Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

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

First Circuit Finds DOMA Unconstitutional

The First Circuit Court of Appeals in Boston found DOMA unconstitutional today.  But enforcement of this federal court of appeals ruling - which would extend the federal economic benefits denied by DOMA to gay couples - will have to await a decision by the US Supreme Court.   The First Circuit's decision is here.  For a good summary, see Ruthann Robson's blog.

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

Iowa's Highest Court Institutes Gay Marriage; Vermont's Legislature Is Well On the Way to the Same Goal; New York Grants First Same-Sex Divorce

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Wow, there have been quite a few developments on the gay marriage front - today, yesterday, and this past week. As Vermont moves closer to becoming, possibly, the first state to create gay marriage by legislative enactment, now that its House has joined the Senate in passing a bill that would permit gay and lesbian couples to marry there, Iowa today has become the next state to do it judicially, as have Massachusetts and Connecticut before it (and also, for a time, California, although that was short-lived): Iowa gay marriage ban ruled unconstitutional - msnbc.com.

From the website of the Iowa Judicial Branch, you can find the summary/press release describing the decision, and the full decision as well.

Also, New York has now made good on its earlier promise to recognize gay and lesbian marriages performed in other states by accepting jurisdiction and granting divorces to such couples if and when they move to New York. The first such divorce was granted in New York this week. See Same Sex Divorce-Granted! - New York Divorce and Family Law Blog.


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

Massachusetts House Joins Senate In Voting To Repeal 1913 Law

The House voted overwhelmingly today to repeal the 1913 law. Now that both the Senate and the House have passed the bill, the bill will go to Governor Patrick, who is expected to sign it. As a result of the repeal of the old statute, gay and lesbian couples residing in other states will now be permitted to marry in Massachusetts even if their home states would not permit them to marry in their home states. See the Blue Mass Group Blog for more. My previous post on this story is here.

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

Massachusetts Legislature Moves Toward Equality for Gay and Lesbian Couples

Despite the fact that the Massachusetts Senate recently passed Senate Bill 800, which would repeal the 1913 law that prohibits non-resident gay and lesbian couples from marrying in Massachusetts unless their home state also would recognize their marriage, the House has yet to take up and pass the bill, and has until July 31 before its current session ends. See the New England Blade's most recent article from Thursday: House Ends Week Still Silent on 1913 Law; Bill Sent for Third Reading; Session Ends Next Week, and for more background the earlier article of Wednesday, July 23 (quoted below). Pressure from the advocates for marriage equality may overcome some political resistance in the House. Hopefully the advocates will prevail, and then the measure will go to the desk of Governor Patrick, who is expected to sign it into law.

In other, more decidedly positive news, also from the New England Blade: "The Massachusetts State Senate on Wednesday, July 23, by voice vote, passed the MassHealth Equality Bill H.B. 4107, which would grant married same-sex couples in Massachusetts the same access to Medicaid benefits as heterosexual couples. Currently, federal Defense of Marriage Act regulations prohibit same-sex couples legally married in Massachusetts from being treated as each other’s spouses for the purposes of federal benefits programs, including Medicaid, which is uniquely funded by both state and federal dollars. The bill passed in the House last week. Once the House and Senate agree on slight differences in language, the bill will go to Gov. Deval Patrick’s desk, who is expected to sign it into law...."

EXCERPT FROM NEW ENGLAND BLADE ARTICLE, JULY 23:

The House of Representatives, by the New England Blade print deadline, had not taken up Senate Bill 800, which, if passed, would repeal the 1913 law thatprohibits non-resident same-sex couples from getting married in Massachusetts unless their home state would recognize their marriage.

But despite the looming end of the current legislative session — July 31 — House Speaker Sal DiMasi remains committed to bringing the issue before the full House soon, said his spokesperson, David Guarino.

“It is something we hope to bring up in the next few days,” David Guarino, spokesperson for DiMasi, said on Tuesday. “Speaker DiMasi is a strong supporter of it and hopeful to get this done this session.”

Guarino did not return a call made to him on Wednesday.

MassEquality said on Wednesday that“it’s still very likely that it will come up before the end of the session,” and asked its membership to contact their respective legislators. The Massachusetts Gay and Lesbian Caucus has also urged its membership to contact their legislators.

“The Senate acted quickly and decisively but the House may be a more difficult battle,” says the Caucus in an e-mail to its membership on Tuesday. “Our opponents have generated thousands of calls and e-mails to Representatives to stop our Repeal lobbying, and they’re having an impact. Now is the time to act. We need you to e-mail your state Representative and urge her/him to support the repeal.”

