The Battle for Same-Sex Marriage in California

Andrew Koppelman, in the blog Balkinization, recently discussed efforts to bring same-sex marriage to California. In his post Bad same-sex marriage strategy in California
(Tuesday, November 13, 2007, 11:01:29 AM Andrew Koppelman), Koppelman states his fear that a pending lawsuit before the California Supreme Court challenging Proposition 22, a law initiated by ballot initiative in 2000 ("Only marriage between a man and a woman is valid or recognized in California"), and seeking a ruling that same-sex marriage is required by the state constitution, may actually energize opponents of same-sex marriage and put in jeopardy even the decent domestic partnership laws already in place there.

This sounds a little familiar to those of us here in Massachusetts, but the roles now being played by citizens, the legislature and the judiciary in California are quite different from those that were played by their counterparts in Massachusetts. In California, so far it has been the legislature that has voted for same-sex marriage, only to be held back by the citizen initiative (Proposition 22) and Governor Schwarzenegger (through his vetoes), and the California Supreme Court has not yet been heard. Here in Massachusetts, it was our Supreme Judicial Court that created same-sex marriage, in the face of a divided, and relatively passive, legislature, and with no threat from any ballot initiative like that of California.

It should be interesting to see what ultimately happens in California.

"I just spoke on a panel in San Francisco, with a group of activists supporting same-sex marriage. (I’m also a supporter, and defend my views here.) Afterward the panelists had some conversations about what’s been happening in California, and they explained their current strategy to me. I came away convinced that my allies are out of their minds.

Last month, the legislature for the second time passed a bill legalizing same-sex marriage in California, and the bill was vetoed for the second time by Governor Schwarzenegger. The governor argued that the bill was inconsistent with Proposition 22, a law enacted by ballot initiative and approved by a landslide 61 to 39 percent in March 2000, which states, "Only marriage between a man and a woman is valid or recognized in California."

Same-sex marriage proponents are now pinning their hopes on a lawsuit, now pending before the California Supreme Court, arguing that the initiative law is unconstitutional and that same-sex marriage is required by the state constitution.

All of the proponents with whom I spoke, including Assemblyman Mark Leno, the author of the marriage bill, acknowledged that if they win in court, it will certainly energize the other side and lead to a new ballot initiative that would outlaw all legal recognition of same-sex relationships in California. This would be a very big deal, because California now has one of the strongest domestic partnership laws in the country, giving same-sex couples all of the rights of heterosexual married couples except the name...."

Ballard's Best: The 11 Best Family Law Bloggers In the US

Although I have been practicing divorce and family law in Massachusetts for many years, I only recently decided to start my own blog, the one you're wasting your time reading now, of course.

As part of my new adventure, I have read lots and lots of family law blogs over the last few months. I have done this for purely selfish reasons. I need to find the best blogs, so that I can shamelessly steal ideas from them until I can find my own way and maybe my own voice. So, here's the list of the best American family law blogs I've found, a list I'll call "Ballard's Best" (in the interests of alliteration and self-promotion).

Ballard's Best may not be the definitive list. I do suspect I have missed some really good blogs. However, all of the blogs on this list are excellent, among the best to be found on divorce and family law in the U.S. I have found other good family law blogs, but they are not on the list either because they have recently gone to sleep, or they are not based in the U.S. (I hardly feel competent to judge family law blogs based in the U.S., so I certainly wouldn't judge those in other countries - I have, however, included the International Family Law Blog, by a British blogger based in New York.)

These winning blogs are very different from one another but all have in common the following four characteristics:

1) They regularly contribute original posts about issues in their own particular family law practice, usually specific to their own state's jurisdiction.

2) Despite having that particular focus, they post articles that should nonetheless prove useful, relevant, and informative to others, both lawyers and non-lawyers, in other jurisdictions.

3) They post regularly.

4) They have been around for some time, usually a year or more.

The blogs that made my list are the family law blogs that appear on my blogroll. In case you're wondering, most of these bloggers have not put my new blog on their own blogrolls nor have I asked or expected any of them to do so.* Indeed, I don't meet the criteria for my own list. No matter. If you can't beat 'em, judge 'em.

Now, here they are, in alphabetical order:

BALLARD'S BEST - THE 11 BEST FAMILY LAW BLOGGERS IN THE US


1) California Divorce and Family Law
2) California Divorce Blawg
3) Family Law Prof Blog
4) Florida Divorce Law Blog
5) Georgia Family Law Blog
6) Indiana Divorce & Family Law Blog
7) International Family Law Blog
8) Kentucky Divorce Law Journal
9) New York Divorce Report
10) Pennsylvania Family Law
11) Updates in Michigan Family Law

*Of course, if anyone wisely decides to link to me, I won't complain - and I might just be more inclined to link to you and to put you on my next list - ha, ha, just kidding...I think.

