August 2011 Archives

Gay Marriage, Polygamy, Contracts, Personal Freedom

August 31, 2011, by

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.
More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.
Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other's primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns' attorney, Jonathan Turley, claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person's right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his 'wives' are relying on the Supreme Court's 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior - in that case, gay sex.

In Lawrence v. Texas the Supreme Court held, specifically, that "[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention."
Similarly, the relationship between Brown and his wives does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.

Divorce and Custody Battle Causes Man to Set Himself on Fire

August 24, 2011, by

In an incident that received little attention in the mainstream press, a man named Tom Ball, 58, committed suicide in front of the Keene, New Hampshire County Courthouse on June 15, 2011 by dousing himself with gasoline and lighting a match. His 15 page suicide note explained that he was angry at the state child protection bureaucracy and the courts after his ten year battle over child abuse charges. He was angry at the US court system, the federal government, police, child protective services, in general, a system that in his opinion no longer works and no longer serves our interests.
Ball's troubles began when he slapped his then four-year-old daughter, giving her a cut on the lip, when she refused to obey him after three verbal warnings.
His wife called the child's mental health provider who apparently told her that if she did not call the police, both she and Ball would be arrested.
So she called the police and Ball was arrested. After six months, the wife filed for divorce. Clearly, no one should strike children. But a cut lip under some circumstances, if a clearly isolated instance and without more, probably should not constitute child abuse, and certainly not domestic violence. This family probably needed help and what they got was an inflexible system that was not, by its very nature and structure, able to help the family in the ways they needed it. What if instead of dealing with the bureaucratic and inflexible family and criminal court systems, the family had been provided with therapy and counseling, what if they had been able to learn effective and compassionate communication skills, what if they had been able to learn how to resolve conflicts and better discipline skills? Perhaps the couple would still have divorced, but they probably would have learned to co-parent effectively despite the divorce. Perhaps Mr. Ball would have learned more effective methods of discipline and conflict resolution, and the child would probably have had a father and close and loving relationship with him. A far better outcome in my opinion, than a broken family and a dead father.
One interesting part of his suicide note was his observation that the United States is no longer a nation of laws; Ball described what he calls the 'second set of books,' which is essentially the collection of policies, procedures, and protocols that courts and executive agencies rely upon. According to Ball this includes police departments and other 'enforcers' across the country who use standardized responses to take judgment out of the equation. Even the guys who drove the trains to the concentration camps were just following procedures claims Ball.
Tom Ball owed about $3,000 in child support, and in his suicide letter noted that he could have borrowed the money. However, Ball had not worked in two years and faced jail time for failure to pay child support. Wouldn't the court and his ex-wife know about his financial status? If he did not have the money before, how would he get the money after spending a year in jail?
In his lengthy note, Ball expressed his frustration with domestic violence charges and lengthy divorce proceedings, and wrote of a conspiracy of feminists and governments that disenfranchise men. I don't agree with the claims of Ball and others that this was due to feminism and a bias in favor of women and against men in family court. But I do believe it lends credence to the view that in so many cases, the court system simply does not work and that most of us are better off learning conflict resolution skills to solve our own problems, and if necessary working with professionals to assist in that effort, rather than relying on the court system and other bureaucracies.

Divorce in the Diverse San Francisco Bay Area

August 2, 2011, by

I live and practice law in Fremont, California, one of the most diverse communities in the diverse San Francisco Bay area. Over half the population of Fremont is Asian and Fremont has more folks from Afghanistan than any city in the US. Consequently, many of my clients are Asian and Middle Eastern.

Asian clients often express their belief that divorce is more shameful in their culture and consequently more difficult for them. In addition, in those cultures where arranged marriages are common, and even if the marriage itself was not arranged, the divorce involves the entire extended family.

Another difficulty for these clients in a divorce is that the cultural and legal systems from their country of origin differ from the American system, but American courts will not take these factors into account. For example, aspects of Sharia law or property issues related to dowry may be very important to the spouses but will not be factors that a California divorce court will consider. But in mediation or Collaborative, couples can incorporate their own sense of fairness and justice and/or values and principles that derive from their cultural and ethnic background and thereby create agreements that honor their highest values and the values of their culture.