriage and church weddings.

“The first same-sex weddings will hopefully become reality in Spring 2012. I look forward to the moment the first homosexual couple steps out of the church. I’ll be standing out there throwing rice,” the new church minister, Manu Sareen, a Social Liberal, told Jyllands-Posten newspaper...

In 1989 Denmark became the first country in the world to legalise civil unions between same-sex partners. But the country stopped short of calling it “marriage” and same-sex couples still are not allowed to have marriage ceremonies in the Church of Denmark.

Polls taken over the years, and right up until last week, have consistently shown that around 69 percent of the population supports same-sex marriage in the church. The Danish clergy and politicians have lagged behind popular opinion, however.

A 2004 poll revealed that less than 40 percent of the clergy in the Church of Denmark supported same-sex marriage – a more than 30 percentage point difference from the general population. Moreover, bills to legalise same-sex marriage were voted down by parliament several times.

But the outlook may be different now that the centre-left has assumed power after ten years in opposition and has appointed a church minister whose beliefs and religious habits more closely resemble those of most Danes...

Less than five percent of Danes today attend church services on a weekly basis, yet 80 percent are – like Sareen – registered members who pay taxes to support it, but who only rarely attend services. This year alone, the Church of Denmark will receive an estimated 5.9 billion kroner in taxes from its registered members, plus additional tax-supported state subsidies equalling 130 kroner for every single citizen, regardless of religious affiliation, sexual preference, or other beliefs.

Helene Devantié, the chair of Kirketjenerforening, the association for church employees, was willing to allow for same-sex marriages in the Church of Denmark, but only as long as church employees could choose, on an individual basis, whether or not to serve same-sex couples.

“The churches should have the option of creating local agreements, so that the employees who have ethical or moral problems with homosexuals marrying can exempt themselves,” she said.

Devantié’s demand raised questions about whether church employees – public employees, whose salaries are paid by taxes – should have the right to refuse service to certain citizens, just because they disapprove of their lifestyles or personal attributes.

Minister Sareen said church employees who are set against marrying homosexuals would not be forced to conduct same-sex ceremonies. “But we must also make it possible for homosexuals to marry in the church,” he added.

October 18, 2011

Gay marriage advocates may place issue on Oregon ballot

In a switch of tactics reflected in the growth in support for legalization of same-sex marriage that is shown in public opinion polls, pro-gay - rather than anti-gay - forces may put the issue before voters in Oregon next year. From the Eugene, OR Register-Guard:

...After a two-year “public education campaign” that has included three waves of network and cable television ad campaigns — one of which is just ending — a radio ad campaign on some of Oregon’s Spanish-speaking stations, and tens of thousands of direct mailers and phone calls targeted at moderate and undecided voters, Basic Rights Oregon’s board will soon make a decision on whether to put forward a ballot measure for the November 2012 election to overturn Oregon’s 2004 constitutional ban on same-sex marriage.

That year, almost 57 percent of Oregon voters approved Measure 36, a constitutional amendment defining marriage “as the union of one man and one woman.”

Although six states recognize gay marriage, including New York and Iowa where the change was made this year, no state has yet adopted it through a vote of the people.

Jeana Frazzini, executive director of Basic Rights Oregon, said the decision to go to the ballot will be based on a number of factors, including final polling numbers the organization collects, surveys of its supporter base, and an assessment of the anticipated political environment next November.

“Since 2009, we’ve engaged Oregonians in a discussion about the freedom to marry,” Frazzini said in a recent interview. “Whereas voters had previously only seen the two sides yelling in the middle of a political fight, we were more focused on having a calm discussion ... and we’ve seen tremendous progress.”

However, Frazzini acknowledged that “there is no real science to understanding the dynamics of an election a year out” and added that the organization will only proceed if indicators give them a good chance of success.

“It’s a question of when, not if, we move forward,” she said. “But we understand that an emotionally and financially draining defeat is not the path to victory.”

The Oregon Family Council, the organization that spearheaded efforts to pass Measure 36 in 2004, has been monitoring Basic Rights’ campaign, spokeswoman Teresa Lucas said, and the group’s leaders are hoping Basic Rights does not put forward a measure.

“We’ve seen them spending hundreds of thousands of dollars on getting their message out, without opposition,” Lucas said. “But this is a bad time for this fight: We should be focusing on the economy ... (A ballot measure) would cost millions of dollars and divide us as Oregonians.”

In 2004, supporters of Measure 36 spent nearly $2.5 million on their campaign while opponents spent almost $3 million. Both sides said they expect to spend “much more” if the issue goes to the ballot in 2012. Frazzini did not disclose how much Basic Rights Oregon has spent on its two-year education campaign.