Heather Mills and Her Lawyer Call it Splits

I thought Heather Mills had finally learned her lesson and would now shut up, but wondered, in my post a week ago, if she was she too late. Heather Mills Finally Learns To Shut Up, But Was She Too Late? As it turns out, Heather Mills has still not learned her lesson, still will not shut up, and yes, she was too late - at least if she wanted to keep her current counsel. She went on TV again this week and defended her TV outburst of the week before, which she claimed had been "cathartic." Heather Mills Calls Her TV Outburst 'Cathartic' - Scandals & Feuds, Heather Mills, Paul McCartney : People.com: ("Heather Mills Calls Her TV Outburst 'Cathartic'" THURSDAY NOVEMBER 08, 2007 10:00 AM EST, People.com, By Monique Jessen.)

Finally on Friday it was reported that her divorce lawyer from Mishcon de Reya Solicitors has called it splits with her, and that Mills has also lost her "media spokesman." Mills McCartney splits with lawyer - CNN.com ("Mills McCartney splits with lawyer/Story Highlights: Heather Mills McCartney parts company with law firm Mishcon de Reya /Mishcon de Reya had represented her in her divorce from Paul McCartney/ Mills McCartney has also split with her media spokesman").

Obviously Heather Mills doesn't need a spokesman. She needs a muzzle. Let's see who will be next in line to handle the damage control.

Dorf on Law: Controlling the Courts, American-style

Dorf on Law: Controlling the Courts, American-style

Mike Dorf, Columbia Law Professor, reports today on his blog Dorf on Law about a very interesting conference being held tomorrow and Monday in New York, where he will talk, together with lots of national VIPs, about the US Presidency and the Supreme Court, and specifically about the "Culture Wars." Hopefully the conference will be recorded in some way and its contents broadcast or otherwise distributed after the fact. Big issues in the law, and lots of influential people weighing in. Click the above link and read Dorf on Law for more.

"Tomorrow (Sunday Nov 11) begins a two-day conference on the Presidency and the Supreme Court to be hosted by the Franklin D. Roosevelt Presidential Library and Museum. The program features historians, law professors, journalists and a keynote address by Justice Sandra Day O'Connor. I'll be on a panel on Monday with Judge Michael McConnell and Yale Law Professor Heather Gerken, moderated by NPR's Nina Totenberg. We'll be talking about what the organizers of the conference have called The Presidency, the Supreme Court and the "Culture Wars", and part of our discussion will focus on what exactly makes something a "culture war" issue.For my part, I intend to say (among other things) that whether an issue is part of the culture wars is (rather obviously) subject to change over time. Today's issues include abortion, church-state relations and gay rights, but national politics has picked up and dropped various issues over the course of American history...."

Kudos to Barney Frank for ENDA, from Dale Carpenter at The Volokh Conspiracy Blog

The Volokh Conspiracy - Barney Frank's ENDA:: "Barney Frank's ENDA" November 8, 2007 Post in The Volokh Conspiracy Blog, by Constitutional Law Professor Dale Carpenter.

Let's join with Con Law Prof Dale Carpenter in giving kudos to Massachusetts' own Barney Frank for helping to get this historic, gay civil rights legislation passed in the US House. On to the Senate, with Ted Kennedy introducing the bill there. Yes, it's still Massachusetts leading the way on this important issue.

"Barney Frank's ENDA:
Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment...."

More Britney Woes: Britney Spears To Pay $120K of Kevin Federline's Attorney Fees

LINK to Associated Press Article on Findlaw.com, November 7, 2007: http://news.lp.findlaw.com/ap/o/51/11-07-2007/c9c10005cbeb49ca.html

More Britney news. Tired of it yet? $120K more to Federline, this time for some of his attorney fees. Wouldn't it be great if everybody could afford to pay for that much justice in their own divorce cases and even have it paid by the other side? (Yeah, yeah, and it would be nice to be the lawyer getting those fees too - don't think I don't know what you're thinking I'm thinking...)

Disturbing Stats in "A Guantanamo Index" - From Human Rights Watch Lawyer Joanne Mariner

FindLaw's Writ - Mariner: A Guantanamo Index: "A Guantanamo Index" By Joanne Mariner, Findlaw.com, November 7, 2007

Disturbing stats on Gitmo from Human Rights Watch lawyer Joanne Mariner.

