9th Circuit Panel Finds California's Gay Marriage Ban Unconstitutional

Well, here's the decision from the 9th Circuit out in California, released as expected today.  The three-judge panel affirmed the lower federal court's decision finding Proposition 8 unconstitutional.  See the AP article on this here.   

After reading the decision (and dissent) just then, I concur with Barry Deutsch, who opines here that this ruling is likely to survive scrutiny by the US Supreme Court because it was decided on narrow grounds.   It does not in fact declare that the US Constitution grants a right of gay marriage.  

The narrow issue actually decided was, as Barry Deutsch put it: "Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation 'marriage' applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no." But this is not over yet, so stay tuned. Here's the gist of the AP article:

SAN FRANCISCO—A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for a likely appeal to the U.S. Supreme Court.  

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 -- a response to an earlier state court decision that legalized gay marriage -- was a violation of the civil rights of gays and lesbians. 

However, the appeals court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it's resolved.  

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted," the ruling states.
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For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The Latest on Gay Marriage - California, Washington and the Nation

Folks interested in gay marriage issues, particularly those living in California, are awaiting the 9th Circuit Court of Appeals' decision, expected to be released today, which will reveal its three-judge panel's opinion on whether Proposition 8 (the ban by voters on gay marriage in the state of California) is constitutional, specifically whether the lower court's opinion against the Proposition will stand.  If the lower court's decision is affirmed, the supporters of the ban plan to appeal to the entire panel of the 9th Circuit and then to the US Supreme Court if necessary.  Check out the AP story, as appears at Boston.com.

And there is yet more news on the West Coast. Law prof Joanna Grossman has another interesting article, this one mainly about the gay marriage legislation just passed by the state senate in the state of Washington, and which is expected to be passed soon by the house and signed by the governor there, and which would make Washington the seventh state (after Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York), along with the District of Columbia, where gay marriage has been created and legalized either by legislative or judicial action.

In Washington, this legislative action is unique, as Grossman points out, in that "it will be the first time, since the beginning of the modern same-sex marriage controversy, that a state legislature has reversed itself, moving from a statutory ban on same-sex marriage to a statutory authorization" and it will have all happened in a very short time. For more about these recent developments in Washington, and for a brief summary of the developments in the recent, nine-year-long history of gay marriage in the United States, see her online article, The Beginning of the End of the Anti-Same-Sex-Marriage Movement .

Grossman's optimism, in believing as she does that "same-sex marriage is an inevitable, eventual reality" is understandable, given this and other recent developments. She explains how the Washington state legislature did a rather quick about-face in favor of gay marriage, and sees that as a sign that views around the country are changing quickly and that "even deeply entrenched opposition may dissipate sooner than we thought." She notes that same-sex marriage bills are working their way through legislatures in other states, including those of New Jersey and Maryland.

I once shared her optimism, but now I have my doubts. Any suggestion that the six, soon-to-be-seven, states, plus the District of Columbia, will quickly grow in number to include most or all of the other 44 (soon-to-be-43) states where gay marriage has not been legalized, is wildly optimistic. It is far too easy for those of us who live in New England and New York (home to all but one of the current same-sex marriage states) to be out of touch with what is going on in the more conservative regions of the South and the Midwest, and indeed the vast expanse of the country. I tend to think we are going to continue to have, for the foreseeable future, a vast majority of states that are, as they have been, consistently and obstinately unfriendly to same-sex marriage, while a very small number of new states warm to the idea.

Gay couples are a very small minority of households, even in Massachusetts. In the more conservative states, where the religious right or at least conservative social values hold sway, the small minority of gay couples and their liberal and libertarian supporters are likely to continue to be drowned out by the louder, and stronger, voices of the more socially conservative majority. If you've read this far, you might find interesting as I did these numerous charts showing the demographics of same-sex couples in the US, derived from the latest (2010) US Census.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

SCOTUS Says Cops Need Warrant for GPS Trackers

At the US Supreme Court, sometimes they all get it right on a truly important issue, as they did on Monday: Justices Rein in Police on GPS Trackers (Wall Street Journal). See the court's opinion and the two concurring opinions in the court case here.

Divorce Books for Little Kids

Many will soon be giving or receiving holiday gift cards for a certain megabook chain or amazon.com.  So maybe now's a good time for some recommendations of books about divorce.  I just created two listamania lists on amazon.com.  One of them is a list of my recommended books for small children about divorce, and the other one is for a couple of books I recommend avoiding.   Below you will find the substance of both lists and my comments.  Happy Holidays!

These are good books for divorcing parents or other caregivers with children of preschool age. Read them first to see if they make sense for you and your own child.