Recent polls, nationally and in Oregon, have shown that acceptance of gay marriage is growing. Earlier this year, a Washington Post-ABC News poll found that, for the first time, a slim majority of Americans, 53 percent, believe gay marriage should be legal, up from 37 percent in 2003. Two recent surveys in Oregon found support to be at 48 and 45 percent, respectively.

“The public has undeniably become more accepting of (same-sex marriage), though that’s different from being proactively supportive of it,” said Tim Hibbits, a Portland-based independent pollster...

Lucas of the Oregon Family Council said that anytime one side of a debate presents its position with no response from the other side, “it’s going to shift the numbers.”

“I don’t know if that (polling) has emboldened (supporters) and if they know that we’re still here, but we will fight them on this just as hard as we did in 2004,” she said...

Independent pollster Hibbits said the eventual legalization of same-sex marriage in Oregon seems inevitable to him, given that polls show that younger voters are far more tolerant on the issue.

“It’s a reality of politics, not my opinion, that we’re headed to that legalization in the next five to 10 years,” he said. “Gay-marriage supporters are going to win this battle in the long- to mid-term.”

Given that changing voter dynamic, Hibbitts said supporters would be ill-advised to risk a defeat at the ballot now if their polling doesn’t give them a healthy lead. “If it’s a 50-50 deal, I don’t know why you would risk defeat,” he said.

October 10, 2011

Guidance available on the legal effects of same-sex marriage in New York

Last week, the Association of the Bar of the City of New York held a program on What Passage of the Marriage Equality Law Will Mean for Same-Sex Couples in New York. Speakers covered a broad range of issues affecting the everyday life of New Yorkers: employee health and retirement benefits, estate planning, tax, portability of marital status (to other states), immigration, divorce and property allocation, and parenting issues such as adoption and custody.

Now the materials that were distributed are available on the City Bar's web page. Most track the issues listed above, but there is also an important contribution by Lambda that goes beyond the typical discussions: an extensive booklet on the impact of the new marriage law on low-income lgbt couples and families in New York. Kudos to Lambda!

September 26, 2011

The anti-gay marriage attack on Iowa's Supreme Court

The American Prospect has the backstory on the campaign that defeated three justices of the Iowa Supreme Court in their retention campaigns as payback for votes to allow same-sex couples to marry:

The Iowa Supreme Court publishes, on average, a little more than 100 decisions a year. Each ruling goes online first thing Friday mornings. When Varnum v. Brien went live at 8:15 A.M. April 3, 2009, the court’s website crashed when more than a million visitors tried to read the opinion. In a unanimous decision, the seven supreme court justices--five Democratic and two Republican appointees--had ruled that Iowa’s ban on marriage for same-sex couples violated the equal-protection clause of the state constitution. When county clerks began issuing marriage licenses three weeks later, Iowa became the third state with legalized same-sex marriage...

Opponents of gay marriage... were dismayed. None more so than Bob Vander Plaats, who had risen early that morning and driven three hours to join several evangelical pastors in praying outside the supreme court building... 

Vander Plaats lost the Republican nomination for governor [in 2010], but Varnum gave him the issue he had always been looking for. A year after the decision, he mobilized an unprecedented attack against Iowa’s judiciary, which had been known for its lack of partisanship. With assistance from a powerful evangelical organization from out of state, he exploited an obscure clause of judicial selection and mounted a full-throttle assault against the supreme court judges who legalized same-sex marriage. No laws changed, but three of the judges lost their positions. The state’s progressive community is still grappling with the question: How did a fringe political candidate upend what had once been a model of judicial independence?...

The state owes that reputation [for nonpartisan courts] to its 1962 adoption of the “Missouri Plan” for placing judges on the bench. Under the system, a panel of 15--seven selected by the governor, seven by the bar association, plus a sitting state supreme court justice--interviews potential judges on their experience and knowledge of the law. The panel is barred from asking interviewees their political affiliation. The governor picks from three finalists. Supreme court justices go on the ballot at the first general election after they are selected and every eight years after. Until 2010, Iowa’s retention votes had always been ho-hum affairs. Only four lower-court judges had ever lost a retention vote, in each case because they were accused of malfeasance. A campaign had never been waged against a supreme court justice...