Sentencing Guidelines Revised for Crack Cocaine Offenses, New York Times Reports

Crack cocaine offenses now carry a reduced point value in the US Sentencing Guidelines, after revised sentencing guidelines just went into effect this past week, guidelines that will shorten somewhat the ridiculously long sentences for federal crack cocaine crimes and that will move us a bit closer to the goal of fairness for crack cocaine offenders vis-à-vis powder cocaine offenders. Let's hope that next week's sentencing commission meeting will lead to a decision to apply the new sentencing guidelines retroactively, so we can reduce even more of the waste of this war on drugs.

LINK to Article by Solomon Moore, November 2, 2007, New York Times: Rules Lower Prison Terms in Sentences for Crack - New York Times: "Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday. The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years. The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines."

Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization

In handling a very sad case in court today (a case I am sure I "won" but which brought no joy or triumph), I had a bright moment early on when I had the opportunity to speak at some length with a wonderful psychologist who works regularly with children, and spends a lot of time in juvenile court trying to help children to recover and to rebound from truly horrific circumstances. The optimism of this wonderful man cheered me up somewhat. When I complained about how depressing the juvenile cases often are, he told me he rather enjoys his role in helping to protect these children in court, and nurture these children through therapy.

DEADLY DELINQUENTS

It is easy for most of us to forget that just as children are resilient as victims, they also are capable of redemption and rehabilitation as offenders. If they can overcome the trauma of abuse, and other horrible experiences, and go on nonetheless to lead healthy adult lives, as so many do, they can also redeem themselves and be rehabilitated, even when they themselves have committed horrific acts. But we are all too quick to demonize and discard them just as we do adult perpetrators.

In some circumstances, for example when children engage in inappropriate sexual contact with other children, contact that would be considered abuse if initiated by older individuals, we don't actually label these child actors "perpetrators" but instead treat all the children in the situation, both the actors and the acted upon, as the unfortunate "victims." But there is a line that can't be crossed, it seems. If a child's crime is too horrific, these days we just give up on the child, forever, and lock him up and throw away the key, just as we would do with an adult perpetrator of such a crime. Our favorite way to rationalize this approach is to pretend that the child is actually an adult.

There recently appeared an excellent article by Sherry Colb, in a Findlaw Column on October 29, 2007, exploring the question of why we are now so quick to lock children up and throw away the key: Why Does the U.S. Sentence Adolescents To Life Without Parole? As Colb points out in her article, we did not always have this harsh approach, and our attitude seems somewhat dissonant with our basic sense of optimism. She postulates that we are somehow afraid of our own optimism, and lock up the children out of a sense of fear of that optimism. I am not exactly sure I agree with this theory, if I even understand it correctly, but it may be right. But I think there may be a simpler explanation for our harsh policy toward deadly delinquents. It is in our entire criminal justice system, that is, in our system for actual adults (not just the adolescents whom we selectively and inconsistently treat as adults), that we have become less forgiving, more punitive, and more willing to give up on people. Demonize. Discard.

I'm not sure that we should blame our harsh penal approach on any fear of our own optimism. I think there is something more distasteful at work here. It is fear, Colb is right, but it is a kind of fear that is making us lose our humanity. The U.S., in permitting its states to lock up children for life without parole (and Massachusetts is one among the vast majority of US states that presently do this), is quite arguably in violation of international human rights law. In 2005, the U.S. Supreme Court finally outlawed, in Roper v. Simmons, capital punishment for juvenile offenders, but that hardly brings the U.S. in compliance with human rights law, as I understand it.

Colb in her article provides a history of the developments in international law on the specific issue of life without parole for children. For more information about the issues of juvenile justice and human rights law, see the Human Rights Watch report of 2005 http://hrw.org/reports/2005/us1005/. We have moved away from state-sanctioned killing of juvenile offenders, but we are still guilty of a lesser international human rights law violation by locking up children and throwing away the key. That is because we let our anger cloud our minds and we allow ourselves to demonize these children. We inevitably lose some of our own humanity when we do so. (Just as we do when we lock up "enemy combatants" as we did in Guantanamo. Just as we do when we commit acts of torture....but I digress.)

