Author Archive for linda-mcclain
The State of/and Nonmarital Unions
posted by Linda McClain
If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it, then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage and government’s proper role in nonmarital unions. Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various equitable grounds – is part of our society’s basic vocabulary of relationships. But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children. ”Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.
October 31, 2009 at 1:19 pm
Posted in: Family Law
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First Marriage
posted by Linda McClain
Yesterday, when I went on the Internet on my office computer, the headline was, “State of Their Union,” referring to a sneak preview of a long story in this Sunday’s New York Times Magazine, “The Obama Marriage.” Earlier that day, when I turned on my home computer, my internet provider listed as one of the top videos of the week “Michelle Obama’s Love Tips.” Intrigued, I clicked on the site, which took me to a segment on E!News, with a story on “The First Lady sounds off on finding love” in the December issue of Glamour magazine. Suddenly, we are awash not just in the usual glamorous photos of the First Couple, but also in stories of the First Marriage. Since marriage promotion happens to be the next topic in my Family Law course, and is a topic in which I have more than a passing interest, I thought I would write here about this very public marriage and how it might relate, if at all, to the federal government’s campaign of promoting healthy marriage (which, at the moment, due to DOMA, excludes same-sex couples from its purview) and to the more general question of marriage and gender relations. Read the rest of this post »
October 30, 2009 at 8:21 am
Posted in: Family Law
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Civil Marriage Equality in the District of Columbia?
posted by Linda McClain
During my guest stint on Concurring Opinions, I plan to take a look at several law and policy issues that were key parts of President Obama’s agenda during his campaign and see where matters stand, as we near the one year date since his historic election. One such issue is civil rights — as a candidate, Barack Obama supported full civil unions and federal rights for LGBT couples. Already, the landscape across the United States in late 2009 looks quite different from late 2008, as state legislatures enact and expand domestic partnership laws and some states move (sometimes spurred by a judicial ruling, but sometimes on the initiative of the legislature) from civil unions or domestic partnerships to civil marriage. Yesterday, District of Columbia City Council member David Catania, with the support of nine other Council members, introduced a bill to extend civil marriage to same-sexcouples. Media reports about the bill indicate that some members of Congress may try to prevent the bill from becoming a law when Congress exercises its review power. However, other members of Congress indicate that with all that is on Congress’s plate, it is unlikely members would press for a joint resolution to block the law and, further, the District should be allowed to decide for itself.
In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons, that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.
Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”" should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.
A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage – a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other. Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law, evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.
October 7, 2009 at 10:51 am
Posted in: Uncategorized
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