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Author: Courtney Joslin

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Same-Sex Couples and Divorce

Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.

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Sexual Orientation Nondiscrimination and Religious Exemptions

First a thanks to the folks at Concurring Opinions for letting me blog this month.

Now, the blog post. Tomorrow, June 1, 2011, Illinois will begin permitting same-sex (and heterosexual couples) to enter into civil unions. Last Thursday, Catholic Charities of Rockford, IL announced it would cease its foster care and adoption services rather than abide by the state’s prohibition of discrimination on the basis of sexual orientation (a prohibition which has been in place since 2006). A recent, last ditch attempt to exempt religious child-welfare service providers failed to pass the Illinois legislature.

This is not the first time Catholic Charities has shuttered its doors rather than permit same-sex couples to adopt or become foster parents. In 2006 (2 years after Massachusetts began permitting same-sex couples to marry), Catholic Charities of Boston made a similar decision. The agency had previously placed a number of children with same-sex couples. Shortly after this information was brought to light by the Boston Globe in 2005, officials stated that the practice would end. This decision was contrary to a unanimous vote by the agency’s board to continue placing children with gay and lesbian couples and seven members of the agency’s board resigned in protest.

Shortly thereafter and, notably, two years before California began permitting same-sex couples to marry, the Archdiocese of San Francisco announced it would “no longer allow same-sex couples to adopt children through its Catholic Charities organization[.]”

While not specifically directed to the Catholic Charities issues, consideration of whether and to what extent to exempt religious organizations (and, some argue individuals with strong religious convictions) from sexual orientation nondiscrimination laws has been the subject of much scholarly writing. Laura Underkuffler recently published a piece in which she argues that “just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status.” Others have argued in favor of broad exemptions for religious entities and individuals. My colleague, Alan Brownstein, has staked out a middle ground. He recently argued that “the starting place for determining whether or not an accommodation for religious objectors to same-sex marriage should be granted is to ask whether a comparable accommodation would be granted to an individual or institution seeking the right to discriminate on the basis of religion in providing goods, services, or benefits to others.”

One thing is clear: this debate is likely to continue for at least some time.

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Anonymity and Gamete Providers

An increasing number of children are being born as the result of assisted reproductive technology (ART). The CDC has reported that in 2008, ART cycles resulted in 46,326 live births. These numbers do not include births as the result of alternative or artificial insemination, which likely results in a much larger number of births each year. In a significant percent of these cases, one or both of the gametes – that is the sperm and/or eggs — were provided by someone other than an intended parent. Today, in the U.S. there are no laws addressing whether the providers of gametes must disclose their identity.

Yesterday, the British Columbia Supreme Court Judge held that British Columbia will no longer allow anonymous donation of gametes. Pratten v. British Columbia (Attorney-General), 2011 BCSC 656. In 1996, the law in British Columbia was amended to provide adopted children the right to gain information about their genetic parents. This law did not, however, extend this right to children born through ART. In its ruling, the court held that the exclusion of children born through ART constituted impermissible discrimination based on the children’s method of conception. The court explained that the evidence demonstrated that both sets of children – adopted children and, in the words of the court, donor offspring – “are closely comparable” “with regard to the need to know and have connection with one’s roots.” Pratten v. British Columbia, at 77. The court further concluded that the government had failed to offer a sufficient explanation for this differential treatment.

The court gave the government 15 months to implement its ruling. In the meantime, however, the court granted an injunction prohibiting the destruction of records regarding gamete providers. As a result of the ruling, “anonymous gamete donation will no longer be permitted in B.C.”

A number of scholars recently have written about the issue of anonymity for gamete providers. In her recent book Test Tube Families: Why the Fertility Market Needs Legal Regulation (2009), Naomi Cahn takes the position that anonymous gamete donation should be prohibited, and that children conceived through ART should be permitted to obtain information about their gamete providers when they reach the age of 18.

In her review of Cahn’s book, Gaia Bernstein “caution[s] against the adoption of a mandatory prohibition on anonymity in the United States.” As Bernstein explains, a small but growing number of countries around the world prohibit gamete provider anonymity. Bernstein contends that while the evidence is inconclusive, some studies suggest that prohibitions on anonymity have led to shortages of gametes and that this, in turn, has resulted in the erosion of “commitments to equality and to the prevention of commodification.”

Regardless of one’s position on the question of gamete provider anonymity, one must also ponder whether anonymity will continue to be a real possibility in light of the internet, new technology making it much easier and cheaper to perform genetic testing, and developments such as donor sibling registry.

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Same-Sex Marriage in New York

2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.

But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.

Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.

Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.

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LGBT Judges

Yesterday, the Massachusetts Governor’s Council confirmed (by a split 5-3 vote) the first openly lesbian or gay member of the Massachusetts high court. And, of course, in recent weeks, there has been much discussion in the media and in the blogosphere about the relevance of Judge Walker’s sexual orientation with respect to his qualifications and ability to judge impartially. The appointment of Justice Lenk and recent events involving Judge Walker offer us a good opportunity to reflect on the status of LGBT people in the state and federal judiciary.

In the last several years, openly LGBT people have joined a number of state high courts. There are two openly LGBT justices on the Oregon Supreme Court — Justice Rives Kistler and Justice Virginia Linder, who became the “first openly lesbian judge to serve on a state supreme court anywhere in the US” when she was appointed to the court in 2007. Earlier this year, Justice Sabrina McKenna became the first openly LGBT person to join the Hawaii Supreme Court. Just months earlier, Justice Monica Marquez joined the Colorado Supreme Court as its first openly LGBT member. Although actual statistics are hard to come by, it appears that there are a number of openly LGBT judges sitting on lower state courts. It has been reported, for example, that there are 15 openly LGBT judges sitting on state courts in Cook County, IL. And this past fall saw the first election of an openly transgender judge, Judge Victoria Kolakowski.

While there unquestionably are more openly LGBT judges today than there were 10 or 20 years ago, they still comprise a very small percent of all judges, and this is particularly true on the federal level. In 1994, Judge Deborah Batts became the first openly gay Article III federal judge. Close to 20 years later, with the retirement of Judge Vaughn Walker, Judge Batts once again holds that title. Judge Batts is a federal district court judge; there are no openly LGBT members of the federal appellate courts.

Given that many people look to the federal government as a source of protection for vulnerable groups, it is interesting to consider why the states seem to be doing a better job of getting qualified LGBT people on the bench.