After [the] hearing [in Varnum], the justices [met] in a small conference room on the fourth floor of the supreme court building. ...Justice Mark Cady, one of the two Republican appointees, had been randomly selected to write the majority opinion on the Varnum case, which meant that he would speak first. If any of the justices were going to find fault in the plaintiffs’ interpretation of the constitution, it would likely be Cady, the strictest constitutionalist of the group. After laying out both sides’ arguments, Cady announced he was ruling in favor of the plaintiffs. The justices went clockwise around the granite-topped table. They did not agree on every legal point, but after two hours, all of them had sided with the plaintiffs. “We went around the table, and we just pushed back and said, ‘Jeez, this is going to be unanimous.’ We were just shocked,” a justice later told me.

Continue reading "The anti-gay marriage attack on Iowa's Supreme Court" »

September 24, 2011

National Single and Unmarried Americans Week ends

Gay marriage is having the effect of spotlighting single - and it seems from this article, implicitly straight - people in this NY Times article:

About 100 million Americans, nearly half of all adults, are unmarried, according to the Census Bureau — yet they tend to be overlooked by policies that favor married couples, from family-leave laws to lower insurance rates.

That national bias is one reason gay people fight for the right to marry, but now some researchers are concerned that the marriage equality movement is leaving single people behind.

“There is this push for marriage in the straight community and in the gay community, essentially assuming that if you don’t get married there is something wrong with you,” says Naomi Gerstel, a sociologist at the University of Massachusetts in Amherst who has published a number of papers comparing the married and unmarried.

“But a huge proportion of the population is unmarried, and the single population is only going to grow. At the same time, all the movement nationally is to offer benefits to those who are married, and that leaves single people dry.”

Yet as she and other experts note, single people often contribute more to the community — because once people marry, they tend to put their energy and focus into their partners and their own families at the expense of friendships, community ties and extended families.

In a report released this week by the Council on Contemporary Families, Dr. Gerstel notes that while 68 percent of married women offer practical or routine help to their parents, 84 percent of the never-married do. Just 38 percent of married men help their parents, compared with 67 percent of never-married men. Even singles who have children are more likely than married people to contribute outside their immediate family.

“It’s the unmarried, with or without kids, who are more likely to take care of other people,” Dr. Gerstel said. “It’s not having children that isolates people. It’s marriage.”

The unmarried also tend to be more connected with siblings, nieces and nephews. And while married people have high rates of volunteerism when it comes to taking part in their children’s activities, unmarried people often are more connected to the community as a whole. About 1 in 5 unmarried people take part in volunteer work like teaching, coaching other people’s children, raising money for charities and distributing or serving food.

Unmarried people are more likely to visit with neighbors. And never-married women are more likely than married women to sign petitions and go to political gatherings, according to Dr. Gerstel.

The demographics of unmarried people are constantly changing, and more Americans are spending a greater percentage of their lives unmarried than married. While some people never marry, other adults now counted as single are simply delaying marriage longer than people of their parents’ generation did. And many people are single because of divorce or the death of a spouse. About one-sixth of all unmarried adults are 65 and older; nearly one-eighth of unmarried people are parents...

Bella DePaulo, a visiting professor of psychology at the University of California, Santa Barbara, has a term for discrimination against single people, which she calls one of the last accepted prejudices. It is the title of her new book, “Singlism: What It Is, Why It Matters and How to Stop It.”

As an example, Dr. DePaulo cites the Family and Medical Leave Act. Because she is single and has no children, nobody in her life can take time off under the law to care for her if she becomes ill. Nor does it require that she be given time off to care for a sibling, nephew or close friend.

Stephanie Coontz, director of research for the Council on Contemporary Families, says policy makers often neglect the needs of single people because their view is outdated — based on the way they themselves grew up. In researching her latest book, “A Strange Stirring: The Feminine Mystique in American Women at the Dawn of the 1960s,” Coontz found that in the past single people were often called “deviant,” “neurotic” and “selfish.”

“We do have the tendency to think that there is something special about married people, and that they are the ones who keep community and family going,” she said. “I thought it was important to point out that single people keep our community going, too.”

September 17, 2011

Britain announces consultation to be followed by legislation for same sex marriage

The British government announced Saturday that an official consultation on reforming the marriage laws will begin next March. From The Guardian:

...The equalities minister, Lynne Featherstone, said that the launch of a formal consultation in March 2012 would allow any necessary changes of legislation to be made this side of the 2015 general election.

A Home Office spokesman said that the consultation on reforming the marriage laws would only cover civil marriage for same sex couples and not religious marriage. Ministers have ruled out making it compulsory for churches or other faith groups to host gay or lesbian marriages.

