Supreme Court hears the gay marriage question

Friends have been asking me what our forthcoming book has to say about gay marriage, now that the U.S. Supreme Court may force all states to provide and recognize same-sex marriage. (Forbes article by Ilya Shapiro, who says “marriage is yet another area of policy government should exit”) One thing that we’re quoting came from this weblog, in a comment on Maryland’s new custody dispute resolution laws: “How about let’s focus on ending marriage in this country. It’s well past the point of saving. The ticks weigh more than the dog.”

Here’s an excerpt on the mess caused by the current situation, from our Kentucky chapter:

“One tsunami moving across the country is the gay marriage situation,” said Haynes [our litigator-interviewee]. “We have a statute from 1998 that defines marriage as being between one man and one woman, but a federal court judge has ruled that it is unconstitutional.” Where do Kentuckians stand on the issue? “There has been a shift in public approval and it is now about 50/50,” said Haynes, “while lawyers ask ‘What’s so special about gay people that they get to avoid the horror of divorce?'” How does it work to be a state where gay marriage is illegal in a country where at least some states allow same-sex marriage? “I’ve got a case right now [August 2014] that a local judge is hanging onto. It is a lesbian couple with no children. They were legally married in Massachusetts. One spouse is a disabled Iraqi war veteran. The court system refuses to divorce them, which means they would have to go back to Massachusetts and live there for a year to get Massachusetts jurisdiction for the divorce.” What does Haynes think of the conundrum? “If you’re against gay marriage, why aren’t you in favor of gay divorce?”

The rest is in a chapter on the History of Divorce in America:

None of the attorneys interviewed expressed opposition to gay marriage. “That’s inventory,” a divorce lawyer was reported to have said (in the Divorce Corp. movie) every time he drove by a wedding. Attorneys generally looked forwarded to having a larger base of clients and some expressed the opinion that judges hearing gay divorces might ultimately revisit their gender biases when handling divorces between men and women. “If they get used to the idea of awarding shared custody to two moms,” one lawyer said, “then they might start thinking that it was okay for a mom and a dad to do 50/50 shared parenting.”

What do they make of the public fight over gay marriage? “What would surprise people from 100 years ago the most is not that two people of the same sex wanted to live within a framework of laws that were designed for two people of the opposite sex,” said one attorney. “What I think would surprise them is how the benefits of civil marriage cited by gay marriage advocates have nothing to do with marriage per se. The public discussion is about potential tax or Social Security benefits from being married or that it isn’t necessary to execute a health care proxy to get control over an unconscious person’s health care. But nobody talks about what used to be considered the main benefit of a civil marriage, i.e., that you had a life partner on whom you could rely.”

An attorney who’d been practicing for nearly 40 years said “Today’s civil marriage is a shadow of its former self. In the old days, if your partner was having an affair you could have him or her arrested on charges of adultery. If your partner decided to repudiate his or her marriage vows, the state would assist you in trying to enforce those vows. He or she could negotiate with you to end the marriage but there was no equivalent to no-fault divorce in which your partner could sue you and be guaranteed of winning the lawsuit. Gays and straights today are fighting over the scraps of marriage.”

What about the moral and philosophical dispute regarding gay marriage? “When I read arguments by opponents of gay marriage,” said one attorney, “I don’t recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?”

7 thoughts on “Supreme Court hears the gay marriage question

  1. I am not an expert on the alimony mess. I’d like to comment though on the institution of marriage.

    IMO, ending government sanctioned marriage is a good idea. Marriage started as a religious institution and the modern state got involved so as to protect itself from having to shoulder the burden of deadbeat husbands absconding.

    How about the following alternative:

    Let marriage should devolve into a religious institution once again (and let the religions duke it out with their prospective constituents to decide whether they want to perform gay marriages). Marriage would then have no legal function.

    The state, on the other hand, should provide the service of civil union to those who wish to be in such partnerships (this should be gender blind). A civil union would come with the usual tax advantages. The state gains in this by having people entering into stable life partnerships.

    My proposal could resolve the political issue of gay marriage in the US. My point is that “marriage” is currently word fraught with political, religious, social and emotional implications, and it might be a good thing to change that.

    The only difficulty I can see with such a proposed arrangement is what if someone decides to marry (religiously) someone and then that same person decides to also be in a civil union with someone else? (Perhaps religious marriage should determine whether or not you can enter into a civil union with someone else.)

