Beyond Washington, Maryland and Maine: New Battleground States for Marriage Equality

Well, it indeed became official late last week that Washington state's referendum on marriage equality was in fact a win for marriage equality. Washington will thus be included with Maine and Maryland as the first three states to approve gay marriage by a popular vote, rather than strictly through legislative or judicial action.  They all did so in this November's elections. These three new states will now join the six other states (Massachusetts, Connecticut, New Hampshire, Vermont, New York and Iowa) and the District of Columbia as jurisdictions where gay and lesbian couples may marry.  New battleground states to watch, according to Queerty: New Jersey, Rhode Island, Illinois, Oregon, and Delaware.


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

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.

Second Circuit Joins First in Striking DOMA

The Second Circuit Court of Appeals in New York just became the second of the intermediate-level federal appeals courts (circuit courts) to find the Defense of Marriage Act (DOMA) unconstitutional.   The first was our First Circuit Court of Appeals here in Boston back in May of this year.   The Second Circuit decision, which found the federal statute to be an unconstitutional violation of equal protection under heightened scrutiny (the "intermediate level scrutiny" for "quasi-suspect" classifications), is the most likely case on gay marriage to reach the US Supreme Court.  

Two other same-sex marriage cases likely to reach the Supreme Court are the First Circuit decision in Boston also striking down DOMA, and the Ninth Circuit decision overturning California's ban on gay marriage out there. 

For a short explanation of this Second Circuit case, with some discussion of related federal court decisions, see David Kemp's The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review.  Also see the New York Times article for an overview.


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

Mommy Wars, Daddy Wars, and Having it All

From the time I heard Anne-Marie Slaughter's interview on NPR, back in late June, and found my Atlantic Magazine copy waiting for me in my office later the same day, there with the by now much-ballyhooed article, Why Women Still Can't Have It All, which she had just discussed with Terry Gross on air, I have been thinking quite a bit about the issues raised.

I thank her for her provocative contribution to the dialogue among the chattering classes on issues of gender roles, feminism, motherhood, and fatherhood.   I must say, however, that I reacted to her article much as I did to the seminal work of Betty Friedan upon my first encounter with it back in college: I appreciated its historical contribution, but its focus seemed too bourgeois for someone with my more radical sensibilities.

I have since enjoyed reading and learning from many of the varied reactions to that Atlantic Magazine article.  Two of my favorites, which I will pass on without comment, are The Daddy Wars, by Jessica Valenti, and Why Can't All Parents Have More, by KJ Dell'Antonia.

9th Circuit Panel's Strike-Down of Prop 8 Will Stand

The Ninth Circuit Court of Appeals, in California, decided on Tuesday not to have a rehearing, by a larger en banc panel of that court, on the Proposition 8 case earlier heard by its 3-judge panel, which struck down the voter-enacted ban on gay marriage on equal protection grounds.  That means that gay marriage proponents have won for now, and that Proposition 8 backers will be attempting to take this up to the US Supreme Court.

It is not certain the US Supreme Court will review that case, however.

It's more likely the Supreme Court will hear the First Circuit case from here in Boston that just found DOMA unconstitutional.  But it's also possible the Supreme Court will elect to hear both cases (see constitutional law expert Erwin Chemerinsky's comments in the excerpted article below).  We shall see.

Meantime, there will be no gay marriage yet in California, as despite this final word from the Ninth Circuit in its favor, the mandate will be stayed until final disposition of the appeal to the US Supreme Court.  Here's my excerpt from the excellent article from Law.com's The Recorder:

The order denying rehearing leaves in place the court's February 2-1 ruling striking down the ban on equal protection grounds. The majority, led by famously liberal Judge Stephen Reinhardt, said the voter-enacted initiative served no purpose other than "to lessen the status and human dignity" of gays. 

Only four of the court's 25 active members publicly backed rehearing the case before an 11-judge panel. Three of them issued a short yet blistering dissent. "Based on a two-judge majority's gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia," wrote Judge Diarmuid O'Scannlain.  

"Even worse, we have overruled the will of 7 million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it." Judges Carlos Bea and Jay Bybee joined him.  

Judge N. Randy Smith, who dissented in February, also wanted the case reheard. O'Scannlain's three-paragraph "dissental," as judges on the court call them, opens by pointing to the media "firestorm" President Obama created with his recent announcement supporting same-sex marriage. "Drawing less attention, however, were his comments that the Constitution left this matter to the states and that 'one of the things that [he]'d like to see is that [the] conversation continue in a respectful way,'" O'Scannlain wrote. "Today our court has silenced any such respectful conversation."  

Judge Stephen Reinhardt and Senior Judge Michael Daly Hawkins, who joined him in the panel majority, fired off a single-paragraph response. "We are puzzled by our dissenting colleagues' unusual reliance on the president's views regarding the Constitution, especially as the president did not discuss the narrow issue that we decided in our opinion," the two Democrat-appointees said. "We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage." 

Indeed, Reinhardt's panel opinion, leaning heavily on Romer, was painstakingly tailored to California. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only," Reinhardt's panel opinion said. "It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of 'marriage' to describe their relationship."  

O'Scannlain's short dissent didn't go into the merits, but called Smith's February dissenting opinion "excellent." All four dissenters are Republican appointees.  

The Ninth Circuit's denial of en banc review means Perry could very well be on a similar track for Supreme Court review as a Defense of Marriage Act challenge that was before the First Circuit. A three-judge panel of the Boston-based court last week rendered unconstitutional the provision of DOMA that denies federal benefits to same-sex couples.
Some think a DOMA challenge would be a more likely candidate for high court review since it's a challenge to a federal statute, not a state voter initiative, and since plaintiffs in the Prop 8 case are asking for a far more sweeping ruling — one declaring marriage a fundamental right.  