The Home Office also made clear that one option that will not be included in the formal consultation on reforming the marriage laws is giving heterosexual couples reciprocal rights to civil partnership ceremonies.

Featherstone said that the necessary regulations to allow the first gay or lesbian civil partnership to take place on religious premises would be introduced to Parliament before the end of the year.

The formal consultation on the marriage laws was originally envisaged to have started in May this year but reservations voiced by the Church of England and the Roman Catholic church are believed to have sparked further talks within Whitehall.

The agreement to set a date of March 2012 to begin the consultation could put the reforms back on track. It will be the first time that any British government has formally looked at full marriage rights for gay and lesbian couples.

"I am delighted to confirm that early next year, this government will begin a formal consultation on equal civil marriage for same-sex couples," said Featherstone. "This would allow us to make any legislative changes before the end of this parliament," she said.

The change would affect England and Wales but not Scotland or Northern Ireland.

The proposal to enable full equality of civil marriage and civil partnerships for same-sex couples has been welcomed in the past by Quakers, Liberal Jews and Unitarians but the Anglicans and the Roman Catholics have been less enthusiastic. Leading figures in the Church of England have been uncomfortable with the idea that civil partnerships should be equated with full marriage...


Positive trend, deep conflict and major ambivalence reflected in opinion poll on marriage

The most recent opinion poll on relationship and marriage rights for same-sex couples illustrates what a cat's cradle this issue is right now. Associated Press, which co-sponsored the poll with the National Constitution Center, reports that 

  • 53% favor relationship recognition with equal rights; 44% oppose
  • 42% favor states allowing same-sex marriage; 45% oppose
  • 48% favor a constitutional amendment banning same-sex marriage; 40% oppose

A CNN poll in April found that 51% of the public answered yes to the question: "Do you think marriages between gay and lesbian couples should be recognized by the law as valid, with the same rights as traditional marriages?" Three years ago, the figure was 44%.

The AP report also found:

Most Americans who live in states where gay marriage is not already legal say it is unlikely their state will pass such a law; just 20 percent think it is likely to become law in their state...

Americans also are conflicted on how to go about legalizing or outlawing gay marriage. ...About half of the poll's respondents, 48 percent, said they would favor [a constitutional] amendment defining marriage as between a man and a woman. Most who feel this way do so intensely. About 40 percent would strongly favor such a change. Forty-three percent said they would oppose such an amendment, and 8 percent were neutral, according to the poll.

Most - 55 percent - believe the issue should be handled at the state level, however, and opinions on how states should act are split. People are about evenly divided on whether their states should allow same-sex marriages - 42 percent favor that and 45 percent are opposed - and tilt in favor of state laws that allow gay couples to form civil unions - 47 percent in favor, 38 percent opposed and 13 percent neutral, according to the poll.

Nearly 6 in 10 (57 percent) in the poll ... said same-sex couples should be entitled to the same legal benefits as married couples of the opposite sex. Forty percent felt the government should distinguish between them.

The poll ... suggests that opponents of same-sex marriage were far more apt to say that the issue is one of deep importance to them. Forty-four percent of those polled called it extremely or very important for them personally. Among those who favor legal marriage for gay couples, 32 percent viewed the issue as that important.

ADDITION - Today's N Y Times describes a poll mostly concerned with national political issues that also contains a deeply buried question (# 89 on page 23) about relationship recognition. It found that

  • 38% support the right to marry
  • 27% support civil unions but not marriage
  • 28% oppose any legal recognition

The accompanying article states that just under 60% of Republicans fall into the first two categories. (The party identification for this question isn't in the poll document itself.)

September 10, 2011

Notes from Lavender Law in Los Angeles

OK, posting the photo at right may be silly, but Photothis example of the LA school of urban sculpture looms over the hotel where the Lavender Law Conference just wrapped up, so I've had to look at it for several days running. And it's a scene too absurd not to memorialize.

More seriously, on to a few thoughts inspired by the conference:

I spoke on a panel on popular constitutionalism, where Michael Boucai, Kim Buchanan, Praveen Fernandes, Amanda Frost, and I discussed the tension between expansion of the devices of direct democracy (including ballot referenda and judicial elections) and the risks they pose to unpopular minorities, as well as the kinds of mediating institutions (a very different structure for campaign finance, for starters) that could mitigate the downsides. California is obviously the example of direct democracy run amuck, but the question of how to preserve the value of popular constitutionalism without repeating California craziness is not necessarily easy.

