Miscellaneous

Wonks, Rejoice!

By Anne Skove, Esq.

Tuesday was an exciting day in legal news, but with all due respect, the real story emerging is California, not Judge Sotomayor.

Sure, there's an exciting confirmation process to look forward to, long discussions of empathy v. hard-hearted legalese, and the elusive what-makes-a-good-justice answer.

But family law, including same-sex marriage, is deeply concerned with policy. Empathy has always guided this policy because real people's lives are radically affected by it. Family law touches people in a way other areas of law does not. Hence, we have more to talk about when it comes to determining the fate of same-sex couples in California.

Forget about same-sex marriage; consider the charmingly retro opposite-sex marriage. How do we deal with conflicting state rules for these couples? Unless the jurisdiction's strict public policy goes against the type of marriage brought into the state, the marriage stands.

Thus, a polygamous marriage would not be recognized. Everybody hated Mormons back in the day, and suspicion still surrounds them. Polygamous families are quite complicated.

Similar alternatives to traditional marriage have likewise not caught on. For example, except in certain circles, polyandry has not risen above its definition of swinging for the non-beautiful in our society.

OTOH, a jurisdiction is likely to recognize a couple married ala common law -- even if such a marriage could not occur in that jurisdiction.

Why? Because family law policy favors marriage. This dates back to the days of illegitimacy, where laws and society were a whole lot nicer to legitimate folks than to bastards, and when women depended on men economically. Stability and relief at fewer members of the singles scene were added bonuses.

There's a distinction between how a marriage is formed and the marriage itself. A jurisdiction might not like the way it's done, but the end result -- marriage -- makes for good policy.

Too, there is the difficulty of determining what people did and said in another time and another jurisdiction. Again with the common law couple, did they hold themselves out as married? Did they consider themselves married? Did they live together? For how long? Who knows?

The trouble with marriage is that it boils down to an agreement between two people and a witness. Grounds for divorce lost favor after it became apparent that two people who couldn't agree on anything else could at least join forces to convince the court that they belonged apart.

So in California, couples already married stay married. Even the will of the people, expressed in legislation, can't stop these existing marriages. The strong public policy argument -- noting that Prop 8 signifies that the jurisdiction is against same-sex marriages -- might well have tossed these couples back into singledom. The strongest public policy is pro-marriage.

What's the future of same-sex marriage? Wait and see. As more jurisdictions allow same-sex marriage, the more confusing it will be from place to place. The more marriages, the more children. Simultaneously, the general public may grow more used to the idea. Several pickles will result -- who's married? Who isn't but thinks they are? What about the children? Who cares?

The California opinion is a fractal: a microcosm of all that's happening in the same-sex marriage realm, and now a portion of the bigger picture.

Thanks to the Sexual Orientation and the Law Blog for providing the link to the 185-page opinion.

Full post as published by court-o-rama.org on May 26, 2009 (boomark / email).