The State House News reported on Monday that some House members are concerned about taking up the repeal of the 1913 law during an election year, which has left doors open, says MassResistance, for opponents of the bill to talk with representatives.

“Last Thursday we sent people to personally visit every House office at the State House. They sat down with staff members and made them read our handouts explaining the facts about this issue,” said MassResistance in its blog(http://www.massresistance.org/). “They got both good and bad responses. Some were very supportive, some quite hostile. But we got the message across.”
....

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

More On Same-Sex Marriage Recognition in Other States

It's hard to keep up, but here are two more recent articles from Findlaw's Writ on issues related to same-sex marriage. These both deal with issues regarding the legal treatment of same-sex marriages in states that do not have same-sex marriage:

*The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose, by Joanna Grossman, whose writing thus far proves her to be, at least to me, the foremost academic expert on these issues.

*The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States, an interesting piece by Chicago attorney Steve Sanders.


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

New York Trial Judge Will Allow Lesbian Couple to Divorce There

One trial court judge in New York has just decided that a lesbian couple married in Canada can indeed divorce in New York. See New York Divorce Law Blog: Lesbian Couple Married In Canada Can Divorce In New York and for a bit more detail on the case see GLBT Couples Law: NY Court Allows Same-Sex Divorce to Proceed. The judge in this case relied on a recent decision from the New York appellate division (intermediate-level appellate court) that same-sex marriages from other jurisdictions should be given effect in New York. (For information on that appellate case, see my recent post here.)

But the basic question, whether the New York courts can give a divorce to a same-sex couple married in another jurisdiction even though the couple could not have married in New York, and answered in the affirmative here by a trial judge, is quite similar to the question which was answered in the negative by the Rhode Island Supreme Court recently. (For background on the Rhode Island case, see my latest post on that here.) This recent New York case is only, at this point, the decision of a trial judge (beware: New York confusingly calls its lowest level trial courts "Supreme Courts" and they are actually not appellate courts - the intermediate level appellate courts are in the Appellate Division, and the highest court is called the Court of Appeals) and should therefore not have the same legal force (or "precedential value") in New York as the Rhode Island Supreme Court's decision does in Rhode Island. But certainly these two recent judicial decisions from New York already do indicate some disagreement between New York and Rhode Island.

We should expect more "votes" on these issues to come in from other states - and they may be expected to come from any states to which same-sex couples have decided to move. Stay tuned.

Excerpt from the GLBT Couples Law Blog:

New York, NY—In what is believed to be a groundbreaking ruling a New York City judge says that the ruling by the state's highest court that found there is no constitutional right for same-sex marriage does not apply to divorce.

The ruling by Supreme Court Justice Laura Drager allows a Manhattan woman to sue for divorce from her same-sex partner whom she married in Canada in 2004.

Drager found that out-of-state same-sex marriages are properly recognized under our law, and therefore Beth R. can proceed with her case against Donna M..

R is seeking the divorce and the awarding of joint custody of M's two children. Because the children are minors the women are identified only by letters.

M had sought to have the divorce petition quashed on the grounds that New York State does not recognize same-sex marriage.

In her ruling Drager said that New York does not recognize an out-of-state marriage in only two instances: if it is specifically named by the Legislature as prohibited or is abhorrent to New York public policy.

The written ruling noted that the Legislature has not specifically outlawed out-of-state same-sex marriages, and that the abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest.

An attorney for M told the New York Post he will appeal.

The case will likely be decided by the New York Court of Appeals, the state's highest court in light of an appeal of a similar ruling this month by an appeals court in Rochester.

...."

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

New York Appellate Division Recognizes Canadian Gay Marriage

Thanks to this recent New York Divorce and Family Law Blog post for reporting on the recent New York Appellate Division (intermediate level state appellate court) case of Martinez v. County of Monroe, which recognized a same-sex marriage of a lesbian couple which had been performed in Canada, and gave it effect in New York, despite the fact that New York, like all U.S. states save Massachusetts, does not permit its own residents to enter into same-sex marriage.

For more information, see the New York Legal Update blog, and the excellent analysis of Joanna Grossman in her Findlaw article of today.

Although not from the highest appellate court in New York, this is significant as it is apparently a case of first impression in New York, and is an appellate decision at odds with the rationale and holding of the Rhode Island Supreme Court, which recently held that its family court could not grant a divorce to a lesbian couple, married in Massachusetts, but now residing in Rhode Island. (For more on the Rhode Island case, see my last blog entries on it from last December, here and here.)