Although many people see Prop 8 as irrefutable evidence of why popular constitutionalism is a seriously bad theory, I think it's more complicated than that. A vote to eliminate a fundamental right from a group classified on a suspect basis is pretty squalid. On the other hand, if Prop 8 itself were eliminated by popular vote rather than by a judicial ruling, that arguably would be a far more powerful embedding of the norms of equality and dignity into the bloodstream of the body politic. The prime strategy chosen (but by whom and for what reasons?) was to seek relief before the federal judiciary. Now the existence of that lawsuit plus the staggering cost of mounting an initiative campaign in this state virtually precludes any chance of opting for an electoral strategy.  I'm not prejudging the debate; I can imagine deciding to take either route after weighing all the pro's and cons. (NB - I would frame the constitutional claims in the way that the City of San Francisco has, which is different from the framing by lawyers for the individual plaintiffs.) But it would have been nice to try to think through those questions before the proverbial train left the station. 

This morning, as part of a panel on family law, James Esseks of the ACLU described ballot measures that are likely in the future, noting that 2012 may mark the first time that pro-lgbt advocates place a same-sex marriage question before voters. At this point in time, only one ballot measure is certain.  In Minnesota, a provision to amend the state constitution to ban same-sex marriage will be on the ballot. Such a provision may also go to voters in North Carolina.

In Maine and Oregon, though, there could be ballot questions in 2012 that would repeal bans previously adopted by voters. Advocates in Maine have already begun collecting signatures in a petition campaign, and Basic Rights Oregon is seriously considering whether to do so. To both stop an anti-gay law in either Minnesota or North Carolina, and to repeal an existing anti-gay law in either Maine or Oregon - by popular vote - would mark another turning point on this issue, politically if not legally.

In general, advocates have come to assume that legislative adoption of a marriage equality law will not end the debate in any given state. If any mechanism for a popular vote to amend the state constitution exists, they assume that gay marriage opponents will use it. This means that a legislative strategy is incomplete without first doing the same kind of opinion polling and other prep work that go into an election campaign. So, for example, the strategy to enact a marriage bill in a state like Maryland, where legislative adoption may be possible in the next few years but which also has a referendum mechanism, will include grassroots election campaign style work and not just the efforts required to lobby members of the state legislature. Enacting a marriage equality law is only the first step; whether the law endures will depend on whether it can be sustained by popular vote. 

Popular constitutionalism.

September 07, 2011

California Supreme Court appears likely to find Prop 8 proponents have standing

By all press accounts that I've seen, the California Supreme Court sent signals during yesterday's oral argument to expect a ruling that Prop 8's proponents should be accorded standing to defend its constitutionality. Although predicting an outcome from the tone of oral argument is often hazardous, this outcome - if it materializes - will not be much of a surprise, given past cases in which this court has allowed ballot measure proponents to participate in litigation. 

The plaintiffs in Perry v. Brown want the state supreme court to advise the Ninth Circuit that the proponents cannot defend Prop 8, in the hopes that this will effectively cut off any way that the federal trial court's decision can be appealed. A neat trick, but perhaps too much of a trick, at least in the eyes of the state court.

How the Ninth Circuit will rule on the standing question, when the case returns there, is a more difficult call, not least because there will probably be at least two rounds in the Ninth Circuit on this issue: first before the three-judge panel and then before an en banc panel. After that, since the standing issue will be preserved on appeal no matter what the decisions are from lower courts, the U.S. Supreme Court may well have the last word.

From the L A Times:

The California Supreme Court appeared ready Tuesday to rule that the backers of Proposition 8 and other ballot measures have the right to defend them in court...During an hour of oral arguments, several justices appeared skeptical that only elected state officials may defend measures passed by voters, as gay-rights lawyers claimed...

Justice Ming W. Chin observed that the power of the people to enact laws would be curtailed if initiatives could be blocked in court every time officials refused to defend them. "So the attorney general and the governor get to pick the laws they want to enforce?" asked Chin, a conservative on the court.

Justice Joyce L. Kennard, one of the court's more liberal members, appeared to agree. Denying initiative sponsors the right to appeal, she said, would be "nullifying the great power that the people have reserved for themselves" and "would not promote principles of fundamental fairness."

"What we are going to hold is not limited to gay issues," Kennard said. "Our holding will apply to any other circumstance when proponents of initiatives are asserting standing" — the legal term for the right to bring a case in court...

During Tuesday's hearing, Chief Justice Tani Cantil-Sakauye suggested that there would be no one to "safeguard the precious power" of citizen initiatives if their sponsors were not allowed to defend them. "Doesn't that make the initiative process illusory?" she asked.