  2. John: I think “the usual tax advantages” are not “usual” except for a breadwinner/stay-at-home partnership (increasingly uncommon). See for how two-income poor couples are worse off being married (their combined incomes disqualify them for a variety of welfare programs that each individually would have qualified for). Two-income upper-middle-class couples pay more in taxes because their combined incomes push them into paying the various new Obama taxes.

    Marriage also makes it easier for a child support or alimony plaintiff to mine out a defendant’s partner. See and for example. In most states there are no real standards in the world of healthy working-age adult dependency; an aggressive plaintiff with a good lawyer has a colorable argument that the new partner should support the defendant while the defendant supports the plaintiff. However, the lawyers we interviewed say that judges are reluctant to go down that road unless the defendant is married.

  3. Phil,

    Is it worthy of note that divorce lawyers tend to have the view that same-sex marriage is ok? I think any reasonable person would assume this out of hand. These attorneys gain from more potential clients. It’s almost like asking an auto body shop in a rural area if they think deer should be exterminated.

    Why not interview other parties who don’t have a financial stake in the system?

    The gay marriage debate is near universally a religion-based issue, yes? For people who are against it, I’d guess 90% or more base their sentiments on religious beliefs. As you astutely point out, the whole tax-benefit argument really isn’t an argument in many cases.

    Maybe you could interview men and women who’ve gone through marriage several times and ask them what their opinion is of marriage? I’d bet they would almost universally tally up far more complaints than compliments, yet virtually all of them do it again. And again.

  4. @John Klein:

    Your sentiments seem to be “get government out of the marriage business”.
    Yet your last paragraph suggests the opposite. Or am I misunderstanding?

  5. Mark: Our book is primarily a record of interviews with about 100 divorce litigators. Some of them advocate tearing down the entire litigated system for determining custody and replacing it with an administrative system as they have in some other countries, e.g., Sweden. Some advocate 50/50 custody presumptions and alimony guidelines, both of which greatly reduce the scope and fees of a typical divorce lawsuit. Attorneys in states where child support is capped don’t generally advocate for the multi-million dollar child support profits that are available in California, Wisconsin, and Massachusetts, despite the fact that people will spend a lot more in legal fees when they’re trying to make $5 million from a child compared to when they’re trying to make $500,000.

    So there is not a single predictable answer to any question merely because all of the interviewees can and do bill clients when state legislatures set up rules allowing parents to sue each other.

    As for the idea that “virtually all” divorce lawsuit defendants marry again, our interviews with consumers suggests that this is no longer true. “That’s the worst contract you can sign,” said an English divorce defendant when asked if he intended to marry his long-term girlfriend. (“Sod her,” said the girlfriend, a full-time worker, about the plaintiff, living off child support and alimony, and the possibility of her income being tapped to pay a woman whom her boyfriend had briefly known 15 years earlier.) People who’ve spent a few years as defendants don’t associate marriage with romance. To them it is just a way to put oneself in a position to sue or be sued.

    Of course there are some former defendants we interviewed who had remarried, but some of those had also moved to a state where being a divorce plaintiff or obtaining custody of a child was less profitable. An example of this was a Massachusetts father who’d spent 16 years supporting a woman he’d been married to for 2 years, the new husband that she had married, and the boyfriends with whom she was cheating on the new husband, with a combination of property division (she took 100% of his savings at the time of the divorce) and by paying $130,000/year in tax-free child support for a single daughter (who ultimately ended up not liking her mother and moving in with the dad). He moved to Texas where child support is capped at $20,000 per year and alimony is limited in scope. [Public policy note: He has a very high income so Massachusetts lost quite a bit of income tax revenue due to the move. The state also lost out on collecting taxes on what the wife would have earned had she not been able to live on child support. She was and is a healthy working-age college graduate.]

  6. @Mark,

    Yes, I am proposing that the government should get out of the marriage business. The government should be reduced to providing civil unions. There is an issue that I am unable resolve: what happens if I choose a person to marry, but then I choose another person to be in a civil union with?

  7. @Phil,

    “So there is not a single predictable answer to any question merely because all of the interviewees can and do bill clients when state legislatures set up rules allowing parents to sue each other.”

    Maybe you’re not following my line of thought.
    You stated most lawyers you interviewed are pro gay marriage and my thought is, well, of course they are!
    Why wouldn’t an attorney’s response to whether gay marriage should be legal be easily predictable when, as you point out in your upcoming book, many lawyers make serious money in many of these cases? Hence, a new set of clients (from gay marriage) could only serve to increase the lawyer’s potential customer base.
    Did you think the average divorce lawyer would actually come out AGAINST gay marriage?

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