DEADBEAT DADS

I have witnessed a lack of humanity in many prosecutors, who often find it easiest to view perpetrators, of whatever age, as purely evil, subhuman creatures for whom no punishment is too great. This inhumane, simplistic prosecutorial attitude was bizarrely evident in a recent guest article, on October 13, 2007, in the Washington Post by Wisconsin "deadbeat dad" prosecutor Mary Wagner - LINK to Washington Post article, Mary T. Wagner - Corralling Deadbeat Dads - washingtonpost.com, which is a tale about her experience prosecuting deadbeat dads.

Wagner seems to take delight in demonizing and punishing these men (I say men because we do not hear about the prosecution of any deadbeat moms in this article), and appears to lose all perspective. Particularly troubling for me was the following passage:

"The case is never about whether the deadbeat dad failed to make any payments for 120 consecutive days, earning himself up to a year and a half of 'maximum confinement' in prison and two additional years of 'extended supervision' reporting to a probation agent. It's about how the parent who stayed with the children had to work two jobs, never caught a break and sometimes had to take government assistance, and how the kids in the middle of it all felt abandoned -- how their world fell apart when Dad left.

Sometimes it's about a 10-year-old child coming to court with Mom, smiling but nervous with anticipation, wondering if the father who's been gone for years will recognize her in the gallery as he sits on a bench up front, wearing an orange jumpsuit and chains, waiting for our dance to begin. Those scenes never end well...."

It is terrible, Wagner says, that this dad has not paid child support. Yes, absolutely. But why not object to the sad fact that this child has been brought into the courtroom to witness her father in an orange jump suit and chains. The child, despite the child support arrears, apparently was fed and clothed while sitting in court, but how was that child feeling? It is horrible that the father doesn't know this child, agreed. But is it not also horrible that this mother brought her child into court to see her father in this circumstance? Have we all been desensitized by Jerry Springer?

I'm bothered that while Wagner can so easily demonize this dad, and discard him as a useless, evil deadbeat, there is not even the hint of the possibility that he might be worthy of some respect, and that after he finally gets out of jail, he might actually pay child support and even spend some time with his child.

There is a strong correlation between the payment of support by noncustodial parents and the degree of contact they have with their children. If we're really concerned about both support and parenting time, about the best interests of children, we should have a broader perspective. Sometimes there are deadbeat dads, and deadbeat moms as well, and sometimes they truly are demonic. Sometimes they never come around. But parents, and prosecutors, and judges, should always leave room for redemption, at least as long as these children are still children.

I'm reminded of a wonderful adult-like line of Lisa Simpson on an episode of the Simpsons, when her Aunt Patty was criticizing Homer in front of Lisa and Aunt Patty admitted she was "just trashing your father."

"I wish you wouldn't," said Lisa, "because aside from the fact that he has the same frailties of all human beings, he is my only model of manhood, and my estimation of him will govern the prospects of my adult relationships. So I hope you bear in mind that any knock at him is a knock at me, and I'm far too young to defend myself against such onslaughts."

Well said, Lisa.

Heather Mills Finally Learns To Shut Up, But Was She Too Late?

Often the very best advice a lawyer will ever give a client is as simple to understand as it is difficult to follow: Keep your mouth shut. Don't say anything to the press. Remain silent. For most divorcing individuals, and certainly most criminal defendants, the last thing they should do is talk to anyone except their lawyer, especially the press.

The problem is when your strategy actually requires you to talk, to go to the press, as it sometimes does in a "Hollywood Divorce," by which term I mean a high-profile celebrity divorce, whether actually in Hollywood, or somewhere else, say in England, for example, where a certain super-famous billionaire musician happens to be getting divorced.

Sometimes you may say a little too much and shoot yourself in the foot. Saying the wrong thing can be costly.

Of course I am speaking of the case of Heather Mills and her husband Sir Paul McCartney, who is now thought to be in a better bargaining position in his divorce negotiations, both respect to financial settlement and maybe even custody issues, thanks to Heather Mill's recent TV rant in which she admitted she had been suicidal.

Heather now knows to shut up already, but is it too late? For the article today by Richard Simpson in the Daily Mail, check out this link: What have I done? Heather warned her TV rant could cost her dear in custody and cash fight

How Much Child Support Do You Pay if You Earn A Million A Month? Ask Britney Spears and Willie Gary.

Sometimes child support can be expensive. Take two recent cases in the news, one involving wealthy Florida lawyer Willie Gary, who pays $28,000 per month for two children in the care of his ex in Georgia, based on income of over a million dollars a month, and the other involving an alleged singer, Britney Spears, who is paying one Kevin Federline $15,000 a month in child support, plus spousal support of $20K, on current income (as most recently reported by her) of about $737K per month.