Justice Carol A. Corrigan pointed out that the courts, not the governor or the attorney general, are supposed to decide a law's constitutionality. She asked whether elected officials have "pocket vetoes" over voters.

The state high court has long allowed sponsors to defend ballot measures, but has never before ruled on whether they have an automatic right to do so..

Justice Kathryn Mickle Werdegar suggested the California high court could avoid making a specific rule and simply write a decision that explained the practice of permitting initiative sponsors to intervene in court cases. Allowing both state officials and initiative sponsors to represent California could spark confusion, she implied. "Can there be two entities that represent the state in federal court?" she asked. Justice Marvin R. Baxter indicated that would pose no problem. "There need not be one unified message," Baxter said.

Justice Goodwin Liu, a UC Berkeley law professor sworn in last week as the court's newest justice, ...said it seemed as though the California court was being asked to rule on an issue that had relevance only for the federal courts.

Report from San Francisco Chronicle after the jump

Continue reading "California Supreme Court appears likely to find Prop 8 proponents have standing" »

August 30, 2011

The big picture: marriage itself continues to evolve, with a big push from economics

Following is the transcript from a PBS News Hour segment on "the new geography of marriage;" video here. Both experts being interviewed, who come from quite different political vantage points, agree that divorce rates are driven in significant measure by economics, a pattern that gets reflected geographically in state-by-state comparisons. There is also a broader societal shift in marriage norms, which both different-sex and same-sex couples share.

Extrapolating from these data, one prediction is that we will see significantly higher divorce rates among same-sex couples who are struggling financially (which will be mapped as those who tend to live in the South and West, where the average income is lower) than we will see in same-sex couples who are more economically secure. 

[RAY SUAREZ] Among the newly-released studies is a first-of-its-kind Census Bureau analysis of marriage and divorce rates by region. The report, published last week, found that the South and West had the highest rates of divorce, while the Northeast ranked the lowest of the four regions. 

At the same time, the number of unmarried Americans has reached a historic high, as the census also found that 30 percent of Americans have never been married, the largest percentage in the past 60 years. And yet another census snapshot released by the Williams Institute at the University of California, Los Angeles, found that same-sex couples have dispersed from urban enclaves to other parts of the country. 

Joining us now to look at what all this may mean for the institution of marriage and its role in American life are David Blankenhorn, founder of the Institute for American Values, and Elaine Tyler May, professor of American studies and history at the University of Minnesota. 

David Blankenhorn, are we in the midst of a redefinition of American marriage, why people get married, when they do it in their lives, even where they do it and what they think it's for? 

DAVID BLANKENHORN, Institute for American Values: Yes. 
I think the shift in broad terms is toward -- for marriage as an institution to marriage as a private relationship, an option for a private relationship. You know, in our parents and grandparents' generation, when you got married you were joining an institution that had authority, told you the rules. You were supposed to act in accord with its procedures. Now the shift is toward private ordering. Each individual couple defines the relationship for themselves. One way to think about it is, in an earlier day, the marriage vow defined the couple. And now it's really the couple defining the marriage vow... 

RAY SUAREZ: Professor May, you have been writing about marriage for decades. Do you buy that definition, couples, rather than submitting themselves to established ideas, shaping marriage for themselves? 

ELAINE TYLER MAY, University of Minnesota: Well, I don't think it's that new, really, that couples have been shaping the institution of marriage. I think what's different is that people don't need to marry anymore for the same reasons that they did in the past, and that there have always been changes in the patterns of marriage demography for the last 100 years or so, and longer ago than that. 

...[W]hat we see today is a very different kind of pattern... But we have to think about all the changes that have happened in the society..., women being able to work at jobs that they used to have no access to.... I think what we're seeing now is ...people are marrying because they want that sense of commitment, they want that sense of citizenship that marriage confers, and they want to express themselves as part of a couple that is committed to each other by love. 

RAY SUAREZ: David Blankenhorn, when you look at these statistics, unprecedented numbers of people, well, in recent history reaching 30, 40 and 50 without ever having been married, not divorced, but without ever, ever having been married, large numbers of people choosing to have children inside unions that they make outside of marriage. Are you saying that we're in a new place, or do you accept Professor May's idea that -- just sort of taking a snapshot for an institution that's always changing? 

DAVID BLANKENHORN: Well, the institution is always changing. That's true. But we are in the middle of a definable long-term shift away from the authority of the institution. The most fundamental sign of this, I think, in terms of social meaning is that, several generations ago, a majority of Americans said that, if you're having trouble in your marriage, you should stay together for the sake of the children. 