We will have to keep watching to see what other states will do. I do think it is only a matter of time before we will actually receive some guidance from the US Supreme Court, whether we want it or not, on some of the legal issues presented by the problem of same-sex couples looking for legal recognition in states without same-sex marriage.

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Same-Sex Divorce Challenges the Legal System, Washington Post Reports

The Washington Post just published the following article, Same-Sex Divorce Challenges the Legal System - washingtonpost.com, by Dafna Linzer about the peculiar problems same-sex couples face, both here in Massachusetts and elsewhere, when they split. Given the topic, the article naturally had a big focus on Massachusetts, and it includes quotes from interviews of family law specialists here who do a lot of work with gay and lesbian clients.

The article points out some of the important ways in which same-sex married couples face different legal problems and challenges than traditional (heterosexual) married couples, even though the Massachusetts Supreme Judicial Court's equal protection ruling in Goodridge et al. v. Department of Public Health et al., aimed to equalize treatment of same-sex couples and traditional couples. This just goes to show that no matter how hard one state's supreme court may try, there are many things standing in the way of equal treatment, including federal law, other states' laws, and biology itself.

Thus, gay and lesbian couples should not assume that simply by getting married they automatically have all of the exact rights and responsibilities of heterosexual married couples, even here in Massachusetts. It's not exactly true. For example, in a gay or lesbian marriage only one parent can be the biological parent, and nonbiological parents in such marriages will not automatically have the same parental rights and responsibilities as the partners in a traditional marriage - to effect such similar rights and responsibilities, such couples will need to adopt.

There are also some serious differences between the financial treatment, upon divorce, of couples married as same-sex couples and those married as heterosexual couples. And of course this all brings to mind the Golden Rule: When in doubt, see a lawyer first!

"When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I'm their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

'One of the benefits of marriage is divorce,' said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. 'But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience....'


For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.

Joanna Grossman on Rhode Island Supreme Court's Denial of Same-Sex Divorce

For an excellent article critiquing the majority decision of the Rhode Island Supreme Court, in Chambers v. Ormiston, which ruled that a lesbian couple, married in Massachusetts, cannot get a divorce in Rhode Island's Family Court, for lack of jurisdiction, see Hofstra Law Professor Joanna Grossman's findlaw article of today, "The Rhode Island Supreme Court Denies a Divorce to a Same-Sex Couple That Was Married in Massachusetts: Why This Case Was Wrongly Decided" by Joanna Grossman.

As Grossman explains, state courts are obliged, for the purpose of considering claims for divorce, to recognize couples joined in marriage under other state's laws, even though state laws on marriage and legal restrictions and requirements for marriage differ greatly among the states. I basically agree with Grossman's points, and also question the Rhode Island Supreme Court majority's reasoning on the same basis. I think the dissenters had the better view, but read the majority and dissenting opinions and decide for yourself.

I disagree with this Rhode Island ruling, even though I also recognize problems with the reasoning of Goodridge et al. v. Department of Public Health et al., the Massachusetts Supreme Judicial Court decision which established gay or same-sex marriage in Massachusetts. (Despite my issues with the reasoning in Goodridge, I do, however, celebrate the resulting expansion of marriage to include gay and lesbian marriage, which I think has been a good thing, for gay and straight alike.)

But whatever you may think about the Massachusetts case establishing same-sex marriage, you must realize that it is this very Massachusetts decision that has created the current conflict of laws issue, by expanding greatly the definition of "marriage" in Massachusetts in a way that has had, and will continue to have, an effect far beyond the borders of the Bay State. It remains to be seen how exactly, and to what extent, gay marriage - and divorce - will become a part of the life of the rest of the nation. This Rhode Island case hardly provides an answer to that question, or any end to such jurisdictional questions. This story is far from over.

For more on this Rhode Island case, including links to my previous posts, news articles from the Providence Journal, and to legal briefs filed in the case, see my most recent post, Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island.

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island

The Rhode Island Supreme Court has just ruled that the Rhode Island courts may not grant a divorce to a lesbian couple married as a same-sex couple in Massachusetts, but now living in Rhode Island (see below). The high court found that its state's Family Court has no jurisdiction to grant the divorce, based on the fact that Rhode Island does not itself recognize this "same-sex marriage" as a "marriage" and the couple would not have been able to marry in Rhode Island. If these two women want a divorce to be issued by a court, they may have to come back to Massachusetts, where our highest court, in 2003, established the right to marriage by same-sex partners in Goodridge et al. v. Department of Public Health et al. (2003 Massachusetts Supreme Judicial Court Opinion).