The train wreck known as Britney recently lost temporary physical custody of her two kids to Kevin Federline, with whom she shared physical custody until her latest blunder. Apparently her spousal support obligation to Kevin Federline will end very soon, but not the child support obligation. In fact, if Kevin Federline ends up holding onto sole physical custody on a more permanent basis, that child support number could go up.

Meanwhile, trial lawyer Willie Gary apparently just got the bad news that his high child support order of $28,000 will continue, after an appeals court shot down a Georgia judge's recent reduction of his support from $28,000 to a mere $5000 per month. Sorry, Willie, but the $28K per month still stands, at least until you can argue your case again on remand.

LINK TO ARTICLE ABOUT WILLIE GARY on Law.com, from reporter Alyson M. Palmer, in the Fulton County Daily Report (Georgia), October 31, 2007: Lawyer Still on the Hook for $28,000 per Month in Child Support

LINK TO ARTICLE ABOUT BRITNEY SPEARS on Findlaw.com, from the Associated Press: Papers In Britney Spears' Custody Dispute Reveal Lavish Spending, No Investments

Access to Justice Commission Proposes Role for Non-Lawyers as Advocates in Court

This just in from the Massachusetts Lawyers Weekly, concerning a well-intentioned, but not so well-reasoned or articulated, proposal for permitting the use of non-lawyers as advocates in certain civil cases, including domestic violence/restraining order cases: 'Access' panel favors use of non-lawyers in some civil cases ('Access' panel favors use of non-lawyers in some civil cases; Bar leaders voice skepticism) By Barbara Rabinovitz, Massachusetts Lawyers Weekly, October 30, 2007

There are a number of good points made in the report, but I think many of the actual proposals are either not clearly articulated, or otherwise are unworkable or unwise. But read the report and decide for yourself. The full report of the Access to Justice Commission is available on the Boston Bar Association's website: http://www.bostonbar.org/prs/nr_0708/accesstojustice101607.pdf

"A statewide commission that has been examining barriers to access to justice in Massachusetts has recommended that trained non-lawyers be allowed to speak in court on behalf of low-income parties embroiled in certain civil matters — a recommendation that has ignited renewed debate over the use of lay advocates.

The 21-member commission, chaired by former Supreme Judicial Court Chief Justice Herbert P. Wilkins, spent much of 2006 and this year conducting public hearings in Boston, New Bedford, Lawrence and Springfield and compiling a 47-page report for submission to the SJC.

The panel was charged by the court with suggesting ways for making legal assistance more readily available to poor people caught up in civil cases involving such issues as evictions and domestic violence. High on the panel's list of suggestions is permission for the use of non-lawyers in some court settings ....

Wilkins told Lawyers Weekly that the proposal dealing with non-lawyers is 'not talking about a general permission' for them. 'We're talking where a person is indigent, and no lawyer will take the matter.' ....

But Boston Bar Association President Anthony M. Doniger voiced reservations. 'The fundamental issue is that one of the great virtues of having lawyers do things is that lawyers are a regulated profession and there are standards they have to follow,' he said. 'As soon as you're talking non-lawyers, it's not at all clear what the quality control will be, what the training will be, who's in charge'.... "

Reported Domestic Assaults Are Up in Worcester This Year

The Worcester Telegram informs us that reported domestic assaults are up this year in Worcester. LINK to Worcester Telegram Article By Scott J. Croteau TELEGRAM & GAZETTE STAFF, Tuesday, October 30, 2007: Domestic assault numbers rising

"WORCESTER— Reports of domestic assaults in the city are up this year, an increase police officials say shows the need for a continued working partnership with a battered women’s advocacy agency. Police Chief Gary J. Gemme and Ginger L. Navickas, director of the YMCA of Central Massachusetts’s Daybreak program, said resources are in place to help victims of domestic violence and continue increasing awareness of the problem in the community. Crime statistics for Jan. 1 to Sept. 30 show 279 domestic aggravated assaults have been reported, which is a 24.6 percent increase over last year. There were 224 reported in 2006. The number is also 13.4 percent higher than the seven-year average.

The statistics also show simple domestic assaults increased by 20 percent so far this year, compared to last year. There have been 861 simple domestic assaults reported compared to 717 last year. This year’s number is well above — or 29.5 percent — over the seven-year average of 665.... "

Note: One little correction to the Telegram article: it is of course the YWCA, not the YMCA, where the Daybreak Program is housed.