And now a majority of Americans say that you shouldn't do that; that's a bad idea. So, another -- a related issue is the, really, breaking of the link between marriage and childbearing. It used to be that you would never -- you know, having a child outside of marriage was frowned on by society. You really wanted to avoid that.

Now it's perfectly acceptable among many Americans. So [in] this shift away from the institutional authority of marriage..., I think the profoundest consequences have to do with the living arrangements of children, but it has to do also with just a new way that we're thinking about what it means to be married. 

RAY SUAREZ: Professor May, a lot of the new data has to do with where things are happening, gay couples moving outside of enclaves to suburban collar counties, the marriage statistics coming in from the South and West showing persistently higher rates of divorce than in the Northeast and Middle Atlantic. Talk a little bit about what you see when you look at a map of America. 

ELAINE TYLER MAY: Well, I think what we see is what we have always seen. And that is that, when people are in economic distress, they're much more likely to face marital tensions and much more likely to divorce. And we have large numbers of people in poverty and in stressful economic situations in the South and the West, more so than in the Northeast. And I think that explains a lot of what we're seeing here. 

I think what we have to watch out for is the notion of cause and effect. And you often hear that, when people have marriages that fall apart, that is a cause of poverty. Well, it is for women and children, for sure, because they have a harder time supporting themselves, but the fact is that it's poverty itself and economic stress that causes divorce in the first place. 

And that's why I think we're seeing more of it in these areas where there are greater concentrations of people who are struggling. Now, as far as gay couples are concerned, I think it's clear that, as the country has become more gay-friendly all over, that gay people have felt that it was OK to live wherever they wanted to and be accepted... 

RAY SUAREZ: Let me go back to David Blankenhorn for a response. What do you see happening geographically with American marriage, both in divorce and gay households? 

DAVID BLANKENHORN: I agree with what Professor May says. I would add to the issue of more poverty in the high divorce states, you also have younger people, people with lower levels of education and higher rates of geographical mobility. And all of those factors, plus low-income, correlates with more family instability. 

...[A]nd I agree on the issue of the sort of mainstreaming, you know, the acceptance of gay and lesbian people, gay and lesbian relationships, and the sort of breaking up of the enclaves. Gay and lesbian people now can live anywhere they want to live. And I think that's what we're seeing in these numbers.

August 24, 2011

Will marriage make a difference in will contests?

From Keen News Service:

One obituary described Ellyn Farley as a happy, studious, pet-loving attorney married to her spouse Jennifer Tobits and only “reluctantly” wearing dresses to attend Mass. The other described her as a fierce litigator and champion to the underdog, survived by her parents, her brother, various aunts and uncles, a godmother, and “good friends for life who will be in her heart forever, Jennifer and Nancy, of Chicago; and numerous cousins and other devoted friends.”

The first was published in the Chicago Tribune, the city where Farley lived with her spouse Jennifer Tobits. The latter was published in the Roanoke Times, in Virginia, where Farley grew up. The first was drafted by one of the lesbian couple’s friends and was reviewed and edited by Tobits. The latter was coordinated by Farley’s parents who, according to Tobits, did not consult her about its contents. The first makes clear that Farley was married to a woman; the latter scrubs that reality out of her life story.

Now, Farley’s surviving spouse, Jennifer Tobits, and her parents, Joan and David Farley, are squaring off in two different courts over their different portrayals of Farley. In probate court in Illinois, they are fighting over Farley’s will. In a federal court in Pennsylvania, where Farley’s law firm is headquartered, they are trying to influence a judge’s determination of who should properly receive the benefits of Farley’s profit-sharing plan.

“This is the new era,” said Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights. “We are all familiar with hearing stories about parents stepping in and not honoring their children’s relationships and trying to take all the assets. Now that so many couples are in marriages or civil unions or domestic partnerships, it’s still happening; but we have a degree … of legal protections that we didn’t have before.” But in this new era of litigation, Minter said, “there is a lot of confusion” caused by the federal Defense of Marriage Act (DOMA).

DOMA is the federal law that prohibits the federal government from recognizing marriages between same-sex couples...Farley’s parents, represented by the right-wing Thomas More Society, a pro-life law firm, say DOMA precludes the courts from awarding any of Farley’s death benefits to Tobits. Minter of NCLR, which is representing Tobits, says DOMA does not apply to private employers, such as Farley’s law firm.