For more information, in my previous posts on this case, see Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island? and Amici Briefs in the Rhode Island Case.


"R.I. high court rules against divorce in same-sex marriages," The Providence Journal, by Edward Fitzpatrick, December 8, 2007:

PROVIDENCE — In a 3 to 2 decision, the state Supreme Court yesterday ruled that two Providence women who married in Massachusetts cannot get divorced in Rhode Island.

The court’s majority concluded that Family Court lacks jurisdiction to grant a divorce to Margaret R. Chambers and Cassandra B. Ormiston because under the law that lets Family Court handle divorces, the word 'marriage' means just one thing: the union of a man and a woman.

"It is possible that today’s members of the General Assembly might have an understanding of the term ‘marriage’ that differs from the understanding of those legislators who enacted [that law] in 1961, but our role is to interpret what was enacted and not to speculate as to what some other not-yet-enacted statute might say or mean," Justice William P. Robinson III wrote for the majority.

"There is absolutely no reason to believe that, when the act creating the Family Court became law in 1961, the legislators understood the word marriage to refer to any state other than ‘the state of being united to a person of the opposite sex,’” Robinson wrote, citing definitions of marriage from 1961 dictionaries.

Supreme Court Chief Justice Frank J. Williams and Justice Francis X. Flaherty joined Robinson in the majority while Justices Paul A. Suttell and Maureen McKenna Goldberg dissented.

Suttell said he and Goldberg saw no need to consult 46-year-old dictionaries to answer the legal question before the court. “A brief survey of current dictionaries reveals that the same definition of the word ‘marriage’ predominates today as it did when the Family Court Act was enacted in 1961,” he wrote. “Nevertheless, the majority, in our opinion, overlooks the one central and unassailable fact upon which the certified question is predicated,” Suttell wrote. “On May 26, 2004, Ms. Chambers and Ms. Ormiston were lawfully married under the laws of the Commonwealth of Massachusetts.” And Family Court can grant divorces whether or not a marriage is considered legally valid in Rhode Island, he said....

Amici Briefs in the Rhode Island case-Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island?

I just found the following amici curiae briefs for the Rhode Island case, available on the website of the Gay and Lesbian Advocates & Defenders (GLAD), including GLAD's own brief, authored in part by Mary Bonauto, who was lead counsel in the Goodridge case; another brief by various conflict of laws, civil rights and family law professors, with California's Barbara Cox, Erwin Chemerinsky and Boston's family law professor Charles Kindregan among them, concurring with the GLAD position; and yet another brief by other amici, including Brigham Young University law professor Lynn Wardle, coming down on the other side of the question.

There were also many other amici, and all the briefs in this case seem to be available on the GLAD website at http://www.glad.org/GLAD_Cases/ri_briefs.html.

Cox, Chemerinsky, Kindregan et al: http://www.glad.org/GLAD_Cases/Amici/Chambers_Ormiston/Conflicts.pdf

Lynn Wardle et al: http://www.glad.org/GLAD_Cases/Amici/Chambers_Ormiston/Wardle.pdf

GLAD: http://www.glad.org/GLAD_Cases/Amici/Chambers_Ormiston/GLAD.pdf

Having married in Massachusetts, may a lesbian couple now get divorced in Rhode Island?

The Rhode Island Supreme Court is about to decide whether its courts can approve the divorce of a lesbian couple who were joined in marriage in Massachusetts three years ago. This case appears to be the first case in which a state outside Massachusetts has had to deal with the issue of whether it can grant a divorce to a couple previously married in a same-sex marriage in Massachusetts, even though it does not itself recognize same-sex (gay and lesbian) marriages. Oral arguments have been made and a decision from the court is expected within a few weeks. Stay tuned.


LINK to Article in The Providence Journal: Woman in historic same-sex divorce case did not seek the spotlight "Cassandra Ormiston sees her court battle to end her marriage as a human-rights — not a gay-rights — issue. 'I have the same right to fail as anyone else.'"October 22, 2007, By Edward Fitzpatrick, Journal Staff Writer

"....Chambers and Ormiston married in Fall River in May 2004, shortly after Massachusetts became the first state to issue marriage licenses to same-sex couples. Chambers filed for divorce last year in Rhode Island Family Court, and Ormiston filed a counterclaim, with both citing 'irreconcilable differences.'

The case is receiving national attention because it’s believed to mark the first time any of the same-sex couples married in Massachusetts have sought a divorce in another state. The Rhode Island Supreme Court is weighing this question: 'May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?'...."