Gay marriage in New York
Hi there,
I just wanted to say congratulations New York! Gay marriage is here to stay. When you consider how many kids are being raised by gay couples, I can only be bewildered at the opposition!
Best,
Nancy
A Fascinating Challenge to DOMA
Hi there,
Coming up this Thursday is the oral argument before the Federal Court in the GLAD challenge to the Federal Defense of Marriage Act.
I am someone who is strongly (fervently) in favor of gay marriage. Single sex adoption has been around for a long time and I had thought that the successful challenge for gay marriage would come when someone argued that the adoptive children of gay parents had a right to have their parents be able to marry.
The Goodridge Case was to me, a fair and necessary decision AND the only court decision I ever read that made me teary-eyed. As a practitioner, I have been dealing with the unequal results of the interface between the Federal and State law ever since. It is clearly a major issue in other states too.
The Commonwealth also has a challenge to DOMA winding its way through the Federal Court system.
I am keeping my fingers crossed!
Best,
Nancy
Update (5.06.10) - Learn more about the DOMA hearing in an article I was quoted in this morning.
Sorry to see it...
Hi there,
I was sorry to see that Tuesday the Maine voters rejected single sex marriage.
In Massachusetts, however, the Appeals Court in what is known as a "slip opinion" (a slip opinion does not have the dis-positive force of law, but can be utilized as part of a court argument or brief), has extended the time concept of the length of a single sex marriage backwards from the date of marriage to the date of the couples' commitment ceremony. This means that gay couples may be considered to have been married longer than in fact they were. This is not the first time Massachusetts has made this determination (again in a slip opinion). This potentially has huge significance for divorcing single sex couples.
There is however a Supreme Judicial Court decision, and in Massachusetts, SJC decisions always trump Appeals Court decisions. The SJC held that in a personal injury matter, the length of the marriage was ONLY that time in which the parties were indeed married.
This has the effect of muddying the already murky water of single sex divorce in Massachusetts a little bit more.
Best,
Nancy
Here we go again!
Hi there,
According to the New York Times, the highest court in New York will hear arguments on whether or not New York will honor marriages between gay and lesbian couples that are legal elsewhere.
I was taught in law school that the constitution requires states to give "full faith and credit" to the laws of other jurisdictions, such as marriage, adoptions, etc. The federal Defense of Marriage Act (DOMA) complicates the situation, as federal law trumps state law, so states have an argument available if they do not recognize gay marriages which are legal elsewhere, as legitimate.
As usual, Daniel Clement had a very good post on this as well.
Best,
Nancy
Another Pretty Shameless Piece Of Self Promotion
Hi there,
I have written a number of posts on gay marriage, but I haven't posted an in-depth analysis of the issues that should be considered by a gay couple before they walk down the aisle.
My colleague, Lisa Cukier interviewed me for an article in Boston Spirit magazine which does provide more detail than the posts have.
Enjoy the weekend.
Best,
Nancy
Lawsuit Against the Federal Defense of Marriage Act
Hi there,
Since we learned yesterday that Massachusetts Attorney General Martha Coakley is filing a law suit against the federal Defense of Marriage Act (DOMA), speculations have been flying about what this means and what will happen. The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" as "a legal union between one man and one woman as husband and wife."
Why?
We just celebrated the 5 year anniversary of allowing same-sex marriage in Massachusetts. Since then, at least 4 other states (Maine, Vermont, Connecticut and Iowa) have legalized gay marriage. Even though gay marriage is recognized in these states, it is still not recognized at the federal level. This causes problems on many levels – taxes and adoption of children to name just two. According to the Boston Globe, “The suit filed in US District Court in Boston claims that the Congress, in enacting the DOMA, ‘overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.’”
Issues
Gay and lesbian married couples struggle with very different tax treatment as the federal government, the main taxing authority, doesn't recognize gay marriage due to DOMA.
Due to the current regulations under DOMA, we have to approach gay divorce with a very different analysis then divorce between a straight couple both because of the very complex tax implications and the issue of what is the actual length of the marriage (one of the critical factors in setting support and dividing property).
So I am delighted to see that Attorney General Coakley has done this. It will be fascinating to see what happens,
Best,
Nancy
N.H. Closer to Same Sex Marriage Law
Hi There,
Here I am posting on gay marriage yet again. Because I am a divorce lawyer and because I have been married for 44 years, marriage is obviously something I think about regularly, both personally and professionally. There are so many significant legal rights that attach to marriage that I have long believed that same sex couples should have the right to marry.
Like the pro-choice and pro-life arguments, this is a debate that cuts across political parties, although you would not know it by the way it is reported.
It looks as if New Hampshire will vote to allow same sex marriage as well. Go New England!
Best,
Nancy
Maine Passes Gay Marriage Law
Hi there,
It is exciting to see the New England states recognizing the fairness of allowing gay folks to marry. It is a huge step and where people can marry they also inevitably will pay taxes and some of them will later divorce. In these areas much inequity still remains.
The Defense of Marriage Act (DOMA) impacts the income tax and divorce tax status of gay couples regardless of whether or not they are legally married.
They cannot file federal income taxes as married filing jointly; when, and if, they divorce any transfers of property between them are taxable events, as they are not for heterosexual couples, and there is no deduction for alimony.
All of these are costly, but still it is terrific to have another state recognize gay marriage.
Best,
Nancy
More thoughts on VT Gay marriage decision
Hi there,
Since last week I have been thinking about the legal implications of the gay marriage decision in Vermont and found that it raises more questions than I had initially considered. These relate specifically to the impact of marriage on a state which allowed civil unions. This raises the issue of will the civil union be deemed a marriage thus increasing the length of the marriage and having impact upon divorce on all sorts of issues from custody thru finances? There also may be issues because if the state now treats civil unions as marriages then if one party to the civil union marries someone else without dissolving the civil union, is that bigamy?
Clearly this will be very complex and interesting as it unfolds.
Best,
Nancy
VT legalizes gay marriage
Hi there,
Great News from Vermont - gay marriage is now legal! I know this can be a political hot button, but ever since I read the Goodridge decision (PDF) which made Massachusetts the first state in the nation to legalize gay marriage, I have been proud to hail from Massachusetts. Vermonters can now feel the same pride.
Tell me what you think.
Best,
Nancy