Continue reading "Will marriage make a difference in will contests?" »

SCOTUSblog hosts debate on constitutionality of marriage exclusions

Over at SCOTUSblog, there is yet another symposium/debate on gay marriage, specifically on whether/when/how and why laws banning it or barring recognition of it are likely to hit the dust. Combatants include 

Carlos Ball – Rutgers University School of Law

Bob Barr -  Former Representative for  Georgia’s Seventh Congressional District

Thomas Berg – University of St. Thomas School of Law

Dale Carpenter – University of Minnesota Law School

Erwin Chemerinsky – UC Irvine School of Law

David Cruz – USC Gould School of Law

William C. Duncan – Marriage Law Foundation

John Eastman – Chapman University School of Law

William Eskridge – Yale Law School

Maggie Gallagher – Institute for Marriage and Public Policy

Charles Fried – Harvard Law School

Andrew Koppelman – Northwestern University School of Law

Pamela Karlan – Stanford Law School

Robert Levy – Cato Institute

Laurence Tribe – Harvard Law School

Brian Raum – Alliance Defense Fund

Ruthann Robson – CUNY School of Law

Robin Wilson – Washington & Lee School of Law

Kenji Yoshino – New York University School of Law

Here's a sane contribution - with which I happen to agree :>) - from Andy Koppelman:

The Court hasn’t recognized a new suspect classification in decades, but it won’t need to take that step in order to strike down [DoMA].  For non-suspect classifications, the constitutional test is what is called rational basis review:  the law will be upheld in court if it is “rationally related to a legitimate state interest” (New Orleans v. Dukes). This usually means that the law will be upheld.  In a few rare cases, however, the Court has used the rational basis test to strike down laws.  In these cases, the Court deploys what scholars have called “rational basis with bite,” to distinguish it from the toothless test that is ordinarily applied.  This is the basis on which the Court is likely to invalidate DOMA.

August 09, 2011

Colombia following Canadian / South African path to gay marriage

In Colombia, the countdown has begun on the two years that the Constitutional Court gave Congress to extend marriage rights to gay couples. The Constitutional Court ruled late last month that Columbia’s gay and lesbian citizens currently lack the full set of rights afforded to heterosexual married couples in Columbia, and instructed the Columbian Congress to pass a remedy through “comprehensive, systematic, and orderly legislation” by June 20, 2013 to address the imbalance. The court’s ruling added that should country’s lawmakers fail to pass legislation within that time, LGBT couples will be permitted to go before a notary or a court to have their partnership officially recognized.

The combination of a determination that exclusion from marriage is unconstitutional and a decision to, in essence, punt the case to the legislature to fashion a remedy is not new. In 1999, after this kind of ruling in its state supreme court, Vermont adopted a civil unions law. (The Vermont legislature has since amended its marriage law to allow same-sex couples to marry.) In Canada (2005) and South Africa (2006), the Parliament established the right of same-sex couples to marry after the courts directed it to act.

In the past, the Colombian Congress has failed to enact protections for gay couples despite judicial rulings. In February 2007, the Constitutional Court of Colombia extended several common-law marriage property rights to same-sex couples. In April and June, the two chambers of the Congress of Colombia approved a same-sex couples bill, which would have been the first in Latin America, and then-President Uribe was expected to sign it. A few days after the June vote, however, a group of conservative senators broke party discipline on what is usually a routine vote on the final reading of a bill and defeated the measure by five votes.

In 2009, the Constitutional Court weighed in again, with a decision declaring that cohabitating same-sex couples must be given all of the same rights as unmarried heterosexual couples receive in common law marriage. These include nationality, residence permits, testimonial privilege, and inheritance. No legislative action was needed for this ruling to be implemented. (Brazil's Supreme Federal Court rendered essentially the same kind of ruling earlier this year, declaring that same-sex couples could establish what Brazilian law recognizes as "stable unions.")

Now the Colombian court is leaning on the legislature to finish the job and amend the marriage law, making this issue one of the major flashpoints in national politics.

July 25, 2011

Notes from Brazil

A friend writes from Brazil that two more same-sex couples have married since a state trial judge ruled that gay couples could convert their "stable unions" into marriages, as different-sex couples are allowed to do. The second of the two marriages was between a judge and her partner. So far, there have been no challenges to either one.
Less happily, some lower court judges are refusing to recognize stable unions between gay partners, on the grounds that they do not agree with the Brazilian Supreme Court ruling that legitimated them. These decisions will be reversed, but they function as political statements against LGBT people.
Unfortunaly, at the same time, Brazil is also experiencing a wave of hate crimes. One, involving a man who was almost murdered, became national news. The man was hugging his adult son, and the bashers mistakenly thought they were a couple.