1.  Standing on My Own Two Feet: A Child's Affirmation of Love in the Midst of Divorce by Tamara Schmitz

2.  Dinosaurs Divorce by Marc Brown The list author says: "This book should stimulate discussion of more serious issues that may come up with slightly older children.  Use what you need, and ignore what you don't. You might choose to skip the part with mommy dinosaur drinking a martini with wine and liquor bottles, and a spilled pill bottle, behind her."

3.  Two Homes by Claire Masurel

4.  Mom's House, Dad's House for Kids: Feeling at Home in One Home or Two by Isolina Ricci

5.  Was It the Chocolate Pudding?: A Story For Little Kids About Divorce by Sandra Levins

6.  When I Miss You (The Way I Feel Books) by Cornelia Maude Spelman

OK, now here are a few books to avoid:

1.  If Daddy Only Knew Me by Lila Sprague McGinnis

2.  Mom and Dad Don't Live Together Anymore by Kathy Stinson

New Probate and Family Court Rules

Revised rules for the Probate and Family Court of Massachusetts will go into effect January 2, 2012.  The new rules can be found on the website for the Massachusetts Trial Court Law Libraries, as reported today in their blog:

• New Supplemental Rules of the Probate Court, which will replace the General Rules of the Probate Court and current Supplemental Rules of the Probate Court on January 2, 2012 
• Amended Uniform Practices of the Probate and Family Court, effective January 2, 2012 
• Amended Rules of Civil Procedure,  effective January 2, 2012  

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Kobe Bryant Headed for Divorce

There's bound to be a bit of schadenfreude here in New England, as we Boston Celtics fans absorb the news of the impending divorce of our nemesis Kobe Bryant out in LA. But any divorce like this one - which involves two small children, ages five and eight - should be no cause for celebration.

On the bright side, it appears that this will be handled quickly and without painful public drama.  According to both TMZ and the LA Times, Kobe's wife Vanessa signed her petition on December 1, Kobe penned his response on December 7, papers were filed with the court on December 16, and the couple has already issued a joint statement late yesterday that they have come to an agreement privately through counsel and will have their divorce judgment entered next year.

According to TMZ, Kobe has already vacated their huge Newport Coast mansion, which wife Vanessa is to keep in their deal. It is clear from the filings, as released by TMZ, that Vanessa has claimed some jewelry as her separate property (including, presumably, the multi-million dollar ring Kobe gave her after his infidelity with the Colorado woman who accused him of rape back in 2003), that they did not have a prenuptial agreement, that she is seeking spousal support, and that both have requested joint physical and legal custody of their two girls.

Even though California has tightened up its rules for prenuptial agreements (following the Barry Bonds divorce, which was thought to have been unfair to his Swedish wife), it is possible in California to waive the right to share in community property and to limit the right to spousal support in a prenuptial agreement.   But Kobe Bryant, by failing to insist upon a prenuptial agreement at the time he and Vanessa married - over ten years ago, while they were very young, at the very beginning of what would become a very successful NBA career - will thus end up sharing a lot more, in both assets and in ongoing support obligations, of his earnings with Vanessa than he would likely have been required to do.

That is because the overwhelming bulk of their assets was accumulated during the past ten years of their marriage and Kobe's tenure with the NBA.  Consequently, they will likely be splitting their assets in half as it will all be "community property" - except for the jewelry she can claim as separate property because it was a gift to her.  That could mean she would walk away with slightly more than he does (on account of these expensive gifts she listed as separate property), and then continue to collect child support and alimony which will be tied to his continued high earnings.

But given estimates of their net worth in the $200-300 million range, and many more millions to come - through Kobe's expected NBA salary of $25 million plus endorsements for the next several years - the Bryants do not need our financial sympathy.

Let's just hope the girls will be okay with their parents living in separate lavish homes. And of course, go Celtics!

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Christopher Hitchens, Rest in Peace

With the passing of Christopher Hitchens, we have lost a most brilliant, provocative writer and thinker. He was active and influential on both sides of the pond. I share my English brother John Bolch's admiration for the man and his writing. See John's post and the video contained therein: Family Lore: Christopher Hitchens, 1949 - 2011.

Lindsay Lohan's Judge Gives the Gift of Porn

Photos from Lindsay Lohan's much-hyped nude photo spread, to be officially released in next week's Playboy, leaked out on the internet today.  Playboy claims to fear the leak may negatively affect sales of the magazine, which will need to be phenomenal enough to justify its nearly million dollar payout to Lindsay.