"I would not be surprised to see the Supreme Court take both and have them both briefed and argued (as it often has done)," UC-Irvine law school Dean Erwin Chemerinsky wrote in an email. He noted the court often takes cases on related topics and has them handled "in tandem," where they would be briefed on the same schedule, argued the same day and decided in separate opinions. On the other hand, he said, the Prop 8 opinion is narrow in that it's limited to a state that granted a right and then rescinded it whereas the DOMA case, Gill v. Office of Personnel Management, strikes down a federal statute. 

"The court always is inclined to take a case where a federal law is struck down."
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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.

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.
....

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.

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.

Census Bureau Reports Marriage & Divorce Statistics

The U.S. Census Bureau recently released its report "Marital Events of Americans: 2009," which is the bureau's first such report after including questions about marital events as part of its American Community Survey (ACS), beginning in 2008. The report confirms previous indications from other sources that divorce rates, and marriage rates, are higher in the South than in the Northeast, among other things.  See the bureau's report here or read the summary from Reuters.



From the Reuters news article (August 25, 2011):

....Statistics from "Marital Events of Americans: 2009," show that in the South, per 1,000 men or women, divorce rates were 10.2 and 11.1 percent.

By contrast, Northeastern men and women had divorce rates at 7.2 and 7.5 percent.The national divorce rate was almost 10 percent, at 9.2 for men and 9.7 for women.

The report is the first to examine and detail marriage, divorce and widowhood among Americans ages 15 and older, using data from the 2009 American Community Survey (ACS).

"Divorce rates tend to be higher in the South because marriage rates are also higher in the South," Diana Elliott, a family demographer at the Census Bureau, stated in the report's release.

"In contrast, in the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces."

Fourteen states had above-average divorce rates for men and women. Southern states such as Alabama, Arkansas, Georgia, Kentucky, Mississippi, Oklahoma, Tennessee and Texas had divorce rates above the United States average for both genders.

For the 10 or so states that had below-average divorce rates for each gender, about half were in the Northeast.

States like Massachusetts, Pennsylvania, New Jersey and New York saw fewer divorces than average for men and women.

Divorces did impact the economic well-being of families.

Three quarters of children living with a parent who divorced in 2009 lived in a household headed by their mother.

Of women who divorced in the year studied, 23 percent received public assistance, against 15 percent of recently divorced men who received such assistance.

But such women also reported less household income than recently divorced men, with 27 percent having less than $25,000 in annual household income compared to 17 percent of recently divorced males.

They also were more likely to be in poverty; 22 percent of recently divorced women compared to 11 percent of such men.

Almost 30 percent of children living with a parent who recently divorced lived in a household below the poverty level, compared with 19 percent for other children.

Historically, data on U.S. marriages and divorces were collected from marriage and divorce certificates filed at the state level. According to the report, beginning in 2008, questions about marital events were added to the ACS to fill a void in the data collected in the United States.

Previous Post on Related Issues:

 BASEBALL BRINGS DOWN THE DIVORCE RATE?

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

Sham Marriage Scheme Busted in Vermont

Many sham marriages - fraudulent marriages which often lead to residency and ultimately citizenship benefits for immigrants - go undetected each year by the United States government.   But sometimes sham marriage immigration schemes are uncovered, as in this recent example from Vermont, as reported in the Boston Globe, A Marriage of a Dream and a Scheme, in which case illegal immigrants (mostly, if not all, from Brazil) paid Americans to marry them to get legal residency status.  According to the article, Maria-Helena Knoller, a Holyoke woman and  Brazilian immigrant responsible for the scheme, was recently prosecuted and convicted for marriage fraud and concealing and shielding illegal immigrants in the case of 32 sham marriages, and is now out free on a $100,000 bond and working in a Chicopee Donut shop while awaiting sentencing.  22 of those 32 sham marriages occurred in Brattleboro, Vermont, and half of these 32 sham marriages have already ended in divorce here in Massachusetts.   Apparently, the scheme seemed to begin and end in Massachusetts, although many of these participants were led across the Vermont border to Brattleboro for their nuptials. (There were seven other additional sham marriages revealed, but Knoller was not prosecuted for those.)

Knoller, it turned out, was a matchmaker of a special kind. For fees as high as $12,000, she would pair illegal immigrants from Brazil with Americans, arrange their marriages - and, in some cases, their subsequent divorces - after they received status as “lawful permanent residents’’ of the United States.

She pleaded guilty in February to federal charges of marriage fraud and concealing and shielding illegal immigrants for 32 of those marriages. But her prosecution is an exception, and Knoller’s case is a vivid example of how easy it is for illegal immigrants to dodge US immigration laws by getting married.

The US government estimates that of the 200,000 marriages that result in temporary or illegal immigrants receiving green cards each year, up to 30 percent are shams. And yet, while billions of federal dollars are devoted to protecting borders, enforcement efforts aimed at immigration fraud are hobbled by sparse budgets and understaffed agencies that, according to government auditors, allow an estimated 60,000 sham marriages a year to evade detection.

“The process of weeding out the fraudulent [marriages] - those arranged solely to obtain … a work permit and green card - is nearly impossible,’’ said David Seminara, a former US consular officer who wrote a 2008 study that faulted the process of identifying fraud in immigration petitions filed domestically and overseas. “Even when documentation is asked for, to show that the couple is living together, it’s easily doctored. There’s just too many applications and too few immigration officers handling these cases.’’

Taking her clients to Vermont for their nuptials made Knoller’s scam easier. Vermont does not require waiting periods or proof of identity to obtain a marriage license. While some of the 32 marriages for which Knoller was prosecuted were licensed in Connecticut and Massachusetts, 22 occurred in Brattleboro. Massachusetts, and every other state bordering Vermont, requires proof of identity.

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