But for this holiday gift of porn we really have a criminal court judge to thank.  Many stockings can be stuffed, just in time for Christmas, with the Lindsay spread thanks to one Judge Stephanie Sautner. Sautner's the judge who last month allowed Lindsay Lohan to delay her scheduled stint in jail so she could do her photo shoot first and not jeopardize her contract with Playboy.

As TMZ put it, "justice is not only blind...sometimes it's stark naked."

Father Absence Affects Sons More than Daughters?

A new working paper  recently discussed in the Freakonomics blog, and which looks at the relationship between the absence of fathers from the home and juvenile delinquency, suggests that the presence of fathers, while beneficial for both sons and daughters, may be much more beneficial for sons than daughters.  The working paper finds, among other things, that "adolescent boys engage in more delinquent behavior if there is no father figure in their lives.  However, adolescent girls' behavior is largely independent of the presence (or absence) of their fathers."  

Of course, we should always view claims of findings from such social "science" reports with a healthy dose of skepticism.  A commenter on the Freakonomics blog named Todd makes the good point that this new study may be missing some important factors, especially as previous biological evidence shows father absence early in life may affect daughters by dramatically altering the age at which they get their first period. I would add that longitudinal studies in the United States and New Zealand have previously shown that father absence is strongly correlated with a higher risk for daughters of early sexual activity and teenage pregnancy.

However differently father absence may affect daughters versus sons, what is clear is that father presence has positive effects and father absence has negative effects - that is the common denominator of all studies to date, including this latest one.  And while that may seem self-evident to most of us, it is not uniformly understood or believed due to the sad pervasiveness of men bashing in certain circles.

Father absence and its effects on children - both sons and daughters - should concern us all, as we have gone from a nation, here in the US, with 8 percent of children living in mother-only homes in 1960 to one with fully 23 percent living in such homes in 2010, according to the US Census bureau.  I hope more such studies will be done, and that more of us will pay attention to them and the issues they raise.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Divorce Parties

Divorce is not only the end of a marriage, but also the beginning of a new life, and for some people, even a cause for celebration.  As I recently discussed here, some newly divorced or divorcing individuals have begun to mark the end of their marriages with some form or other of leisure travel.

Well, even if you prefer not to travel, you can celebrate your new status in a more public way right in your hometown:  you can throw a divorce party for all your friends.  Divorce parties are not new, as they have been going on for some time, but the ones I have known about have been relatively private, small, informal affairs.  However, in Los Angeles at least, an industry has sprung up to cater to an apparently growing demand for divorce parties there.   Maybe this is a trend that will catch on elsewhere.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Testosterone and Fatherhood

A scientific study done in the Philippines suggests that men who become fathers have hormonal changes that may help them to adapt to their new role - i.e., they have a drop in testosterone upon becoming fathers.   That should come as good news to those of us who already know that men can and do make excellent, nurturing parents, and who envision a world of increasing gender equity, both at work and at home.

Gender stereotypes and prejudices, backed by faulty biological assumptions, have inevitably resulted from thousands of years of history in a predominantly patriarchal culture (with fathers in the bread-winning role and mothers in the primary parenting role), and they continue to stand in the way of men in search of parenting equity at home, even as women have made tremendous strides in the workplace over the past fifty years.   This scientific study provides hope to the optimist in me that parenting equity and equality in the home will eventually catch up to, and parallel, the rapidly advancing workplace equality women have achieved, and are continuing to achieving, both in this country and throughout the developed world.

New York Times: In Study, Fatherhood Leads to Drop in Testosterone, excerpt:

          This is probably not the news most fathers want to hear.

Testosterone, that most male of hormones, takes a dive after a man becomes a parent. And the more he gets involved in caring for his children — changing diapers, jiggling the boy or girl on his knee, reading “Goodnight Moon” for the umpteenth time — the lower his testosterone drops. 

So says the first large study measuring testosterone in men when they were single and childless and several years after they had children. Experts say the research has implications for understanding the biology of fatherhood, hormone roles in men and even health issues like prostate cancer. 

“The real take-home message,” said Peter Ellison, a professor of human evolutionary biology at Harvard who was not involved in the study, is that “male parental care is important. It’s important enough that it’s actually shaped the physiology of men.” 

“Unfortunately,” Dr. Ellison added, “I think American males have been brainwashed” to believe lower testosterone means that “maybe you’re a wimp, that it’s because you’re not really a man. 

“My hope would be that this kind of research has an impact on the American male. It would make them realize that we’re meant to be active fathers and participate in the care of our offspring.” 

The study, experts say, suggests that men’s bodies evolved hormonal systems that helped them commit to their families once children were born. It also suggests that men’s behavior can affect hormonal signals their bodies send, not just that hormones influence behavior. And, experts say, it underscores that mothers were meant to have child care help.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.